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SR 2004 No. 380 Regulations as made
These Regulations amend the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995.
Administered by: Environment, Water, Heritage and the Arts
Registered 10 Jan 2005
Tabling HistoryDate
Tabled HR08-Feb-2005
Tabled Senate08-Feb-2005
Gazetted 23 Dec 2004
Date of repeal 19 Mar 2014
Repealed by Environment (Spent and Redundant Instruments) Repeal Regulation 2014

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 2) 2004 No. 380

EXPLANATORY STATEMENT

STATUTORY RULES 2004 No. 380

ISSUED BY THE AUTHORITY OF THE
MINISTER FOR THE ENVIRONMENT AND HERITAGE

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 2)

Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Subsection 45A (1) of the Act provides in part that regulations may be made that:

•       regulate the sale, purchase, acquisition or disposal of scheduled substances;

•       regulate the storage, use or handling of scheduled substances; and

•       confer functions on persons or bodies in relation to these matters.

The purpose of the Regulations is to:

•       minimise avoidable emissions of ozone depleting substances (ODS) and synthetic greenhouse gases (SGG) used as refrigerants in the refrigeration and air-conditioning industry through implementing a licensing scheme for people handling these substances; implement a system authorisations which would be required by people to buy and sell ODS and SGG used in the refrigeration and air-conditioning industry; and

•       establish a co-regulatory approach to the administration of the licensing and authorisation requirements by providing for the licensing and authorisation system to be administered by an industry board.

The Regulations will assist in developing a comprehensive scheme for the management of ODS and SGG in Australia which will replace existing State and Territory licensing and authorisation schemes with one national system.

The Regulations implement recommendations arising from the Review of the Commonwealth's Ozone Protection Legislation in 2001.

Details of the Regulations are in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations commence on 1 January 2005.

Attachment

Details of the proposed Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 2).

Regulation 1

Provides that the Regulations are to be known as the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 2).

Regulation 2

Provides that the Regulations commence on 1 January 2005.

Regulation 3

Provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) are amended as set out in Schedule 1.

Schedule 1

Item 1 inserts a new Part 6A of the Principal Regulations, entitled "Disposal and use of scheduled substances". The Regulations insert two new Divisions. Division 6A.1, entitled "Preliminary", describes the purposes of Part 6A and consists of regulation 100 and 101. Division 6A.2, entitled "Refrigeration and air conditioning", prescribes regulations for the refrigeration and air conditioning industry and consists of regulations 110 - 114, 120 - 127, 130 - 137, 140 - 142 and 150.

Regulation 100 describes the purposes of the regulations under Part 6A. This regulation notes that the purposes of the regulations under Part 6A is to impose controls on the sale, purchase, acquisition, disposal, storage, use and handling of scheduled substances that are used for refrigeration and air-conditioning and fire protection.

Regulation 101 defines ANTA-recognised qualification. For the purposes of regulations under Part 6A, this means a qualification that is recognised by the Australian National Training Authority established under section 5 of the Australian National Training Authority Act 1992.

Subdivision 6A.2.1       Preliminary

Regulation 110 contains definitions to be used in interpreting Part 6A. The regulation provides that:

halon special permit means a permit granted under the proposed new regulation 150;

RAC Industry Board means the body appointed under paragraph 120 (1) (a);

RAC industry permit means a refrigerant handling licence, a refrigerant trading authorisation, a RAC equipment manufacturing authorisation or a halon special permit;

RAC equipment (or refrigeration and air conditioning equipment) means all equipment that is used for the heating or cooling of air, or some other medium, that uses a refrigerant. This definition includes, but is not limited to, refrigerators, air conditioners, vehicle air conditioners and heat pumps;

RAC equipment manufacturing authorisation means an authorisation granted under paragraph 140 (1) (b);

refrigerant means either a chlorofluorocarbon (CFC), a hydrochlorofluorocarbon (HCFC), a hydrofluorocarbon (HFC), a perfluorocarbons (PFCs) or halon that is, or has previously been, used in refrigeration and air conditioning equipment. While other substances may be used as refrigerants, these regulations will minimise the emissions of these particular substances when used as refrigerants;

refrigerant destruction facility means a facility that is approved by the Minister under regulation 114;

refrigerant handling licence means a licence granted under Subdivision 6A.2.2;

refrigerant trading authorisation means an authorisation granted under paragraph 140 (1) (a);

Subregulation 111 (1) makes it an offence to handle a refrigerant without a licence. This subregulation provides that from 1 July 2005, a person must not handle a refrigerant unless the person holds a refrigerant handling licence, or the person is engaged in manufacturing RAC equipment and is being supervised by a person holding a restricted licence granted under regulation 133. The penalty for breaching this subregulation is ten penalty units. One penalty unit is $110 under the Crimes Act 1914.

Subregulation 111 (2) provides that for subregulation 111 (1) handle a refrigerant means doing anything with a refrigerant that carries a risk of the refrigerant being emitted to atmosphere. The regulation expressly includes activities such as decanting the refrigerant; manufacturing, installing or maintaining RAC equipment; or decommissioning or disposing of RAC equipment. This list of activities is not exhaustive, and other activities that carry a risk of the emission of refrigerant are also covered by this subregulation.

Regulation 112 makes it an offence for a person to trade in bulk refrigerant unless the person holds a refrigerant trading authorisation.

Subregulation 112 (1) defines bulk refrigerant for regulation 112 as not including refrigerant contained within equipment.

Subregulation 112 (2) provides that on or after 1 July 2005 that a person must not acquire, possess or dispose of bulk refrigerant unless the person holds a refrigerant trading authorisation or a RAC equipment manufacturing authorisation, or is the operator of a refrigerant destruction facility.

Subregulation 112 (3) prescribes defences to a charge of acquiring, possessing or disposing of refrigerant. A person is not guilty of acquiring, possessing or disposing of refrigerant if the person is the holder of a refrigerant trading authorisation (issued under paragraph 140 (1) (a) or the operator of a refrigerant destruction facility (authorised under regulation 114).

Subregulation 112 (4) provides that the offence in subregulation 112 (2) is a strict liability offence.

Regulation 113 creates an offence on or after 1 January 2005 for a person to possess halon for use in RAC equipment unless the person is a holder of a halon special permit or the operator of a refrigerant destruction facility (authorised under regulation 114).

Under subregulation 113 (2) it is a defence to a charge of possessing halon that is, or has been, for use in RAC equipment if, under paragraph 113 (2) (b), the person gives the halon to the operator of a refrigerant destruction facility as soon as practicable after becoming aware that he or she possessed halon. Paragraph 113 (2) (a) provides that a person is not guilty of possessing halon if the person acquired the halon for transfer to an extinguishing agent destruction facility. Extinguishing agent destructions facilities will be defined under regulations that are proposed to be developed for the fire protection industry under a separate division of these regulations.

Subregulation 113 (3) provides that the offence in subregulation 113 (1) is a strict liability offence.

Regulation 114 permits the Minister to give approval for a person to operate a refrigerant destruction facility. Subregulation 114 (2) prescribes the information that must be provided to the Minister for the Minister to decide whether to approve the refrigerant destruction facility.

Subregu1ation 114 (3) provides that Minister may only approve a refrigerant destruction facility if the facility can operate in accordance with Australia's obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol specifies minimum levels of destruction efficiency for the equipment to be considered an approved destruction technology.

Subdivision 6A.2.1A RAC industry permits

Regulation 120 provides that the Minister may appoint an incorporated body as a RAC Industry Board. Subregulation 120 (2) prescribes the functions of the industry board. The subregulation would provide that an appointed RAC Industry Board may:

•       receive applications for RAC industry permits; and

•       collect RAC industry permit application fees on behalf of the Commonwealth; and

•       grant RAC industry permits; and

•       publish information collected from applicants in a way that does not identify any person or disclose confidential information; and

•       collect information from applicants for industry permits; and

•       inspect premises used for activities conducted under a RAC industry permit.

Regulation 121 prescribes that an application for a RAC industry permit must be submitted to the RAC Industry Board:

•       on the form approved by the Minister; and

•       include the appropriate fee as prescribed by regulation 130; and

•       include the information that is needed by the industry board to decide whether to grant the application. This includes details of the applicant's training and experience and evidence that the applicant is a fit and proper person to be granted a RAC industry permit.

Under subregulation 121 (2) the RAC Industry Board may request any further information from the applicant that is necessary for the industry board to decide whether to grant an industry permit. Under this subregulation, the industry board may refuse to consider an application until the applicant provides any additional information.

Subregulation 121 (3) provides that where a decision has not been made by the industry board within 30 days of the industry board receiving all necessary information, then the application is considered to have been refused.

Regulation 122 provides that the RAC Industry Board must consider whether a person is a fit and proper to hold a RAC industry permit. Paragraphs (a) to (f) detail the issues that must be considered by the industry board in determining whether a person is fit and proper to hold a licence.

Regulation 123 permits the Minister to cancel or suspend an RAC industry permit if the Minister is satisfied that the holder of the permit is no longer a fit and proper person to be holding a permit or that the permit holder has breached a condition of their licence.

Under subregulation 123 (2), if the Minister decides to cancel or suspend an RAC industry permit, then the Minister must notify the permit holder that the licence has been cancelled or suspended and set out the reasons for the cancellation or suspension. If the Minister suspends the permit, then the proposed paragraph 123 (2) (c) provides that the Minister must notify the permit holder of the period of the suspension.

Paragraph 124 (1) (a) provides for reconsideration by the industry board of:

•       a decision refusing to issue an industry permit; or

•       a decision regarding the period that the permit is in force; or

•       a decision to impose a condition on the permit.

Under paragraph 124 (1) (b), an applicant may also apply to the Minister for reconsideration of a decision by the Minister to cancel or suspend an RAC industry permit.

Subregulation 124 (2) provides that an application for reconsideration of a decision must be made within 21 days of the person being notified of the decision and must give reasons why the person wants the decision to be reconsidered.

Subregulation 124 (3) provides that the industry board or the Minister may confirm, vary or reverse their previous decision. Under subregulation 124 (4) if the industry board or the Minister does not confirm vary or reverse a decision within 30 days, then the industry board or the Minister is taken to have confirmed the decision.

Regulation 125 provides that a person may apply to the Administrative Appeals Tribunal for a review of a decision. The regulation provides that an application to the Administrative Appeals Tribunal may only be made after an initial review by the RAC Industry Board or the Minister has been sought.

Regulation 126 provides that any RAC industry permit is not in force during any period of suspension.

Regulation 127 prescribes the powers of inspectors appointed under section 49 of the Act with respect to these regulations. The regulation provides that an inspector may use the existing powers granted under section 49 at premises that are used by an industry permit holder for activities permitted by the permit, or for storing records relating to activities permitted by the permit.

Subdivision 6A.2.2        Refrigerant handling licences

Regulation 130 specifies the application fee payable for the grant of a refrigerant handling licence as well as the length of time that a licence will remain in force. When the RAC Industry Board issues a licence, it must specify in writing the period that the licence is to remain in force, which must not exceed 24 months. If a licence is issued by the industry board under regulation 132 or 134, then the licence period must not exceed 12 months.

Under this regulation:

•       an application fee of $50 must accompany all licence applications for periods of less than 12 months;

•       an application fee of $1 00 must accompany all licence applications for periods longer than 12 months but less than 24 months; and

•       an application fee of $20 must accompany all licence applications for a trainee licence.

Under subregulation 130 (1), a person may apply for more than one class of licence at the same time. The effect of this subregulation is that where a person applies for more than one class of licence only one application fee is required.

Subregulation 130 (4) provides that the RAC Industry Board must provide the applicant with a document detailing each class of licence that the applicant holds.

Subregulation 131 (1) provides that the RAC Industry Board may issue licences to applicants entitling them to engage in the work described in column 3 of Table 131.

Subregulation 131 (2) provides that a person who holds a relevant ANTA-recognised qualification may be granted a refrigerant handling licence. The relevant ANTA-recognised qualifications are listed in column 4 of Table 131.

Paragraph 131 (2) (b) also provides that if a person has the skills, knowledge and experience necessary to competently carry out the work covered by a licence, then that person may also be granted the corresponding refrigerant handling licence.

Regulation 123 provides that the RAC Industry Board may grant a temporary refrigerant handling licence to a person where that person requires additional training for them to be able to indefinitely work in the RAC industry. To be eligible for a licence under this regulation a person must apply before 1 June 2005 and the industry board needs to be satisfied that the applicant has previously engaged in, or supervised, work of that kind.

Subregulation 132 (2) provides that licences granted under regulation 132 cease on 1 June 2006.

Regulation 133 provides that the RAC Industry Board may grant a restricted refrigeration and air conditioning licence. A restricted refrigeration and air-conditioning licence granted under this regulation allows a person to work at a particular place and/or on specified RAC equipment. This type of licence is granted where the work to be covered by the licence requires skills or knowledge that is outside the scope of that required for a licence mentioned in Table 131. Under paragraph 133 (e) the person must demonstrate that he or she is able to carry out the work appropriately.

Regulation 134 permits the RAC Industry Board to grant a refrigeration and air conditioning trainee licence to a person that is undertaking one of the courses listed in column 4 of items 1 or 2 of Table 131. The holder of a licence issued under this proposed new regulation would only be permitted to handle refrigerant while under the supervision of a licenced technician.

Regulation 135 specifies the licence conditions that attach to all refrigerant handling licences. Under paragraph 135 (1) (a), it is a condition of a licence that the holder carries out all work that the licence relates to in accordance with the standards that are specified in Table 135. Table 135 lists the standards that licence holders must comply with.

Under paragraph 135 (1) (b), it is a condition of a licence that a person who holds a refrigerant handling licence gives any refrigerant recovered from RAC equipment to the holder of a refrigerant trading authorisation (under paragraph 135 (1) (b) (i)) or if the refrigerant is halon, then to the operator of a refrigerant destruction facility (under paragraph 135 (1) (b) (ii) ).

Subregulation 135 (2) provides that the RAC Industry Board may specify additional conditions for licences. This subregulation provides that any additional conditions must be set out on either the document that provides evidence of the licence or in a written notice given by the industry board to the licensee.

Subregulation 135 (3) provides that the RAC Industry Board may impose licence conditions at any time.

Subregulation 135 (4) provides that a licensee must not contravene a condition of his or her licence.

Regulation 136 specifies transitional arrangements for holders of authorisations issued by a State or Territory authority to handle refrigerant or to work on refrigeration and air-conditioning equipment. This regulation provides that a person who holds an authorisation as specified in columns 1 and 2 of Table 136 is taken to hold the licence listed in column 3 of that table.

Under this regulation, State and Territory authorisations will continue to be recognised until the day on which the existing State or Territory authorisation expires, or 1 January 2007, whichever occurs first.

Regulation 137 specifies transitional arrangements for holders of certifications issued by the National Refrigeration and Air Conditioning Council to handle refrigerant or to work on refrigeration and air conditioning equipment. The regulation provides that a person who holds a certification specified in column 2 of Table 137 is taken to hold the licence listed in column 3 of that table.

Under this regulation, National Refrigeration and Air Conditioning Council certifications will continue to be recognised until the day on which the existing State or Territory authorisation expires, or 1 January 2007, whichever occurs first.

Subdivision 6A.2.3       Refrigerant trading and RAC equipment manufacturing authorisations

Subregulation 140 (1) provides that the RAC Industry Board may grant refrigerant trading authorisations and RAC equipment manufacturing authorisations. A refrigerant trading authorisation issued under this subregulation permits a person or organisations to acquire, store and dispose (including buy and sell) a refrigerant gas other than halon. A RAC equipment manufacturing authorisation issued under this subregulation permits a person or organisation to acquire refrigerant, other than halon, for use in the manufacture of RAC equipment.

Subregulation 140 (2) provides that the application fee for either a refrigerant trading authorisation, a RAC equipment manufacturing authorisation, or both, is $320 if it is granted for between 12 months and 24 months and $160 if it is granted for 12 months or less.

Subregulation 140 (3) provides that the RAC Industry Board is not be able to issue an authorisation unless it is satisfied:

•       that the applicant's business premises is appropriately equipped to handle refrigerant and to prevent avoidable emissions of refrigerant;

•       if the application is for a refrigerant trading authorisation, that the applicant is able to ensure that only licensed technicians will handle the refrigerant; and

•       if the application is for a RAC equipment manufacturing authorisation, that the applicant is able to ensure that people involved in manufacturing equipment that could result in emission of refrigerant would be supervised by an appropriately licensed person.

Subregulation 140 (4) provides that the RAC Industry Board may grant an authorisation to a person or organisation that applies before 1 June 2005 provided that the person carried out work of that kind during the three months immediately before applying for the application.

Subregulation 140 (5) provides that authorisations are in force from the day on which they are granted, or on some other day specified by the RAC Industry Board in writing. This subregulation also provides that an authorisation is in force for no longer than 24 months, however, if the authorisation is issued under subregulation 140 (4), then the authorisation is in force for no longer than 12 months. The industry board, under subregulation 140 (6), is required to specify details of the authorisation writing.

Subregulation 141 (1) specifies the conditions that are applicable to all authorisations. The conditions include that the holder of an authorisation must:

•       keep records on the amount of refrigerant bought, sold and recovered during each quarter;

•       provide those records to the RAC Industry Board within 14 days of a request being made by the Board;

•       have the equipment appropriate for the holders activities, including at least one leak detector, vacuum pump and recovery unit;

•       check refrigerant containers for leaks;

•       implement a risk management plan for the premises;

•       ensure that containers filled by the holder meets the appropriate standard;

•       ensure that refrigerant is handles in accordance with the standards listed in the proposed Table 135; and

•       ensure that refrigerant destruction is only conducted by the operator of a refrigerant destruction facility.

Subregulation 141 (2) also requires that the holder of a refrigerant trading authorisation accept any surrendered refrigerant or scheduled substance that appears to be intended for use, in RAC equipment.

Subregulation 141 (3) permits the RAC Industry Board to specify additional conditions on authorisations provided that they are written on the authorisation or notified to the authorisation holder separately in writing. Subregulation 141 (4) provides that where there the industry board provides a notice other than on the authorisation, then that notice can be given at any time.

Regulation 142 specifies transitional arrangements for holders of authorisations issued by a State or Territory that permit a person to buy or sell either an ozone depleting or synthetic greenhouse gas refrigerant. This regulation provides that a person that holds such an authorisation would have that authorisation recognised by these regulations until either the State or Territory authorisation expires, or 1 January 2007, whichever is the earlier.

Table 142 lists the State and Territory authorisations that are recognised. Column 3 of the table lists the title of a State and Territory authorisation and column 2 of the table lists the State or Territory legislative authority under which the authorisation is given.

Subdivision 6A.2.4       Halon special permit

Subregulation 150 (1) specifies that the RAC Industry Board may grant a person a halon special permit that entitles the person to use halon as a refrigerant. Under subregulation 150 (2), an application fee for a halon special permit would be $200.

Subregulation 150 (3) provides that the RAC Industry Board may only issue a halon special permit if it is satisfied that:

•       the applicant is able to competently carry out the activities covered by the permit;

•       the use of the halon would be for a purpose that is necessary to protect human life or operate equipment that is critical to the community; and

•       there is no practical and safe alternative available at reasonable cost that is likely to result in less damage to the environment.

Subregulation 150 (4) provides that halon special permits granted under this section remain in force for 24 months.