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National Greenhouse and Energy Reporting Act 2007

Authoritative Version
  • - C2012C00373
  • In force - Superseded Version
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Act No. 175 of 2007 as amended, taking into account amendments up to Clean Energy (Consequential Amendments) Act 2011
An Act to provide for the reporting and dissemination of information related to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption, and for other purposes
Administered by: Climate Change and Energy Efficiency
Registered 02 Apr 2012
Start Date 02 Apr 2012
End Date 30 Jun 2012

National Greenhouse and Energy Reporting Act 2007

Act No. 175 of 2007 as amended

This compilation was prepared on 2 April 2012
taking into account amendments up to Act No. 132 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part 1—Introduction                                                                                                            1

Division 1—Preliminary                                                                                              1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement................................................................................... 1

3............ Object.................................................................................................. 2

4............ Constitutional basis for Act................................................................. 2

5............ Act excludes some State and Territory laws........................................ 2

6............ Application to external Territories, Exclusive Economic Zone and innocent passage               3

Division 2—Interpretation                                                                                         4

7............ Definitions.......................................................................................... 4

8............ Group and members of a group.......................................................... 7

9............ Facilities.............................................................................................. 8

10.......... Emissions, energy production and energy consumption etc................ 9

11.......... Operational control............................................................................ 10

Part 2—Registration                                                                                                           11

Division 1—Applying for registration                                                               11

12.......... Applying to register in relation to meeting a threshold...................... 11

13.......... Thresholds........................................................................................ 12

14.......... Applying to register in relation to greenhouse gas project................. 13

15.......... Requirements for applications........................................................... 13

Division 2—The Register                                                                                          14

16.......... The Register...................................................................................... 14

Division 3—Registration and deregistration of corporations              15

17.......... Registration of corporations.............................................................. 15

18.......... Deregistration of corporations........................................................... 15

Part 3—Obligations of registered corporations etc.                                        17

19.......... Report to be given to the Regulator................................................... 17

20.......... Liability of other persons to provide certain information................... 19

21.......... Reports relating to greenhouse gas projects: reduction of greenhouse gas emissions and removals of greenhouse gases.......................................................................................................... 20

21A....... Reports relating to offsets of greenhouse gas emissions................... 21

22.......... Records to be kept............................................................................. 22

Part 3E—Reporting obligations of holders of reporting transfer certificates      24

Division 1—Reporting obligations                                                                       24

22G....... Report to be given to the Regulator................................................... 24

22H....... Records to be kept............................................................................. 25

Division 2—Reporting transfer certificates                                                   27

22J........ Reporting transfer test....................................................................... 27

22K....... Application for reporting transfer certificate...................................... 27

22KA.... Further information........................................................................... 28

22L........ Issue of reporting transfer certificate................................................. 29

22M...... Duration of reporting transfer certificate........................................... 30

22N....... Surrender of reporting transfer certificate.......................................... 31

22P........ Cancellation of reporting transfer certificate...................................... 31

22Q....... Reporting transfer certificate is not transferable................................ 32

22R....... Financial control................................................................................ 32

Part 4—Disclosure of information                                                                             34

23.......... Secrecy.............................................................................................. 34

24.......... Publishing of information................................................................. 35

25.......... Requests for information not to be published.................................... 38

27.......... Information may be disclosed to States and Territories..................... 38

28.......... Corporation may request information be disclosed........................... 39

Part 5—Enforcement                                                                                                         40

Division 1—Civil penalties                                                                                       40

Subdivision A—Civil penalty orders                                                                   40

29.......... Civil penalty provisions.................................................................... 40

30.......... Continuing contraventions................................................................ 40

31.......... Court may order person to pay pecuniary penalty for contravening civil penalty provision     41

32.......... Contravening a civil penalty provision is not an offence................... 42

33.......... Persons involved in contravening civil penalty provision................. 42

34.......... Recovery of a pecuniary penalty....................................................... 42

Subdivision B—Civil penalty proceedings and criminal proceedings       43

35.......... Civil proceedings after criminal proceedings..................................... 43

36.......... Criminal proceedings during civil proceedings................................. 43

37.......... Criminal proceedings after civil proceedings..................................... 43

38.......... Evidence given in proceedings for penalty not admissible in criminal proceedings  43

Division 2—Infringement notices                                                                         45

39.......... When an infringement notice can be given........................................ 45

40.......... Matters to be included in an infringement notice............................... 45

41.......... Amount of penalty............................................................................ 46

42.......... Withdrawal of an infringement notice............................................... 46

43.......... Paying the penalty in accordance with the notice............................... 47

44.......... Effect of this Division on civil proceedings...................................... 47

Division 3—Enforceable undertakings                                                              48

45.......... Acceptance of undertakings relating to contraventions...................... 48

46.......... Enforcement of undertakings............................................................ 48

Division 4—Liability of chief executive officers of corporations        50

47.......... Civil penalties for chief executive officers of corporations................ 50

48.......... Did a chief executive officer take reasonable steps to prevent contravention?          50

Part 6—Administration                                                                                                    52

Division 2—Decisions by the Regulator                                                           52

54.......... Regulator may declare facility........................................................... 52

55.......... Regulator may declare corporation etc. has operational control......... 52

Division 3—Review of decisions                                                                           54

56.......... AAT review of decisions.................................................................. 54

Division 4—Monitoring compliance                                                                   55

Subdivision A—Authorised officers                                                                    55

57.......... Appointment of authorised officers................................................... 55

58.......... Identity cards..................................................................................... 55

Subdivision B—Powers of authorised officers                                                 56

59.......... Entering premises to monitor compliance.......................................... 56

60.......... Powers of authorised officers in monitoring compliance.................. 56

61.......... Authorised officer may request persons to answer questions........... 58

Subdivision C—Obligations and incidental powers of authorised officers 58

62.......... Authorised officer must produce identity card on request................. 58

63.......... Consent............................................................................................. 59

64.......... Announcement before entry.............................................................. 59

65.......... Details of warrant to be given to occupier etc. before entry............... 59

66.......... Use of electronic equipment in exercising monitoring powers.......... 59

67.......... Compensation for damage to electronic equipment........................... 61

Subdivision D—Occupier’s rights and responsibilities                                   62

68.......... Occupier entitled to be present during execution of warrant.............. 62

69.......... Occupier to provide authorised officer with all facilities and assistance 62

Subdivision E—Warrants                                                                                      62

70.......... Monitoring warrants......................................................................... 62

Subdivision F—Information gathering                                                              63

71.......... Power to request information............................................................ 63

72.......... Prohibitions on disclosure of information do not apply.................... 64

Subdivision G—Greenhouse and energy audits                                               64

73.......... Audits of registered corporations—compliance................................ 64

73A....... Audits of persons providing information under section 20—compliance 65

74.......... Audits of registered corporations—other.......................................... 67

74A....... Audits of persons providing information under section 20—other... 67

75.......... Conduct of audits.............................................................................. 68

75A....... Register of greenhouse and energy auditors...................................... 69

Part 7—Miscellaneous                                                                                                       71

76.......... Modification of National Environment Protection (National Pollutant Inventory) Measure     71

77.......... Regulations....................................................................................... 71

Notes                                                                                                                                             73


An Act to provide for the reporting and dissemination of information related to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption, and for other purposes

Part 1Introduction

Division 1Preliminary

1  Short title [see Note 1]

                   This Act may be cited as the National Greenhouse and Energy Reporting Act 2007.

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 on which this Act receives the Royal Assent.

28 September 2007

2.  Sections 3 to 77

The day after this Act receives the Royal Assent.

29 September 2007

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  Object

                   The object of this Act is to introduce a single national reporting framework for the reporting and dissemination of information related to greenhouse gas emissions, greenhouse gas projects, energy consumption and energy production of corporations to:

                     (a)  underpin the introduction of an emissions trading scheme in the future; and

                     (b)  inform government policy formulation and the Australian public; and

                     (c)  meet Australia’s international reporting obligations; and

                     (d)  assist Commonwealth, State and Territory government programs and activities; and

                     (e)  avoid the duplication of similar reporting requirements in the States and Territories.

4  Constitutional basis for Act

                   This Act relies on:

                     (a)  the Commonwealth’s legislative powers under paragraphs 51(xi), (xx), (xxix) and (xxxix) of the Constitution; and

                     (b)  any implied legislative powers of the Commonwealth.

5  Act excludes some State and Territory laws

                   This Act is intended to apply to the exclusion of a law of a State or Territory, or a part of such a law:

                     (a)  that provides for the reporting or disclosure of information related to:

                              (i)  greenhouse gas emissions; or

                             (ii)  greenhouse gas projects; or

                            (iii)  energy consumption; or

                            (iv)  energy production; and

                     (b)  that the regulations provide is a law, or part of a law, to which this section applies;

so far as the law, or part of the law, would otherwise apply in relation to a constitutional corporation.

6  Application to external Territories, Exclusive Economic Zone and innocent passage

             (1)  This Act extends to all the external Territories.

             (2)  This Act extends to Australia’s exclusive economic zone.

Note:          The application of this Act to the exclusive economic zone is limited, through the definitions of facility and greenhouse gas project, to oil or gas extraction activities.

             (3)  This Act does not apply to the extent that its application would be inconsistent with a right of innocent passage being exercised by a foreign ship.

Note:          Innocent passage is defined in section 7.


 

Division 2Interpretation

7  Definitions

                   In this Act:

audit information means information obtained by or on behalf of an audit team leader in the course of carrying out a greenhouse and energy audit.

audit team leader means a registered greenhouse and energy auditor appointed to carry out a greenhouse and energy audit.

audit team member, in relation to a greenhouse and energy audit, means a person assisting the audit team leader to carry out the audit.

authorised officer means an officer appointed under section 57.

business unit has the meaning given by the regulations.

carbon dioxide equivalence, of an amount of greenhouse gas, means the amount of the gas multiplied by a value specified in the regulations in relation to that kind of greenhouse gas.

CFI audit means:

                     (a)  an audit under section 214 or 215 of the Carbon Credits (Carbon Farming Initiative) Act 2011; or

                     (b)  an audit carried out for the purposes of preparing an audit report prescribed for the purposes of any of the following provisions of the Carbon Credits (Carbon Farming Initiative) Act 2011:

                              (i)  paragraph 13(1)(e);

                             (ii)  paragraph 23(1)(d);

                            (iii)  paragraph 76(4)(c).

CFI audit report means:

                     (a)  an audit report under section 214 or 215 of the Carbon Credits (Carbon Farming Initiative) Act 2011; or

                     (b)  an audit report prescribed for the purposes of any of the following provisions of the Carbon Credits (Carbon Farming Initiative) Act 2011:

                              (i)  paragraph 13(1)(e);

                             (ii)  paragraph 23(1)(d);

                            (iii)  paragraph 76(4)(c).

civil penalty provision has the meaning given by section 29.

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

consumption, of energy, has the meaning given by section 10.

controlling corporation means a constitutional corporation that does not have a holding company incorporated in Australia.

court means:

                     (a)  the Federal Court of Australia; or

                     (b)  the Federal Magistrates Court.

emission, of greenhouse gas, has the meaning given by section 10.

energy, includes fuel, or any other energy commodity, of a kind specified in the regulations.

facility has the meaning given by section 9.

financial control has the meaning given by section 22R.

greenhouse and energy audit means an audit under any of sections 73 to 74A.

greenhouse and energy information means information reported to the Regulator under this Act or information obtained by a person whilst performing duties under this Act or the regulations.

greenhouse gas means:

                     (a)  carbon dioxide; or

                     (b)  methane; or

                     (c)  nitrous oxide; or

                     (d)  sulphur hexafluoride; or

                     (e)  a hydrofluorocarbon of a kind specified in the regulations; or

                      (f)  a perfluorocarbon of a kind specified in the regulations.

greenhouse gas project means an activity or series of activities:

                     (a)  designed to remove or reduce the emission of greenhouse gases; and

                     (b)  which meet the requirements specified in the regulations;

but does not include an activity, or a series of activities, in the exclusive economic zone, except to the extent that it is an oil or gas extraction activity or a series of oil or gas extraction activities.

group has the meaning given by subsection 8(1).

holding company, in relation to a body corporate, is a body corporate of which the first body corporate is a subsidiary.

industry sector has the meaning given by the regulations.

innocent passage has the meaning it has under the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

Note:          For the Convention on the Law of the Sea see the Schedule to the Seas and Submerged Lands Act 1973.

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

member has the meaning given by subsection 8(2).

official of the Regulator has the same meaning as in the Clean Energy Regulator Act 2011.

offsets, of greenhouse gas emissions, has the meaning given by section 10.

oil or gas extraction activity means:

                     (a)  any activity involving extraction of, or exploration for, oil or gas; and

                     (b)  any activity, of a kind specified in the regulations, that is connected with such extraction or exploration.

operational control has the meaning given by section 11.

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

production, of energy, has the meaning given by section 10.

protected information has the same meaning as in the Clean Energy Regulator Act 2011.

reduction, of greenhouse gas emissions, has the meaning given by section 10.

registered corporation means a corporation that is registered under Division 3 of Part 2.

registered greenhouse and energy auditor means an individual who is registered in the register of greenhouse and energy auditors kept under section 75A.

Regulator means the Clean Energy Regulator.

removal, of greenhouse gas, has the meaning given by section 10.

reporting transfer certificate means a certificate issued under section 22L.

reporting transfer test has the meaning given by section 22J.

subsidiary has the meaning given by section 46 of the Corporations Act 2001.

warrant (except in paragraph 60(1)(h)) means a warrant issued under section 70.

8  Group and members of a group

             (1)  A controlling corporation’s group consists of the following entities:

                     (a)  the controlling corporation;

                     (b)  the controlling corporation’s subsidiaries covered by subsection (3) (if any);

                     (c)  the joint ventures covered by subsection (4) (if any);

                     (d)  the partnerships covered by subsection (5) (if any).

However, paragraph (b) does not apply if the controlling corporation is not incorporated in Australia.

             (2)  The members of the group are the entities mentioned in subsection (1) (other than the controlling corporation’s subsidiaries if the controlling corporation is not incorporated in Australia).

             (3)  A subsidiary of the controlling corporation is covered by this section unless:

                     (a)  the subsidiary is also a subsidiary of another body corporate because the other body corporate meets the requirement in subparagraph 46(a)(i) or (ii) of the Corporations Act 2001 in relation to the subsidiary; and

                     (b)  the other body corporate is not a member of the group (including by reason of a previous operation of this subsection).

             (4)  A joint venture is covered by this subsection if a member of the group (other than a joint venture or partnership) is a participant in the joint venture and the participants in the joint venture have either:

                     (a)  nominated that member as the responsible entity for the joint venture in accordance with regulations made for the purposes of subsection (6); or

                     (b)  not nominated an entity as the responsible entity for the joint venture in accordance with those regulations.

             (5)  A partnership is covered by this subsection if a member of the group (other than a joint venture or partnership) is a partner in the partnership and the partners in the partnership have either:

                     (a)  nominated that member as the responsible entity for the partnership in accordance with regulations made for the purposes of subsection (6); or

                     (b)  not nominated an entity as the responsible entity for the partnership in accordance with those regulations.

             (6)  The regulations may establish rules under which:

                     (a)  participants in a joint venture may make, and revoke, nominations for the purposes of subsection (4); and

                     (b)  partners in a partnership may make, and revoke, nominations for the purposes of subsection (5).

9  Facilities

             (1)  A facility is an activity, or a series of activities (including ancillary activities), that involve the production of greenhouse gas emissions, the production of energy or the consumption of energy and that:

                     (a)  form a single undertaking or enterprise and meet the requirements of the regulations; or

                     (b)  are declared by the Regulator to be a facility under section 54;

but does not include an activity, or a series of activities, in the exclusive economic zone, except to the extent that it is an oil or gas extraction activity or a series of oil or gas extraction activities.

             (2)  Paragraph (1)(a) does not apply if a declaration of a kind referred to in paragraph (1)(b) is in force.

             (3)  For the purposes of paragraph (1)(a), the activity or activities constituting the undertaking or enterprise must not be attributable to more than one industry sector.

             (4)  Regulations made for the purposes of paragraph (1)(a) may specify:

                     (a)  the circumstances in which an activity or activities (including ancillary activities) will form part of a single undertaking or enterprise; and

                     (b)  what activities are attributable to particular industry sectors.

10  Emissions, energy production and energy consumption etc.

             (1)  References to the following:

                     (a)  emissions of greenhouse gas;

                     (b)  reduction of greenhouse gas emissions;

                     (c)  removal of greenhouse gas;

                     (d)  offsets of greenhouse gas emissions;

                     (e)  production of energy;

                      (f)  consumption of energy;

have the meaning specified by the regulations.

             (2)  Regulations made for the purposes of paragraph (1)(a) may specify a meaning of emissions of greenhouse gas that includes emissions related to the consumption of specified kinds of energy.

             (3)  The Minister may determine, by legislative instrument, methods, or criteria for methods, by which the amounts of the emissions, reduction, removal, offsets, production or consumption are to be measured for the purposes of this Act and may specify:

                     (a)  different methods or criteria for different industry sectors; and

                     (b)  different methods or criteria depending on the circumstances in which the emissions, reduction, removal, offsets, production or consumption occurred; and

                     (c)  conditions relating to the use of methods determined by the Minister or of methods which meet criteria determined by the Minister; and

                     (d)  rating systems for those methods (including different rating systems for different circumstances); and

                     (e)  the particular rating given to each of those methods.

11  Operational control

             (1)  A controlling corporation or another member of the corporation’s group has operational control over a facility if:

                     (a)  it has the authority to introduce and implement any or all of the following for the facility:

                              (i)  operating policies;

                             (ii)  health and safety policies;

                            (iii)  environmental policies;

                            and meets the requirements of the regulations; or

                     (b)  the Regulator declares the corporation or member to have operational control of the facility under section 55.

             (2)  Paragraph (1)(a) does not apply if a declaration of a kind referred to in paragraph (1)(b) is in force.

             (3)  For the purposes of this Act, only one such corporation or member can have operational control over a facility at any one time.

             (4)  If more than one such corporation or member could satisfy paragraph (1)(a) at any one time, then the corporation or member that has the greatest authority to introduce and implement the policies mentioned in subparagraphs (1)(a)(i) and (iii) is taken, for the purposes of this Act, to have operational control over the facility.


 

Part 2Registration

Division 1Applying for registration

12  Applying to register in relation to meeting a threshold

             (1)  A controlling corporation must apply, in accordance with this section, to be registered under Division 3 if the corporation’s group meets one or more of the thresholds under section 13 for a financial year (the trigger year) ending on or after 30 June 2009.

Civil penalty:          2,000 penalty units.

Note:          Under section 30 a controlling corporation may be liable for an additional civil penalty for each day that it fails to apply in accordance with subsection (1) of this section.

             (2)  However, a controlling corporation is not required to make an application under subsection (1) in relation to a financial year if:

                     (a)  the corporation has previously made an application under subsection (1) or (3); and

                     (b)  the corporation was registered under Division 3 because of that application; and

                     (c)  the corporation is registered under Division 3 at the end of that year.

Example:    A controlling corporation’s trigger year is the financial year ending on 30 June 2009.

During that year, the corporation applies under subsection (1) to be registered under Division 3 and the corporation is so registered.

On 30 June 2010 the corporation is still registered under Division 3. The corporation is not required to make an application under subsection (1) in relation to the financial year ending on 30 June 2010.

             (3)  A controlling corporation may apply, in accordance with this section, to be registered under Division 3 if the chief executive officer of the corporation is satisfied that the corporation’s group is likely to meet one or more of the thresholds under section 13 for a financial year (the trigger year) ending on or after 30 June 2009.

             (4)  An application under subsection (1) or (3) must be made by 31 August in the financial year after the trigger year.

13  Thresholds

             (1)  A controlling corporation’s group meets a threshold for a financial year if in that year:

                     (a)  the total amount of greenhouse gases emitted from the operation of facilities under the operational control of entities that are members of the group has a carbon dioxide equivalence of:

                              (i)  if the financial year starts on 1 July 2008—125 kilotonnes or more; or

                             (ii)  if the financial year starts on 1 July 2009—87.5 kilotonnes or more; or

                            (iii)  if the year is a later financial year—50 kilotonnes or more; or

                     (b)  the total amount of energy produced from the operation of facilities under the operational control of entities that are members of the group is:

                              (i)  if the financial year starts on 1 July 2008—500 terajoules or more; or

                             (ii)  if the financial year starts on 1 July 2009—350 terajoules or more; or

                            (iii)  if the year is a later financial year—200 terajoules or more; or

                     (c)  the total amount of energy consumed from the operation of facilities under the operational control of entities that are members of the group is:

                              (i)  if the financial year starts on 1 July 2008—500 terajoules or more; or

                             (ii)  if the financial year starts on 1 July 2009—350 terajoules or more; or

                            (iii)  if the year is a later financial year—200 terajoules or more; or

                     (d)  an entity that is a member of the group has operational control of a facility the operation of which during the year causes:

                              (i)  emission of greenhouse gases that have a carbon dioxide equivalence of 25 kilotonnes or more; or

                             (ii)  production of energy of 100 terajoules or more; or

                            (iii)  consumption of energy of 100 terajoules or more.

             (2)  If a member of a controlling corporation’s group has operational control of a facility for a number of, but not all, days in a financial year (the control days), subparagraphs (1)(d)(i) to (iii) have effect as though each threshold were replaced by the amount worked out using the following formula:

Reporting transfer certificate

             (3)  For the purposes of this section, if a person was the holder of a reporting transfer certificate in relation to a facility on a particular day, the facility is taken not to have been under the operational control of a member of a controlling corporation’s group on that day.

14  Applying to register in relation to greenhouse gas project

                   A controlling corporation that is not a registered corporation may apply to be registered under Division 3 if the corporation, or one or more members of the corporation’s group, are undertaking or proposing to undertake a greenhouse gas project.

15  Requirements for applications

                   An application under section 12 or 14 must:

                     (a)  be made to the Regulator; and

                     (b)  identify the controlling corporation; and

                     (c)  contain any other information required by the regulations (which must be information that relates to one or more members of a controlling corporation’s group); and

                     (d)  be in the form (if any) specified in the regulations.


 

Division 2The Register

16  The Register

             (1)  The Regulator must cause a Register to be kept for the purposes of this Act.

             (2)  The Register is called the National Greenhouse and Energy Register.

             (3)  The Regulator may cause the contents of part or all of the Register to be made available to the public by electronic or other means.

             (4)  The Regulator must cause the following information, and only that information, to be entered on the Register:

                     (a)  the name of each corporation that the Regulator registers under Division 3;

                     (b)  any other matters, required by the regulations, that relate to the following:

                              (i)  information included in the application for registration;

                            (iii)  whether the corporation has complied with provisions of this Act;

                            (iv)  information that is published under section 24;

                             (v)  the results of a greenhouse and energy audit carried out in relation to the corporation.


 

Division 3Registration and deregistration of corporations

17  Registration of corporations

             (1)  The Regulator must register a corporation under this Division if the corporation has applied for registration under section 12 in accordance with section 15.

             (2)  The Regulator may register a corporation under this Division if:

                     (a)  the Regulator is satisfied that section 14 permits the corporation to apply for registration; and

                     (b)  the corporation has applied for registration in accordance with section 15.

             (3)  The Regulator must notify the corporation, in writing, of his or her decision on the application.

          (3A)  The Regulator must register a corporation under this Division if:

                     (a)  a reporting transfer certificate is issued to the corporation; and

                     (b)  the corporation is not already registered under this Division.

             (4)  The corporation is registered under this Division when the Regulator has entered the name of the corporation on the Register.

18  Deregistration of corporations

             (1)  A registered corporation may apply to the Regulator to be deregistered.

             (2)  The application must:

                     (a)  contain information required by the regulations; and

                     (b)  be in the form (if any) specified in the regulations.

             (3)  The Regulator must remove the name of the corporation from the Register if the Regulator is satisfied that:

                     (a)  if the registered corporation is the controlling corporation of a group—the registered corporation’s group is not likely to meet any of the thresholds under section 13 for:

                              (i)  the financial year in which the application is made; and

                             (ii)  the next 2 financial years; and

                     (b)  the registered corporation does not hold a reporting transfer certificate.

             (4)  The Regulator must notify the corporation, in writing, of the Regulator’s decision on the application.

             (5)  The corporation ceases to be registered under this Division when the Regulator has removed its name from the Register.


 

Part 3Obligations of registered corporations etc.

  

19  Report to be given to the Regulator

             (1)  A registered corporation must, in accordance with this section and in respect of each financial year mentioned in subsection (2), provide a report to the Regulator relating to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from the operation of facilities under the operational control of the corporation and entities that are members of the corporation’s group, during that financial year.

Civil penalty:          2,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 20 the Regulator may determine that a person other than the registered corporation provide information required by this section.

Note 3:       Under section 30 a controlling corporation may be liable for an additional civil penalty for each day on and after the end of the period mentioned in paragraph (6)(d) for which it fails to provide a report in accordance with this section.

Note 3A:    Reports under this section and section 22G may be set out in the same document—see subsection 22G(6).

             (2)  A report under subsection (1) is required for:

                     (a)  the corporation’s trigger year (within the meaning of subsection 12(1) or (3)); and

                     (b)  any financial year in which the corporation is registered at the end of that year.

             (3)  If the corporation or a member of its group has operational control over a facility for part of a financial year, the report under subsection (1) in relation to that facility for that year need only relate to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption; and

from the operation of the facility during the part of that year.

             (4)  A member of the corporation’s group (other than the registered corporation) may provide part of the report referred to in subsection (1) if the part relates to facilities for which that member has operational control.

             (5)  If a part or parts of a report relating to one or more facilities are provided in accordance with subsection (4) for a financial year, the report by the registered corporation under subsection (1) in respect of that year need only, in relation to any such facilities, specify the member of the corporation’s group that provided the part or parts of the report in relation to those facilities.

          (5A)  For the purposes of this section, if a person was the holder of a reporting transfer certificate in relation to a facility on a particular day, the facility is taken not to have been under the operational control of a member of the corporation’s group on that day.

             (6)  A report or part of a report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  be based on methods determined by the Minister under subsection 10(3), or methods which meet criteria determined by the Minister under that subsection, where the use of those methods satisfies any conditions specified in the determination under that subsection; and

                     (c)  include any information specified by the regulations for the purposes of this paragraph; and

                     (d)  be given to the Regulator before the end of 4 months after the end of the financial year.

             (7)  Regulations made for the purposes of paragraph (6)(c) may specify different requirements for different circumstances.

             (8)  In particular, and without limiting subsection (7), the regulations may specify different requirements for registered corporations that:

                     (a)  do not meet any threshold; or

                     (b)  do not meet specified thresholds;

for a financial year to which a report relates.

             (9)  Regulations made for the purposes of paragraph (6)(c) may also specify information that a State or Territory has requested the Regulator to collect.

20  Liability of other persons to provide certain information

             (1)  Section 19 does not require a registered corporation to include in a report under that section information of a kind that the Regulator determines under subsection (3) is to be provided by another person.

             (2)  The registered corporation or the other person may apply, in the manner and form specified in the regulations, to the Regulator for a determination under subsection (3).

             (3)  The Regulator may, if satisfied that:

                     (a)  information that the registered corporation would, but for this section, be required to include in a report under section 19 is information that:

                              (i)  is not in the possession or under the control of the registered corporation; and

                             (ii)  is in the possession or under the control of another person with whom the registered corporation, or a member of the corporation’s group, has a contractual relationship; and

                     (b)  the registered corporation:

                              (i)  is not entitled to acquire the information from the other person; or

                             (ii)  is entitled to acquire the information from the other person only because the other person is obliged to assist the corporation to comply with this Act; and

                     (c)  the other person has refused to give the information to the registered corporation; and

                     (d)  any other requirements specified in the regulations have been met;

determine, in writing, that the information is to be provided by the other person.

             (4)  The other person must, in accordance with any requirements specified in the regulations, provide that information to the Regulator on or before the day specified in the determination.

Civil penalty:

                     (a)  for an individual—400 penalty units; or

                     (b)  otherwise—2,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30 the person may be liable for an additional civil penalty for each day after the day specified in the determination for which it fails to provide information in accordance with this section.

             (5)  The Regulator must give written notice of a determination, or a decision refusing to make a determination, to the registered corporation and the other person.

21  Reports relating to greenhouse gas projects: reduction of greenhouse gas emissions and removals of greenhouse gases

             (1)  A registered corporation may, in respect of a financial year or such longer period as the Regulator allows, provide a report to the Regulator relating to the:

                     (a)  reduction of greenhouse gas emissions; and

                     (b)  removals of greenhouse gases;

from a greenhouse gas project that the corporation, or one or more members of the corporation’s group, have undertaken during that year or period.

             (2)  If a registered corporation or a member of its group undertakes a greenhouse gas project for part of a financial year or period, the report under subsection (1) in relation to the project for that year or period must only relate to the:

                     (a)  reduction of greenhouse gas emissions; and

                     (b)  removal of greenhouse gases;

from the project which are attributable to that part of the year or period.

             (3)  A report must not be provided under subsection (1) unless the greenhouse gas project satisfies the requirements specified in the regulations made for the purposes of the definition of greenhouse gas project in section 7 for that type of greenhouse gas project.

             (4)  A report must:

                     (a)  be based on methods determined by the Minister under subsection 10(3), or methods which meet criteria determined by the Minister under that subsection, where the use of those methods satisfies any conditions specified in the determination under that subsection; and

                     (b)  include any information specified by the regulations for the purposes of this paragraph.

Civil penalty:          1,000 penalty units.

Note:          Under Division 137 of the Criminal Code it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

             (5)  Without limiting paragraph (4)(b), regulations made for the purposes of that paragraph may specify different requirements for different types of greenhouse gas projects and may require information relating to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from undertaking the greenhouse gas project.

             (6)  A report is taken not to be a report under this section unless:

                     (a)  it is given in a manner and form approved by the Regulator; and

                     (b)  it is given to the Regulator within a period specified in the regulations; and

                     (c)  subsections (3) and (4) have been complied with.

21A  Reports relating to offsets of greenhouse gas emissions

             (1)  A registered corporation may, in respect of a financial year, provide a report to the Regulator relating to the offsets of greenhouse gas emissions by the corporation, or one or more members of the corporation’s group, during that year.

             (2)  A report must include any information specified by the regulations for the purposes of this subsection.

Civil penalty:          1,000 penalty units.

Note:          Under Division 137 of the Criminal Code it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

             (3)  A report is taken not to be a report under this section unless:

                     (a)  it is given in a manner and form approved by the Regulator; and

                     (b)  it is given to the Regulator within a period specified in the regulations; and

                     (c)  subsection (2) has been complied with.

22  Records to be kept

             (1)  A registered corporation must keep records of the activities of the members of its group that:

                     (a)  allow it to report accurately under this Act; and

                     (b)  enable the Regulator to ascertain whether the corporation has complied with its obligations under this Act; and

                     (c)  comply with the requirements of subsection (3) and the regulations made for the purposes of subsection (4).

Civil penalty:          1,000 penalty units.

             (2)  A person required to provide information under section 20 must keep records of the person’s activities that:

                     (a)  allow the person to provide information accurately under this Act; and

                     (b)  enable the Regulator to ascertain whether the person has complied with its obligations under this Act; and

                     (c)  comply with the requirements of subsection (3) and the regulations made for the purposes of subsection (4).

Civil penalty:

                     (d)  for an individual—200 penalty units; or

                     (e)  otherwise—1,000 penalty units.

             (3)  The corporation or person must retain the records for 7 years from the end of the year in which the activities take place.

             (4)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  form of records;

that must be kept under subsection (1) or (2).

             (5)  In this section:

this Act does not include Part 3E.


 

Part 3EReporting obligations of holders of reporting transfer certificates

Division 1Reporting obligations

22G  Report to be given to the Regulator

             (1)  If a corporation was the holder of a reporting transfer certificate in relation to a facility during the whole or a part of a financial year, the corporation must, in accordance with this section, provide a report to the Regulator relating to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from the operation of the facility during the whole, or the part, as the case may be, of that financial year.

Civil penalty:          2,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a corporation may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(d) for which the corporation fails to provide a report in accordance with this section.

             (2)  A report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  be based on:

                              (i)  methods determined by the Minister under subsection 10(3); or

                             (ii)  methods which meet criteria determined by the Minister under that subsection;

                            where the use of those methods satisfies any conditions specified in the determination under that subsection; and

                     (c)  include any information specified by the regulations for the purposes of this paragraph; and

                     (d)  be given to the Regulator before the end of 4 months after the end of the financial year.

             (3)  Regulations made for the purposes of paragraph (2)(c) may specify different requirements for different circumstances.

             (4)  In particular, and without limiting subsection (3), the regulations may specify different requirements for corporations who:

                     (a)  do not meet any threshold; or

                     (b)  do not meet specified thresholds;

for a financial year to which a report relates.

             (5)  Regulations made for the purposes of paragraph (2)(c) may also specify information that a State or Territory has requested the Regulator to collect.

             (6)  Reports under this section and section 19 may be set out in the same document.

             (7)  If no regulations are in force for the purposes of paragraph (2)(c) of this section, then, in addition to their effect apart from this subsection, regulations made for the purposes of paragraph 19(6)(c) also have the effect they would have if:

                     (a)  they were made for the purposes of paragraph (2)(c) of this section; and

                     (b)  each reference in those regulations to a facility of the corporation were read as a reference to the facility to which the reporting transfer certificate relates; and

                     (c)  each reference in those regulations to a facility under the operational control of the corporation were read as a reference to the facility to which the reporting transfer certificate relates; and

                     (d)  those regulations were otherwise appropriately modified.

22H  Records to be kept

             (1)  A corporation that is or was required to provide a report under section 22G for a financial year must keep records of the corporation’s activities that:

                     (a)  allow the corporation to report accurately under section 22G; and

                     (b)  enable the Regulator to ascertain whether the corporation has complied with the corporation’s obligations under section 22G; and

                     (c)  comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).

Civil penalty:          1,000 penalty units.

             (2)  The corporation must retain the records for 7 years from the end of the financial year in which the activities take place.

             (3)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  the form of records;

that must be kept under subsection (1).


 

Division 2Reporting transfer certificates

22J  Reporting transfer test

                   A corporation (the transferee corporation) passes the reporting transfer test in relation to a facility if:

                     (a)  the facility is under the operational control of another corporation (the transferor corporation); and

                     (b)  the transferee corporation has financial control over the facility; and

                     (c)  the transferee corporation is a company registered under Part 2A.2 of the Corporations Act 2001; and

                     (d)  the transferee corporation is a constitutional corporation; and

                     (e)  if the transferee corporation is a member of a controlling corporation’s group—the transferor corporation is not a member of that group; and

                      (f)  the transferor corporation is a member of a controlling corporation’s group.

Note:          For financial control, see section 22R.

22K  Application for reporting transfer certificate

Scope

             (1)  This section applies if a corporation passes the reporting transfer test in relation to a facility.

Application

             (2)  The corporation may apply to the Regulator for the issue to the corporation of a reporting transfer certificate in relation to the facility.

             (3)  The corporation is not entitled to make an application unless the corporation has the written consent of the controlling corporation mentioned in paragraph 22J(f).

             (4)  If:

                     (a)  the corporation is a member of a controlling corporation’s group; and

                     (b)  the corporation is not the controlling corporation;

the corporation is not entitled to make an application unless the corporation has the written consent of the controlling corporation.

Form of application

             (5)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  set out such information as is specified in the form; and

                     (d)  be accompanied by:

                              (i)  the consent of the controlling corporation mentioned in paragraph 22J(f) to the making of the application; and

                             (ii)  if subsection (4) applies—the consent of the controlling corporation mentioned in that subsection to the making of the application; and

                            (iii)  a written statement, signed by the chief executive officer of the transferor corporation mentioned in section 22J, to the effect that the transferor corporation has agreed to give the applicant such information as is necessary for the applicant to comply with obligations that will be imposed on the applicant by this Act in relation to the facility if the certificate is issued; and

                            (iv)  such information (if any) as is specified in the regulations; and

                             (v)  such documents (if any) as are specified in the regulations.

             (6)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (7)  The approved form of application may require the applicant to set out its Australian Business Number (within the meaning of the A New Tax System (Australian Business Number) Act 1999).

22KA  Further information

             (1)  The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Regulator 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.

22L  Issue of reporting transfer certificate

Scope

             (1)  This section applies if an application under section 22K has been made for a reporting transfer certificate in relation to a facility.

Issue of certificate

             (2)  After considering the application, the Regulator may issue to the applicant a reporting transfer certificate in relation to the facility.

Criteria for issue of certificate

             (3)  The Regulator must not issue the reporting transfer certificate unless the Regulator is satisfied that:

                     (a)  the applicant passes the reporting 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;

                            necessary for it to comply with obligations that will be imposed on the applicant by this Act in relation to the facility if the certificate is issued; and

                     (c)  at least one of the following conditions has been, or is likely to be, satisfied:

                              (i)  during a financial year, the operation of the facility causes emissions of greenhouse gases that have a carbon dioxide equivalence of 25 kilotonnes or more;

                             (ii)  during a financial year, the operation of the facility causes production of energy of 100 terajoules or more;

                            (iii)  during a financial year, the operation of the facility causes consumption of energy of 100 terajoules or more; and

                     (d)  if the regulations specify one or more other requirements—those requirements are met.

Timing

             (4)  The Regulator must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Regulator requires the applicant to give further information under subsection 22KA(1) in relation to the application—within 90 days after the applicant gave the Regulator the information; or

                     (b)  otherwise—within 90 days after the application was made.

Refusal

             (5)  If the Regulator decides to refuse to issue the reporting transfer certificate, the Regulator must give written notice of the decision to the applicant.

22M  Duration of reporting transfer certificate

             (1)  A reporting 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:

                              (i)  the same financial year as the day on which the certificate is issued; or

                             (ii)  the financial year preceding the financial year in which the certificate is issued; and

                     (b)  each of the following has consented to the specification of the start day:

                              (i)  the applicant;

                             (ii)  if a controlling corporation consented under subsection 22K(3) to the making of the application for the certificate—the controlling corporation.

             (3)  A reporting transfer certificate remains in force until:

                     (a)  a surrender of the certificate takes effect under section 22N; or

                     (b)  the certificate is cancelled under section 22P.

22N  Surrender of reporting transfer certificate

Scope

             (1)  This section applies if a corporation is the holder of a reporting transfer certificate in relation to a facility.

Surrender

             (2)  The corporation may, with the written consent of the Regulator, surrender the certificate.

             (3)  The surrender takes effect when the consent is given by the Regulator.

Consent to surrender

             (4)  The Regulator must not consent to the surrender of the certificate unless:

                     (a)  if a controlling corporation consented under subsection 22K(3) to the making of the application for the certificate—the controlling corporation has agreed to the surrender of the certificate; and

                     (b)  the Regulator is satisfied that there are special circumstances that warrant the giving of consent to the surrender of the certificate.

22P  Cancellation of reporting transfer certificate

Scope

             (1)  This section applies if a corporation is the holder of a reporting transfer certificate in relation to a facility.

Cancellation

             (2)  The Regulator must, by written notice given to the corporation, cancel the certificate if the Regulator is satisfied that:

                     (a)  the corporation does not pass the reporting transfer test in relation to the facility concerned; or

                     (b)  the corporation has become an externally‑administered body corporate (within the meaning of the Corporations Act 2001); or

                     (c)  if the regulations specify one or more other grounds for cancellation—at least one of those grounds is applicable to the corporation.

22Q  Reporting transfer certificate is not transferable

                   A reporting transfer certificate is not transferable.

22R  Financial control

             (1)  For the purposes of this Act, if a corporation (the operator) has operational control over a facility, another corporation (the second corporation) has financial control over the facility if:

                     (a)  under a contract between:

                              (i)  the operator; and

                             (ii)  the second corporation;

                            the operator operates the facility on behalf of the second corporation; or

                     (b)  under a contract between:

                              (i)  the operator; and

                             (ii)  the second corporation and one or more other persons;

                            the operator operates the facility on behalf of the second corporation and those other persons; or

                     (c)  the second corporation is able to control the trading or financial relationships of the operator in relation to the facility; or

                     (d)  the second corporation has the economic benefits from the facility; or

                     (e)  all of the following conditions are satisfied:

                              (i)  the second corporation is a participant in a joint venture;

                             (ii)  there is one other participant in the joint venture;

                            (iii)  the second corporation shares the economic benefits from the facility with the other participant;

                            (iv)  the second corporation’s share equals or exceeds the share of the other participant; or

                      (f)  all of the following conditions are satisfied:

                              (i)  the second corporation is a participant in a joint venture;

                             (ii)  there are 2 or more other participants in the joint venture;

                            (iii)  the second corporation 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 corporation; or

                     (g)  all of the following conditions are satisfied:

                              (i)  the second corporation is a partner in a partnership;

                             (ii)  there is one other partner in the partnership;

                            (iii)  the second corporation shares the economic benefits from the facility with the other partner;

                            (iv)  the second corporation’s share equals or exceeds the share of the other partner; or

                     (h)  all of the following conditions are satisfied:

                              (i)  the second corporation is a partner in a partnership;

                             (ii)  there are 2 or more other partners in the partnership;

                            (iii)  the second corporation 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 corporation; or

                      (i)  the second corporation is able to direct or sell the output of the facility; or

                      (j)  under the regulations, the second corporation is taken to have financial control over the facility.

             (2)  In determining whether the second corporation has that financial control, regard must be had to the economic and commercial substance of the matters mentioned in subsection (1).


 

Part 4Disclosure of information

  

23  Secrecy

             (1)  A person mentioned in subsection (2) commits an offence if:

                     (a)  the person obtains greenhouse and energy information or audit information in his or her capacity as a person mentioned in subsection (2); and

                    (aa)  the information is not protected information; and

                     (b)  the person discloses the information to another person otherwise than under, or for the purposes of:

                              (i)  this Act or the performance of duties in relation to this Act; or

                             (ii)  another law of the Commonwealth or the performance of duties in relation to another law of the Commonwealth; or

                            (iii)  if the person is an employee of a State or a Territory or of an authority of a State or a Territory, or is appointed to an office under a law of a State or a Territory—a law of that State or Territory or the performance of duties in relation to a law of that State or Territory; or

                            (iv)  if the person is an employee of the Commonwealth or of an authority of the Commonwealth, or is appointed to an office under a law of the Commonwealth—a law of a State or Territory or the performance of duties in relation to a law of a State or Territory.

Penalty:  Imprisonment for 2 years.

Note:          The same conduct may be an offence against both this section and section 70 of the Crimes Act 1914.

             (2)  This section applies to a person who is or was:

                     (c)  an authorised officer; or

                     (d)  an audit team leader; or

                   (da)  an audit team member; or

                     (e)  an employee of the Commonwealth, a State or a Territory or of an authority of the Commonwealth, a State or a Territory; or

                      (f)  a person appointed to an office under a law of the Commonwealth, a State or a Territory; or

                     (g)  a person to whom information was disclosed under repealed section 26.

Note:          See also Part 3 of the Clean Energy Regulator Act 2011 (secrecy obligations of officials of the Regulator).

24  Publishing of information

Publication relating to greenhouse gas emissions, energy production and energy consumption

             (1)  The Regulator must publish on a website, by 28 February in a financial year, totals of:

                     (a)  greenhouse gas emissions that are scope 1 emissions (within the meaning of the regulations); and

                     (b)  greenhouse gas emissions that are scope 2 emissions (within the meaning of the regulations); and

                     (d)  energy consumption;

reported in relation to a registered corporation’s group for the previous financial year.

          (1A)  In addition to publishing the totals for the corporation’s group, the Regulator may also publish on the website:

                     (a)  the totals for each member of the corporation’s group, or for each business unit in relation to the corporation’s group, reported in relation to the corporation’s group for the previous financial year; and

                     (b)  the methods mentioned in paragraph 19(6)(b) that were used to measure the totals for the corporation’s group; and

                     (c)  the rating given to each of those methods under the determination under subsection 10(3).

This subsection is subject to subsection 25(3).

       (1AD)  If a corporation gives the Regulator a report under section 22G in relation to a financial year, the Regulator must publish on a website, by 28 February next following the financial year:

                     (a)  the greenhouse gas emissions that are scope 1 emissions (within the meaning of the regulations); and

                     (b)  the greenhouse gas emissions that are scope 2 emissions (within the meaning of the regulations); and

                     (c)  the energy consumption;

set out in the report.

        (1AE)  In addition to publishing the matters mentioned in subsection (1AD), the Regulator may also publish on the website:

                     (a)  the methods mentioned in paragraph 22G(2)(b) that were used to measure the values for the facility concerned; and

                     (b)  the rating given to each of those methods under the determination under subsection 10(3).

This subsection is subject to subsection 25(3).

Limitations

          (1B)  The Regulator must not publish information mentioned in subsection (1) unless:

                     (a)  the corporation’s group meets a threshold mentioned in paragraph 13(1)(a) for the financial year covered by the report; and

                     (b)  no application has been made under section 25 in relation to that information, or if such an application has been made, it has been refused.

          (1C)  However, if the Regulator accepts an application under section 25 in relation to information mentioned in subsection (1), the Regulator may instead publish on a website the fact that the totals concerned fall within a specified range of values.

           (1F)  The Regulator must not publish information mentioned in subsection (1AD) unless:

                     (a)  no application has been made under section 25 in relation to that information; or

                     (b)  if such an application has been made—it has been refused.

          (1G)  However, if the Regulator accepts an application under section 25 in relation to information mentioned in subsection (1AD), the Regulator may instead publish on a website the fact that the values concerned fall within a specified range of values.

Publication relating to greenhouse gas projects

             (2)  The Regulator may publish on a website information relating to the greenhouse gas projects undertaken by a registered corporation, or a member of the corporation’s group, if the information satisfies the requirements of regulations made for the purposes of this subsection. This subsection is subject to subsection 25(3).

Publication relating to offsets of greenhouse gas emissions

             (3)  The Regulator may publish on a website information relating to the offsets of greenhouse gas emissions by a registered corporation, or a member of the corporation’s group, reported under section 21A if the information satisfies the requirements of regulations made for the purposes of this subsection. This subsection is subject to subsection 25(3).

Publication by States or Territories

             (5)  A State or Territory, or an authority of a State or Territory, may publish information disclosed to it under subsection 27(1) if the publication of the information is required under a law of the State or Territory.

          (5A)  A State or Territory, or an authority of a State or Territory, may publish information disclosed to it under subsection 27(1) if the information is in an aggregated form that does not disclose, either directly or indirectly, information about a specific:

                     (a)  registered corporation; or

                     (b)  registered corporation’s group; or

                     (c)  non‑corporate entity; or

                     (d)  facility.

Publication by other persons

             (6)  A person may publish greenhouse and energy information disclosed to it under Part 3 of the Clean Energy Regulator Act 2011 if the information is in an aggregated form that does not disclose, either directly or indirectly, information about a specific:

                     (a)  registered corporation; or

                     (b)  registered corporation’s group; or

                     (c)  non‑corporate entity; or

                     (d)  facility.

25  Requests for information not to be published

             (1)  A registered corporation, a person required to provide a report under section 22G, or a person required to provide information under section 20, may apply to the Regulator requesting information not be published if the information reveals, or could be capable of revealing:

                     (a)  trade secrets; or

                     (b)  any other matter having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed;

about a specific facility, technology or corporate initiative relating to the corporation or the person.

             (2)  The application must:

                     (a)  identify the corporation or the person; and

                     (b)  identify the information that is requested not to be published; and

                     (c)  be given in the manner and form approved by the Regulator.

             (3)  The Regulator may accept the application and not publish the information if he or she is satisfied that the information would reveal, or would be capable of revealing, information of a kind specified in subsection (1).

             (4)  The Regulator must notify an applicant, in writing, of a decision to accept or refuse an application under this section.

27  Information may be disclosed to States and Territories

             (1)  The Regulator, or a person authorised by the Regulator, must disclose greenhouse and energy information to a State or Territory or an authority of a State or Territory if:

                     (a)  it is information mentioned in subsection 19(9); or

                     (b)  it is information relating to facilities that are wholly or partly located in the State or Territory.

          (1A)  However, the Regulator may refuse to disclose information under this section if satisfied that there would not be adequate security measures in place in relation to the confidentiality of the information.

             (2)  The Regulator may make disclosure of information under this section subject to conditions including:

                     (a)  restrictions on disclosure of the information to other persons; and

                     (b)  security measures required in relation to the confidentiality of the information; and

                     (c)  the State, Territory, or authority not requiring the reporting or disclosure of other information of a kind similar to greenhouse and energy information.

28  Corporation may request information be disclosed

             (1)  A registered corporation may, by written notice, request the Regulator to disclose greenhouse and energy information related to the corporation or to a member of the corporation’s group.

             (2)  The notice must:

                     (a)  specify the information to be disclosed; and

                     (b)  specify the person or persons to whom the information is to be disclosed; and

                     (c)  be given in the manner and form approved by the Regulator.

             (3)  The Regulator may, within a reasonable period after being given the notice, disclose the information.


 

Part 5Enforcement

Division 1Civil penalties

Subdivision ACivil penalty orders

29  Civil penalty provisions

                   The following are civil penalty provisions for the purposes of this Act:

                     (a)  a subsection of this Act (or a section of this Act that is not divided into subsections) if the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section);

                     (b)  a subsection of this Act if another provision of this Act specifies that the subsection is a civil penalty provision.

30  Continuing contraventions

             (1)  If an act or thing is required, under a civil penalty provision of this Act, to be done within a particular period, or before a particular time, then the obligation to do that act or thing continues (even if the period has expired or the time has passed) until the act or thing is done.

             (2)  If, under section 12, 19, 20, 73 or 73A, an act or thing is required to be done within a particular period, or before a particular time, and a person fails to comply with that requirement, the person is liable for a civil penalty for each day that the person fails to comply.

Civil penalty:

                     (a)  for failure to meet a requirement under section 12, 19 or 20—100 penalty units per day; or

                     (b)  for failure to meet a requirement under section 73 or 73A—10 penalty units per day.

          (2B)  If, under section 22G, an act or thing is required to be done within a particular period, and a person fails to comply with that requirement, the person is liable for a civil penalty for each day that the person fails to comply.

Civil penalty:          100 penalty units per day.

             (3)  To avoid doubt, a person’s failure to comply with such a requirement on a particular day is taken, for the purposes of this Act, not to be the same conduct as the person’s failure to comply with that requirement on a different day.

31  Court may order person to pay pecuniary penalty for contravening civil penalty provision

Application for order

             (1)  Within 6 years of a person contravening a civil penalty provision, the Regulator may apply, on behalf of the Commonwealth, to a Court for an order that the person pay the Commonwealth a pecuniary penalty.

Court may order person to pay pecuniary penalty

             (2)  If the Court is satisfied that the person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate.

Maximum pecuniary penalty

             (3)  The pecuniary penalty must not exceed the sum of:

                     (a)  the relevant amount specified for the civil penalty provision; and

                     (b)  the amount (if any) for which the person is liable under section 30 at the time the Court makes the order.

Determining amount of pecuniary penalty

             (4)  In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

Conduct contravening more than one civil penalty provision

             (5)  If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

32  Contravening a civil penalty provision is not an offence

                   A contravention of a civil penalty provision is not an offence.

33  Persons involved in contravening civil penalty provision

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (b)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (c)  be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or

                     (d)  conspire to contravene a civil penalty provision.

             (2)  This Division applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.

34  Recovery of a pecuniary penalty

                   If a Court orders a person to pay a pecuniary penalty:

                     (a)  the penalty is payable to the Commonwealth; and

                     (b)  the Commonwealth may enforce the order as if it were a judgment of the Court.

Subdivision BCivil penalty proceedings and criminal proceedings

35  Civil proceedings after criminal proceedings

                   A Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

36  Criminal proceedings during civil proceedings

             (1)  Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

37  Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.

38  Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to criminal proceedings in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.


 

Division 2Infringement notices

39  When an infringement notice can be given

             (1)  If the Regulator has reasonable grounds to believe that a person has contravened a civil penalty provision, the Regulator may give to the person an infringement notice relating to the alleged contravention.

             (2)  An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

             (3)  A single infringement notice may be given to a person in respect of:

                     (a)  2 or more alleged contraventions of a civil penalty provision; and

                     (b)  alleged contraventions of 2 or more civil penalty provisions.

However, the notice must not require the person to pay more than one penalty in respect of the same conduct.

40  Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  identify the person to whom the notice is given; and

                     (b)  set out brief details of:

                              (i)  the alleged contravention of the civil penalty provision; or

                             (ii)  if the infringement notice relates to 2 or more alleged contraventions of a civil penalty provision or alleged contraventions of 2 or more civil penalty provisions—each alleged contravention; and

                     (c)  contain a statement to the effect that proceedings will not be brought under this Part in relation to the alleged contravention or contraventions if the penalty specified in the notice is paid to the Regulator, on behalf of the Commonwealth, within:

                              (i)  28 days after the notice is given; or

                             (ii)  if the Regulator allows a longer period—that longer period; and

                     (d)  contain a statement to the effect that the person to whom the notice is given may choose not to pay the penalty and, if the person does so, proceedings may be brought under this Part in relation to the alleged contravention or contraventions; and

                     (e)  give an explanation of how payment of the penalty is to be made; and

                      (f)  set out such other matters (if any) as are specified by the regulations.

Note:          For the amount of penalty, see section 41.

             (2)  For the purposes of paragraph (1)(b), the brief details must include the following information in relation to each alleged contravention:

                     (a)  the date, time and place of the contravention;

                     (b)  the civil penalty provision that was allegedly contravened.

41  Amount of penalty

                   The penalty to be specified in an infringement notice relating to a person’s alleged contravention of a civil penalty provision must be a pecuniary penalty equal to one‑fifth of the maximum penalty that a Court could impose on the person for that contravention.

Note:          To work out this maximum penalty, see subsection 31(3).

42  Withdrawal of an infringement notice

             (1)  This section applies if an infringement notice is given to a person.

             (2)  The Regulator may, by written notice given to the person, withdraw the infringement notice.

Refund of penalty if infringement notice withdrawn

             (3)  If:

                     (a)  the penalty specified in the infringement notice is paid; and

                     (b)  the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

43  Paying the penalty in accordance with the notice

             (1)  This section applies if:

                     (a)  an infringement notice relating to an alleged contravention of a civil penalty provision is given to a person; and

                     (b)  the penalty is paid in accordance with the infringement notice; and

                     (c)  the infringement notice is not withdrawn.

             (2)  Any liability of the person for the alleged contravention is discharged.

             (3)  The payment of the penalty is not to be taken as an admission by the person of liability for the alleged contravention.

             (4)  Proceedings under this Part may not be brought against the person for the alleged contravention.

44  Effect of this Division on civil proceedings

                   This Division does not:

                     (a)  require an infringement notice to be given in relation to an alleged contravention of a civil penalty provision; or

                     (b)  affect the liability of a person to have proceedings under this Part brought against the person for an alleged contravention of a civil penalty provision if:

                              (i)  the person does not comply with an infringement notice relating to the contravention; or

                             (ii)  an infringement notice relating to the contravention is not given to the person; or

                            (iii)  an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

                     (c)  limit a Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under this Part to have contravened a civil penalty provision.


 

Division 3Enforceable undertakings

45  Acceptance of undertakings relating to contraventions

             (1)  The Regulator may accept any of the following undertakings given by a person:

                     (a)  a written undertaking that the person will take specified action, in order to comply with the provisions of this Act or the regulations;

                     (b)  a written undertaking that the person will refrain from taking specified action in order to comply with the provisions of this Act or the regulations;

                     (c)  a written undertaking that the person will take specified action directed towards ensuring that the person:

                              (i)  does not commit a contravention of this Act or the regulations; or

                             (ii)  is unlikely to commit a contravention of this Act or the regulations;

                            in the future;

                     (d)  a written undertaking of a kind specified in regulations made for the purposes of this paragraph.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the consent of the Regulator.

             (4)  The Regulator may, by written notice given to the person, cancel the undertaking.

             (5)  The undertaking may be published on an appropriate website.

46  Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 45; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the Regulator considers that the person has breached the undertaking;

the Regulator may apply to a Court for an order under subsection (2).

             (2)  If the Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the Regulator, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the Court considers appropriate.


 

Division 4Liability of chief executive officers of corporations

47  Civil penalties for chief executive officers of corporations

             (1)  If:

                     (a)  a corporation contravenes a civil penalty provision; and

                     (b)  a chief executive officer of the corporation knew that, or was reckless or negligent as to whether, the contravention would occur; and

                     (c)  the officer was in a position to influence the conduct of the corporation in relation to the contravention; and

                     (d)  the officer failed to take all reasonable steps to prevent the contravention;

the officer contravenes this subsection.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  Under section 31, a Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order a corporation to pay for contravening the civil penalty provision mentioned in paragraph (1)(a).

48  Did a chief executive officer take reasonable steps to prevent contravention?

             (1)  For the purposes of section 47, in determining whether a chief executive officer of a corporation failed to take all reasonable steps to prevent a contravention, a Court is to have regard to:

                     (a)  what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):

                              (i)  that the corporation arranges regular professional assessments of the corporation’s compliance with this Act or the regulations;

                             (ii)  that the corporation implements any appropriate recommendations arising from such an assessment;

                            (iii)  that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations in so far as those requirements affect the employees, agents or contractors concerned; and

                     (b)  what action (if any) the officer took when he or she became aware that the corporation was contravening this Act or the regulations.

             (2)  This section does not, by implication, limit the generality of section 47.


 

Part 6Administration

Division 2Decisions by the Regulator

54  Regulator may declare facility

             (1)  The Regulator may declare that an activity or series of activities (including ancillary activities) are a facility:

                     (a)  on application by a controlling corporation; or

                     (b)  on the Regulator’s own initiative.

             (2)  An application must:

                     (a)  identify the controlling corporation; and

                     (b)  identify the facility for which a declaration is sought; and

                     (c)  include any other information required by the regulations; and

                     (d)  be given in a manner and form approved by the Regulator.

             (3)  In considering making a declaration that an activity or series of activities are a facility, the Regulator must have regard to:

                     (a)  the matters dealt with in regulations made for the purposes of paragraph 9(1)(a); and

                     (b)  the need for each facility to be distinct from, and not overlap with, activities that constitute other facilities.

             (4)  The Regulator must notify an applicant under paragraph (1)(a), in writing, of a decision under subsection (1) to declare a facility or refuse the application.

             (5)  If the Regulator makes a declaration under paragraph (1)(b), the Regulator must notify, in writing, the corporation, joint venture or partnership that has, or that the Regulator reasonably believes has, operational control of the facility to which the declaration relates.

55  Regulator may declare corporation etc. has operational control

             (1)  The Regulator may declare that a controlling corporation or another member of the corporation’s group has operational control of a facility:

                     (a)  on application by the corporation or member; or

                     (b)  on the Regulator’s own initiative.

             (2)  An application must:

                     (a)  identify the corporation or member; and

                     (b)  identify the facility for which a declaration of operational control is sought; and

                     (c)  include any other information required by the regulations; and

                     (d)  be given in a manner and form approved by the Regulator.

             (3)  In considering making a declaration that a controlling corporation or another member of the corporation’s group has operational control of a facility, the Regulator must have regard to the matters dealt with in paragraph 11(1)(a) and regulations made for the purposes of that paragraph.

             (4)  The Regulator must notify an applicant under paragraph (1)(a), in writing, of a decision under subsection (1) to declare the corporation or member to have operational control of the facility or to refuse the application.

             (5)  If the Regulator makes a declaration under paragraph (1)(b), the Regulator must notify, in writing, the corporation or member which the Regulator has declared to have operational control of the facility to which the declaration relates.


 

Division 3Review of decisions

56  AAT review of decisions

                   An application may be made to the Administrative Appeals Tribunal for the review of a decision of the Regulator to do any of the following:

                     (a)  not register a corporation under section 17;

                     (b)  not deregister a corporation under section 18;

                     (c)  make a determination under section 20;

                     (d)  refuse to make a determination under section 20;

                   (da)  refuse to issue a reporting transfer certificate under section 22L;

                   (db)  refuse to give consent to the surrender of the reporting transfer certificate under section 22N;

                   (dc)  cancel a reporting transfer certificate under section 22P;

                     (e)  refuse an application under section 25;

                    (ea)  refuse to disclose information under section 27;

                      (f)  refuse an application under section 54;

                     (g)  declare a facility under paragraph 54(1)(b);

                     (h)  refuse an application under section 55;

                      (i)  declare that a corporation has operational control of a facility under paragraph 55(1)(b);

                      (j)  refuse to register an individual in the register of greenhouse and energy auditors kept under section 75A.


 

Division 4Monitoring compliance

Subdivision AAuthorised officers

57  Appointment of authorised officers

             (1)  The Regulator may, in writing, appoint:

                     (a)  an APS employee; or

                     (b)  an employee of a State or a Territory or of an authority of a State or a Territory;

to be an authorised officer for the purposes of this Division.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Regulator.

Note:          Section 70 of the Crimes Act 1914 creates an offence where Commonwealth officers (including persons performing services for or on behalf of the Commonwealth) disclose information in breach of a duty of confidentiality.

58  Identity cards

             (1)  The Regulator must issue an identity card to an authorised officer in the form specified by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the Regulator.

Penalty:  1 penalty unit.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

Subdivision BPowers of authorised officers

59  Entering premises to monitor compliance

             (1)  For the purposes of determining whether this Act has been complied with, an authorised officer may:

                     (a)  enter any premises:

                              (i)  during normal business hours; or

                             (ii)  if the entry is made under a warrant—at any time specified in the warrant; and

                     (b)  exercise the powers set out in section 60.

             (2)  An authorised officer is not authorised to enter premises under subsection (1) unless:

                     (a)  if the premises are business premises—the occupier of the premises has consented to the entry and the officer has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a warrant.

             (3)  If an authorised officer is on the premises with the consent of the occupier, the authorised officer must leave the premises if the occupier asks the authorised officer to do so.

60  Powers of authorised officers in monitoring compliance

             (1)  The following are the powers that an authorised officer may exercise in relation to premises under section 59:

                     (a)  the power to search the premises for any thing on the premises that may relate to compliance with this Act;

                     (b)  the power to examine any activity conducted on the premises that may relate to information provided for the purposes of this Act;

                     (c)  the power to examine any thing on the premises that may relate to information provided for the purposes of this Act;

                     (d)  the power to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

                     (e)  the power to inspect any document on the premises that may relate to information provided for the purposes of this Act;

                      (f)  the power to take extracts from, or make copies of, any such document;

                     (g)  the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;

                     (h)  the power to secure a thing that:

                              (i)  is found during the exercise of monitoring powers on the premises; and

                             (ii)  an authorised officer believes on reasonable grounds affords evidence of a contravention of this Act or of the commission of an offence against the Crimes Act 1914;

                            until a warrant is obtained to seize the thing;

                      (i)  the powers in subsections (2) and (3).

             (2)  The powers that an authorised officer may exercise in relation to premises under section 59 include the power to operate equipment at premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is at the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information that is relevant to assessing the correctness of information provided under this Act.

             (3)  The powers that an authorised officer may exercise in relation to premises under section 59 include the following powers in relation to information described in subsection (2) found in the exercise of the power under that subsection:

                     (a)  the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;

                     (b)  the power to operate facilities at the premises to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

                     (c)  the power to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

61  Authorised officer may request persons to answer questions

             (1)  If the authorised officer was only authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (2)  If the authorised officer was authorised to enter the premises by a warrant, the authorised officer has power to require the occupier (if the occupier is in or on the premises), or another person who apparently represents the occupier (if that person is in or on the premises), to:

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (3)  A person commits an offence if the person refuses or fails to comply with a requirement under subsection (2).

Penalty:  10 penalty units.

             (4)  An individual is excused from complying with a requirement of subsection (2) if the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.

Subdivision CObligations and incidental powers of authorised officers

62  Authorised officer must produce identity card on request

                   An authorised officer is not entitled to exercise any powers under this Act in relation to premises if:

                     (a)  the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

                     (b)  the authorised officer fails to comply with the requirement.

63  Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 59(2)(a), the authorised officer must inform the person that he or she may refuse consent.

             (2)  An entry of an authorised officer because of the consent of a person is not lawful unless the person voluntarily consented to the entry.

64  Announcement before entry

                   An authorised officer executing a warrant must, before entering premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

65  Details of warrant to be given to occupier etc. before entry

             (1)  If a warrant is being executed and the occupier of the premises in respect of which it is being executed or another person who apparently represents the occupier is present at the premises, the authorised officer must make available to that person a copy of the warrant.

             (2)  The authorised officer must identify himself or herself to that person.

             (3)  The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

Note:          Monitoring warrants are issued under section 70.

66  Use of electronic equipment in exercising monitoring powers

             (1)  An authorised officer or a person assisting that officer may operate electronic equipment already at premises in order to exercise the powers set out in section 60 if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.

             (2)  If the authorised officer or a person assisting believes, on reasonable grounds, that:

                     (a)  there is on the premises material relating to information supplied under this Act that may be accessible by operating electronic equipment on the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard, or otherwise.

             (3)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (4)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever first happens.

             (5)  If an authorised officer or a person assisting believes, on reasonable grounds, that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of the period.

             (6)  The magistrate may extend the period of time, up to a maximum of a further 48 hours.

             (7)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension and the occupier is entitled to be heard in relation to that application.

             (8)  The provisions of this Part relating to the issue of warrants apply, with such modifications as are necessary, to the issue of an extension.

             (9)  In this section:

premises means:

                     (a)  premises that an authorised officer has entered, and remains on, with the consent of the occupier; and

                     (b)  warrant premises.

67  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 66:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

Subdivision DOccupier’s rights and responsibilities

68  Occupier entitled to be present during execution of warrant

             (1)  If a warrant is being executed and the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the premises, the person is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the person impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

69  Occupier to provide authorised officer with all facilities and assistance

             (1)  The occupier of warrant premises, or another person who apparently represents the occupier, must provide the officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if the person fails to comply with the obligation set out in subsection (1).

Penalty:  10 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Subdivision EWarrants

70  Monitoring warrants

             (1)  An authorised officer may apply to a magistrate for a warrant under this section in relation to premises.

             (2)  Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised officers should have access to the premises for the purposes of substantiating information provided under this Act or of determining whether this Act has been complied with.

             (3)  The magistrate must not issue the warrant unless the authorised officer or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  authorise one or more authorised officers (whether or not named in the warrant), with such assistance as is necessary and reasonable:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in section 60 in relation to the premises; and

                     (b)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                     (c)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

                     (d)  state the purpose for which the warrant is issued.

Subdivision FInformation gathering

71  Power to request information

             (1)  This section applies to a person if the Regulator has reason to believe that information (the compellable information) relating to whether this Act has been complied with is in a person’s possession, custody or control (whether held electronically or in any other form).

             (2)  The Regulator may, in writing, require the person to give specified compellable information to the Regulator:

                     (a)  within a specified period of time; and

                     (b)  in a specified form or manner.

             (3)  The person must not fail to comply with a requirement under this section.

Civil penalty:          50 penalty units.

             (4)  The person must not, in purported compliance with a requirement under this section, give to the Regulator information that is false or misleading in a material particular.

Civil penalty:          60 penalty units.

             (5)  Subsection (3) does not apply to the extent that the person has a reasonable excuse. However, a person does not have a reasonable excuse merely because the information in question is:

                     (a)  of a commercial nature; or

                     (b)  subject to an obligation of confidentiality arising from a commercial relationship; or

                     (c)  commercially sensitive.

             (6)  Subsection (3) does not apply in relation to compellable information if giving the information might tend to incriminate the person or expose the person to a penalty.

72  Prohibitions on disclosure of information do not apply

                   This Division has effect despite any law of the Commonwealth, a State or a Territory prohibiting disclosure of the information.

Subdivision GGreenhouse and energy audits

73  Audits of registered corporations—compliance

             (1)  This section applies if the Regulator has reasonable grounds to suspect that a registered corporation has contravened, is contravening, or is proposing to contravene, this Act or the regulations.

             (2)  The Regulator may, by written notice given to the corporation, require the corporation to:

                     (a)  appoint as an audit team leader:

                              (i)  a registered greenhouse and energy auditor of its choice; or

                             (ii)  if the Regulator specifies a registered greenhouse and energy auditor in the notice—that auditor; or

                            (iii)  if the Regulator specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and

                     (b)  arrange for the audit team leader to carry out an audit on one or more aspects of the corporation’s compliance with this Act or the regulations; and

                     (c)  arrange for the audit team leader to give the corporation a written report setting out the results of the audit; and

                     (d)  give the Regulator a copy of the audit report on or before the day specified in the notice.

             (3)  The notice must specify the:

                    (aa)  type of audit to be carried out; and

                     (a)  matters to be covered by the audit; and

                     (b)  form of the audit report and the kinds of details it is to contain.

             (4)  The corporation, and each member of the corporation’s group, must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:          250 penalty units.

             (5)  If the Regulator gives a corporation written notice under subsection (2), the corporation must comply with the requirements of the notice.

Civil penalty:          1,000 penalty units.

Note:          Under section 30 a corporation may be liable for an additional civil penalty for each day after the day mentioned in paragraph (2)(d) for which the corporation fails to provide an audit report in accordance with this section.

73A  Audits of persons providing information under section 20—compliance

             (1)  This section applies if the Regulator has reasonable grounds to suspect that a person required to provide information under section 20 has contravened, is contravening, or is proposing to contravene, this Act or the regulations.

             (2)  The Regulator may, by written notice given to the person, require the person to:

                     (a)  appoint as an audit team leader:

                              (i)  a registered greenhouse and energy auditor of the person’s choice; or

                             (ii)  if the Regulator specifies a registered greenhouse and energy auditor in the notice—that auditor; or

                            (iii)  if the Regulator specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and

                     (b)  arrange for the audit team leader to carry out an audit on one or more aspects of the person’s compliance with this Act or the regulations; and

                     (c)  arrange for the audit team leader to give the person a written report setting out the results of the audit; and

                     (d)  give the Regulator a copy of the audit report on or before the day specified in the notice.

             (3)  The notice must specify the:

                     (a)  type of audit to be carried out; and

                     (b)  matters to be covered by the audit; and

                     (c)  form of the audit report and the kinds of details it is to contain.

             (4)  The person must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

             (5)  If the Regulator gives a person required to provide information under section 20 written notice under subsection (2), the person must comply with the requirements of the notice.

Civil penalty:

                     (a)  for an individual—200 penalty units; or

                     (b)  otherwise—1,000 penalty units.

Note:          Under section 30, a person may be liable for an additional civil penalty for each day after the day mentioned in paragraph (2)(d) for which the person fails to provide an audit report in accordance with this section.

74  Audits of registered corporations—other

             (1)  The Regulator may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of a registered corporation’s compliance with one or more aspects of this Act or the regulations.

             (2)  The Regulator must give written notice to the corporation of a decision to appoint an audit team leader under subsection (1). The notice must:

                     (a)  specify the audit team leader; and

                     (b)  specify the period within which the audit is to be undertaken; and

                   (ba)  specify the type of audit to be carried out; and

                     (c)  specify the matters to be covered by the audit; and

                     (d)  be given to the corporation at a reasonable time before the audit is to be undertaken.

          (2A)  The corporation, and each member of the corporation’s group, must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:          250 penalty units.

             (3)  If a corporation is given a notice under subsection (2), the corporation must arrange for the audit team leader to carry out the audit.

Civil penalty:          250 penalty units.

74A  Audits of persons providing information under section 20—other

             (1)  The Regulator may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of the compliance of a person required to provide information under section 20 with one or more aspects of this Act or the regulations.

             (2)  The Regulator must give written notice to the person of a decision to appoint an audit team leader under subsection (1). The notice must:

                     (a)  specify the audit team leader; and

                     (b)  specify the period within which the audit is to be undertaken; and

                     (c)  specify the type of audit to be carried out; and

                     (d)  specify the matters to be covered by the audit; and

                     (e)  be given to the person at a reasonable time before the audit is to be undertaken.

             (3)  The person must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

             (4)  If a person required to provide information under section 20 is given a notice under subsection (2), the person must arrange for the audit team leader to carry out the audit.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

75  Conduct of audits

             (1)  The Minister may determine, by legislative instrument, requirements to be met by registered greenhouse and energy auditors in:

                     (a)  preparing for and carrying out greenhouse and energy audits; and

                     (b)  preparing audit reports in relation to greenhouse and energy audits; and

                     (c)  preparing for and carrying out CFI audits; and

                     (d)  preparing CFI audit reports.

             (2)  The determination may set out different requirements for:

                     (a)  different types of audits; and

                     (b)  different types of audit reports.

             (3)  A registered greenhouse and energy auditor must comply with requirements determined under subsection (1).

75A  Register of greenhouse and energy auditors

             (1)  The Regulator must cause a register of greenhouse and energy auditors to be kept for the purposes of this Act and the Carbon Credits (Carbon Farming Initiative) Act 2011.

             (2)  The Regulator must register an individual in the register if the individual:

                     (a)  has applied for registration in accordance with regulations under subsection (5); and

                     (b)  meets such requirements as to qualifications, knowledge, expertise, competence, independence and other matters as are set out in the regulations for the purposes of this paragraph or in a legislative instrument made under the regulations in accordance with subsection (4).

             (3)  If an individual who has applied for registration in the register does not meet the requirements referred to in paragraph (2)(b), the Regulator must refuse to register the individual.

             (4)  Regulations made for the purposes of paragraph (2)(b) may provide for the Regulator to make a legislative instrument setting out:

                     (a)  some or all of the requirements that could otherwise be set out in the regulations; or

                     (b)  ways in which requirements set out in the regulations may be met.

             (5)  The regulations may provide for any of the following:

                     (a)  the form and content of the register;

                     (b)  publication of the register;

                     (c)  the form and content of applications for registration and the manner in which applications are to be made;

                     (d)  fees to be paid in connection with registration (including ongoing or recurrent fees to maintain registration);

                     (e)  requirements to be met in order to maintain registration;

                      (f)  review of registration;

                     (g)  suspension of registration in prescribed circumstances;

                     (h)  deregistration in prescribed circumstances;

                      (i)  inspection of the performance of registered greenhouse and energy auditors in carrying out greenhouse and energy audits;

                      (j)  other matters in connection with registration in the register.

             (6)  A fee under paragraph (5)(d) must not be such as to amount to taxation.

             (7)  The Regulator may, by signed instrument, delegate to another person (whether or not an SES employee or acting SES employee) any of the Regulator’s functions or powers under this section or regulations under this section.

             (8)  However, the Regulator must not delegate the power to make a legislative instrument as mentioned in subsection (4) other than to an SES employee or acting SES employee.


 

Part 7Miscellaneous

  

76  Modification of National Environment Protection (National Pollutant Inventory) Measure

                   A national environment protection measure made under section 14 of the National Environment Protection Council Act 1994 does not apply to the extent that it requires the reporting or disclosure of information relating to:

                     (a)  greenhouse gas emissions; or

                     (b)  greenhouse gas projects.

77  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Notes to the National Greenhouse and Energy Reporting Act 2007

Note 1

The National Greenhouse and Energy Reporting Act 2007 as shown in this compilation comprises Act No. 175, 2007 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

National Greenhouse and Energy Reporting Act 2007

175, 2007

28 Sept 2007

Ss. 3–77: 29 Sept 2007
Remainder: Royal Assent

 

National Greenhouse and Energy Reporting Amendment Act 2008

84, 2008

15 Sept 2008

Schedule 1 (items 1, 8–10, 12, 23): 15 Mar 2009
Schedule 1 (items 2–7, 11,
13–22, 24–35): 16 Sept 2008
Remainder: Royal Assent

Sch. 1 (item 35)

National Greenhouse and Energy Reporting Amendment Act 2009

87, 2009

18 Sept 2009

Schedule 1: 16 Oct 2009
Schedule 2 (items 1–16): 19 Sept 2009
Schedule 2 (items 17–33): (a)
Remainder: Royal Assent

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Schedule 2 (item 797) and Schedule 3 (items 10, 11): 27 Dec 2011

Sch. 3 (items 10, 11)

Carbon Credits (Consequential Amendments) Act 2011

102, 2011

15 Sept 2011

Schedule 1 (items 12–16, 19): 8 Dec 2011 (see s. 2(1))
Schedule 2: 16 Sept 2011

Sch. 1 (item 19)

Clean Energy (Consequential Amendments) Act 2011

132, 2011

18 Nov 2011

Schedule 1 (items 106–155, 158–192, 214, 219): 2 Apr 2012 (see s. 2(1))
Schedule 1 (items 261A–278,
280–301, 303–305,
307–310, 312–316, 319–334, 336–371, 375–381,
384–415A,
452–455): [see Note 2 and Table A]

Sch. 1 (items 214, 219, 452–455)


(a)     Subsection 2(1) (items 4 and 5) of the National Greenhouse and Energy Reporting Amendment Act 2009 provides as follows:

                 (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

4.  Schedule 2, Part 2

The later of:

(a) the commencement of section 3 of the Carbon Pollution Reduction Scheme Act 2009; and

(b) immediately after the commencement of Part 1 of Schedule 2 to this Act.

However, the provision(s) do not commence at all if the event mentioned in paragraph (a) does not occur.

Does not commence

5.  Schedule 2, Part 3

At the same time as Part 2 of Schedule 1 to the Carbon Pollution Reduction Scheme (Consequential Amendments) Act 2009 commences.

Does not commence


Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

Part 1

 

Division 2

 

S. 7..........................................

am. No. 84, 2008; No. 87, 2009; Nos. 46, 102 and 132, 2011

S. 9..........................................

am. No. 132, 2011

S. 10........................................

am. No. 84, 2008

S. 11........................................

am. No. 132, 2011

Part 2

 

Division 1

 

Heading to s. 12....................

rs. No. 84, 2008

S. 12........................................

am. No. 84, 2008

Note to s. 12(1)......................

am. No. 84, 2008

S. 13........................................

am. No. 87, 2009; No. 102, 2011

S. 14........................................

am. No. 84, 2008

S. 15........................................

am. No. 84, 2008; No. 132, 2011

Division 2

 

S. 16........................................

am. No. 84, 2008; No. 87, 2009; No. 132, 2011

Division 3

 

S. 17........................................

am. No. 84, 2008; No. 87, 2009; No. 132, 2011

S. 18........................................

am. No. 87, 2009; No. 132, 2011

Part 3

 

Heading to s. 19....................

rs. No. 132, 2011

S. 19........................................

am. No. 84, 2008; No. 87, 2009; Nos. 102 and 132, 2011

Notes 1, 2 to s. 19(1).............

am. No. 132, 2011

Note 3A to s. 19(1).................

ad. No. 87, 2009

S. 20........................................

am. No. 84, 2008; No. 132, 2011

Note 1 to s. 20(4)...................

am. No. 132, 2011

Heading to s. 21....................

am. No. 84, 2008

S. 21........................................

am. No. 84, 2008; No. 132, 2011

Note to s. 21(4)......................

am. No. 132, 2011

S. 21A.....................................

ad. No. 84, 2008

 

am. No. 132, 2011

Note to s. 21A(2)....................

am. No. 132, 2011

S. 22........................................

am. No. 87, 2009; No. 132, 2011

Part 3E

 

Part 3E....................................

ad. No. 87, 2009

Division 1

 

Heading to s. 22G.................

rs. No. 132, 2011

S. 22G.....................................

ad. No. 87, 2009

 

am. Nos. 102 and 132, 2011

Note 1 to s. 22G(1)................

am. No. 132, 2011

S. 22H.....................................

ad. No. 87, 2009

 

am. Nos. 102 and 132, 2011

Division 2

 

S. 22J......................................

ad. No. 87, 2009

S. 22K.....................................

ad. No. 87, 2009

 

am. No. 132, 2011

S. 22KA...................................

ad. No. 87, 2009

 

am. No. 132, 2011

S. 22L......................................

ad. No. 87, 2009

 

am. Nos. 102 and 132, 2011

S. 22M.....................................

ad. No. 87, 2009

 

am. No. 102, 2011

S. 22N.....................................

ad. No. 87, 2009

 

am. No. 132, 2011

S. 22P.....................................

ad. No. 87, 2009

 

am. No. 132, 2011

Ss. 22Q, 22R..........................

ad. No. 87, 2009

Part 4

 

S. 23........................................

am. No. 87, 2009; No. 132, 2011

Note to s. 23...........................

ad. No. 132, 2011

Subhead. to s. 24(2)..............

ad. No. 84, 2008

Subhead. to s. 24(5)..............

ad. No. 84, 2008

 

rs. No. 132, 2011

Subhead. to s. 24(6)..............

ad. No. 84, 2008

 

rs. No. 132, 2011

S. 24........................................

am. No. 84, 2008; No. 87, 2009; Nos. 102 and 132, 2011

S. 25........................................

am. No. 87, 2009; No. 132, 2011

S. 26........................................

am. No. 102, 2011

 

rep. No. 132, 2011

S. 27........................................

am. No. 132, 2011

S. 28........................................

am. No. 84, 2008; No. 132, 2011

Part 5

 

Division 1

 

Subdivision A

 

S. 30........................................

am. No. 87, 2009

S. 31........................................

am. No. 132, 2011

Division 2

 

Ss. 39, 40................................

am. No. 132, 2011

S. 42........................................

am. No. 132, 2011

Division 3

 

Ss. 45, 46................................

am. No. 132, 2011

Part 6

 

Div. 1 of Part 6.......................

rep. No. 132, 2011

Ss. 49–52................................

rep. No. 132, 2011

S. 53........................................

am. No. 84, 2008

 

rep. No. 132, 2011

Division 2

 

Heading to Div. 2 of Part 6...

rs. No. 132, 2011

Heading to s. 54....................

rs. No. 132, 2011

S. 54........................................

am. No. 132, 2011

Heading to s. 55....................

rs. No. 132, 2011

S. 55........................................

am. No. 132, 2011

Division 3

 

S. 56........................................

am. No. 87, 2009; No. 132, 2011

Division 4

 

Subdivision A

 

Ss. 57, 58................................

am. No. 132, 2011

Subdivision F

 

S. 71........................................

am. No. 132, 2011

Subdivision G

 

Heading to Subdiv. G of.......
Div. 4 of Part 6

rs. No. 87, 2009

Heading to s. 73....................

am. No. 87, 2009

S. 73........................................

am. No. 84, 2008; No. 87, 2009; No. 132, 2011

S. 73A.....................................

ad. No. 87, 2009

 

am. No. 132, 2011

Heading to s. 74....................

am. No. 87, 2009

S. 74........................................

am. No. 84, 2008; No. 87, 2009; No. 132, 2011

S. 74A.....................................

ad. No. 87, 2009

 

am. No. 132, 2011

S. 75........................................

rs. No. 87, 2009; No. 102, 2011

S. 75A.....................................

ad. No. 87, 2009

 

am. Nos. 102 and 132, 2011


Note 2

Clean Energy (Consequential Amendments) Act 2011 (No. 132, 2011)

The following amendments commence on 1 July 2012:

Schedule 1

261A  Section 3 (heading)

Repeal the heading, substitute:

3  Objects

262  Section 3

Before “The”, insert “(1)”.

263  Section 3

Before “object”, insert “first”.

264  Paragraph 3(a)

Repeal the paragraph.

265  At the end of section 3

Add:

             (2)  The second object of this Act is to underpin the Clean Energy Act 2011 by imposing various registration, reporting and record‑keeping requirements.

266  Section 4

Before “This Act”, insert “(1)”.

267  Section 4

After “This Act”, insert “(except to the extent to which it underpins the Clean Energy Act 2011)”.

268  At the end of section 4

Add:

             (2)  To the extent to which this Act underpins the Clean Energy Act 2011, this Act relies on the same legislative powers that support the Clean Energy Act 2011.

269  Section 5

Before “This Act”, insert “(1)”.

270  Subparagraph 5(a)(i)

Repeal the subparagraph.

271  Paragraph 5(b)

Omit “this section”, substitute “this subsection”.

272  At the end of section 5

Add:

             (2)  This Act is intended to apply to the exclusion of a law of a State or Territory, or a part of such a law:

                     (a)  that provides for the reporting or disclosure of information related to greenhouse gas emissions; and

                     (b)  that the regulations provide is a law, or part of a law, to which this subsection applies;

so far as the law, or part of the law, would otherwise apply in relation to a person other than:

                     (c)  a local governing body; or

                     (d)  an authority of a State or Territory.

273  After section 5

Insert:

5A  Crown to be bound

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

             (3)  The protection in subsection (2) does not apply to an authority of the Crown.

274  Section 6

Repeal the section, substitute:

6  Extension to external Territories

                   This Act extends to every external Territory.

6A  Extension to exclusive economic zone and continental shelf

                   This Act extends to a matter relating to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf.

6B  Extension to Joint Petroleum Development Area

                   This Act extends to the Joint Petroleum Development Area.

6C  Application to foreign ships

                   This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign ships in:

                     (a)  the territorial sea; or

                     (b)  the exclusive economic zone; or

                     (c)  waters of the continental shelf;

in accordance with the United Nations Convention on the Law of the Sea.

275  Section 7

Insert:

activity includes:

                     (a)  a condition; or

                     (b)  a circumstance; or

                     (c)  a state of affairs;

relating to:

                     (d)  solid waste; or

                     (e)  carbon capture and storage; or

                      (f)  other storage; or

                     (g)  stockpiling; or

                     (h)  any other matter or thing.

276  Section 7

Insert:

approved by the Regulator means approved by the Regulator, in writing, for the purposes of the provision in which the term occurs.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

277  Section 7

Insert:

carbon capture and storage means:

                     (a)  the storage of a greenhouse gas substance in a part of a geological formation; or

                     (b)  the injection of a greenhouse gas substance into a part of a geological formation for the purposes of such storage; or

                     (c)  the capture, compression, processing, offloading, transportation or piped conveyance of a greenhouse gas substance, where the compression, processing, offloading, transportation or piped conveyance is for the purposes of such storage.

An expression used in this definition has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006. For this purpose, assume that each reference in the definition of greenhouse gas substance in section 7 of that Act to a prescribed greenhouse gas were a reference to a greenhouse gas (within the meaning of this Act).

278  Section 7 (definition of carbon dioxide equivalence)

Repeal the definition, substitute:

carbon dioxide equivalence:

                     (a)  of an amount of greenhouse gas—means the amount of the gas multiplied by a value specified in the regulations in relation to that kind of greenhouse gas; or

                     (b)  of an amount of potential greenhouse gas emissions embodied in an amount of natural gas—has the meaning given by section 7C.

280  Section 7

Insert:

designated generation facility means a facility that is:

                     (a)  attributable to the industry sector mentioned in item 54 of Schedule 2 to the National Greenhouse and Energy Reporting Regulations 2008 (which deals with electricity generation); and

                     (b)  not a vertically integrated production process (within the meaning of those regulations).

281  Section 7

Insert:

eligible financial year has the same meaning as in the Clean Energy Act 2011.

282  Section 7 (definition of emission)

Repeal the definition, substitute:

emission of greenhouse gas means:

                     (a)  a scope 1 emission of greenhouse gas; or

                     (b)  a scope 2 emission of greenhouse gas.

283  Section 7

Insert:

emissions number has the same meaning as in the Clean Energy Act 2011.

284  Section 7

Insert:

executive officer of a body corporate means:

                     (a)  a director of the body corporate; or

                     (b)  the chief executive officer (however described) of the body corporate; or

                     (c)  the chief financial officer (however described) of the body corporate; or

                     (d)  the secretary of the body corporate.

285  Section 7

Insert:

financial control liability transfer certificate means a certificate issued under section 87 of the Clean Energy Act 2011.

286  Section 7

Insert:

fixed charge year has the same meaning as in the Clean Energy Act 2011.

287  Section 7

Insert:

foreign country has the same meaning as in the Clean Energy Act 2011.

288  Section 7

Insert:

foreign person means any of the following:

                     (a)  an individual who is not ordinarily resident in Australia;

                     (b)  a body corporate that:

                              (i)  is incorporated outside Australia; or

                             (ii)  is an authority of a foreign country;

                     (c)  a corporation sole that:

                              (i)  is incorporated outside Australia; or

                             (ii)  is an authority of a foreign country;

                     (d)  a body politic of a foreign country;

                     (e)  a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.

289  Section 7 (definition of greenhouse and energy audit)

Omit “74A”, substitute “74C”.

290  Section 7 (definition of greenhouse gas)

Repeal the definition, substitute:

greenhouse gas has the meaning given by section 7A.

291  Section 7 (paragraph (b) of the definition of greenhouse gas project)

Omit “regulations;”, substitute “regulations.”.

292  Section 7 (definition of greenhouse gas project)

Omit all the words from and including “but” to the end of the definition.

293  Section 7 (definition of group)

Omit “subsection 8(1)”, substitute “section 8”.

294  Section 7 (definition of innocent passage)

Repeal the definition.

295  Section 7

Insert:

interim emissions number has the same meaning as in the Clean Energy Act 2011.

296  Section 7

Insert:

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

297  Section 7 (definition of joint venture)

Repeal the definition, substitute:

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

298  Section 7

Insert:

liable entity has the same meaning as in the Clean Energy Act 2011.

299  Section 7

Insert:

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

300  Section 7 (definition of member)

Before “has”, insert “, in relation to a group,”.

301  Section 7

Insert:

natural gas has the meaning given by the regulations.

303  Section 7

Insert:

non‑group entity means a person who is not a member of a controlling corporation’s group.

304  Section 7 (definition of oil or gas extraction activity)

Repeal the definition.

305  Section 7

Insert:

operation, in relation to a facility, includes the subsistence of the facility.

307  Section 7 (definition of operational control)

Omit “11”, substitute “11, 11A, 11AA, 11AB, 11B or 11C”.

308  Section 7

Insert:

person means any of the following:

                     (a)  an individual;

                     (b)  a body corporate;

                     (c)  a trust;

                     (d)  a corporation sole;

                     (e)  a body politic;

                      (f)  a local governing body.

309  Section 7

Insert:

potential greenhouse gas emissions embodied in an amount of natural gas has the meaning given by section 7B.

310  Section 7

Insert:

provisional emissions number has the same meaning as in the Clean Energy Act 2011.

312  Section 7

Insert:

Register means the National Greenhouse and Energy Register maintained under section 16.

313  Section 7 (definition of registered corporation)

Omit “Division 3 of Part 2”, substitute “this Act”.

314  Section 7

Insert:

registered person means a person registered under this Act.

315  Section 7

Insert:

scope 1 emission of greenhouse gas has the meaning given by section 10.

316  Section 7

Insert:

scope 2 emission of greenhouse gas has the meaning given by section 10.

319  Section 7

Insert:

trust means a person in the capacity of trustee or, as the case requires, a trust estate.

320  Section 7

Insert:

trustee has the same meaning as in the Income Tax Assessment Act 1997.

321  Section 7

Insert:

trust estate has the same meaning as in the Income Tax Assessment Act 1997.

322  Section 7

Insert:

United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 31 ([1994] ATS 31). In 2011, 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).

323  After section 7

Insert:

7A  Greenhouse gas

             (1)  For the purposes of this Act and the Clean Energy Act 2011, each of the following is a greenhouse gas:

                     (a)  carbon dioxide;

                     (b)  methane;

                     (c)  nitrous oxide;

                     (d)  sulfur hexafluoride;

                     (e)  a hydrofluorocarbon of a kind specified in the table in subsection (2);

                      (f)  a perfluorocarbon of a kind specified in the table in subsection (3);

                     (g)  a prescribed gas.

Table 1—Hydrofluorocarbons

             (2)  Table 1 is as follows:

 

Hydrofluorocarbons

Item

Hydrofluorocarbon

Chemical formula

1

HFC‑23

CHF3

2

HFC‑32

CH2F2

3

HFC‑41

CH3F

4

HFC‑43‑10mee

C5H2F10

5

HFC‑125

C2HF5

6

HFC‑134

C2H2F4 (CHF2CHF2)

7

HFC‑134a

C2H2F4 (CH2FCF3)

8

HFC‑143

C2H3F3 (CHF2CH2F)

9

HFC‑143a

C2H3F3 (CF3CH3)

10

HFC‑152a

C2H4F2 (CH3CHF2)

11

HFC‑227ea

C3HF7

12

HFC‑236fa

C3H2F6

13

HFC‑245ca

C3H3F5

Table 2—Perfluorocarbons

             (3)  Table 2 is as follows:

 

Perfluorocarbons

Item

Perfluorocarbon

Chemical formula

1

Perfluoromethane

(tetrafluoromethane)

CF4

2

Perfluoroethane

(hexafluoroethane)

C2F6

3

Perfluoropropane

C3F8

4

Perfluorobutane

C4F10

5

Perfluorocyclobutane

c‑C4F8

6

Perfluoropentane

C5F12

7

Perfluorohexane

C6F14

7B  Potential greenhouse gas emissions embodied in an amount of natural gas

             (1)  For the purposes of this Act and the Clean Energy Act 2011, the potential greenhouse gas emissions embodied in an amount of natural gas is:

                     (a)  the amount of the greenhouse gas; or

                     (b)  the amounts of the greenhouse gases;

that would be released into the atmosphere as a result of the combustion of the amount of the natural gas.

Default method

             (2)  The Minister may determine that the amount of greenhouse gas that would be released into the atmosphere as a result of the combustion of an amount of natural gas is taken, for the purposes of:

                     (a)  this Act (other than subsections (3) and (4) of this section); and

                     (b)  the Clean Energy Act 2011;

to be the amount of the natural gas multiplied by a value specified in the determination.

Prescribed alternative method

             (3)  However, if:

                     (a)  a report relating to an eligible financial year was given by a person under section 22A; and

                     (b)  the report was given before the end of 4 months after the end of the eligible financial year; and

                     (c)  ascertaining the potential greenhouse gas emissions embodied in an amount of natural gas is relevant to working out a provisional emissions number of the person for the eligible financial year; and

                     (d)  the report contained a statement to the effect that the person has made a choice to use the prescribed alternative method to ascertain the potential greenhouse gas emissions; and

                     (e)  the prescribed alternative method was complied with in ascertaining the potential greenhouse gas emissions;

then, for the purposes of this Act and the Clean Energy Act 2011:

                      (f)  the potential greenhouse gas emissions are to be ascertained in accordance with the prescribed alternative method; and

                     (g)  a determination under subsection (2) does not apply in ascertaining the potential greenhouse gas emissions.

             (4)  For the purposes of this section, the prescribed alternative method is a method that:

                     (a)  is for ascertaining the potential greenhouse gas emissions embodied in an amount of natural gas; and

                     (b)  is specified in a determination made by the Minister; and

                     (c)  involves testing one or more samples of the natural gas.

Combustion

             (5)  The Minister may determine that, for the purposes of this section, it is to be assumed that the combustion of an amount of natural gas takes place in the circumstances specified in the determination.

Determination

             (6)  A determination made under subsection (2), (4) or (5) is a legislative instrument.

7C  Carbon dioxide equivalence of potential greenhouse gas emissions embodied in an amount of natural gas

Scope

             (1)  This section applies if the potential greenhouse gas emissions embodied in an amount of natural gas consist of:

                     (a)  an amount of a greenhouse gas; or

                     (b)  amounts of one or more greenhouse gases.

Carbon dioxide equivalence

             (2)  For the purposes of this Act and the Clean Energy Act 2011, the carbon dioxide equivalence of the potential greenhouse gas emissions is the total of the carbon dioxide equivalence of that amount of greenhouse gas or those amounts of greenhouse gases.

324  Subsection 8(1)

Omit “A controlling”, substitute “For the purposes of this Act and the Clean Energy Act 2011, a controlling”.

325  Paragraph 8(1)(b)

Omit “(if any);”, substitute “(if any).”.

326  Paragraphs 8(1)(c) and (d)

Repeal the paragraphs.

327  Subsections 8(4), (5) and (6)

Repeal the subsections, substitute:

             (4)  To avoid doubt, a controlling corporation’s group may consist of the controlling corporation alone.

328  Subsection 9(1)

Omit “A facility is”, substitute “For the purposes of this Act and the Clean Energy Act 2011, a facility is”.

329  Subsection 9(1)

Omit “the production of” (first occurring).

330  Paragraph 9(1)(b)

Omit “54;”, substitute “54 or 54A.”.

331  Subsection 9(1)

Omit all the words from and including “but” to the end of the subsection.

332  Subsection 9(3)

Repeal the subsection.

333  Subsection 10(1)

After “References”, insert “in this Act or the Clean Energy Act 2011”.

334  Paragraph 10(1)(a)

Repeal the paragraph, substitute:

                     (a)  scope 1 emission of greenhouse gas;

                    (aa)  scope 2 emission of greenhouse gas;

336  Subsection 10(2)

Omit “paragraph (1)(a) may specify a meaning of emissions”, substitute “paragraph (1)(aa) may specify a meaning of scope 2 emission”.

337  Subsection 10(3)

Omit “emissions,” (wherever occurring), substitute “scope 1 emissions, scope 2 emissions,”.

338  Subsection 10(3)

After “this Act”, insert “and the Clean Energy Act 2011”.

339  Paragraph 10(3)(a)

Repeal the paragraph, substitute:

                     (a)  in the case of scope 1 emissions—different methods or criteria for emissions from different sources; and

339AA  At the end of section 10

Add:

             (4)  A determination under subsection (3) may also deal with matters required or permitted by section 32 or 32A of the Clean Energy Act 2011 to be dealt with by such a determination.

339A  Section 11 (heading)

Repeal the heading, substitute:

11  Operational control—basic rule

340  Subsection 11(1)

Omit “A controlling corporation or another member of the corporation’s group”, substitute “For the purposes of this Act and the Clean Energy Act 2011, a person”.

341  Paragraph 11(1)(a)

Omit “it”, substitute “the person”.

342  Paragraph 11(1)(b)

Omit “corporation or member”, substitute “person”.

343  At the end of paragraph 11(1)(b)

Add “or 55A”.

344  Subsection 11(2)

After “apply”, insert “in relation to a facility”.

345  At the end of subsection 11(2)

Add “in relation to the facility”.

346  Subsection 11(3)

After “this Act”, insert “and the Clean Energy Act 2011”.

347  Subsection 11(3)

Omit “such corporation or member”, substitute “person”.

348  Subsection 11(4)

Repeal the subsection, substitute:

             (4)  This section has effect subject to sections 11A, 11AA, 11AB, 11B and 11C.

349  At the end of Part 1

Add:

11A  Operational control—person with greatest authority

Scope

             (1)  This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:

                     (a)  2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;

                     (b)  a particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;

                     (c)  no declaration under section 55 or 55A applies in relation to the facility at any time during the period.

Operational control

             (2)  The person mentioned in paragraph (1)(b) is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

11AA  Operational control during part of fixed charge year—nominated person

Scope

             (1)  This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, the first 9 months of a fixed charge year:

                     (a)  2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;

                     (b)  no particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;

                     (c)  no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

                     (d)  as at the start of 1 April in the fixed charge year, it may reasonably be expected that a person would have had an interim emissions number for the fixed charge year if it were assumed that:

                              (i)  the person had operational control over the facility throughout the period; and

                             (ii)  none of the persons mentioned in paragraph (a) of this subsection had operational control over the facility throughout the period.

Nomination

             (2)  The persons mentioned in paragraph (1)(a) must, before the end of 30 April in the fixed charge year, jointly nominate one of them to be the nominated person in relation to the facility for the period.

Civil penalty:          1,000 penalty units.

             (3)  A nomination must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  be accompanied by such information as is specified in the regulations.

             (4)  If:

                     (a)  any of those persons is a foreign person; and

                     (b)  any of those persons is not a foreign person;

a foreign person cannot be nominated.

Operational control—nomination made

             (5)  If a nomination is made and the facility is a facility of a joint venture, the nominated person is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

             (6)  If a nomination is made and the facility is not a facility of a joint venture, the nominated person is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

Operational control—nomination not made

             (7)  If no nomination is made and the facility is a facility of a joint venture, each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

             (8)  If no nomination is made and the facility is not a facility of a joint venture:

                     (a)  each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

                     (b)  if there is a provisional emissions number of such a person for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (9).

             (9)  The formula is:

where:

unadjusted provisional emissions number means the number that, apart from paragraph (8)(b), would be the provisional emissions number of the person for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period.

Exception

           (10)  A person is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

                     (a)  this Act; or

                     (b)  the Clean Energy Act 2011.

11AB  Operational control during part of fixed charge year—trust with multiple trustees

Scope

             (1)  This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, the first 9 months of a fixed charge year:

                     (a)  because of section 11, 11A or 11AA, a trust has operational control over a facility throughout the period;

                     (b)  throughout the period, there are 2 or more trustees of the trust;

                     (c)  no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

                     (d)  as at the start of 1 April in the fixed charge year, it may reasonably be expected that a person would have had an interim emissions number for the fixed charge year if it were assumed that:

                              (i)  the person had operational control over the facility throughout the period; and

                             (ii)  the trust did not have operational control over the facility throughout the period.

Nomination

             (2)  The trustees must, before the end of 30 April in the fixed charge year, jointly nominate one of them to be the nominated trustee in relation to the facility for the period.

Civil penalty:          1,000 penalty units.

             (3)  A nomination must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  be accompanied by such information as is specified in the regulations.

             (4)  If:

                     (a)  any of those trustees is a foreign person; and

                     (b)  any of those trustees is not a foreign person;

a foreign person cannot be nominated.

Operational control

             (5)  If a nomination is made, the nominated trustee is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

             (6)  If no nomination is made:

                     (a)  each of those trustees is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

                     (b)  if there is a provisional emissions number of such a trustee for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (7).

             (7)  The formula is:

where:

unadjusted provisional emissions number means the number that, apart from paragraph (6)(b), would be the provisional emissions number of the trustee for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period.

Exception

             (8)  A trustee is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

                     (a)  this Act; or

                     (b)  the Clean Energy Act 2011.

11B  Operational control—nominated person

Scope

             (1)  This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:

                     (a)  2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;

                     (b)  no particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;

                     (c)  no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

                     (d)  if the period is included in a fixed charge year—section 11AA does not apply to the facility for the period.

Nomination

             (2)  Those persons must, before the end of 31 August next following the eligible financial year, jointly nominate one of them to be the nominated person in relation to the facility for the period.

Civil penalty:          1,000 penalty units.

             (3)  A nomination must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  be accompanied by such information as is specified in the regulations.

             (4)  If:

                     (a)  any of those persons is a foreign person; and

                     (b)  any of those persons is not a foreign person;

a foreign person cannot be nominated.

Operational control—nomination made

             (5)  If a nomination is made and the facility is a facility of a joint venture, the nominated person is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

             (6)  If a nomination is made and the facility is not a facility of a joint venture, the nominated person is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

Operational control—nomination not made

             (7)  If no nomination is made and the facility is a facility of a joint venture, each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

             (8)  If no nomination is made and the facility is not a facility of a joint venture:

                     (a)  each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

                     (b)  if there is a provisional emissions number of such a person for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (9).

             (9)  The formula is:

where:

unadjusted provisional emissions number means the number that, apart from paragraph (8)(b), 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.

Exception

           (10)  A person is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

                     (a)  this Act; or

                     (b)  the Clean Energy Act 2011.

11C  Operational control—trust with multiple trustees

Scope

             (1)  This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, an eligible financial year:

                     (a)  because of section 11, 11A or 11B, a trust has operational control over a facility throughout the period;

                     (b)  throughout the period, there are 2 or more trustees of the trust;

                     (c)  no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

                     (d)  if the period is included in a fixed charge year—section 11AB does not apply to the facility for the period.

Nomination

             (2)  Those trustees must, before the end of 31 August next following the eligible financial year, jointly nominate one of them to be the nominated trustee in relation to the facility for the period.

Civil penalty:          1,000 penalty units.

             (3)  A nomination must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  be accompanied by such information as is specified in the regulations.

             (4)  If:

                     (a)  any of those trustees is a foreign person; and

                     (b)  any of those trustees is not a foreign person;

a foreign person cannot be nominated.

Operational control

             (5)  If a nomination is made, the nominated trustee is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

             (6)  If no nomination is made:

                     (a)  each of those trustees is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

                     (b)  if there is a provisional emissions number of such a trustee for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (7).

             (7)  The formula is:

where:

unadjusted provisional emissions number means the number that, apart from paragraph (6)(b), would be the provisional emissions number of the trustee for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period.

Exception

             (8)  A trustee is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

                     (a)  this Act; or

                     (b)  the Clean Energy Act 2011.

350  Before section 12

Insert:

Subdivision AApplication by a controlling corporation

351  After subsection 13(1)

Insert:

          (1A)  Subsection (1) does not apply in relation to:

                     (a)  greenhouse gas emissions; or

                     (b)  energy production; or

                     (c)  energy consumption;

unless the Minister has, under subsection 10(3), determined:

                     (d)  methods by which the amounts of the emissions, production or consumption, as the case may be, are to be measured; or

                     (e)  criteria for methods by which the amounts of emissions, production or consumption, as the case may be, are to be measured.

351A  At the end of section 13

Add:

Financial control liability transfer certificate

             (4)  For the purposes of this section, if a person was the holder of a financial control liability transfer certificate in relation to a facility on a particular day in an eligible financial year, the facility is taken not to have been under the operational control of a member of a controlling corporation’s group on that day.

352  At the end of Division 1 of Part 2

Add:

Subdivision BApplication by a liable entity

15A  Application by a liable entity

             (1)  If a person is or was a liable entity for an eligible financial year (the current eligible financial year), the person must apply, in accordance with this section, to be registered under this Act.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a person may be liable for an additional civil penalty for each day that the person fails to apply in accordance with subsection (1) of this section.

             (2)  However, a person is not required to make an application under subsection (1) if the person is registered under this Act at the end of the current eligible financial year.

             (3)  An application under subsection (1) must be made by 31 August in the eligible financial year next following the current eligible financial year.

             (4)  An application under subsection (1) must:

                     (a)  be made to the Regulator; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  set out the information specified by the regulations for the purposes of this paragraph.

15AA  Application by liable entity with interim emissions number etc.—fixed charge year

             (1)  If, as at the start of 1 April in a fixed charge year (the current fixed charge year):

                     (a)  either:

                              (i)  a person is a liable entity for the current fixed charge year; or

                             (ii)  it may reasonably be expected that the person will be a liable entity for the current fixed charge year; and

                     (b)  either:

                              (i)  the person has an interim emissions number for the current fixed charge year; or

                             (ii)  it may reasonably be expected that the person will have an interim emissions number for the current fixed charge year;

the person must apply, in accordance with this section, to be registered under this Act.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a person may be liable for an additional civil penalty for each day that the person fails to apply in accordance with subsection (1) of this section.

             (2)  However, a person is not required to make an application under subsection (1) if the person is registered under this Act at the start of 1 April in the current fixed charge year.

             (3)  An application under subsection (1) must be made by 1 May in the current fixed charge year.

             (4)  An application under subsection (1) must:

                     (a)  be made to the Regulator; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  set out the information specified by the regulations for the purposes of this paragraph.

353  Division 2 of Part 2

Repeal the Division, substitute:

Division 2National Greenhouse and Energy Register

16  National Greenhouse and Energy Register

             (1)  The Regulator is to maintain a register, to be known as the National Greenhouse and Energy Register, that sets out:

                     (a)  the name of each person registered under this Act; and

                     (b)  any other matters, specified in the regulations, that relate to the following:

                              (i)  information included in the application for registration;

                             (ii)  whether the person has complied with provisions of this Act;

                            (iii)  information included in a report given by the person under this Act;

                            (iv)  information that is published under section 24;

                             (v)  the results of a greenhouse and energy audit carried out in relation to the person.

             (2)  The National Greenhouse and Energy Register may be maintained by electronic means.

             (3)  The National Greenhouse and Energy Register may be made available for inspection in any way the Regulator thinks appropriate.

             (4)  The Regulator must ensure that the National Greenhouse and Energy Register is up‑to‑date.

             (5)  The National Greenhouse and Energy Register is not a legislative instrument.

             (6)  Before the end of 28 February next following each financial year, the Regulator must publish on its website the name of each person registered under this Act at any time during the financial year.

             (7)  Subsection (6) does not limit subsection (3).

354  Division 3 of Part 2 (heading)

Repeal the heading, substitute:

Division 3Registration of controlling corporations

355  Section 18

Repeal the section.

356  At the end of Part 2

Add:

Division 4Registration of other persons

18A  Registration of other persons

             (1)  The Regulator must register a person under this Act if the person has applied for registration under section 15A or 15AA.

             (2)  The Regulator must notify the person, in writing, of the Regulator’s decision on the application.

             (3)  The person is registered under this Act when the Regulator has entered the name of the person on the Register.

Division 5Deregistration

18B  Deregistration

Deregistration on application

             (1)  A registered person may apply to the Regulator to be deregistered.

             (2)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved by the Regulator; and

                     (c)  set out such information as is specified in the regulations.

             (3)  The Regulator must remove the person’s name from the Register if the Regulator is satisfied that:

                     (a)  in a case where the person is the controlling corporation of a group—the group is not likely to meet any of the thresholds under section 13 for:

                              (i)  the financial year in which the application is made; and

                             (ii)  the next 2 financial years; and

                     (b)  the person:

                              (i)  is not a liable entity for the financial year in which the application is made; and

                             (ii)  is not likely to be a liable entity for any of the next 2 financial years; and

                     (c)  the person does not hold a reporting transfer certificate; and

                     (d)  the person has complied with the person’s obligations under this Act.

             (4)  The Regulator must notify the person, in writing, of the Regulator’s decision on the application.

Deregistration on the Regulator’s own initiative

             (5)  The Regulator may remove a person’s name from the Register if the Regulator is satisfied that the person has ceased to exist.

When registration ceases

             (6)  A person ceases to be registered under this Act when the Regulator has removed the person’s name from the Register.

357  Part 3 (heading)

Repeal the heading, substitute:

Part 3Reporting obligations of registered corporations etc.

358  Subsection 19(1)

Omit “registered corporation”, substitute “corporation registered under Division 3 of Part 2”.

359  At the end of subsection 19(1)

Add:

Note 4:       Reports under this section and section 22A may be set out in the same document—see subsection 22A(4).

360  After subsection 19(1)

Insert:

          (1A)  Subsection (1) does not apply to:

                     (a)  greenhouse gas emissions; or

                     (b)  energy production; or

                     (c)  energy consumption;

unless the Minister has, under subsection 10(3), determined:

                     (d)  methods by which the amounts of the emissions, production or consumption, as the case may be, are to be measured; or

                     (e)  criteria for methods by which the amounts of emissions, production or consumption, as the case may be, are to be measured.

Note:          Paragraph (6)(b) requires that a report under subsection (1) must be based on methods, or methods which meet criteria, determined under subsection 10(3).

361  Subsections 19(4) and (5)

Repeal the subsections, substitute:

             (4)  If a person other than the corporation is the holder of a financial control liability transfer certificate in relation to a facility throughout the whole or a part of an eligible financial year, a report under subsection (1) need not relate to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from the operation of the facility during the whole, or the part, as the case may be, of the eligible financial year.

362  Paragraph 19(6)(c)

Omit “include any”, substitute “set out the”.

363  At the end of section 19

Add:

           (10)  This section does not apply to a facility that was under the operational control of a member of the corporation’s group during the whole or a part of a financial year if the member is required to provide a report under section 22X about the facility in respect of the year.

364  Paragraphs 22(1)(a) and (b)

After “this Act”, insert “(other than Part 3A or 3D)”.

365  Paragraphs 22(2)(a) and (b)

After “this Act”, insert “(other than Part 3A or 3D)”.

366  Subsection 22(3)

Omit “7 years”, substitute “5 years”.

367  After Part 3

Insert:

Part 3AReporting obligations of liable entities etc.

  

22A  Report to be given to Regulator—general

             (1)  If a person was a liable entity for an eligible financial year, the person must, in accordance with this section, provide a report to the Regulator relating to:

                     (a)  the calculation of the person’s provisional emissions numbers for the eligible financial year; and

                     (b)  if a provisional emissions number of the person for the eligible financial year is attributable to scope 1 emissions of greenhouse gas—those emissions; and

                     (c)  if a provisional emissions number of the person for the eligible financial year is attributable to potential greenhouse gas emissions embodied in an amount of natural gas—those potential greenhouse gas emissions; and

                     (d)  the calculation of the person’s emissions number for the eligible financial year.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(c) of this section for which the person fails to provide a report in accordance with this section.

             (2)  A report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  set out the information specified by the regulations for the purposes of this paragraph; and

                     (c)  be given to the Regulator before the end of 4 months after the end of the eligible financial year.

             (3)  Regulations made for the purposes of paragraph (2)(b) may specify different requirements for different circumstances.

             (4)  Reports under this section and section 19 may be set out in the same document.

Note:          Reports under this section and section 22E may be set out in the same document—see subsection 22E(7).

22AA  Report to be given to Regulator—fixed charge year

             (1)  If:

                     (a)  a person is a liable entity for a fixed charge year; and

                     (b)  the person has an interim emissions number for the fixed charge year;

the person must, in accordance with this section, provide a report to the Regulator relating to:

                     (c)  the calculation of the person’s interim emissions numbers for the fixed charge year; and

                     (d)  if an interim emissions number of the person for the fixed charge year is attributable to scope 1 emissions of greenhouse gas—those emissions; and

                     (e)  if an interim emissions number of the person for the fixed charge year is attributable to potential greenhouse gas emissions embodied in an amount of natural gas—those potential greenhouse gas emissions.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(c) of this section for which the person fails to provide a report in accordance with this section.

             (2)  A report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  set out the information specified by the regulations for the purposes of this paragraph; and

                     (c)  be given to the Regulator before the end of 15 June in the eligible financial year.

             (3)  Regulations made for the purposes of paragraph (2)(b) may specify different requirements for different circumstances.

22B  Records to be kept—general

             (1)  A person who is or was a liable entity for an eligible financial year must keep records of the person’s activities that:

                     (a)  allow the person to report accurately under section 22A; and

                     (b)  enable the Regulator to ascertain whether the person has complied with the person’s obligations under section 22A; and

                     (c)  comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

             (2)  The person must retain the records for 5 years from the end of the financial year in which the activities take place.

             (3)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  the form of records;

that must be kept under subsection (1).

22C  Records to be kept—fixed charge year

             (1)  A person who is or was a liable entity for a fixed charge year must keep records of the person’s activities that:

                     (a)  allow the person to report accurately under section 22AA; and

                     (b)  enable the Regulator to ascertain whether the person has complied with the person’s obligations under section 22AA; and

                     (c)  comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

             (2)  The person must retain the records for 5 years from the end of the fixed charge year in which the activities take place.

             (3)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  the form of records;

that must be kept under subsection (1).

Part 3DReporting obligations of holders of liability transfer certificates

  

22E  Report to be given to Regulator

             (1)  If a person was the holder of a financial control liability transfer certificate in relation to a facility during the whole or a part of an eligible financial year, the person must, in accordance with this section, provide a report to the Regulator relating to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from the operation of the facility during the whole, or the part, as the case may be, of that eligible financial year.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a person may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (2)(d) for which the person fails to provide a report in accordance with this section.

             (2)  A report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  be based on:

                              (i)  methods determined by the Minister under subsection 10(3); or

                             (ii)  methods which meet criteria determined by the Minister under that subsection;

                            where the use of those methods satisfies any conditions specified in the determination under that subsection; and

                     (c)  set out the information specified by the regulations for the purposes of this paragraph; and

                     (d)  be given to the Regulator before the end of 4 months after the end of the eligible financial year.

             (3)  Regulations made for the purposes of paragraph (2)(c) may specify different requirements for different circumstances.

             (4)  In particular, and without limiting subsection (3), the regulations may specify different requirements for persons who:

                     (a)  do not meet any threshold; or

                     (b)  do not meet specified thresholds;

for an eligible financial year to which a report relates.

             (5)  Regulations made for the purposes of paragraph (2)(c) may also specify information that a State or Territory has requested the Regulator to collect.

             (6)  The regulations may provide that a person is not required to provide a report under subsection (1) for an eligible financial year in relation to a facility if the facility does not meet a specified threshold for the eligible financial year.

             (7)  Reports under this section and section 22A may be set out in the same document.

22F  Records to be kept

             (1)  A person who is or was required to provide a report under section 22E for an eligible financial year must keep records of the person’s activities that:

                     (a)  allow the person to report accurately under section 22E; and

                     (b)  enable the Regulator to ascertain whether the person has complied with the person’s obligations under section 22E; and

                     (c)  comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  otherwise—10,000 penalty units.

             (2)  The person must retain the records for 5 years from the end of the financial year in which the activities take place.

             (3)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  the form of records;

that must be kept under subsection (1).

368  After subsection 22G(1)

Insert:

          (1A)  Subsection (1) does not apply to:

                     (a)  greenhouse gas emissions; or

                     (b)  energy production; or

                     (c)  energy consumption;

unless the Minister has, under subsection 10(3), determined:

                     (d)  methods by which the amounts of the emissions, production or consumption, as the case may be, are to be measured; or

                     (e)  criteria for methods by which the amounts of emissions, production or consumption, as the case may be, are to be measured.

Note:          Paragraph (2)(b) requires that a report under this section must be based on methods, or methods which meet criteria, determined under subsection 10(3).

368A  Subsection 22H(2)

Omit “7 years”, substitute “5 years”.

369  After Part 3E

Insert:

Part 3FReporting obligations transferred to member of corporate group

  

22X  Reporting obligations transferred to member of corporate group

Scope

             (1)  This section applies if:

                     (a)  either:

                              (i)  a facility is under the operational control of a member (the responsible member) of a controlling corporation’s group during the whole or a part of a financial year; or

                             (ii)  during the whole or a part of a financial year, a member (the responsible member) of a controlling corporation’s group is the holder of a liability transfer certificate that was issued under section 83 of the Clean Energy Act 2011 in relation to a facility; and

                     (b)  the controlling corporation and the responsible member have agreed to transfer reporting obligations for the facility to the responsible member; and

                     (c)  before the end of the financial year, the controlling corporation and the responsible member have jointly notified the Regulator, in writing, of:

                              (i)  the agreement; and

                             (ii)  the facility to which the agreement relates.

Obligation to report

             (2)  The responsible member must, in accordance with this section and in respect of the financial year, provide a report to the Regulator relating to the:

                     (a)  greenhouse gas emissions; and

                     (b)  energy production; and

                     (c)  energy consumption;

from the operation of the facility during the whole, or the part, as the case may be, of the financial year.

Civil penalty:          2,000 penalty units.

Note 1:       Under Division 137 of the Criminal Code, it may be an offence to provide false or misleading information or documents to the Regulator in purported compliance with this Act.

Note 2:       Under section 30, a responsible member may be liable for an additional civil penalty for each day after the end of the period mentioned in paragraph (4)(d) for which the responsible member fails to provide a report in accordance with this section.

             (3)  Subsection (1) does not apply to:

                     (a)  greenhouse gas emissions; or

                     (b)  energy production; or

                     (c)  energy consumption;

unless the Minister has, under subsection 10(3), determined:

                     (d)  methods by which the amounts of the emissions, production or consumption, as the case may be, are to be measured; or

                     (e)  criteria for methods by which the amounts of emissions, production or consumption, as the case may be, are to be measured.

Note:          Paragraph (4)(b) requires that a report under this section must be based on methods, or methods which meet criteria, determined under subsection 10(3).

             (4)  A report under this section must:

                     (a)  be given in a manner and form approved by the Regulator; and

                     (b)  be based on:

                              (i)  methods determined by the Minister under subsection 10(3); or

                             (ii)  methods which meet criteria determined by the Minister under that subsection;

                            where the use of those methods satisfies any conditions specified in the determination under that subsection; and

                     (c)  include any information specified by the regulations for the purposes of this paragraph; and

                     (d)  be given to the Regulator before the end of 4 months after the end of each financial year.

             (5)  Regulations made for the purposes of paragraph (4)(c) may specify different requirements for different circumstances.

             (6)  Regulations made for the purposes of paragraph (4)(c) may also specify information that a State or Territory has requested the Regulator to collect.

22XA  Records to be kept

             (1)  A person who is or was required to provide a report under section 22X for a financial year must keep records of the person’s activities that:

                     (a)  allow the person to report accurately under section 22X; and

                     (b)  enable the Regulator to ascertain whether the person has complied with the person’s obligations under section 22X; and

                     (c)  comply with the requirements of subsection (2) and the regulations made for the purposes of subsection (3).

Civil penalty:          1,000 penalty units.

             (2)  The person must retain the records for 5 years from the end of the financial year in which the activities take place.

             (3)  The regulations may specify requirements relating to:

                     (a)  the kinds of records; and

                     (b)  the form of records;

that must be kept under subsection (1).

370  Subsection 23(1) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

371  Subsections 24(1) and (1A)

Repeal the subsections (not including the heading), substitute:

             (1)  The Regulator must, by 28 February in a financial year, publish the following on its website in relation to a registered corporation’s group:

                     (a)  totals of greenhouse gas emissions that are scope 1 emissions reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year;

                     (b)  totals of greenhouse gas emissions that are scope 2 emissions reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year;

                     (c)  the totals of energy consumption for the corporation’s group:

                              (i)  reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year; and

                             (ii)  adjusted in accordance with the regulations.

          (1A)  In addition to publishing information for the corporation’s group in accordance with subsection (1), the Regulator may also publish on its website:

                     (a)  totals of greenhouse gas emissions that are scope 1 emissions for:

                              (i)  each member of the corporation’s group; or

                             (ii)  each business unit in relation to the corporation’s group;

                            reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year; and

                     (b)  totals of greenhouse gas emissions that are scope 2 emissions for:

                              (i)  each member of the corporation’s group; or

                             (ii)  each business unit in relation to the corporation’s group;

                            reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year; and

                     (c)  the totals of energy consumption for each member of the corporation’s group, or each business unit in relation to the corporation’s group:

                              (i)  reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year; and

                             (ii)  adjusted in accordance with the regulations; and

                     (d)  the methods mentioned in paragraph 19(6)(b) or 22X(4)(b) that were used to measure:

                              (i)  the totals for the corporation’s group referred to in paragraphs (1)(a) and (b); and

                             (ii)  the totals of energy consumption reported under Part 3 or 3F in relation to the corporation’s group for the previous financial year; and

                     (e)  the rating given to each of those methods under the determination under subsection 10(3).

This subsection is subject to subsection 25(3).

375  After subsection 24(1A)

Insert:

       (1AA)  If a person gives the Regulator a report under section 22A in relation to an eligible financial year, the Regulator must publish on its website, by 28 February next following the eligible financial year:

                     (a)  the total of the numbers specified in the report as the person’s provisional emissions numbers for the eligible financial year; and

                     (b)  if any of those provisional emissions numbers are attributable to scope 1 emissions of greenhouse gas—the total of those provisional emissions numbers; and

                     (c)  if any of those provisional emissions numbers are attributable to potential greenhouse gas emissions embodied in an amount of natural gas—the total of those provisional emissions numbers.

375A  Subsection 24(1AD)

Omit “a corporation”, substitute “a person”.

375B  Subsection 24(1AD)

After “section”, insert “22E or”.

376  Subsection 24(1AD)

Omit “a website”, substitute “its website”.

377  Subsection 24(1AE)

Omit “the website”, substitute “its website”.

377A  Paragraph 24(1AE)(a)

After “paragraph”, insert “22E(2)(b) or”.

378  After subsection 24(1AE)

Insert:

        (1AF)  If the amount of greenhouse gas emitted, and the amount of energy produced, from the operation of a designated generation facility during a financial year is set out in a report under this Act for the financial year, the Regulator must publish those amounts on its website by 28 February next following the financial year.

       (1AG)  If the amounts of greenhouse gases emitted from the operation of 2 or more designated generation facilities during a financial year are set out in a report under this Act for the financial year, the Regulator must publish the total of those amounts on its website by 28 February next following the financial year.

       (1AH)  If the amounts of energy produced from the operation of 2 or more designated generation facilities during a financial year are set out in a report under this Act for the financial year, the Regulator must publish the total of those amounts on its website by 28 February next following the financial year.

379  Subsection 24(1C)

Omit “a website the fact that the totals”, substitute “its website the fact that the totals or adjusted totals”.

379A  Subsection 24(1G)

Omit “a website”, substitute “its website”.

380  After subsection 24(1G)

Insert:

          (1H)  The Regulator must not publish information mentioned in subsection (1AD) that is reported by a person under section 22E or 22G for a financial year in relation to a facility unless the operation of the facility during the financial year causes:

                     (a)  emissions of greenhouse gases that have a carbon dioxide equivalence of 25 kilotonnes or more; or

                     (b)  production of energy of 100 terajoules or more; or

                     (c)  consumption of energy of 100 terajoules or more.

           (1J)  If the person was the holder of the relevant reporting transfer certificate or financial control liability transfer certificate in relation to the facility for a number of, but not all, days in the financial year (the control days), paragraphs (1H)(a), (b) and (c) have effect as though each amount mentioned in the relevant paragraph were replaced by the amount worked out using the following formula:

          (1K)  Subsection (1H) does not apply to:

                     (a)  greenhouse gas emissions; or

                     (b)  energy production; or

                     (c)  energy consumption;

unless the Minister has, under subsection 10(3), determined:

                     (d)  methods by which the amounts of the emissions, production or consumption, as the case may be, are to be measured; or

                     (e)  criteria for methods by which the amounts of emissions, production or consumption, as the case may be, are to be measured.

381  Subsections 24(2) and (3)

Omit “a website”, substitute “its website”.

384  Subsection 25(1)

Omit “or” (first occurring).

385  Subsection 25(1)

After “section 20,”, insert “or a person required to provide a report under section 22A, 22AA, 22E or 22X”.

386  At the end of section 25

Add:

             (5)  This section does not apply to information required to be published under subsection 24(1AF).

387  Subsection 30(2) (civil penalty)

Repeal the civil penalty, substitute:

Civil penalty:          100 penalty units per day.

388  After subsection 30(2)

Insert:

          (2A)  If, under section 15A, 15AA, 22A, 22AA, 22E, 22X, 74AA or 74B, an act or thing is required to be done within a particular period, or before a particular time, and a person fails to comply with that requirement, the person is liable for a civil penalty for each day that the person fails to comply.

Civil penalty:

                     (a)  for an individual—20 penalty units per day; or

                     (b)  otherwise—100 penalty units per day.

389  Subsection 31(4)

Omit “must have regard”, substitute “may have regard”.

390  At the end of subsection 31(4)

Add:

             ; and (e)  the extent to which the person has co‑operated with the authorities; and

                      (f)  if the person is a body corporate:

                              (i)  the level of the employees, officers or agents of the body corporate involved in the contravention; and

                             (ii)  whether the body corporate exercised due diligence to avoid the contravention; and

                            (iii)  whether the body corporate had a corporate culture conducive to compliance.

391  Division 4 of Part 5 (heading)

Repeal the heading, substitute:

Division 4Liability of executive officers of bodies corporate

391A  Section 47 (heading)

Repeal the heading, substitute:

47  Civil penalties for executive officers of bodies corporate

392  Paragraph 47(1)(a)

Omit “corporation”, substitute “body corporate”.

393  Paragraph 47(1)(b)

Omit “chief”.

394  Paragraphs 47(1)(b) and (c)

Omit “corporation”, substitute “body corporate”.

395  After subsection 47(1)

Insert:

          (1A)  For the purposes of subsection (1), the officer is reckless as to whether the contravention would occur if:

                     (a)  the officer is aware of a substantial risk that the contravention would occur; and

                     (b)  having regard to the circumstances known to the officer, it is unjustifiable to take the risk.

          (1B)  For the purposes of subsection (1), the officer is negligent as to whether the contravention would occur if the officer’s conduct involves:

                     (a)  such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

                     (b)  such a high risk that the contravention would occur; and

that the conduct merits the imposition of a pecuniary penalty.

396  Subsection 47(3)

Omit “corporation”, substitute “body corporate”.

396A  Section 48 (heading)

Repeal the heading, substitute:

48  Did an executive officer take reasonable steps to prevent contravention?

397  Subsection 48(1)

Omit “a chief”, substitute “an”.

398  Subsection 48(1)

Omit “corporation” (first occurring), substitute “body corporate”.

399  Subparagraph 48(1)(a)(i)

Omit “corporation”, substitute “body corporate”.

400  Subparagraph 48(1)(a)(i)

Omit “corporation’s”, substitute “body corporate’s”.

401  Subparagraph 48(1)(a)(ii)

Omit “corporation”, substitute “body corporate”.

402  Subparagraph 48(1)(a)(iii)

Omit “corporation’s”, substitute “body corporate’s”.

403  Paragraph 48(1)(b)

Omit “that the corporation was contravening this Act or the regulations”, substitute “of the contravention”.

403A  Section 54 (heading)

Repeal the heading, substitute:

54  Regulator may declare facility—group

404  Subsection 54(5)

Omit “corporation, joint venture or partnership”, substitute “person”.

405  After section 54

Insert:

54A  Regulator may declare facility—non‑group entity

             (1)  The Regulator may declare that an activity or series of activities (including ancillary activities) are a facility:

                     (a)  on application by a non‑group entity; or

                     (b)  on the Regulator’s own initiative.

             (2)  An application must:

                     (a)  identify the facility for which a declaration is sought; and

                     (b)  include any other information required by the regulations; and

                     (c)  be given in a manner and form approved by the Regulator.

             (3)  In considering making a declaration that an activity or series of activities are a facility, the Regulator must have regard to:

                     (a)  the matters dealt with in regulations made for the purposes of paragraph 9(1)(a); and

                     (b)  the need for each facility to be distinct from, and not overlap with, activities that constitute other facilities.

             (4)  The Regulator must notify, in writing, an applicant under paragraph (1)(a) of a decision under subsection (1) to declare a facility or to refuse the application.

             (5)  If the Regulator makes a declaration under paragraph (1)(b), the Regulator must notify, in writing, the person that has, or that the Regulator reasonably believes has, operational control of the facility to which the declaration relates.

406  After subsection 55(3)

Insert:

          (3A)  The Regulator must not declare that a controlling corporation or another member of the corporation’s group has operational control of a facility unless the Regulator is satisfied that the corporation or member has substantial authority to introduce and implement either or both of the following for the facility:

                     (a)  operating policies;

                     (b)  environmental policies.

          (3B)  The Regulator must not declare that a member of a controlling corporation’s group (other than the controlling corporation) has operational control of a facility on application made by the member unless the controlling corporation has given written consent to the making of the declaration.

407  At the end of Division 2 of Part 6

Add:

55A  Regulator may declare non‑group entity has operational control

             (1)  The Regulator may declare that a non‑group entity has operational control of a facility:

                     (a)  on application by the non‑group entity; or

                     (b)  on the Regulator’s own initiative.

             (2)  An application must:

                     (a)  identify the facility for which a declaration of operational control is sought; and

                     (b)  include any other information required by the regulations; and

                     (c)  be given in a manner and form approved by the Regulator.

             (3)  In considering making a declaration that a non‑group entity has operational control of a facility, the Regulator must have regard to the matters dealt with in paragraph 11(1)(a) and regulations made for the purposes of that paragraph.

             (4)  The Regulator must not declare that a non‑group entity has operational control of a facility unless the Regulator is satisfied that the non‑group entity has substantial authority to introduce and implement either or both of the following for the facility:

                     (a)  operating policies;

                     (b)  environmental policies.

             (5)  The Regulator must notify, in writing, an applicant under paragraph (1)(a) of a decision under subsection (1) to declare the non‑group entity to have operational control of the facility or to refuse the application.

             (6)  If the Regulator makes a declaration under paragraph (1)(b), the Regulator must notify, in writing, the non‑group entity which the Regulator has declared to have operational control of the facility to which the declaration relates.

408  After paragraph 56(a)

Insert:

                    (aa)  not register a person under section 18A;

409  Paragraph 56(b)

Omit “corporation under section 18”, substitute “person under section 18B”.

410  After paragraph 56(g)

Insert:

                    (ga)  refuse an application under section 54A;

                   (gb)  declare a facility under paragraph 54A(1)(b);

411  At the end of section 56

Add:

                   ; (k)  refuse an application under section 55A;

                      (l)  declare that a non‑group entity has operational control of a facility under paragraph 55A(1)(b).

412  Subsection 61(3) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

413  Subsection 69(2) (penalty)

Repeal the penalty, substitute:

Penalty:  30 penalty units.

414  Before section 75

Insert:

74AA  Audit of persons providing reports under section 22A

             (1)  This section applies if:

                     (a)  a person is required to provide a report under section 22A for an eligible financial year; and

                     (b)  the person’s emissions number for the eligible financial year exceeds the number specified in the regulations in relation to the eligible financial year.

             (2)  The person must:

                     (a)  appoint as an audit team leader a registered greenhouse and energy auditor of the person’s choice; and

                     (b)  arrange for the audit team leader to carry out an audit of:

                              (i)  the section 22A report; and

                             (ii)  such other matters (if any) relating to the section 22A report as are specified in the regulations; and

                            (iii)  the person’s compliance with section 22B in relation to the eligible financial year; and

                     (c)  arrange for the audit team leader to give the person a written report setting out the results of the audit; and

                     (d)  give the Regulator a copy of the audit report:

                              (i)  on the day on which the section 22A report is provided to the Regulator; and

                             (ii)  in the manner specified in the regulations.

Civil penalty:

                     (a)  for an individual—200 penalty units; or

                     (b)  otherwise—1,000 penalty units.

Note:          Under section 30, a person may be liable for an additional civil penalty for each day after the day mentioned in paragraph (d) for which the person fails to provide an audit report in accordance with this section.

             (3)  The regulations may specify:

                     (a)  the type of audit to be carried out; and

                     (b)  the matters to be covered by the audit; and

                     (c)  the form of the audit report and the kinds of details it is to contain.

             (4)  The person must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

74B  Audits of certain entities—compliance

             (1)  For the purposes of this section, a person is a relevant person if:

                     (a)  the following subparagraphs apply:

                              (i)  the person is a non‑group entity;

                             (ii)  the Regulator has reasonable grounds to suspect that the person has contravened, is contravening, or is proposing to contravene, this Act or the regulations; or

                     (b)  the following subparagraphs apply:

                              (i)  the person is the responsible member mentioned in subsection 22X(1);

                             (ii)  the person is not a registered corporation;

                            (iii)  the Regulator has reasonable grounds to suspect that the person has contravened, is contravening, or is proposing to contravene, this Act or the regulations.

             (2)  The Regulator may, by written notice given to a relevant person, require the relevant person to:

                     (a)  appoint as an audit team leader:

                              (i)  a registered greenhouse and energy auditor of the relevant person’s choice; or

                             (ii)  if the Regulator specifies a registered greenhouse and energy auditor in the notice—that auditor; or

                            (iii)  if the Regulator specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and

                     (b)  arrange for the audit team leader to carry out an audit on one or more aspects of the relevant person’s compliance with this Act or the regulations; and

                     (c)  arrange for the audit team leader to give the relevant person a written report setting out the results of the audit; and

                     (d)  give the Regulator a copy of the audit report on or before the day specified in the notice.

             (3)  The notice must specify:

                     (a)  the type of audit to be carried out; and

                     (b)  the matters to be covered by the audit; and

                     (c)  the form of the audit report and the kinds of details it is to contain.

             (4)  The relevant person must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

             (5)  If the Regulator gives the relevant person written notice under subsection (2), the relevant person must comply with the requirements of the notice.

Civil penalty:

                     (a)  for an individual—200 penalty units; or

                     (b)  otherwise—1,000 penalty units.

Note:          Under section 30, a relevant person may be liable for an additional civil penalty for each day after the day mentioned in paragraph (2)(d) for which the relevant person fails to provide an audit report in accordance with this section.

74C  Audits of certain entities—other

             (1)  For the purposes of this section, a person is a relevant person if:

                     (a)  the person is a non‑group entity; or

                     (b)  the person:

                              (i)  is the responsible member mentioned in subsection 22X(1); and

                             (ii)  is not a registered corporation.

             (2)  The Regulator may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of a relevant person’s compliance with one or more aspects of this Act or the regulations.

             (3)  The Regulator must give written notice to the relevant person of a decision to appoint an audit team leader under subsection (2). The notice must:

                     (a)  specify the audit team leader; and

                     (b)  specify the period within which the audit is to be undertaken; and

                     (c)  specify the type of audit to be carried out; and

                     (d)  specify the matters to be covered by the audit; and

                     (e)  be given to the relevant person at a reasonable time before the audit is to be undertaken.

             (4)  The relevant person must provide the audit team leader and any audit team members with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:

                     (a)  for an individual—50 penalty units; or

                     (b)  otherwise—250 penalty units.

             (5)  If a relevant person is given a notice under subsection (3), the relevant person must arrange for the audit team leader to carry out the audit.

Civil penalty:

                     (a)  for an individual—200 penalty units; or

                     (b)  otherwise—1,000 penalty units.

415  Subsection 75A(7)

Omit “signed”, substitute “written”.

415A  After section 76

Insert:

76A  Periodic reviews of operation of this Act etc.

             (1)  The Climate Change Authority must conduct reviews of the operation of:

                     (a)  this Act; and

                     (b)  legislative instruments under this Act.

Public consultation

             (2)  A review under subsection (1) must make provision for public consultation.

Report

             (3)  The Climate Change Authority must:

                     (a)  give the Minister a report of the review; and

                     (b)  as soon as practicable after giving the report to the Minister, publish the report on the Climate Change Authority’s website.

             (4)  The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sitting days of that House after the review is completed.

First review

             (5)  The first review under subsection (1) must be completed during the period:

                     (a)  beginning at the start of 30 June 2016; and

                     (b)  ending at the end of 31 December 2018.

Subsequent reviews

             (6)  Each subsequent review under subsection (1) must be completed within 5 years after the deadline for completion of the previous review.

             (7)  For the purposes of subsections (4), (5) and (6), a review is completed when the report of the review is given to the Minister under subsection (3).

Recommendations

             (8)  A report of a review under subsection (1) may set out recommendations to the Commonwealth Government.

             (9)  In formulating a recommendation that the Commonwealth Government should take particular action, the Climate Change Authority must analyse the costs and benefits of that action.

           (10)  Subsection (9) does not prevent the Climate Change Authority from taking other matters into account in formulating a recommendation.

           (11)  If a report of a review under subsection (1) sets out one or more recommendations to the Commonwealth Government, the report must set out the Climate Change Authority’s reasons for those recommendations.

Government response to recommendations

           (12)  If a report of a review under subsection (1) sets out one or more recommendations to the Commonwealth Government:

                     (a)  as soon as practicable after receiving the report, the Minister must cause to be prepared a statement setting out the Commonwealth Government’s response to each of the recommendations; and

                     (b)  within 6 months after receiving the report, the Minister must cause copies of the statement to be tabled in each House of the Parliament.

           (13)  The Commonwealth Government’s response to the recommendations may have regard to the views of the following:

                     (a)  the Climate Change Authority;

                     (b)  the Regulator;

                     (c)  such other persons as the Minister considers relevant.

76B  Special reviews of operation of this Act etc.

Scope

             (1)  This section applies if:

                     (a)  the Minister, by written instrument given to the Chair of the Climate Change Authority, requests the Climate Change Authority to conduct a review under this section of such matters as are specified in the instrument; and

                     (b)  the matters specified in the instrument are covered by subsection (4).

Review

             (2)  The Climate Change Authority must conduct a review of those matters.

Consultation

             (3)  In conducting a review, the Climate Change Authority must make provision for public consultation.

Covered matters

             (4)  This subsection covers the operation of:

                     (a)  this Act; and

                     (b)  legislative instruments under this Act.

Report

             (5)  The Climate Change Authority must:

                     (a)  give the Minister a report of the review; and

                     (b)  as soon as practicable after giving the report to the Minister, publish the report on the Climate Change Authority’s website.

             (6)  The Minister must cause copies of a report under subsection (5) to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

Recommendations

             (7)  A report of a review under subsection (2) may set out recommendations to the Commonwealth Government.

             (8)  In formulating a recommendation that the Commonwealth Government should take particular action, the Climate Change Authority must analyse the costs and benefits of that action.

             (9)  Subsection (8) does not prevent the Climate Change Authority from taking other matters into account in formulating a recommendation.

           (10)  If a report of a review under subsection (2) sets out one or more recommendations to the Commonwealth Government, the report must set out the Climate Change Authority’s reasons for those recommendations.

Government response to recommendations

           (11)  If a report of a review under subsection (2) sets out one or more recommendations to the Commonwealth Government:

                     (a)  as soon as practicable after receiving the report, the Minister must cause to be prepared a statement setting out the Commonwealth Government’s response to each of the recommendations; and

                     (b)  within 6 months after receiving the report, the Minister must cause copies of the statement to be tabled in each House of the Parliament.

           (12)  The Commonwealth Government’s response to the recommendations may have regard to the views of the following:

                     (a)  the Climate Change Authority;

                     (b)  the Regulator;

                     (c)  such other persons as the Minister considers relevant.

As at 2 April 2012 the amendments are not incorporated in this compilation.


Table A

Application, saving or transitional provisions

National Greenhouse and Energy Reporting Amendment Act 2008
(No. 84, 2008)

Schedule 1

35  Application and saving provision

(1)       The amendment made by item 4 does not affect the validity of an application made under subsection 12(1) of the National Greenhouse and Energy Reporting Act 2007 before the commencement of that item.

(2)       The amendments made by items 8 to 10 and 12 apply in relation to applications for registration made on or after the commencement of those items.

(3)       The amendment made by item 13 applies in relation to applications for registration made on or after the commencement of that item.

(4)       The amendment made by item 13 does not affect the validity of a registration made under subsection 17(1) of the National Greenhouse and Energy Reporting Act 2007 before the commencement of that item.

(5)       The amendments made by items 15 and 21 apply in relation to the use of methods that occurs after the conditions concerned take effect.

 

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

Schedule 3

10  Saving—appointments

The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.

11  Transitional regulations

The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.

 

Carbon Credits (Consequential Amendments) Act 2011 (No. 102, 2011)

Schedule 1

19  Transitional—section 75 of the National Greenhouse and Energy Reporting Act 2007

(1)       This item applies to a determination if:

                     (a)  the determination was made for the purpose of section 75 of the National Greenhouse and Energy Reporting Act 2007; and

                     (b)  the determination was in force immediately before the commencement of this item.

(2)       The determination has effect, after the commencement of this item, as if it had been made under section 75 of the National Greenhouse and Energy Reporting Act 2007 as amended by this Act.

 

Clean Energy (Consequential Amendments) Act 2011 (No. 132, 2011)

Schedule 1

214  Transitional—acts of the Greenhouse and Energy Data Officer to be attributed to the Clean Energy Regulator

(1)       This item applies to anything done by, or in relation to, the Greenhouse and Energy Data Officer under the National Greenhouse and Energy Reporting Act 2007, or under regulations under that Act, before the commencement of this item.

(2)       The National Greenhouse and Energy Reporting Act 2007 and those regulations have effect, after that commencement, as if the thing had been done by, or in relation to, the Clean Energy Regulator.

219  Transitional—secrecy of information obtained under the National Greenhouse and Energy Reporting Act 2007

Despite the amendments of section 23 of the National Greenhouse and Energy Reporting Act 2007 made by this Part, that section continues to apply, in relation to information obtained before the commencement of this item, as if those amendments had not been made.

The following provisions commence on 1 July 2012:

Schedule 1

452  Application—registration and reports under the National Greenhouse and Energy Reporting Act 2007

(1)       Despite the repeal of section 18 of the National Greenhouse and Energy Reporting Act 2007 by this Part, that section continues to apply after the commencement of this item, in relation to an application for deregistration that was made before the commencement of this item, as if that repeal had not happened.

(2)       Despite the amendment of paragraph 56(b) of the National Greenhouse and Energy Reporting Act 2007 made by this Part, that paragraph continues to apply after the commencement of this item, in relation to a decision under section 18 of that Act, as if that amendment had not been made.

(3)       The amendments of the National Greenhouse and Energy Reporting Act 2007 made by this Part, in so far as they are relevant to determining whether a controlling corporation’s group meets a threshold under section 13 of that Act for a financial year, apply in relation to a threshold for:

                     (a)  the financial year beginning on 1 July 2012; or

                     (b)  a later financial year.

(4)       The amendments of the National Greenhouse and Energy Reporting Act 2007 made by this Part, in so far as they relate to reports under section 19 of that Act, apply in relation to reports for:

                     (a)  the financial year beginning on 1 July 2012; or

                     (b)  a later financial year.

(5)       The amendments of the National Greenhouse and Energy Reporting Act 2007 made by this Part, in so far as they relate to reports under section 22G of that Act, apply in relation to reports for:

                     (a)  the financial year beginning on 1 July 2012; or

                     (b)  a later financial year.

453  Application—civil penalty orders under the National Greenhouse and Energy Reporting Act 2007

The amendments of section 31 of the National Greenhouse and Energy Reporting Act 2007 made by this Part apply in relation to proceedings instituted after the commencement of this item.

454  Application—liability of executive officers under the National Greenhouse and Energy Reporting Act 2007

The amendments of sections 47 and 48 of the National Greenhouse and Energy Reporting Act 2007 made by this Part apply in relation to a contravention of a civil penalty provision that occurs after the commencement of this item.

455  Transitional—continuation of Register

The National Greenhouse and Energy Register maintained under section 16 of the National Greenhouse and Energy Reporting Act 2007 after the commencement of this item is, for all purposes, a continuation of the Register kept under section 16 of that Act immediately before the commencement of this item.