Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to reduce pollution caused by emissions of carbon dioxide and other greenhouse gases, and for other purposes
Administered by: DCC
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 23 Feb 2010
Introduced HR 02 Feb 2010

2008‑2009‑2010

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Carbon Pollution Reduction Scheme Bill 2010

 

No.      , 2010

 

(Climate Change and Water)

 

 

 

A Bill for an Act to reduce pollution caused by emissions of carbon dioxide and other greenhouse gases, and for other purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Objects................................................................................................ 3

4............ Simplified outline................................................................................ 4

5............ Definitions.......................................................................................... 5

5A......... Extended meaning of supply.............................................................. 31

6............ When supply occurs......................................................................... 31

7............ Vacancy in the office of an expert advisory committee member...... 32

7A......... Vacancy in the office of a Domestic Offsets Integrity Committee member            33

8............ Electronic notice transmitted to the Authority................................ 33

9............ Crown to be bound........................................................................... 34

10.......... Extension to external Territories....................................................... 34

11.......... Extension to exclusive economic zone and continental shelf............ 34

11A....... Extension to Joint Petroleum Development Area............................ 34

12.......... Application to foreign ships............................................................. 34

Part 2—National scheme cap and national scheme gateway                       36

13.......... Simplified outline.............................................................................. 36

14.......... National scheme cap......................................................................... 36

15.......... National scheme gateway................................................................. 39

Part 3—Liable entities                                                                                                       42

Division 1—Introduction                                                                                          42

16.......... Simplified outline.............................................................................. 42

Division 2—Direct emitters of greenhouse gases                                      44

Subdivision A—General rules                                                                                44

17.......... Liable entity—controlling corporation of a group............................ 44

18.......... Liable entity—non‑group entity...................................................... 47

19.......... Liable entity—holder of a liability transfer certificate..................... 51

Subdivision B—Landfill facilities                                                                          54

20.......... Liable entity for landfill emissions—controlling corporation of a group 54

21.......... Liable entity for landfill emissions—non‑group entity.................... 59

22.......... Liable entity for landfill emissions—holder of a liability transfer certificate          64

Subdivision BA—Adjustment of provisional emissions number in relation to a facility in the Joint Petroleum Development Area or the Greater Sunrise unit area            69

22A....... Joint Petroleum Development Area—adjustment of provisional emissions number              69

22B....... Joint Petroleum Development Area‑Greater Sunrise unit area—adjustment of provisional emissions number     70

22C....... Greater Sunrise unit area—adjustment of provisional emissions number               71

Subdivision C—Anti‑avoidance                                                                               72

23.......... Anti‑avoidance.................................................................................. 72

Subdivision D—Greenhouse gas emitted from the operation of a facility      73

24.......... Greenhouse gas emitted from the operation of a facility.................. 73

25.......... Measurement of greenhouse gas emitted from the operation of a facility               75

Division 3—Importers, manufacturers and suppliers of synthetic greenhouse gases   76

26.......... Liable entity—import of synthetic greenhouse gas.......................... 76

27.......... Liable entity—manufacture of synthetic greenhouse gas................. 77

27A....... Reduction of total provisional emissions numbers—netted‑out numbers               78

28.......... Liable entity—re‑supply of synthetic greenhouse gas to recipient who does not quote an OTN          81

29.......... Liable entity—supply of synthetic greenhouse gas to a person who misuses the person’s OTN         81

30.......... Anti‑avoidance.................................................................................. 82

Division 4—Importers, producers and suppliers of eligible upstream fuels       84

31.......... Liable entity—import of liquid petroleum fuel................................ 84

32.......... Liable entity—production of liquid petroleum fuel......................... 85

32A....... Reduction of total provisional emissions numbers under section 31 or 32—netted‑out numbers          86

33.......... Liable entity—supply of untransformed eligible upstream fuel (other than liquid petroleum fuel)       88

33A....... Liable entity—re‑supply of natural gas previously supplied out of a prescribed wholesale gas market                89

34.......... Liable entity—application to own use of untransformed eligible upstream fuel (other than liquid petroleum fuel).......................................................................................................... 89

35.......... Liable entity—supply of transformed eligible upstream fuel.......... 90

36.......... Liable entity—application of transformed eligible upstream fuel to own use         91

37.......... Liable entity—re‑supply of eligible upstream fuel.......................... 92

37A....... Exclusion of exported eligible upstream fuel.................................... 93

38.......... Liable entity—application of eligible upstream fuel to OTN holder’s own use     95

39.......... Liable entity—application of transformed eligible upstream fuel to OTN holder’s own use 96

40.......... Liable entity—supply of eligible upstream fuel to a person who misuses the person’s OTN               97

Division 5—Obligation transfer numbers                                                        98

Subdivision A—Issue of obligation transfer numbers                                       98

41.......... Issue of OTN.................................................................................... 98

42.......... Application for OTN....................................................................... 98

43.......... Further information.......................................................................... 98

44.......... Issue of OTN as the result of an application................................... 99

45.......... Issue of OTN on the Authority’s own initiative........................... 100

46.......... Surrender of OTN........................................................................... 100

47.......... Cancellation of OTN...................................................................... 101

48.......... OTN is not transferable.................................................................. 101

49.......... OTN Register................................................................................. 101

50.......... Evidentiary provisions................................................................... 102

50A....... Notification of change of name or address of OTN holder............. 102

Subdivision B—Methods of quotation of obligation transfer numbers          103

51.......... Quotation of OTN.......................................................................... 103

51A....... One‑off quotation of OTN............................................................. 104

51B....... Standing quotation of OTN............................................................ 105

51BA.... Withdrawal of quotation of OTN if OTN is cancelled or surrendered 106

51C....... Withdrawal of standing quotation of OTN by OTN holder.......... 106

51D....... Withdrawal of quotation of OTN by agreement............................ 106

51E........ Validation of quotation of OTN..................................................... 107

51F........ Effect of surrender or cancellation of OTN—grace period for standing quotation  107

51G....... Effect of surrender or cancellation of OTN—grace period for one‑off quotation   108

Subdivision C—Mandatory quotation of obligation transfer numbers          109

52.......... Mandatory quotation of OTN—large user of eligible upstream fuel 109

53.......... Mandatory quotation of OTN—re‑supplier of natural gas........... 110

54.......... Mandatory quotation of OTN—liquid petroleum gas marketer.... 111

55.......... Mandatory quotation of OTN—use of certain fuels as a feedstock 112

Subdivision D—Voluntary quotation of obligation transfer numbers           113

56.......... Voluntary quotation of OTN—large user of eligible upstream fuel 113

58.......... Voluntary quotation of OTN—use of fuel in manufacturing other products etc.   115

59.......... Voluntary quotation of OTN—transformation of fuel.................. 115

60.......... Voluntary quotation of OTN—export or re‑supply of eligible upstream fuel        116

63.......... Voluntary quotation of OTN—re‑supply of synthetic greenhouse gas  116

64.......... Voluntary quotation of OTN—export or re‑supply of synthetic greenhouse gas  116

64AA.... Voluntary quotation of OTN—use of synthetic greenhouse gas as a feedstock     117

Subdivision E—General provisions                                                                      117

64A....... Acknowledgement of one‑off quotation of OTN........................... 117

64B....... Acknowledgement of standing quotation of OTN......................... 118

65.......... Rejection of quotation of OTN—re‑supply of eligible upstream fuel 118

66.......... Rejection of voluntary quotation of OTN...................................... 120

66A....... Unauthorised mandatory quotation of OTN.................................. 120

67.......... Misuse of OTN.............................................................................. 121

68.......... Quotation of bogus OTN............................................................... 122

Division 6—Liability transfer certificates                                                      124

Subdivision A—Transfer of liability to another member of a controlling corporation’s group       124

69.......... Category A transfer test................................................................. 124

70.......... Application for liability transfer certificate.................................... 124

71.......... Further information........................................................................ 125

72.......... Issue of liability transfer certificate................................................ 125

Subdivision B—Transfer of liability to a person who has financial control of a facility    126

73.......... Category B transfer test................................................................. 126

74.......... Application for liability transfer certificate.................................... 127

75.......... Further information........................................................................ 128

76.......... Issue of liability transfer certificate................................................ 128

Subdivision C—Other provisions                                                                         130

77.......... Duration of liability transfer certificate.......................................... 130

78.......... Surrender of liability transfer certificate......................................... 131

79.......... Cancellation of liability transfer certificate..................................... 132

80.......... Liability transfer certificate is not transferable............................... 133

81.......... Financial control............................................................................. 133

Part 4—Emissions units                                                                                                   135

Division 1—Introduction                                                                                        135

82.......... Simplified outline............................................................................ 135

Division 2—Australian emissions units                                                          137

Subdivision A—Issue of Australian emissions units                                       137

83.......... Issue of Australian emissions units................................................ 137

84.......... Identification number...................................................................... 137

85.......... Vintage year.................................................................................... 137

86.......... When Australian emissions units may be issued............................ 137

87.......... How Australian emissions units are to be issued........................... 138

88.......... Circumstances in which Australian emissions units may be issued 138

89.......... Issue of Australian emissions units for a fixed charge.................... 138

90.......... Payment of charges for the issue of Australian emissions units.... 142

91.......... Imposition of charges for the issue of Australian emissions units. 143

92.......... Issue of Australian emissions units—national scheme cap number 143

93.......... Australian emissions units—total number..................................... 143

Subdivision B—Property in, and transfer of, Australian emissions units   144

94.......... An Australian emissions unit is personal property....................... 144

95.......... Transfer of Australian emissions units........................................... 144

96.......... Transmission of Australian emissions units by assignment........... 145

97.......... Transmission of Australian emissions units by operation of law etc. 146

98.......... Transfer of Australian emissions units to another Registry account held by the transferor   147

98A....... Equitable interests in relation to an Australian emissions unit....... 148

Subdivision C—Auctions of Australian emissions units                                148

99.......... Issue of Australian emissions units as the result of an auction...... 148

100........ Secondary market auctions of relinquished Australian emissions units  149

101........ Secondary market auctions of free Australian emissions units...... 149

102........ Combined auctions of Australian emissions units.......................... 150

103........ Policies, procedures and rules for auctioning Australian emissions units                150

Subdivision D—Special provisions relating to free Australian emissions units                151

103A..... Cancellation of certain unused free Australian emissions units...... 151

103B..... Buy‑back of certain free Australian emissions units...................... 152

Division 3—Kyoto units                                                                                          154

104........ Entries for Kyoto units.................................................................. 154

105........ Issue of Australia’s assigned amount units.................................... 154

106........ Issue of removal units..................................................................... 154

107........ Transfer of Kyoto units................................................................. 155

108........ Domestic transfers of Kyoto units................................................. 156

109........ Outgoing international transfers of Kyoto units............................ 157

110........ Incoming international transfers of Kyoto units............................ 158

111........ Compliance by Australia with emissions trading eligibility requirements under the Kyoto rules          159

112........ Kyoto rules..................................................................................... 159

113........ Carry‑over restrictions................................................................... 160

114........ Commitment period reserve........................................................... 161

115........ Cancellation of temporary certified emission reductions or long‑term certified emission reductions     162

116........ Replacement of long‑term certified emission reductions................ 162

116A..... Restrictions on transfer of Kyoto units to a Commonwealth Registry account     164

116B..... A registered Kyoto unit is personal property for certain purposes 164

116BA.. Equitable interests in relation to a Kyoto unit............................... 164

116C..... Transmission of registered Kyoto units by operation of law etc... 165

Division 4—Non‑Kyoto international emissions units                            167

117........ Entries for non‑Kyoto international emissions units..................... 167

118........ Transfer of non‑Kyoto international emissions units.................... 167

119........ Domestic transfers of non‑Kyoto international emissions units.... 168

120........ Outgoing international transfers of non‑Kyoto international emissions units         169

121........ Incoming international transfers of non‑Kyoto international emissions units         170

122........ Surrender restrictions...................................................................... 170

122A..... A registered non‑Kyoto international emissions unit is personal property for certain purposes           170

122AA.. Equitable interests in relation to a non‑Kyoto international emissions unit            171

122B..... Transmission of registered non‑Kyoto international emissions units by operation of law etc.              171

123........ Regulations about non‑Kyoto international emissions units.......... 173

Part 5—Emissions number                                                                                             174

124........ Simplified outline............................................................................ 174

125........ Emissions number........................................................................... 174

126........ Assessment of emissions number—incorrect report given by liable entity            175

127........ Assessment of emissions number—no report given by liable entity 176

Part 6—Surrender of eligible emissions units                                                     178

Division 1—Introduction                                                                                        178

128........ Simplified outline............................................................................ 178

Division 2—How eligible emissions units are surrendered                180

129........ How eligible emissions units are surrendered................................. 180

Division 3—Unit shortfalls                                                                                     184

130........ Unit shortfalls................................................................................. 184

131........ Assessment of unit shortfall........................................................... 185

Division 4—Obligation to surrender eligible emissions units            188

132........ Obligation to surrender eligible emissions units............................. 188

133........ Penalty for unit shortfall................................................................ 188

134........ When penalty becomes due and payable........................................ 189

135........ Late payment penalty.................................................................... 189

136........ Recovery of penalties..................................................................... 190

137........ Set‑off............................................................................................. 190

138........ Liability transfer certificate—statutory guarantee......................... 191

139........ Refund of overpayments................................................................ 191

141........ Benchmark average auction price.................................................... 192

142........ Make‑good number......................................................................... 193

143........ Excess surrender number................................................................ 194

Division 5—Extension of surrender deadline                                             197

143A..... Extension of surrender deadline...................................................... 197

Part 7—Australian National Registry of Emissions Units                           199

Division 1—Introduction                                                                                        199

144........ Simplified outline............................................................................ 199

Division 2—Australian National Registry of Emissions Units            200

145........ Australian National Registry of Emissions Units.......................... 200

Division 3—Registry accounts                                                                            201

146........ Registry accounts........................................................................... 201

147........ Opening of Registry accounts—general......................................... 201

148........ Designation of Commonwealth Registry accounts......................... 202

149........ Opening of new Commonwealth Registry accounts...................... 203

150........ Units in a retirement, cancellation or replacement account............ 203

151........ Totals of Australian emissions units in a Registry account........... 204

152........ Voluntary closure of Registry accounts......................................... 204

Division 4—Change in name of account holder                                          206

153........ Application to have new name entered on the Registry................. 206

154........ Alteration in the Registry............................................................... 206

Division 5—Correction and rectification of Registry                              207

155........ Corrections of clerical errors or obvious defects............................ 207

157........ General power of correction of Registry—Kyoto units................ 207

158........ General power of correction of Registry—non‑Kyoto international emissions units             207

159........ Rectification of Registry................................................................. 208

Division 6—Miscellaneous                                                                                    210

160........ Making a false entry in the Registry.............................................. 210

161........ Falsified documents........................................................................ 210

162........ Evidentiary provisions................................................................... 210

163........ Use and disclosure of information obtained from the Registry...... 211

164........ Regulations about the Registry....................................................... 212

Part 8—Emissions‑intensive trade‑exposed assistance program            214

Division 1—Introduction                                                                                        214

165........ Aim and objects.............................................................................. 214

166........ Simplified outline............................................................................ 215

Division 2—Formulation of the emissions‑intensive trade‑exposed assistance program           216

167........ Emissions‑intensive trade‑exposed assistance program................. 216

168........ Relinquishment requirement........................................................... 216

169........ Reporting requirement.................................................................... 217

170........ Record‑keeping requirement........................................................... 217

171........ Other matters.................................................................................. 218

172........ Ancillary or incidental provisions.................................................. 218

Division 3—Compliance with reporting and record‑keeping requirements under the emissions‑intensive trade‑exposed assistance program                                         219

173........ Compliance with reporting and record‑keeping requirements........ 219

Division 4—Special information‑gathering powers                                   221

173A..... Minister may obtain information................................................... 221

173B..... No assistance for 2 eligible financial years if corporation refuses or fails to comply with request for information........................................................................................................ 222

173C..... Disclosure of information to the Authority................................... 222

Part 8A—Coal mining                                                                                                       224

Division 1—Introduction                                                                                        224

173D..... Object............................................................................................. 224

173E...... Simplified outline............................................................................ 224

Division 2—Issue of free Australian emissions units in respect of coal mining               225

173F...... Issue of free Australian emissions units in respect of coal mining. 225

Division 3—Certificate of entitlement to coal mining assistance     226

173G..... Application for certificate of entitlement to coal mining assistance 226

173H..... Form of application........................................................................ 226

173J...... Further information........................................................................ 227

173K..... Issue of certificate of entitlement to coal mining assistance........... 227

173L...... Unit entitlement.............................................................................. 229

173M.... Certificate of entitlement to coal mining assistance is not transferable 231

Division 4—Eligible coal mining area                                                              232

173N..... Application for declaration of eligible coal mining area.................. 232

173P...... Form of application........................................................................ 232

173Q..... Further information........................................................................ 232

173R..... Declaration of eligible coal mining area........................................... 233

Division 5—Miscellaneous                                                                                    236

173S...... Base period fugitive emissions number.......................................... 236

173T..... Base period saleable coal number................................................... 236

173TA.. Capped base period saleable coal number...................................... 236

173U..... Adjusted base period fugitive emissions intensity number............ 236

173V..... Adjusted base period fugitive emissions number........................... 237

173W.... Coal mining control test.................................................................. 237

173X..... Submerged land............................................................................... 239

Part 9—Coal‑fired electricity generation                                                              240

Division 1—Introduction                                                                                        240

174........ Object............................................................................................. 240

175........ Simplified outline............................................................................ 240

Division 2—Issue of free Australian emissions units in respect of generation assets  242

176........ Issue of free Australian emissions units in respect of generation assets 242

Division 3—Certificate of eligibility for coal‑fired generation assistance             247

177........ Application for certificate of eligibility for coal‑fired generation assistance           247

178........ Form of application........................................................................ 248

179........ Further information........................................................................ 248

180........ Issue of certificate of eligibility for coal‑fired generation assistance 249

181........ Criteria for issuing certificate of eligibility for coal‑fired generation assistance       250

182........ Annual assistance factor................................................................. 252

Division 4—Windfall gain                                                                                       255

183........ Reduced assistance for 2018‑2019, 2019‑2020 and 2020‑2021 if a windfall gain declaration is in force etc.         255

184........ Revocation of Ministerial determination........................................ 255

184A..... Revocation of Ministerial determination—issue of free Australian emissions units               257

185........ Submission about windfall gain...................................................... 258

186........ Windfall gain declaration................................................................. 259

187........ Windfall gain test............................................................................ 261

Division 5—Power system reliability                                                               266

188........ No assistance if generation asset does not pass the power system reliability test 266

189........ Power system reliability test.......................................................... 266

189AA.. Replacement capacity..................................................................... 269

189AB.. Nomination of generation units...................................................... 272

189AC.. Validity of nomination.................................................................... 275

189A..... Anticipatory certification—reduction in nameplate rating............ 275

189B..... Anticipatory certification—cessation of registration as a generator 276

189C..... Intermediary registered as a generator............................................ 277

189D..... Financial year beginning on 1 July 2010......................................... 278

Part 10—Reforestation                                                                                                    279

Division 1—Introduction                                                                                        279

190........ Simplified outline............................................................................ 279

Division 2—Issue of free Australian emissions units in respect of reforestation            281

191........ Issue of free Australian emissions units in respect of reforestation 281

Division 3—Certificate of reforestation                                                          282

192........ Application for certificate of reforestation..................................... 282

193........ Form of application........................................................................ 282

194........ Further information........................................................................ 283

195........ Issue of certificate of reforestation................................................. 283

196........ Unit entitlement.............................................................................. 286

197........ Certificate of reforestation is not transferable................................ 287

Division 3A—Project managers                                                                          288

197A..... Project manager for a reforestation project..................................... 288

197B..... Scheme obligation transfer agreement............................................. 288

197C..... Holder of carbon sequestration right may elect to assume scheme obligations       291

Division 4—Recognised reforestation entities                                           292

198........ Application for recognition as a reforestation entity..................... 292

199........ Form of application........................................................................ 292

200........ Further information........................................................................ 292

201........ Recognition as a reforestation entity.............................................. 293

202........ Cancellation of recognition............................................................. 295

203........ Surrender of recognition.................................................................. 296

204........ Recognition is not transferable....................................................... 297

Division 5—Eligible reforestation projects                                                  298

Subdivision A—Declaration of eligible reforestation project                         298

205........ Application for declaration of eligible reforestation project........... 298

206........ Form of application........................................................................ 298

207........ Further information........................................................................ 298

208........ Withdrawal of application.............................................................. 299

209........ Declaration of eligible reforestation project.................................... 299

Subdivision B—Voluntary variation of declaration of eligible reforestation project         302

210........ Application for variation of declaration of eligible reforestation project 302

211........ Withdrawal of application.............................................................. 303

212........ Variation of declaration of eligible reforestation project................. 304

Subdivision C—Unilateral variation of declaration of eligible reforestation project         307

213........ Variation of declaration of eligible reforestation project—partial cessation of reforestation activity in a part of a project area.................................................................................................. 307

213A..... Variation of declaration of eligible reforestation project that has 2 or more project areas—cessation of reforestation activity in the whole of a project area............................................ 308

214........ Variation of declaration of eligible reforestation project—eligibility requirements not met in a part of a project area........................................................................................................ 309

214A..... Variation of declaration of eligible reforestation project that has 2 or more project areas—eligibility requirements not met in the whole of a project area................................................... 311

214B..... Variation of declaration of eligible reforestation project—ceasing to hold carbon sequestration right in relation to part of a project area.............................................................................. 312

214C..... Variation of declaration of eligible reforestation project that has 2 or more project areas—ceasing to hold carbon sequestration right in relation to the whole of a project area.......... 313

Subdivision D—Voluntary revocation of declaration of eligible reforestation project       314

215........ Voluntary revocation of declaration of eligible reforestation project—units issued                314

216........ Voluntary revocation of declaration of eligible reforestation project—no units issued           316

Subdivision E—Unilateral revocation of declaration of eligible reforestation project       317

217........ Unilateral revocation of declaration of eligible reforestation project—cessation of reforestation activity              317

218........ Unilateral revocation of declaration of eligible reforestation project—eligibility requirements not met 318

218A..... Unilateral revocation of declaration of eligible reforestation project—project manager ceases to be a recognised reforestation entity......................................................................... 319

219........ Unilateral revocation of declaration of eligible reforestation project—ceasing to hold carbon sequestration right etc......................................................................................................... 320

219A..... Unilateral revocation of declaration of eligible reforestation project—project manager ceases to have control of reforestation project....................................................................... 321

Division 6—Reforestation unit limit                                                                 323

220........ Reforestation unit limit................................................................... 323

221........ Increase of reforestation unit limit.................................................. 324

222........ Decrease of reforestation unit limit................................................ 325

Division 6A—Restructure of reforestation projects                                326

222A..... Restructure of reforestation projects—making of declaration relating to receiving project     326

222B..... Restructure of reforestation projects—variation of declaration relating to receiving project  328

Division 7—Reforestation reporting periods                                              332

223........ First reforestation reporting period................................................ 332

224........ Subsequent reforestation reporting periods.................................... 333

Division 8—Reforestation reporting requirements                                 334

225........ Reforestation reports...................................................................... 334

Division 9—Forest maintenance obligation                                                  336

Subdivision A—Forest maintenance obligation                                                 336

226........ Forest maintenance obligation........................................................ 336

226A..... Variation or revocation of declaration of forest maintenance obligation  339

226B..... Revocation of declaration of forest maintenance obligation—voluntary relinquishment of Australian emissions units........................................................................................................ 341

Subdivision AA—Forest restoration order                                                        341

226C..... Forest restoration order.................................................................. 341

226D..... Variation or revocation of forest restoration order......................... 344

Subdivision B—Injunctions                                                                                   345

227........ Injunctions...................................................................................... 345

228........ Interim injunctions.......................................................................... 345

229........ Discharge etc. of injunctions........................................................... 346

230........ Certain limits on granting injunctions not to apply........................ 346

231........ Other powers of the Federal Court unaffected............................... 347

Division 10—Relinquishment of Australian emissions units              348

232........ Requirement to relinquish—unilateral revocation of declaration of eligible reforestation project           348

233........ Relinquishment requirement—decrease in reforestation unit limit for eligible reforestation project       349

Division 11—Miscellaneous notification requirements                         351

235........ Notification requirement—ceasing to hold carbon sequestration right 351

235A..... Regulations may impose notification requirements........................ 351

Division 12—Entries in title registers                                                            353

236........ Entries in title registers—general.................................................... 353

237........ Entries in title registers—land subject to forest maintenance obligation 353

Division 13—Register of Reforestation Projects                                      355

238........ Register of Reforestation Projects.................................................. 355

239........ Entries in the Register..................................................................... 355

Division 14—Carbon sequestration right and forestry right               357

Subdivision A—Carbon sequestration right                                                      357

239A..... Carbon sequestration right in relation to a reforestation project.... 357

240........ Carbon sequestration right in relation to an area of land................ 357

Subdivision B—Forestry right                                                                             360

241........ Forestry right.................................................................................. 360

Division 14A—Eligible interest in an area of land                                    362

241A..... Eligible interest in an area of land—Torrens system land.............. 362

241B..... Eligible interest in an area of land—Crown land that is not Torrens system land   363

Division 15—Net total number of Australian emissions units issued in relation to an eligible reforestation project                                                                       364

242........ Net total number of Australian emissions units issued in relation to an eligible reforestation project    364

Division 16—Transition of reforestation projects from non‑CPRS reforestation schemes        365

243........ Request for determination.............................................................. 365

243A..... Form of request.............................................................................. 365

243B..... Further information........................................................................ 365

243C..... Determination................................................................................. 366

Part 11—Destruction of synthetic greenhouse gases                                    368

Division 1—Introduction                                                                                        368

244........ Simplified outline............................................................................ 368

Division 2—Issue of free Australian emissions units in respect of the destruction of synthetic greenhouse gases                                                                             369

245........ Issue of free Australian emissions units in respect of the destruction of synthetic greenhouse gases    369

Division 3—Certificate of eligible synthetic greenhouse gas destruction           370

246........ Application for certificate of eligible synthetic greenhouse gas destruction            370

247........ Form of application........................................................................ 370

248........ Further information........................................................................ 371

249........ Issue of certificate of eligible synthetic greenhouse gas destruction 371

250........ Criteria for issuing certificate of eligible synthetic greenhouse gas destruction       372

251........ Unit entitlement.............................................................................. 374

252........ Certificate of eligible synthetic greenhouse gas destruction is not transferable       374

Division 4—Recognised synthetic greenhouse gas destruction customers       376

253........ Application for recognition as a synthetic greenhouse gas destruction customer   376

254........ Form of application........................................................................ 376

255........ Further information........................................................................ 376

256........ Recognition as a synthetic greenhouse gas destruction customer... 377

257........ Cancellation of recognition............................................................. 378

258........ Surrender of recognition.................................................................. 380

259........ Recognition is not transferable....................................................... 380

Part 11A—Domestic offsets program                                                                     381

Division 1—Introduction                                                                                        381

259A..... Simplified outline............................................................................ 381

Division 2—Formulation of the domestic offsets program                   382

259B..... Formulation of the domestic offsets program................................ 382

259C..... Reporting requirement.................................................................... 384

259D..... Record‑keeping requirement........................................................... 385

259E...... Relinquishment requirement........................................................... 385

259F...... Other matters.................................................................................. 387

259G..... Ancillary or incidental provisions.................................................. 388

Division 3—Compliance with reporting and record‑keeping requirements under the domestic offsets program                                                                                                  389

259H..... Compliance with reporting and record‑keeping requirements........ 389

Division 4—Domestic offsets project methodology determinations 390

259J...... Domestic offsets project methodology determinations.................. 390

259K..... Domestic offsets project methodology principles......................... 391

Division 5—Recognised offsets entities                                                        394

259L...... Application for recognition as an offsets entity............................. 394

259M.... Form of application........................................................................ 394

259N..... Further information........................................................................ 394

259P...... Recognition as an offsets entity..................................................... 395

259Q..... Cancellation of recognition............................................................. 397

259R..... Surrender of recognition.................................................................. 398

259S...... Recognition is not transferable....................................................... 399

Part 12—Publication of information                                                                          400

Division 1—Introduction                                                                                        400

260........ Simplified outline............................................................................ 400

Division 2—Information about liable entities                                              401

261........ Liable Entities Public Information Database.................................. 401

262........ Liable entities to be entered in the Information Database.............. 401

263........ Emissions number to be entered in the Information Database....... 402

264........ Unit shortfall to be entered in the Information Database............... 402

265........ Unpaid administrative penalty to be entered in the Information Database             404

266........ Number of surrendered eligible emissions units to be entered in the Information Database   405

267........ Number of voluntarily cancelled units to be entered in the Information Database  405

267A..... Relinquishment requirement to be entered in the Information Database 406

267B..... Unpaid administrative penalty to be entered in the Information Database             407

267C..... Number of relinquished units to be entered in the Information Database               408

268........ Correction and rectification of the Information Database.............. 408

Division 3—Information about holders of Registry accounts             409

269........ Information about holders of Registry accounts............................ 409

Division 4—Information about units                                                                 410

270........ Information about auction results—last auction............................ 410

271........ Information about auction results—last 6 months......................... 410

272........ Information about issue of Australian emissions units for a fixed charge                412

273........ Information about issue of free Australian emissions units........... 413

274........ Quarterly reports about issue of free Australian emissions units.. 415

275........ Information about surrender of borrowed and banked eligible emissions units       416

276........ Kyoto information.......................................................................... 416

277........ Information about total emissions numbers and unit shortfalls..... 417

277A..... Publication of concise description of the characteristics of Australian emissions units          417

278........ Publication of concise description of the characteristics of eligible international emissions units          417

Division 5—Information about voluntary cancellation of units held by persons other than liable entities                                                                                                                    419

278A..... Information about number of voluntarily cancelled Australian emissions units      419

278B..... Information about number of voluntarily cancelled Kyoto units... 419

278C..... Information about number of voluntarily cancelled non‑Kyoto international emissions units               420

Division 6—Information about relinquishment requirements for persons other than liable entities    421

278D..... Information about relinquishment requirements............................. 421

278E...... Information about unpaid administrative penalties........................ 422

278F...... Information about number of relinquished units............................ 422

Division 7—Information about designated large landfill facilities    424

278G..... Publication of list of designated large landfill facilities................... 424

Division 8—Information about eligible domestic offsets projects    425

278H..... Information about eligible domestic offsets projects...................... 425

Part 13—Fraudulent conduct                                                                                        426

279........ Simplified outline............................................................................ 426

280........ Units issued as a result of fraudulent conduct—court may order relinquishment   426

Part 14—Voluntary cancellation of emissions units                                        429

281........ Simplified outline............................................................................ 429

282........ Voluntary cancellation of Australian emissions units.................... 429

283........ Voluntary cancellation of Kyoto units........................................... 430

284........ Voluntary cancellation of non‑Kyoto international emissions units 431

Part 15—Relinquishment of Australian emissions units                               433

Division 1—Introduction                                                                                        433

285........ Simplified outline............................................................................ 433

Division 2—How Australian emissions units are relinquished          434

286........ How Australian emissions units are relinquished........................... 434

Division 3—Compliance with relinquishment requirements               438

287........ Compliance with relinquishment requirements.............................. 438

288........ Late payment penalty.................................................................... 440

289........ Recovery of penalties..................................................................... 441

290........ Set‑off............................................................................................. 441

291........ Refund of overpayments................................................................ 441

Part 16—Notification of significant holding of Australian emissions units 443

292........ Simplified outline............................................................................ 443

293........ Notification of significant holding of Australian emissions units—controlling corporation of a group  443

294........ Notification of significant holding of Australian emissions units—non‑group entity             445

Part 17—Information‑gathering powers                                                                 448

295........ Simplified outline............................................................................ 448

296........ Authority may obtain information or documents.......................... 448

297........ Copying documents—compensation............................................. 449

298........ Copies of documents...................................................................... 449

299........ Authority may retain documents................................................... 450

300........ Self‑incrimination............................................................................ 450

Part 18—Record‑keeping requirements                                                                452

301........ Simplified outline............................................................................ 452

302........ Record‑keeping requirements—general.......................................... 452

303........ Record‑keeping requirements—quotation of OTN........................ 453

304........ Record‑keeping requirements—rejection of quotation of OTN..... 454

304A..... Record‑keeping requirements—preparation of reforestation report 455

Part 19—Monitoring powers                                                                                        456

Division 1—Simplified outline                                                                              456

305........ Simplified outline............................................................................ 456

Division 2—Appointment of inspectors and issue of identity cards 457

306........ Appointment of inspectors............................................................ 457

307........ Identity cards.................................................................................. 457

Division 3—Powers of inspectors                                                                      459

Subdivision A—Monitoring powers                                                                     459

308........ Inspector may enter premises by consent or under a warrant....... 459

309........ Monitoring powers of inspectors................................................... 459

310........ Persons assisting inspectors........................................................... 462

Subdivision B—Powers of inspectors to ask questions and seek production of documents              462

311........ Inspector may ask questions and seek production of documents.. 462

312........ Self‑incrimination............................................................................ 463

Division 4—Obligations and incidental powers of inspectors             464

313........ Consent........................................................................................... 464

314........ Announcement before entry under warrant.................................... 464

315........ Inspector to be in possession of warrant....................................... 465

316........ Details of warrant etc. to be given to occupier............................... 465

317........ Expert assistance to operate electronic equipment......................... 465

318........ Compensation for damage to electronic equipment........................ 467

Division 5—Occupier’s rights and responsibilities                                  469

319........ Occupier entitled to observe execution of warrant......................... 469

320........ Occupier to provide inspector with facilities and assistance......... 469

Division 6—Monitoring warrants                                                                       470

321........ Monitoring warrants....................................................................... 470

Division 7—Powers of magistrates                                                                   472

322........ Powers of magistrates..................................................................... 472

Part 20—Liability of executive officers of bodies corporate                      473

323........ Simplified outline............................................................................ 473

324........ Civil penalties for executive officers of bodies corporate............... 473

325........ Reasonable steps to prevent contravention.................................... 474

Part 21—Civil penalty orders                                                                                       475

326........ Simplified outline............................................................................ 475

326A..... References to Court........................................................................ 475

327........ Civil penalty orders........................................................................ 475

328........ Who may apply for a civil penalty order....................................... 477

329........ 2 or more proceedings may be heard together................................ 477

330........ Time limit for application for an order........................................... 477

331........ Civil evidence and procedure rules for civil penalty orders............ 477

332........ Civil proceedings after criminal proceedings.................................. 477

333........ Criminal proceedings during civil proceedings................................ 477

334........ Criminal proceedings after civil proceedings.................................. 478

335........ Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings             478

336........ Mistake of fact............................................................................... 478

337........ State of mind................................................................................... 479

338........ Continuing contraventions.............................................................. 480

Part 22—Offences relating to administrative penalties                                482

339........ Simplified outline............................................................................ 482

340........ Scheme to avoid existing liability to pay administrative penalty... 482

341........ Scheme to avoid future liability to pay administrative penalty..... 483

Part 23—Enforceable undertakings                                                                         486

342........ Simplified outline............................................................................ 486

343........ Acceptance of undertakings............................................................ 486

344........ Enforcement of undertakings.......................................................... 486

Part 24—Review of decisions                                                                                      488

345........ Simplified outline............................................................................ 488

346........ Reviewable decisions...................................................................... 488

347........ Applications for reconsideration of decisions made by delegates of the Authority                492

348........ Reconsideration by the Authority.................................................. 493

349........ Deadline for reconsideration........................................................... 493

350........ Review by the Administrative Appeals Tribunal.......................... 493

351........ Stay of proceedings for the recovery of an administrative penalty 494

Part 25—Independent reviews                                                                                    496

Division 1—Simplified outline                                                                              496

352........ Simplified outline............................................................................ 496

Division 2—Periodic reviews                                                                               497

353........ Periodic reviews to be conducted by an expert advisory committee 497

354........ Report of periodic review............................................................... 500

Division 3—Special reviews                                                                                  502

355........ Special reviews to be conducted by an expert advisory committee—matters specified by Minister     502

355A..... Special review of carbon pollution reduction scheme to be conducted by an expert advisory committee              502

356........ Report of special review................................................................. 503

Division 4—Expert advisory committees                                                      505

357........ Establishment of expert advisory committees................................ 505

358........ Functions of an expert advisory committee................................... 505

359........ Membership of an expert advisory committee............................... 505

360........ Appointment of expert advisory committee members................... 505

361........ Period for appointment for expert advisory committee members.. 506

362........ Acting expert advisory committee members.................................. 507

363........ Procedures...................................................................................... 508

364........ Disclosure of interests to the Minister........................................... 509

365........ Disclosure of interests to expert advisory committee.................... 509

366........ Outside employment...................................................................... 510

367........ Remuneration and allowances......................................................... 510

368........ Leave of absence............................................................................. 510

369........ Resignation..................................................................................... 510

370........ Termination of appointment.......................................................... 511

371........ Other terms and conditions............................................................ 512

372........ Assistance to expert advisory committee....................................... 512

373........ Consultants..................................................................................... 512

Part 25A—Domestic Offsets Integrity Committee                                          513

Division 1—Establishment and functions of the Domestic Offsets Integrity Committee            513

373A..... Establishment of the Domestic Offsets Integrity Committee........ 513

373B..... Functions of the Domestic Offsets Integrity Committee............... 513

373C..... Consultation by the Domestic Offsets Integrity Committee......... 513

Division 2—Membership of the Domestic Offsets Integrity Committee             515

373D..... Membership of the Domestic Offsets Integrity Committee.......... 515

373E...... Appointment of Domestic Offsets Integrity Committee members 515

373F...... Period for appointment for Domestic Offsets Integrity Committee members        516

373G..... Acting Domestic Offsets Integrity Committee members............... 516

373H..... Procedures...................................................................................... 518

373J...... Disclosure of interests to the Minister........................................... 519

373K..... Disclosure of interests to Domestic Offsets Integrity Committee. 519

373L...... Outside employment...................................................................... 520

373M.... Remuneration and allowances......................................................... 520

373N..... Leave of absence............................................................................. 520

373P...... Resignation..................................................................................... 521

373Q..... Termination of appointment.......................................................... 521

373R..... Other terms and conditions............................................................ 522

373S...... Assistance to Domestic Offsets Integrity Committee................... 522

373T..... Consultants..................................................................................... 522

Part 26—Miscellaneous                                                                                                  523

374........ Miscellaneous functions of the Authority..................................... 523

374A..... Computerised decision‑making....................................................... 523

374B..... Authority’s power to require further information......................... 524

375........ Delegation by the Minister............................................................. 525

375A..... Delegation by a State Minister or a Territory Minister................. 525

375B..... Delegation by the Secretary............................................................ 525

376........ Concurrent operation of State and Territory laws......................... 526

377........ Law relating to legal professional privilege not affected................. 526

378........ Arrangements with States and Territories...................................... 526

379........ Liability for damages...................................................................... 528

380........ Executive power of the Commonwealth......................................... 529

381........ Notional payments by the Commonwealth................................... 529

382........ Alternative constitutional basis...................................................... 529

383........ Compensation for acquisition of property..................................... 533

384........ Prescribing matters by reference to other instruments................... 534

385........ Administrative decisions under the regulations.............................. 534

386........ Transitional—definitions................................................................ 535

387........ Regulations..................................................................................... 535

 


A Bill for an Act to reduce pollution caused by emissions of carbon dioxide and other greenhouse gases, and for other purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Carbon Pollution Reduction Scheme Act 2010.

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 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 387

The 28th day after this Act receives the Royal Assent.

However, if:

(a) the Australian Climate Change Regulatory Authority Act 2010; and

(b) the Carbon Pollution Reduction Scheme (Charges—Customs) Act 2010; and

(c) the Carbon Pollution Reduction Scheme (Charges—Excise) Act 2010; and

(d) the Carbon Pollution Reduction Scheme (Charges—General) Act 2010; and

(e) the Carbon Pollution Reduction Scheme (Consequential Amendments) Act 2010;

do not receive the Royal Assent on or before the 28th day after this Act receives the Royal Assent, the provision(s) do not commence at all.

 

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  Objects

             (1)  This section sets out the objects of this Act.

Climate Change Convention and Kyoto Protocol

             (2)  The first object of this Act is to give effect to Australia’s obligations under:

                     (a)  the Climate Change Convention; and

                     (b)  the Kyoto Protocol.

Global response to climate change

             (3)  The second object of this Act is to support the development of an effective global response to climate change.

National emissions reduction targets

             (4)  The third object of this Act is:

                     (a)  if Australia is a party to a comprehensive international agreement that is capable of stabilising atmospheric concentrations of greenhouse gases at around 450 parts per million of carbon dioxide equivalence or lower—to take action directed towards meeting Australia’s target of reducing net greenhouse gas emissions to 25% below 2000 levels by 2020; and

                     (b)  if paragraph (a) does not apply—to take action directed towards meeting Australia’s targets of:

                              (i)  reducing net greenhouse gas emissions to 60% below 2000 levels by 2050; and

                             (ii)  reducing net greenhouse gas emissions to between 5% and 15% below 2000 levels by 2020; and

                     (c)  to take the action mentioned in paragraph (a) or (b) in a flexible and cost‑effective way.

             (5)  The targets mentioned in subsection (4) are to be calculated in accordance with:

                     (a)  the Kyoto rules; or

                     (b)  an international agreement (if any) that is the successor (whether immediate or otherwise) to the Kyoto Protocol.

4  Simplified outline

                   The following is a simplified outline of this Act:

•      This Act sets up a scheme to reduce pollution caused by emissions of carbon dioxide and other greenhouse gases.

•      The scheme begins on 1 July 2011, and operates on a financial year basis.

•      The scheme is administered by the Australian Climate Change Regulatory Authority.

•      A person who is responsible for greenhouse gas emitted from the operation of a facility must surrender one eligible emissions unit for each tonne of carbon dioxide equivalence of the gas.

•      A person who imports, manufactures or supplies synthetic greenhouse gas must surrender one eligible emissions unit for each tonne of carbon dioxide equivalence of the gas.

•      A person who imports, produces or supplies eligible upstream fuel must surrender one eligible emissions unit for each tonne of carbon dioxide equivalence of the potential greenhouse gas emissions embodied in the fuel.

•      Each of the following units are eligible emissions units:

               (a)     Australian emissions units issued under this Act;

               (b)     certain Kyoto units;

               (c)     certain non‑Kyoto international emissions units.

•      Most Australian emissions units will be issued as the result of an auction.

•      A national scheme cap limits the total number of auctioned Australian emissions units.

•      Some Australian emissions units may be issued free of charge or for a fixed charge.

•      Australian emissions units are generally transferable.

5  Definitions

                   In this Act:

ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.

account number, in relation to a Registry account, has the meaning given by subsection 146(3).

acknowledge the quotation of an OTN has the meaning given by section 64A or 64B.

acquire, in relation to an Australian emissions unit, includes acquire by way of the issue of the unit.

adjusted base period fugitive emissions intensity number has the meaning given by section 173U.

adjusted base period fugitive emissions number has the meaning given by section 173V.

alter the Registry, includes:

                     (a)  make an entry in the Registry; and

                     (b)  remove an entry from the Registry.

applicable domestic offsets methodology determination, in relation to an offsets project, means the domestic offsets methodology determination that is applicable to the project.

applicable identification procedure has the meaning ascertained in accordance with the regulations.

application to own use, in relation to eligible upstream fuel, includes making the fuel available to another person, where making the fuel available is not a supply of the fuel.

appropriate energy market operator, in relation to a generation asset, means:

                     (a)  if Australian Energy Market Operator Limited (ACN 072 010 327) performs the functions of the energy market operator in the place where the generation asset is located—Australian Energy Market Operator Limited; and

                     (b)  if the Independent Market Operator established under the Electricity Industry (Independent Market Operator) Regulations 2004 of Western Australia performs the functions of the energy market operator in the place where the generation asset is located—the Independent Market Operator.

approved synthetic greenhouse gas destruction facility has the same meaning as in the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995.

assigned amount unit means an assigned amount unit issued in accordance with the relevant provisions of the Kyoto rules. It is immaterial whether the unit was issued in or out of Australia.

associated provisions means the following provisions:

                     (a)  the provisions of the regulations;

                     (b)  sections 15A, 15B, 15C, 18A, 22A, 22B, 22C, 22CA, 22D, 22DA, 22E and 22F of the National Greenhouse and Energy Reporting Act 2007;

                     (c)  the remaining provisions of the National Greenhouse and Energy Reporting Act 2007, in so far as those provisions relate to:

                              (i)  this Act; or

                             (ii)  the regulations; or

                            (iii)  the provisions covered by paragraph (b);

                     (d)  sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and 137.2 of the Criminal Code, in so far as those sections relate to:

                              (i)  this Act; or

                             (ii)  the regulations; or

                            (iii)  the provisions of the National Greenhouse and Energy Reporting Act 2007 covered by paragraph (b) or (c).

Note:          The provisions covered by paragraph (b) commence on 1 July 2011.

auction, when used in relation to an Australian emissions unit, includes a process that involves inviting persons to declare what they would be willing to pay by way of a charge for the acquisition of the unit.

Australia, when used in a geographical sense, includes:

                     (a)  the external Territories; and

                     (b)  for the purposes of:

                              (i)  Part 8 (emissions‑intensive trade‑exposed assistance program); and

                             (ii)  paragraph 353(1)(h) (review of the emissions‑intensive trade‑exposed assistance program);

                            the exclusive economic zone, the continental shelf and the Joint Petroleum Development Area.

Australian emissions unit means a unit issued under section 83.

Authority means the Australian Climate Change Regulatory Authority.

base period fugitive emissions number has the meaning given by section 173S.

base period saleable coal number has the meaning given by section 173T.

benchmark average auction price has the meaning given by section 141.

black coal has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

brown coal has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

business day means a day that is not:

                     (a)  a Saturday; or

                     (b)  a Sunday; or

                     (c)  a public holiday in the place concerned.

cancellation account means a Commonwealth Registry account designated as a cancellation account.

capped base period saleable coal number has the meaning given by section 173TA.

carbon dioxide equivalence:

                     (a)  of an amount of greenhouse gas—has the same meaning as in the National Greenhouse and Energy Reporting Act 2007; or

                     (b)  of an amount of potential greenhouse gas emissions embodied in an amount of an eligible upstream fuel—has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

carbon pollution reduction scheme means the scheme embodied in this Act and the associated provisions.

carbon sequestration right:

                     (a)  when used in relation to a reforestation project—has the meaning given by section 239A; or

                     (b)  when used in relation to an area of land—has the meaning given by section 240.

category A transfer test has the meaning given by section 69.

category B transfer test has the meaning given by section 73.

certificate of eligibility for coal‑fired generation assistance means a certificate issued under section 180.

certificate of eligible synthetic greenhouse gas destruction means a certificate issued under section 249.

certificate of entitlement to coal mining assistance means a certificate issued under section 173K.

certificate of reforestation means a certificate issued under section 195.

certified emission reduction means a certified emission reduction issued outside Australia in accordance with the relevant provisions of the Kyoto rules.

civil penalty order means an order under subsection 327(1).

civil penalty provision means a provision declared by this Act to be a civil penalty provision.

clean development mechanism project means a project that is treated as a clean development mechanism project for the purposes of the relevant provisions of the Kyoto rules.

Climate Change Convention means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992, as amended and in force for Australia from time to time.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 2 ([1994] ATS 2). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

coal‑based char has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

coal mining control test has the meaning given by section 173W.

coal mining title means:

                     (a)  a lease that:

                              (i)  permits the lessee to extract coal from the whole or a part of the area of land covered by the lease; and

                             (ii)  is granted by or under a law of the Commonwealth, a State or a Territory; or

                     (b)  a licence that:

                              (i)  permits the licensee to extract coal from the whole or a part of the area of land covered by the licence; and

                             (ii)  is issued by or under a law of the Commonwealth, a State or a Territory; or

                     (c)  an authority that:

                              (i)  permits the holder of the authority to extract coal from the whole or a part of the area of land covered by the authority; and

                             (ii)  is given by or under a law of the Commonwealth, a State or a Territory.

For the purposes of this definition, land includes submerged land.

coke oven coke has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

commitment period means a period that is treated as a commitment period for the purposes of the Kyoto rules.

Note:          The first commitment period begins on 1 January 2008 and ends on 31 December 2012.

commitment period reserve has the meaning given by the regulations.

Commonwealth holding account means a Commonwealth Registry account designated as a Commonwealth holding account.

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.

Commonwealth Registry account means a Registry account kept in the name of the Commonwealth.

Commonwealth relinquished units account means the Commonwealth Registry account designated as the Commonwealth relinquished units account.

compressed natural gas has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

constitutional corporation means a corporation to which paragraph 51(xx) of the constitution applies.

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

control: a person has control of a reforestation project if:

                     (a)  the person is the holder of the forestry right in relation to the project area or each of the project areas; or

                     (b)  under a contract, or an arrangement, of a kind specified in the regulations, the person is entitled or required to establish, manage and maintain:

                              (i)  a forest on the project area; or

                             (ii)  a forest on each of the project areas.

controlling corporation has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

Crown land means land that is the property of:

                     (a)  the Commonwealth, a State or a Territory; or

                     (b)  a statutory authority of:

                              (i)  the Commonwealth; or

                             (ii)  a State; or

                            (iii)  a Territory.

For this purpose, it is immaterial whether the land is:

                     (c)  subject to a lease or licence; or

                     (d)  covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Commonwealth, a State or a Territory; or

                     (e)  covered by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory under which the whole or a part of the land is to be used for a public purpose or public purposes.

Crown lands Minister:

                     (a)  in relation to a State—means the Minister of the State who, under the regulations, is taken to be the Crown lands Minister of the State; or

                     (b)  in relation to the Northern Territory—means the Minister of the Northern Territory who, under the regulations, is taken to be the Crown lands Minister of the Northern Territory; or

                     (c)  in relation to the Australian Capital Territory—means the Minister of the Australian Capital Territory who, under the regulations, is taken to be the Crown lands Minister of the Australian Capital Territory; or

                     (d)  in relation to a Territory other than the Northern Territory or the Australian Capital Territory—means the person who, under the regulations, is taken to be the Crown lands Minister of the Territory.

decision of the Meeting of the Kyoto Parties means a decision of the Meeting of the Kyoto Parties as existing from time to time. It is immaterial whether the decision was made before, at or after the commencement of this section.

designated, in relation to a Commonwealth Registry account, means designated under section 148.

designated large landfill facility: a landfill facility is a designated large landfill facility in relation to an eligible financial year if the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility during the eligible financial year is 25,000 or more. For this purpose, assume that the financial year beginning on 1 July 2010 is an eligible financial year.

director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Domestic Offsets Integrity Committee means the committee established by section 373A.

Domestic Offsets Integrity Committee member means a member of the Domestic Offsets Integrity Committee, and includes the Chair of the Domestic Offsets Integrity Committee.

domestic offsets program means the program under subsection 259B(1).

domestic offsets project methodology determination means a determination under subsection 259J(1).

domestic offsets project methodology principles has the meaning given by section 259K.

domestic offsets reporting period has the meaning given by subsection 259C(2).

electronic communication means a communication by means of guided and/or unguided electromagnetic energy.

electronic notice transmitted to the Authority has the meaning given by section 8.

eligible coal mining area has the meaning given by section 173R.

eligible domestic offsets project means an offsets project that, under the domestic offsets program, has been declared by the Authority to be an eligible domestic offsets project.

eligible emissions unit means:

                     (a)  an Australian emissions unit; or

                     (b)  an eligible international emissions unit.

eligible financial year means:

                     (a)  the financial year beginning on 1 July 2011; or

                     (b)  a later financial year.

eligible interest, in relation to an area of land, has the meaning given by section 241A or 241B.

eligible international emissions unit means:

                     (a)  a certified emission reduction (other than a temporary certified emission reduction or a long‑term certified emission reduction); or

                     (b)  an emission reduction unit; or

                     (c)  a removal unit; or

                     (d)  a prescribed unit issued in accordance with the Kyoto rules; or

                     (e)  a non‑Kyoto international emissions unit.

It is immaterial whether a unit covered by paragraph (d) was issued in or outside Australia.

eligible reforestation project has the meaning given by section 209.

eligible upstream fuel means any of the following:

                     (a)  liquid petroleum fuel;

                     (b)  liquid petroleum gas;

                     (c)  black coal;

                     (d)  brown coal;

                     (e)  coking coal;

                      (f)  brown coal briquettes;

                     (g)  coke oven coke;

                     (h)  coal‑based char;

                      (i)  natural gas that is distributed or transmitted in a pipeline;

                      (j)  coal seam methane that is captured for combustion;

                     (k)  coal mine waste gas that is captured for combustion;

                      (l)  ethane;

                    (m)  town gas;

                     (n)  liquefied natural gas;

                     (o)  compressed natural gas;

                     (p)  syngas;

                    (pa)  refinery grade propene (propylene);

                     (q)  a fuel specified in the regulations.

For the purposes of this Act, if black coal is treated at a coal washery, the black coal retains its identity as a type of eligible upstream fuel.

eligible waste has the meaning given by the regulations.

emission of greenhouse gas from the operation of a facility has the meaning given by section 24.

emission reduction unit means an emission reduction unit issued in accordance with the relevant provisions of the Kyoto rules. It is immaterial whether the unit was issued in or outside of Australia.

emissions‑intensive trade‑exposed assistance program means the program under subsection 167(1).

emissions number has the meaning given by section 125.

emissions number publication time of a person for an eligible financial year, means the time when the person’s emissions number for the eligible financial year is entered on the Information Database in accordance with subsection 263(2).

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

excess surrender number has the meaning given by section 143.

excise duty has the same meaning as in the Excise Act 1901.

exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973.

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.

exempt hydrocarbon solvent means:

                     (a)  excisable goods (within the meaning of the Excise Act 1901) classified to subitem 10.25, 10.26, 10.27 or 10.28 of the Schedule to the Excise Tariff Act 1921; or

                     (b)  imported goods (within the meaning of the Excise Act 1901) that would be classified to subitem 10.25, 10.26, 10.27 or 10.28 of that Schedule if they were manufactured in Australia;

that are:

                     (c)  hydrocarbon solvents; and

                     (d)  not combusted.

expert advisory committee means a committee established under section 357.

expert advisory committee member means a member of an expert advisory committee, and includes the Chair of an expert advisory committee.

export, in relation to goods or a substance, means:

                     (a)  do an act that constitutes exportation of the goods or substance from Australia within the meaning of section 112 of the Customs Act 1901; or

                     (b)  do an act that would constitute such exportation if the external Territories were part of Australia for the purposes of that Act.

externally‑administered body corporate has the same meaning as in the Corporations Act 2001.

facility has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

Federal Court means the Federal Court of Australia.

feedstock means a substance that is consumed (otherwise than by way of combustion) in a chemical process to produce another product.

financial control has the meaning given by section 81.

foreign account:

                     (a)  when used in relation to a Kyoto unit—means an account kept within a foreign Kyoto registry; or

                     (b)  when used in relation to a non‑Kyoto international emissions unit—means an account kept under a law of a foreign country corresponding to this Act.

foreign country includes a region where:

                     (a)  the region is a colony, territory or protectorate of a foreign country; or

                     (b)  the region is part of a foreign country; or

                     (c)  the region is under the protection of a foreign country; or

                     (d)  a foreign country exercises jurisdiction or control over the region; or

                     (e)  a foreign country is responsible for the region’s international relations.

foreign Kyoto registry means:

                     (a)  a registry of a Kyoto party (other than Australia) that is the Kyoto party’s national registry for Kyoto units; or

                     (b)  the CDM registry established in accordance with paragraph 1 of Appendix D to the Annex to Decision 3/CMP.1 of the Meeting of the Kyoto Parties.

foreign person has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

forest maintenance obligation has the meaning given by section 226.

forest restoration order means an order under section 226C.

forestry right has the meaning given by section 241.

forest stand means a stand of forest, where:

                     (a)  under the regulations, the stand is taken to have been established by means of direct, human‑induced methods; and

                     (b)  the stand occupies an area of land of 0.2 hectares or more; and

                     (c)  the stand consists of trees that:

                              (i)  have attained, or have the potential to attain, a crown cover of at least 20% of the area occupied by the stand; and

                             (ii)  have reached, or have the potential to reach, a height of at least 2 metres; and

                     (d)  either:

                              (i)  on 31 December 1989, the area occupied by the stand was clear of trees that had attained (or had the potential to attain) a crown cover of at least 20% of the area occupied by the stand and that had reached (or had the potential to reach) a height of at least 2 metres; or

                             (ii)  the area occupied by the stand was lawfully cleared of trees during the period beginning at the start of 1 January 1990 and ending at the end of 31 December 2008; and

                     (e)  the stand meets such other requirements (if any) as are specified in the regulations.

The regulations may provide that, for the purposes of this definition, trees and crown cover have the respective meanings given by the regulations.

free Australian emissions unit means an Australian emissions unit issued free of charge.

fuel oil has the same meaning as in the Excise Tariff Act 1921.

fugitive emissions has the meaning given by the regulations.

general law land means land other than:

                     (a)  Torrens system land; or

                     (b)  Crown land.

generation asset means:

                     (a)  a generation complex; or

                     (b)  a generation complex project.

generation complex means:

                     (a)  a generation unit; or

                     (b)  a set of 2 or more generation units at the same location.

generation complex project means a project to construct and commission a new generation complex. For this purpose, it is immaterial whether the project has been completed.

generation unit means a generator of electricity, and includes:

                     (a)  the boiler (if any); and

                     (b)  any other related equipment essential to the generator’s functioning as a generator.

Greater Sunrise unit area has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

group has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

hold an eligible emissions unit: a person holds an eligible emissions unit if the person is the registered holder of the unit.

identification number, in relation to an Australian emissions unit, has the meaning given by section 84.

import, in relation to goods or a substance, means:

                     (a)  do an act that constitutes importation of the goods or substance into Australia within the meaning of section 50 of the Customs Act 1901; or

                     (b)  do an act that would constitute such importation if the external Territories were part of Australia for the purposes of that Act.

import duty has the same meaning as in the Customs Act 1901.

Information Database means the Liable Entities Public Information Database kept under section 261.

insolvent under administration has the same meaning as in the Corporations Act 2001.

inspector means a person appointed as an inspector under section 306.

international agreement means an agreement whose parties are:

                     (a)  Australia and a foreign country; or

                     (b)  Australia and 2 or more foreign countries.

international transaction log means an electronic data system administered by the Secretariat of the Climate Change Convention for the purpose of monitoring and tracking transactions in Kyoto units.

issue, in relation to an Australian emissions unit, means issue under section 83.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

joint venture means an unincorporated enterprise carried on by 2 or more persons in common otherwise than in partnership.

Kyoto Party means a Party to the Kyoto Protocol.

Kyoto Protocol means the Kyoto Protocol to the United Nations Framework Convention on Climate Change done at Kyoto on 11 December 1997, as amended and in force for Australia from time to time.

Note:          The text of the Kyoto Protocol is set out in Australian Treaty Series 2008 No. 2 ([2008] ATS 2). In 2010, 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).

Kyoto rules means:

                     (a)  the Kyoto Protocol; or

                     (b)  a decision of the Meeting of the Kyoto Parties; or

                     (c)  if a standard or other instrument, as existing from time to time, is adopted by the Meeting of the Kyoto Parties for a purpose relating to:

                              (i)  the Kyoto Protocol; or

                             (ii)  a decision of the Meeting of the Kyoto Parties;

                            the standard or instrument as existing from time to time; or

                     (d)  if a standard or other instrument, as existing at a particular time, is adopted by the Meeting of the Kyoto Parties for a purpose relating to:

                              (i)  the Kyoto Protocol; or

                             (ii)  a decision of the Meeting of the Kyoto Parties;

                            the standard or instrument as existing at that time; or

                     (e)  a prescribed instrument that relates to:

                              (i)  the Kyoto Protocol; or

                             (ii)  a decision of the Meeting of the Kyoto Parties.

It is immaterial whether a standard or instrument covered by paragraph (c), (d) or (e) was made before, at or after the commencement of this section. Regulations made for the purposes of paragraph (e) may prescribe an instrument:

                      (f)  as existing at a particular time; or

                     (g)  as existing from time to time.

Kyoto unit means:

                     (a)  an assigned amount unit; or

                     (b)  a certified emission reduction; or

                     (c)  an emission reduction unit; or

                     (d)  a removal unit; or

                     (e)  a prescribed unit issued in accordance with the Kyoto rules.

It is immaterial whether a unit covered by paragraph (e) was issued in or outside Australia.

landfill facility means a facility for the disposal of solid waste as landfill, and includes a facility that is closed for the acceptance of waste.

liability transfer certificate means a certificate issued under section 72 or 76.

liable entity means a person who, under a provision of this Act, is a liable entity.

liquid petroleum fuel means:

                     (a)  excisable goods (within the meaning of the Excise Act 1901) classified to item 10 of the Schedule to the Excise Tariff Act 1921; or

                     (b)  imported goods (within the meaning of the Excise Act 1901) that would be classified to item 10 of that Schedule if they were manufactured in Australia;

that do not include an exempt hydrocarbon solvent.

liquid petroleum gas has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

liquid petroleum gas marketer means a person who is supplied liquid petroleum gas from:

                     (a)  a liquid petroleum gas separation plant bulk storage; or

                     (b)  an import terminal bulk storage; or

                     (c)  a petroleum refinery bulk storage;

for the purpose of re‑supply.

local governing body means a local governing body established by or under a law of a State or Territory.

long‑term certified emission reduction means a certified emission reduction that is treated as a long‑term certified emission reduction for the purposes of the relevant provisions of the Kyoto rules.

lower bound of the national scheme gateway has the meaning given by section 15.

make‑good number has the meaning given by section 142.

management of a forest stand includes the harvesting and re‑establishment of the forest stand.

mandatory cancellation account means a Commonwealth Registry account designated as the mandatory cancellation account for a particular commitment period.

Meeting of the Kyoto Parties means the Meeting of the Parties to the Climate Change Convention serving as the meeting of the Parties to the Kyoto Protocol.

member, in relation to a group, has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

Minister, in relation to Norfolk Island, means an executive member within the meaning of the Norfolk Island Act 1979.

monitoring powers has the meaning given by section 309.

monitoring warrant means a warrant issued under section 321.

nameplate rating of a generation asset means:

                     (a)  in the case of a generation complex—the maximum continuous electrical generation capacity in megawatts of the generation complex, as registered with the appropriate energy market operator; or

                     (b)  in the case of a generation complex project—the proposed maximum continuous electrical generation capacity in megawatts of the proposed generation complex, as registered, or proposed to be registered, with the appropriate energy market operator.

national scheme cap has the meaning given by section 14.

national scheme cap number has the meaning given by section 14.

native forest has the meaning given by the regulations.

net source cancellation account means a Commonwealth Registry account designated as the net source cancellation account for a particular commitment period.

net total number of Australian emissions units issued in relation to an eligible reforestation project in accordance with Part 10 has the meaning given by section 242.

non‑compliance cancellation account means a Commonwealth Registry account designated as the non‑compliance cancellation account for a particular commitment period.

Note:          See also section 386 (transitional).

non‑group entity has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

non‑Kyoto international emissions unit means:

                     (a)  a prescribed unit issued in accordance with an international agreement (other than the Kyoto Protocol); or

                     (b)  a prescribed unit issued outside Australia under a law of a foreign country.

It is immaterial whether a unit covered by paragraph (a) was issued in or outside Australia.

obligation transfer number or OTN means an OTN issued under section 44 or 45.

officer has the same meaning as in the Corporations Act 2001.

official of the Authority has the same meaning as in the Australian Climate Change Regulatory Authority Act 2010.

offsets project means:

                     (a)  a project to remove one or more greenhouse gases from the atmosphere; or

                     (b)  a project to reduce emissions of one or more greenhouse gases.

For this purpose, it is immaterial whether the project has been carried out.

one‑off quotation of an OTN has the meaning given by section 51A.

open, in relation to a Registry account, means open under section 146.

operation, in relation to a facility, has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

operational control has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

OTN: see obligation transfer number.

OTN Register means the register kept under section 49.

participant, in relation to a joint venture, means any of the persons who carry on the joint venture.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

permitted forest activity has the meaning given by section 226.

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.

person assisting an inspector has the meaning given by section 310.

potential greenhouse gas emissions has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

power system reliability test has the meaning given by section 189.

premises includes the following:

                     (a)  a structure, building, vehicle, vessel or aircraft;

                     (b)  a place (whether or not enclosed or built on);

                     (c)  a part of a thing referred to in paragraph (a) or (b).

prescribed non‑CPRS reforestation scheme has the meaning given by the regulations.

prescribed wholesale gas market has the meaning given by the regulations.

project area, in relation to a reforestation project, means:

                     (a)  if the project relates to a single forest stand—the area of land occupied, or to be occupied, by the forest stand; or

                     (b)  if the project relates to 2 or more forest stands—an area of land occupied, or to be occupied, by any of those forest stands.

project manager, in relation to a reforestation project, has the meaning given by section 197A.

proposed generation complex, in relation to a generation complex project, means the generation complex that is proposed to result from the project. For this purpose, it is immaterial whether the generation complex has been constructed or commissioned.

provisional emissions number:

                     (a)  has the meaning given by Part 3; and

                     (b)  has a meaning affected by sections 11B and 11C of the National Greenhouse and Energy Reporting Act 2007.

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

quote, in relation to an OTN, has the meaning given by section 51.

recognised:

                     (a)  recognised as a reforestation entity means recognised under section 201; and

                     (b)  recognised as a synthetic greenhouse gas destruction customer means recognised under section 256; and

                     (c)  recognised as an offsets entity means recognised under section 259P.

recognised offsets entity means a person recognised as an offsets entity.

recognised reforestation entity means a person recognised as a reforestation entity.

recognised synthetic greenhouse gas destruction customer means a company recognised as a synthetic greenhouse gas destruction customer.

recognised transformation: each of the following is a recognised transformation of an eligible upstream fuel to another type of eligible upstream fuel:

                     (a)  the transformation of brown coal to brown coal briquettes;

                     (b)  the transformation of brown coal briquettes to coal‑based char;

                     (c)  the transformation of coking coal to coke oven coke;

                     (d)  the transformation of natural gas to liquefied natural gas;

                     (e)  the transformation of natural gas to compressed natural gas;

                      (f)  the transformation of liquefied natural gas to natural gas;

                     (g)  the transformation of compressed natural gas to natural gas;

                     (h)  the transformation of a type of eligible upstream fuel specified in the regulations to a type of eligible upstream fuel specified in the regulations.

refinery grade propene (propylene) has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

reforestation project means:

                     (a)  a project for the establishment, management and maintenance of one or more forest stands; or

                     (b)  a project for the management and maintenance of one or more existing forest stands.

For this purpose, it is immaterial whether the project has been carried out.

reforestation report means a report under section 225.

reforestation reporting period has the meaning given by section 223 or 224.

reforestation unit limit, in relation to an eligible reforestation project, has the meaning given by section 220, 221 or 222.

registered holder, in relation to:

                     (a)  an Australian emissions unit; or

                     (b)  a Kyoto unit; or

                     (c)  a non‑Kyoto international emissions unit;

means the person in whose Registry account there is an entry for the unit.

Register of Reforestation Projects means the register kept under section 238.

Registry means the Australian National Registry of Emissions Units continued in existence under section 145.

Registry account means an account kept in accordance with section 146.

regulatory approval, in relation to a reforestation project, means an approval, licence or permit (however described) that:

                     (a)  relates to, or to an element of, the project; and

                     (b)  is required under a law of the Commonwealth, a State or Territory that relates to:

                              (i)  land use or development; or

                             (ii)  the environment.

relinquish, in relation to an Australian emissions unit, means relinquish under section 286.

removal unit means a removal unit issued in accordance with the relevant provisions of the Kyoto rules. It is immaterial whether the unit was issued in or out of Australia.

retirement account for a commitment period means a Commonwealth Registry account designated as the retirement account for a particular commitment period.

reviewable decision has the meaning given by section 346.

saleable coal has the meaning given by the regulations.

scheme, when used in section 23 or 30 or Part 22, means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.

scheme obligation transfer agreement has the meaning given by section 197B.

scope 1 emission of greenhouse gas has the meaning given by the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

Secretary means the Secretary of the Department.

staff of the Authority has the same meaning as in the Australian Climate Change Regulatory Authority Act 2010.

standing quotation of an OTN has the meaning given by section 51B.

statutory authority of the Commonwealth, a State or a Territory, means an authority or body (including a corporation sole) established by or under a law of the Commonwealth, the State or Territory other than a general law allowing incorporation as a company or body corporate.

supply means supply (including re‑supply) by way of sale, exchange or gift.

Note 1:       See also section 5A (extended meaning of supply).

Note 2:       See also section 6 (timing of supply).

surrender, in relation to an eligible emissions unit, means surrender under section 129.

syngas has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008.

synthetic greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Note:          See also section 386 (transitional).

synthetic greenhouse gas destruction event means an event that consists of the destruction of a particular quantity of a particular kind of synthetic greenhouse gas.

temporary certified emission reduction means a certified emission reduction that is treated as a temporary certified emission reduction for the purposes of the relevant provisions of the Kyoto rules.

territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973.

Torrens system land: land is Torrens system land if the title to the land is registered under a Torrens system of registration.

transfer:

                     (a)  in relation to an Australian emissions unit—has the meaning given by section 95; or

                     (b)  in relation to a Kyoto unit—has the meaning given by section 107; or

                     (c)  in relation to a non‑Kyoto international emissions unit—has the meaning given by section 118.

transferee, in relation to a scheme obligation transfer agreement, has the meaning given by section 197B.

trust means a person in the capacity of trustee or, as the case requires, a trust estate.

trustee has the same meaning as in the Income Tax Assessment Act 1997.

trust estate has the same meaning as in the Income Tax Assessment Act 1997.

type:

                     (a)  type of eligible upstream fuel:

                              (i)  each substance classified to item 10 of the Schedule to the Excise Tariff Act 1921 (or that would be classified to that item if it was manufactured in Australia) is a type of eligible upstream fuel; and

                             (ii)  a substance covered by a particular paragraph of the definition of eligible upstream fuel (other than paragraph (a) of the definition) is a type of eligible upstream fuel; and

                     (b)  type of synthetic greenhouse gas:

                              (i)  a substance covered by paragraph 7B(1)(a) of the National Greenhouse and Energy Reporting Act 2007 is a type of synthetic greenhouse gas; and

                             (ii)  a substance covered by a particular item of table 1 or table 2 in section 7B of that Act is a type of synthetic greenhouse gas.

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 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

unit shortfall has the meaning given by section 130.

upper bound of the national scheme gateway has the meaning given by section 15.

vacancy:

                     (a)  in relation to the office of an expert advisory committee member—has a meaning affected by section 7; or

                     (b)  in relation to the office of a Domestic Offsets Integrity Committee member—has a meaning affected by section 7A.

vintage year, in relation to an Australian emissions unit, has the meaning given by subsection 85(2).

voluntary cancellation account means a Commonwealth Registry account designated as the voluntary cancellation account for a particular commitment period.

windfall gain declaration means a declaration under section 186.

windfall gain test has the meaning given by section 187.

5A  Extended meaning of supply

                   For the purposes of this Act, if:

                     (a)  a person (the supplier) makes eligible upstream fuel available to another person (the recipient) for combustion at a facility; and

                     (b)  apart from this section, making the fuel available is not a supply;

then:

                     (c)  the supplier is taken to supply the fuel to the recipient; and

                     (d)  the supply occurs when the fuel is combusted.

6  When supply occurs

Natural gas distributed or transmitted in a pipeline

             (1)  For the purposes of this Act, if natural gas is distributed or transmitted in a pipeline, the supply of the natural gas occurs:

                     (a)  if the regulations provide that the supply occurs when the gas passes a point ascertained in accordance with the regulations—when the gas passes that point; or

                     (b)  otherwise:

                              (i)  if the supply involves physical delivery—when the gas is physically delivered; or

                             (ii)  if the supply does not involve physical delivery—when property in the gas is transferred.

Other substances

             (2)  For the purposes of this Act:

                     (a)  if the supply of a substance (other than natural gas distributed or transmitted in a pipeline) involves a physical delivery—the supply of the substance occurs when the substance is physically delivered; or

                     (b)  if the supply of a substance (other than natural gas distributed or transmitted in a pipeline) does not involve a physical delivery—the supply of the substance occurs when property in the substance is transferred.

Exception

             (3)  This section does not apply to a supply covered by section 5A.

7  Vacancy in the office of an expert advisory committee member

                   For the purposes of a reference in:

                     (a)  this Act to a vacancy in the office of an expert advisory committee member; or

                     (b)  the Acts Interpretation Act 1901 to a vacancy in the membership of a body;

for each expert advisory committee, there are taken to be 4 offices of expert advisory committee members in addition to the Chair of the expert advisory committee.

7A  Vacancy in the office of a Domestic Offsets Integrity Committee member

                   For the purposes of a reference in:

                     (a)  this Act to a vacancy in the office of a Domestic Offsets Integrity Committee member; or

                     (b)  the Acts Interpretation Act 1901 to a vacancy in the membership of a body;

there are taken to be 4 offices of member of the Domestic Offsets Integrity Committee in addition to the Chair of the Domestic Offsets Integrity Committee.

8  Electronic notice transmitted to the Authority

             (1)  For the purposes of this Act, a notice is an electronic notice transmitted to the Authority if, and only if:

                     (a)  the notice is transmitted to the Authority by means of an electronic communication; and

                     (b)  if the Authority requires that the notice be transmitted, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the Authority’s requirement has been met; and

                     (c)  the notice complies with regulations made for the purposes of subsection (2).

             (2)  The regulations may make provision for or in relation to the security and authenticity of notices transmitted to the Authority by means of an electronic communication.

             (3)  Regulations made for the purposes of subsection (2) may deal with:

                     (a)  encryption; and

                     (b)  authentication of identity.

             (4)  Subsection (3) does not limit subsection (2).

             (5)  For the purposes of this Act, if a notice is transmitted to the Authority by means of an electronic communication, the notice is taken to have been transmitted on the day on which the electronic communication is dispatched.

             (6)  Subsection (5) of this section has effect despite subsections 14(3) and (4) of the Electronic Transactions Act 1999.

             (7)  This section does not, by implication, limit the regulations that may be made under the Electronic Transactions Act 1999.

9  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.

             (4)  The protection in subsection (2) does not apply to a penalty under section 133, 135, 287 or 288.

10  Extension to external Territories

                   This Act extends to every external Territory.

11  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.

11A  Extension to Joint Petroleum Development Area

                   This Act extends to the Joint Petroleum Development Area.

Note:          See also sections 22A and 22B (adjustment of provisional emissions number).

12  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.


 

Part 2National scheme cap and national scheme gateway

  

13  Simplified outline

                   The following is a simplified outline of this Part:

•      The regulations may declare that a quantity of greenhouse gas that has a carbon dioxide equivalence of a specified number of tonnes is the national scheme cap for a financial year.

•      For the financial year beginning on 1 July 2015 or a later financial year, the national scheme cap must fall within the upper and lower bound of the national scheme gateway (if any) declared by the regulations for the financial year.

Note:          The national scheme cap limits:

(a)    the total number of auctioned Australian emissions units; and

(b)    the total number of free Australian emissions units issued in accordance with the emissions‑intensive trade‑exposed assistance program; and

(ba)  the total number of free Australian emissions units issued in accordance with Part 8A (coal mining); and

(c)    the total number of free Australian emissions units issued in accordance with Part 9 (coal‑fired electricity generation).

14  National scheme cap

National scheme cap

             (1)  The regulations may declare that:

                     (a)  a quantity of greenhouse gas that has a carbon dioxide equivalence of a specified number of tonnes is the national scheme cap for a specified eligible financial year (other than the eligible financial year starting on 1 July 2011); and

                     (b)  that number is the national scheme cap number for that eligible financial year.

             (2)  The Minister must take all reasonable steps to ensure that:

                     (a)  regulations declaring the national scheme cap number for the eligible financial year beginning on 1 July 2012; and

                     (b)  regulations declaring the national scheme cap number for each of the next 3 eligible financial years;

are made not later than 31 December 2011.

             (3)  The Minister must take all reasonable steps to ensure that:

                     (a)  regulations declaring the national scheme cap number for the eligible financial year beginning on 1 July 2016 are made at least 5 years before the end of the eligible financial year; and

                     (b)  regulations declaring the national scheme cap number for a later eligible financial year are made at least 5 years before the end of the later eligible financial year.

             (4)  If:

                     (a)  apart from this subsection, at the beginning of the 5‑year period ending at the end of an eligible financial year (the current eligible financial year), there is no national scheme cap number for the current eligible financial year; and

                     (b)  there was a national scheme cap number for the previous eligible financial year; and

                     (c)  the current eligible financial year began on or after 1 July 2016;

the national scheme cap number for the current eligible financial year is equal to:

                     (d)  if 99% of the national scheme cap number for the previous eligible financial year is less than the lower bound of the national scheme gateway for the current eligible financial year—that lower bound; or

                     (e)  if 99% of the national scheme cap number for the previous eligible financial year exceeds the upper bound of the national scheme gateway for the current eligible financial year—that upper bound; or

                      (f)  if neither paragraph (d) nor (e) applies—99% of the national scheme cap number for the previous eligible financial year (rounded to the nearest whole number, with a number ending in .5 being rounded up).

Regulations

             (5)  In making a recommendation to the Governor‑General about regulations to be made for the purposes of this section, the Minister:

                     (a)  must have regard to Australia’s international obligations under:

                              (i)  the Climate Change Convention; and

                             (ii)  the Kyoto Protocol; and

                     (b)  may have regard to the most recent report given to the Minister by an expert advisory committee under section 354, to the extent to which that report deals with national scheme caps; and

                     (c)  may have regard to the following matters:

                              (i)  the principle that the stabilisation of atmospheric concentrations of greenhouse gases at around 450 parts per million of carbon dioxide equivalence or lower is in Australia’s national interest;

                             (ii)  progress towards, and development of, comprehensive global action under which all of the major economies commit to substantially restrain greenhouse gas emissions and all of the advanced economies commit to reductions of greenhouse gas emissions comparable to the reductions to which Australia has committed;

                            (iii)  the economic implications associated with various levels of national scheme caps, including implications of the carbon price;

                            (iv)  voluntary action to reduce Australia’s greenhouse gas emissions;

                             (v)  estimates of greenhouse gas emissions that are not covered (directly or indirectly) by the carbon pollution reduction scheme;

                            (vi)  such other matters (if any) as the Minister considers relevant.

             (6)  Paragraph (5)(b) does not apply if no report has been given to the Minister under section 354.

             (7)  If:

                     (a)  regulations are made for the purposes of this section; and

                     (b)  on a particular day (the tabling day), a copy of the regulations is tabled before a House of the Parliament under section 38 of the Legislative Instruments Act 2003;

then, on or as soon as practicable after the tabling day, the Minister must cause to be tabled before that House a written statement setting out the Minister’s reasons for making the recommendation to the Governor‑General about those regulations.

15  National scheme gateway

Scope

             (1)  This section applies to:

                     (a)  the eligible financial year beginning on 1 July 2016; and

                     (b)  each later eligible financial year.

Gateway

             (2)  The regulations may declare that:

                     (a)  a quantity of greenhouse gas that has a carbon dioxide equivalence of a specified number of tonnes is the upper bound of the national scheme gateway for a specified eligible financial year; and

                     (b)  a quantity of greenhouse gas that has a carbon dioxide equivalence of a specified number of tonnes is the lower bound of the national scheme gateway for a specified eligible financial year.

National scheme cap

             (3)  The Minister must take all reasonable steps to ensure that the national scheme cap for an eligible financial year:

                     (a)  is not more than the upper bound of the national scheme gateway (if any) for the eligible financial year; and

                     (b)  is not less than the lower bound of the national scheme gateway (if any) for the eligible financial year.

Regulations

             (4)  In making a recommendation to the Governor‑General about regulations to be made for the purposes of this section, the Minister:

                     (a)  must have regard to Australia’s international obligations under:

                              (i)  the Climate Change Convention; and

                             (ii)  the Kyoto Protocol; and

                     (b)  may have regard to the most recent report given to the Minister by an expert advisory committee under section 354, to the extent to which that report deals with national scheme gateways; and

                     (c)  may have regard to the following matters:

                              (i)  the principle that the stabilisation of atmospheric concentrations of greenhouse gases at around 450 parts per million of carbon dioxide equivalence or lower is in Australia’s national interest;

                             (ii)  progress towards, and development of, comprehensive global action under which all of the major economies commit to substantially restrain greenhouse gas emissions and all of the advanced economies commit to reductions of greenhouse gas emissions comparable to the reductions to which Australia has committed;

                            (iii)  the economic implications associated with various national scheme gateways, including implications of the carbon price;

                            (iv)  voluntary action to reduce Australia’s greenhouse gas emissions;

                             (v)  estimates of greenhouse gas emissions that are not covered (directly or indirectly) by the carbon pollution reduction scheme;

                            (vi)  such other matters (if any) as the Minister considers relevant.

             (5)  Paragraph (4)(b) does not apply if no report has been given to the Minister under section 354.

             (6)  If:

                     (a)  regulations are made for the purposes of this section; and

                     (b)  on a particular day (the tabling day), a copy of the regulations is tabled before a House of the Parliament under section 38 of the Legislative Instruments Act 2003;

then, on or as soon as practicable after the tabling day, the Minister must cause to be tabled before that House a written statement setting out the Minister’s reasons for making the recommendation to the Governor‑General about those regulations.


 

Part 3Liable entities

Division 1Introduction

16  Simplified outline

                   The following is a simplified outline of this Part:

•      This Part sets out rules for:

               (a)     identifying the persons who are liable entities for a financial year (liable entities are liable to surrender eligible emissions units); and

               (b)     the provisional emissions numbers of those liable entities (provisional emissions numbers are used to work out the number of eligible emissions units that must be surrendered by a liable entity).

•      If a person is responsible for greenhouse gas emitted from the operation of a facility during a financial year:

               (a)     the person is a liable entity for the financial year; and

               (b)     the number of tonnes of carbon dioxide equivalence of the gas is a provisional emissions number of the person for the financial year.

•      A person can be responsible for greenhouse gas emitted from the operation of a facility because:

               (a)     the person is a controlling corporation of a group, and a member of the group has operational control of the facility; or

               (b)     the person is not a member of a controlling corporation’s group, but has operational control of the facility; or

               (c)     the person is the holder of a liability transfer certificate in relation to the facility.

•      If a person imports, manufactures or supplies synthetic greenhouse gas during a financial year:

               (a)     the person is a liable entity for the financial year; and

               (b)     the number of tonnes of carbon dioxide equivalence of the gas is a provisional emissions number of the person for the financial year.

•      If a person imports, produces or supplies eligible upstream fuel during a financial year:

               (a)     the person is a liable entity for the financial year; and

               (b)     the number of tonnes of carbon dioxide equivalence of the potential greenhouse gas emissions embodied in the fuel is a provisional emissions number of the person for the financial year.

•      If a person (the supplier) supplies an amount of eligible upstream fuel to another person (the recipient) who quotes the recipient’s Obligation Transfer Number (OTN) in relation to the supply, the supply will not count towards the supplier’s liability for the financial year.

•      If a person (the OTN holder) quotes the person’s OTN in relation to the supply of an amount of eligible upstream fuel, the OTN holder may be a liable entity.


 

Division 2Direct emitters of greenhouse gases

Subdivision AGeneral rules

17  Liable entity—controlling corporation of a group

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a facility (other than a landfill facility) was under the operational control of one or more members of a controlling corporation’s group throughout an eligible financial year; or

                             (ii)  a facility (other than a landfill facility) was under the operational control of one or more members of a controlling corporation’s group for a number of, but not all, days in an eligible financial year (the control days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the control days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the controlling corporation for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the controlling corporation is a liable entity for the eligible financial year.

Exemption—small facilities

             (4)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than 25,000 tonnes;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than the amount worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

Exemption—liability transfer certificate

             (6)  For the purposes of this section, if, throughout the whole or a part of the eligible financial year, a person was the holder of a liability transfer certificate in relation to the facility, then the facility is taken not to have been under the operational control of a member of the controlling corporation’s group during the whole or the part, as the case may be, of the eligible financial year.

OTNs—no double counting

             (7)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be a member of the controlling corporation’s group); and

                     (c)  in a case where the person had operational control of the facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

             (8)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be a member of the controlling corporation’s group); and

                     (c)  in a case where the person had operational control of the facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

             (9)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (10)  If:

                     (a)  the facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

18  Liable entity—non‑group entity

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a facility (other than a landfill facility) was under the operational control of a non‑group entity throughout an eligible financial year; or

                             (ii)  a facility (other than a landfill facility) was under the operational control of a non‑group entity for a number of, but not all, days in an eligible financial year (the control days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the control days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the non‑group entity for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the non‑group entity is a liable entity for the eligible financial year.

Exemption—small facility

             (4)  If:

                     (a)  the facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than 25,000 tonnes;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than the amount worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

Exemption—liability transfer certificate

             (6)  For the purposes of this section, if, throughout the whole or a part of the eligible financial year, a person was the holder of a liability transfer certificate in relation to the facility, then the facility is taken not to have been under the operational control of the non‑group entity during the whole or the part, as the case may be, of the eligible financial year.

OTNs—no double counting

             (7)  If:

                     (a)  the facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be the non‑group entity); and

                     (c)  in a case where the person had operational control of the facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

             (8)  If:

                     (a)  the facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be the non‑group entity); and

                     (c)  in a case where the person had operational control of the facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

             (9)  If:

                     (a)  the facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (10)  If:

                     (a)  the facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

19  Liable entity—holder of a liability transfer certificate

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a person was the holder of a liability transfer certificate in relation to a facility (other than a landfill facility) throughout an eligible financial year; or

                             (ii)  a person was the holder of a liability transfer certificate in relation to a facility (other than a landfill facility) for a number of, but not all, days in an eligible financial year (the certificate days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the certificate days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Exemption—small facility

             (4)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than 25,000 tonnes;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the certificate days, the total amount of greenhouse gases emitted from the operation of the facility had a carbon dioxide equivalence of less than the amount worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note:          See also section 23 (anti‑avoidance).

OTNs—no double counting

             (6)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (the recipient) (who may be the holder); and

                     (c)  in a case where the person had operational control of the facility—the recipient did not quote the recipient’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

             (7)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the certificate days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (the recipient) (who may be the holder); and

                     (c)  in a case where the person had operational control of the facility—the recipient did not quote the recipient’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

             (8)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

             (9)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the certificate days, an amount of greenhouse gas emitted from the operation of the facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Subdivision BLandfill facilities

20  Liable entity for landfill emissions—controlling corporation of a group

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a landfill facility was under the operational control of one or more members of a controlling corporation’s group throughout an eligible financial year; or

                             (ii)  a landfill facility was under the operational control of one or more members of a controlling corporation’s group for a number of, but not all, days in an eligible financial year (the control days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the landfill facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the control days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the controlling corporation for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the controlling corporation is a liable entity for the eligible financial year.

Exemption—small facilities

             (4)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the landfill facility’s threshold number for the eligible financial year;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (13).

Note 2:       See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the number worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (13).

Note 2:       See also section 23 (anti‑avoidance).

Exemption—closed landfill facilities

             (6)  If:

                     (a)  the landfill facility has not accepted any waste during the period beginning at the start of 1 July 2008 and ending at the end of the last day of the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility;

the amount mentioned in paragraph (b), to the extent to which it is attributable to solid waste, does not count for the purposes of subsection (1).

Exemption—liability transfer certificate

             (7)  For the purposes of this section, if, throughout the whole or a part of the eligible financial year, a person was the holder of a liability transfer certificate in relation to the landfill facility, then the landfill facility is taken not to have been under the operational control of a member of the controlling corporation’s group during the whole or the part, as the case may be, of the eligible financial year.

Exemption for emissions attributable to legacy waste

             (8)  If:

                     (a)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility; and

                     (b)  waste was accepted by the landfill facility before 1 July 2011;

so much of the amount mentioned in paragraph (a) as is, under the regulations, taken to be attributable to waste accepted by the facility before 1 July 2011:

                     (c)  does not count for the purposes of subsection (1); and

                     (d)  counts for the purposes of whichever of subsection (4) or (5) is applicable to the landfill facility.

OTNs—no double counting

             (9)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be a member of the controlling corporation’s group); and

                     (c)  in a case where the person had operational control of the landfill facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (10)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be a member of the controlling corporation’s group); and

                     (c)  in a case where the person had operational control of the landfill facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

           (11)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (12)  If:

                     (a)  the landfill facility was under the operational control of one or more members of the controlling corporation’s group for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Threshold number

           (13)  For the purposes of this section, the landfill facility’s threshold number for the eligible financial year is:

                     (a)  in a case where:

                              (i)  at any time during the eligible financial year, the landfill facility is open for the acceptance of a prescribed class of waste; and

                             (ii)  at any time during the eligible financial year, the landfill facility is within the prescribed distance of another landfill facility that is open for the acceptance of the same class of waste; and

                            (iii)  the other landfill facility is a designated large landfill facility in relation to the previous eligible financial year; and

                            (iv)  if a list has been published by the Authority during the eligible financial year under regulations made for the purposes of section 278G—the other landfill facility is specified in the list;

                            10,000; or

                     (b)  in any other case—25,000.

           (14)  For the purposes of subparagraph (13)(a)(ii), distance is to be measured in accordance with the regulations.

           (15)  For the purposes of subparagraph (13)(a)(iii), assume that the financial year beginning on 1 July 2010 is an eligible financial year.

21  Liable entity for landfill emissions—non‑group entity

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a landfill facility was under the operational control of a non‑group entity throughout an eligible financial year; or

                             (ii)  a landfill facility was under the operational control of a non‑group entity for a number of, but not all, days in an eligible financial year (the control days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the landfill facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the control days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the non‑group entity for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the non‑group entity is a liable entity for the eligible financial year.

Exemption—small facilities

             (4)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the landfill facility’s threshold number for the eligible financial year;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (13).

Note 2:       See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the number worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (13).

Note 2:       See also section 23 (anti‑avoidance).

Exemption—closed landfill facilities

             (6)  If:

                     (a)  the landfill facility has not accepted any waste during the period beginning at the start of 1 July 2008 and ending at the end of the last day of the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility;

the amount mentioned in paragraph (b), to the extent to which it is attributable to solid waste, does not count for the purposes of subsection (1).

Exemption—liability transfer certificate

             (7)  For the purposes of this section, if, throughout the whole or a part of the eligible financial year, a person was the holder of a liability transfer certificate in relation to the landfill facility, then the landfill facility is taken not to have been under the operational control of the non‑group entity during the whole or the part, as the case may be, of the eligible financial year.

Exemption for emissions attributable to legacy waste

             (8)  If:

                     (a)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility; and

                     (b)  waste was accepted by the landfill facility before 1 July 2011;

so much of the amount mentioned in paragraph (a) as is, under the regulations, taken to be attributable to waste accepted by the facility before 1 July 2011:

                     (c)  does not count for the purposes of subsection (1); and

                     (d)  counts for the purposes of whichever of subsection (4) or (5) is applicable to the landfill facility.

OTNs—no double counting

             (9)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be the non‑group entity); and

                     (c)  in a case where the person had operational control of the landfill facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (10)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (who may be the non‑group entity); and

                     (c)  in a case where the person had operational control of the landfill facility—the person did not quote the person’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

           (11)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (12)  If:

                     (a)  the landfill facility was under the operational control of the non‑group entity for a number of, but not all, days in the eligible financial year (the control days); and

                     (b)  during the control days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Threshold number

           (13)  For the purposes of this section, the landfill facility’s threshold number for the eligible financial year is:

                     (a)  in a case where:

                              (i)  at any time during the eligible financial year, the landfill facility is open for the acceptance of a prescribed class of waste; and

                             (ii)  at any time during the eligible financial year, the landfill facility is within the prescribed distance of another landfill facility that is open for the acceptance of the same class of waste; and

                            (iii)  the other landfill facility is a designated large landfill facility in relation to the previous eligible financial year; and

                            (iv)  if a list has been published by the Authority during the eligible financial year under regulations made for the purposes of section 278G—the other landfill facility is specified in the list;

                            10,000; or

                     (b)  in any other case—25,000.

           (14)  For the purposes of subparagraph (13)(a)(ii), distance is to be measured in accordance with the regulations.

           (15)  For the purposes of subparagraph (13)(a)(iii), assume that the financial year beginning on 1 July 2010 is an eligible financial year.

22  Liable entity for landfill emissions—holder of a liability transfer certificate

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a person was the holder of a liability transfer certificate in relation to a landfill facility throughout an eligible financial year; or

                             (ii)  a person was the holder of a liability transfer certificate in relation to a landfill facility for a number of, but not all, days in an eligible financial year (the certificate days); and

                     (b)  the total amount of greenhouse gases emitted from the operation of the landfill facility:

                              (i)  if subparagraph (a)(i) applies—during the eligible financial year; or

                             (ii)  if subparagraph (a)(ii) applies—during the certificate days;

                            has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Exemption—small facility

             (4)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the landfill facility’s threshold number for the eligible financial year;

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (12).

Note 2:       See also section 23 (anti‑avoidance).

             (5)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the control days, the number of tonnes of the carbon dioxide equivalence of the total amount of greenhouse gases emitted from the operation of the landfill facility is less than the number worked out using the formula:

so much of the total amount mentioned in paragraph (b) as would otherwise count for the purposes of subsection (1) does not count for the purposes of subsection (1).

Note 1:       For the landfill facility’s threshold number, see subsection (12).

Note 2:       See also section 23 (anti‑avoidance).

Exemption—closed landfill facilities

             (6)  If:

                     (a)  the landfill facility has not accepted any waste during the period beginning at the start of 1 July 2008 and ending at the end of the last day of the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility;

the amount mentioned in paragraph (b), to the extent to which it is attributable to solid waste, does not count for the purposes of subsection (1).

Exemption for emissions attributable to legacy waste

             (7)  If:

                     (a)  during the eligible financial year, an amount of greenhouse gases was emitted from the operation of the landfill facility; and

                     (b)  waste was accepted by the landfill facility before 1 July 2011;

so much of the amount mentioned in paragraph (a) as is, under the regulations, taken to be attributable to waste accepted by the facility before 1 July 2011:

                     (c)  does not count for the purposes of subsection (1); and

                     (d)  counts for the purposes of whichever of subsection (4) or (5) is applicable to the landfill facility.

OTNs—no double counting

             (8)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (the recipient) (who may be the holder); and

                     (c)  in a case where the person had operational control of the landfill facility—the recipient did not quote the recipient’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

             (9)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the certificate days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of eligible upstream fuel that was obtained by way of the supply of the fuel to a person (the recipient) (who may be the holder); and

                     (c)  in a case where the person had operational control of the landfill facility—the recipient did not quote the recipient’s OTN in relation to the supply of the fuel;

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Liquid petroleum fuel—no double counting

           (10)  If:

                     (a)  the person was the holder of the liability transfer certificate throughout the eligible financial year; and

                     (b)  during the eligible financial year, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (4)(b).

           (11)  If:

                     (a)  the person was the holder of the liability transfer certificate for a number of, but not all, days in the eligible financial year (the certificate days); and

                     (b)  during the certificate days, an amount of greenhouse gas emitted from the operation of the landfill facility was attributable to the combustion of liquid petroleum fuel; and

                     (c)  the potential greenhouse gas emissions embodied in the fuel were counted for the purposes of subsection 31(1) or 32(1);

the amount mentioned in paragraph (b):

                     (d)  does not count for the purposes of subsection (1); and

                     (e)  counts for the purposes of paragraph (5)(b).

Threshold number

           (12)  For the purposes of this section, the landfill facility’s threshold number for the eligible financial year is:

                     (a)  in a case where:

                              (i)  at any time during the eligible financial year, the landfill facility is open for the acceptance of a prescribed class of waste; and

                             (ii)  at any time during the eligible financial year, the landfill facility is within the prescribed distance of another landfill facility that is open for the acceptance of the same class of waste; and

                            (iii)  the other landfill facility is a designated large landfill facility in relation to the previous eligible financial year; and

                            (iv)  if a list has been published by the Authority during the eligible financial year under regulations made for the purposes of section 278G—the other landfill facility is specified in the list;

                            10,000; or

                     (b)  in any other case—25,000.

           (13)  For the purposes of subparagraph (12)(a)(ii), distance is to be measured in accordance with the regulations.

           (14)  For the purposes of subparagraph (12)(a)(iii), assume that the financial year beginning on 1 July 2010 is an eligible financial year.

Subdivision BAAdjustment of provisional emissions number in relation to a facility in the Joint Petroleum Development Area or the Greater Sunrise unit area

22A  Joint Petroleum Development Area—adjustment of provisional emissions number

Scope

             (1)  This section applies if there is a provisional emissions number of a person for an eligible financial year in relation to greenhouse gases emitted from the operation of a facility that is:

                     (a)  located in the Joint Petroleum Development Area; and

                     (b)  not located in the Greater Sunrise unit area;

during a period that is included in, or consists of, the eligible financial year.

Adjustment

             (2)  For the purposes of this Act, that provisional emissions number is taken to be the number worked out using the formula:

where:

prescribed percentage means the percentage (not exceeding 100%) specified in the regulations in relation to the facility for the eligible financial year.

unadjusted provisional emissions number means the number that, apart from this subsection, would be the provisional emissions number of the person for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.

22B  Joint Petroleum Development Area‑Greater Sunrise unit area—adjustment of provisional emissions number

Scope

             (1)  This section applies if there is a provisional emissions number of a person for an eligible financial year in relation to greenhouse gases emitted from the operation of a facility that is located in both of the following areas:

                     (a)  the Joint Petroleum Development Area;

                     (b)  the Greater Sunrise unit area;

during a period that is included in, or consists of, the eligible financial year.

Adjustment

             (2)  For the purposes of this Act, that provisional emissions number is taken to be the number worked out using the formula:

where:

prescribed percentage means the percentage (not exceeding 100%) specified in the regulations in relation to the facility for the eligible financial year.

unadjusted provisional emissions number means the number that, apart from this subsection, would be the provisional emissions number of the person for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.

22C  Greater Sunrise unit area—adjustment of provisional emissions number

Scope

             (1)  This section applies if there is a provisional emissions number of a person for an eligible financial year in relation to greenhouse gases emitted from the operation of a facility that is:

                     (a)  located in the Greater Sunrise unit area; and

                     (b)  not located in the Joint Petroleum Development Area;

during a period that is included in, or consists of, the eligible financial year.

Adjustment

             (2)  For the purposes of this Act, that provisional emissions number is taken to be the number worked out using the formula:

where:

prescribed percentage means the percentage (not exceeding 100%) specified in the regulations in relation to the facility for the eligible financial year.

unadjusted provisional emissions number means the number that, apart from this subsection, would be the provisional emissions number of the person for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.

Subdivision CAnti‑avoidance

23  Anti‑avoidance

Scope

             (1)  This section applies if:

                     (a)  at any time after 15 December 2008, one or more persons entered into, commenced to carry out, or carried out, a scheme; and

                     (b)  it would be concluded that the person, or any of the persons, who entered into, commenced to carry out, or carried out, the scheme did so for the purpose, or for purposes that included the substantial purpose, of:

                              (i)  enabling the controlling corporation of a group to obtain the benefit of one or more threshold provisions in relation to a facility for an eligible financial year; or

                             (ii)  enabling a non‑group entity to obtain the benefit of one or more threshold provisions in relation to a facility for an eligible financial year; or

                            (iii)  enabling the holder of a liability transfer certificate to obtain the benefit of one or more threshold provisions in relation to a facility for an eligible financial year.

For this purpose, it is immaterial whether the controlling corporation, non‑group entity or the holder of the certificate, as the case may be, is the person, or one of the persons, referred to in paragraph (a).

Cancellation of benefit of threshold provision

             (2)  The Authority may, by writing, determine that this Act has, and is taken always to have had, effect, as if the controlling corporation, the non‑group entity or the holder of the certificate, as the case may be, were not entitled to obtain the benefit of the relevant threshold provision or provisions in relation to the facility for that eligible financial year.

             (3)  If the Authority makes a determination under subsection (2), the Authority must publish a copy of the determination on the Authority’s website.

Threshold provision

             (4)  For the purposes of this section, each of the following is a threshold provision:

                     (a)  subsection 17(4);

                     (b)  subsection 17(5);

                     (c)  subsection 18(4);

                     (d)  subsection 18(5);

                     (e)  subsection 19(4);

                      (f)  subsection 19(5);

                     (g)  subsection 20(4);

                     (h)  subsection 20(5);

                      (i)  subsection 21(4);

                      (j)  subsection 21(5);

                     (k)  subsection 22(4);

                      (l)  subsection 22(5).

Subdivision DGreenhouse gas emitted from the operation of a facility

24  Greenhouse gas emitted from the operation of a facility

             (1)  For the purposes of this Act, an emission of greenhouse gas from the operation of a facility is a scope 1 emission of greenhouse gas, where:

                     (a)  the greenhouse gas is released into the atmosphere as a direct result of the operation of the facility; and

                     (b)  regulations made for the purposes of paragraph 10(2A)(a) of the National Greenhouse and Energy Reporting Act 2007 declare that the emission is a scope 1 emission covered by the carbon pollution reduction scheme.

Exclusion of agricultural emissions

             (2)  For the purposes of this Act, an emission of a greenhouse gas from the operation of a facility does not include any of the following emissions:

                     (a)  an emission of methane from the digestive tract of livestock;

                     (b)  an emission of:

                              (i)  methane; or

                             (ii)  nitrous oxide;

                            from the decomposition of:

                            (iii)  livestock urine; or

                            (iv)  livestock dung;

                     (c)  an emission of methane from:

                              (i)  rice fields; or

                             (ii)  rice plants;

                     (d)  an emission of:

                              (i)  methane; or

                             (ii)  nitrous oxide;

                            from the burning of:

                            (iii)  savannas; or

                            (iv)  grasslands;

                     (e)  an emission of:

                              (i)  methane; or

                             (ii)  nitrous oxide;

                            from the burning of:

                            (iii)  crop stubble in fields; or

                            (iv)  crop residues in fields; or

                             (v)  sugar cane before harvest;

                      (f)  an emission of:

                              (i)  carbon dioxide; or

                             (ii)  methane; or

                            (iii)  nitrous oxide;

                            from soil.

             (3)  Paragraph (2)(f) does not apply to an emission that is attributable to the operation of a landfill facility.

25  Measurement of greenhouse gas emitted from the operation of a facility

                   For the purposes of this Act, greenhouse gas emitted from the operation of a facility is to be measured using:

                     (a)  methods determined under subsection 10(3) of the National Greenhouse and Energy Reporting Act 2007; or

                     (b)  methods which meet criteria determined under that subsection;

where the use of those methods satisfies any conditions specified in the determination under that subsection.


 

Division 3Importers, manufacturers and suppliers of synthetic greenhouse gases

26  Liable entity—import of synthetic greenhouse gas

Scope

             (1)  This section applies if, during an eligible financial year, the total amount of synthetic greenhouse gases imported by a person has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Note:          See also section 27A, which deals with the reduction of total provisional emissions numbers.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Exemption—small importers

             (4)  If, during the eligible financial year, the total amount of synthetic greenhouse gases imported by the person has a carbon dioxide equivalence of less than 25,000 tonnes, the total amount does not count for the purposes of subsection (1).

Note:          See also section 30 (anti‑avoidance).

Synthetic greenhouse gases in manufactured products

             (5)  For the purposes of this section, disregard a synthetic greenhouse gas if the gas is in a manufactured product that consists in part of that gas only because the gas was used in the manufacturing process.

Note:          For example, this subsection would apply to a gas that remained in a foam product after the gas was used in the production of the foam.

Synthetic greenhouse gas for use on board ships or aircraft

             (6)  For the purposes of this section, disregard the import of a synthetic greenhouse gas if:

                     (a)  the synthetic greenhouse gas is on board a ship or aircraft; and

                     (b)  the ship or aircraft has air‑conditioning or refrigeration equipment; and

                     (c)  the synthetic greenhouse gas is exclusively for use in meeting the reasonable servicing requirements of that equipment during, or in connection with, one or more periods when the ship or aircraft is or will be engaged in a journey between:

                              (i)  a place in Australia and a place outside Australia; or

                             (ii)  2 places outside Australia.

27  Liable entity—manufacture of synthetic greenhouse gas

Scope

             (1)  This section applies if, during an eligible financial year, the total amount of synthetic greenhouse gases manufactured by a person has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Note:          See also section 27A, which deals with the reduction of total provisional emissions numbers.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Exemption—small manufacturers

             (4)  If, during the eligible financial year, the total amount of synthetic greenhouse gases manufactured by the person has a carbon dioxide equivalence of less than 25,000 tonnes, the total amount does not count for the purposes of subsection (1).

Note:          See also section 30 (anti‑avoidance).

Recycling of synthetic greenhouse gas

             (5)  For the purposes of this section, disregard a process by which a quantity of synthetic greenhouse gas is produced by the recycling of substances containing synthetic greenhouse gases of that quantity.

             (6)  For the purposes of this section, if a process for the manufacture of a quantity of synthetic greenhouse gas involves, in part, the recycling of substances containing synthetic greenhouse gas of a lesser quantity, the quantity of synthetic greenhouse gas manufactured in the process is taken to be reduced by the quantity of synthetic greenhouse gas in the substances recycled in the process.

27A  Reduction of total provisional emissions numbers—netted‑out numbers

Reduction of provisional emissions numbers

             (1)  If:

                     (a)  under section 26 or 27, or both, a person has one or more provisional emissions numbers for an eligible financial year; and

                     (b)  the person has one or more netted‑out numbers for the eligible financial year;

the total of those provisional emissions numbers is to be reduced (but not below zero) by the total of those netted‑out numbers.

Netted‑out numbers

             (2)  For the purposes of this section, if:

                     (a)  during an eligible financial year, the total amount of a particular type of synthetic greenhouse gas imported or manufactured, or both, by a person has a carbon dioxide equivalence of a particular number of tonnes (the import/manufacture number); and

                     (b)  during the eligible financial year, the total amount of the same type of synthetic greenhouse gas exported by the person has a carbon dioxide equivalence of a particular number of tonnes (the export number);

then:

                     (c)  if the import/manufacture number exceeds the export number—the export number is a netted‑out number of the person for the eligible financial year; or

                     (d)  otherwise—the import/manufacture number is a netted‑out number of the person for the eligible financial year.

             (3)  Paragraph (2)(b) does not apply to synthetic greenhouse gas exported by the person if the synthetic greenhouse gas was supplied in Australia to the person.

             (4)  For the purposes of this section, if:

                     (a)  during an eligible financial year, a person (the first person) imported or manufactured an amount of synthetic greenhouse gas; and

                     (b)  as a result of the import or manufacture, the first person has, under section 26 or 27, a provisional emissions number for the eligible financial year; and

                     (c)  after the import or manufacture, the first person supplies an amount of the synthetic greenhouse gas to another person who quotes the other person’s OTN in relation to the supply; and

                     (d)  the amount mentioned in paragraph (c) is the whole or a part of the amount mentioned in paragraph (a); and

                     (e)  the amount mentioned in paragraph (c) has a carbon dioxide equivalence of a particular number of tonnes;

that number is a netted‑out number of the first person for the eligible financial year in which the supply mentioned in paragraph (c) occurs.

Synthetic greenhouse gases in manufactured products

             (5)  For the purposes of this section, disregard the import of a synthetic greenhouse gas if the gas is in a manufactured product that consists in part of that gas only because the gas was used in the manufacturing process.

Note:          For example, this subsection would apply to a gas that remained in a foam product after the gas was used in the production of the foam.

Synthetic greenhouse gas for use on board ships or aircraft

             (6)  For the purposes of this section, disregard the import of a synthetic greenhouse gas if:

                     (a)  the synthetic greenhouse gas is on board a ship or aircraft; and

                     (b)  the ship or aircraft has air‑conditioning or refrigeration equipment; and

                     (c)  the synthetic greenhouse gas is exclusively for use in meeting the reasonable servicing requirements of that equipment during, or in connection with, one or more periods when the ship or aircraft is or will be engaged in a journey between:

                              (i)  a place in Australia and a place outside Australia; or

                             (ii)  2 places outside Australia.

Recycling of synthetic greenhouse gas

             (7)  For the purposes of the application of this section to the manufacture of synthetic greenhouse gas, disregard a process by which a quantity of synthetic greenhouse gas is produced by the recycling of substances containing synthetic greenhouse gases of that quantity.

             (8)  For the purposes of the application of this section to the manufacture of synthetic greenhouse gas, if a process for the manufacture of a quantity of synthetic greenhouse gas involves, in part, the recycling of substances containing synthetic greenhouse gas of a lesser quantity, the quantity of synthetic greenhouse gas manufactured in the process is taken to be reduced by the quantity of synthetic greenhouse gas in the substances recycled in the process.

28  Liable entity—re‑supply of synthetic greenhouse gas to recipient who does not quote an OTN

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies an amount of synthetic greenhouse gas to another person (the OTN holder) who quotes the other person’s OTN in relation to the supply; and

                     (b)  during that or a later eligible financial year, the OTN holder re‑supplies the whole or a part of that amount to a third person; and

                     (c)  the third person does not quote the third person’s OTN in relation to the re‑supply; and

                     (d)  the re‑supplied amount has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the OTN holder for the eligible financial year in which the re‑supply occurred.

Liable entity

             (3)  For the purposes of this Act, the OTN holder is a liable entity for the eligible financial year in which the re‑supply occurred.

29  Liable entity—supply of synthetic greenhouse gas to a person who misuses the person’s OTN

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies an amount of synthetic greenhouse gas to another person (the OTN holder) who quotes the other person’s OTN in relation to the supply; and

                     (b)  the OTN holder was not required or permitted by this Act to quote the OTN holder’s OTN; and

                     (c)  the supplied amount has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the OTN holder for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the OTN holder is a liable entity for the eligible financial year.

30  Anti‑avoidance

Scope

             (1)  This section applies if:

                     (a)  at any time after 15 December 2008, one or more persons entered into, commenced to carry out, or carried out, a scheme; and

                     (b)  it would be concluded that the person, or any of the persons, who entered into, commenced to carry out, or carried out, the scheme did so for the purpose, or for purposes that included the substantial purpose, of:

                              (i)  enabling the importer of one or more synthetic greenhouse gases to obtain the benefit of subsection 26(4) for an eligible financial year; or

                             (ii)  enabling a manufacturer of one or more synthetic greenhouse gases to obtain the benefit of subsection 27(4) for an eligible financial year.

For this purpose, it is immaterial whether the importer or manufacturer, as the case may be, is the person, or one of the persons, referred to in paragraph (a).

Cancellation of benefit of threshold provision

             (2)  The Authority may, by writing, determine that this Act has, and is taken always to have had, effect, as if the importer or manufacturer, as the case may be, were not entitled to obtain the benefit of subsection 26(4) or 27(4), as the case may be, for that eligible financial year.

             (3)  If the Authority makes a determination under subsection (2), the Authority must publish a copy of the determination on the Authority’s website.


 

Division 4Importers, producers and suppliers of eligible upstream fuels

31  Liable entity—import of liquid petroleum fuel

Scope

             (1)  This section applies if:

                     (a)  an amount of liquid petroleum fuel is entered for home consumption during an eligible financial year; and

                     (b)  import duty is or was payable by a person on that amount; and

                     (c)  the potential greenhouse gas emissions embodied in that amount has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Note:          See also section 32A, which deals with the reduction of total provisional emissions numbers.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Import duty

             (4)  For the purposes of this section, in determining whether import duty is or was payable on an amount of liquid petroleum fuel, disregard:

                     (a)  any remission, rebate or refund under section 163 of the Customs Act 1901; or

                     (b)  any drawback under regulations made for the purposes of subsection 168(1) of the Customs Act 1901;

unless the remission, rebate, refund or drawback is prescribed by regulations made for the purposes of this subsection.

32  Liable entity—production of liquid petroleum fuel

Scope

             (1)  This section applies if:

                     (a)  an amount of liquid petroleum fuel is manufactured or produced in Australia during an eligible financial year; and

                     (b)  excise duty is or was payable by a person on that amount; and

                     (c)  the potential greenhouse gas emissions embodied in that amount has a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Note:          See also section 32A, which deals with the reduction of total provisional emissions numbers.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

Excise duty

             (4)  For the purposes of this section, in determining whether excise duty is or was payable on an amount of liquid petroleum fuel, disregard:

                     (a)  any remission, rebate or refund under section 78 of the Excise Act 1901; or

                     (b)  any drawback under regulations made for the purposes of section 79 of the Excise Act 1901;

unless the remission, rebate, refund or drawback is prescribed by regulations made for the purposes of this subsection.

32A  Reduction of total provisional emissions numbers under section 31 or 32—netted‑out numbers

Reduction of provisional emissions numbers

             (1)  If:

                     (a)  under section 31 or 32, or both, a person has one or more provisional emissions numbers for an eligible financial year; and

                     (b)  the person has one or more netted‑out numbers for the eligible financial year;

the total of those provisional emissions numbers is to be reduced (but not below zero) by the total of those netted‑out numbers.

Netted‑out numbers

             (2)  For the purposes of this section, if:

                     (a)  an amount of liquid petroleum fuel is entered for home consumption during an eligible financial year; and

                     (b)  import duty is or was payable by a person (the first person) on that amount; and

                     (c)  as a result, the first person has, under section 31, a provisional emissions number for the eligible financial year; and

                     (d)  after the import of the liquid petroleum fuel, the first person supplies an amount of the liquid petroleum fuel to another person who quotes the other person’s OTN in relation to the supply; and

                     (e)  the amount mentioned in paragraph (d) is the whole or a part of the amount mentioned in paragraph (a); and

                      (f)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (d) have a carbon dioxide equivalence of a particular number of tonnes;

the number is a netted‑out number of the first person for the eligible financial year in which the supply mentioned in paragraph (d) occurs.

             (3)  For the purposes of this section, if:

                     (a)  an amount of liquid petroleum fuel is manufactured or produced in Australia during an eligible financial year; and

                     (b)  excise duty is or was payable by a person (the first person) on that amount; and

                     (c)  as a result, the first person has, under section 32, a provisional emissions number for the eligible financial year; and

                     (d)  after the manufacture or production, the first person supplies an amount of the liquid petroleum fuel to another person who quotes the other person’s OTN in relation to the supply; and

                     (e)  the amount mentioned in paragraph (d) is the whole or a part of the amount mentioned in paragraph (a); and

                      (f)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (d) have a carbon dioxide equivalence of a particular number of tonnes;

the number is a netted‑out number of the first person for the eligible financial year in which the supply mentioned in paragraph (d) occurs.

Import duty

             (4)  For the purposes of this section, in determining whether import duty is or was payable on an amount of liquid petroleum fuel, disregard:

                     (a)  any remission, rebate or refund under section 163 of the Customs Act 1901; or

                     (b)  any drawback under regulations made for the purposes of subsection 168(1) of the Customs Act 1901;

unless the remission, rebate, refund or drawback is prescribed by regulations made for the purposes of subsection 31(4).

Excise duty

             (5)  For the purposes of this section, in determining whether excise duty is or was payable on an amount of liquid petroleum fuel, disregard:

                     (a)  any remission, rebate or refund under section 78 of the Excise Act 1901; or

                     (b)  any drawback under regulations made for the purposes of section 79 of the Excise Act 1901;

unless the remission, rebate, refund or drawback is prescribed by regulations made for the purposes of subsection 32(4).

33  Liable entity—supply of untransformed eligible upstream fuel (other than liquid petroleum fuel)

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person (the supplier) supplies an amount of eligible upstream fuel to another person; and

                     (b)  the fuel is not the result of the carrying out by the supplier of the recognised transformation of another type of eligible upstream fuel; and

                     (c)  the fuel is not liquid petroleum fuel; and

                     (d)  if the fuel is imported—the supply is the first supply of the fuel after the fuel was entered for home consumption; and

                     (e)  if the fuel is not imported—the fuel was not supplied in Australia to the supplier; and

                      (f)  the other person did not quote the other person’s OTN in relation to the supply mentioned in paragraph (a); and

                    (fa)  the supply mentioned in paragraph (a) was not into a prescribed wholesale gas market; and

                     (g)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the supplier for the eligible financial year.

Note:          See also section 37A, which deals with the exclusion of exported fuel.

Liable entity

             (3)  For the purposes of this Act, the supplier is a liable entity for the eligible financial year.

33A  Liable entity—re‑supply of natural gas previously supplied out of a prescribed wholesale gas market

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person (the supplier) re‑supplies an amount of natural gas to another person; and

                     (b)  the gas was supplied to the supplier out of a prescribed wholesale gas market; and

                     (c)  the re‑supply was not into a prescribed wholesale gas market; and

                     (d)  the other person did not quote the other person’s OTN in relation to the re‑supply; and

                     (e)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the supplier for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the supplier is a liable entity for the eligible financial year.

34  Liable entity—application to own use of untransformed eligible upstream fuel (other than liquid petroleum fuel)

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person applies an amount of eligible upstream fuel to the person’s own use; and

                     (b)  greenhouse gas was released into the atmosphere as a result of the application to own use; and

                     (c)  the fuel is not the result of the carrying out by the person of the recognised transformation of another type of eligible upstream fuel; and

                     (d)  the fuel is not liquid petroleum fuel; and

                     (e)  if the fuel is imported:

                              (i)  the application to own use occurred after the fuel was entered for home consumption; and

                             (ii)  no supply of the fuel occurred after the fuel was entered for home consumption; and

                      (f)  if the fuel is not imported:

                              (i)  the fuel was not supplied in Australia to the person; or

                             (ii)  the fuel was supplied to the person out of a prescribed wholesale gas market; and

                     (g)  the greenhouse gas mentioned in paragraph (b) does not count for the purposes of subsection 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1); and

                     (h)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

35  Liable entity—supply of transformed eligible upstream fuel

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person (the supplier) supplies an amount of eligible upstream fuel to another person; and

                     (b)  the fuel is the result of the carrying out by the supplier of the recognised transformation of another type of eligible upstream fuel; and

                     (c)  the other person did not quote the other person’s OTN in relation to the supply mentioned in paragraph (a); and

                    (ca)  the supply mentioned in paragraph (a) was not into a prescribed wholesale gas market; and

                     (d)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the supplier for the eligible financial year.

Note:          See also section 37A, which deals with the exclusion of exported fuel.

Liable entity

             (3)  For the purposes of this Act, the supplier is a liable entity for the eligible financial year.

36  Liable entity—application of transformed eligible upstream fuel to own use

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person applies an amount of eligible upstream fuel to the person’s own use; and

                     (b)  greenhouse gas was released into the atmosphere as a result of the application to own use; and

                     (c)  the fuel is the result of the carrying out by the person of the recognised transformation of another type of eligible upstream fuel; and

                     (d)  the fuel was not supplied in Australia to the person; and

                     (e)  the greenhouse gas mentioned in paragraph (b) does not count for the purposes of subsection 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1); and

                      (f)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the person for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the person is a liable entity for the eligible financial year.

37  Liable entity—re‑supply of eligible upstream fuel

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the OTN holder) who quotes the other person’s OTN in relation to the supply; and

                     (b)  during that or a later eligible financial year, the OTN holder re‑supplies the whole or a part of that amount to a third person; and

                    (ba)  the re‑supply was not into a prescribed wholesale gas market; and

                     (c)  the third person does not quote the third person’s OTN in relation to the re‑supply; and

                     (d)  the potential greenhouse gas emissions embodied in the amount re‑supplied have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the OTN holder for the eligible financial year in which the re‑supply occurs.

Note:          See also section 37A, which deals with the exclusion of exported fuel.

Liable entity

             (3)  For the purposes of this Act, the OTN holder is a liable entity for the eligible financial year in which the re‑supply occurs.

37A  Exclusion of exported eligible upstream fuel

Object

             (1)  The object of this section is to ensure that there is no liability under the carbon pollution reduction scheme for exported eligible upstream fuel.

Reduction of provisional emissions numbers—section 33 or 35

             (2)  If:

                     (a)  under section 33 or 35, or both, a person (the supplier) has one or more provisional emissions numbers for an eligible financial year; and

                     (b)  the supplier has one or more netted‑out numbers for the eligible financial year;

the total of those provisional emissions numbers is to be reduced (but not below zero) by the total of those netted‑out numbers.

             (3)  For the purposes of subsection (2), if:

                     (a)  during an eligible financial year, the supplier supplied an amount of eligible upstream fuel to another person (the recipient); and

                     (b)  as a result of the supply, the supplier has, under section 33 or 35, a provisional emissions number for the eligible financial year; and

                     (c)  after the supply, the supplier or recipient exported the fuel; and

                     (d)  the fuel has been entered for export (within the meaning of section 113 of the Customs Act 1901); and

                     (e)  the supplier has prescribed documentary evidence to show that the fuel was exported; and

                      (f)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes;

the number mentioned in paragraph (f) is a netted‑out number of the supplier for the eligible financial year.

Reduction of provisional emissions numbers—section 37

             (4)  If:

                     (a)  under section 37, a person (the OTN holder) has one or more provisional emissions numbers for an eligible financial year; and

                     (b)  the OTN holder has one or more netted‑out numbers for the eligible financial year;

the total of those provisional emissions numbers is to be reduced (but not below zero) by the total of those netted‑out numbers.

             (5)  For the purposes of subsection (4), if:

                     (a)  during an eligible financial year, the OTN holder re‑supplied an amount of eligible upstream fuel to another person (the recipient); and

                     (b)  as a result of the re‑supply, the OTN holder has, under section 37, a provisional emissions number for the eligible financial year; and

                     (c)  after the re‑supply, the OTN holder or the recipient exported the fuel; and

                     (d)  the fuel has been entered for export (within the meaning of section 113 of the Customs Act 1901); and

                     (e)  the OTN holder has prescribed documentary evidence to show that the fuel was exported; and

                      (f)  the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a carbon dioxide equivalence of a particular number of tonnes;

the number mentioned in paragraph (f) is a netted‑out number of the OTN holder for the eligible financial year.

38  Liable entity—application of eligible upstream fuel to OTN holder’s own use

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies 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)  during that or a later eligible financial year, the recipient applied the whole or a part of the amount of the fuel to the recipient’s own use; and

                     (d)  greenhouse gas was released into the atmosphere as a result of the application to own use; and

                     (e)  the greenhouse gas mentioned in paragraph (d) does not count for the purposes of subsection 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1); and

                      (f)  the potential greenhouse gas emissions embodied in the amount applied to the recipient’s own use have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the recipient for the eligible financial year in which the amount was applied to the recipient’s own use.

Liable entity

             (3)  For the purposes of this Act, the recipient is a liable entity for the eligible financial year in which the amount was applied to the recipient’s own use.

39  Liable entity—application of transformed eligible upstream fuel to OTN holder’s own use

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies 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)  during that or a later eligible financial year, the recipient applied the whole or a part of the amount of another type of eligible upstream fuel to the recipient’s own use; and

                     (d)  greenhouse gas was released into the atmosphere as a result of the application to own use; and

                     (e)  the fuel mentioned in paragraph (c) is the result of the carrying out by the recipient of the recognised transformation of the fuel mentioned in paragraph (a); and

                      (f)  the greenhouse gas mentioned in paragraph (d) does not count for the purposes of subsection 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1); and

                     (g)  the potential greenhouse gas emissions embodied in the amount applied to the recipient’s own use have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the recipient for the eligible financial year in which the amount was applied to the recipient’s own use.

Liable entity

             (3)  For the purposes of this Act, the recipient is a liable entity for the eligible financial year in which the amount was applied to the recipient’s own use.

40  Liable entity—supply of eligible upstream fuel to a person who misuses the person’s OTN

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the OTN holder) who quotes the other person’s OTN in relation to the supply; and

                     (b)  the OTN holder was not required or permitted by this Act to quote the OTN holder’s OTN; and

                     (c)  the potential greenhouse gas emissions embodied in the supplied amount have a carbon dioxide equivalence of a particular number of tonnes.

Provisional emissions number

             (2)  For the purposes of this Act, that number is a provisional emissions number of the OTN holder for the eligible financial year.

Liable entity

             (3)  For the purposes of this Act, the OTN holder is a liable entity for the eligible financial year.


 

Division 5Obligation transfer numbers

Subdivision AIssue of obligation transfer numbers

41  Issue of OTN

                   An OTN may be issued in one of the following ways:

                     (a)  as the result of an application (see section 44);

                     (b)  on the Authority’s own initiative (see section 45).

42  Application for OTN

             (1)  A person may apply to the Authority for the issue to the person of an OTN.

             (2)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by:

                              (i)  such information as is specified in the regulations; and

                             (ii)  such documents (if any) as are specified in the regulations; and

                     (d)  be accompanied by the fee (if any) specified in the regulations.

             (3)  The approved form of application may provide for verification by statutory declaration of statements in applications.

43  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

44  Issue of OTN as the result of an application

Scope

             (1)  This section applies if an application under section 42 has been made for an OTN.

Issue of OTN

             (2)  After considering the application, the Authority may issue an OTN to the applicant.

Criteria for issue of OTN

             (3)  The Authority must not issue the OTN unless:

                     (a)  the Authority is satisfied that the applicant is, or is likely to be, required or permitted by this Act to quote the person’s OTN in relation to the supply to the person of an amount of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas; and

                     (b)  the Authority has carried out the applicable identification procedure in respect of the applicant.

Timing

             (4)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 43(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (5)  If the Authority decides to refuse to issue the OTN, the Authority must give written notice of the decision to the applicant.

45  Issue of OTN on the Authority’s own initiative

Scope

             (1)  This section applies if:

                     (a)  the Authority is satisfied that a person is, or is likely to be, required or permitted by this Act to quote the person’s OTN in relation to the supply to the person of an amount of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas; and

                     (b)  the Authority has carried out the applicable identification procedure in respect of the person.

Issue of OTN

             (2)  The Authority may, by written notice given to the person, issue an OTN to the person.

46  Surrender of OTN

Scope

             (1)  This section applies if a person is the holder of an OTN.

Surrender

             (2)  The person may, with the written consent of the Authority, surrender the OTN.

             (3)  The surrender takes effect when the consent is given by the Authority.

             (4)  The Authority must not give consent to the surrender of the OTN unless the Authority is satisfied that the person is not required, and is unlikely to be required, by this Act to quote the OTN in relation to the supply to the person of an amount of:

                     (a)  eligible upstream fuel; or

                     (b)  synthetic greenhouse gas.

47  Cancellation of OTN

             (1)  If a person holds an OTN, the Authority may, by written notice given to the person, cancel the OTN.

             (2)  The Authority must not cancel a person’s OTN under subsection (1) unless the Authority is satisfied that:

                     (a)  the person is not required or permitted, and is unlikely to be required or permitted, by this Act to quote the OTN in relation to the supply to the person of an amount of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas; or

                     (b)  the person has breached this Act or an associated provision.

             (3)  If:

                     (a)  a person has ceased to exist; and

                     (b)  immediately before the person ceased to exist, the person held an OTN;

the Authority must cancel the OTN.

48  OTN is not transferable

                   An OTN is not transferable.

49  OTN Register

             (1)  The Authority must keep a register, to be known as the OTN Register.

             (2)  The OTN Register is to be maintained by electronic means.

             (3)  The OTN Register is to be made available for inspection on the Authority’s website.

Entry for an OTN

             (4)  If an OTN is issued to a person, the Authority must make an entry for the OTN in the OTN Register.

             (5)  An entry for a person’s OTN must set out:

                     (a)  the name of the person; and

                     (b)  the person’s address last known to the Authority; and

                     (c)  if the person has an ABN—the person’s ABN.

             (6)  If:

                     (a)  there is an entry for a person’s OTN in the OTN Register; and

                     (b)  the person changes the person’s name or address;

the Authority may make the appropriate alteration to the entry.

Removal of entry for an OTN

             (7)  If an OTN is surrendered or cancelled, the Authority must remove the entry for the OTN from the OTN Register.

50  Evidentiary provisions

             (1)  The Authority may supply a copy of or extract from the OTN Register certified by an official of the Authority to be a true copy or true extract, as the case may be.

             (2)  The certified copy or extract is admissible in evidence in all courts and proceedings without further proof or production of the original.

             (3)  The Authority may charge a fee specified in the regulations for supplying a copy or extract under subsection (1).

             (4)  A fee specified under subsection (3) must not be such as to amount to taxation.

50A  Notification of change of name or address of OTN holder

             (1)  If:

                     (a)  there is an entry for a person’s OTN in the OTN Register; and

                     (b)  either:

                              (i)  there is a change in the name of the person; or

                             (ii)  there is a change to the person’s address as set out in the OTN Register;

the person must, within 14 days after the change, notify the Authority, in writing, of the change.

Civil penalty provision

             (2)  Subsection (1) is a civil penalty provision.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Subdivision BMethods of quotation of obligation transfer numbers

51  Quotation of OTN

                   If a person (the OTN holder) is the holder of an OTN, the OTN holder quotes the OTN to another person (the supplier) in relation to:

                     (a)  a particular supply of eligible upstream fuel by the supplier to the OTN holder; or

                     (b)  a particular supply of synthetic greenhouse gas by the supplier to the OTN holder;

if:

                     (c)  both:

                              (i)  the OTN holder has made a one‑off quotation of the OTN to the supplier in relation to the supply; and

                             (ii)  the quotation has not been withdrawn before the supply occurred; or

                     (d)  all of the following conditions are satisfied:

                              (i)  the OTN holder has made a standing quotation of the OTN to the supplier in relation to a class of supplies;

                             (ii)  the supply is included in that class;

                            (iii)  the quotation has not been withdrawn before the supply occurred.

Note 1:       For one‑off quotation, see section 51A.

Note 2:       For standing quotation, see section 51B.

51A  One‑off quotation of OTN

One‑off quotation

             (1)  If a person (the OTN holder) holds an OTN, the OTN holder makes a one‑off quotation of the OTN to another person (the supplier) in relation to:

                     (a)  a particular supply of eligible upstream fuel by the supplier to the OTN holder; or

                     (b)  a particular supply of synthetic greenhouse gas by the supplier to the OTN holder;

if:

                     (c)  the OTN holder makes a statement to the supplier in connection with the supply; and

                     (d)  the statement is in writing; and

                     (e)  the statement sets out:

                              (i)  the words “quotation of OTN” followed by the OTN; and

                             (ii)  the name of the OTN holder; and

                            (iii)  if the OTN holder has an ABN—the ABN; and

                            (iv)  a description of the supply; and

                             (v)  an indication as to whether the quotation is a mandatory quotation or a voluntary quotation; and

                            (vi)  such other information (if any) as is specified in the regulations.

Note 1:       For example, if the first person’s OTN is 123456, a statement could include the words “quotation of OTN 123456”.

Note 2:       See also sections 65 and 66 (rejection of quotation of OTN).

Note 3:       See also section 66A (unauthorised mandatory quotation of OTN).

             (2)  A statement under subsection (1) may be included in a contract, order or similar document, whether or not in electronic form.

51B  Standing quotation of OTN

Standing quotation

             (1)  If a person (the OTN holder) holds an OTN, the OTN holder makes a standing quotation of the OTN to another person (the supplier) in relation to:

                     (a)  a particular class of supplies of eligible upstream fuel by the supplier to the OTN holder; or

                     (b)  a particular class of supplies of synthetic greenhouse gas by the supplier to the OTN holder;

if:

                     (c)  the OTN holder makes a statement to the supplier in connection with the class of supplies; and

                     (d)  the statement is in writing; and

                     (e)  the statement sets out:

                              (i)  the words “quotation of OTN” followed by the OTN; and

                             (ii)  the name of the OTN holder; and

                            (iii)  if the OTN holder has an ABN—the ABN; and

                            (iv)  a description of the class of supplies; and

                             (v)  an indication as to whether the quotation is a mandatory quotation or a voluntary quotation; and

                            (vi)  such other information (if any) as is specified in the regulations.

Note 1:       For example, if the first person’s OTN is 123456, a statement could include the words “quotation of OTN 123456”.

Note 2:       See also sections 65 and 66 (rejection of quotation of OTN).

Note 3:       See also section 66A (unauthorised mandatory quotation of OTN).

             (2)  A statement under subsection (1) may be included in a contract, order or similar document, whether or not in electronic form.

51BA  Withdrawal of quotation of OTN if OTN is cancelled or surrendered

One‑off quotation

             (1)  If:

                     (a)  a person has made a one‑off quotation of the person’s OTN to a supplier; and

                     (b)  the OTN is cancelled or surrendered;

the one‑off quotation is taken to have been withdrawn when the cancellation or surrender takes effect.

Standing quotation

             (2)  If:

                     (a)  a person has made a standing quotation of the person’s OTN to a supplier; and

                     (b)  the OTN is cancelled or surrendered;

the standing quotation is taken to have been withdrawn when the cancellation or surrender takes effect.

51C  Withdrawal of standing quotation of OTN by OTN holder

                   If:

                     (a)  a person (the OTN holder) has made a standing quotation of the OTN holder’s OTN to a supplier in relation to a class of supplies; and

                     (b)  the OTN holder ceases to be required or permitted by this Act to quote the OTN holder’s OTN in relation to those supplies;

the OTN holder may, by written notice given to the supplier, withdraw the standing quotation of the OTN.

51D  Withdrawal of quotation of OTN by agreement

                   If:

                     (a)  a person (the OTN holder) has made a standing quotation of the OTN holder’s OTN to a supplier; and

                     (b)  the supplier agrees to the withdrawal of the standing quotation;

the OTN holder may, by written notice given to the supplier, withdraw the standing quotation.

51E  Validation of quotation of OTN

             (1)  If:

                     (a)  a person (the OTN holder) has purported to quote a number as the OTN holder’s OTN to another person (the supplier) in relation to the supply of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas; and

                     (b)  the purported quotation was due to an honest mistake; and

                     (c)  the Authority is satisfied that it would be reasonable to validate the quotation;

the Authority may, by writing, determine that this Act (other than this section) has, and is taken always to have had, effect as if the OTN holder had quoted the OTN holder’s OTN in relation to the supply.

             (2)  The Authority must give a copy of the determination to:

                     (a)  the OTN holder; and

                     (b)  the supplier.

             (3)  A determination made under subsection (1) is not a legislative instrument.

51F  Effect of surrender or cancellation of OTN—grace period for standing quotation

Scope

             (1)  This section applies if:

                     (a)  a person’s OTN is surrendered or cancelled; and

                     (b)  immediately before the surrender or cancellation took effect, a standing quotation of the person’s OTN was in effect in relation to a class of supplies; and

                     (c)  the standing quotation had been acknowledged by the supplier to whom the quotation was made.

Grace period

             (2)  This Act has effect, in relation to a supply that:

                     (a)  is included in the class of supplies; and

                     (b)  occurs during the 7‑day period beginning when the surrender or cancellation took effect;

as if the person had:

                     (c)  held an OTN; and

                     (d)  quoted the OTN in relation to the supply;

unless, before the time of the supply, the person had notified the supplier of the surrender or cancellation.

51G  Effect of surrender or cancellation of OTN—grace period for one‑off quotation

Scope

             (1)  This section applies if:

                     (a)  a person’s OTN is surrendered or cancelled; and

                     (b)  immediately before the surrender or cancellation took effect, a one‑off quotation of the person’s OTN was in effect in relation to a supply; and

                     (c)  the one‑off quotation had been acknowledged by the supplier to whom the quotation was made.

Grace period

             (2)  If the supply occurs during the 7‑day period beginning when the surrender or cancellation took effect, this Act has effect, in relation to the supply, as if the person had:

                     (a)  held an OTN; and

                     (b)  quoted the OTN in relation to the supply;

unless, before the time of the supply, the person had notified the supplier of the surrender or cancellation.

Subdivision CMandatory quotation of obligation transfer numbers

52  Mandatory quotation of OTN—large user of eligible upstream fuel

             (1)  If:

                     (a)  during an eligible financial year, a person supplies an amount of a particular type of eligible upstream fuel (other than liquid petroleum fuel) to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  either:

                              (i)  a facility was under the operational control of the recipient throughout the previous financial year; or

                             (ii)  a facility was under the operational control of the recipient for a number of, but not all, days in the previous financial year (the control days); and

                     (c)  the fuel is for use in the facility; and

                     (d)  so much of the total amount of greenhouse gases emitted from the operation of the facility:

                              (i)  if subparagraph (b)(i) applies—during the previous financial year; or

                             (ii)  if subparagraph (b)(ii) applies—during the control days;

                            as is attributable to the combustion of that type of eligible upstream fuel has a carbon dioxide equivalence of at least:

                            (iii)  if subparagraph (b)(i) applies—25,000 tonnes; or

                            (iv)  if subparagraph (b)(ii) applies—the amount worked out using the formula:

the recipient must quote the recipient’s OTN in relation to the supply.

Ancillary contraventions

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Liability transfer certificate

             (4)  For the purposes of this section, if a person (the certificate holder) was the holder of a liability transfer certificate in relation to a facility on a particular day:

                     (a)  the facility is taken to have been under the operational control of the certificate holder on that day; and

                     (b)  the facility is taken not to have been under the operational control of any other person on that day.

53  Mandatory quotation of OTN—re‑supplier of natural gas

             (1)  If:

                     (a)  during an eligible financial year, a person supplies an amount of natural gas to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  the recipient carries on a business of re‑supplying natural gas;

the recipient must quote the recipient’s OTN in relation to the supply.

Ancillary contraventions

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

54  Mandatory quotation of OTN—liquid petroleum gas marketer

             (1)  If:

                     (a)  during an eligible financial year, a person supplies an amount of liquid petroleum gas to another person (the recipient); and

                     (b)  the recipient is a liquid petroleum gas marketer;

the recipient must quote the recipient’s OTN in relation to the supply.

Ancillary contraventions

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

55  Mandatory quotation of OTN—use of certain fuels as a feedstock

             (1)  If:

                     (a)  during an eligible financial year, a person supplies an amount of any of the following types of eligible upstream fuel to another person (the recipient):

                              (i)  liquid petroleum gas;

                             (ii)  refinery grade propene (propylene);

                            (iii)  ethane; and

                     (b)  the recipient carries on a business that involves using the fuel as a feedstock;

the recipient must quote the recipient’s OTN in relation to the supply.

Ancillary contraventions

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Subdivision DVoluntary quotation of obligation transfer numbers

56  Voluntary quotation of OTN—large user of eligible upstream fuel

             (1)  If:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  at the time of the supply, a facility is under the operational control of the recipient; and

                     (c)  so much of the total amount of greenhouse gases emitted from the operation of the facility during the previous eligible financial year as is attributable to the combustion of any one type of eligible upstream fuel has a carbon dioxide equivalence of at least the number of tonnes specified in the regulations;

the recipient may quote the recipient’s OTN in relation to the supply.

             (2)  If:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  at the time of the supply, a facility is under the operational control of the recipient; and

                     (c)  the recipient is an approved person for the purposes of the application of this subsection to the eligible financial year;

the recipient may quote the recipient’s OTN in relation to the supply.

Note:          For approved person, see subsection (6).

Approved person

             (3)  A person may apply to the Authority to be an approved person for the purposes of the application of subsection (2) to a specified eligible financial year.

             (4)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations.

             (5)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (6)  After considering an application under subsection (3), the Authority may, by written notice given to the applicant, declare that the applicant is an approved person for the purposes of the application of subsection (2) to the eligible financial year specified in the application.

             (7)  The Authority must not declare the applicant is an approved person for the purposes of the application of subsection (2) to an eligible financial year unless the Authority is satisfied that it is likely that so much of the total amount of greenhouse gases emitted from the operation of the facility during the eligible financial year as is attributable to the combustion of eligible upstream fuel will have a carbon dioxide equivalence of least the number of tonnes specified in the regulations.

             (8)  If the Authority decides to refuse to approve the applicant, the Authority must give written notice of the decision to the applicant.

Liability transfer certificate

             (9)  For the purposes of this section, if a person (the certificate holder) was the holder of a liability transfer certificate in relation to a facility on a particular day:

                     (a)  the facility is taken to have been under the operational control of the certificate holder on that day; and

                     (b)  the facility is taken not to have been under the operational control of any other person on that day.

58  Voluntary quotation of OTN—use of fuel in manufacturing other products etc.

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  the recipient carries on:

                              (i)  a business that involves using the fuel (otherwise than by way of combustion) to manufacture a product; or

                             (ii)  a business that involves consuming the fuel (otherwise than by way of combustion);

the recipient may quote the recipient’s OTN in relation to the supply.

59  Voluntary quotation of OTN—transformation of fuel

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  the recipient carries on a business that involves the recognised transformation of the fuel into another type of eligible upstream fuel;

the recipient may quote the recipient’s OTN in relation to the supply.

60  Voluntary quotation of OTN—export or re‑supply of eligible upstream fuel

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the recipient); and

                    (aa)  the supply was not out of a prescribed wholesale gas market; and

                     (b)  the recipient carries on a business that involves exporting or re‑supplying eligible upstream fuel;

the recipient may quote the recipient’s OTN in relation to the supply.

63  Voluntary quotation of OTN—re‑supply of synthetic greenhouse gas

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of synthetic greenhouse gas to another person (the recipient); and

                     (b)  the recipient carries on a business of re‑supplying synthetic greenhouse gas; and

                     (c)  the amount of synthetic greenhouse gas mentioned in paragraph (a) is to be re‑supplied by the recipient during that or a later eligible financial year to a third person who is:

                              (i)  permitted by another application of this section to quote the third person’s OTN in relation to the re‑supply; or

                             (ii)  permitted by section 64 to quote the third person’s OTN in relation to the re‑supply;

the recipient may quote the recipient’s OTN in relation to the supply mentioned in paragraph (a).

64  Voluntary quotation of OTN—export or re‑supply of synthetic greenhouse gas

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of synthetic greenhouse gas to another person (the recipient); and

                     (b)  the recipient carries on a business that involves exporting synthetic greenhouse gas; and

                     (c)  the amount of synthetic greenhouse gas mentioned in paragraph (a) is to be exported or re‑supplied by the recipient during that or a later eligible financial year;

the recipient may quote the recipient’s OTN in relation to the supply mentioned in paragraph (a).

64AA  Voluntary quotation of OTN—use of synthetic greenhouse gas as a feedstock

                   If:

                     (a)  during an eligible financial year, a person supplies an amount of synthetic greenhouse gas to another person (the recipient); and

                     (b)  the recipient carries on a business that involves using the gas as a feedstock;

the recipient may quote the recipient’s OTN in relation to the supply.

Subdivision EGeneral provisions

64A  Acknowledgement of one‑off quotation of OTN

Scope

             (1)  This section applies if a person (the OTN holder) makes a one‑off quotation of the OTN holder’s OTN to another person (the supplier) in relation to a particular supply.

Acknowledgement of quotation of OTN

             (2)  If the OTN holder is required by this Act to quote the OTN holder’s OTN in relation to the supply, the supplier must, by written notice given to the OTN holder, acknowledge the quotation.

             (3)  If the OTN holder is permitted (but not required) by this Act to quote the OTN holder’s OTN in relation to the supply, the supplier may, by written notice given to the OTN holder, acknowledge the quotation unless the quotation is rejected under section 66.

             (4)  If the supplier does not acknowledge the quotation, this Act (other than this section) has effect as if the OTN holder had not quoted the OTN holder’s OTN in relation to the supply.

64B  Acknowledgement of standing quotation of OTN

Scope

             (1)  This section applies if a person (the OTN holder) makes a standing quotation of the OTN holder’s OTN to another person (the supplier) in relation to a particular class of supplies.

Acknowledgement of quotation of OTN

             (2)  If the OTN holder is required by this Act to quote the OTN holder’s OTN in relation to each supply included in the class of supplies, the supplier must, by written notice given to the OTN holder, acknowledge the quotation.

             (3)  If the OTN holder is permitted (but not required) by this Act to quote the OTN holder’s OTN in relation to each supply included in the class of supplies, the supplier may, by written notice given to the OTN holder, acknowledge the quotation.

             (4)  If the supplier does not acknowledge the quotation, this Act (other than this section) has effect as if the OTN holder had not quoted the OTN holder’s OTN in relation to each supply included in the class of supplies.

65  Rejection of quotation of OTN—re‑supply of eligible upstream fuel

Scope

             (1)  This section applies if:

                     (a)  during an eligible financial year, a person supplies an amount of eligible upstream fuel to another person (the second person) who does not quote the second person’s OTN in relation to the supply; and

                     (b)  during that or a later eligible financial year, the second person re‑supplies the whole or a part of that amount to a third person; and

                     (c)  the third person quotes the third person’s OTN in relation to the re‑supply; and

                     (d)  the third person is permitted, but not required, by this Act to quote the third person’s OTN in relation to the re‑supply.

Rejection of quotation

             (2)  The second person must, in accordance with the regulations, reject the quotation of the third person’s OTN to the extent to which it relates to the re‑supply.

             (3)  If the quotation of the third person’s OTN is rejected, this Act (other than this section and sections 67 and 304) has effect as if the third person had not quoted the third person’s OTN in relation to the re‑supply.

Ancillary contraventions

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

                     (d)  conspire with others to effect a contravention of subsection (2).

Civil penalty provisions

             (5)  Subsections (2) and (4) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

66  Rejection of voluntary quotation of OTN

Scope

             (1)  This section applies if:

                     (a)  a person (the supplier) supplies an amount of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas;

                            to another person (the recipient); and

                     (b)  the recipient makes a one‑off quotation of the recipient’s OTN in relation to the supply; and

                     (c)  the recipient is not required to quote the recipient’s OTN in relation to the supply.

Rejection of quotation

             (2)  The supplier may, in accordance with the regulations, reject the quotation of the recipient’s OTN in relation to the supply.

             (3)  If the quotation of the recipient’s OTN is rejected, this Act (other than this section and sections 67 and 304) has effect as if the recipient had not quoted the recipient’s OTN in relation to the supply.

66A  Unauthorised mandatory quotation of OTN

One‑off quotation

             (1)  If a person makes a one‑off quotation of the person’s OTN in relation to a supply, the person must not include in the quotation an indication that the quotation is a mandatory quotation unless the person is or will be required by this Act to quote the person’s OTN in relation to the supply.

Standing quotation

             (2)  If a person makes a standing quotation of the person’s OTN in relation to a class of supplies, the person must not include in the quotation an indication that the quotation is a mandatory quotation unless the person is or will be required by this Act to quote the person’s OTN in relation to each supply included in the class of supplies.

Ancillary contraventions

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1) or (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (2); or

                     (d)  conspire with others to effect a contravention of subsection (1) or (2).

Civil penalty provisions

             (4)  Subsections (1), (2) and (3) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

67  Misuse of OTN

             (1)  A person must not quote the person’s OTN in relation to the supply of:

                     (a)  eligible upstream fuel; or

                     (b)  synthetic greenhouse gas;

unless the person is required or permitted to do so by this Act.

Ancillary contraventions

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Consequences of misuse of OTN

             (4)  If:

                     (a)  a person quotes the person’s OTN in relation to the supply of:

                              (i)  eligible upstream fuel; or

                             (ii)  synthetic greenhouse gas; and

                     (b)  the quotation breaches subsection (1); and

                     (c)  the quotation was not rejected by the person who supplied the fuel or gas;

the following provisions have effect:

                     (d)  the breach does not affect the validity of any transaction;

                     (e)  this Part (other than this section and sections 29 and 40) has effect as if the quotation had been authorised under this Act.

Note:          See also sections 29 and 40.

68  Quotation of bogus OTN

Quotation of bogus OTN

             (1)  A person must not purport to quote a number as the person’s OTN in relation to the supply of:

                     (a)  eligible upstream fuel; or

                     (b)  synthetic greenhouse gas;

if the number is not the person’s OTN.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

Supply to a person who quotes a bogus OTN

             (3)  A person must not supply:

                     (a)  eligible upstream fuel; or

                     (b)  synthetic greenhouse gas;

to another person (the recipient) if:

                     (c)  the recipient purports to quote a number as the recipient’s OTN in relation to the supply; and

                     (d)  the number is not shown in the OTN Register as the recipient’s OTN.

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (3); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

                     (d)  conspire with others to effect a contravention of subsection (3).

Civil penalty provisions

             (5)  Subsections (1), (2), (3) and (4) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.


 

Division 6Liability transfer certificates

Subdivision ATransfer of liability to another member of a controlling corporation’s group

69  Category A transfer test

                   A company passes the category A transfer test in relation to a facility if:

                     (a)  the company is a member of a controlling corporation’s group; and

                     (b)  the company is registered as a company under Part 2A.2 of the Corporations Act 2001; and

                     (c)  the facility is under the operational control of a member of the group (other than the controlling corporation).

70  Application for liability transfer certificate

Scope

             (1)  This section applies if a company passes the category A transfer test in relation to a facility.

Application

             (2)  The company may, with the written consent of the controlling corporation mentioned in section 69, apply to the Authority for the issue to the company of a liability transfer certificate in relation to the facility.

Form of application

             (3)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by:

                              (i)  the consent of the controlling corporation mentioned in section 69 to the making of the application; and

                             (ii)  such information as is specified in the regulations; and

                            (iii)  such documents (if any) as are specified in the regulations.

             (4)  The approved form of application may provide for verification by statutory declaration of statements in applications.

71  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

72  Issue of liability transfer certificate

Scope

             (1)  This section applies if an application under section 70 has been made for a liability transfer certificate in relation to a facility.

Issue of certificate

             (2)  After considering the application, the Authority may issue to the applicant a liability transfer certificate in relation to the facility.

Criteria for issue of certificate

             (3)  The Authority must not issue the liability transfer certificate unless the Authority is satisfied that:

                     (a)  the applicant passes the category A transfer test in relation to the facility; and

                     (b)  the applicant has, and is likely to continue to have:

                              (i)  the capacity; and

                             (ii)  the access to information; and

                            (iii)  the financial resources;

                            necessary for it to comply with obligations that will be imposed on the applicant by the following laws:

                            (iv)  this Act;

                             (v)  the regulations;

                            (vi)  the National Greenhouse and Energy Reporting Act 2007;

                            if the certificate is issued; and

                     (c)  if the regulations specify one or more other requirements—those requirements are met.

Timing

             (4)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 71(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (5)  If the Authority decides to refuse to issue the liability transfer certificate, the Authority must give written notice of the decision to the applicant.

Subdivision BTransfer of liability to a person who has financial control of a facility

73  Category B transfer test

                   A person (the first person) passes the category B transfer test in relation to a facility if:

                     (a)  the facility is under the operational control of another person (the operator); and

                     (b)  the first person has financial control over the facility; and

                     (c)  the first person is not an individual; and

                     (d)  the first person is not a foreign person; and

                     (e)  if the first person is a member of a controlling corporation’s group—the operator is not a member of the group.

Note:          For financial control, see section 81.

74  Application for liability transfer certificate

Scope

             (1)  This section applies if a person passes the category B transfer test in relation to a facility.

Application

             (2)  The person may apply to the Authority for the issue to the person of a liability transfer certificate in relation to the facility.

          (2A)  The person is not entitled to make an application unless the person has the written consent of:

                     (a)  if the person who has operational control over the facility:

                              (i)  is a member of a controlling corporation’s group; and

                             (ii)  is not the controlling corporation;

                            the controlling corporation; or

                     (b)  otherwise—the person who has operational control over the facility.

             (3)  If the person:

                     (a)  is a member of a controlling corporation’s group; and

                     (b)  is not the controlling corporation of the group;

the person is not entitled to make an application unless the person has the written consent of the controlling corporation of the group.

Form of application

             (4)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by:

                              (i)  if paragraph (2A)(a) applies—the consent of the controlling corporation mentioned in paragraph (2A)(a) to the making of the application; and

                             (ii)  if paragraph (2A)(b) applies—the consent of the person mentioned in paragraph (2A)(b) to the making of the application; and

                            (iii)  if subsection (3) applies—the consent of the controlling corporation mentioned in subsection (3) to the making of the application; and

                            (iv)  such information as is specified in the regulations; and

                             (v)  such documents (if any) as are specified in the regulations.

             (5)  The approved form of application may provide for verification by statutory declaration of statements in applications.

75  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

76  Issue of liability transfer certificate

Scope

             (1)  This section applies if an application under section 74 has been made for a liability transfer certificate in relation to a facility.

Issue of certificate

             (2)  After considering the application, the Authority may issue to the applicant a liability transfer certificate in relation to the facility.

Criteria for issue of certificate

             (3)  The Authority must not issue the liability transfer certificate unless the Authority is satisfied that:

                     (a)  the applicant passes the category B transfer test in relation to the facility; and

                     (b)  the applicant has, and is likely to continue to have:

                              (i)  the capacity; and

                             (ii)  the access to information; and

                            (iii)  the financial resources;

                            necessary for it to comply with obligations that will be imposed on the applicant by the following laws:

                            (iv)  this Act;

                             (v)  the regulations;

                            (vi)  the National Greenhouse and Energy Reporting Act 2007;

                            if the certificate is issued; and

                     (c)  if the regulations specify one or more other requirements—those requirements are met.

Timing

             (4)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 75(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (5)  If the Authority decides to refuse to issue the liability transfer certificate, the Authority must give written notice of the decision to the applicant.

Subdivision COther provisions

77  Duration of liability transfer certificate

             (1)  A liability transfer certificate comes into force on the day specified in the certificate as the day on which the certificate is to come into force (the start day).

             (2)  The start day may be earlier than the day on which the certificate is issued, so long as:

                     (a)  the start day occurs in the same financial year as the day on which the certificate is issued; and

                     (b)  each of the following has consented to the specification of the start day:

                              (i)  the applicant;

                             (ii)  in the case of a certificate issued under section 72, where a controlling corporation consented under subsection 70(2) to the making of the application for the certificate—the controlling corporation;

                            (iii)  in the case of a certificate issued under section 76, where a controlling corporation consented under paragraph 74(2A)(a) to the making of the application for the certificate—the controlling corporation;

                            (iv)  in the case of a certificate issued under section 76, where a person consented under paragraph 74(2A)(b) to the making of the application for the certificate—the person;

                             (v)  in the case of a certificate issued under section 76, where a controlling corporation consented under subsection 74(3) to the making of the application for the certificate—the controlling corporation.

             (3)  A liability transfer certificate issued remains in force indefinitely.

             (4)  Subsection (3) has effect subject to this Division.

78  Surrender of liability transfer certificate

Scope

             (1)  This section applies if a person is the holder of a liability transfer certificate in relation to a facility.

Surrender

             (2)  The person may, with the written consent of the Authority, surrender the certificate.

             (3)  The surrender takes effect when the consent is given by the Authority.

Consent to surrender

             (4)  The Authority must not consent to the surrender of the certificate unless:

                     (a)  in the case of a certificate issued under section 72, where a controlling corporation consented under subsection 70(2) to the making of the application for the certificate—the controlling corporation has agreed to the surrender of the certificate; and

                     (b)  in the case of a certificate issued under section 76, where a controlling corporation consented under paragraph 74(2A)(a) to the making of the application for the certificate—the controlling corporation has agreed to the surrender of the certificate; and

                     (c)  in the case of a certificate issued under section 76, where a person consented under paragraph 74(2A)(b) to the making of the application for the certificate—the person has agreed to the surrender of the certificate; and

                     (d)  either:

                              (i)  the certificate has been in force for at least 4 years; or

                             (ii)  the certificate has been in force for less than 4 years, but the Authority is satisfied that there are special circumstances that warrant the giving of consent to the surrender of the certificate.

79  Cancellation of liability transfer certificate

Scope

             (1)  This section applies if a person is the holder of a liability transfer certificate in relation to a facility.

Cancellation

             (2)  The Authority must, by written notice given to the person, cancel the certificate if:

                     (a)  in a case where the certificate was issued under section 72 to a company—the Authority is satisfied that:

                              (i)  the company does not pass the category A transfer test in relation to the facility; or

                             (ii)  if a controlling corporation of a group consented under subsection 70(2) to the making of the application for the certificate—the company is not a member of the group; or

                            (iii)  an amount payable by the company under section 133 remains unpaid more than 30 days after it became due for payment; or

                            (iv)  the company has become an externally‑administered body corporate (within the meaning of the Corporations Act 2001); or

                             (v)  if the regulations specify one or more other grounds for cancellation—at least one of those grounds is applicable to the company; or

                     (b)  in a case where the certificate was issued under section 76 to a person—the Authority is satisfied that:

                              (i)  the person does not pass the category B transfer test in relation to the facility concerned; or

                            (ia)  if a controlling corporation of a group consented under subsection 74(3) to the making of the application for the certificate—the person is not a member of the group; or

                             (ii)  an amount payable by the person under section 133 remains unpaid more than 30 days after it became due for payment; or

                            (iii)  the person has become an externally‑administered body corporate (within the meaning of the Corporations Act 2001); or

                            (iv)  if the regulations specify one or more other grounds for cancellation—at least one of those grounds is applicable to the person.

80  Liability transfer certificate is not transferable

                   A liability transfer certificate is not transferable.

81  Financial control

             (1)  For the purposes of this Act, if a person (the operator) has operational control over a facility, another person (the second person) has financial control over the facility if:

                     (a)  under a contract between:

                              (i)  the operator; and

                             (ii)  the second person;

                            the operator operates the facility on behalf of the second person; or

                     (b)  under a contract between:

                              (i)  the operator; and

                             (ii)  the second person and one or more other persons;

                            the operator operates the facility on behalf of the second person and those other persons; or

                     (c)  the second person is able to control the trading or financial relationships of the operator in relation to the facility; or

                    (ca)  the second person has the economic benefits from the facility; or

                    (cb)  all of the following conditions are satisfied:

                              (i)  the second person is a participant in a joint venture;

                             (ii)  there is one other participant in the joint venture;

                            (iii)  the second person shares the economic benefits from the facility with the other participant;

                            (iv)  the second person’s share equals or exceeds the share of the other participant; or

                    (cc)  all of the following conditions are satisfied:

                              (i)  the second person is a participant in a joint venture;

                             (ii)  there are 2 or more other participants in the joint venture;

                            (iii)  the second person shares the economic benefits from the facility with the other participants;

                            (iv)  no other participant has a share that exceeds the share of the second person; or

                    (cd)  all of the following conditions are satisfied:

                              (i)  the second person is a partner in a partnership;

                             (ii)  there is one other partner in the partnership;

                            (iii)  the second person shares the economic benefits from the facility with the other partner;

                            (iv)  the second person’s share equals or exceeds the share of the other partner; or

                     (d)  all of the following conditions are satisfied:

                              (i)  the second person is a partner in a partnership;

                             (ii)  there are 2 or more other partners in the partnership;

                            (iii)  the second person shares the economic benefits from the facility with the other partners;

                            (iv)  no other partner has a share that exceeds the share of the second person; or

                     (e)  the second person is able to direct or sell the output of the facility; or

                      (f)  under the regulations, the second person is taken to have financial control over the facility.

             (2)  In determining whether the second person has that financial control, regard must be had to the economic and commercial substance of the matters mentioned in subsection (1).


 

Part 4Emissions units

Division 1Introduction

82  Simplified outline

                   The following is a simplified outline of this Part:

•      The Authority may issue Australian emissions units.

•      Most Australian emissions units will be issued as the result of an auction.

•      Some Australian emissions units may be issued free of charge or for a fixed charge.

•      The national scheme cap limits:

               (a)     the total number of auctioned Australian emissions units; and

               (b)     the total number of free Australian emissions units issued in accordance with the emissions‑intensive trade‑exposed assistance program; and

             (ba)     the total number of free Australian emissions units issued in accordance with Part 8A (coal mining); and

               (c)     the total number of free Australian emissions units issued in accordance with Part 9 (coal‑fired electricity generation).

•      An Australian emissions unit will have a vintage year that consists of a particular financial year.

•      An Australian emissions unit is generally transferable.

•      Entries may be made in Registry accounts for:

               (a)     Australian emissions units; and

               (b)     Kyoto units; and

               (c)     non‑Kyoto international emissions units.


 

Division 2Australian emissions units

Subdivision AIssue of Australian emissions units

83  Issue of Australian emissions units

                   The Authority may, on behalf of the Commonwealth, issue units, to be known as Australian emissions units.

84  Identification number

                   An Australian emissions unit is to be identified by a unique number, to be known as the identification number of the unit.

85  Vintage year

             (1)  The last 4 digits of an Australian emissions unit’s identification number are to be the digits of:

                     (a)  the calendar year 2012; or

                     (b)  a later calendar year.

             (2)  The vintage year of an Australian emissions unit is the eligible financial year that ends on 30 June in that calendar year.

Note:          For example, if the last 4 digits of an Australian emissions unit’s identification number are 2012, the vintage year of the unit is the eligible financial year that ends on 30 June 2012.

86  When Australian emissions units may be issued

                   The Authority may issue an Australian emissions unit with a particular vintage year at any time before the end of 15 December next following the vintage year.

Note:          For example, the Authority may, at any time before the end of 15 December 2012, issue an Australian emissions unit with the vintage year beginning on 1 July 2011.

87  How Australian emissions units are to be issued

             (1)  The Authority is to issue an Australian emissions unit to a person by making an entry for the unit in a Registry account kept by the person.

             (2)  An entry for an Australian emissions unit in a Registry account is to consist of the identification number of the unit.

             (3)  The Authority must not issue an Australian emissions unit to a person unless the person has a Registry account.

88  Circumstances in which Australian emissions units may be issued

                   The Authority must not issue an Australian emissions unit otherwise than:

                     (a)  as the result of an auction conducted by the Authority; or

                     (b)  in accordance with section 89 (issue of units for a fixed charge); or

                     (c)  in accordance with the emissions‑intensive trade‑exposed assistance program; or

                    (ca)  in accordance with Part 8A (coal mining); or

                     (d)  in accordance with Part 9 (coal‑fired electricity generation); or

                     (e)  in accordance with Part 10 (reforestation); or

                      (f)  in accordance with Part 11 (destruction of synthetic greenhouse gases); or

                     (g)  in accordance with the domestic offsets program.

89  Issue of Australian emissions units for a fixed charge

Application

             (1)  During the issue period set out in an item in the following table, a person who has a Registry account may apply to the Authority for the issue to the person of a specified number of Australian emissions units:

                     (a)  with a vintage year set out in the item; and

                     (b)  for the per unit charge set out in the item.

 

Issue of Australian emissions units for a fixed charge

Item

Issue period

Vintage year

Charge per unit

1

The period:

(a) beginning at the emissions number publication time of the person for the eligible financial year beginning on 1 July 2011; and

(b) ending at the end of 15 December 2012.

the eligible financial year beginning on 1 July 2011

$10

2

The period:

(a) beginning at the emissions number publication time of the person for the eligible financial year beginning on 1 July 2012; and

(b) ending at the end of 15 December 2013.

the eligible financial year beginning on 1 July 2012

$40 multiplied by the indexation factor for the eligible financial year beginning on 1 July 2011, multiplied by the indexation factor for the eligible financial year beginning on 1 July 2012

3

The period:

(a) beginning at the emissions number publication time of the person for the eligible financial year beginning on 1 July 2013; and

(b) ending at the end of 15 December 2014.

the eligible financial year beginning on 1 July 2013

the amount mentioned in item 2 multiplied by the indexation factor for the eligible financial year beginning on 1 July 2013

4

The period:

(a) beginning at the emissions number publication time of the person for the eligible financial year beginning on 1 July 2014; and

(b) ending at the end of 15 December 2015.

the eligible financial year beginning on 1 July 2014

the amount mentioned in item 3 multiplied by the indexation factor for the eligible financial year beginning on 1 July 2014

5

The period:

(a) beginning at the emissions number publication time of the person for the eligible financial year beginning on 1 July 2015; and

(b) ending at the end of 15 December 2016.

the eligible financial year beginning on 1 July 2015

the amount mentioned in item 4 multiplied by the indexation factor for the eligible financial year beginning on 1 July 2015

Note 1:       For emissions number publication time, see section 5.

Note 2:       For indexation factor, see subsection (7).

Maximum number of units

             (2)  The number of Australian emissions units specified in the application must not exceed the number worked out using the following formula:

Form of application

             (3)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority.

Issue of units

             (4)  If, during an issue period set out in an item in the table in subsection (1):

                     (a)  a person has applied for a specified number of Australian emissions units with a particular vintage year; and

                     (b)  the person has tendered the total amount of the charges payable for the issue of the units;

the Authority must, as soon as practicable, issue to the person that number of Australian emissions units with that vintage year.

Automatic surrender of units

             (5)  If an Australian emissions unit is issued to a person in accordance with this section:

                     (a)  immediately after the issue of the unit, the person is taken to have surrendered the unit; and

                     (b)  the person is taken to have done so by electronic notice transmitted to the Authority under subsection 129(1); and

                     (c)  the notice is taken to have:

                              (i)  specified the unit; and

                             (ii)  specified the vintage year of the unit as the eligible financial year to which the surrender relates; and

                            (iii)  specified the account number of the person’s Registry account in which there is an entry for the unit that is being surrendered.

             (6)  An Australian emissions unit issued to a person in accordance with this section cannot be transferred or relinquished.

Indexation factor

             (7)  For the purposes of this section, the indexation factor for an eligible financial year is the number worked out by:

                     (a)  dividing the index number for the March quarter immediately preceding that eligible financial year by the index number for the March quarter immediately preceding that first‑mentioned March quarter; and

                     (b)  adding 0.050 to the number worked out under paragraph (a).

             (8)  The indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more).

             (9)  Calculations under paragraph (7)(a) are to be made:

                     (a)  using only the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and

                     (b)  disregarding index numbers published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the reference base).

           (10)  For the purposes of this section, the index number in relation to a quarter is the All Groups Consumer Price Index number (excluding volatile items), being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.

Publication of fixed charge

           (11)  Before the start of each of the following eligible financial years:

                     (a)  the eligible financial year beginning on 1 July 2012;

                     (b)  the eligible financial year beginning on 1 July 2013;

                     (c)  the eligible financial year beginning on 1 July 2014;

                     (d)  the eligible financial year beginning on 1 July 2015;

the Authority must publish on its website the per unit charge applicable under subsection (1) for the issue of an Australian emissions unit with a vintage year of that eligible financial year.

90  Payment of charges for the issue of Australian emissions units

Scope

             (1)  This section applies if:

                     (a)  an amount is payable by a person by way of a charge for the issue to the person of an Australian emissions unit; and

                     (b)  the unit is to be issued:

                              (i)  as the result of an auction; or

                             (ii)  in accordance with section 89 (issue of units for a fixed charge).

Payment of charge

             (2)  The charge is payable to the Authority on behalf of the Commonwealth.

             (3)  The Authority must not issue the unit unless the person pays the charge.

91  Imposition of charges for the issue of Australian emissions units

                   If a charge payable for the issue of an Australian emissions unit is taxation within the meaning of section 55 of the Constitution:

                     (a)  the charge is not imposed by this Act; and

                     (b)  the charge is imposed by whichever of the following Acts is applicable:

                              (i)  the Carbon Pollution Reduction Scheme (Charges—Customs) Act 2010;

                             (ii)  the Carbon Pollution Reduction Scheme (Charges—Excise) Act 2010;

                            (iii)  the Carbon Pollution Reduction Scheme (Charges—General) Act 2010.

92  Issue of Australian emissions units—national scheme cap number

             (1)  The Authority must not issue an Australian emissions unit with a particular vintage year starting on or after 1 July 2012 unless there is a national scheme cap number for that vintage year.

             (2)  Subsection (1) has effect despite any other provision of this Act.

             (3)  Subsection (1) does not apply to an Australian emissions unit with a vintage year beginning on 1 July 2011.

93  Australian emissions units—total number

             (1)  The Authority must ensure that the sum of:

                     (a)  the total number of Australian emissions units with a particular vintage year that are offered at auctions conducted by the Authority; and

                     (b)  the total number of free Australian emissions units with that vintage year issued in accordance with the emissions‑intensive trade‑exposed assistance program; and

                    (ba)  the total number of free Australian emissions units with that vintage year issued in accordance with Part 8A (coal mining); and

                     (c)  the total number of free Australian emissions units with that vintage year issued in accordance with Part 9 (coal‑fired electricity generation);

equals the national scheme cap number for that vintage year.

             (2)  If an Australian emissions unit is offered at auction on 2 or more occasions, the unit is only counted for the purposes of paragraph (1)(a) on the first of those occasions.

             (3)  Paragraph (1)(a) does not apply to an auction conducted under section 100 or 101.

             (4)  Subsection (1) does not apply to an Australian emissions unit with a vintage year beginning on 1 July 2011.

Subdivision BProperty in, and transfer of, Australian emissions units

94  An Australian emissions unit is personal property

                   An Australian emissions unit is personal property and, subject to sections 96 and 97, is transmissible by assignment, by will and by devolution by operation of law.

95  Transfer of Australian emissions units

                   For the purposes of this Act, if there is an entry for an Australian emissions unit in a Registry account (the first Registry account) kept by a person (the first person):

                     (a)  a transfer of the unit from the first Registry account to a Registry account kept by another person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the Registry account kept by the other person; and

                     (b)  the transfer of the unit from the first Registry account to another Registry account kept by the first person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the other Registry account kept by the first person.

96  Transmission of Australian emissions units by assignment

             (1)  A transmission by assignment of an Australian emissions unit is of no force until:

                     (a)  the transferor, by electronic notice transmitted to the Authority, instructs the Authority to transfer the unit from the relevant Registry account kept by the transferor to a Registry account kept by the transferee; and

                     (b)  the Authority complies with that instruction.

             (2)  An instruction under paragraph (1)(a) must set out:

                     (a)  the account number of the transferor’s Registry account; and

                     (b)  the account number of the transferee’s Registry account.

             (3)  If the Authority receives an instruction under paragraph (1)(a), the Authority must comply with the instruction as soon as practicable after receiving it.

             (4)  The Registry must set out a record of each instruction under paragraph (1)(a).

             (5)  If the transferor is the Commonwealth, the Minister may give an instruction under subsection (1) on behalf of the transferor.

97  Transmission of Australian emissions units by operation of law etc.

Scope

             (1)  This section applies if an Australian emissions unit is transmitted from a person (the transferor) to another person (the transferee) by any lawful means other than by a transfer under section 96.

Declaration of transmission

             (2)  The transferee must, within 90 days after the transmission, give the Authority:

                     (a)  a declaration of transmission; and

                     (b)  such evidence of transmission as is specified in the regulations.

             (3)  A declaration of transmission must be made in accordance with the regulations.

             (4)  If the transferee does not already have a Registry account, the declaration of transmission must be accompanied by a request under section 147 for the Authority to open a Registry account in the name of the transferee.

             (5)  If the Authority is satisfied that special circumstances warrant the extension of the 90‑day period mentioned in subsection (2), the Authority may extend that period.

Transfer of unit—transferee already has a Registry account

             (6)  If the transferee already has a Registry account, the Authority must, as soon as practicable after receiving the declaration of transmission, transfer the unit from the relevant Registry account kept by the transferor to a Registry account kept by the transferee.

Transfer of unit—transferee does not have a Registry account

             (7)  If:

                     (a)  the transferee does not already have a Registry account; and

                     (b)  in accordance with the request under section 147, the Authority has opened a Registry account in the name of the transferee;

the Authority must, as soon as practicable after opening the Registry account, transfer the unit from the relevant Registry account kept by the transferor to the Registry account kept by the transferee.

Record

             (8)  If the Authority transfers the unit under subsection (6) or (7), the Registry must set out a record of the declaration of transmission.

When the transferee is the Commonwealth

             (9)  If the transferee is the Commonwealth, the Minister may give:

                     (a)  the declaration of transmission; and

                     (b)  the evidence mentioned in paragraph (2)(b);

on behalf of the transferee.

98  Transfer of Australian emissions units to another Registry account held by the transferor

Scope

             (1)  This section applies if:

                     (a)  a person keeps a Registry account (the first Registry account) in which there is an entry for an Australian emissions unit; and

                     (b)  the person, by electronic notice transmitted to the Authority, instructs the Authority to transfer the unit from the first Registry account to another Registry account kept by the person; and

                     (c)  the instruction sets out:

                              (i)  the account number of the first Registry account; and

                             (ii)  the account number of the other Registry account.

Compliance with instruction

             (2)  If a person gives the Authority an instruction under paragraph (1)(b), the Authority must comply with the instruction as soon as practicable after receiving it.

             (3)  The Registry must set out a record of the instruction under paragraph (1)(b).

98A  Equitable interests in relation to an Australian emissions unit

             (1)  This Act does not affect:

                     (a)  the creation of; or

                     (b)  any dealings with; or

                     (c)  the enforcement of;

equitable interests in relation to an Australian emissions unit.

             (2)  Subsection (1) is enacted for the avoidance of doubt.

Subdivision CAuctions of Australian emissions units

99  Issue of Australian emissions units as the result of an auction

             (1)  The Authority may issue Australian emissions units as the result of an auction conducted by the Authority.

             (2)  If:

                     (a)  an amount is payable by a person to the Commonwealth by way of a charge for the issue to the person of an Australian emissions unit; and

                     (b)  the unit is to be issued as the result of an auction; and

                     (c)  either:

                              (i)  the charge is taxation; or

                             (ii)  the charge would, apart from the constitutional requirement that taxation must not be arbitrary, be taxation;

the Authority must not perform any of its functions, or exercise any of its powers, in a way that would result in the charge being arbitrary, in contravention of the constitutional requirement that taxation must not be arbitrary.

             (3)  For the purposes of subsection (2), taxation has the same meaning as in section 55 of the Constitution.

100  Secondary market auctions of relinquished Australian emissions units

Scope

             (1)  This section applies if there is an entry for an Australian emissions unit in the Commonwealth relinquished units account.

Authority may auction unit

             (2)  The Authority may, on behalf of the Commonwealth, auction the unit.

101  Secondary market auctions of free Australian emissions units

Scope

             (1)  This section applies if:

                     (a)  a free Australian emissions unit has been issued to a person:

                              (i)  in accordance with the emissions‑intensive trade‑exposed assistance program; or

                            (ia)  in accordance with Part 8A (coal mining); or

                             (ii)  in accordance with Part 9 (coal‑fired electricity generation); or

                            (iii)  in accordance with Part 10 (reforestation); or

                            (iv)  in accordance with Part 11 (destruction of synthetic greenhouse gases); or

                             (v)  in accordance with the domestic offsets program; and

                     (b)  the unit has not been transferred; and

                     (c)  the unit has a vintage year of an eligible financial year beginning on or after 1 July 2012.

Authority may auction unit

             (2)  The Authority may, on behalf of the person, auction the unit.

Sunset

             (3)  This section ceases to have effect at the end of 31 December 2013.

102  Combined auctions of Australian emissions units

                   The Authority may conduct an auction under section 100 or 101 in combination with an auction referred to in section 99.

103  Policies, procedures and rules for auctioning Australian emissions units

             (1)  The Minister may, by legislative instrument, determine the policies, procedures and rules that apply in relation to the auctioning of Australian emissions units by the Authority.

             (2)  A determination under subsection (1) may deal with any or all of the following matters:

                     (a)  the types of auction;

                     (b)  the timing of auctions;

                     (c)  advertising of auctions;

                     (d)  participants in auctions;

                     (e)  fees for participants in auctions;

                      (f)  proxy bidding;

                     (g)  representatives of participants in auctions;

                     (h)  the minimum number of Australian emissions units to which a bid may relate;

                      (i)  variation of bids;

                      (j)  the total number of units with a particular vintage year that are to be offered at a particular auction under section 99;

                     (k)  limits on the total number of units with a particular vintage year that may be acquired by a person as a result of a particular auction;

                      (l)  limits on the total number of units with a particular vintage year that may be acquired by the members of a controlling corporation’s group as a result of a particular auction;

                    (m)  reserve prices or charges (if any);

                     (n)  deposits (if any) to be lodged by participants in auctions;

                     (o)  the refund or forfeiture of such deposits;

                     (p)  guarantees (if any) to be given in respect of payment obligations that are incurred by participants in auctions;

                     (q)  timing and methods of payment of prices or charges.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  A fee specified under paragraph (2)(e) must not be such as to amount to taxation.

             (5)  A determination under subsection (1) may make provision in relation to a matter by conferring a power to make a decision of an administrative character on the Authority.

             (6)  To avoid doubt, a determination under subsection (1) is taken to be a law for the purposes of section 28 of the Financial Management and Accountability Act 1997.

Subdivision DSpecial provisions relating to free Australian emissions units

103A  Cancellation of certain unused free Australian emissions units

Scope

             (1)  This section applies if:

                     (a)  an Australian emissions unit was issued:

                              (i)  in accordance with the emissions‑intensive trade‑exposed assistance program; or

                            (ia)  in accordance with Part 8A (coal mining); or

                             (ii)  in accordance with Part 9 (coal‑fired electricity generation); and

                     (b)  the unit has a vintage year beginning on 1 July 2011; and

                     (c)  there was an entry for the unit in a person’s Registry account at the end of 15 December 2012.

Cancellation of unit

             (2)  The Authority must cancel the unit.

             (3)  The Authority must remove the entry for the unit from the person’s Registry account.

             (4)  The Registry must set out a record of each cancellation under subsection (2).

103B  Buy‑back of certain free Australian emissions units

Scope

             (1)  This section applies if a person is the registered holder of one or more Australian emissions units that:

                     (a)  were issued:

                              (i)  in accordance with the emissions‑intensive trade‑exposed assistance program; or

                            (ia)  in accordance with Part 8A (coal mining); or

                             (ii)  in accordance with Part 9 (coal‑fired electricity generation); and

                     (b)  have a vintage year beginning on 1 July 2011.

Buy‑back

             (2)  During the period:

                     (a)  beginning at the start of 15 July 2011; and

                     (b)  ending at the end of 1 December 2012;

the person may, by electronic notice transmitted to the Authority, request the Authority to cancel the unit or units in exchange for the payment to the person of the amount (the buy‑back amount) worked out using the formula:

             (3)  If the Authority receives a request under subsection (2) from a person in relation to one or more Australian emissions units, the Authority must:

                     (a)  on a day ascertained in accordance with the regulations:

                              (i)  cancel the unit or units; and

                             (ii)  remove the entries for the unit or units from the person’s Registry account in which there is an entry for the unit or units; and

                     (b)  on or as soon as practicable after that day, on behalf of the Commonwealth, pay the buy‑back amount to the person.

             (4)  The Registry must set out a record of each cancellation under subsection (3).

             (5)  The Consolidated Revenue Fund is appropriated for the purposes of making payments under this section.


 

Division 3Kyoto units

104  Entries for Kyoto units

                   An entry for a Kyoto unit in a Registry account is to consist of the serial number of the unit.

105  Issue of Australia’s assigned amount units

Object

             (1)  The object of this section is to provide for the issue of Australia’s assigned amount units for a commitment period.

Issue

             (2)  The Minister may, by written notice given to the Authority, direct the Authority to issue to the Commonwealth, in accordance with the Kyoto rules, a specified number of assigned amount units for a specified commitment period.

             (3)  The Authority must comply with a direction under subsection (2).

             (4)  The Authority is to issue an assigned amount unit by making an entry for the unit in a Commonwealth holding account.

             (5)  This section does not, by implication, affect the validity of the issue of assigned amount units, where the units were issued before the commencement of this section under the executive power of the Commonwealth.

106  Issue of removal units

Object

             (1)  The object of this section is to provide for the issue of Australia’s removal units.

Issue

             (2)  The Minister may, by written notice given to the Authority, direct the Authority to issue to the Commonwealth, in accordance with the Kyoto rules, a specified number of removal units.

             (3)  The Authority must comply with a direction under subsection (2).

             (4)  The Authority is to issue a removal unit by making an entry for the unit in a Commonwealth holding account.

             (5)  This section does not, by implication, affect the validity of the issue of removal units, where the units were issued before the commencement of this section under the executive power of the Commonwealth.

107  Transfer of Kyoto units

             (1)  For the purposes of this Act, if there is an entry for a Kyoto unit in a Registry account (the first Registry account) kept by a person (the first person):

                     (a)  a transfer of the unit from the first Registry account to a Registry account kept by another person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the Registry account kept by the other person; and

                     (b)  the transfer of the unit from the first Registry account to another Registry account kept by the first person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the other Registry account kept by the first person; and

                     (c)  the transfer of the unit from the first Registry account to a foreign account kept by another person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the foreign account kept by the other person; and

                     (d)  the transfer of the unit from the first Registry account to a foreign account kept by the first person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the foreign account kept by the first person.

             (2)  For the purposes of this Act, if there is an entry for a Kyoto unit in a foreign account, a transfer of the unit from the foreign account to a Registry account consists of:

                     (a)  the removal of the entry for the unit from the foreign account; and

                     (b)  the making of an entry for the unit in the Registry account.

108  Domestic transfers of Kyoto units

             (1)  If a person (the first person) is the registered holder of one or more Kyoto units, the person may, by electronic notice transmitted to the Authority, instruct the Authority to transfer the units from the relevant Registry account kept by the person (the first Registry account) to:

                     (a)  a Registry account kept by another person; or

                     (b)  another Registry account kept by the first person.

             (2)  An instruction under subsection (1) must set out:

                     (a)  the account number of the first Registry account; and

                     (b)  the account number of the Registry account mentioned in paragraph (1)(a) or (b); and

                     (c)  such other information as is specified in the regulations.

Compliance with instruction

             (3)  If the Authority receives an instruction under subsection (1):

                     (a)  if the Authority is satisfied that giving effect to the instruction would breach:

                              (i)  regulations made for the purposes of section 112 (Kyoto rules); or

                             (ii)  regulations made for the purposes of section 114 (commitment period reserve); or

                            (iii)  regulations made for the purposes of section 116A (Commonwealth Registry accounts);

                            the Authority must, by written notice given to the first person, refuse to give effect to the instruction; and

                     (b)  if paragraph (a) does not apply—the Authority must give effect to the instruction as soon as practicable after receiving it.

             (4)  If the Authority gives effect to an instruction under subsection (1), the Registry must set out a record of the instruction.

             (5)  If the first person is the Commonwealth, the Minister may give an instruction under subsection (1) on behalf of the first person.

109  Outgoing international transfers of Kyoto units

             (1)  If:

                     (a)  there is in force a declaration under section 111 that Australia is in compliance with the emissions trading eligibility requirements under the Kyoto rules; and

                     (b)  a person (the first person) is the registered holder of one or more Kyoto units;

the person may, by electronic notice transmitted to the Authority, instruct the Authority to transfer the units from the relevant Registry account kept by the person (the first Registry account) to:

                     (c)  a foreign account kept by another person; or

                     (d)  a foreign account kept by the first person.

             (2)  An instruction under subsection (1) must set out:

                     (a)  the account number of the relevant Registry account kept by the first person; and

                     (b)  such other information as is specified in the regulations.

Compliance with instruction

             (3)  If the Authority receives an instruction under subsection (1):

                     (a)  if the Authority is satisfied that giving effect to the instruction would breach:

                              (i)  regulations made for the purposes of section 112 (Kyoto rules); or

                             (ii)  regulations made for the purposes of section 114 (commitment period reserve);

                            the Authority must, by written notice given to the first person, refuse to give effect to the instruction; and

                     (b)  if paragraph (a) does not apply—the Authority must take such steps as are required by regulations made for the purposes of section 112.

             (4)  Regulations made for the purposes of section 112 may require the Authority to remove the entry for the unit or units from the relevant Registry account.

             (5)  Subsection (4) does not limit section 112.

             (6)  If the Authority takes steps under paragraph (3)(b) in relation to an instruction, the Registry must set out a record of the instruction.

             (7)  If the first person is the Commonwealth, the Minister may give an instruction under subsection (1) on behalf of the first person.

110  Incoming international transfers of Kyoto units

             (1)  If:

                     (a)  there is in force a declaration under section 111 that Australia is in compliance with the emissions trading eligibility requirements under the Kyoto rules; and

                     (b)  the international transaction log forwards to the Authority an instruction for the transfer of a Kyoto unit from a foreign account; and

                     (c)  the Kyoto unit is not specified in the regulations as a unit that cannot be transferred to a Registry account; and

                     (d)  making an entry for the Kyoto unit in the relevant Registry account would not breach regulations made for the purposes of section 112 (Kyoto rules); and

                     (e)  making an entry for the Kyoto unit in the relevant Registry account would not breach regulations made for the purposes of section 116A (Commonwealth Registry accounts);

the Authority must make an entry for the Kyoto unit in the relevant Registry account.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

             (2)  However, the Authority may refuse to make an entry for the Kyoto unit in the relevant Registry account if the Authority has reasonable grounds to suspect that the instruction is fraudulent.

111  Compliance by Australia with emissions trading eligibility requirements under the Kyoto rules

Declaration

             (1)  If the Minister is satisfied that Australia is in compliance with the eligibility requirements mentioned in paragraph 2 of the Annex to Decision 11/CMP.1 of the Meeting of the Kyoto Parties, the Minister must, by writing, declare that Australia is in compliance with the emissions trading eligibility requirements under the Kyoto rules.

Revocation of declaration

             (2)  If:

                     (a)  a declaration is in force under subsection (1); and

                     (b)  the Minister is not satisfied that Australia is in compliance with the eligibility requirements mentioned in paragraph 2 of the Annex to Decision 11/CMP.1 of the Meeting of the Kyoto Parties;

the Minister must, by writing, revoke the declaration.

Declaration or revocation is not a legislative instrument

             (3)  An instrument made under subsection (1) or (2) is not a legislative instrument.

112  Kyoto rules

             (1)  The regulations may make provision for, or in relation to, giving effect to the Kyoto rules, so far as the Kyoto rules relate to:

                     (a)  the transfer of a Kyoto unit from a Registry account to a foreign account; or

                     (b)  the transfer of a Kyoto unit from a foreign account to a Registry account; or

                     (c)  the transfer of a Kyoto unit from a Registry account to a Commonwealth Registry account; or

                     (d)  the issue of a Kyoto unit.

             (2)  Regulations made for the purposes of subsection (1) may:

                     (a)  prevent, restrict or limit the transfer of Kyoto units from a Registry account to:

                              (i)  a foreign account; or

                             (ii)  a voluntary cancellation account; or

                     (b)  prevent, restrict or limit the transfer of Kyoto units from a foreign account to a Registry account.

             (3)  Subsection (2) does not limit subsection (1).

113  Carry‑over restrictions

Kyoto units for which carry‑over is permitted

             (1)  The regulations may make provision for, or in relation to, the following matters:

                     (a)  the identification of:

                              (i)  assigned amount units in Registry accounts; or

                             (ii)  certified emission reductions (other than temporary certified emission reductions or long‑term certified emission reductions) in Registry accounts; or

                            (iii)  emission reduction units (other than emission reduction units that have been converted from removal units) in Registry accounts;

                            as Kyoto units for which carry‑over is permitted subject to such limits or restrictions (if any) as are specified in the regulations;

                     (b)  the procedures for the carry‑over of such Kyoto units;

                     (c)  requiring the Authority to transfer from the relevant Registry account to a mandatory cancellation account any such Kyoto units that have not been carried over in accordance with those procedures;

                     (d)  prohibiting the surrender of any or all such Kyoto units during a period ascertained in accordance with the regulations.

Kyoto units for which carry‑over is not permitted

             (2)  The regulations may make provision for, or in relation to, the following matters:

                     (a)  the identification of Kyoto units for which carry‑over is not permitted;

                     (b)  requiring the Authority to transfer from the relevant Registry account to a mandatory cancellation account any such Kyoto units held in the Registry account at a time ascertained in accordance with the regulations;

                     (c)  prohibiting the surrender of any such Kyoto units after a time ascertained in accordance with the regulations.

             (3)  Regulations made for the purposes of paragraph (2)(a) must identify the following units issued in relation to the relevant commitment period as units for which carry‑over is not permitted:

                     (a)  removal units;

                     (b)  temporary certified emission reductions;

                     (c)  long‑term certified emission reductions;

                     (d)  emission reduction units that have been converted from removal units.

Kyoto rules

             (4)  Regulations made for the purposes of this section must not be inconsistent with the Kyoto rules.

114  Commitment period reserve

             (1)  The regulations may make provision for, or in relation to, the management of Australia’s commitment period reserve.

             (2)  Regulations made for the purposes of subsection (1) may prevent, restrict or limit the transfer of Kyoto units from a Registry account to:

                     (a)  a foreign account; or

                     (b)  a voluntary cancellation account.

115  Cancellation of temporary certified emission reductions or long‑term certified emission reductions

Scope

             (1)  This section applies if:

                     (a)  a person is the holder of a Registry account in which there is an entry for a temporary certified emission reduction or a long‑term certified emission reduction; and

                     (b)  the temporary certified emission reduction or long‑term certified emission reduction expires.

Transfer to mandatory cancellation account

             (2)  The Authority must, in accordance with the regulations, transfer the temporary certified emission reduction or long‑term certified emission reduction to a mandatory cancellation account.

116  Replacement of long‑term certified emission reductions

Scope

             (1)  This section applies if:

                     (a)  a person is the holder of a Registry account in which there is an entry for a long‑term certified emission reduction; and

                     (b)  under the regulations, the person is required to replace the long‑term certified emission reduction by a particular time ascertained in accordance with the regulations; and

                     (c)  the person breaches that requirement.

Transfer to mandatory cancellation account

             (2)  The Authority must, in accordance with the regulations, transfer the long‑term certified emission reduction to a mandatory cancellation account.

Replacement of long‑term certified emission reduction

             (3)  For the purposes of this section, if a long‑term certified emission reduction relates to a clean development mechanism project, the replacement by the person of the long‑term certified emission reduction consists of instructing the Authority under section 108 to transfer:

                     (a)  an assigned amount unit; or

                     (b)  a removal unit; or

                     (c)  an emission reduction unit; or

                     (d)  a certified emission reduction (other than a temporary certified emission reduction or a long‑term certified emission reduction); or

                     (e)  a long‑term certified emission reduction relating to the project;

from a Registry account kept by the person to whichever of the following accounts is taken, under the regulations, to be the appropriate account:

                      (f)  the long‑term certified emission reduction replacement (storage reversal) account;

                     (g)  the long‑term certified emission reduction replacement (non‑certification) account.

Identification of long‑term certified emission reductions for which replacement is required

             (4)  Regulations made for the purposes of paragraph (1)(b) may make provision for, or in relation to, the identification of long‑term certified emission reductions for which replacement is required.

116A  Restrictions on transfer of Kyoto units to a Commonwealth Registry account

                   The regulations may prevent, restrict or limit the transfer of Kyoto units from:

                     (a)  a Registry account; or

                     (b)  a foreign account;

to a Commonwealth Registry account.

116B  A registered Kyoto unit is personal property for certain purposes

Scope

             (1)  This section applies if there is an entry for a Kyoto unit in a Registry account.

Personal property

             (2)  For each of the following purposes:

                     (a)  the purposes of the Bankruptcy Act 1966;

                     (b)  the purposes of Chapter 5 of the Corporations Act 2001;

                     (c)  the purposes of the law relating to wills, intestacy and deceased estates;

                     (d)  a prescribed purpose;

the unit is personal property and, subject to section 116C, is transmissible by will and by devolution by operation of law.

116BA  Equitable interests in relation to a Kyoto unit

             (1)  This Act does not affect:

                     (a)  the creation of; or

                     (b)  any dealings with; or

                     (c)  the enforcement of;

equitable interests in relation to a Kyoto unit.

             (2)  Subsection (1) is enacted for the avoidance of doubt.

116C  Transmission of registered Kyoto units by operation of law etc.

Scope

             (1)  This section applies if:

                     (a)  under section 116B, a Kyoto unit is personal property for a particular purpose; and

                     (b)  the unit is transmitted from a person (the transferor) to another person (the transferee) by any lawful means for that purpose.

Declaration of transmission

             (2)  The transferee must, within 90 days after the transmission, give the Authority:

                     (a)  a declaration of transmission; and

                     (b)  such evidence of transmission as is specified in the regulations.

             (3)  A declaration of transmission must be made in accordance with the regulations.

             (4)  If the transferee does not already have a Registry account, the declaration of transmission must be accompanied by a request under section 147 for the Authority to open a Registry account in the name of the transferee.

             (5)  If the Authority is satisfied that special circumstances warrant the extension of the 90‑day period mentioned in subsection (2), the Authority may extend that period.

Transfer of unit—transferee already has a Registry account

             (6)  If the transferee already has a Registry account, the Authority must, as soon as practicable after receiving the declaration of transmission, transfer the unit from the relevant Registry account kept by the transferor to a Registry account kept by the transferee.

Transfer of unit—transferee does not have a Registry account

             (7)  If:

                     (a)  the transferee does not already have a Registry account; and

                     (b)  in accordance with the request under section 147, the Authority has opened a Registry account in the name of the transferee;

the Authority must, as soon as practicable after opening the Registry account, transfer the unit from the relevant Registry account kept by the transferor to the Registry account kept by the transferee.

Record

             (8)  If the Authority transfers the unit under subsection (6) or (7), the Registry must set out a record of the declaration of transmission.

When the transferee is the Commonwealth

             (9)  If the transferee is the Commonwealth, the Minister may give:

                     (a)  the declaration of transmission; and

                     (b)  the evidence mentioned in paragraph (2)(b);

on behalf of the transferee.


 

Division 4Non‑Kyoto international emissions units

117  Entries for non‑Kyoto international emissions units

                   An entry for a non‑Kyoto international emissions unit in a Registry account is to consist of the serial number (however described) of the unit.

118  Transfer of non‑Kyoto international emissions units

             (1)  For the purposes of this Act, if there is an entry for a non‑Kyoto international emissions unit in a Registry account (the first Registry account) kept by a person (the first person):

                     (a)  a transfer of the unit from the first Registry account to a Registry account kept by another person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the Registry account kept by the other person; and

                     (b)  the transfer of the unit from the first Registry account to another Registry account kept by the first person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the other Registry account kept by the first person; and

                     (c)  the transfer of the unit from the first Registry account to a foreign account kept by another person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the foreign account kept by the other person; and

                     (d)  the transfer of the unit from the first Registry account to a foreign account kept by the first person consists of:

                              (i)  the removal of the entry for the unit from the first Registry account; and

                             (ii)  the making of an entry for the unit in the foreign account kept by the first person.

             (2)  For the purposes of this Act, if there is an entry for a non‑Kyoto international emissions unit in a foreign account, a transfer of the unit from the foreign account to a Registry account consists of:

                     (a)  the removal of the entry for the unit from the foreign account; and

                     (b)  the making of an entry for the unit in the Registry account.

119  Domestic transfers of non‑Kyoto international emissions units

             (1)  If a person (the first person) is the registered holder of one or more non‑Kyoto international emissions units, the person may, by electronic notice transmitted to the Authority, instruct the Authority to transfer the units from the relevant Registry account kept by the person (the first Registry account) to:

                     (a)  a Registry account kept by another person; or

                     (b)  another Registry account kept by the first person.

             (2)  An instruction under subsection (1) must set out:

                     (a)  the account number of the first Registry account; and

                     (b)  the account number of the Registry account mentioned in paragraph (1)(a) or (b); and

                     (c)  such other information as is specified in the regulations.

Compliance with instruction

             (3)  If:

                     (a)  the Authority receives an instruction under subsection (1); and

                     (b)  the conditions (if any) specified in the regulations are satisfied;

the Authority must give effect to the instruction as soon as practicable after receiving it.

             (4)  If the Authority gives effect to an instruction under subsection (1), the Registry must set out a record of the instruction.

             (5)  If the first person is the Commonwealth, the Minister may give an instruction under subsection (1) on behalf of the first person.

120  Outgoing international transfers of non‑Kyoto international emissions units

             (1)  If a person (the first person) is the registered holder of one or more non‑Kyoto international emissions units, the person may, by electronic notice transmitted to the Authority, instruct the Authority to transfer the units from the relevant Registry account kept by the person (the first Registry account) to:

                     (a)  a foreign account kept by another person; or

                     (b)  a foreign account kept by the first person.

             (2)  An instruction under subsection (1) must set out:

                     (a)  the account number of the relevant Registry account kept by the first person; and

                     (b)  such other information as is specified in the regulations.

Compliance with instruction

             (3)  If:

                     (a)  the Authority receives an instruction under subsection (1); and

                     (b)  the conditions (if any) specified in the regulations are satisfied;

the Authority must take such steps as are required by the regulations.

             (4)  Regulations made for the purposes of subsection (3) may require the Authority to remove the entry for the unit or units from the relevant Registry account.

             (5)  Subsection (4) does not limit subsection (3).

             (6)  If the Authority takes steps under subsection (3) in relation to an instruction, the Registry must set out a record of the instruction.

             (7)  If the first person is the Commonwealth, the Minister may give an instruction under subsection (1) on behalf of the first person.

121  Incoming international transfers of non‑Kyoto international emissions units

             (1)  If:

                     (a)  the Authority receives an instruction for the transfer of a non‑Kyoto international emissions unit from a foreign account; and

                     (b)  the conditions (if any) specified in the regulations are satisfied;

the Authority must make an entry for the non‑Kyoto international emissions unit in the relevant Registry account.

             (2)  However, the Authority may refuse to make an entry for the non‑Kyoto international emissions unit in the relevant Registry account if the Authority has reasonable grounds to suspect that the instruction is fraudulent.

122  Surrender restrictions

                   The regulations may make provision for, or in relation to, prohibiting the surrender of non‑Kyoto international emissions units.

122A  A registered non‑Kyoto international emissions unit is personal property for certain purposes

Scope

             (1)  This section applies if there is an entry for a non‑Kyoto international emissions unit in a Registry account.

Personal property

             (2)  For each of the following purposes:

                     (a)  the purposes of the Bankruptcy Act 1966;

                     (b)  the purposes of Chapter 5 of the Corporations Act 2001;

                     (c)  the purposes of the law relating to wills, intestacy and deceased estates;

                     (d)  a prescribed purpose;

the unit is personal property and, subject to section 122B, is transmissible by will and by devolution by operation of law.

122AA  Equitable interests in relation to a non‑Kyoto international emissions unit

             (1)  This Act does not affect:

                     (a)  the creation of; or

                     (b)  any dealings with; or

                     (c)  the enforcement of;

equitable interests in relation to a non‑Kyoto international emissions unit.

             (2)  Subsection (1) is enacted for the avoidance of doubt.

122B  Transmission of registered non‑Kyoto international emissions units by operation of law etc.

Scope

             (1)  This section applies if:

                     (a)  under section 122A, a non‑Kyoto international emissions unit is personal property for a particular purpose; and

                     (b)  the unit is transmitted from a person (the transferor) to another person (the transferee) by any lawful means for that purpose.

Declaration of transmission

             (2)  The transferee must, within 90 days after the transmission, give the Authority:

                     (a)  a declaration of transmission; and

                     (b)  such evidence of transmission as is specified in the regulations.

             (3)  A declaration of transmission must be made in accordance with the regulations.

             (4)  If the transferee does not already have a Registry account, the declaration of transmission must be accompanied by a request under section 147 for the Authority to open a Registry account in the name of the transferee.

             (5)  If the Authority is satisfied that special circumstances warrant the extension of the 90‑day period mentioned in subsection (2), the Authority may extend that period.

Transfer of unit—transferee already has a Registry account

             (6)  If the transferee already has a Registry account, the Authority must, as soon as practicable after receiving the declaration of transmission, transfer the unit from the relevant Registry account kept by the transferor to a Registry account kept by the transferee.

Transfer of unit—transferee does not have a Registry account

             (7)  If:

                     (a)  the transferee does not already have a Registry account; and

                     (b)  in accordance with the request under section 147, the Authority has opened a Registry account in the name of the transferee;

the Authority must, as soon as practicable after opening the Registry account, transfer the unit from the relevant Registry account kept by the transferor to the Registry account kept by the transferee.

Record

             (8)  If the Authority transfers the unit under subsection (6) or (7), the Registry must set out a record of the declaration of transmission.

When the transferee is the Commonwealth

             (9)  If the transferee is the Commonwealth, the Minister may give:

                     (a)  the declaration of transmission; and

                     (b)  the evidence mentioned in paragraph (2)(b);

on behalf of the transferee.

123  Regulations about non‑Kyoto international emissions units

                   The regulations may make further provision in relation to non‑Kyoto international emissions units.


 

Part 5Emissions number

  

124  Simplified outline

                   The following is a simplified outline of this Part:

•      If a person is a liable entity for a financial year, the person’s emissions number for the financial year is the total of the person’s provisional emissions numbers for the financial year.

•      A person’s emissions number will be increased if the person failed to surrender sufficient units for the previous financial year.

•      A person’s emissions number will be reduced if the person surrendered an excess number of eligible emissions units for the previous financial year.

•      The Authority may make an advisory assessment of a person’s emissions number for a financial year.

Note 1:       If a person is a liable entity for a financial year, the person must surrender a number of eligible emissions units equal to the person’s emissions number for the financial year—see section 132.

Note 2:       An emissions number is reported under section 22A of the National Greenhouse and Energy Reporting Act 2007.

125  Emissions number

Scope

             (1)  This section applies if a person is a liable entity for an eligible financial year (the current eligible financial year).

Emissions number

             (2)  For the purposes of this Act, the person’s emissions number for the current eligible financial year is the sum of:

                     (a)  the total of the person’s provisional emissions numbers (if any) for the current eligible financial year; and

                     (b)  the person’s make‑good number (if any) for the previous eligible financial year;

reduced (but not below zero) by the person’s excess surrender number (if any) for the previous eligible financial year.

             (3)  If the person’s emissions number for the current eligible financial year is not a whole number, the emissions number is to be rounded to the nearest whole number (with a number ending in .5 being rounded down).

             (4)  For the purposes of subsection (3), zero is taken to be a whole number.

             (5)  The person’s emissions number for the current eligible financial year may be zero.

126  Assessment of emissions number—incorrect report given by liable entity

Scope

             (1)  This section applies if:

                     (a)  a report relating to an eligible financial year was given under section 22A of the National Greenhouse and Energy Reporting Act 2007 by a person who was a liable entity for the eligible financial year; and

                     (b)  the report was given before the end of 4 months after the end of the current eligible financial year; and

                     (c)  the Authority has reasonable grounds to believe that the number specified in the report as the person’s emissions number for the eligible financial year is incorrect.

Assessment

             (2)  The Authority may:

                     (a)  make an assessment of the person’s emissions number for the eligible financial year; and

                     (b)  give written notice of the assessment to the person.

             (3)  A notice of assessment under paragraph (2)(b) must be accompanied by a statement setting out the effect of section 132.

Amendment of assessments

             (4)  The Authority may amend an assessment under this section at any time.

             (5)  If the Authority amends an assessment, the Authority must give written notice of the amendment to the person to whom the assessment relates.

             (6)  For the purposes of this Act, an amended assessment is taken to be an assessment under this section.

Advisory character of assessment

             (7)  A notice of assessment under this section is an instrument of an advisory character.

127  Assessment of emissions number—no report given by liable entity

Scope

             (1)  This section applies if:

                     (a)  a person has not, before the end of 4 months after the end of an eligible financial year, given a report under section 22A of the National Greenhouse and Energy Reporting Act 2007 in relation to the eligible financial year; and

                     (b)  the Authority has reasonable grounds to believe that the person is a liable entity for the eligible financial year.

Assessment

             (2)  The Authority may:

                     (a)  make an assessment of the person’s emissions number for the eligible financial year; and

                     (b)  give written notice of the assessment to the person.

             (3)  A notice of assessment under paragraph (2)(b) must be accompanied by a statement setting out the effect of section 132.

Amendment of assessments

             (4)  The Authority may amend an assessment under this section at any time.

             (5)  If the Authority amends an assessment, the Authority must give written notice of the amendment to the person to whom the assessment relates.

             (6)  For the purposes of this Act, an amended assessment is taken to be an assessment under this section.

Advisory character of assessment

             (7)  A notice of assessment under this section is an instrument of an advisory character.


 

Part 6Surrender of eligible emissions units

Division 1Introduction

128  Simplified outline

                   The following is a simplified outline of this Part:

•      If a person is the registered holder of one or more eligible emissions units, the person may, by electronic notice transmitted to the Authority, surrender any or all of those units.

•      If a person is a liable entity for a financial year, and the person does not surrender any eligible emissions units by the end of 15 December next following the financial year:

               (a)     the person will have a unit shortfall for the financial year; and

               (b)     the number of units in that shortfall is equal to the person’s emissions number for the financial year.

•      If a person is a liable entity for a financial year, and by the end of 15 December next following the financial year, the number of surrendered eligible emissions units is less than the person’s emissions number for the financial year:

               (a)     the person will have a unit shortfall for the financial year; and

               (b)     the number of units in that shortfall is equal to the difference between the emissions number and the number of surrendered units.

•      The Authority may make an assessment of a unit shortfall.

•      A person who is a liable entity for a financial year must take such action, by way of the surrender of eligible emissions units, as is necessary to ensure that at the end of 15 December next following the financial year, the person does not have a unit shortfall for the financial year.

•      An administrative penalty is payable if a person has a unit shortfall for a financial year.

Note 1:       If a person has a unit shortfall for a financial year, the person will be required to make good the shortfall in the next financial year.

Note 2:       If a person surrenders an excess number of eligible emissions units in relation to a financial year, the excess will reduce the person’s liability for the next financial year.


 

Division 2How eligible emissions units are surrendered

129  How eligible emissions units are surrendered

             (1)  If a person is the registered holder of one or more eligible emissions units, the person may, by electronic notice transmitted to the Authority during an eligible financial year, surrender any or all of those units.

Note:          A liable entity may be required to surrender units—see section 132.

             (2)  A notice under subsection (1) must:

                     (a)  specify the eligible emissions unit or units that are being surrendered; and

                     (b)  specify the eligible financial year to which the surrender relates; and

                     (c)  specify the account number or account numbers of the person’s Registry account, or the person’s Registry accounts, in which there is an entry or entries for the eligible emissions unit or units that are being surrendered.

             (3)  The eligible financial year specified under paragraph (2)(b) must be:

                     (a)  the eligible financial year in which the electronic notice was transmitted; or

                     (b)  an earlier eligible financial year.

             (4)  An Australian emissions unit must not be surrendered in relation to an eligible financial year unless that eligible financial year is:

                     (a)  the vintage year of the unit; or

                     (b)  an eligible financial year later than the vintage year of the unit; or

                     (c)  the eligible financial year immediately preceding the vintage year of the unit.

Note:          See also subsection 130(4) (borrowing limit).

             (5)  A person must not surrender, in relation to an eligible financial year, an Australian emissions unit that has a vintage year that next follows the eligible financial year unless the electronic notice is transmitted after the emissions number publication time of the person for the eligible financial year.

Note:          For emissions number publication time, see section 5.

       (5AA)  An Australian emissions unit must not be surrendered in relation to the eligible financial year beginning on 1 July 2011 unless the unit has a vintage year of that eligible financial year.

          (5A)  If:

                     (a)  an Australian emissions unit was issued:

                              (i)  in accordance with the emissions‑intensive trade‑exposed assistance program; or

                            (ia)  in accordance with Part 8A (coal mining); or

                             (ii)  in accordance with Part 9 (coal‑fired electricity generation); and

                     (b)  the unit has a vintage year beginning on 1 July 2011;

the unit must not be surrendered in relation to an eligible financial year unless that eligible financial year is the vintage year of the unit.

             (6)  A Kyoto unit must not be surrendered if the surrender would breach regulations made for the purposes of section 113 (carry‑over restrictions).

          (6A)  An eligible international emissions unit must not be surrendered in relation to the eligible financial year beginning on 1 July 2011.

             (7)  An eligible international emissions unit specified in the regulations must not be surrendered in relation to an eligible financial year specified in the regulations. Regulations made for the purposes of this subsection must not specify an eligible financial year that begins before the regulations are registered under the Legislative Instruments Act 2003.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

          (7A)  In making a recommendation to the Governor‑General about regulations to be made for the purposes of subsection (7), the Minister may have regard to:

                    (aa)  Australia’s international objectives; and

                     (a)  Australia’s international obligations under:

                              (i)  the Climate Change Convention; and

                             (ii)  the Kyoto Protocol; and

                     (b)  the environmental integrity of the carbon pollution reduction scheme; and

                     (c)  such other matters (if any) as the Minister considers relevant.

             (8)  Any of the following:

                     (a)  a removal unit issued during the first commitment period;

                     (b)  an emission reduction unit:

                              (i)  issued during the first commitment period; and

                             (ii)  that has been converted from a removal unit;

must not be surrendered in relation to:

                     (c)  the eligible financial year beginning on 1 July 2013; or

                     (d)  a later eligible financial year.

             (9)  A non‑Kyoto international emissions unit must not be surrendered if the surrender would breach regulations made for the purposes of section 122 (surrender restrictions).

           (10)  If an Australian emissions unit is surrendered by a person:

                     (a)  the unit is cancelled; and

                     (b)  the Authority must remove the entry for the unit from the person’s Registry account in which there is an entry for the unit.

           (11)  If a Kyoto unit is surrendered by a person:

                     (a)  the Authority must remove the entry for the unit from the person’s Registry account in which there is an entry for the unit; and

                     (b)  the Authority must make an entry for the unit in a Commonwealth holding account.

           (12)  If a non‑Kyoto international emissions unit is surrendered by a person:

                     (a)  the Authority must take such action in relation to the unit as is specified in the regulations; and

                     (b)  the Authority must remove the entry for the unit from the person’s Registry account in which there is an entry for the unit.

           (13)  The Registry must set out a record of each notice under subsection (1).


 

Division 3Unit shortfalls

130  Unit shortfalls

Scope

             (1)  This section applies if:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  the person’s emissions number for the current eligible financial year is 1 or more; and

                     (c)  if the current eligible financial year begins on or after 1 July 2012—there is a national scheme cap number for the current eligible financial year.

No units surrendered

             (2)  If, during the period (the surrender period):

                     (a)  beginning at the start of the current eligible financial year; and

                     (b)  ending at the end of 15 December in the next eligible financial year;

the person has not surrendered any eligible emissions units in relation to the current eligible financial year, then, at the end of the surrender period:

                     (c)  the person has a unit shortfall for the current eligible financial year; and

                     (d)  the number of units in that shortfall is equal to the person’s emissions number for the current eligible financial year.

Surrender of insufficient units

             (3)  If, during the period (the surrender period):

                     (a)  beginning at the start of the current eligible financial year; and

                     (b)  ending at the end of 15 December in the next eligible financial year;

the person surrendered one or more eligible emissions units in relation to the current eligible financial year, but the number of surrendered units is less than the person’s emissions number for the current eligible financial year, then, at the end of the surrender period:

                     (c)  the person has a unit shortfall for the current eligible financial year; and

                     (d)  the number of units in that shortfall is worked out using the formula:

Borrowing limit

             (4)  If:

                     (a)  during the surrender period mentioned in subsection (3), the person surrendered, in relation to the current eligible financial year, Australian emissions units (the borrowed units) that have a vintage year that next follows the eligible financial year; and

                     (b)  the number of borrowed units exceeds 5% of the person’s emissions number for the current eligible financial year;

subsection (3) has effect as if, during the surrender period, the person had not surrendered, in relation to the current eligible financial year, the number of borrowed units that equals the excess.

131  Assessment of unit shortfall

Scope

             (1)  This section applies if the Authority has reasonable grounds to believe that:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  as at the end of 15 December in the next eligible financial year, the person had a unit shortfall for the current eligible financial year.

Assessment

             (2)  If the Authority has reasonable grounds to believe that:

                     (a)  the person has made a false or misleading statement to the Authority that is relevant to ascertaining the person’s unit shortfall for the current eligible financial year; or

                     (b)  the person has otherwise engaged in fraudulent conduct that is relevant to ascertaining the person’s unit shortfall for the current eligible financial year;

the Authority may, at any time:

                     (c)  make an assessment of the person’s unit shortfall for the current eligible financial year; and

                     (d)  give written notice of the assessment to the person.

             (3)  If subsection (2) does not apply, the Authority may, at any time within 4 years after the end of the current eligible financial year:

                     (a)  make an assessment of the person’s unit shortfall for the current eligible financial year; and

                     (b)  give written notice of the assessment to the person.

             (4)  In making an assessment under this section, the Authority may rely on a report given under section 22A of the National Greenhouse and Energy Reporting Act 2007 by the person concerned.

Amendment of assessments

             (5)  The Authority may amend an assessment under subsection (2) at any time.

             (6)  The Authority may amend an assessment under subsection (3) at any time within 4 years after the end of the current eligible financial year.

             (7)  If the Authority amends an assessment, the Authority must give written notice of the amendment to the person to whom the assessment relates.

             (8)  For the purposes of this Act, an amended assessment is taken to be an assessment under this section.

Advisory character of assessment

             (9)  A notice of assessment under this section is an instrument of an advisory character.


 

Division 4Obligation to surrender eligible emissions units

132  Obligation to surrender eligible emissions units

                   If:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  the person’s emissions number for the current eligible financial year is 1 or more; and

                     (c)  if the current eligible financial year begins on or after 1 July 2012—there is a national scheme cap number for the current eligible financial year;

the person must take such action, by way of the surrender of eligible emissions units, as is necessary to ensure that at the end of 15 December in the next eligible financial year, the person does not have a unit shortfall for the current eligible financial year.

Note:          For penalty, see section 133.

133  Penalty for unit shortfall

Penalty

             (1)  If:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  at the end of 15 December in the next eligible financial year, the person has a unit shortfall for the current eligible financial year;

the person is liable to pay to the Commonwealth, by way of penalty, an amount worked out using the formula:

where:

prescribed amount for the current eligible financial year means:

                     (a)  if the current eligible financial year begins on 1 July 2011—$11; or

                     (b)  in any other case:

                              (i)  if an amount is specified in the regulations for the current eligible financial year—that amount; or

                             (ii)  otherwise—an amount equal to 110% of the benchmark average auction price for the previous financial year.

Maximum prescribed amount

             (2)  An amount specified in regulations made for the purposes of paragraph (b) of the definition of prescribed amount for the current eligible financial year in subsection (1) in relation to an eligible financial year must not exceed 110% of the benchmark average auction price for the previous financial year.

             (3)  As soon as practicable after the end of each financial year, the Authority must:

                     (a)  calculate the benchmark average auction price for the financial year; and

                     (b)  publish on its website a notice setting out the results of that calculation.

134  When penalty becomes due and payable

                   An amount payable under section 133 by a person in relation to a unit shortfall for an eligible financial year is due and payable at the end of 31 January in the next eligible financial year.

135  Late payment penalty

             (1)  If an amount payable by a person under section 133 remains unpaid after the time when it became due for payment, the person is liable to pay, by way of penalty, an amount calculated at the rate of:

                     (a)  20% per annum; or

                     (b)  if a lower rate per annum is specified in the regulations—that lower rate per annum;

on the amount unpaid, computed from that time.

             (2)  The Authority may remit the whole or a part of an amount payable under subsection (1) if:

                     (a)  the Authority is satisfied that the person did not contribute to the delay in payment and has taken reasonable steps to mitigate the causes of the delay; or

                     (b)  the Authority is satisfied:

                              (i)  that the person contributed to the delay but has taken reasonable steps to mitigate the causes of the delay; and

                             (ii)  having regard to the nature of the reasons that caused the delay, that it would be fair and reasonable to remit some or all of the amount; or

                     (c)  the Authority is satisfied that there are special circumstances that make it reasonable to remit some or all of the amount.

136  Recovery of penalties

                   An amount payable under section 133 or 135:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  may be recovered by the Authority, on behalf of the Commonwealth, by action in a court of competent jurisdiction.

137  Set‑off

                   If:

                     (a)  an amount (the first amount) is payable under section 133 or 135 by a person; and

                     (b)  the following conditions are satisfied in relation to another amount (the second amount):

                              (i)  the amount is payable by the Commonwealth to the person;

                             (ii)  the amount is of a kind specified in the regulations;

the Authority may, on behalf of the Commonwealth, set off the whole or a part of the first amount against the whole or a part of the second amount.

138  Liability transfer certificate—statutory guarantee

Scope

             (1)  This section applies if:

                     (a)  a company was the holder of a liability transfer certificate throughout the whole or a part of an eligible financial year; and

                     (b)  a controlling corporation consented under subsection 70(2) or 74(3) to the making of the application for the certificate.

Guarantee

             (2)  The controlling corporation is taken to have guaranteed the payment by the company of:

                     (a)  an amount payable by the company under section 133 in relation to a unit shortfall for the eligible financial year; and

                     (b)  an amount payable by the company under section 135 because of the late payment of an amount covered by paragraph (a).

139  Refund of overpayments

Refund

             (1)  If either of the following amounts has been overpaid by a person, the amount overpaid must be refunded by the Commonwealth:

                     (a)  an amount payable under section 133;

                     (b)  an amount payable under section 135.

Note:          For appropriation, see section 28 of the Financial Management and Accountability Act 1997.

Interest on overpayment

             (2)  If:

                     (a)  an amount overpaid by a person is refunded by the Commonwealth under subsection (1); and

                     (b)  the overpayment is attributable, in whole or in part, to an error made by the Authority;

interest calculated in accordance with subsection (3) is payable by the Commonwealth to the person in respect of the amount refunded.

             (3)  Interest payable to a person under subsection (2) in respect of an amount refunded to the person is to be calculated:

                     (a)  in respect of the period that:

                              (i)  began when the overpaid amount was paid to the Commonwealth; and

                             (ii)  ended when the amount was refunded; and

                     (b)  at the base interest rate (within the meaning of section 8AAD of the Taxation Administration Act 1953).

             (4)  The Consolidated Revenue Fund is appropriated for the purposes of making payments of interest under subsection (2).

141  Benchmark average auction price

             (1)  For the purposes of this Act, the benchmark average auction price for a financial year is whichever is the greater of the following amounts:

                     (a)  the amount calculated under subsection (2) in relation to the financial year;

                     (b)  the amount calculated under subsection (3) in relation to the financial year.

Average auction price—all auctions

             (2)  The amount calculated under this subsection in relation to a financial year is the amount worked out using the formula:

where:

number of units issued as the result of auctions means the total number of Australian emissions units that were issued as the result of auctions conducted by the Authority during the financial year.

total auction proceeds means the total amount paid or payable by way of charges for the issue of Australian emissions units that were issued as the result of auctions conducted by the Authority during the financial year.

Average auction price—last auction

             (3)  The amount calculated under this subsection in relation to a financial year is the amount worked out using the formula:

where:

number of units issued as a result of the last auction means the number of Australian emissions units that were issued as a result of the last auction conducted by the Authority during the financial year.

proceeds of the last auction means the total amount paid or payable by way of charges for the issue of Australian emissions units that were issued as a result of the last auction conducted by the Authority during the financial year.

142  Make‑good number

             (1)  If:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  at the end of 15 December in the next eligible financial year, the person has a unit shortfall for the current eligible financial year;

then:

                     (c)  the number of units in the unit shortfall is the person’s make‑good number for the current eligible financial year; and

                     (d)  the person is a liable entity for the next eligible financial year.

Note:          The make‑good number increases the emissions number for the next eligible financial year—see section 125.

Liability transfer certificate

             (2)  If:

                     (a)  a person was the holder of a liability transfer certificate throughout the whole or a part of an eligible financial year; and

                     (b)  the person becomes liable to pay an amount under section 133 in relation to a unit shortfall for the eligible financial year; and

                     (c)  a controlling corporation consented under subsection 70(2) or 74(3) to the making of the application for the certificate;

then:

                     (d)  if the controlling corporation that consented under subsection 70(2) or 74(3) to the making of the application for the certificate has a make‑good number for the eligible financial year—that make‑good number is increased by the number of units in the unit shortfall; and

                     (e)  if paragraph (d) does not apply—the controlling corporation that consented under subsection 70(2) or 74(3) to the making of the application for the certificate:

                              (i)  has a make‑good number for the eligible financial year equal to the number of units in the unit shortfall; and

                             (ii)  is a liable entity for the next eligible financial year; and

                      (f)  despite subsection (1), the person does not have a make‑good number for the eligible financial year.

Note:          The make‑good number increases the emissions number for the next eligible financial year—see section 125.

143  Excess surrender number

             (1)  If:

                     (a)  a person is a liable entity for an eligible financial year (the current eligible financial year); and

                     (b)  the person’s emissions number for the current eligible financial year is 1 or more; and

                     (c)  at the end of 15 December in the next eligible financial year, the person does not have a unit shortfall for the current eligible financial year; and

                     (d)  during the period (the surrender period):

                              (i)  beginning at the start of the current eligible financial year; and

                             (ii)  ending at 15 December in the next eligible financial year;

                            the person surrendered one or more eligible emissions units in relation to the current eligible financial year; and

                     (e)  the number of surrendered units exceeds the person’s emissions number for the current eligible financial year;

the number of surrendered units in the excess is the person’s excess surrender number for the current eligible financial year.

Note:          The excess surrender number reduces the emissions number for the next eligible financial year—see section 125.

Borrowing limit

             (2)  If:

                     (a)  during the surrender period mentioned in subsection (1), the person surrendered, in relation to the current eligible financial year, Australian emissions units (the borrowed units) that have a vintage year that next follows the eligible financial year; and

                     (b)  the number of borrowed units exceeds 5% of the person’s emissions number for the current eligible financial year;

subsection (1) has effect as if, during the surrender period, the person had not surrendered, in relation to the current eligible financial year, the number of borrowed units that equals the excess.

Australian emissions units with a vintage year beginning on 1 July 2011

             (3)  If, during the surrender period mentioned in subsection (1), the person surrendered, in relation to the current eligible financial year, Australian emissions units that have a vintage year beginning on 1 July 2011, subsection (1) has effect as if, during the surrender period, the person had not surrendered those units.


 

Division 5Extension of surrender deadline

143A  Extension of surrender deadline

Scope

             (1)  This section applies if the Authority is satisfied that:

                     (a)  2 or more persons were unable to surrender eligible emissions units during the whole or a part of:

                              (i)  15 December in the eligible financial year beginning on 1 July 2011; or

                             (ii)  15 December in a later eligible financial year; and

                     (b)  the inability to surrender the units was attributable to:

                              (i)  a fault or malfunction relating to a computer system under the control of the Authority; or

                             (ii)  a fault or malfunction relating to a facility (within the meaning of the Telecommunications Act 1997); or

                            (iii)  a fault or malfunction relating to a carriage service (within the meaning of that Act) provided to the public; and

                     (c)  it would be reasonable to extend the deadline for the surrender of eligible emissions units beyond the end of that 15 December.

Extension of surrender deadline

             (2)  The Authority may, by legislative instrument, determine that this Act has effect as if a reference in each of the following provisions to the end of that 15 December were a reference to such later time as is specified in the determination:

                    (aa)  paragraph 103A(1)(c);

                     (a)  paragraph 130(2)(b);

                     (b)  paragraph 130(3)(b);

                     (c)  paragraph 131(1)(b);

                     (d)  section 132;

                     (e)  paragraph 133(1)(b);

                      (f)  paragraph 142(1)(b);

                     (g)  paragraph 143(1)(c);

                     (h)  subparagraph 143(1)(d)(ii);

                      (i)  subsection 275(1);

                      (j)  subsection 275(2).

             (3)  The Authority must publish a copy of the determination on its website.


 

Part 7Australian National Registry of Emissions Units

Division 1Introduction

144  Simplified outline

                   The following is a simplified outline of this Part:

•      The Australian National Registry of Emissions Units is continued in existence.

•      The Authority may open a Registry account in the name of a person.

•      A person may request the Authority to close the person’s Registry account.

•      The Authority is empowered to make corrections to the Registry.

•      A person may apply to the Federal Court for the rectification of the Registry.


 

Division 2Australian National Registry of Emissions Units

145  Australian National Registry of Emissions Units

             (1)  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 section;

continues in existence as a register under this Act under the name Australian National Registry of Emissions Units.

             (2)  The Registry is to be kept by the Authority.

Note:          In this Act, Registry means the Australian National Registry of Emissions Units—see section 5.

             (3)  The Registry is to be maintained by electronic means.

             (4)  The purposes of the Registry are as follows:

                     (a)  to be a registry for Australian emissions units;

                     (b)  to be Australia’s national registry for Kyoto units.


 

Division 3Registry accounts

146  Registry accounts

             (1)  The Authority may open an account within the Registry in the name of a particular person.

             (2)  An account kept in the name of a person is to be known as a Registry account of the person.

             (3)  Each Registry account is to be identified by a unique number, to be known as the account number of the Registry account.

             (4)  A person may have 2 or more Registry accounts.

147  Opening of Registry accounts—general

             (1)  A person may request the Authority to open a Registry account in the name of the person.

             (2)  A request under subsection (1) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by the fee (if any) specified in a legislative instrument made by the Authority for the purposes of this paragraph.

             (3)  The approved form of request may provide for verification by statutory declaration of statements in requests.

             (4)  A fee specified under paragraph (2)(d) must not be such as to amount to taxation.

Further information

             (5)  The Authority may, by written notice given to the person who made the request, require the person to give the Authority, within the period specified in the notice, further information in connection with the request.

             (6)  If the person breaches the requirement, the Authority may, by written notice given to the person:

                     (a)  refuse to consider the request; or

                     (b)  refuse to take any action, or any further action, in relation to the request.

Opening of account

             (7)  After considering the request, the Authority may open a Registry account in the name of the person.

Identification procedure

             (8)  The Authority must not open a Registry account in the name of the person unless the Authority has carried out the applicable identification procedure in respect of the person.

Timing

             (9)  The Authority must take all reasonable steps to ensure that a decision is made on the request:

                     (a)  if the Authority requires the person who made the request to give further information under subsection (5) in relation to the request—within 28 days after the person gave the Authority the information; or

                     (b)  otherwise—within 28 days after the application was made.

Refusal

           (10)  If the Authority decides to refuse to open a Registry account in the name of the person who made the request, the Authority must give written notice of the decision to the person.

148  Designation of Commonwealth Registry accounts

                   A Commonwealth Registry account must be designated by the Authority as:

                     (a)  a Commonwealth holding account; or

                     (b)  the retirement account for a particular commitment period; or

                     (c)  the net source cancellation account for a particular commitment period; or

                     (d)  the non‑compliance cancellation account for a particular commitment period; or

                     (e)  the voluntary cancellation account for a particular commitment period; or

                      (f)  the mandatory cancellation account for a particular commitment period; or

                     (g)  the temporary certified emission reduction replacement (expiry) account for a particular commitment period; or

                     (h)  the long‑term certified emission reduction replacement (expiry) account for a particular commitment period; or

                      (i)  the long‑term certified emission reduction replacement (storage reversal) account for a particular commitment period; or

                      (j)  the long‑term certified emission reduction replacement (non‑certification) account for a particular commitment period; or

                     (k)  the Commonwealth relinquished units account; or

                      (l)  an account with a name specified in the regulations.

149  Opening of new Commonwealth Registry accounts

             (1)  The Minister may, by written notice given to the Authority, direct the Authority to:

                     (a)  open a Registry account in the name of the Commonwealth; and

                     (b)  give that Registry account the designation specified in the direction.

             (2)  The Authority must comply with a direction under subsection (1).

150  Units in a retirement, cancellation or replacement account

Scope

             (1)  This section applies to a Kyoto unit for which there is an entry in any of the following Commonwealth Registry accounts:

                     (a)  the retirement account for a particular commitment period;

                     (b)  the net source cancellation account for a particular commitment period;

                     (c)  the non‑compliance cancellation account for a particular commitment period;

                     (d)  the voluntary cancellation account for a particular commitment period;

                     (e)  the mandatory cancellation account for a particular commitment period;

                      (f)  the temporary certified emission reduction replacement (expiry) account for a particular commitment period;

                     (g)  the long‑term certified emission reduction replacement (expiry) account for a particular commitment period;

                     (h)  the long‑term certified emission reduction replacement (storage reversal) account for a particular commitment period;

                      (i)  the long‑term certified emission reduction replacement (non‑certification) account for a particular commitment period.

Restriction

             (2)  The unit cannot be transferred or surrendered.

             (3)  Subsection (2) has effect despite any other provision of this Act.

151  Totals of Australian emissions units in a Registry account

                   The Registry must set out, for each Registry account, the total of all of the Australian emissions units in the account that have the same vintage year.

152  Voluntary closure of Registry accounts

Scope

             (1)  This section applies if:

                     (a)  a person has a Registry account; and

                     (b)  there are no entries for any Australian emissions units in the account; and

                     (c)  there are no entries for any Kyoto units in the account; and

                     (d)  there are no entries for any non‑Kyoto international emissions units in the account; and

                     (e)  the person, by written notice given to the Authority, requests the Authority to close the account.

Compliance with request

             (2)  The Authority must comply with the request as soon as practicable after receiving it.

             (3)  The Registry must set out a record of each closure under subsection (2).


 

Division 4Change in name of account holder

153  Application to have new name entered on the Registry

             (1)  If:

                     (a)  a Registry account is kept in the name of a person; and

                     (b)  the name of the person has changed;

the person may apply to the Authority to have the new name substituted for the previous name in the Registry in relation to the account.

             (2)  The application must be in writing.

154  Alteration in the Registry

Scope

             (1)  This section applies if a person applies under section 153 to have the person’s new name substituted for the person’s previous name in the Registry in relation to a Registry account.

Alteration

             (2)  If the Authority is satisfied that the person’s name has changed, the Authority must make the necessary alterations in the Registry.


 

Division 5Correction and rectification of Registry

155  Corrections of clerical errors or obvious defects

                   The Authority may alter the Registry for the purposes of correcting a clerical error or an obvious defect in the Registry.

157  General power of correction of Registry—Kyoto units

Power of correction

             (1)  The Authority may make such alterations to the Registry as the Authority considers appropriate for the purposes of ensuring that the relevant provisions of the Kyoto rules are complied with.

             (2)  The Authority may exercise the power conferred by subsection (1):

                     (a)  on written application being made to the Authority by a person; or

                     (b)  on the Authority’s own initiative.

Publication of alteration

             (3)  If the Authority makes an alteration to the Registry under subsection (1), the Authority must cause to be published on the Authority’s website a notice setting out the details of the alteration.

158  General power of correction of Registry—non‑Kyoto international emissions units

Power of correction

             (1)  The Authority may make such alterations to the Registry as the Authority considers appropriate for the purposes of ensuring that the relevant provisions of an international agreement, to the extent to which it relates to a non‑Kyoto international emissions unit, are complied with.

             (2)  The Authority may exercise the power conferred by subsection (1):

                     (a)  on written application being made to the Authority by a person; or

                     (b)  on the Authority’s own initiative.

Publication of alteration

             (3)  If the Authority makes an alteration to the Registry under subsection (1), the Authority must cause to be published on the Authority’s website a notice setting out the details of the alteration.

159  Rectification of Registry

Application for rectification by aggrieved person

             (1)  If a person is aggrieved by any of the following:

                     (a)  the omission of an entry from the Registry;

                     (b)  an entry made in the Registry without sufficient cause;

                     (c)  an entry wrongly existing in the Registry;

                     (d)  an error or defect in an entry in the Registry;

                     (e)  an entry wrongly removed from the Registry;

the person may apply to the Federal Court for the rectification of the Registry.

Application for rectification by the Authority

          (1A)  If the Authority is concerned about any of the following:

                     (a)  the omission of an entry from the Registry;

                     (b)  an entry made in the Registry without sufficient cause;

                     (c)  an entry wrongly existing in the Registry;

                     (d)  an error or defect in an entry in the Registry;

                     (e)  an entry wrongly removed from the Registry;

the Authority may apply to the Federal Court for the rectification of the Registry.

Court orders

             (2)  If an application is made under subsection (1) or (1A) to the Federal Court for the rectification of the Registry, the court may make such order as it thinks fit directing the rectification of the Registry.

          (2A)  An order made by the court must not be expressed to take effect before the order is made.

             (3)  In proceedings under this section, the court may decide any question that it is necessary or expedient to decide in connection with the rectification of the Registry.

Appearance of Authority

             (4)  Notice of an application under subsection (1) must be given to the Authority, whose representative:

                     (a)  may appear and be heard; and

                     (b)  must appear if so directed by the court.

Copy of order to be given to Authority

             (5)  An office copy of an order made by the court may be given to the Authority.

Compliance with order

             (6)  The Authority must, on receipt of the order, rectify the Registry accordingly.


 

Division 6Miscellaneous

160  Making a false entry in the Registry

                   A person commits an offence if:

                     (a)  the person:

                              (i)  makes an entry in the Registry; or

                             (ii)  causes an entry to be made in the Registry; or

                            (iii)  concurs in the making of an entry in the Registry; and

                     (b)  the person does so knowing that the entry is false.

Penalty:  Imprisonment for 7 years or 2,000 penalty units, or both.

Note:          The same conduct may be an offence against both this section and section 145.4 of the Criminal Code.

161  Falsified documents

                   A person commits an offence if:

                     (a)  the person produces or tenders in evidence a document; and

                     (b)  the document falsely purports to be a copy of or extract from an entry in the Registry.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

Note:          The same conduct may be an offence against both this section and section 137.2 of the Criminal Code.

162  Evidentiary provisions

             (1)  The Authority may supply a copy of or extract from the Registry certified by the Authority to be a true copy or true extract, as the case may be.

             (2)  The certified copy or extract is admissible in evidence in all courts and proceedings without further proof or production of the original.

             (3)  The Authority may charge a fee specified in the regulations for supplying a certified copy or extract under subsection (1).

             (4)  A fee specified under subsection (3) must not be such as to amount to taxation.

163  Use and disclosure of information obtained from the Registry

Use

             (1)  A person must not use information to contact or send material to another person if that information:

                     (a)  is about the other person; and

                     (b)  was obtained from the Registry.

Disclosure

             (2)  A person (the first person) must not disclose information that:

                     (a)  is about another person; and

                     (b)  was obtained from the Registry; and

                     (c)  the first person knows is likely to be used to contact or send material to the other person.

Exception

             (3)  Subsections (1) and (2) do not apply if the use or disclosure of the information is relevant to:

                     (a)  the holding of:

                              (i)  Australian emissions units; or

                             (ii)  Kyoto units; or

                            (iii)  non‑Kyoto international emissions units;

                            recorded in the Registry; or

                     (b)  the exercise of the rights attaching to those units.

             (4)  A person who wishes to rely on subsection (3) bears an evidential burden in relation to that matter.

Note:          For evidential burden, see section 5.

Ancillary contraventions

             (5)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1) or (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (2); or

                     (d)  conspire with others to effect a contravention of subsection (1) or (2).

Civil penalty provisions

             (6)  Subsections (1), (2) and (5) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

164  Regulations about the Registry

             (1)  The regulations may make further provision in relation to the Registry.

             (2)  Regulations made for the purposes of subsection (1) may make provision requiring the holder of a Registry account to notify a matter to the Authority.

             (3)  Subsection (2) does not limit subsection (1).

Requirement

             (4)  If the holder of a Registry account is subject to a requirement under regulations made for the purposes of subsection (1) or (2), the holder must comply with that requirement.

Ancillary contraventions

             (5)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (4); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (4); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (4); or

                     (d)  conspire with others to effect a contravention of subsection (4).

Civil penalty provisions

             (6)  Subsections (4) and (5) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.


 

Part 8Emissions‑intensive trade‑exposed assistance program

Division 1Introduction

165  Aim and objects

             (1)  The aim of this Part is to recognise issues relating to the impact of the carbon pollution reduction scheme on the international competitiveness of activities that are:

                     (a)  identified as emissions‑intensive trade‑exposed activities; and

                     (b)  carried on in Australia.

             (2)  The objects of this Part are:

                     (a)  to enable the identification of activities as emissions‑intensive trade‑exposed activities; and

                     (b)  to reduce the incentives for such an activity to be located in, or re‑located to, foreign countries; and

                     (c)  to provide transitional assistance in respect of such an activity if carried on in Australia;

until such assistance is no longer warranted, having regard to:

                     (d)  whether sufficient measures to reduce emissions of carbon dioxide and other greenhouse gases have been implemented in respect of markets:

                              (i)  that are outside Australia; and

                             (ii)  that are for goods produced as a result of such an activity (whether carried on in or outside Australia); and

                            (iii)  in which persons who carry on such an activity in Australia compete; or

                     (e)  whether foreign countries that are responsible for the substantial majority of the world’s emissions of carbon dioxide and other greenhouse gases have implemented sufficient measures to reduce those emissions; or

                      (f)  any other relevant matters.

166  Simplified outline

                   The following is a simplified outline of this Part:

•      The regulations may formulate a program, to be known as the emissions‑intensive trade‑exposed assistance program, for the issue of free Australian emissions units in respect of activities that:

               (a)     under the program, are taken to be emissions‑intensive trade‑exposed activities; and

               (b)     are, or are to be, carried on in Australia during a financial year specified in the program.

•      The emissions‑intensive trade‑exposed assistance program may:

               (a)     require a recipient of free Australian emissions units to relinquish units; and

               (b)     impose reporting or record‑keeping requirements on a recipient of free Australian emissions units.


 

Division 2Formulation of the emissions‑intensive trade‑exposed assistance program

167  Emissions‑intensive trade‑exposed assistance program

             (1)  The regulations may formulate a program (to be known as the emissions‑intensive trade‑exposed assistance program) for the issue of free Australian emissions units in respect of activities that:

                     (a)  under the program, are taken to be emissions‑intensive trade‑exposed activities; and

                     (b)  are, or are to be, carried on in Australia during an eligible financial year specified in the program.

             (2)  The emissions‑intensive trade‑exposed assistance program must provide that free Australian emissions units must not be issued to a person in accordance with the program unless the person:

                     (a)  meets such requirements as are specified in the program; and

                     (b)  has a Registry account.

          (2A)  Before 30 June 2016, the emissions‑intensive trade‑exposed assistance program must not provide that the extraction of coal is an activity that, under the program, is taken to be an emissions‑intensive trade‑exposed activity.

             (3)  The Minister must take all reasonable steps to ensure that regulations are made for the purposes of subsection (1) before 1 July 2010.

168  Relinquishment requirement

             (1)  The emissions‑intensive trade‑exposed assistance program may provide that, if:

                     (a)  a number of free Australian emissions units have been issued to a person in accordance with the program; and

                     (b)  any of the following subparagraphs applies:

                              (i)  a specified event happens;

                             (ii)  a specified circumstance comes into existence;

                            (iii)  the Authority is satisfied about a specified matter;

the person is required to relinquish a number of Australian emissions units ascertained in accordance with the program.

Note:          An administrative penalty is payable under section 287 for non‑compliance with a relinquishment requirement under the emissions‑intensive trade‑exposed assistance program.

             (2)  The number of Australian emissions units required to be relinquished by the person must not exceed the number of units mentioned in paragraph (1)(a).

169  Reporting requirement

Scope

             (1)  This section applies to a person if free Australian emissions units have been issued to the person in accordance with the emissions‑intensive trade‑exposed assistance program.

Requirement

             (2)  The emissions‑intensive trade‑exposed assistance program may make provision for and in relation to requiring the person to give one or more written reports to the Authority.

170  Record‑keeping requirement

Scope

             (1)  This section applies to a person if free Australian emissions units have been issued to the person in accordance with the emissions‑intensive trade‑exposed assistance program.

Requirement

             (2)  The emissions‑intensive trade‑exposed assistance program may make provision for and in relation to requiring the person to:

                     (a)  make records of information specified in the program; and

                     (b)  retain such a record, or a copy, for 5 years after the record was made.

171  Other matters

             (1)  The emissions‑intensive trade‑exposed assistance program may make provision for and in relation to the following matters:

                     (a)  applications for free Australian emissions units;

                     (b)  the approval by the Authority of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  the method of calculating the number of free Australian emissions units to be issued to a person in accordance with the program.

             (2)  The emissions‑intensive trade‑exposed assistance program may provide that an application for free Australian emissions units must be accompanied by a prescribed report.

             (3)  The emissions‑intensive trade‑exposed assistance program may provide for verification by statutory declaration of statements in applications for free Australian emissions units.

172  Ancillary or incidental provisions

                   The emissions‑intensive trade‑exposed assistance program may contain ancillary or incidental provisions.


 

Division 3Compliance with reporting and record‑keeping requirements under the emissions‑intensive trade‑exposed assistance program

173  Compliance with reporting and record‑keeping requirements

Reporting requirements

             (1)  If a person is subject to a requirement under the emissions‑intensive trade‑exposed assistance program to give a report to the Authority, the person must comply with that requirement.

Record‑keeping requirements

             (2)  If a person is subject to a requirement under the emissions‑intensive trade‑exposed assistance program to:

                     (a)  make a record of information; or

                     (b)  retain such a record or a copy;

the person must comply with that requirement.

Ancillary contraventions

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1) or (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (2); or

                     (d)  conspire with others to effect a contravention of subsection (1) or (2).

Civil penalty provisions

             (4)  Subsections (1), (2) and (3) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.


 

Division 4Special information‑gathering powers

173A  Minister may obtain information

Scope

             (1)  This section applies to a constitutional corporation if:

                     (a)  a person (who may be the corporation) has indicated to the Commonwealth that the person believes that an activity may be, or should be, eligible for emissions‑intensive trade‑exposed assistance; and

                     (b)  that activity is not an activity that, under the emissions‑intensive trade‑exposed assistance program, is taken to be an emissions‑intensive trade‑exposed activity; and

                     (c)  the Minister believes on reasonable grounds that the corporation has information that:

                              (i)  relates to the activity; and

                             (ii)  is likely to assist the Commonwealth to formulate or vary the policy embodied in the emissions‑intensive trade‑exposed assistance program.

Request for information and report

             (2)  The Minister may, by written notice given to the corporation:

                     (a)  request the corporation to give to the Minister, within the period and in the manner and form specified in the notice, any such information; and

                     (b)  request that the information be accompanied by a report specified in the notice.

             (3)  A period specified under subsection (2) must not be shorter than 60 days after the notice is given.

Request for information

             (4)  The Minister may, by written notice given to the corporation, request the corporation to give to the Minister, within the period and in the manner and form specified in the notice, any such information.

             (5)  A period specified under subsection (4) must not be shorter than 30 days after the notice is given.

173B  No assistance for 2 eligible financial years if corporation refuses or fails to comply with request for information

Scope

             (1)  This section applies if:

                     (a)  a constitutional corporation is given a request under subsection 173A(2) or (4) at a particular time; and

                    (aa)  the corporation is capable of complying with the request; and

                     (b)  the corporation refuses or fails to comply with the request; and

                     (c)  the Minister notifies the Authority, in writing, that the Minister considers that the non‑compliance is significant.

No assistance for 2 eligible financial years

             (2)  No free Australian emissions units that have a vintage year of:

                     (a)  the first eligible financial year that begins after that time; or

                     (b)  the eligible financial year that next follows the eligible financial year mentioned in paragraph (a);

are to be issued to the corporation in accordance with the emissions‑intensive trade‑exposed assistance program.

173C  Disclosure of information to the Authority

Scope

             (1)  This section applies to information obtained under section 173A.

Disclosure

             (2)  The Minister may disclose the information to the Authority for the purposes of, or in connection with, the performance of the functions, or the exercise of the powers, of the 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 Authority.


 

Part 8ACoal mining

Division 1Introduction

173D  Object

                   The object of this Part is to provide limited transitional assistance in respect of coal mining that has significant fugitive emissions of greenhouse gases.

173E  Simplified outline

                   The following is a simplified outline of this Act:

•      Free Australian emissions units may be issued in respect of coal mining that meets certain eligibility requirements.

•      Free units will be issued during:

               (a)     the financial year beginning on 1 July 2011; and

               (b)     each of the next 4 financial years.

•      The number of free units is capped.


 

Division 2Issue of free Australian emissions units in respect of coal mining

173F  Issue of free Australian emissions units in respect of coal mining

Scope

             (1)  This section applies if a certificate of entitlement to coal mining assistance is in force in respect of an eligible coal mining area for an eligible financial year.

Note:          For eligible coal mining area, see section 173R.

Issue of free units

             (2)  As soon as practicable after the day on which the certificate was issued, the Authority must issue to the holder of the certificate a number of free Australian emissions units equal to the number specified in the certificate as the unit entitlement for that certificate.

             (3)  Free Australian emissions units issued in accordance with subsection (2) during an eligible financial year are to have a vintage year of the eligible financial year.

             (4)  The Authority must not issue a free Australian emissions unit to a person in accordance with subsection (2) unless the person has a Registry account.


 

Division 3Certificate of entitlement to coal mining assistance

173G  Application for certificate of entitlement to coal mining assistance

             (1)  During the first 4 months of:

                     (a)  the eligible financial year beginning on 1 July 2011; or

                     (b)  the eligible financial year beginning on 1 July 2012; or

                     (c)  the eligible financial year beginning on 1 July 2013; or

                     (d)  the eligible financial year beginning on 1 July 2014; or

                     (e)  the eligible financial year beginning on 1 July 2015;

a person may apply to the Authority for the issue to the person of a certificate of entitlement to coal mining assistance in respect of an eligible coal mining area for the eligible financial year.

Note:          For eligible coal mining area, see section 173R.

             (2)  An application must state that coal mining operations carried out in the eligible coal mining area are not likely to permanently cease during the eligible financial year.

             (3)  An application must specify the number of tonnes of saleable coal produced from coal mining operations carried out in the eligible coal mining area during the previous financial year.

173H  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by a prescribed report.

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

173J  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

173K  Issue of certificate of entitlement to coal mining assistance

Scope

             (1)  This section applies if an application under section 173G has been made for the issue of a certificate of entitlement to coal mining assistance in respect of an eligible coal mining area for an eligible financial year (the current eligible financial year).

Issue of certificate

             (2)  The Authority must issue a certificate of entitlement to coal mining assistance in respect of the eligible coal mining area for the current eligible financial year if:

                     (a)  the applicant passes the coal mining control test in relation to the eligible coal mining area for the previous financial year; and

                     (b)  throughout the previous financial year, there was a coal mining title over the area of land; and

                     (c)  during the whole or a part of the previous financial year, coal mining operations were carried out in the whole or a part of the area of land; and

                     (d)  if:

                              (i)  during a period that is included in, or consists of, the previous financial year, coal mining operations carried out in the eligible coal mining area were a facility; and

                             (ii)  a nomination is or will be required under subsection 11B(2) or 11C(2) of the National Greenhouse and Energy Reporting Act 2007 in relation to the facility for that period;

                            such a nomination has been made.

Note:          For coal mining control test, see section 173W.

             (3)  A certificate of entitlement to coal mining assistance must state that a specified number is the unit entitlement in respect of the certificate.

Note:          See section 173L (unit entitlement).

Transitional

             (4)  If:

                     (a)  during a period that is included in, or consists of, the previous financial year, coal mining operations carried out in the eligible coal mining area were a facility; and

                     (b)  the current eligible financial year is the eligible financial year beginning on 1 July 2011;

sections 11B and 11C of the National Greenhouse and Energy Reporting Act 2007 have effect, in relation to the facility, as if:

                     (c)  those sections had commenced on 1 July 2010; and

                     (d)  the financial year beginning on 1 July 2010 had been an eligible financial year.

Note:          Sections 11B and 11C of the National Greenhouse and Energy Reporting Act 2007 deal with operational control of facilities.

Timing

             (5)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 173J(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (6)  If the Authority decides to refuse to issue a certificate of entitlement to coal mining assistance, the Authority must give written notice of the decision to the applicant.

Publication of copy of certificate

             (7)  As soon as practicable after issuing a certificate of entitlement to coal mining assistance, the Authority must publish a copy of the certificate on its website.

173L  Unit entitlement

             (1)  The number to be specified in a certificate of entitlement to coal mining assistance in respect of an eligible coal mining area for an eligible financial year (the current eligible financial year) as the unit entitlement in respect of the certificate is the number worked out using the following formula:

where:

assistance factor for the eligible coal mining area has the meaning given by subsection (2).

total base period fugitive emissions numbers means whichever is the lesser of the following:

                     (a)  the total of the base period fugitive emissions numbers specified in section 173R declarations made, or purportedly made, by the Authority before the start of the current eligible financial year;

                     (b)  16,200,000.

For the purposes of paragraph (a), disregard a section 173R declaration if a decision to make the declaration was set aside by a court or tribunal before the start of the current eligible financial year.

             (2)  For the purposes of subsection (1), the assistance factor for the eligible coal mining area is the amount worked out using the following formula:

where:

adjusted base period fugitive emissions intensity number for the eligible coal mining area means the adjusted base period fugitive emissions intensity number specified in the section 173R declaration relating to the eligible coal mining area.

relevant saleable coal number for the eligible coal mining area means whichever is the lesser of the following:

                     (a)  the capped base period saleable coal number specified in the section 173R declaration relating to the eligible coal mining area;

                     (b)  the Authority’s reasonable estimate of the total number of tonnes of saleable coal produced from coal mining operations carried out in the eligible coal mining area during the previous financial year.

total adjusted base period fugitive emissions numbers means the total of the adjusted base period fugitive emissions numbers specified in section 173R declarations made, or purportedly made, by the Authority before the start of the current eligible financial year. For this purpose, disregard a section 173R declaration if a decision to make the declaration was set aside by a court or tribunal before the start of the current eligible financial year.

             (3)  If the number worked out using the formula in subsection (1) is not a whole number, the number is to be rounded to the nearest whole number (with a number ending in .5 being rounded up).

173M  Certificate of entitlement to coal mining assistance is not transferable

                   A certificate of entitlement to coal mining assistance is not transferable.


 

Division 4Eligible coal mining area

173N  Application for declaration of eligible coal mining area

                   A person may, within 180 days after the commencement of this section, apply to the Authority for the declaration of an area of land as an eligible coal mining area.

173P  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by a prescribed report.

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

173Q  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

173R  Declaration of eligible coal mining area

Scope

             (1)  This section applies if an application under section 173N has been made for a declaration of an area of land as an eligible coal mining area.

Declaration

             (2)  After considering the application, the Authority may, by writing, declare that the area of land is an eligible coal mining area for the purposes of this Act.

             (3)  A declaration under subsection (2) must:

                     (a)  identify, in accordance with the regulations, the area of land; and

                     (b)  state that a specified number is the base period fugitive emissions number in relation to the area of land; and

                     (c)  state that a specified number is the base period saleable coal number in relation to the area of land; and

                     (d)  state that a specified number is the capped base period saleable coal number in relation to the area of land; and

                     (e)  state that a specified number is the adjusted base period fugitive emissions intensity number in relation to the area of land; and

                      (f)  state that a specified number is the adjusted base period fugitive emissions number in relation to the area of land.

Note 1:       The base period fugitive emissions number is worked out under section 173S.

Note 2:       The base period saleable coal number is worked out under section 173T.

Note 3:       The capped base period saleable coal number is worked out under section 173TA.

Note 4:       The adjusted base period fugitive emissions intensity number is worked out under section 173U.

Note 5:       The adjusted base period fugitive emissions number is worked out under section 173V.

Criteria for declaration

             (4)  The Authority must not declare that the area of land is an eligible coal mining area unless the Authority is satisfied that:

                     (a)  during the whole or a part of the 2‑year period beginning on 1 July 2007, coal mining operations were carried out in the whole or a part of the area of land; and

                     (b)  the applicant passes the coal mining control test in relation to the area of land for the financial year beginning on 1 July 2008; and

                     (c)  such other conditions (if any) as are specified in the regulations are satisfied.

Note:          For coal mining control test, see section 173W.

Timing

             (5)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 173Q(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

When a declaration takes effect

             (6)  A declaration under subsection (2) takes effect immediately after it is made.

Notification of declaration

             (7)  As soon as practicable after making a declaration under subsection (2), the Authority must give a copy of the declaration to the applicant.

Publication of copy of declaration

             (8)  As soon as practicable after making a declaration under subsection (2), the Authority must publish a copy of the declaration on its website.

Refusal

             (9)  If the Authority decides to refuse to declare the area of land as an eligible coal mining area, the Authority must give written notice of the decision to the applicant.

Declaration is not legislative instrument

           (10)  A declaration made under subsection (2) is not a legislative instrument.


 

Division 5Miscellaneous

173S  Base period fugitive emissions number

                   For the purposes of this Act, the base period fugitive emissions number in relation to an area of land is the Authority’s reasonable estimate of the total number of tonnes of the carbon dioxide equivalence of fugitive emissions emitted from coal mining operations carried out in the area of land during the financial year beginning on 1 July 2008, calculated using the method ascertained in accordance with the regulations.

173T  Base period saleable coal number

For the purposes of this Act, the base period saleable coal number in relation to an area of land is the Authority’s reasonable estimate of the total number of tonnes of saleable coal produced from coal mining operations carried out in the area of land during the financial year beginning on 1 July 2008.

173TA  Capped base period saleable coal number

For the purposes of this Act, the capped base period saleable coal number in relation to an area of land is whichever is the greater of the following:

                     (a)  the Authority’s reasonable estimate of the total number of tonnes of saleable coal produced from coal mining operations carried out in the area of land during the financial year beginning on 1 July 2007;

                     (b)  the Authority’s reasonable estimate of the total number of tonnes of saleable coal produced from coal mining operations carried out in the area of land during the financial year beginning on 1 July 2008.

173U  Adjusted base period fugitive emissions intensity number

                   For the purposes of this Act, the adjusted base period fugitive emissions intensity number in relation to an area of land is the number worked out to 3 decimal places (rounding up if the 4th decimal place is 5 or more) using the following formula:

Note 1:       The base period fugitive emissions number is worked out under section 173S.

Note 2:       The base period saleable coal number is worked out under section 173T.

173V  Adjusted base period fugitive emissions number

             (1)  For the purposes of this Act, the adjusted base period fugitive emissions number in relation to an area of land is the number worked out using the following formula:

Note 1:       The adjusted base period fugitive emissions intensity number is worked out under section 173U.

Note 2:       The capped base period saleable coal number is worked out under section 173TA.

             (2)  If the number worked out using the formula in subsection (1) is not a whole number, the number is to be rounded to the nearest whole number (with a number ending in .5 being rounded up).

173W  Coal mining control test

                   For the purposes of this Act, a person passes the coal mining control test in relation to an area of land for a financial year if:

                     (a)  if, assuming that:

                              (i)  at the last time in the financial year when coal mining operations were carried out in the area of land, those coal mining operations had been a facility; and

                             (ii)  at the last time in the financial year when coal mining operations were carried out in the area of land, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from those coal mining operations; and

                            (iii)  the financial year had been an eligible financial year;

                            a controlling corporation of a group would, under section 17, be a liable entity for the financial year wholly or partly as a result of those emissions of greenhouse gases—the person is the controlling corporation; or

                     (b)  if, assuming that:

                              (i)  at the last time in the financial year when coal mining operations were carried out in the area of land, those coal mining operations had been a facility; and

                             (ii)  at the last time in the financial year when coal mining operations were carried out in the area of land, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from those coal mining operations; and

                            (iii)  the financial year had been an eligible financial year;

                            a non‑group entity would, under section 18, be a liable entity for the financial year wholly or partly as a result of those emissions of greenhouse gases—the person is the non‑group entity; or

                     (c)  if, assuming that:

                              (i)  at the last time in the financial year when coal mining operations were carried out in the area of land, those coal mining operations had been a facility; and

                             (ii)  at the last time in the financial year when coal mining operations were carried out in the area of land, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from those coal mining operations; and

                            (iii)  the financial year had been an eligible financial year;

                            the holder of a liability transfer certificate would, under section 19, be a liable entity for the financial year wholly or partly as a result of those emissions of greenhouse gases—the person is the holder of the liability transfer certificate.

173X  Submerged land

                   For the purposes of this Part, land includes submerged land.


 

Part 9Coal‑fired electricity generation

Division 1Introduction

174  Object

                   The object of this Part is to contribute to the maintenance of investor confidence in electricity generation. It does so by providing limited transitional assistance in respect of generation assets, where:

                     (a)  money was invested in those assets before the Commonwealth Government announced its support for a scheme to reduce pollution caused by emissions of carbon dioxide and other greenhouse gases; and

                     (b)  those assets are likely to suffer a significant decline in value as a result of the introduction of such a scheme.

175  Simplified outline

•      Free Australian emissions units may be issued in respect of generation assets that meet certain eligibility requirements.

•      Free units will be issued during:

               (a)     the financial year beginning on 1 July 2011; and

               (b)     each of the next 9 financial years.

•      The number of free units is capped.

•      If a windfall gain declaration is in force in relation to a generation asset, the Minister may determine that the number of free units to be issued in respect of the generation asset for the financial years beginning on 1 July 2018, 1 July 2019 and 1 July 2020 is to be halved.

•      Free units will not be issued if a generation asset does not pass the power system reliability test for a financial year.


 

Division 2Issue of free Australian emissions units in respect of generation assets

176  Issue of free Australian emissions units in respect of generation assets

Scope

             (1)  This section applies to a generation asset if a certificate of eligibility for coal‑fired generation assistance is in force in respect of the generation asset.

Issue of free units

             (2)  On each of the following days:

                     (a)  1 September in the eligible financial year beginning on 1 July 2011;

                     (b)  1 September in the eligible financial year beginning on 1 July 2012;

                     (c)  1 September in the eligible financial year beginning on 1 July 2013;

                     (d)  1 September in the eligible financial year beginning on 1 July 2014;

                     (e)  1 September in the eligible financial year beginning on 1 July 2015;

                      (f)  1 September in the eligible financial year beginning on 1 July 2016;

                     (g)  1 September in the eligible financial year beginning on 1 July 2017;

                     (h)  1 September in the eligible financial year beginning on 1 July 2018;

                      (i)  1 September in the eligible financial year beginning on 1 July 2019;

                      (j)  1 September in the eligible financial year beginning on 1 July 2020;

the Authority must issue a number of free Australian emissions units equal to the number worked out using the following formula:

where:

annual assistance factor specified in the certificate means the number specified in the certificate as the annual assistance factor in respect of the generation asset.

Note:          The annual assistance factor is worked out under section 182.

generation assistance limit for that eligible financial year means:

                    (aa)  if that eligible financial year begins on 1 July 2011—26,140,000; or

                    (ab)  if that eligible financial year begins on 1 July 2012—26,140,000; or

                     (a)  if that eligible financial year begins on 1 July 2013—the number worked out using the formula in subsection (4); or

                     (b)  if that eligible financial year begins on 1 July 2014—26,140,000; or

                     (c)  if that eligible financial year begins on 1 July 2015—26,140,000; or

                     (d)  if that eligible financial year begins on 1 July 2016—19,600,000; or

                     (e)  if that eligible financial year begins on 1 July 2017—19,600,000; or

                      (f)  if that eligible financial year begins on 1 July 2018—19,600,000; or

                     (g)  if that eligible financial year begins on 1 July 2019—19,600,000; or

                     (h)  if that eligible financial year begins on 1 July 2020—19,600,000.

total annual assistance factors for that eligible financial year means the total of the numbers specified as annual assistance factors in certificates of eligibility for coal‑fired generation assistance issued, or purportedly issued, by the Authority before 1 September in that eligible financial year. For this purpose, disregard a certificate if a decision to issue the certificate was set aside by a court or tribunal before 1 September in that eligible financial year.

             (3)  If the number worked out using the formula in subsection (2) is not a multiple of 100:

                     (a)  the number is to be rounded to the nearest multiple of 100; and

                     (b)  if the number is a multiple of 50—the number is to be rounded up to the nearest multiple of 100.

             (4)  The formula mentioned in paragraph (a) of the definition of generation assistance limit for that eligible financial year in subsection (2) is as follows:

where:

total number of withheld units means the Authority’s reasonable estimate of the number of free Australian emissions units with a vintage year beginning on 1 July 2011 or 1 July 2012 that were not issued in accordance with this Part because of section 188 (power system reliability).

When units are to be issued

             (5)  If 1 September in a later eligible financial year is not a business day, the units are to be issued on the next business day after that 1 September.

Recipient of units

             (6)  Free Australian emissions units issued in accordance with subsection (2) during an eligible financial year (the current eligible financial year) are to be issued to whichever one of the following persons is applicable:

                     (a)  if, assuming that:

                              (i)  immediately before the end of the previous eligible financial year, the generation asset had been a facility; and

                             (ii)  immediately before the end of the previous eligible financial year, the generation asset had been in operation; and

                            (iii)  immediately before the end of the previous eligible financial year, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from the operation of the generation asset; and

                            (iv)  the financial year beginning on 1 July 2010 had been an eligible financial year;

                            a controlling corporation of a group would, under section 17, be a liable entity for the previous eligible financial year wholly or partly as a result of those emissions of greenhouse gases—the controlling corporation;

                     (b)  if, assuming that:

                              (i)  immediately before the end of the previous eligible financial year, the generation asset had been a facility; and

                             (ii)  immediately before the end of the previous eligible financial year, the generation asset had been in operation; and

                            (iii)  immediately before the end of the previous eligible financial year, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from the operation of the generation asset; and

                            (iv)  the financial year beginning on 1 July 2010 had been an eligible financial year;

                            a non‑group entity would, under section 18, be a liable entity for the previous eligible financial year wholly or partly as a result of those emissions of greenhouse gases—the non‑group entity;

                     (c)  if, assuming that:

                              (i)  immediately before the end of the previous eligible financial year, the generation asset had been a facility; and

                             (ii)  immediately before the end of the previous eligible financial year, the generation asset had been in operation; and

                            (iii)  immediately before the end of the previous eligible financial year, greenhouse gases with a carbon dioxide equivalence of 25,000 tonnes had been emitted from the operation of the generation asset; and

                            (iv)  the financial year beginning on 1 July 2010 had been an eligible financial year;

                            a person would, under section 19, be a liable entity for the previous eligible financial year wholly or partly as a result of those emissions of greenhouse gases—the person.

Vintage year

             (7)  Free Australian emissions units issued in accordance with subsection (2) during an eligible financial year are to have a vintage year of the eligible financial year.

Registry account

             (8)  The Authority must not issue a free Australian emissions unit to a person in accordance with subsection (2) unless the person has a Registry account.

Other provisions

             (9)  This section has effect subject to sections 183, 185 and 188.

Note 1:       Sections 183 and 185 deal with windfall gains.

Note 2:       Section 188 deals with power system reliability.


 

Division 3Certificate of eligibility for coal‑fired generation assistance

177  Application for certificate of eligibility for coal‑fired generation assistance

             (1)  A person may, within 180 days after the commencement of this section, apply for the Authority to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation asset.

             (2)  A person is not entitled to make an application in respect of a generation complex unless the person owns, controls or operates the generation complex.

             (3)  A person is not entitled to make an application in respect of a generation complex project unless the person proposes to own, control or operate the proposed generation complex.

             (4)  Applications must be mutually exclusive so far as their coverage of generation units or proposed generation units is concerned.

             (5)  If the Authority receives 2 or more applications that, when taken together, breach subsection (4):

                     (a)  the Authority must not consider any of those applications; and

                     (b)  the Authority must, by written notice given to the applicants, reject those applications and inform the applicants that:

                              (i)  the applications breach subsection (4); and

                             (ii)  if one or more fresh applications are made within 20 days after the notice was given and those fresh applications do not breach subsection (4), the Authority will be prepared to consider those fresh applications.

             (6)  The 180 day time limit in subsection (1) does not apply to a fresh application made in response to a notice under subsection (5).

             (7)  This Act (other than subsection (5)) has effect as if an application rejected under subsection (5) had never been made.

             (8)  The Authority may extend the 180 day time limit in subsection (1) for the making of a particular application, so long as:

                     (a)  the extended time limit is not later than 210 days after the commencement of this section; and

                     (b)  the application, when taken together with any other application or applications received by the Authority, does not breach subsection (4).

178  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Minister; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by a prescribed report; and

                      (f)  if the application does not relate to a generation complex that entered service on or before 1 July 2004—be accompanied by a report that complies with subsection (3).

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (3)  A report complies with this subsection if:

                     (a)  the report is by a person who has appropriate engineering qualifications; and

                     (b)  the report sets out the person’s estimate of the emissions intensity of the generation asset; and

                     (c)  the person does not have an interest, pecuniary or otherwise, in the outcome of the application.

179  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

180  Issue of certificate of eligibility for coal‑fired generation assistance

Scope

             (1)  This section applies to a generation asset if an application under section 177 has been made in respect of the generation asset.

Issue of certificate

             (2)  After considering the application, the Authority may issue a certificate of eligibility for coal‑fired generation assistance in respect of the generation asset.

Note:          See section 181 (criteria for issuing certificate).

             (3)  A certificate of eligibility for coal‑fired generation assistance must state that a specified number is the annual assistance factor in respect of the generation asset.

Note:          The annual assistance factor is worked out under section 182.

Timing

             (4)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 179(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within whichever is the later of the following:

                              (i)  90 days after the application was made;

                             (ii)  210 days after the commencement of this section.

Refusal

             (5)  If the Authority decides to refuse to issue a certificate of eligibility for coal‑fired generation assistance in respect of the generation asset, the Authority must give written notice of the decision to the applicant.

Publication of copy of certificate

             (6)  As soon as practicable after issuing a certificate of eligibility for coal‑fired generation assistance in respect of the generation asset, the Authority must publish a copy of the certificate on its website.

181  Criteria for issuing certificate of eligibility for coal‑fired generation assistance

             (1)  The Authority must not issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation asset unless the Authority is satisfied that the generation asset passes the generation asset assistance eligibility test.

Generation complexes

             (2)  For the purposes of subsection (1), a generation complex passes the generation asset assistance eligibility test if:

                     (a)  each generation unit in the generation complex satisfies at least one of the following conditions:

                              (i)  it was in operation at any time during June 2007;

                             (ii)  it was not in operation at any time during June 2007, but as at the end of June 2007 there was a plan to return the generation unit to operation before the end of 2007;

                            (iii)  it was not in operation at any time during June 2007, but was intended to be returned to operation following a period of being out of service due to restricted access to cooling water; and

                     (b)  at least 95% of the electricity generated by the generation complex during the financial year beginning on 1 July 2006 was attributable to the combustion of coal; and

                     (c)  at any time during the financial year beginning on 1 July 2006, the generation complex was connected to a grid with a grid capacity of at least 100 megawatts.

Generation complex projects

             (3)  For the purposes of subsection (1), a generation complex project passes the generation asset assistance eligibility test if:

                     (a)  as at the start of 3 June 2007, the project was in existence but had not been completed; and

                     (b)  as at the start of 3 June 2007, the project was fully committed by the project proponent, having regard to the following matters:

                              (i)  the project proponent’s rights to land for the construction of the project;

                             (ii)  whether contracts for the supply and construction of the project’s major plant or equipment (including contract provisions for project cancellations) were executed;

                            (iii)  the status of all planning and construction approvals and licences necessary for the commencement of construction of the project (including completed and approved environmental impact statements);

                            (iv)  the level of commitment to financing arrangements for the project;

                             (v)  whether project construction had commenced before 3 June 2007;

                            (vi)  whether, as at the start of 3 June 2007, a firm date had been set for project construction to commence; and

                     (c)  as at the start of 3 June 2007, it was proposed that at least 95% of the electricity generated by the project during each financial year of operation would be attributable to the combustion of coal; and

                     (d)  as at the start of 3 June 2007, it was proposed that the project would, on completion, be connected to a grid with a grid capacity of at least 100 megawatts.

Capacity of grid

             (4)  For the purposes of this section, the capacity of a grid is to be determined in accordance with regulations made for the purposes of subsection 31(3) of the Renewable Energy (Electricity) Act 2000.

182  Annual assistance factor

             (1)  The annual assistance factor to be specified in a certificate of eligibility for coal‑fired generation assistance in respect of a generation asset is the Authority’s reasonable estimate of the number worked out to 3 decimal places using the following formula:

where:

emissions intensity has the meaning given by whichever of subsection (2), (3), (4) or (6) is applicable.

historical energy means:

                     (a)  if the generation asset is a generation complex that entered service on or before 1 July 2004—the total number of gigawatt hours of electricity generated by the generation complex during the period beginning on 1 July 2004 and ending on 30 June 2007, as measured at all generator terminals of the generation complex; or

                     (b)  if the generation asset is a generation complex that entered service after 1 July 2004—21.024 multiplied by the number of megawatts in the nameplate rating of the generation complex as at the day the generation complex entered service; or

                     (c)  if the generation asset is a generation complex project—21.024 multiplied by the number of megawatts in the proposed nameplate rating of the proposed generation complex, worked out as at the start of 3 June 2007.

Emissions intensity

             (2)  For the purposes of subsection (1), the emissions intensity of a generation complex that entered service on or before 1 July 2004 is the number worked out to 3 decimal places using the formula:

where:

carbon dioxide equivalence of emissions means the total number of kilotonnes of the carbon dioxide equivalence of the greenhouse gases emitted from the combustion of fuel in the generation complex for the purposes of the generation of electricity during the period beginning on 1 July 2004 and ending on 30 June 2007.

gigawatt hours of electricity generated means the total number of gigawatt hours of electricity generated by the generation complex during the period beginning on 1 July 2004 and ending on 30 June 2007, as measured at all generator terminals of the generation complex.

             (3)  However, the emissions intensity of a generation complex that entered service on or before 1 July 2004 is taken to be 0.86 if the number worked out to three decimal places using the formula in subsection (2) is less than 0.86.

             (4)  For the purposes of subsection (1), the emissions intensity of a generation asset not covered by subsection (2) is the number that, in the opinion of the Authority, should be treated as the emissions intensity of the generation asset, having regard to the following matters:

                     (a)  any documents relating to the design of the generation asset;

                     (b)  any contracts for the supply of fuel for combustion in the generation asset for the purposes of the generation of electricity;

                     (c)  if the generation asset is a generation complex that has entered service—the number worked out to 3 decimal places using the formula set out in subsection (5);

                     (d)  the report mentioned in paragraph 178(1)(f);

                     (e)  such other matters (if any) as the Authority considers relevant.

             (5)  The formula mentioned in paragraph (4)(c) is:

where:

carbon dioxide equivalence of emissions means the total number of kilotonnes of the carbon dioxide equivalence of the greenhouse gases emitted from the combustion of fuel in the generation complex for the purposes of the generation of electricity during the period when the generation complex was in service.

gigawatt hours of electricity generated means the number of gigawatt hours of electricity generated by the generation complex during the period when the generation complex was in service, as measured at all generator terminals of the generation complex.

             (6)  However, the emissions intensity of a generation asset not covered by subsection (2) is taken to be 0.86 if the number worked out under subsection (4) is less than 0.86.


 

Division 4Windfall gain

183  Reduced assistance for 2018‑2019, 2019‑2020 and 2020‑2021 if a windfall gain declaration is in force etc.

             (1)  The Minister may, before 1 August 2018, by writing, determine that the number of free Australian emissions units that:

                     (a)  have a vintage year of:

                              (i)  the eligible financial year beginning on 1 July 2018; or

                             (ii)  the eligible financial year beginning on 1 July 2019; or

                            (iii)  the eligible financial year beginning on 1 July 2020; and

                     (b)  are to be issued in accordance with section 176 in respect of a specified generation asset;

is to be reduced by 50%.

             (2)  The Minister must not make a determination under subsection (1) in relation to a generation asset unless a windfall gain declaration is in force in respect of the generation asset.

             (3)  A copy of a determination under subsection (1) is to be given to:

                     (a)  the Authority; and

                     (b)  the person who made a submission under section 185 in relation to the generation asset.

             (4)  The Authority must publish the copy on its website.

             (5)  A determination under subsection (1) is not a legislative instrument.

184  Revocation of Ministerial determination

             (1)  This section applies if the Minister has made, or purportedly made, a determination under subsection 183(1) in relation to a generation asset, and:

                     (a)  all of the following conditions are satisfied:

                              (i)  the decision to make a windfall gain declaration in relation to the generation asset is set aside by the Administrative Appeals Tribunal;

                             (ii)  the Administrative Appeals Tribunal makes a decision in substitution for the decision so set aside;

                            (iii)  the substituted decision is a decision not to make a windfall gain declaration in relation to the generation asset; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the decision to make a windfall gain declaration in relation to the generation asset is set aside by the Administrative Appeals Tribunal;

                             (ii)  the Administrative Appeals Tribunal remits the decision for reconsideration by the Authority;

                            (iii)  the Authority reconsiders the decision and decides not to make a windfall gain declaration in relation to the generation asset; or

                     (c)  all of the following conditions are satisfied:

                              (i)  the decision to make a windfall gain declaration in relation to the generation asset is remitted by the Administrative Appeals Tribunal to the Authority for reconsideration of the decision;

                             (ii)  the Authority sets the decision aside and makes a decision in substitution for the decision set aside;

                            (iii)  the substituted decision is a decision not to make the windfall gain declaration in relation to the generation asset; or

                     (d)  both of the following conditions are satisfied:

                              (i)  the decision to make a windfall gain declaration in relation to the generation asset is quashed or set aside by a court;

                             (ii)  60 days pass, and neither the Authority nor the Administrative Appeals Tribunal has made, in substitution for the decision quashed or set aside, a decision to make a windfall gain declaration in relation to the generation asset.

Revocation of determination

             (2)  The Minister must declare, in writing, that this Act has effect as if the determination made, or purportedly made, under subsection 183(1) is revoked.

             (3)  A declaration under subsection (2) is not a legislative instrument.

184A  Revocation of Ministerial determination—issue of free Australian emissions units

Scope

             (1)  This section applies if:

                     (a)  the Minister has made, or purportedly made, a determination under subsection 183(1) in relation to a generation asset; and

                     (b)  as a result of the subsection 183(1) determination, a reduced number of free Australian emissions units have been issued to a person on a particular day in respect of the generation asset; and

                     (c)  after the issue of those units, the Minister has made a declaration under subsection 184(2) in relation to the subsection 183(1) determination.

Issue of free Australian emissions units

             (2)  On the 10th business day after the day on which the subsection 184(2) declaration was made, the Authority must issue to the person, in respect of the generation asset, a number of free Australian emissions units that is equal to the reduced number mentioned in paragraph (1)(b).

             (3)  Free Australian emissions units issued in an eligible financial year in accordance with subsection (2) are to have a vintage year of the eligible financial year.

Registry account

             (4)  The Authority must not issue a free Australian emissions unit to the person in accordance with subsection (2) unless the person has a Registry account.

Other provisions

             (5)  Subsection (2) has effect subject to sections 185 and 188.

Note 1:       Section 185 deals with windfall gains.

Note 2:       Section 188 deals with power system reliability.

No double entitlement

             (6)  If free Australian emissions units have been, or are to be, issued to the person in accordance with subsection (2) of this section, subsection 176(2) has effect, in relation to the requirement to issue free Australian emissions units on the day mentioned in paragraph (1)(b) of this section in respect of the generation asset, as if:

                     (a)  the subsection 184(2) declaration had never been made; and

                     (b)  the relevant conditions set out in paragraph 184(1)(a), (b), (c) or (d) had never been satisfied; and

                     (c)  in the case of a subsection 183(1) determination that was purportedly made—the determination had been validly made.

185  Submission about windfall gain

Scope

             (1)  This section applies to a generation asset if free Australian emissions units with a vintage year beginning on 1 July 2017 were issued to a person in accordance with this Part in respect of the generation asset.

Submission

             (2)  The person must, before 30 September 2017, make a written submission to the Authority:

                     (a)  stating whether or not the person is of the opinion that the generation asset passes the windfall gain test; and

                     (b)  setting out the person’s reasons for that opinion.

             (3)  A submission under subsection (2) must:

                     (a)  be in a form approved, in writing, by the Authority; and

                     (b)  contain such information as is specified in a legislative instrument made by the Authority; and

                     (c)  contain such documents (if any) as are specified in a legislative instrument made by the Authority.

Compliance

             (4)  If the person breaches subsection (2) in relation to the generation asset, no free Australian emissions units that have a vintage year of:

                     (a)  the eligible financial year beginning on 1 July 2018; or

                     (b)  the eligible financial year beginning on 1 July 2019; or

                     (c)  the eligible financial year beginning on 1 July 2020;

are to be issued in accordance with this Part in respect of the generation asset.

186  Windfall gain declaration

Scope

             (1)  This section applies to a generation asset if:

                     (a)  a certificate of eligibility for coal‑fired generation assistance is in force in respect of the generation asset; and

                     (b)  a submission about the generation asset is made under section 185.

Windfall gain declaration

             (2)  Before 1 April 2018, the Authority must consider whether the generation asset passes the windfall gain test, and:

                     (a)  if the Authority is satisfied that the generation asset passes the windfall gain test—make a written declaration (a windfall gain declaration) that the generation asset passes the windfall gain test; or

                     (b)  if the Authority is not satisfied that the generation asset passes the windfall gain test—refuse to make a windfall gain declaration in relation to the generation asset.

Note:          For windfall gain test, see section 187.

             (3)  Before making a declaration under subsection (2), the Authority must:

                     (a)  publish a draft of the declaration on its website and invite people to make submissions to the Authority on the question of whether the declaration should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Authority when it published the draft declaration; and

                     (c)  consult the Australian Energy Regulator; and

                     (d)  consult the Australian Energy Market Commission established under the Australian Energy Market Commission Establishment Act 2004 of South Australia; and

                    (da)  consult the appropriate energy market operator; and

                     (e)  consult such other bodies (if any) as are specified in the regulations.

          (3A)  The time limit mentioned in paragraph (2)(b) must not be shorter than 30 days after the draft declaration is published.

             (4)  In making a decision under this section, the Authority:

                     (a)  may make such assumptions and estimates as the Authority considers reasonable; and

                     (b)  may have regard to such other matters as the Authority considers relevant.

             (5)  A copy of a windfall gain declaration is to be given to the Minister.

             (6)  The copy must be accompanied by a report setting out the Authority’s reasons for making the declaration.

             (7)  A copy of the declaration and a copy of the report are to be published on the Authority’s website.

             (8)  The Authority may remove from the version of the report published on its website any material that the Authority considers to be commercial‑in‑confidence.

             (9)  At least 14 days before the Authority:

                     (a)  gives a copy of the report to the Minister; or

                     (b)  publishes a copy of the report on the Authority’s website;

a copy of the report is to be given to the person who made the submission mentioned in paragraph (1)(b).

           (10)  A windfall gain declaration is not a legislative instrument.

187  Windfall gain test

Scope

             (1)  This section applies to a generation asset if a certificate of eligibility for coal‑fired generation assistance is in force in respect of the generation asset.

Windfall gain test

             (2)  For the purposes of this Act, the generation asset passes the windfall gain test if:

                     (a)  it is likely that:

                              (i)  there will be a projected long‑term net revenue loss in respect of the generation asset; and

                             (ii)  the total value of assistance in respect of the generation asset will exceed that projected long‑term net revenue loss; or

                     (b)  it is likely that there will be a projected long‑term net revenue gain in respect of the generation asset.

Note 1:       For projected long‑term net revenue loss, see subsection (4) or (5).

Note 2:       For total value of assistance, see subsection (3).

Note 3:       For projected long‑term net revenue gain, see subsection (6) or (7).

Total value of assistance

             (3)  For the purposes of this section, the total value of assistance in respect of the generation asset is the sum of the net present values of:

                     (a)  the market value of free Australian emissions units with the following vintage years:

                              (i)  the eligible financial year beginning on 1 July 2011;

                             (ii)  the eligible financial year beginning on 1 July 2012;

                            (iii)  the eligible financial year beginning on 1 July 2013;

                            (iv)  the eligible financial year beginning on 1 July 2014;

                             (v)  the eligible financial year beginning on 1 July 2015;

                            (vi)  the eligible financial year beginning on 1 July 2016;

                           (vii)  the eligible financial year beginning on 1 July 2017;

                            issued in accordance with this Part in respect of the generation asset; and

                     (b)  the projected market value of free Australian emissions units with the following vintage years:

                              (i)  the eligible financial year beginning on 1 July 2018;

                             (ii)  the eligible financial year beginning on 1 July 2019;

                            (iii)  the eligible financial year beginning on 1 July 2020;

                            to be issued in accordance with this Part in respect of the generation asset.

Projected long‑term net revenue loss—generation complexes

             (4)  For the purposes of the application of this section to a generation asset that is a generation complex, if the net present value of the projected net revenue derived from the operation of the generation asset during the 15‑year period beginning on 1 July 2011 falls short of the amount that would have been the net present value of the projected net revenue derived from the operation of the generation asset if:

                     (a)  this Act had not been enacted; and

                     (b)  the Renewable Energy (Electricity) Act 2000, as in force at the start of 3 June 2007, had never been amended;

then:

                     (c)  there is a projected long‑term net revenue loss in respect of the generation asset; and

                     (d)  the amount of the projected long‑term net revenue loss is equal to the shortfall.

Projected long‑term net revenue loss—generation complex projects

             (5)  For the purposes of the application of this section to a generation asset that is a generation complex project, if the net present value of the projected net revenue derived from the operation of the proposed generation complex during the 15‑year period beginning on 1 July 2011 falls short of the amount that would have been the net present value of the projected net revenue derived from the operation of the proposed generation complex if:

                     (a)  this Act had not been enacted; and

                     (b)  the Renewable Energy (Electricity) Act 2000, as in force at the start of 3 June 2007, had never been amended;

then:

                     (c)  there is a projected long‑term net revenue loss in respect of the generation asset; and

                     (d)  the amount of the projected long‑term net revenue loss is equal to the shortfall.

Projected long‑term net revenue gain—generation complexes

             (6)  For the purposes of the application of this section to a generation asset that is a generation complex, if the net present value of the projected net revenue derived from the operation of the generation asset during the 15‑year period beginning on 1 July 2011 equals or exceeds the amount that would have been the net present value of the projected net revenue derived from the operation of the generation asset if:

                     (a)  this Act had not been enacted; and

                     (b)  the Renewable Energy (Electricity) Act 2000, as it stood at the start of 3 June 2007, had never been amended;

there is a projected long‑term net revenue gain in respect of the generation asset.

Projected long‑term net revenue gain—generation complex projects

             (7)  For the purposes of the application of this section to a generation asset that is a generation complex project, if the net present value of the projected net revenue derived from the operation of the proposed generation complex during the 15‑year period beginning on 1 July 2011 equals or exceeds the amount that would have been the net present value of the projected net revenue derived from the operation of the proposed generation complex if:

                     (a)  this Act had not been enacted; and

                     (b)  the Renewable Energy (Electricity) Act 2000, as it stood at the start of 3 June 2007, had never been amended;

there is a projected long‑term net revenue gain in respect of the generation asset.

Calculation of values and amounts

             (8)  For the purposes of this section, each of the following:

                     (a)  net present value;

                     (b)  market value;

                     (c)  projected market value;

                     (d)  net revenue;

                     (e)  projected net revenue;

is to be calculated in a manner ascertained in accordance with a legislative instrument made by the Authority.

             (9)  In making an instrument under subsection (8) that relates to the calculation of:

                     (a)  net revenue; or

                     (b)  projected net revenue;

the Authority must have regard to:

                     (c)  the effect of any contract for the supply of electricity that was entered into before 3 June 2007; and

                     (d)  such other matters (if any) as the Authority considers relevant.

           (10)  Before making an instrument under subsection (8), the Authority must:

                     (a)  publish a draft of the instrument on its website and invite people to make submissions to the Authority on the question of whether the instrument should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Authority when it published the draft instrument.

           (11)  The time limit must not be shorter than 30 days after the draft instrument is published.

           (12)  The Authority must take all reasonable steps to ensure that:

                     (a)  a draft of an instrument under subsection (8) is published under paragraph (10)(a) before 1 January 2017; and

                     (b)  an instrument is made under subsection (8) before 1 April 2017.

Assumptions

           (13)  For the purposes of the application of this section to a generation asset that is a generation complex, it is to be assumed that no modifications to the generation complex were undertaken, or proposed to be undertaken, at any time during the period:

                     (a)  beginning on 3 June 2007; and

                     (b)  ending at the end of 30 June 2026.

           (14)  For the purposes of the application of this section to a generation asset that is a generation complex project, it is to be assumed that no modifications were made to the project after the start of 3 June 2007.

           (15)  For the purposes of this section, assume that sections 183, 185 and 188 had never been enacted.


 

Division 5Power system reliability

188  No assistance if generation asset does not pass the power system reliability test

Scope

             (1)  This section applies to a generation asset if:

                     (a)  a certificate of eligibility for coal‑fired generation assistance is in force in respect of the generation asset; and

                     (b)  the generation asset is a generation complex.

No assistance if generation complex does not pass the power system reliability test

             (2)  No free Australian emissions units with a vintage year of a particular eligible financial year are to be issued in accordance with this Part in respect of the generation complex if the generation complex does not pass the power system reliability test in relation to the eligible financial year.

189  Power system reliability test

Scope

             (1)  This section applies to a generation complex if a certificate of eligibility for coal‑fired generation assistance is in force in respect of the generation complex.

Power system reliability test

             (2)  For the purposes of this Act, the generation complex passes the power system reliability test in relation to an eligible financial year (the current eligible financial year) if:

                     (a)  the following conditions are satisfied:

                              (i)  as at the start of 1 April in the previous eligible financial year, a person who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets;

                             (ii)  as at the start of 3 June 2007, the nameplate rating in megawatts of the generation complex was registered under such a law;

                            (iii)  as at the start of 1 April in the previous eligible financial year, the nameplate rating in megawatts of the generation complex was not less than the nameplate rating in megawatts of the generation complex that was registered under that law as at the start of 3 June 2007; or

                     (b)  the following conditions are satisfied:

                              (i)  as at the start of 1 April in the previous eligible financial year, a person who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets;

                             (ii)  the nameplate rating in megawatts of the generation complex was first registered under the law at a time after the start of 3 June 2007 but before 1 April in the previous eligible financial year;

                            (iii)  as at the start of 1 April in the previous eligible financial year, the nameplate rating in megawatts of the generation complex was not less than the nameplate rating in megawatts that was registered as mentioned in subparagraph (ii); or

                     (c)  the following conditions are satisfied:

                              (i)  neither paragraph (a) nor (b) applies;

                             (ii)  as at the start of 1 April in the previous eligible financial year, a person who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets;

                            (iii)  during the period beginning at the start of 3 June 2007 and ending immediately before 1 April in the previous eligible financial year, there was a reduction in the nameplate rating in megawatts of the generation complex;

                            (iv)  the appropriate energy market operator certifies in writing that there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the reduction; or

                     (d)  the following conditions are satisfied:

                              (i)  neither paragraph (a) nor (b) applies;

                             (ii)  at a time before 1 April in the previous eligible financial year, a person who owns, controls or operates the generation complex was registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets;

                            (iii)  during the period beginning at the start of 3 June 2007 and ending immediately before 1 April in the previous eligible financial year, the registration ceased to be in force;

                            (iv)  the appropriate energy market operator certifies in writing that there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the cessation; or

                     (e)  the conditions set out in section 189AA are satisfied; or

                      (f)  the following conditions are satisfied:

                              (i)  the generation complex passed the power system reliability test in relation to an earlier eligible financial year because of paragraph (e);

                             (ii)  the generation complex did so partly because, during the period mentioned in subparagraph 189AA(3)(a)(ii), there was a reduction in the nameplate rating in megawatts of the generation complex;

                            (iii)  during the period beginning immediately after the end of the period mentioned in subparagraph 189AA(3)(a)(ii) and ending immediately before 1 April in the eligible financial year that preceded the current eligible financial year, there was no reduction in the nameplate rating in megawatts of the generation complex; or

                     (g)  the following conditions are satisfied:

                              (i)  the generation complex passed the power system reliability test in relation to an earlier eligible financial year because of paragraph (e);

                             (ii)  the generation complex did so partly because of paragraph 189AA(3)(b).

189AA  Replacement capacity

             (1)  This section sets out the conditions mentioned in paragraph 189(2)(e) that apply for the purposes of ascertaining whether the generation complex passes the power system reliability test in relation to an eligible financial year.

             (2)  The first condition is that neither paragraph 189(2)(a) nor (b) applies.

             (3)  The 2nd condition is that either:

                     (a)  both:

                              (i)  as at the start of 1 April in the previous eligible financial year, a person (the first person) who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets; and

                             (ii)  during the period beginning at the start of 3 June 2007 and ending immediately before 1 April in the previous eligible financial year, there was a reduction in the nameplate rating in megawatts of the generation complex; or

                     (b)  both:

                              (i)  at a time before 1 April in the previous eligible financial year, a person (the first person) who owns, controls or operates the generation complex was registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets; and

                             (ii)  during the period beginning at the start of 3 June 2007 and ending immediately before 1 April in the previous eligible financial year, the registration ceased to be in force.

             (4)  The 3rd condition is that, as at the start of 1 April in the previous eligible financial year, the first person is registered, under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets, as a generator in respect of one or more generation units that:

                     (a)  before the start of that 1 April, have been nominated by the first person under section 189AB for the purposes of the application of this section to the generation complex; and

                     (b)  are not included in the generation complex; and

                     (c)  are connected to the same interconnected electricity system as the generation complex; and

                     (d)  if the market relating to the interconnected electricity system is divided into regions—are located in the same region as the generation complex; and

                     (e)  entered service on or before 1 December in the previous eligible financial year; and

                      (f)  were not taken into account under paragraph (5)(b) for the purposes of ascertaining whether the generation complex passed the power system reliability test in relation to an earlier eligible financial year.

             (5)  The 4th condition is that the sum of:

                     (a)  the nameplate rating in megawatts of the generation complex that was registered under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets as at the start of 1 April in the previous eligible financial year; and

                     (b)  the nameplate rating or ratings in megawatts of the generation units covered by subsection (4) that was registered under such a law as at the start of 1 April in the previous eligible financial year; and

                     (c)  if:

                              (i)  the generation complex passed the power system reliability test in relation to an earlier eligible financial year because of paragraph 189(2)(e); and

                             (ii)  the generation complex did so in relation to whichever is the most recent of those earlier eligible financial years partly because there were relevant excess megawatts;

                            those relevant excess megawatts;

equals or exceeds whichever is the least of the following:

                     (d)  whichever of the following is applicable:

                              (i)  if, as at the start of 3 June 2007, the nameplate rating in megawatts of the generation complex was registered under such a law—the nameplate rating in megawatts as so registered;

                             (ii)  if the nameplate rating in megawatts of the generation complex was first registered under such a law at a time after the start of 3 June 2007 but before 1 April in the previous eligible financial year—the nameplate rating in megawatts so registered;

                     (e)  if the generation complex has passed the power system reliability test in relation to one or more earlier eligible financial years because of paragraph 189(2)(c)—the reduced nameplate rating in megawatts of the generation complex that was applicable under subparagraph 189(2)(c)(iii) for the purposes of ascertaining whether the generation complex passed the power system reliability test in relation to whichever is the most recent of those earlier eligible financial years;

                      (f)  if the generation complex passed the power system reliability test in relation to one or more earlier eligible financial years because of paragraph 189(2)(e)—the nameplate rating in megawatts that was applicable under paragraph (a) of this subsection for the purposes of ascertaining whether the generation complex passed the power system reliability test in relation to whichever is the most recent of those earlier eligible financial years.

The excess (if any) is to be known as the relevant excess megawatts.

             (6)  The 5th condition is that the requirements (if any) set out in the regulations are met.

             (7)  For the purposes of this section, the nameplate rating of a generation unit is the maximum continuous electrical generation capacity in megawatts of the generation unit, as registered with the appropriate energy market operator.

             (8)  For the purposes of this section, a generation unit that comprises, or is included in, a generation complex enters service when the unit is first dispatched to deliver electricity by the appropriate energy market operator.

189AB  Nomination of generation units

Scope

             (1)  This section applies to a generation unit if:

                     (a)  a person (the first person) who owns, controls or operates the generation unit is registered as a generator in respect of the generation unit under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets; and

                     (b)  the generation unit was first registered under the law on or after 1 January 2010; and

                     (c)  when the generation unit was first registered under the law, the first person was registered in respect of the generation unit under the law; and

                     (d)  if a project to construct and commission the generation unit was in existence as at the start of 1 January 2010—the project was not fully committed by the project proponent as at the start of 1 January 2010, having regard to the following matters:

                              (i)  the project proponent’s rights to land for the construction of the project;

                             (ii)  whether contracts for the supply and construction of the project’s major plant or equipment (including contract provisions for project cancellations) were executed;

                            (iii)  the status of all planning and construction approvals and licences necessary for the commencement of construction of the project (including completed and approved environmental impact statements);

                            (iv)  the level of commitment to financing arrangements for the project;

                             (v)  whether project construction had commenced before 1 January 2010;

                            (vi)  whether, as at the start of 1 January 2010, a firm date had been set for project construction to commence; and

                     (e)  the generation unit has output that:

                              (i)  is readily predictable; and

                             (ii)  is not significantly dependent on factors beyond the control of the operator; and

                      (f)  the likely emissions intensity of the generation unit during the 2‑year period beginning when the generation unit enters service does not exceed 0.80; and

                     (g)  the requirements (if any) set out in the regulations are met.

Nomination of generation unit

             (2)  The first person may, by written notice given to the Authority, nominate the generation unit for the purposes of the application of section 189AA to a specified generation complex.

             (3)  A nomination must be accompanied by a report that complies with subsection (4).

             (4)  A report complies with this subsection if:

                     (a)  the report is by a person who has appropriate engineering qualifications; and

                     (b)  the report sets out the person’s estimate of the likely emissions intensity of the generation unit during the 2‑year period beginning when the generation unit enters service; and

                     (c)  the person does not have an interest, pecuniary or otherwise, in the outcome of the nomination.

             (5)  A nomination cannot be withdrawn.

             (6)  The first person is not entitled to nominate the generation unit if the generation unit has already been nominated under this section (whether by the first person or by another person).

Emissions intensity

             (7)  For the purposes of subsection (1), the likely emissions intensity of a generation unit during the 2‑year period beginning when the generation unit enters service is the number that, in the opinion of the Authority, should be treated as the likely emissions intensity of the generation unit during that 2‑year period, having regard to the following matters:

                     (a)  any documents relating to the design of the generation unit;

                     (b)  if the generation unit has entered service—the number worked out using the formula set out in subsection (8);

                     (c)  the report mentioned in subsection (3);

                     (d)  such other matters (if any) as the Authority considers relevant.

             (8)  The formula mentioned in paragraph (7)(b) is:

where:

carbon dioxide equivalence of emissions means the total number of kilotonnes of the carbon dioxide equivalence of the greenhouse gases emitted from the combustion of fuel in the generation unit for the purposes of the generation of electricity during the period when the generation unit was in service.

gigawatt hours of electricity generated means the number of gigawatt hours of electricity generated by the generation unit during the period when the generation complex was in service, as measured at all generator terminals of the generation unit.

When generation unit enters service

             (9)  For the purposes of this section, a generation unit enters service when the unit is first dispatched to deliver electricity by the appropriate energy market operator.

189AC  Validity of nomination

Scope

             (1)  This section applies if a person makes, or purports to make, a nomination under subsection 189AB(2).

Requirement

             (2)  The Authority must, within 60 days after receiving the nomination or purported nomination, take all reasonable steps to inform the person whether or not the Authority is satisfied that the nomination or purported nomination is valid.

189A   Anticipatory certification—reduction in nameplate rating

Scope

             (1)  This section applies to a generation complex if a person who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets.

Application

             (2)  The person may apply, in writing, to the appropriate energy market operator to certify that if a proposed reduction in the nameplate rating in megawatts of the generation complex were to occur during the period:

                     (a)  beginning at the start of 3 June 2007; and

                     (b)  ending immediately before 1 April in a specified eligible financial year;

there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the reduction.

Certification

             (3)  If an application is made under subsection (2), the appropriate energy market operator may:

                     (a)  certify in accordance with the application; or

                     (b)  refuse to so certify.

             (4)  If, within 120 days after receiving an application under subsection (2), the appropriate energy market operator has neither:

                     (a)  certified in accordance with the application; nor

                     (b)  refused to so certify;

the appropriate energy market operator is taken, for the purposes of this Act, to have certified in accordance with the application.

Consequences of certification

             (5)  If:

                     (a)  the appropriate energy market operator certifies in accordance with the application; and

                     (b)  the proposed reduction occurs;

then, for the purposes of subparagraph 189(2)(c)(iv), the appropriate energy market operator is taken to have certified in writing that there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the reduction.

189B   Anticipatory certification—cessation of registration as a generator

Scope

             (1)  This section applies to a generation complex if a person who owns, controls or operates the generation complex is registered as a generator in respect of the generation complex under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets.

Application

             (2)  The person may apply, in writing, to the appropriate energy market operator to certify that if a proposed cessation of the registration were to occur during the period:

                     (a)  beginning at the start of 3 June 2007; and

                     (b)  ending immediately before 1 April in a specified eligible financial year;

there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the cessation.

Certification

             (3)  If an application is made under subsection (2), the appropriate energy market operator may:

                     (a)  certify in accordance with the application; or

                     (b)  refuse to so certify.

             (4)  If, within 120 days after receiving an application under subsection (2), the appropriate energy market operator has neither:

                     (a)  certified in accordance with the application; nor

                     (b)  refused to so certify;

the appropriate energy market operator is taken, for the purposes of this Act, to have certified in accordance with the application.

Consequences of certification

             (5)  If:

                     (a)  the appropriate energy market operator certifies in accordance with the application; and

                     (b)  the proposed cessation occurs;

then, for the purposes of subparagraph 189(2)(d)(iv), the appropriate energy market operator is taken to have certified in writing that there is unlikely to be a breach of relevant power system reliability standards applicable to the energy market concerned at any time within 2 years after the cessation.

189C  Intermediary registered as a generator

                   If:

                     (a)  a person (the first person) owns, controls or operates a generation complex; and

                     (b)  under a law of the Commonwealth, a State or Territory relating to the regulation of energy markets, the first person is exempt from the requirement under that law to be registered as a generator in respect of the generation complex; and

                     (c)  the first person is exempt because another person (the intermediary) is registered under that law as a generator in respect of the generation complex;

the intermediary is taken, for the purposes of this Division, to be a person who controls the generation complex.

189D  Financial year beginning on 1 July 2010

                   For the purposes of this Division (other than section 188), assume that the financial year beginning on 1 July 2010 is an eligible financial year.


 

Part 10Reforestation

Division 1Introduction

190  Simplified outline

                   The following is a simplified outline of this Part:

•      Free Australian emissions units may be issued in relation to eligible reforestation projects.

•      The number of free units will be worked out by reference to:

               (a)     the net total number of tonnes of greenhouse gases that, under the regulations, is taken to be removed by the forest stand or stands to which the project relates; and

               (b)     the reforestation unit limit determined by the Authority for the project.

•      Free units will be issued to the holder of the carbon sequestration right in relation to the project, so long as the project manager (who may be the holder) is recognised as a reforestation entity by the Authority.

•      The Authority may declare a reforestation project to be an eligible reforestation project.

•      A reforestation report relating to an eligible reforestation project must be given to the Authority for a reforestation reporting period. A reforestation reporting period is a period of not more than 5 years and not less than 12 months.

•      Australian emissions units may be required to be relinquished in certain circumstances.

•      A forest maintenance obligation may be imposed in relation to an area or areas of land if a relinquishment requirement has not been complied with.

•      A Registrar of Titles may make entries on land titles for the purposes of drawing the attention of persons to the existence of eligible reforestation projects and forest maintenance obligations.

•      There is to be a Register of Reforestation Projects, which is to be made available for inspection on the Authority’s website.


 

Division 2Issue of free Australian emissions units in respect of reforestation

191  Issue of free Australian emissions units in respect of reforestation

Scope

             (1)  This section applies if a certificate of reforestation is in force.

Note:          For certificate of reforestation, see section 195.

Issue of free units

             (2)  As soon as practicable after the day on which the certificate was issued, the Authority must issue to the holder of the certificate a number of free Australian emissions units equal to the number specified in the certificate as the unit entitlement for that certificate.

          (2A)  Free Australian emissions units issued in accordance with subsection (2) during the eligible financial year beginning on 1 July 2011 are to have a vintage year beginning on 1 July 2012.

             (3)  Free Australian emissions units issued in accordance with subsection (2) during an eligible financial year (other than the eligible financial year beginning on 1 July 2011) are to have a vintage year of the eligible financial year.

             (4)  The Authority must not issue a free Australian emissions unit to a person in accordance with subsection (2) unless the person has a Registry account.


 

Division 3Certificate of reforestation

192  Application for certificate of reforestation

             (1)  If:

                     (a)  a person gives a reforestation report to the Authority; and

                     (b)  the reforestation report is in respect of an eligible reforestation project for a reforestation reporting period;

the person may apply to the Authority for the issue to:

                     (c)  if the person holds the carbon sequestration right in relation to the project—the person; or

                     (d)  otherwise—the person who holds the carbon sequestration right in relation to the project;

of a certificate of reforestation in respect of the project for the period.

Note 1:       For reforestation report, see section 225.

Note 2:       For eligible reforestation project, see section 209.

Note 3:       For reforestation reporting period, see section 223 or 224.

Note 4:       For carbon sequestration right, see section 239A.

             (2)  An application may be set out in the same document as the reforestation report.

             (3)  For the purposes of section 136.1 of the Criminal Code, a statement in the reforestation report is taken to be a statement made in connection with the application.

193  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by the fee (if any) specified in the regulations.

             (2)  A fee specified under paragraph (1)(c) must not be such as to amount to taxation.

194  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

195  Issue of certificate of reforestation

Scope

             (1)  This section applies if an application under section 192 has been made for the issue of a certificate of reforestation in respect of an eligible reforestation project for a reforestation reporting period.

Issue of certificate

             (2)  If:

                     (a)  the applicant is a recognised reforestation entity; and

                     (b)  the Authority is satisfied that the applicant is the project manager for the project; and

                     (c)  the applicant is not subject to a requirement under this Part to relinquish a number of Australian emissions units; and

                     (d)  no amount is payable by the applicant under:

                              (i)  section 287; or

                             (ii)  section 288;

                            in relation to a requirement under this Part to relinquish a number of Australian emissions units; and

                     (e)  if any Australian emissions units have previously been issued in accordance with this Part—the number worked out using the formula set out in subsection (3) exceeds 0; and

                      (f)  the number worked out using the formula set out in subsection (4) exceeds 0; and

                    (fa)  the number that, under the regulations, is taken to be the carbon stock number for the project is greater than the number that, under the regulations, is taken to be the 2008 carbon stock number for the project; and

                     (g)  if the regulations specify one or more other eligibility requirements—the Authority is satisfied that those requirements are met;

the Authority must issue a certificate of reforestation in respect of the eligible reforestation project for the reforestation reporting period.

Note:          For recognised reforestation entity, see section 201.

             (3)  The formula mentioned in paragraph (2)(e) is:

where:

net total number of tonnes of greenhouse gases removed is the net total number of tonnes of greenhouse gases that, under the regulations, is taken to be removed by the forest stand or stands to which the project relates during the period:

                     (a)  beginning on the day the section 209 declaration in relation to the project took effect; and

                     (b)  ending at the end of the reforestation reporting period.

          (3A)  For the purposes of subsection (3), if:

                     (a)  a forest stand is situated wholly or partly on Torrens system land; and

                     (b)  the Authority is not satisfied that appropriate entries or notations have been made under section 236 in relation to the land by the relevant land registration official referred to in that section;

disregard the forest stand.

             (4)  The formula mentioned in paragraph (2)(f) is:

Note:          For reforestation unit limit, see section 220.

             (5)  A certificate of reforestation must state that a specified number is the unit entitlement in respect of the certificate.

Note:          See section 196 (unit entitlement).

Timing

             (6)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 194(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Copy of certificate to be given to project manager if project manager does not hold the carbon sequestration right

          (6A)  If:

                     (a)  the Authority issues a certificate of reforestation to the person who holds the carbon sequestration right in relation to the project; and

                     (b)  that person is not the project manager for the project;

the Authority must give a copy of the certificate to the project manager for the project.

Refusal

             (7)  If the Authority decides to refuse to issue a certificate of reforestation, the Authority must give written notice of the decision to the applicant.

196  Unit entitlement

             (1)  The number to be specified in a certificate of reforestation in respect of an eligible reforestation project for a reforestation reporting period as the unit entitlement in respect of the certificate is the lesser of the following numbers:

                     (a)  the number worked out using the formula set out in subsection (2);

                     (b)  the number worked out using the following formula:

Note:          For reforestation unit limit, see section 220.

             (2)  The formula mentioned in paragraph (1)(a) is:

where:

net total number of tonnes of greenhouse gases removed is the net total number of tonnes of greenhouse gases that, under the regulations, is taken to be removed by the forest stand or stands to which the project relates during the period:

                     (a)  beginning on the day the section 209 declaration in relation to the project took effect; and

                     (b)  ending at the end of the reforestation reporting period.

             (3)  If the number worked out using the formula set out in subsection (2) is not a whole number, the number is to be rounded to the nearest whole number (with a number ending in .5 being rounded up).

          (3A)  For the purposes of subsection (2), if:

                     (a)  a forest stand became part of an eligible reforestation project as the result of a variation of a section 209 declaration; and

                     (b)  the variation took effect after the day the section 209 declaration took effect;

then, for the purposes of the application of that subsection to the eligible reforestation project, disregard anything that occurred in relation to the forest stand before the day on which the variation took effect.

197  Certificate of reforestation is not transferable

                   A certificate of reforestation is not transferable.


 

Division 3AProject managers

197A  Project manager for a reforestation project

             (1)  For the purposes of this Act, the project manager for a reforestation project is:

                     (a)  if a scheme obligation transfer agreement is in force in relation to the project—the person who, under that agreement, accepts responsibility for complying with any requirements that may be imposed by or under this Act or the associated provisions on the person in the person’s capacity as project manager for the project; or

                     (b)  otherwise—the person who holds the carbon sequestration right in relation to the project.

             (2)  To avoid doubt, the continuity of a person’s status as the project manager for a reforestation project is not affected by:

                     (a)  a transfer of the carbon sequestration right in relation to the project; or

                     (b)  if the project is an eligible reforestation project—the variation of the section 209 declaration of the eligible reforestation project.

             (3)  To avoid doubt, if:

                     (a)  a person becomes subject to a requirement to relinquish Australian emissions units in the person’s capacity as project manager for an eligible reforestation project; and

                     (b)  before that requirement was met, the person ceased to be the project manager for the project;

the cessation does not affect the continuity of the requirement.

197B  Scheme obligation transfer agreement

             (1)  For the purposes of this Act, a scheme obligation transfer agreement in relation to a reforestation project is an agreement, where:

                     (a)  the agreement is between:

                              (i)  the person who, immediately before the agreement was entered into, was the project manager for the project; and

                             (ii)  another person (the transferee); and

                     (b)  the agreement states that the transferee accepts responsibility for complying with any requirements that may be imposed by or under this Act or the associated provisions on the transferee in the transferee’s capacity as project manager for the project; and

                     (c)  the Authority has given written approval to the agreement; and

                     (d)  if the Authority, in accordance with the regulations, requires the transferee to give security to the Commonwealth in relation to the fulfilment by the transferee of any requirements to relinquish Australian emissions units that may be imposed on the transferee under this Part in relation to the project—the transferee has given that security; and

                     (e)  the holder of the carbon sequestration right in relation to the project:

                              (i)  has consented, in writing, to the making of the agreement; or

                             (ii)  is a party to the agreement; and

                      (f)  such other conditions (if any) as are specified in the regulations are satisfied.

Criteria for approval of agreement

             (2)  The Authority must not, under paragraph (1)(c), give approval to an agreement that relates to a reforestation project unless:

                     (a)  the transferee is a recognised reforestation entity; and

                     (b)  if the transferee neither holds, nor is likely to hold, the carbon sequestration right in relation to the project:

                              (i)  the transferee is not an individual; and

                             (ii)  the Authority is satisfied that the transferee has, or is likely to have, control of the project; and

                     (c)  the Authority is satisfied that the transferee has, and is likely to continue to have:

                              (i)  the capacity; and

                             (ii)  the financial resources;

                            necessary for the transferee to comply with any requirements that may be imposed by or under this Act or the associated provisions on the transferee in the transferee’s capacity as project manager for the project; and

                     (d)  if:

                              (i)  the project is or was an eligible reforestation project; and

                             (ii)  a notice was given under section 232 or 233 in relation to the reforestation project; and

                            (iii)  the notice required a person to relinquish a particular number of Australian emissions units; and

                            (iv)  the person did not comply with the requirement within 90 days after the notice was given;

                            the penalty payable under section 287 in respect of the non‑compliance with the requirement (including any late payment penalty payable under section 288 in relation to the section 287 penalty) has been paid in full.

Duration of agreement

             (3)  A scheme obligation transfer agreement:

                     (a)  comes into force:

                              (i)  at the time when the agreement is approved by the Authority under paragraph (1)(c); or

                             (ii)  at such later time as is specified by the Authority in the instrument of approval; and

                     (b)  remains in force until whichever of the following happens first:

                              (i)  the agreement is cancelled under section 197C;

                             (ii)  another scheme obligation transfer agreement comes into force, and the other agreement is expressed to replace the first‑mentioned agreement;

                            (iii)  the transferee ceases to exist.

             (4)  To avoid doubt, if:

                     (a)  a scheme obligation transfer agreement is in force in relation to a reforestation project; and

                     (b)  the carbon sequestration right in relation to the project is transferred;

the transfer does not affect the continuity of the agreement.

             (5)  To avoid doubt, if:

                     (a)  a scheme obligation transfer agreement is in force in relation to an eligible reforestation project; and

                     (b)  the relevant section 209 declaration is varied;

the variation does not affect the continuity of the agreement.

Agreement is not a legislative instrument

             (6)  A scheme obligation transfer agreement is not a legislative instrument.

197C  Holder of carbon sequestration right may elect to assume scheme obligations

                   If:

                     (a)  a scheme obligation transfer agreement is in force in relation to a reforestation project; and

                     (b)  the person who holds the carbon sequestration right in relation to the project is a recognised reforestation entity;

then:

                     (c)  the holder may, by written notice given to the Authority, elect to accept responsibility for complying with any requirements that may be imposed by or under this Act or the associated provisions on the holder in the holder’s capacity as project manager for the project; and

                     (d)  if the holder does so—the agreement is cancelled.


 

Division 4Recognised reforestation entities

198  Application for recognition as a reforestation entity

             (1)  A person may apply to the Authority for recognition as a reforestation entity.

             (2)  A person is not entitled to make an application before:

                     (a)  1 July 2011; or

                     (b)  if an earlier day is specified in the regulations—that earlier day.

199  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by the fee (if any) specified in the regulations.

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (3)  A fee specified under paragraph (1)(e) must not be such as to amount to taxation.

200  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

201  Recognition as a reforestation entity

Scope

             (1)  This section applies if an application under section 198 has been made for recognition as a reforestation entity.

Recognition

             (2)  After considering the application, the Authority may, by written notice given to the applicant, recognise the applicant as a reforestation entity.

Criteria for recognition

             (3)  The Authority must not recognise the applicant as a reforestation entity unless:

                     (a)  the Authority is satisfied that the applicant is a fit and proper person, having regard to the following:

                              (i)  whether the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to dishonest conduct;

                             (ii)  whether the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to the conduct of a business;

                            (iii)  whether the applicant has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;

                            (iv)  whether an order has been made against the applicant under section 76 of the Trade Practices Act 1974;

                             (v)  whether the applicant has breached this Act or the associated provisions;

                            (vi)  if the applicant is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to dishonest conduct;

                           (vii)  if the applicant is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to the conduct of a business;

                           (viii)  if the applicant is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;

                            (ix)  if the applicant is a body corporate—whether an order has been made against an executive officer of the body corporate under section 76 of the Trade Practices Act 1974;

                             (x)  if the applicant is a body corporate—whether an executive officer of the body corporate has breached this Act or the associated provisions;

                            (xi)  such other matters (if any) as the Authority considers relevant; and

                     (b)  if the applicant is an individual—the Authority is satisfied that the applicant is not an insolvent under administration; and

                     (c)  if the applicant is a body corporate—the Authority is satisfied that the applicant is not an externally‑administered body corporate; and

                     (d)  if the regulations specify one or more other eligibility requirements—the Authority is satisfied that those requirements are met.

             (4)  Subparagraphs (3)(a)(i) to (x) do not limit subparagraph (3)(a)(xi).

Timing

             (5)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 200(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (6)  If the Authority decides to refuse to recognise the applicant as a reforestation entity, the Authority must give written notice of the decision to the applicant.

202  Cancellation of recognition

             (1)  The Authority may cancel the recognition of a person as a reforestation entity if:

                     (a)  the Authority is satisfied that the person is not a fit and proper person, having regard to the following:

                              (i)  whether the person has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to dishonest conduct;

                             (ii)  whether the person has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to the conduct of a business;

                            (iii)  whether the person has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;

                            (iv)  whether an order has been made against the person under section 76 of the Trade Practices Act 1974;

                             (v)  whether the person has breached this Act or the associated provisions;

                            (vi)  if the person is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to dishonest conduct;

                           (vii)  if the person is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against a law of the Commonwealth, a State or Territory, where the offence relates to the conduct of a business;

                           (viii)  if the person is a body corporate—whether an executive officer of the body corporate has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;

                            (ix)  if the person is a body corporate—whether an order has been made against an executive officer of the body corporate under section 76 of the Trade Practices Act 1974;

                             (x)  if the person is a body corporate—whether an executive officer of the body corporate has breached this Act or the associated provisions;

                            (xi)  such other matters (if any) as the Authority considers relevant; or

                     (b)  if the person is an individual—the Authority is satisfied that the person is an insolvent under administration; or

                     (c)  if the person is a body corporate—the Authority is satisfied that the person is an externally‑administered body corporate; or

                     (d)  if the regulations specify one or more other grounds for cancellation—the Authority is satisfied that at least one of those grounds is applicable to the person.

             (2)  Subparagraphs (1)(a)(i) to (x) do not limit subparagraph (1)(a)(xi).

203  Surrender of recognition

Scope

             (1)  This section applies if a person is recognised as a reforestation entity.

Surrender

             (2)  The person may, by written notice given to the Authority, surrender the person’s recognition.

             (3)  The surrender takes effect on the day the notice is received by the Authority or, if a later day is specified in the notice, on that later day.

204  Recognition is not transferable

                   If a person is recognised as a reforestation entity, the person’s recognition is not transferable.


 

Division 5Eligible reforestation projects

Subdivision ADeclaration of eligible reforestation project

205  Application for declaration of eligible reforestation project

             (1)  A person may apply to the Authority for the declaration of a reforestation project as an eligible reforestation project.

             (2)  A person is not entitled to make an application before:

                     (a)  1 July 2011; or

                     (b)  if an earlier day is specified in the regulations—that earlier day.

206  Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such other documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by the fee (if any) specified in the regulations.

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (3)  A fee specified under paragraph (1)(e) must not be such as to amount to taxation.

207  Further information

             (1)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

208  Withdrawal of application

             (1)  An applicant may withdraw the application at any time before the Authority makes a decision on the application.

             (2)  This Act does not prevent the applicant from making a fresh application.

             (3)  If:

                     (a)  the applicant withdraws the application; and

                     (b)  the applicant has paid a fee in relation to the application;

the Authority must, on behalf of the Commonwealth, refund the application fee.

209  Declaration of eligible reforestation project

Scope

             (1)  This section applies if an application under section 205 has been made for a declaration of a reforestation project as an eligible reforestation project.

Declaration

             (2)  After considering the application, the Authority may, by writing, declare that the reforestation project is an eligible reforestation project for the purposes of this Act.

             (3)  A declaration under subsection (2) must:

                     (a)  identify, in accordance with the regulations, the project area or project areas; and

                     (b)  identify such other attributes of the project as are specified in the regulations.

Criteria for declaration

             (4)  The Authority must not declare that the reforestation project is an eligible reforestation project unless the Authority is satisfied that:

                     (a)  the project area, or each project area, meets the requirements set out in subsection (5); and

                     (c)  the project manager for the project is a recognised reforestation entity; and

                     (d)  the applicant is the project manager for the project; and

                    (da)  a single person (who may be the applicant) holds the carbon sequestration right in relation to the project; and

                    (db)  if the applicant does not hold the carbon sequestration right in relation to the project—the holder of the carbon sequestration right in relation to the project has consented, in writing, to the making of the application; and

                     (e)  each of the following has consented, in writing, to the making of the application:

                              (i)  each person (other than the applicant) who holds an eligible interest in the project area or any of the project areas;

                             (ii)  a person specified in the regulations; and

                      (f)  if:

                              (i)  the project area is, or the project areas are, Crown land in a State or Territory; and

                            (ia)  the project area is not, or the project areas are not, Torrens system land; and

                             (ii)  the applicant is not the State or Territory;

                            the Crown lands Minister of the State or Territory has certified in writing that:

                            (iii)  the person identified in the application as the holder of the carbon sequestration right in relation to the project holds that right; and

                            (iv)  the State or Territory will not deal with the project area or project areas, and will not consent to any other person dealing with the project area or project areas, in a way that is inconsistent with the carbon sequestration right; and

                    (fa)  all regulatory approvals have been obtained for the project; and

                     (g)  the project meets the eligibility requirements (if any) specified in the regulations.

             (5)  The requirements mentioned in paragraph (4)(a) are:

                     (a)  the project area is Torrens system land; or

                     (b)  the following conditions are satisfied in relation to the project area:

                              (i)  the project area is not general law land;

                             (ii)  the project area is not specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

          (5A)  A consent under paragraph (4)(e) must be in a form approved, in writing, by the Authority.

Timing

             (6)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 207(1) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

When a declaration takes effect

             (7)  A declaration under subsection (2) takes effect:

                     (a)  immediately after it is made; or

                     (b)  if:

                              (i)  an earlier day is specified in the declaration; and

                             (ii)  the applicant has consented to the specification of the earlier day;

                            on the day specified.

             (8)  The specified day must not be a day that is earlier than the later of:

                     (a)  1 July 2010; or

                     (b)  the first day of the 5‑year period ending when the application for the declaration was made.

Notification of declaration

             (9)  As soon as practicable after making a declaration under subsection (2), the Authority must give a copy of the declaration to:

                     (a)  the applicant; and

                     (b)  if the applicant does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Refusal

           (10)  If the Authority decides to refuse to declare the reforestation project as an eligible reforestation project, the Authority must give written notice of the decision to the applicant.

Declaration is not legislative instrument

           (11)  A declaration made under subsection (2) is not a legislative instrument.

Subdivision BVoluntary variation of declaration of eligible reforestation project

210  Application for variation of declaration of eligible reforestation project

Scope

             (1)  This section applies if:

                     (a)  a reforestation report is given to the Authority; and

                     (b)  the reforestation report is in respect of an eligible reforestation project to which a declaration under section 209 relates.

Note:          For reforestation report, see section 225.

Application for variation of declaration

             (2)  A person may apply to the Authority for the variation of the declaration so far as the declaration identifies the project area or project areas.

Form of application

             (3)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such other documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by the fee (if any) specified in the regulations.

             (4)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (5)  A fee specified under paragraph (3)(e) must not be such as to amount to taxation.

Further information

             (6)  The Authority may, by written notice given to an applicant, require the applicant to give the Authority, within the period specified in the notice, further information in connection with the application.

             (7)  If the applicant breaches the requirement, the Authority may, by written notice given to the applicant:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

211  Withdrawal of application

             (1)  An applicant may withdraw the application at any time before the Authority makes a decision on the application.

             (2)  This Act does not prevent the applicant from making a fresh application.

             (3)  If:

                     (a)  the applicant withdraws the application; and

                     (b)  the applicant has paid a fee in relation to the application;

the Authority must, on behalf of the Commonwealth, refund the application fee.

212  Variation of declaration of eligible reforestation project

Scope

             (1)  This section applies if an application under section 210 has been made for the variation of a declaration of a reforestation project as an eligible reforestation project.

Declaration

             (2)  After considering the application, the Authority may, by writing, vary the declaration in accordance with the application.

Criteria for declaration

             (3)  The Authority must not vary the declaration of the reforestation project unless the Authority is satisfied that:

                     (a)  the varied project area, or each varied project area, meets the requirements set out in subsection (4); and

                     (c)  the project manager for the project is a recognised reforestation entity; and

                     (d)  the applicant is the project manager for the varied project; and

                    (da)  a single person (who may be the applicant) holds the carbon sequestration right in relation to the varied project; and

                    (db)  if the applicant does not hold the carbon sequestration right in relation to the varied project—the holder of the carbon sequestration right in relation to the varied project has consented, in writing, to the making of the application; and

                     (e)  each of the following has consented, in writing, to the making of the application:

                              (i)  each person (other than the applicant) who holds an eligible interest in the varied project area or any of the varied project areas;

                             (ii)  a person specified in the regulations; and

                      (f)  if:

                              (i)  the varied project area is, or the varied project areas are, Crown land in a State or Territory; and

                            (ia)  the varied project area is not, or the varied project areas are not, Torrens system land; and

                             (ii)  the applicant is not the State or Territory;

                            the Crown lands Minister of the State or Territory has certified in writing that:

                            (iii)  the person identified in the application as the holder of the carbon sequestration right in relation to the varied project holds that right; and

                            (iv)  the State or Territory will not deal with the varied project area or varied project areas, and will not consent to any other person dealing with the varied project area or varied project areas, in a way that is inconsistent with the carbon sequestration right; and

                    (fa)  all regulatory approvals have been obtained for the varied project; and

                     (g)  the varied project meets the eligibility requirements (if any) specified in the regulations.

             (4)  The requirements mentioned in paragraph (3)(a) are:

                     (a)  the varied project area is Torrens system land; or

                     (b)  the following conditions are satisfied in relation to the varied project area:

                              (i)  the varied project area is not general law land;

                             (ii)  the varied project area is not specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

          (4A)  A consent under paragraph (3)(e) must be in a form approved, in writing, by the Authority.

Timing

             (5)  The Authority must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Authority requires the applicant to give further information under subsection 210(6) in relation to the application—within 90 days after the applicant gave the Authority the information; or

                     (b)  otherwise—within 90 days after the application was made.

When a variation takes effect

             (6)  A variation under subsection (2) takes effect:

                     (a)  immediately after it is made; or

                     (b)  if:

                              (i)  an earlier day is specified in the variation; and

                             (ii)  the applicant has consented to the specification of the earlier day; and

                            (iii)  the earlier day is the first day of a reforestation reporting period for the eligible reforestation project;

                            on the day specified.

          (6A)  The specified day must not be a day that is earlier than the first day of the 5‑year period ending when the application for the variation was made.

Notification of variation

             (7)  As soon as practicable after varying a declaration under subsection (2), the Authority must give a copy of the variation to:

                     (a)  the applicant; and

                     (b)  if the applicant does not hold the carbon sequestration right in relation to the varied project—the person who holds the carbon sequestration right in relation to the varied project.

Refusal

             (8)  If the Authority decides to refuse to make the variation, the Authority must give written notice of the decision to the applicant.

References to eligible reforestation project

             (9)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

           (10)  A variation under subsection (2) is not a legislative instrument.

Subdivision CUnilateral variation of declaration of eligible reforestation project

213  Variation of declaration of eligible reforestation project—partial cessation of reforestation activity in a part of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  a part of an area of land identified in the declaration as the project area or a project area has remained clear of a forest stand for a continuous period of at least 5 years that began at a time when the declaration was in force.

Variation of declaration

             (2)  The Authority must, by writing, vary the declaration by excluding that part from the area of land identified in the declaration as the relevant project area.

Notification of variation

             (3)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the varied project; and

                     (b)  if the project manager for the varied project does not hold the carbon sequestration right in relation to the varied project—the person who holds the carbon sequestration right in relation to the varied project.

References to eligible reforestation project

             (4)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (5)  A variation under subsection (2) is not a legislative instrument.

213A  Variation of declaration of eligible reforestation project that has 2 or more project areas—cessation of reforestation activity in the whole of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the project has 2 or more project areas; and

                     (c)  the whole of an area of land identified in the declaration as a project area has remained clear of a forest stand for a continuous period of at least 5 years that began at a time when the declaration was in force; and

                     (d)  subsection 217(1) does not apply to the project.

Variation of declaration

             (2)  The Authority must, by writing, vary the declaration by excluding that area from the areas of land identified in the declaration as the project areas.

Notification of variation

             (3)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

References to eligible reforestation project

             (4)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (5)  A variation under subsection (2) is not a legislative instrument.

214  Variation of declaration of eligible reforestation project—eligibility requirements not met in a part of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the Authority is satisfied that a project that is being, or is to be, carried out in a part of an area of land identified in the declaration as the project area or a project area:

                              (i)  is not a reforestation project; or

                             (ii)  does not meet any or all of the eligibility requirements specified in regulations made for the purposes of paragraph 209(4)(g); or

                            (iii)  does not meet the requirements set out in subsection 209(5).

Variation of declaration

             (2)  The Authority may, by writing, vary the declaration by excluding that part from the area of land identified in the declaration as the relevant project area.

Consultation

             (3)  Before varying the declaration, the Authority must give the person who holds the carbon sequestration right in relation to the project a written notice:

                     (a)  informing the person of the proposed variation; and

                     (b)  inviting the person to make a submission to the Authority within 90 days after the notice was given, about the proposed variation.

             (4)  In deciding whether to vary the declaration, the Authority must have regard to:

                     (a)  a submission made in response to an invitation under subsection (3); and

                     (b)  such other matters (if any) as the Authority considers relevant.

Notification of variation

             (5)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

References to eligible reforestation project

             (6)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (7)  A variation under subsection (2) is not a legislative instrument.

214A  Variation of declaration of eligible reforestation project that has 2 or more project areas—eligibility requirements not met in the whole of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the project has 2 or more project areas; and

                     (c)  the Authority is satisfied that a project that is being, or is to be, carried out in a part of an area of land identified in the declaration as a project area:

                              (i)  is not a reforestation project; or

                             (ii)  does not meet any or all of the eligibility requirements specified in regulations made for the purposes of paragraph 209(4)(g); or

                            (iii)  does not meet the requirements set out in subsection 209(5); and

                     (d)  subsection 218(1) does not apply in relation to the project.

Variation of declaration

             (2)  The Authority must, by writing, vary the declaration by excluding that area from the areas of land identified in the declaration as the project areas.

Consultation

             (3)  Before varying the declaration, the Authority must give the project manager for the project a written notice:

                     (a)  informing the project manager of the proposed variation; and

                     (b)  inviting the project manager to make a submission to the Authority within 90 days after the notice was given, about the proposed variation.

             (4)  In deciding whether to vary the declaration, the Authority must have regard to:

                     (a)  a submission made in response to an invitation under subsection (3); and

                     (b)  such other matters (if any) as the Authority considers relevant.

Notification of variation

             (5)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

References to eligible reforestation project

             (6)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (7)  A variation under subsection (2) is not a legislative instrument.

214B  Variation of declaration of eligible reforestation project—ceasing to hold carbon sequestration right in relation to part of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  a person ceases to hold the carbon sequestration right in relation to a part of an area of land identified in the declaration as the project area or a project area.

Variation of declaration

             (2)  The Authority must, by writing, vary the declaration by excluding that part from the area of land identified in the declaration as the relevant project area.

Notification of variation

             (3)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

References to eligible reforestation project

             (4)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (5)  A variation under subsection (2) is not a legislative instrument.

214C  Variation of declaration of eligible reforestation project that has 2 or more project areas—ceasing to hold carbon sequestration right in relation to the whole of a project area

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the project has 2 or more project areas; and

                     (c)  a person ceases to hold the carbon sequestration right in relation to the whole of an area of land identified in the declaration as a project area; and

                     (d)  the person has not ceased to hold the carbon sequestration right in relation to any of the remaining areas of land.

Variation of declaration

             (2)  The Authority must, by writing, vary the declaration by excluding that area from the areas of land identified in the declaration as the project areas.

Notification of variation

             (3)  As soon as practicable after varying the declaration, the Authority must give a copy of the variation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

References to eligible reforestation project

             (4)  If a declaration of an eligible reforestation project is varied under this section, a reference in this Act to the eligible reforestation project is a reference to the eligible reforestation project as varied.

Variation is not legislative instrument

             (5)  A variation under subsection (2) is not a legislative instrument.

Subdivision DVoluntary revocation of declaration of eligible reforestation project

215  Voluntary revocation of declaration of eligible reforestation project—units issued

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  one or more Australian emissions units have been issued in relation to the project in accordance with this Part; and

                     (c)  the person who is the project manager for the project applies to the Authority for the revocation of the declaration; and

                     (d)  before the application was made, the applicant voluntarily relinquished a number of Australian emissions units in order to satisfy a condition for revocation of the declaration; and

                     (e)  the number of relinquished units equals the net total number of Australian emissions units issued in relation to the project in accordance with this Part.

Revocation

             (2)  The Authority must, by writing, revoke the declaration.

Application

             (3)  An application under paragraph (1)(c) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority.

Notification of revocation

             (4)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (5)  A revocation under subsection (2) is not a legislative instrument.

216  Voluntary revocation of declaration of eligible reforestation project—no units issued

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  no Australian emissions units have been issued in relation to the project in accordance with this Part; and

                     (c)  the person who is the project manager for the project applies to the Authority for the revocation of the declaration.

Revocation

             (2)  The Authority must, by writing, revoke the declaration.

Application

             (3)  An application under paragraph (1)(c) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority.

Notification of revocation

             (4)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (5)  A revocation under subsection (2) is not a legislative instrument.

Subdivision EUnilateral revocation of declaration of eligible reforestation project

217  Unilateral revocation of declaration of eligible reforestation project—cessation of reforestation activity

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  if there is a single area of land identified in the declaration as the project area—the whole of the area of land has remained clear of a forest stand for a continuous period of at least 5 years that began at a time when the declaration was in force; and

                     (c)  if there are 2 or more areas of land identified in the declaration as the project areas—the whole of each of those areas has remained clear of a forest stand for a continuous period of at least 5 years that began at a time when the declaration was in force.

Revocation of declaration

             (2)  The Authority must, by writing, revoke the declaration.

Notification of revocation

             (3)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (4)  A revocation under subsection (2) is not a legislative instrument.

218  Unilateral revocation of declaration of eligible reforestation project—eligibility requirements not met

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the Authority is satisfied that a project that is being, or is to be, carried out in an area identified in the declaration as the project area or a project area:

                              (i)  is not a reforestation project; or

                             (ii)  does not meet any or all of the eligibility requirements specified in regulations made for the purposes of paragraph 209(4)(g); or

                            (iii)  does not meet the requirements set out in subsection 209(5).

Revocation of declaration

             (2)  The Authority may, by writing, revoke the declaration.

Consultation

             (3)  Before revoking the declaration, the Authority must give the person who holds the carbon sequestration right in relation to the project a written notice:

                     (a)  informing the person of the proposed revocation; and

                     (b)  inviting the person to make a submission to the Authority, within 90 days after the notice was given, about the proposed revocation.

             (4)  In deciding whether to revoke the declaration, the Authority must have regard to:

                     (a)  a submission made in response to an invitation under subsection (3); and

                     (b)  such other matters (if any) as the Authority considers relevant.

Notification of revocation

             (5)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (6)  A revocation under subsection (2) is not a legislative instrument.

218A  Unilateral revocation of declaration of eligible reforestation project—project manager ceases to be a recognised reforestation entity

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  the project manager for the project ceases to be a recognised reforestation entity; and

                     (c)  if the project manager holds the carbon sequestration right in relation to the project—90 days pass after the cessation, and the person who, at the end of that 90‑day period, is the project manager for the project is not a recognised reforestation entity; and

                     (d)  if the project manager does not hold the carbon sequestration right in relation to the project—90 days pass after the Authority notifies the holder of the carbon sequestration right of the cessation, and the person who, at the end of that 90‑day period, is the project manager for the project is not a recognised reforestation entity.

Revocation of declaration

             (2)  The Authority may, by writing, revoke the declaration.

Notification of revocation

             (3)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right in relation to the project—the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (4)  A revocation under subsection (2) is not a legislative instrument.

219  Unilateral revocation of declaration of eligible reforestation project—ceasing to hold carbon sequestration right etc.

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  a person ceases to hold the carbon sequestration right in relation to the project; and

                    (ba)  immediately before the cessation, the person was the project manager for the project; and

                     (c)  a scheme obligation transfer agreement was not in force in relation to the project within 90 days after the cessation occurred.

Revocation of declaration

             (2)  The Authority must, by writing, revoke the declaration.

Notification of revocation

             (3)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the person who holds the carbon sequestration right in relation to the project; and

                     (b)  the person mentioned in paragraph (1)(b).

Revocation is not legislative instrument

             (4)  A revocation under subsection (2) is not a legislative instrument.

219A  Unilateral revocation of declaration of eligible reforestation project—project manager ceases to have control of reforestation project

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project; and

                     (b)  a scheme obligation transfer agreement is in force in relation to the project; and

                     (c)  the project manager does not hold the carbon sequestration right in relation to the project; and

                     (d)  the project manager for the project ceases to have control of the reforestation project; and

                     (e)  90 days pass after the Authority notifies the holder of the carbon sequestration right of the cessation, and the agreement is still in force.

Revocation of declaration

             (2)  The Authority must, by writing, revoke the declaration.

Notification of revocation

             (3)  As soon as practicable after revoking the declaration, the Authority must give a copy of the revocation to:

                     (a)  the project manager for the project; and

                     (b)  the person who holds the carbon sequestration right in relation to the project.

Revocation is not legislative instrument

             (4)  A revocation under subsection (2) is not a legislative instrument.


 

Division 6Reforestation unit limit

220  Reforestation unit limit

Scope

             (1)  This section applies if, under section 209, the Authority has declared a reforestation project to be an eligible reforestation project.

Declaration of reforestation unit limit

             (2)  As soon as practicable after making the declaration, the Authority must, by written notice given to the applicant for the declaration, declare that a specified number is the reforestation unit limit for the project.

             (3)  The number to be specified is the number that, under the regulations, is taken to be the projected net greenhouse gases removal number for the project, reduced (but not below zero) by the sum of the following numbers:

                     (a)  the number that, under the regulations, is taken to be the non‑CPRS greenhouse gases removal sales number for the project;

                     (b)  the number that, under the regulations, is taken to be the 2008 carbon stock number for the project.

             (4)  A notice under subsection (2) must be accompanied by a statement setting out:

                     (a)  the number that, under the regulations, is taken to be the projected net greenhouse gases removal number for the project; and

                     (b)  the number that, under the regulations, is taken to be the non‑CPRS greenhouse gases removal sales number for the project; and

                     (c)  the number that, under the regulations, is taken to be the 2008 carbon stock number for the project.

Declaration is not legislative instrument

             (5)  A declaration made under subsection (2) is not a legislative instrument.

221  Increase of reforestation unit limit

Scope

             (1)  This section applies if, at a particular time:

                     (a)  there is a reforestation unit limit for an eligible reforestation project; and

                     (b)  the number that would have been worked out at that time under section 220 would exceed the reforestation unit limit.

Increase of reforestation unit limit

             (2)  The Authority may, by written notice given to the person who is the project manager for the project, increase the reforestation unit limit by an amount equal to the excess.

             (3)  A notice under subsection (2) must be accompanied by a statement setting out:

                     (a)  the number that, under the regulations, is taken to be the projected net greenhouse gases removal number for the project; and

                     (b)  the number that, under the regulations, is taken to be the non‑CPRS greenhouse gases removal sales number for the project; and

                     (c)  the number that, under the regulations, is taken to be the 2008 carbon stock number for the project.

References to reforestation unit limit

             (4)  If a reforestation unit limit is increased under this section, a reference in this Act to the reforestation unit limit is a reference to the reforestation unit limit as increased.

Notice is not legislative instrument

             (5)  A notice given under subsection (2) is not a legislative instrument.

222  Decrease of reforestation unit limit

Scope

             (1)  This section applies if, at a particular time:

                     (a)  there is a reforestation unit limit for an eligible reforestation project; and

                     (b)  the number that would have been worked out at that time under section 220 would fall short of the reforestation unit limit.

Decrease of reforestation unit limit

             (2)  The Authority may, by written notice given to the person who is the project manager for the project, decrease the reforestation unit limit by an amount equal to the shortfall.

             (3)  A notice under subsection (2) must be accompanied by a statement setting out:

                     (a)  the number that, under the regulations, is taken to be the projected net greenhouse gases removal number for the project; and

                     (b)  the number that, under the regulations, is taken to be the non‑CPRS greenhouse gases removal sales number for the project; and

                     (c)  the number that, under the regulations, is taken to be the 2008 carbon stock number for the project.

References to reforestation unit limit

             (4)  If a reforestation unit limit is decreased under this section, a reference in this Act to the reforestation unit limit is a reference to the reforestation unit limit as decreased.

Notice is not legislative instrument

             (5)  A notice given under subsection (2) is not a legislative instrument.


 

Division 6ARestructure of reforestation projects

222A  Restructure of reforestation projects—making of declaration relating to receiving project

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project (the original reforestation project); and

                     (b)  a person ceases to hold the carbon sequestration right in relation to the whole or a part of an area of land identified in the declaration as a project area; and

                     (c)  either:

                              (i)  in a case where the person ceases to hold the carbon sequestration right in relation to a part of an area of land identified in the declaration as a project area—the declaration is varied under section 214B by excluding that part from the area of land identified in the declaration as the relevant project area; or

                             (ii)  in a case where the person ceases to hold the carbon sequestration right in relation to the whole of an area of land identified in the declaration as a project area—the declaration is varied under section 214C by excluding that area from the areas of land identified in the declaration as the project areas; and

                     (d)  within 90 days after the cessation:

                              (i)  there is another reforestation project for which that area is a project area; and

                             (ii)  a scheme obligation transfer agreement has come into force in relation to the other reforestation project; and

                     (e)  the project manager for the other reforestation project makes an application under section 205 for the declaration of the other project as an eligible reforestation project; and

                      (f)  after considering the application, the Authority makes a declaration under subsection 209(2) that the other reforestation project is an eligible reforestation project for the purposes of this Act.

Determination in relation to the other reforestation project

             (2)  As soon as practicable after making the declaration mentioned in paragraph (1)(f), the Authority must, by written notice given to the applicant for the declaration, determine that:

                     (a)  whenever it is necessary to calculate an amount in relation to the other reforestation project using the formula in subsection 195(3), that subsection has effect, in relation to the other reforestation project, as if the net total number of tonnes of greenhouse gases removed were increased by the number specified in the determination; and

                     (b)  whenever it is necessary to calculate an amount in relation to the other reforestation project using the formula in subsection 196(2), that subsection has effect, in relation to the other reforestation project, as if the net total number of tonnes of greenhouse gases removed were increased by the number specified in the determination; and

                     (c)  whenever it is necessary to work out the net total number of Australian emissions units issued in relation to the other reforestation project, this Part has effect, in relation to the other reforestation project, as if the net total number of Australian emissions units issued in relation to the project in accordance with this Part were increased by the number specified in the determination.

             (3)  In making a determination under subsection (2), the Authority must comply with the regulations.

Determination relating to original reforestation project

             (4)  As soon as practicable after making the declaration mentioned in paragraph (1)(f), the Authority must, by written notice given to the project manager for the original reforestation project, determine that:

                     (a)  whenever it is necessary to calculate an amount in relation to the original reforestation project using the formula in subsection 195(3), that subsection has effect, in relation to the original reforestation project, as if the net total number of tonnes of greenhouse gases removed were decreased by the number specified in the determination; and

                     (b)  whenever it is necessary to calculate an amount in relation to the original reforestation project using the formula in subsection 196(2), that subsection has effect, in relation to the original reforestation project, as if the net total number of tonnes of greenhouse gases removed were decreased by the number specified in the determination; and

                     (c)  whenever it is necessary to work out the net total number of Australian emissions units issued in relation to the original reforestation project, this Part has effect, in relation to the original reforestation project, as if the net total number of Australian emissions units issued in relation to the project in accordance with this Part were decreased by the number specified in the determination.

             (5)  In making a determination under subsection (4), the Authority must comply with the regulations.

First reforestation reporting period

             (6)  Despite section 223, the first reforestation reporting period for the other reforestation project is the same as the reforestation reporting period for the original reforestation project in which the cessation mentioned in paragraph (1)(b) occurred.

Determination is not a legislative instrument

             (7)  A determination made under subsection (2) or (4) is not a legislative instrument.

222B  Restructure of reforestation projects—variation of declaration relating to receiving project

Scope

             (1)  This section applies if:

                     (a)  a declaration is in force under section 209 in relation to a reforestation project (the original reforestation project); and

                     (b)  a person ceases to hold the carbon sequestration right in relation to the whole or a part of an area of land identified in the declaration as a project area; and

                     (c)  either:

                              (i)  in a case where the person ceases to hold the carbon sequestration right in relation to a part of an area of land identified in the declaration as a project area—the declaration is varied under section 214B by excluding that part from the area of land identified in the declaration as the relevant project area; or

                             (ii)  in a case where the person ceases to hold the carbon sequestration right in relation to the whole of an area of land identified in the declaration as a project area—the declaration is varied under section 214C by excluding that area from the areas of land identified in the declaration as the project areas; and

                     (d)  within 90 days after the cessation:

                              (i)  there is another reforestation project for which that area is a project area; and

                             (ii)  a scheme obligation transfer agreement has come into force in relation to the other reforestation project; and

                     (e)  the project manager for the other reforestation project makes an application under section 212 for the variation of the section 209 declaration of the other project; and

                      (f)  after considering the application, the Authority varies the section 209 declaration of the other project; and

                     (g)  as a result of the variation, that area becomes a project area of the other project.

Determination in relation to the other reforestation project

             (2)  As soon as practicable after varying the declaration mentioned in paragraph (1)(f), the Authority must, by written notice given to the project manager for the other project, determine that:

                     (a)  whenever it is necessary to calculate an amount in relation to the other reforestation project using the formula in subsection 195(3), that subsection has effect, in relation to the other reforestation project, as if the net total number of tonnes of greenhouse gases removed were increased by the number specified in the determination; and

                     (b)  whenever it is necessary to calculate an amount in relation to the other reforestation project using the formula in subsection 196(2), that subsection has effect, in relation to the other reforestation project, as if the net total number of tonnes of greenhouse gases removed were increased by the number specified in the determination; and

                     (c)  whenever it is necessary to work out the net total number of Australian emissions units issued in relation to the other reforestation project, this Part has effect, in relation to the other reforestation project, as if the net total number of Australian emissions units issued in relation to the project in accordance with this Part were increased by the number specified in the determination.

             (3)  In making a determination under subsection (2), the Authority must comply with the regulations.

Determination relating to original reforestation project

             (4)  As soon as practicable after the making of the variation mentioned in subparagraph (1)(c)(i) or (ii), the Authority must, by written notice given to the project manager for the original project, determine that:

                     (a)  whenever it is necessary to calculate an amount in relation to the original reforestation project using the formula in subsection 195(3), that subsection has effect, in relation to the original reforestation project, as if the net total number of tonnes of greenhouse gases removed were decreased by the number specified in the determination; and

                     (b)  whenever it is necessary to calculate an amount in relation to the original reforestation project using the formula in subsection 196(2), that subsection has effect, in relation to the original reforestation project, as if the net total number of tonnes of greenhouse gases removed were decreased by the number specified in the determination; and

                     (c)  whenever it is necessary to work out the net total number of Australian emissions units issued in relation to the original reforestation project, this Part has effect, in relation to the original reforestation project, as if the net total number of Australian emissions units issued in relation to the project in accordance with this Part were decreased by the number specified in the determination.

             (5)  In making a determination under subsection (4), the Authority must comply with the regulations.

Determination is not a legislative instrument

             (6)  A determination made under subsection (2) or (4) is not a legislative instrument.


 

Division 7Reforestation reporting periods

223  First reforestation reporting period

             (1)  For the purposes of this Act, the first reforestation reporting period for an eligible reforestation project is:

                     (a)  the 5‑year period that begins on the day the section 209 declaration in relation to the project takes effect; or

                     (b)  if another period is nominated under subsection (2)—the nominated period.

Note:          See also section 222A.

Nominated period

             (2)  A person may, by written notice given to the Authority, nominate a specified period as the first reforestation reporting period for an eligible reforestation project.

             (3)  The person is not entitled to nominate a period under subsection (2) unless:

                     (a)  the person is the project manager for the project immediately before the end of the period; and

                     (b)  the period is:

                              (i)  at least 12 months; and

                             (ii)  not more than 5 years; and

                     (c)  the period begins on the day that the section 209 declaration in relation to the project takes effect; and

                     (d)  if that declaration takes effect on a day that is earlier than the day the declaration is made—the period ends on or after the day the declaration is made; and

                     (e)  the notice under subsection (2) is given to the Authority within 40 days after the end of the period; and

                      (f)  a period has not previously been nominated under subsection (2) in relation to the project.

             (4)  A notice under subsection (2) may be set out in the same document as the reforestation report for the first reforestation reporting period.

224  Subsequent reforestation reporting periods

             (1)  For the purposes of this Act, a reforestation reporting period for an eligible reforestation project (other than the first reforestation reporting period for the project) is:

                     (a)  the 5‑year period that begins immediately after the end of the previous reforestation reporting period for the project; or

                     (b)  if:

                              (i)  another period is nominated under subsection (2); and

                             (ii)  the nominated period begins immediately after the end of the preceding reforestation reporting period;

                            the nominated period.

Nominated period

             (2)  A person may, by written notice given to the Authority, nominate a period as a reforestation reporting period for an eligible reforestation project.

             (3)  The person is not entitled to nominate a period under subsection (2) unless:

                     (a)  the person is the project manager for the project immediately before the end of the period; and

                     (b)  the period is:

                              (i)  at least 12 months; and

                             (ii)  not more than 5 years; and

                     (c)  the notice under subsection (2) is given to the Authority within 40 days after the end of the period; and

                     (d)  a period beginning immediately after the end of the preceding reforestation reporting period has not previously been nominated under subsection (2) in relation to the project.

             (4)  A notice under subsection (2) may be set out in the same document as the reforestation report for the reforestation reporting period.


 

Division 8Reforestation reporting requirements

225  Reforestation reports

Scope

             (1)  This section applies if a person is the project manager for an eligible reforestation project immediately before the end of a reforestation reporting period for the project.

Report

             (2)  The person must, in accordance with this section, give the Authority a written report (the reforestation report) about the project for the period.

             (3)  The reforestation report must:

                     (a)  be given in the manner and form prescribed by the regulations; and

                     (b)  set out the information specified in the regulations; and

                    (ba)  be accompanied by such documents (if any) as are specified in the regulations; and

                     (c)  be given to the Authority within 40 days after the end of the reforestation reporting period.

             (4)  Information specified in regulations made for the purposes of paragraph (3)(b) may relate to a matter arising before, during or after the reforestation reporting period.

          (4A)  A document specified in regulations made for the purposes of paragraph (3)(ba) may relate to a matter arising before, during or after the reforestation reporting period.

Ancillary contraventions

             (5)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

                     (d)  conspire with others to effect a contravention of subsection (2).

Civil penalty provisions

             (6)  Subsections (2) and (5) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.


 

Division 9Forest maintenance obligation

Subdivision AForest maintenance obligation

226  Forest maintenance obligation

Scope

             (1)  This section applies to one or more areas of land if:

                     (a)  the following conditions are satisfied:

                              (i)  a notice was given under section 232 or 233 in relation to a project that is or was an eligible reforestation project;

                             (ii)  the area was, or the areas were, identified in the relevant section 209 declaration as the project area or project areas for the eligible reforestation project;

                            (iii)  the notice required a person to relinquish a particular number of Australian emissions units;

                            (iv)  the person did not comply with the requirement within 90 days after the notice was given; or

                     (b)  the following conditions are satisfied:

                              (i)  a notice was given under section 232 or 233 in relation to a project that is or was an eligible reforestation project;

                             (ii)  the area was, or the areas were, identified in the relevant section 209 declaration as the project area or project areas for the eligible reforestation project;

                            (iii)  the notice required a person to relinquish a particular number of Australian emissions units;

                            (iv)  the Authority is satisfied that it is likely that the person will not comply with the requirement within 90 days after the notice was given; or

                     (c)  the Authority is satisfied that:

                              (i)  it is likely that a notice will be given under section 232 or 233 in relation to an eligible reforestation project; and

                             (ii)  the area is, or the areas are, identified in the relevant section 209 declaration as the project area or project areas for the eligible reforestation project; and

                            (iii)  the notice is likely to require a person to relinquish a particular number of Australian emissions units; and

                            (iv)  it is likely that the person will not comply with the requirement within 90 days after the notice is given.

Declaration

             (2)  The Authority may, by writing, declare that:

                     (a)  the area or areas of land are subject to a forest maintenance obligation; and

                     (b)  an activity (if any) specified in the declaration is a permitted forest activity in relation to the area or areas of land for the purposes of this Act.

Note:          For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.

             (3)  An activity may be specified under paragraph (2)(b) by reference to:

                     (a)  the area or areas of land on which the activity may be carried out; or

                     (b)  the manner in which the activity may be carried out; or

                     (c)  the time or times at which the activity may be carried out; or

                     (d)  the period or periods during which the activity may be carried out; or

                     (e)  the person or persons who may carry out the activity.

             (4)  Subsection (3) does not limit the ways in which an activity may be specified under paragraph (2)(b).

             (5)  If the Authority makes a declaration under subsection (2), the Authority must take all reasonable steps to ensure that a copy of the declaration is given to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right for the project—the person who holds the carbon sequestration right for the project; and

                     (c)  each person who holds an eligible interest in the area, or any of the areas, of land; and

                     (d)  a person specified in the regulations; and

                     (e)  the relevant land registration official (within the meaning of section 237).

             (6)  A failure to comply with subsection (5) does not affect the validity of a declaration under subsection (2).

Obligation

             (7)  If the area or areas of land are subject to a forest maintenance obligation, a person must not engage in conduct that has, or is likely to have, the result that:

                     (a)  there is no forest stand on the area, or any of the areas, of land; or

                     (b)  the number that, under the regulations, is taken to be the number of tonnes of greenhouse gases removed by the forest stand or stands on the area, or any of the areas, of land is less than the number that, under the regulations, is taken to be the number of tonnes of greenhouse gases removed by the forest stand or stands immediately before the area or areas of land became subject to the forest maintenance obligation;

unless the conduct is a permitted forest activity in relation to the area or areas of land.

Ancillary contraventions

             (8)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (7); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (7); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (7); or

                     (d)  conspire with others to effect a contravention of subsection (7).

Civil penalty provisions

             (9)  Subsections (7) and (8) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Duration of declaration

           (10)  A declaration under subsection (2):

                     (a)  comes into force when a copy of the declaration is given to the project manager for the project under subsection (5); and

                     (b)  unless sooner revoked, ceases to be in force at whichever of the following times happens first:

                              (i)  when the penalty payable under section 287 in respect of the non‑compliance with the requirement referred to in subparagraph (1)(a)(iv) or (b)(iv) (including any late payment penalty payable under section 288 in relation to the section 287 penalty) is paid in full;

                             (ii)  if the relevant section 209 declaration has never been varied—at the end of 100 years after the first occasion on which an Australian emissions unit was issued in relation to the project in accordance with this Part;

                            (iii)  if the relevant section 209 declaration has been varied—at the end of 100 years after the last occasion on which the declaration was varied.

Declaration is not a legislative instrument

           (11)  A declaration made under subsection (2) is not a legislative instrument.

226A  Variation or revocation of declaration of forest maintenance obligation

Scope

             (1)  This section applies if a declaration is in force under subsection 226(2) in relation to an area or areas of land.

Variation or revocation

             (2)  The Authority may, by writing, vary or revoke the declaration.

             (3)  The Authority may do so:

                     (a)  on the Authority’s own initiative; or

                     (b)  on application made to the Authority by a person.

Application

             (4)  An application under paragraph (3)(b) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by the fee (if any) specified in the regulations.

             (5)  A fee specified under paragraph (4)(c) must not be such as to amount to taxation.

Notification

             (6)  If the Authority varies or revokes the declaration, the Authority must give a copy of the variation or revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right for the project—the person who holds the carbon sequestration right for the project; and

                     (c)  each person who holds an eligible interest in the area, or any of the areas, of land; and

                     (d)  a person specified in the regulations; and

                     (e)  the relevant land registration official (within the meaning of section 237).

             (7)  A failure to comply with subsection (6) does not affect the validity of a variation or revocation.

Variation or revocation is not a legislative instrument

             (8)  A variation or revocation of the declaration is not a legislative instrument.

226B  Revocation of declaration of forest maintenance obligation—voluntary relinquishment of Australian emissions units

Scope

             (1)  This section applies if:

                     (a)  an area or areas of land are subject to a forest management obligation; and

                     (b)  in the case of a single area—the area is not a project area of an eligible reforestation project; and

                     (c)  in the case of 2 or more areas—none of the areas is a project area of an eligible reforestation project; and

                     (d)  a person applies to the Authority for the revocation of the relevant subsection 226(2) declaration; and

                     (e)  before the application was made, the applicant voluntarily relinquished a number of Australian emissions units in order to satisfy a condition for revocation of the declaration; and

                      (f)  the number of relinquished units equals the net total number of Australian emissions units issued in relation to the project in accordance with this Part.

Revocation

             (2)  The Authority must revoke the declaration.

Application

             (3)  An application under paragraph (1)(d) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority.

Subdivision AAForest restoration order

226C  Forest restoration order

Scope

             (1)  This section applies to one or more areas of land if:

                     (a)  the area or areas of land are subject to a forest maintenance obligation; and

                     (b)  a person has contravened, or is contravening, subsection 226(7) in relation to the area, or any of the areas, of land.

Order

             (2)  The Authority may, by written notice given to the person, order the person to:

                     (a)  if one or more forest stands are in existence on the area or areas of land—ensure that those forest stands are managed and maintained in accordance with the requirements set out in the order; or

                     (b)  if no forest stands are in existence on the area or areas of land:

                              (i)  establish one or more forest stands on the area or areas of land in accordance with the requirements set out in the order; and

                             (ii)  ensure that those forest stands are managed and maintained in accordance with the requirements set out in the order.

             (3)  An order under subsection (2) is to be known as a forest restoration order.

             (4)  The Authority must not make a forest restoration order that is inconsistent with section 226.

Notification of order

             (5)  If the Authority makes a forest restoration order, the Authority must take all reasonable steps to ensure that a copy of the order is given to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right for the project—the person who holds the carbon sequestration right for the project; and

                     (c)  each person who holds an eligible interest in the area, or any of the areas, of land; and

                     (d)  a person specified in the regulations; and

                     (e)  the relevant land registration official (within the meaning of section 237).

             (6)  A failure to comply with subsection (5) does not affect the validity of a forest restoration order.

Duration of order

             (7)  Unless sooner revoked, a forest restoration order ceases to be in force when the subsection 226(2) declaration that relates to the forest maintenance obligation mentioned in paragraph (1)(a) of this section ceases to be in force.

Compliance with order

             (8)  A person must comply with a forest restoration order to the extent to which the person is capable of doing so.

Ancillary contraventions

             (9)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (8); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (8); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (8); or

                     (d)  conspire with others to effect a contravention of subsection (8).

Civil penalty provisions

           (10)  Subsections (8) and (9) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

Order is not a legislative instrument

           (11)  A forest restoration order is not a legislative instrument.

226D  Variation or revocation of forest restoration order

Scope

             (1)  This section applies if a forest restoration order is in force in relation to an area or areas of land.

Variation or revocation

             (2)  The Authority may, by writing, vary or revoke the order.

             (3)  The Authority may do so:

                     (a)  on the Authority’s own initiative; or

                     (b)  on application made to the Authority by a person.

Application

             (4)  An application under paragraph (3)(b) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by the fee (if any) specified in the regulations.

             (5)  A fee specified under paragraph (4)(c) must not be such as to amount to taxation.

Notification

             (6)  If the Authority varies or revokes the order, the Authority must give a copy of the variation or revocation to:

                     (a)  the project manager for the project; and

                     (b)  if the project manager for the project does not hold the carbon sequestration right for the project—the person who holds the carbon sequestration right for the project; and

                     (c)  each person who holds an eligible interest in the area, or any of the areas, of land; and

                     (d)  a person specified in the regulations; and

                     (e)  the relevant land registration official (within the meaning of section 237).

             (7)  A failure to comply with subsection (6) does not affect the validity of a variation or revocation.

Variation or revocation is not a legislative instrument

             (8)  A variation or revocation of the order is not a legislative instrument.

Subdivision BInjunctions

227  Injunctions

Performance injunctions

             (1)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be a contravention of subsection 226(7) or 226C(8);

the Federal Court may, on the application of the Authority, grant an injunction requiring the person to do that act or thing.

Restraining injunctions

             (2)  If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of subsection 226(7) or 226C(8), the Federal Court may, on the application of the Authority, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the Court’s opinion, it is desirable to do so—requiring the person to do something.

228  Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the Federal Court for an injunction under section 227, the Court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.

No undertakings as to damages

             (2)  The Federal Court is not to require the Authority, as a condition of granting an interim injunction, to give any undertakings as to damages.

229  Discharge etc. of injunctions

                   The Federal Court may discharge or vary an injunction granted under this Subdivision.

230  Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the Federal Court under this Subdivision to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind.

Performance injunctions

             (2)  The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing.

231  Other powers of the Federal Court unaffected

                   The powers conferred on the Federal Court under this Subdivision are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise.


 

Division 10Relinquishment of Australian emissions units

232  Requirement to relinquish—unilateral revocation of declaration of eligible reforestation project

Scope

             (1)  This section applies to a person if:

                     (a)  the person is the project manager for an eligible reforestation project; and

                     (b)  one or more Australian emissions units have been issued in relation to the project in accordance with this Part; and

                     (c)  the declaration of the eligible reforestation project is revoked under section 217, 218, 218A, 219 or 219A.

Requirement

             (2)  The Authority must, by written notice given to the person, require the person to relinquish a specified number of Australian emissions units.

             (3)  The specified number must equal the net total number of Australian emissions units issued in relation to the project in accordance with this Part.

             (4)  The person must comply with the requirement within 90 days after the notice was given.

Note:          An administrative penalty is payable under section 287 for non‑compliance with a relinquishment requirement.

Sunset

             (5)  Despite subsection (2), the Authority must not give a notice under that subsection later than:

                     (a)  if the relevant section 209 declaration had never been varied—100 years after the first occasion on which an Australian emissions unit was issued in relation to the project in accordance with this Part; or

                     (b)  if the relevant section 209 declaration had been varied—at the end of 100 years after the last occasion on which the declaration was varied.

233  Relinquishment requirement—decrease in reforestation unit limit for eligible reforestation project

Scope

             (1)  This section applies to a person if:

                     (a)  the person is the project manager for an eligible reforestation project; and

                     (b)  one or more Australian emissions units have been issued in relation to the project in accordance with this Part; and

                     (c)  after the issue of the units, the reforestation unit limit for the project is decreased under section 222; and

                     (d)  the net total number of Australian emissions units issued in relation to the project in accordance with this Part exceeds the decreased limit.

Requirement

             (2)  The Authority must, by written notice given to the person, require the person to relinquish a specified number of Australian emissions units.

             (3)  The specified number of units must equal the excess mentioned in paragraph (1)(d).

             (4)  The person must comply with the requirement within 90 days after the notice was given.

Note:          An administrative penalty is payable under section 287 for non‑compliance with a relinquishment requirement.

Sunset

             (5)  Despite subsection (2), the Authority must not give a notice under that subsection later than:

                     (a)  if the relevant section 209 declaration has never been varied—100 years after the first occasion on which an Australian emissions unit was issued in relation to the project in accordance with this Part; or

                     (b)  if the relevant section 209 declaration has been varied—at the end of 100 years after the last occasion on which the declaration was varied.


 

Division 11Miscellaneous notification requirements

235  Notification requirement—ceasing to hold carbon sequestration right

Scope

             (1)  This section applies to a person if the person ceases to hold the carbon sequestration right in relation to an eligible reforestation project.

Notification

             (2)  The person (or, if the person has died, the person’s legal personal representative) must, within 90 days after the cessation occurs, notify the Authority, in writing, of the cessation.

Ancillary contraventions

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

                     (d)  conspire with others to effect a contravention of subsection (2).

Civil penalty provisions

             (4)  Subsections (2) and (3) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.

235A  Regulations may impose notification requirements

             (1)  The regulations may make provision requiring the project manager of an eligible reforestation project to notify a matter to the Authority.

             (2)  A matter specified in regulations made for the purposes of subsection (1) must be relevant to the operation of this Part.

Requirement

             (3)  If the project manager of an eligible reforestation project is subject to a requirement under regulations made for the purposes of subsection (1), the project manager must comply with that requirement.

Ancillary contraventions

             (4)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (3); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

                     (d)  conspire with others to effect a contravention of subsection (3).

Civil penalty provisions

             (5)  Subsections (3) and (4) are civil penalty provisions.

Note:          Part 21 provides for pecuniary penalties for breaches of civil penalty provisions.


 

Division 12Entries in title registers

236  Entries in title registers—general

Scope

             (1)  This section applies if there is an eligible reforestation project.

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to:

                     (a)  the existence of the eligible reforestation project; and

                     (b)  the fact that requirements may arise under this Act in relation to the project; and

                     (c)  such other matters (if any) relating to this Act as the official considers appropriate.

             (3)  For the purposes of this section, the relevant land registration official is the Registrar of Titles or other proper officer of the State or Territory in which the project area, or any of the project areas, is situated.

237  Entries in title registers—land subject to forest maintenance obligation

Scope

             (1)  This section applies to one or more areas of land if those areas of land are subject to a forest maintenance obligation.

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to the obligation.

             (3)  For the purposes of this section, the relevant land registration official is the Registrar of Titles or other proper officer of the State or Territory in which those areas of land are situated.


 

Division 13Register of Reforestation Projects

238  Register of Reforestation Projects

             (1)  The Authority must keep a register, to be known as the Register of Reforestation Projects.

             (2)  The Register of Reforestation Projects is to be maintained by electronic means.

             (3)  The Register of Reforestation Projects is to be made available for inspection on the Authority’s website.

239  Entries in the Register

             (1)  The Register of Reforestation Projects must set out, for each eligible reforestation project:

                     (a)  the relevant declaration under section 209; and

                     (b)  the reforestation unit limit for the project; and

                     (c)  the project area or project areas; and

                     (d)  the name of the person who is the holder of the carbon sequestration right in relation to the project; and

                    (da)  the name of the person who is the project manager for the project; and

                     (e)  if any Australian emissions units have been issued in relation to the project in accordance with this Part:

                              (i)  the total number of units so issued; and

                             (ii)  the name of the person, or each of the persons, to whom those units have been issued; and

                      (f)  if any Australian emissions units have been relinquished in order to comply with a requirement under this Part in relation to the project—the total number of units so relinquished; and

                     (g)  if the project area or project areas are subject to a forest maintenance obligation:

                              (i)  a statement to that effect; and

                             (ii)  the net total number of Australian emissions units issued in relation to the project in accordance with this Part; and

                    (ga)  if:

                              (i)  the project manager for the project has requested the Authority that particular information about the project be set out in the Register of Reforestation Projects; and

                             (ii)  the request has not been withdrawn; and

                            (iii)  the requested information is of a kind specified in the regulations;

                            the requested information; and

                     (h)  such other information (if any) relating to the project as the Authority considers appropriate.

             (2)  If one or more areas of land that were formerly a project area or project areas of an eligible reforestation project are subject to a forest maintenance obligation, the Register of Reforestation Projects must:

                     (a)  set out a statement to that effect; and

                     (b)  identify the area or areas of land; and

                     (c)  set out the net total number of Australian emissions units issued in relation to the project in accordance with this Part.


 

Division 14Carbon sequestration right and forestry right

Subdivision ACarbon sequestration right

239A  Carbon sequestration right in relation to a reforestation project

                   For the purposes of this Act, a person holds the carbon sequestration right in relation to a reforestation project if the person holds the carbon sequestration right in relation to the project area or each of the project areas.

240  Carbon sequestration right in relation to an area of land

Torrens system land

             (1)  For the purposes of this Act, if:

                     (a)  an area of land is Torrens system land; and

                     (b)  a person holds a legal estate or interest in the area of land; and

                     (c)  the estate or interest is registered under a Torrens system of registration; and

                     (d)  as a result of holding the estate or interest, the person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land;

the estate or interest is the carbon sequestration right held by the person in relation to the area of land.

             (2)  For the purposes of this Act, if:

                     (a)  an area of land is Torrens system land; and

                     (b)  a person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land; and

                     (c)  the right is registered under a Torrens system of registration; and

                     (d)  under a law of a State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the carbon sequestration right held by the person in relation to the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  an area of land is Torrens system land; and

                     (b)  a person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land; and

                     (c)  either:

                              (i)  the right is registered under a Torrens system of registration; or

                             (ii)  the area of land is Torrens system land, and the right is noted on the relevant certificate of title; and

                     (d)  under a law of a State or Territory, the right runs with the relevant land;

the exclusive right is the carbon sequestration right held by the person in relation to the area of land.

Crown land that is not Torrens system land

             (4)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  a person (other than the State or Territory) holds a legal estate or interest in the area of land; and

                     (d)  as a result of holding the estate or interest, the person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land;

the estate or interest is the carbon sequestration right held by the person in relation to the area of land.

             (5)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  a person (other than the State or Territory) has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land; and

                     (d)  under a law of the State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the carbon sequestration right held by the person in relation to the area of land.

             (6)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  an area of land is not Torrens system land; and

                     (c)  a person (other than the State or Territory) has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land; and

                     (d)  under a law of the State or Territory, the right runs with the relevant land; and

                     (e)  it is not the case that under a law of the State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the carbon sequestration right held by the person in relation to the area of land.

             (7)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  as a result of the area of land being Crown land:

                              (i)  the State or Territory; or

                             (ii)  a statutory authority of the State or Territory;

                            has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land;

the exclusive right is the carbon sequestration right held by the State, Territory or statutory authority, as the case may be, in relation to the area of land.

Right to obtain the benefit of sequestration

             (8)  For the purposes of this section, in determining whether a person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on an area of land, it is immaterial whether that right extends to sequestration of carbon dioxide by the soil in which the trees are growing.

Subdivision BForestry right

241  Forestry right

Torrens system land

             (1)  For the purposes of this Act, if:

                     (a)  an area of land is Torrens system land; and

                     (b)  a person holds a legal estate or interest in the area of land; and

                     (c)  the estate or interest is registered under a Torrens system of registration; and

                     (d)  as a result of holding the estate or interest, the person has the exclusive legal right to establish, manage and maintain a forest on the area of land;

the estate or interest is the forestry right held by the person in relation to the area of land.

             (2)  For the purposes of this Act, if:

                     (a)  an area of land is Torrens system land; and

                     (b)  a person has the exclusive legal right to establish, manage and maintain a forest on the area of land; and

                     (c)  the right is registered under a Torrens system of registration; and

                     (d)  under a law of a State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the forestry right held by the person in relation to the area of land.

Crown land that is not Torrens system land

             (3)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  a person (other than the State or Territory) holds a legal estate or interest in the area of land; and

                     (d)  as a result of holding the estate or interest, the person has the exclusive legal right to establish, manage and maintain a forest on the area of land;

the estate or interest is the forestry right held by the person in relation to the area of land.

             (4)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  a person (other than the State or Territory) has the exclusive legal right to establish, manage and maintain a forest on the area of land; and

                     (d)  under a law of the State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the forestry right held by the person in relation to the area of land.

             (5)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land in a State or Territory; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  as a result of the area of land being Crown land:

                              (i)  the State or Territory; or

                             (ii)  a statutory authority of the State or Territory;

                            has the exclusive legal right to establish, manage and maintain a forest on the area of land;

the exclusive right is the forestry right held by the State, Territory or statutory authority, as the case may be, in relation to the area of land.


 

Division 14AEligible interest in an area of land

241A  Eligible interest in an area of land—Torrens system land

Scope

             (1)  This section applies to an area of land if the area is Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, if a person holds a forestry right in relation to the whole or a part of the area of land, the forestry right is an eligible interest held by the person in the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  a person holds an estate in fee simple, or any other legal estate or interest, in the whole or a part of the area of land; and

                     (b)  the estate or interest is registered under a Torrens system of registration;

the estate or interest is an eligible interest held by the person in the area of land.

             (4)  For the purposes of this Act, if:

                     (a)  under subsection (2) or (3), a person holds an eligible interest in an area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest, where the mortgage is registered under a Torrens system of registration; or

                             (ii)  a chargee of the eligible interest, where the charge is registered under a Torrens system of registration;

the mortgage or charge is an eligible interest held by the other person in the area of land.

241B  Eligible interest in an area of land—Crown land that is not Torrens system land

Scope

             (1)  This section applies to an area of land in a State or Territory if the area of land:

                     (a)  is Crown land; and

                     (b)  is not Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

             (3)  For the purposes of this Act, if a person holds a forestry right in relation to the whole or a part of the area of land, the forestry right is an eligible interest held by the person in the area of land.

             (4)  For the purposes of this Act, if a person (other than the State or Territory) holds a legal estate or interest in the whole or a part of the area of land, the estate or interest is an eligible interest held by the person in the area of land.

             (5)  For the purposes of this Act, if:

                     (a)  under subsection (3) or (4), a person holds an eligible interest in an area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest; or

                             (ii)  is a chargee of the eligible interest;

the mortgage or charge is an eligible interest held by the other person in the area of land.


 

Division 15Net total number of Australian emissions units issued in relation to an eligible reforestation project

242  Net total number of Australian emissions units issued in relation to an eligible reforestation project

                   For the purposes of this Act, the net total number of Australian emissions units issued in relation to an eligible reforestation project in accordance with this Part is the number worked out using the following formula:


 

Division 16Transition of reforestation projects from non‑CPRS reforestation schemes

243  Request for determination

             (1)  If a person applies under section 205 for a declaration of a reforestation project as an eligible reforestation project, the application may be accompanied by a request for a determination under section 243C in relation to the project.

             (2)  A person is not entitled to make a request after the end of the 2‑year period beginning at the commencement of this section.

             (3)  A request may be set out in the same document as the application under section 205.

243A  Form of request

             (1)  A request must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Authority; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such documents (if any) as are specified in the regulations.

             (2)  The approved form of request may provide for verification by statutory declaration of statements in requests.

243B  Further information

             (1)  The Authority may, by written notice given to a person who has made a request under section 243, require the person to give the Authority, within the period specified in the notice, further information in connection with the request.

             (2)  If the person breaches the requirement, the Authority may, by written notice given to the person:

                     (a)  refuse to consider the request; or

                     (b)  refuse to take any action, or any further action, in relation to the request.

243C  Determination

Scope

             (1)  This section applies if:

                     (a)  a request under section 243 has been made for a determination under this section in relation to a reforestation project; and

                     (b)  under section 209, the Authority has declared the reforestation project to be an eligible reforestation project.

Determination

             (2)  As soon as practicable after making the declaration, the Authority must consider the request and may, by written notice given to the person who made the request, determine that this Act has effect, in relation to the project, as if:

                     (a)  the net total number of Australian emissions units mentioned in subsection 232(3) were increased by the number specified in the determination; and

                     (b)  the net total number of Au