Part 1—Preliminary
1 Name of Regulations
These Regulations are the Renewable Energy (Electricity) Regulations 2001.
3 Definitions
(1) In these Regulations:
accredited body means a body accredited under the Joint Accreditation System of Australia and New Zealand to give product certification or component certification of solar water heaters.
Act means the Renewable Energy (Electricity) Act 2000.
AS, AS/NZS or Australian Standard followed by a number (for example, AS/NZS 3000:2007) means a standard of that number issued by Standards Australia Limited and, if a date is included, of that date.
auxiliary loss has the meaning given in regulation 3B.
bioenergy means the energy derived from the biomass components of an energy source mentioned in any of paragraphs (i) to (s) of the definition of eligible renewable energy source in subsection 17(1) of the Act.
biomass means organic matter other than fossilised biomass.
Examples of fossilised biomass: Coal, lignite.
business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or a bank holiday in the Australian Capital Territory.
Clean Energy Council means Clean Energy Council Limited, ACN 127 102 443.
cogeneration means a power generation process that provides electricity and process heat as outputs.
commercial meter means a meter that is used to record the consumption of electricity for the purposes of a financial transaction between unrelated parties in relation to the consumption of electricity.
component certification, of a solar water heater, means certification by an accredited body in relation to specified components of the solar water heater.
digital identity of an individual means a distinct electronic representation of the individual that enables the individual to be sufficiently distinguished when interacting online with services.
document verification service means the service known as the Australian Government Document Verification Service, or that service continuing in existence with a different name.
identity evidence, for a person: see subregulation 20Q(1).
identity service provider means an accredited participant in the system known as the Australian Government Digital Identity System, or that system continuing in existence with a different name, that provides a service that generates, manages, maintains or verifies information relating to the identity of an individual.
interconnected hydro‑electric system means a hydro‑electric system in which water can be directed from a common storage down different watercourses so that water can be diverted from 1 power station to another, altering the amount of electricity that can be generated by each power station.
Jobs and Competitiveness Program means the Jobs and Competitiveness Program that was in force under the Clean Energy Act 2011 immediately before the repeal of that Act by item 1 of Schedule 1 to the Clean Energy Legislation (Carbon Tax Repeal) Act 2014.
national electricity market means the interconnected electricity grids in the participating jurisdictions in the National Electricity Rules.
National Electricity (NT) Rules has the same meaning as in the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015 (NT), as in force from time to time.
native forest means a local indigenous plant community:
(a) the dominant species of which are trees; and
(b) containing throughout its growth the complement of native species and habitats normally associated with that forest type or having the potential to develop those characteristics; and
(c) including a forest with those characteristics that has been regenerated with human assistance following disturbance; and
(d) excluding a plantation of native species or previously logged native forest that has been regenerated with non‑endemic native species.
NEM standard metering means the standard of metering mentioned in the National Electricity Rules.
network control ancillary services, for a power station, has the same meaning as in the National Electricity Rules.
NTESMO has the same meaning as in the National Electricity (NT) Rules.
Note: See item 99A of Schedule 2 to the National Electricity (Northern Territory) (National Uniform Legislation) (Modification) Regulations 2016 (NT), as in force from time to time.
plantation means an intensively managed stand of trees of native or exotic species, created by the regular placement of seedlings or seed.
product certification, of a solar water heater, means certification by an accredited body in relation to the design and manufacture of the solar water heater.
quarter means a period of 3 months commencing on 1 January, 1 April, 1 July or 1 October of a year.
regional forest agreement means a Regional Forest Agreement within the meaning of the Regional Forest Agreements Act 2002.
registered for GST means registered under the A New Tax System (Goods and Services Tax) Act 1999.
Register of solar water heaters means the Register of solar water heaters kept by the Regulator under regulation 19C.
required to be registered for GST means required to be registered under the A New Tax System (Goods and Services Tax) Act 1999.
territorial sea has the meaning given by section 3 of the Seas and Submerged Lands Act 1973.
thinnings means the selective removal of trees and branches from a forest during the growing stage and at harvest.
true‑up report means a true‑up report that is required to be given to the Regulator under section 5 of the Clean Energy Legislation (Carbon Tax Repeal) (Jobs and Competitiveness Program) Rules 2014.
(2) For the definition of small generation unit in subsection 5(1) of the Act:
(a) a device whose energy source is hydro is a small generation unit if:
(i) it has a kW rating of no more than 6.4 kW; and
(ii) it generates no more than 25 MWh of electricity each year; and
(b) a device whose energy source is wind is a small generation unit if:
(i) it has a kW rating of no more than 10 kW; and
(ii) it generates no more than 25 MWh of electricity each year; and
(c) a device whose energy source is solar (photovoltaic) is a small generation unit if:
(i) it has a kW rating of no more than 100 kW; and
(ii) it generates no more than 250 MWh of electricity each year.
(2A) Without limiting paragraph (2)(c), 2 or more systems whose energy source is solar (photovoltaic) are taken to be a device for the purposes of that paragraph if any of the following apply:
(a) the systems are connected to a grid at one or more connection points and not installed behind a commercial meter subsidiary to any of the connection points;
(b) both:
(i) the systems are connected to a grid at one or more connection points and installed behind a single commercial meter subsidiary to one or more of the connection points; and
(ii) there is no connection subsidiary to the commercial meter that allows electricity to flow between the commercial meter and any other commercial meter or to another connection point;
(c) both:
(i) the systems are connected to a grid at one or more connection points and installed behind more than one commercial meter subsidiary to one or more of the connection points; and
(ii) a connection subsidiary to the commercial meters allows electricity to flow between the commercial meters but not between any other commercial meter or to any other connection point;
(d) at least 3 of the following apply:
(i) the systems are located at a single site or multiple adjoining sites in the same area;
(ii) the systems are installed for the primary purpose of generating electricity for export to a grid;
(iii) electrical infrastructure (other than metering equipment) is needed to connect the systems to a grid;
(iv) more than 50% of the total kW rating of all systems is from ground mounted systems.
3A Conditions for solar water heater
(1) For the definition of solar water heater in subsection 5(1) of the Act, a device that heats water using solar energy is a solar water heater during the period specified in the Register for the device if the device:
(a) is entered in the Register of solar water heaters; and
(b) satisfies subregulation (2) or (3).
Note: Certificates cannot be created for a solar water heater that is an air source heat pump water heater if it has a volumetric capacity of more than 425 L—see subsection 21(4) of the Act.
(1A) However, a device is not a solar water heater if the number of certificates that could be created over a 10‑year period for the installation of the device in any one or more of the zones, worked out in accordance with the method mentioned in subregulation 19B(1) or 19BA(3), would be more than 2,500, unless the device was entered into the Register of solar water heaters before 1 December 2018.
Solar water heaters—capacity not more than 700 L
(2) A device satisfies this subregulation if:
(a) the device has a capacity of not more than 700 L; and
(b) an accredited body has given the device product certification to AS/NZS 2712:2007, Solar and heat pump water heaters—Design and construction, as in force at the time the certification is given.
Solar water heaters—capacity more than 700 L
(3) A device satisfies this subregulation if:
(a) the device has a capacity of more than 700 L; and
(b) an accredited body has given the device component certification to each of the following Australian Standards that applies to the device:
(i) AS/NZS 2712:2007 Solar and heat pump water heaters—Design and construction, as in force at the time the certification is given;
(ii) the Australian Standards mentioned in clause 1.4 of AS/NZS 2712:2007 Solar and heat pump water heaters—Design and construction, as in force at the time the certification is given; and
(c) the storage tank of the device meets the requirements of:
(i) both:
(A) AS/NZS 4692.1:2005, Electric water heaters, Part 1: Energy consumption, performance and general requirements, as in force at the time the certification mentioned in paragraph (b) is given; and
(B) AS/NZS 4692.2:2005, Electric water heaters, Part 2: Minimum Energy Performance Standard (MEPS) requirements and energy labelling, as in force at the time the certification mentioned in paragraph (b) is given; or
(ii) the document called Heat Loss Test Procedure for Solar Water Heaters with a Hot Water Storage Tank Greater than 700 L, first published by the Regulator on 29 May 2003, as in force at the time the certification mentioned in paragraph (b) is given.
Note: A copy of the document mentioned in subparagraph (3)(c)(ii) is available by post from the Regulator, GPO Box 621, Canberra ACT 2601. The document can be viewed on and downloaded from the Regulator’s website: www.cleanenergyregulator.gov.au.
3B Definition of auxiliary loss
(1) For a power station, auxiliary loss means the amount of electricity used in generating electricity, and operating and maintaining the power station, but does not include any electricity used for network control ancillary services.
(2) For a hydro‑electric power station, auxiliary loss also includes the amount of electricity that is used to pump or to raise water before its release for hydro‑electric generation.
Part 2—Renewable energy certificates
Division 2.1A—Registration
3L Determining fit and proper person
(1) For subsection 11(2A) of the Act, in determining whether the applicant is a fit and proper person, the Regulator must have regard to the following matters:
(a) whether the applicant has been convicted of an offence against any of the following:
(i) a law of the Commonwealth, a State or a Territory, that relates to dishonest conduct;
(ii) a law of the Commonwealth, a State or a Territory, that relates to the conduct of a business;
(iii) section 136.1, 137.1 or 137.2 of the Criminal Code;
(iv) a foreign law that corresponds to a law mentioned in subparagraphs (i) to (iii) or subparagraphs (b)(i) to (iv);
(b) whether the applicant has breached any of the following:
(i) this Act or these Regulations;
(ii) the Australian National Registry of Emissions Units Act 2011 or regulations under that Act;
(iii) the Carbon Credits (Carbon Farming Initiative) Act 2011 or regulations under that Act;
(iv) the National Greenhouse and Energy Reporting Act 2007 or regulations under that Act;
(c) whether an order has been made against the applicant under:
(i) section 76 of the Competition and Consumer Act 2010; or
(ii) section 224 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth, a State or a Territory; or
(iii) a foreign law that corresponds to a law mentioned in subparagraphs (i) or (ii);
(d) whether the applicant has been refused registration by, de‑registered by, or suspended from participating in, a State or Territory energy efficiency scheme, such as the following:
(i) the Energy Savings Scheme in New South Wales;
(ii) the Victorian Energy Efficiency Target scheme;
(e) whether the applicant has:
(i) sought or been granted accreditation by, or membership of, a clean energy organisation; or
(ii) been refused accreditation by, or membership of, a clean energy organisation; or
(iii) had the applicant’s accreditation by, or membership of, a clean energy organisation suspended or revoked;
(f) whether the applicant is:
(i) for an applicant that is an individual—an insolvent under administration within the meaning of the Corporations Act 2001; and
(ii) for an applicant that is a body corporate—a Chapter 5 body corporate within the meaning of the Corporations Act 2001;
(g) for an applicant that is a body corporate—whether overseas or under a foreign law:
(i) the body corporate is being wound up; or
(ii) a receiver, or a receiver and manager, has been appointed (whether or not by a court) in respect of the property of the body corporate and is acting; or
(iii) the body corporate is under administration; or
(iv) the body corporate has executed a deed of company arrangement that has not yet terminated; or
(v) the body corporate is under restructuring; or
(vi) the body corporate has made a restructuring plan that has not yet terminated; or
(vii) the body corporate has entered into a compromise or arrangement with another person and the administration of which has not been concluded.
(2) If the applicant is a body corporate, the Regulator must also have regard to the following matters:
(a) whether an executive officer of the body corporate has been convicted of an offence against any of the following:
(i) a law of the Commonwealth, a State or a Territory, that relates to dishonest conduct;
(ii) a law of the Commonwealth, a State or a Territory, that relates to the conduct of a business;
(iii) section 136.1, 137.1 or 137.2 of the Criminal Code;
(iv) a foreign law that corresponds to a law mentioned in subparagraphs (i) to (iii) or subparagraphs (b)(i) to (iv);
(b) whether an executive officer of the body corporate has breached any of the following:
(i) this Act or these Regulations;
(ii) the Australian National Registry of Emissions Units Act 2011 or regulations under that Act;
(iii) the Carbon Credits (Carbon Farming Initiative) Act 2011 or regulations under that Act;
(iv) the National Greenhouse and Energy Reporting Act 2007 or regulations under that Act;
(c) whether an order has been made against an executive officer of the body corporate:
(i) under section 76 of the Competition and Consumer Act 2010; or
(ii) under section 224 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth, a State or a Territory; or
(iii) under a foreign law that corresponds to a law mentioned in subparagraph (i) or (ii); or
(iv) by a foreign court, disqualifying the executive officer from:
(A) being a director of a body corporate; or
(B) being concerned in the management of a body corporate;
(d) whether an executive officer of the body corporate has been refused registration, de‑registered or suspended from participating in a State or Territory energy efficiency scheme, such as the following:
(i) the Energy Savings Scheme in New South Wales;
(ii) the Victorian Energy Efficiency Target scheme;
(e) whether an executive officer of the body corporate has:
(i) sought or been granted accreditation by, or membership of, a clean energy organisation; or
(ii) been refused accreditation by, or membership of, a clean energy organisation; or
(iii) had the executive officer’s accreditation by, or membership of, a clean energy organisation suspended or revoked.
(3) For paragraphs (1)(e) and (2)(e), a clean energy organisation means an organisation that has a constitution and operates a scheme that:
(a) accredits, or provides membership to, persons who do one or more of the following:
(i) install small generation units or solar water heaters;
(ii) supply small generation units or solar water heaters;
(iii) create or trade in small‑scale technology certificates; and
(b) has a code of conduct that is binding on persons who are accredited by, or members of, the organisation; and
(c) monitors compliance with the code of conduct and is able to take action against a person who is accredited by, or a member of, the organisation for a breach of the code (such as by suspending the person’s accreditation or membership).
Examples:
1 Clean Energy Council
2 REC Agents Association Incorporated (ABN 950 64 032 965).
Division 2.1—Accreditation
3S Final day for including eligible WCMG in application
For subsection 13(2A) of the Act, 1 April 2012 is prescribed as the day after which an application that lists eligible WCMG as an eligible energy source cannot be made.
4 Eligibility for accreditation
(1) For paragraph 14(2)(b) of the Act:
(a) a power station that is in the national electricity market must use NEM standard metering; and
(b) a power station that is not in the national electricity market must use metering that enables the Regulator to determine the amount of electricity generated by the power station; and
(c) the power station must be operated in accordance with any relevant Commonwealth, State, Territory or local government planning and approval requirements.
(2) For subsection 14(4) of the Act, the guidelines are set out in Schedule 1.
5 1997 eligible renewable power baselines
For subsection 14(4) of the Act, the guidelines for determining the 1997 eligible renewable power baseline for a power station are set out in Schedule 3.
Note: See section 30F of the Act and Division 2.6 of these Regulations in relation to varying the 1997 eligible renewable power baseline for an accredited power station.
5A 2008 WCMG limit
For subsection 14(4) of the Act, the guidelines for determining the 2008 WCMG limit for a power station are set out in Schedule 3A.
Note: See section 30G of the Act and Division 2.7 of these Regulations in relation to varying the 2008 WCMG limit for an accredited power station.
Division 2.2—Eligible renewable energy sources
6 Meaning of certain energy sources that are eligible renewable energy sources (Act s 17)
For subsections 17(3) and (4) of the Act:
agricultural waste means the putrescible biomass wastes produced during agricultural operations, including livestock husbandry.
biomass‑based components of municipal solid waste means the biomass‑based components of wastes that are directly sourced from, or eligible to be disposed of in, landfill or a waste transfer station that is licensed by a State or Territory government body or by a local government authority, but does not include biomass‑based components of wastes originating from:
(a) forestry or broadacre land clearing for agriculture, silviculture and horticulture operations; or
(b) fossil fuels.
black liquor means the mixture arising from the chemical wood pulping process.
hot dry rock includes hot fractured rock.
landfill gas means the gas produced by the breaking down of the organic part of municipal landfills.
sewage gas means gas produced by the decomposition of domestic and commercial wastes that are collected from sewerage systems and treated by sewage treatment plants.
waste from processing of agricultural products means the biomass waste produced from processing agricultural products.
7 Meaning of certain energy sources that are not eligible renewable energy sources (Act s 17)
For subsection 17(3) of the Act:
fossil fuels means any of the following:
(a) coal, oil, natural gas or other petroleum‑based products;
(b) products, by‑products and wastes associated with, or produced from, extracting and processing coal, oil, natural gas or other petroleum‑based products.
Examples: Condensate liquids, coal seam methane, coal mine methane.
waste products derived from fossil fuels means the components of waste streams that:
(a) are made using, as raw materials, any material that is a fossil fuel for the Act; and
(b) are products or by‑products of manufacturing operations, including plastics, tyres, disposable nappies, synthetic carpets and synthetic textiles.
8 Meaning of wood waste
For the purposes of section 17 of the Act, wood waste means:
(a) biomass:
(i) produced from non‑native environmental weed species; and
(ii) harvested for the control or eradication of the species, from a harvesting operation that is approved under relevant Commonwealth, State or Territory planning and approval processes; and
(b) a manufactured wood product or a by‑product from a manufacturing process; and
(c) waste products from the construction of buildings or furniture, including timber off‑cuts and timber from demolished buildings; and
(d) sawmill residue.
Examples for paragraph (b): Packing case, pallet, recycled timber, engineered wood product (including one manufactured by binding wood strands, wood particles, wood fibres or wood veneers with adhesives to form a composite).
9 Energy crops (Act s 17)
(1) For section 17 of the Act, biomass from a plantation is not an energy crop unless all of the following apply to it:
(a) it must be a product of a harvesting operation (including thinnings and coppicing) approved under relevant Commonwealth, State or Territory planning and approval processes;
(b) it must be biomass from a plantation that is managed in accordance with:
(i) a code of practice approved for a State under the Export Control (Wood and Woodchips) Rules 2021; or
(ii) if a code of practice has not been approved for a State as required under subparagraph (i), Australian Standard AS 4708—2007—The Australian Forestry Standard;
(c) it must be taken from land that was not cleared of native vegetation after 31 December 1989 to establish the plantation.
(2) For section 17 of the Act, biomass from a native forest is not an energy crop.
10 Special requirements—ocean, wave and tide
Electricity generated from an ocean, wave or tide energy source must be generated within the territorial sea of Australia.
Division 2.2A—Eligible WCMG
10A Eligible WCMG starting day
(1) For subparagraph 17A(1)(a)(i) of the Act, 1 July 2012 is prescribed as the starting day.
(2) However, subregulation (1) does not take effect if section 3 of the Clean Energy Act 2011 does not commence on or before 1 July 2012.
10B Meaning of waste coal mine gas
(1) This regulation is made for subsection 17A(2) of the Act.
(2) For the purposes of the Act, waste coal mine gas means either of the following:
(a) coal seam gas that, as part of a coal mining operation, is drained from a coal mine that is covered by a coal mining lease (however called) that authorises coal mining;
(b) coal seam gas that is drained from a closed coal mine that is, or was, covered by a coal mining lease (however called) that authorises coal mining.
10C Limitations on eligible WCMG
For subsection 17A(3) of the Act, waste coal mine gas is not eligible WCMG if:
(a) an abatement certificate under the Electricity Supply Act 1995 (NSW); or
(b) a gas electricity certificate under the Electricity Act 1994 (Qld); or
(c) an abatement certificate under the Electricity (Greenhouse Gas Emissions) Act 2004 (ACT);
is created in relation to electricity generated using the waste coal mine gas.
Division 2.3—Eligible electricity generation
Subdivision 2.3.1—Accredited power stations
13 Working out electricity generation for a power station
For subsection 18(3) of the Act, the amount of electricity generated by an accredited power station is worked out in accordance with regulations 14 to 16.
14 General formula
(1) The amount of electricity generated by an accredited power station in a year is:
where:
TLEG is the total amount of electricity, in MWh, generated by the power station in the year, as measured at all generator terminals of the power station in the year.
FSL is the amount (if any) of electricity, in MWh, generated by the power station in the year using energy sources that are not eligible energy sources, worked out under regulation 15.
AUX is the auxiliary loss, in MWh, for the power station for the year.
Note: See regulation 16 in relation to working out the auxiliary loss if some of the electricity generated by the power station in the year was generated using energy sources that are not eligible energy sources.
DLEG is the amount of electricity, in MWh, transmitted or distributed by the power station in the year, measured:
(a) if the power station is part of the national electricity market—at the point determined under the National Electricity Rules; or
(b) in any other case—at the point determined by an authority of the State or Territory where the power station is.
MLF is the marginal loss factor, to allow for the amount of electricity losses in transmission networks, as determined by:
(a) if the power station is part of the national electricity market—AEMO; or
(b) in any other case—an authority of the State or Territory where the power station is.
(2) If all the electricity generated by the accredited power station is used in the power station, or in the local distribution network, or in both the power station and the local distribution network, the marginal loss factor (MLF) for subregulation (1) is taken to be 1.
(3) If the amount calculated using the formula in subregulation (1) exceeds 1 MWh and results in an amount that is not a whole MWh, the amount must be rounded down to the nearest MWh.
15 Ineligible fuel component
For the purpose of regulation 14, the amount (FSL) of electricity generated by an accredited power station attributable to energy sources that are not eligible energy sources is the amount worked out by converting the energy content of those energy sources into the equivalent number of MWh of electricity.
15A Electricity omitted from calculation
When determining the amount of electricity generated by an accredited power station, the following electricity is to be omitted from all calculations under regulation 14:
(a) electricity that was generated by using an eligible renewable energy source that is not ecologically sustainable;
(b) electricity that was not used to directly meet demand for electricity;
(c) electricity generated in a power station where an approval to use an eligible energy source:
(i) is required by a Commonwealth, State, Territory or local government authority; and
(ii) the nominated person for the power station is unable to give evidence of that approval;
(d) if certificates have been created in relation to a small generation unit under section 23A of the Act—electricity that was generated by the small generation unit.
Note: Ecologically sustainable is defined in subsection 5(1) of the Act.
16 Supplementary generation
For electricity generated by the power station from an energy source that is not an eligible energy source, auxiliary losses from the system that are attributable to that source are to be deducted from the total auxiliary loss proportionately to the proportion of electricity generated from that source.
18 Electricity generation returns for accredited power stations (Act s 20)
(1) For paragraph 20(2)(d) of the Act, an electricity generation return for an accredited power station for a year must include the following:
(a) the year to which the return relates;
(b) the nominated person’s registration number;
(c) the identification code given to the power station;
(d) the telephone number, fax number and e‑mail address (if any) of the power station;
(e) for each eligible energy source used by the power station to generate electricity in the year:
(i) the amount of electricity generated; and
(ii) the number of certificates created by the nominated person for that electricity;
(f) any changes to information already given to the Regulator or the Renewable Energy Regulator about the following matters in relation to the power station:
(i) ownership;
(ii) company mergers involving the owner or the operator;
(iii) street address, telephone number, fax number and e‑mail address (if any);
(iv) electricity supply arrangements;
(v) generation capacity;
(g) the 1997 eligible renewable power baseline that applied to the power station for the year;
(h) the date when the power station became an accredited power station;
(i) if the power station was not an accredited power station for all of the year:
(i) the amount of electricity generated by the power station since it became accredited; and
(ii) the number of certificates created by the nominated person for that amount of electricity;
(j) if a certificate was created in the year for an amount of electricity generated by the power station in a previous year:
(i) the number of certificates created by the nominated person for the amount of electricity generated in each previous year; and
(ii) each eligible energy source used to generate that electricity;
(k) information about any electricity that was imported into the power station in the year and how it was used;
(l) details of any breach of the conditions of a permit, or conviction for an offence, under any Commonwealth, State, Territory or local government law related to the operation of the power station during the year, or, if there was no breach or conviction during the year, a declaration to that effect.
(2) The first return for an accredited power station after commencement of this regulation must also include the following:
(a) for the years since gaining any accreditation under the Act, details of any breach of the conditions of a permit, or conviction for an offence, under any Commonwealth, State, Territory or local government law related to operation of the power station;
(b) if there was no breach or conviction for those years, a declaration to that effect.
Note: See subsection 20(2) of the Act for other information that must be included in an electricity generation return.
Subdivision 2.3.2—Solar water heaters
19 Creation of certificates for solar water heaters (Act s 21)
(1) For subsection 21(3) of the Act, the time at which a solar water heater is taken to have been installed is the day the heater is first able to produce and deliver hot water heated by solar energy.
(2) To avoid doubt, a solar water heater is taken to have been installed once only during the life of the unit.
Note: Certificates may only be created within 12 months after the installation of the solar water heater (see subsection 21(2) of the Act).
19A Number of certificates
(1) For subsection 22(1) of the Act, the number of certificates that may be created for a particular installation of a model of solar water heater in a particular zone and installation period is:
(a) for a solar water heater with a volumetric storage capacity up to and including 700 litres—the number set out in the Register of solar water heaters that is applicable to the model, zone and period; and
(b) for a solar water heater with a volumetric storage capacity over 700 litres—either:
(i) if the person who is entitled to create the certificates complies with subregulation (2)—the number set out in the Register of solar water heaters that is applicable to the model, zone and period; or
(ii) if the person who is entitled to create the certificates does not comply with subregulation (2)—0.
Note: Certificates cannot be created for a solar water heater that is an air source heat pump water heater if it has a volumetric capacity of more than 425 L—see subsection 21(4) of the Act.
(2) For paragraph (1)(b), the person who is entitled to create the certificates complies with this subregulation if, before the person creates any certificates in relation to the solar water heater, the person:
(a) obtains a statutory declaration that states the matters set out in subregulation (3); and
(b) obtains a further statutory declaration from the owner of the heater at the time it is installed stating that the owner intends that the solar water heater will remain installed in its original configuration and location for the life of the heater; and
(c) gives a copy of both statutory declarations to the Regulator.
(3) For subregulation (2) the statutory declaration must state:
(a) the model of the solar water heater; and
(b) the volumetric storage capacity of the heater; and
(c) the premises at which the heater is to be installed and used; and
(d) the purposes for which the heater, and the hot water produced by the heater, are to be used; and
(e) that the volumetric storage capacity of the heater is appropriate for the premises at which the heater is to be installed and the purposes for which the heater, and the hot water produced by the heater, are to be used; and
(f) the expertise or experience of the person signing the declaration in relation to a heater of the kind covered by the declaration.
19B Determination of method for determining number of certificates
(1) For subsection 22(1) of the Act, the Regulator may determine, by legislative instrument, the method to be used to determine the number of certificates that may be created for a particular model of solar water heater.
(2) The determination must provide that the number of certificates that may be created is to be worked out by reference to the difference, over the number of years specified for the solar water heater in regulation 19BE, between:
(a) the energy, other than solar energy or energy collected from the latent and sensible heat of the atmosphere, to be used by the solar water heater; and
(b) the electrical energy that would be used by an equivalent electric water heater.
(3) For subregulation (2), an electric water heater is an equivalent electric water heater if it:
(a) supplies the same, or a similar, hot water load as the solar water heater mentioned in paragraph (2)(a); and
(b) is not a heat pump.
(4) In making the determination, the Regulator must have regard to the method set out in the Australian Standard, set out in Schedule 4, as in force at the time the determination is made that applies to the solar water heater.
(5) In making the first determination under subregulation (1), the Regulator must have regard to:
(a) the guidelines known as REC calculation methodology for solar water heaters and heat pump water heaters with a volumetric capacity up to and including 700 litres, published by the Regulator on its website, as in force at the time the determination is made; and
(b) the guidelines known as REC calculation methodology for solar water heaters and heat pump water heaters with a volumetric capacity over 700 litres, published by the Regulator on its website, as in force at the time the determination is made.
19BA Determination of number of certificates
(1) For subsection 22(1) of the Act, the Regulator may determine the number of certificates that may be created for a particular model of solar water heater in each of the zones mentioned in paragraph 19C(3)(b).
(2) In making the determination, the Regulator must:
(a) if a determination under subregulation 19B(1) is in force—make the determination in accordance with that determination; and
(b) if there is no determination under subregulation 19B(1) in force—determine the number of certificates using the method in subregulation (3).
(3) For paragraph (2)(b), the number of certificates that may be created is to be worked out:
(a) by reference to the difference, over the number of years specified for the solar water heater in regulation 19BE, between:
(i) the energy, other than solar energy or energy collected from the latent and sensible heat of the atmosphere, to be used by the solar water heater; and
(ii) the electrical energy that would be used by an equivalent electric water heater; and
(b) having regard to the following, as in force at the time of the determination:
(i) AS/NZS 2535.1:2007, Test methods for solar collectors, Part 1: Thermal performance of glazed liquid heating collectors including pressure drop; and
(ii) AS 4234—1994, Solar water heaters—Domestic and heat pump—Calculation of energy consumption; and
(iii) AS/NZS 4692.1:2005, Electric water heaters, Part 1: Energy consumption, performance and general requirements; and
(c) if the solar water heater has a volumetric capacity up to and including 700 litres—having regard to the guidelines known as REC calculation methodology for solar water heaters and heat pump water heaters with a volumetric capacity up to and including 700 litres, published by the Regulator on its website, as in force at the time the determination is made; and
(d) if the solar water heater has a volumetric capacity over 700 litres—having regard to the guidelines known as REC calculation methodology for solar water heaters and heat pump water heaters with a volumetric capacity over 700 litres, published by the Regulator on its website, as in force at the time the determination is made.
(4) For subregulation (3), an electric water heater is an equivalent electric water heater if it:
(a) supplies the same, or a similar, hot water load as the solar water heater mentioned in subparagraph (3)(a)(i); and
(b) is not a heat pump.
19BB Variation of determination
(1) This regulation applies if the Regulator proposes to make a determination under regulation 19BA which would vary the information contained in the Register of solar water heaters.
(2) Before making the determination, the Regulator must:
(a) tell the manufacturer of the solar water heater, in writing:
(i) what information the Regulator proposes to vary and how it would be varied; and
(ii) the reason for the proposed variation; and
(b) invite the manufacturer to make written submissions about the proposed variation; and
(c) take into account any submissions received from the manufacturer when deciding whether to make the determination.
(3) The Regulator must not make a determination that would vary the information contained in the Register of solar water heaters in relation to a device entered into the Register before 1 December 2018, if the effect of the determination would be:
(a) to increase, to more than 2,500 from a number less than or equal to 2,500, the number of certificates that could be created over a 10‑year period for the installation of the device in any one or more of the zones; or
(b) to increase, from a number more than 2,500, the number of certificates that could be created over a 10‑year period for the installation of the device in any one or more of the zones.
19BC Requests for determination
(1) A person may request the Regulator to make a determination under regulation 19BA.
(2) The request must:
(a) be in writing in a form approved by the Regulator; and
(b) contain, or be accompanied by, any information or document required by the approved form; and
(c) be given to the Regulator within the 30 day period mentioned in paragraph 19BD(2)(b).
(3) The Regulator may, by written notice given to the person, request the person to give the Regulator, within the period specified in the notice, additional information and documents in connection with the request.
(4) If the person does not provide the additional information and documents within the specified period, the Regulator may, by written notice to the person:
(a) refuse to consider the request; or
(b) refuse to take any action, or further action, in relation to the request.
(5) The Regulator must consult with the person making the request if the Regulator proposes:
(a) not to make the requested determination; or
(b) to include information in the determination that is different to the information contained in the request.
(6) The Regulator must tell the person about the Regulator’s decision on the request:
(a) in writing; and
(b) not later than 180 days after the expiry of 30 day period mentioned in paragraph (2)(c).
19BD Invitation for requests for determination
(1) The Regulator must, at intervals of not more than 6 months, invite persons to make requests under subregulation 19BC(1).
(2) The invitation must:
(a) be published on the Regulator’s website; and
(b) include a 30 day period in which requests are to be made.
19BE Working out number of certificates that may be created
For subregulation 19B(2) and paragraph 19BA(3)(a), the number of years specified is:
(a) for a solar water heater installed on or before 31 December 2021—10 years; and
(b) for a solar water heater installed during a year mentioned in column 1 of the following table, the number of years specified in column 2 for the item.
Period certificates may be created |
Item | Column 1 | Column 2 |
| Year solar water heater installed | Number of years |
1 | 2022 | 9 |
2 | 2023 | 8 |
3 | 2024 | 7 |
4 | 2025 | 6 |
5 | 2026 | 5 |
6 | 2027 | 4 |
7 | 2028 | 3 |
8 | 2029 | 2 |
9 | 2030 | 1 |
19C Register of solar water heaters (Act s 23AA)
(1) The Regulator must establish and keep a register to be known as the Register of solar water heaters.
(2) The Regulator must keep the Register in electronic form.
(3) The Regulator must include the following information in the Register:
(a) the brand name and the model name of each solar water heater for which certificates may be created (an eligible solar water heater);
(b) zones in Australia determined by the Regulator:
(i) on the basis of climate and solar radiation levels; and
(ii) by reference to a range of postcodes, taking account of each postcode area in Australia;
(c) the number of certificates that may be created for each eligible solar water heater in each zone;
(d) the installation periods in which certificates may be created for each eligible solar water heater.
(3A) The Regulator may remove a device from the Register if satisfied that:
(a) the device is not a solar water heater; or
(b) a certification that was given to the device as mentioned in subregulation 3A(2) or (3) has expired; or
(c) the device poses a safety risk.
(3B) Before removing a device from the Register under paragraph (3A)(a) or (b), the Regulator must:
(a) give written notice of the proposed removal, specifying the date proposed for the removal, to:
(i) the manufacturer of the device; and
(ii) any person who made a request in relation to the device under subregulation 19BC(1); and
(b) consider any submissions made in response to the proposed removal.
(4) The Register must be accessible on a website kept by the Regulator.
Subdivision 2.3.3—Small generation units
19D Creation of certificates for small generation units (Act s 23A)
(1) For subsection 23A(2) of the Act, the time at which a small generation unit is taken to have been installed is the day the unit is first able to produce and deliver electricity.
(2) For subsection 23A(3) of the Act, a right to create certificates for a small generation unit arises:
(a) for a unit installed during a year mentioned in column 1 of the following table, within 12 months of installation and for a period mentioned in column 2 for the item; or
Period certificates may be created |
Item | Column 1 | Column 2 |
| Year unit installed | Period |
1 | before 2026 | 1 or 5 years |
2 | 2026 | 1 or 5 years |
3 | 2027 | 1 or 4 years |
4 | 2028 | 1 or 3 years |
5 | 2029 | 1 or 2 years |
6 | 2030 | 1 year |
(b) if a right was previously exercised for a 1 year period under paragraph (a), the start of each subsequent 1 year period after installation that begins during a year mentioned in column 1 of the table in paragraph (a) for the additional period mentioned in column 2 for the item; or
(c) if:
(i) a right was previously exercised for a 5 year period under paragraph (a); and
(ii) the Regulator is satisfied that the unit is still installed and likely to remain functional for a further 5 years;
the start of each subsequent 5 year period that begins on or before 31 December 2025 for a further 5 year period; or
(d) if:
(i) the unit is a solar (photovoltaic) system; and
(ii) no certificate has been created for the unit under paragraph (a), (b) or (c);
for a unit installed during a year mentioned in column 1 of the following table, within 12 months of installation and for the period mentioned in column 2 for the item.
Period certificates may be created |
Item | Column 1 | Column 2 |
| Year solar (photovoltaic) system installed | Period in years |
1 | before 2016 | 15 |
2 | 2016 | 15 |
3 | 2017 | 14 |
4 | 2018 | 13 |
5 | 2019 | 12 |
6 | 2020 | 11 |
7 | 2021 | 10 |
8 | 2022 | 9 |
9 | 2023 | 8 |
10 | 2024 | 7 |
11 | 2025 | 6 |
12 | 2026 | 5 |
13 | 2027 | 4 |
14 | 2028 | 3 |
15 | 2029 | 2 |
16 | 2030 | 1 |
(3) Where a right to create certificates has been exercised under the period specified for the unit in paragraph (2)(d), no additional right to create certificates arises.
20 Number of certificates that may be created (Act s 23B)
(1) For subsection 23B(1) of the Act, the number of certificates that may be created for a small generation unit is the number that may be created:
(a) for a hydro‑electric system—for the amount calculated by multiplying 0.00095 by the rated power output of the system, measured in kW, multiplied by:
(i) 4 000; or
(ii) the number of hours each year of hydro resource availability if those hours are greater than 4 000.
(b) for a solar (photovoltaic) system—for the amount calculated by multiplying the zone rating of the system at the time of installation (worked out in accordance with an instrument made under subregulation (4) as existing from time to time) by the rated power output of the system measured in kilowatts‑peak (kWp); or
(c) for a wind turbine—for the amount calculated by multiplying 0.00095 by the rated power output of the system, measured in kW, multiplied by:
(i) 2 000; or
(ii) the number of hours each year of wind resource availability if those hours are greater than 2 000.
Note: Small generation unit is defined in subregulation 3(2). For certificates in relation to installations other than small generation units, see Divisions 2 and 3 of Part 2 of the Act.
(2) For subregulation (1), the number of certificates worked out for an installation is:
(a) if the amount of electricity generated that is in excess of the 1997 renewable energy baseline for the small generation unit is at least 0.5 MWh but less than 1 MWh—1; and
(b) in any other case—the number calculated under subregulations (2A) and (2B).
(2A) If a small generation unit has a rated power output of more than 1.5kW (output power), and is not a unit to which subregulation (2C) or (2E) applies, the number of certificates created for the unit is to be calculated as follows:
(a) by first adding together:
(i) the number of certificates created for the first 1.5 kW of the unit’s output power (as multiplied in accordance with regulation 20AA); and
(ii) the number of certificates created for the remainder of the unit’s output power; and
(b) then by rounding down the number of certificates arrived at under paragraph (a) to the nearest whole number.
(2B) If the small generation unit has a rated power output of 1.5kW or less, and is not a unit to which subregulation (2E) applies, the number of certificates created for the unit is to be calculated as follows:
(a) by first multiplying the number of certificates in accordance with regulation 20AA; and
(b) then by rounding down the number of certificates arrived at under paragraph (a) to the nearest whole number.
(2C) This subregulation applies to a small generation unit if:
(a) the unit:
(i) has a rated power output of more than 20 kW (output power); and
(ii) is an off‑grid small generation unit; and
(iii) was installed after 28 June 2010 and before 1 July 2013; and
(b) at the time the certificates are created, the number of multiplier certificates created for off‑grid small generation units installed in the period in which the unit is installed does not equal or exceed the maximum number mentioned in subregulation (2G) for the period; and
(c) the creation of certificates for the unit will not cause the number of multiplier certificates created for off‑grid small generation units installed in the period in which the unit was installed to exceed the maximum number mentioned in subregulation (2G) for the period.
(2D) The number of certificates created for a unit to which subregulation (2C) applies is to be worked out:
(a) by adding together:
(i) the number of certificates created for the first 20 kW of the unit’s output power (as multiplied in accordance with regulation 20AA); and
(ii) the number of certificates created for the remainder of the unit’s output power; and
(b) by rounding down the number of certificates worked out under paragraph (a) to the nearest whole number.
(2E) This subregulation applies to a small generation unit if:
(a) the unit:
(i) has a rated power output of 20 kW or less; and
(ii) is an off‑grid small generation unit; and
(iii) was installed after 28 June 2010 and before 1 July 2013; and
(b) at the time the certificates are created, the number of multiplier certificates created for off‑grid small generation units installed in the period in which the unit is installed does not equal or exceed the maximum number mentioned in subregulation (2G) for the period; and
(c) the creation of certificates for the unit will not cause the number of multiplier certificates created for off‑grid small generation units installed in the period in which the unit is installed to exceed the maximum number mentioned in subregulation (2G) for the period.
(2F) The number of certificates created for a unit to which subregulation (2E) applies is to be worked out:
(a) by multiplying the number of certificates in accordance with regulation 20AA; and
(b) by rounding down the number of certificates worked out under paragraph (a) to the nearest whole number.
(2G) For paragraphs (2C)(b) and (2E)(b), the maximum number of multiplier certificates that may be created for off‑grid small generation units installed in a period is the number mentioned in the following table for the period.
Item | Period | Number |
1 | 1 July 2010 to 30 June 2011 | 250 000 |
2 | 1 July 2011 to 30 June 2012 | 250 000 |
3 | 1 July 2012 to 30 June 2013 | 200 000 |
(2H) If subregulation (2C) or (2E) does not apply to a small generation unit only because paragraph (2C)(c) or (2E)(c) does not apply to the unit, the number of certificates that may be created for the unit is the sum of:
(a) the number that may be created for the unit under paragraph (2A) or (2B); and
(b) the number of certificates that would cause the number of multiplier certificates created for off‑grid small generation units installed in the period in which the unit was installed to equal the maximum number mentioned in subregulation (2G) for the period.
(2I) For paragraphs (2C)(b) and (c) and (2E)(b) and (c), a certificate that the Regulator determines is not eligible for registration is not to be included in the number of multiplier certificates created for the period for off‑grid small generation units installed in the period.
(2J) For this regulation:
multiplier certificates, for off‑grid small generation units installed in a period mentioned in the table in subregulation (2G), means the certificates created for units using the multiplier in subregulation 20AA(2), other than the certificates that would have been created were the multiplier applied only to the first 1.5 kW of the rated power output for those units.
(3) For subparagraph (1)(a)(ii), hydro resource availability of more than 4 000 hours each year must be demonstrated by a site‑specific assessment.
(4) The Regulator may, by legislative instrument, prescribe zone ratings of solar (photovoltaic) systems, and zones, for the purposes of paragraph (1)(b).
(5) For paragraph (1)(c)(ii), wind resource availability of more than 2 000 hours each year must be demonstrated by a site‑specific wind audit.
20AA Multiplying number of certificates (Act s 23B)
(1) For subsections 23B(2) and (3) of the Act, subregulation (2) sets out the multiplier for certificates that may be created for a small generation unit in the circumstances set out in subregulation (3).
(2) Subject to subregulation (3), the number of certificates that may be created in relation to a small generation unit that is installed during a period specified in column 1 of an item in the following table is to be multiplied by the number in column 2 of the item.
Multiplier for certificates for small generation units
Item | Column 1
Period | Column 2
Number |
1 | 9 June 2009 to 30 June 2010 | 5 |
2 | 1 July 2010 to 30 June 2011 | 5 |
3 | 1 July 2011 to 30 June 2012 | 3 |
4 | 1 July 2012 to 30 June 2013 | 2 |
Note: The certificates are created in accordance with regulations 19D and 20.
(3) The number of certificates is to be multiplied in accordance with subregulation (2):
(a) only if:
(i) the small generation unit in respect of which the certificates are created is installed at eligible premises:
(A) during a period mentioned in the table in subregulation (2); and
(B) in the circumstances mentioned in regulation 20AAA; and
(ii) at the time the small generation unit is installed at the eligible premises, there is no pre‑approval or funding agreement in force in respect of the unit under the SHCP, the RRPGP or the NSSP and no financial assistance has been provided in respect of the unit under the SHCP, the RRPGP or the NSSP; and
(iii) at the time the small generation unit is installed at the eligible premises, financial assistance under the SHCP, the PVRP, the RRPGP or the NSSP has not been approved or provided in respect of any other small generation unit at the eligible premises; and
(iv) the small generation unit is a new and complete unit; and
(v) at the time the small generation unit is installed at eligible premises, certificates have not been multiplied under subregulation (2) in respect of any small generation unit at the premises; and
(b) on 1 occasion only, irrespective of whether the certificates are created for a 1‑year period, a 5‑year period or a 15‑year period; and
(c) only if the certificates relate to:
(i) for a unit to which subregulation 20(2C) or (2E) applies—the first 20 kW of the rated power output of the unit; or
(ii) for any other unit—the first 1.5 kW of the rated power output of the unit.
(4) For subparagraph (3)(a)(iv), a small generation unit is a complete unit if:
(a) the unit is capable of generating electricity in a form that is usable at the eligible premises where it is installed without the need for an additional part or parts to be added to or incorporated into the unit; and
(b) either:
(i) the unit is wired directly to the eligible premises where the unit is installed so that its output is capable of being metered at those premises; or
(ii) the unit includes a meter that is dedicated to measuring the electricity output of the unit.
(5) In this regulation:
eligible premises means any of the following:
(a) a house (including the land on which the house is located and any outbuildings on the land);
(b) a townhouse;
(c) a residential apartment;
(d) a shop (including the land on which the shop is located and any outbuildings on the land);
(e) premises, other than premises mentioned in paragraphs (a) to (d), that are located at an address.
NSSP means the program known as the National Solar Schools Program administered by the Department administered by the Minister administering the Environment Protection and Biodiversity Conservation Act 1999.
PVRP means the program known as the Photovoltaic Rebate Program administered by the Australian Greenhouse Office.
RRPGP means the program known as the Renewable Remote Power Generation Program administered by the Department administered by the Minister administering the Environment Protection and Biodiversity Conservation Act 1999.
SHCP means the program known as the Solar Homes and Communities Plan administered by the Department administered by the Minister administering the Environment Protection and Biodiversity Conservation Act 1999.
20AAA Further circumstances for multiplying number of certificates
(1) For subparagraph 20AA(3)(a)(i), the small generation unit must be installed:
(a) before 1 January 2013; or
(b) on or after 1 January 2013 but before 1 July 2013 and in the circumstances mentioned in subregulation (2).
(2) For paragraph (1)(b), the circumstances are:
(a) the unit is installed under a contract entered into before 16 November 2012; and
(b) the parties to the contract are legally bound to proceed with the contract on and after 16 November 2012; and
(c) if the contract is conditional on any event happening, the event happened before 16 November 2012; and
(d) the person who becomes the owner of the unit following its installation is a party to the contract; and
(e) the contract documentation identifies:
(i) the date the contract was entered into; and
(ii) the identity of each party to the contract; and
(iii) the address at which the unit is to be installed; and
(iv) the size, make and model of the unit; and
(f) the person entitled to create certificates for the unit (the entitled person) meets the requirements of subregulation (3) before creating certificates for the unit.
(3) For paragraph (2)(f), the entitled person must:
(a) possess contract documentation identifying the matters mentioned in paragraph (2)(e); and
(b) provide to the Regulator a statutory declaration made by the entitled person:
(i) describing the contract documentation; and
(ii) stating that the entitled person can provide the contract documentation to the Regulator if requested by the Regulator; and
(iii) stating that the contract meets the requirements of paragraphs (2)(a) to (d); and
(iv) stating:
(A) the date on which the contract was entered into; and
(B) the identity of each party to the contract; and
(C) the address at which the unit was installed; and
(D) the size, make and model of the unit; and
(v) stating that the contract documentation in the entitled person’s possession identifies the matters mentioned in subparagraph (iv); and
(c) if the contract is an oral contract—provide to the Regulator a statutory declaration made by each party to the contract stating:
(i) the date on which the contract was entered into; and
(ii) the identity of each party to the contract; and
(iii) the address at which the unit was installed; and
(iv) the size, make and model of the unit; and
(d) provide to the Regulator any other information or documents requested by the Regulator.
(4) An entitled person may provide one statutory declaration under paragraph (3)(b) setting out the information required by that paragraph for more than one unit, including where:
(a) the units were installed under different contracts; or
(b) the contracts for the installations of the units involve different parties; or
(c) the units were installed at different addresses.
(5) However a statutory declaration provided under paragraph (3)(c) must relate to one unit only.
(6) For paragraph (3)(c), if the entitled person is a party to the contract, he or she only needs to provide statutory declarations from the other parties to the contract.
(7) In this regulation:
contract documentation means:
(a) for a written contract—the written documents setting out the terms and conditions of the contract and evidencing the offer and acceptance of those terms and conditions; and
(b) for an oral contract—written documentation that was created and dated before 22 December 2012, evidencing the existence of the contract.
20AB Regulator may make determinations about particular premises
(1) For the purposes of paragraph (e) of the definition of eligible premises in subregulation 20AA(5), the Regulator may, by legislative instrument, determine that:
(a) specified premises are premises located at an address; or
(b) specified premises are not premises that are located at an address.
(2) The Regulator must publish details of any determination made by the Regulator on the Regulator’s website.
20AC Conditions for creation of certificates (Act s 23A)
(1) For the purposes of subsection 23A(1A) of the Act, certificates cannot be created in relation to a small generation unit unless the conditions in this regulation are satisfied in relation to the unit or its installation.
Condition—design and installation
(2) The unit was designed and installed by a person or persons:
(a) if the unit is a stand‑alone power system—accredited for stand‑alone power systems under an accreditation scheme approved by the Regulator under Subdivision 2.3.4; and
(b) if the unit is a grid‑connected power system—accredited for grid‑connected power systems under an accreditation scheme approved by the Regulator under Subdivision 2.3.4; and
(c) if the unit is a wind system—endorsed for wind systems under an accreditation scheme approved by the Regulator under Subdivision 2.3.4; and
(d) if the unit is a hydro system—endorsed for hydro systems under an accreditation scheme approved by the Regulator under Subdivision 2.3.4; and
(e) in relation to whom, or none of whom, a declaration was not in effect under regulation 20AG or 47 on:
(i) if the installation of the unit was completed in a single day—that day; or
(ii) in any other case—the day the installation began.
Condition—installer on site (solar (photovoltaic) systems)
(2A) If the unit is a solar (photovoltaic) system, the person mentioned in paragraph (2)(a) or (b) who installed the unit was on site to install, or supervise the installation of, the unit in accordance with the accreditation scheme under which the person is accredited.
Condition—inverters
(2B) If the unit uses an inverter, regulation 20AD has been complied with in relation to the inverter used in the installation of the unit.
Condition—photovoltaic modules (solar (photovoltaic) systems)
(2C) If the unit is a solar (photovoltaic) system, regulation 20AD has been complied with in relation to the photovoltaic module used in the installation of the unit.
Condition—electrical wiring
(3) The electrical wiring associated with the installation of the unit was undertaken by an electrical worker holding an unrestricted license for electrical work issued by the State or Territory authority for the place where the unit was installed.
Condition—local and State or Territory government requirements
(4) All local and State or Territory government requirements have been met for the installation of the unit.
Condition—written statements, documents and evidence
(5) The person who is entitled to create the certificates for the unit has obtained:
(aa) a written statement by the designer of the unit (or, if the installer of the unit is accredited for the design of the unit, the installer of the unit) stating:
(i) the name of the designer of the unit; and
(ii) the accreditation scheme type or classification, and accreditation number, of the designer of the unit; and
(iii) that the designer complied with all relevant requirements of the accreditation scheme for the design of the unit; and
(a) a written statement by the installer of the unit stating:
(i) the name of the installer of the unit; and
(ii) the accreditation scheme type or classification, and accreditation number, of the installer of the unit; and
(iii) that the installer complied with all relevant requirements of the accreditation scheme for the installation of the unit; and
(b) a written statement by the installer of the unit that all local and State or Territory government requirements have been met for the installation of the unit; and
(c) a copy of any documentation required, by the laws of the jurisdiction in which the unit was installed, to be provided to the owner of the unit certifying that the electrical installation of the unit complies with laws relating to safety and technical standards; and
(d) a written statement by the installer of the unit stating:
(i) that the installer has a copy of the design of the unit; and
(ii) if the design was not modified during the installation of the unit—that the unit was installed, in all material respects, in accordance with the design; and
(iii) if the design was modified during the installation of the unit—that the modifications were consistent with all relevant requirements of the accreditation scheme for the design of the unit, and that the unit was installed, in all material respects, in accordance with the modified design; and
(iv) that the unit will perform consistently with the design or modified design (as applicable); and
(e) if the system uses an inverter:
(i) a written statement by the installer of the unit that the model of inverter used in the installation was, when the unit was installed, an approved eligible model of inverter; and
(ii) if the system is a grid‑connected power system—a written statement by the installer of the unit that, when the unit was installed, the model of inverter used in the installation complied with Australian/New Zealand Standard AS/NZS 4777.2:2020, Grid connection of energy systems via inverters, Part 2: Inverter requirements, published jointly by, or on behalf of, Standards Australia and Standards New Zealand (as existing from time to time); and
(f) for a unit that is a solar (photovoltaic) system—the following:
(i) a written statement by the installer of the unit that the model of photovoltaic module used in the installation was, when the unit was installed, an approved eligible model of a photovoltaic module;
(ii) a written statement by the installer of the unit that the installer was on site as mentioned in subregulation (2A);
(iii) evidence from the installer of the unit that the installer was on site as mentioned in subregulation (2A).
Condition—written statement from solar retailer (solar (photovoltaic) systems)
(5A) If the unit is a solar (photovoltaic) system, the person who is entitled to create the certificates for the unit has obtained a written statement by the person (the solar retailer) who sold the unit to the owner of the unit stating the following:
(a) the name of the installer of the unit;
(b) whether or not the installer is an employee or a subcontractor of the solar retailer;
(c) that the unit will perform in accordance with the contract (or the quote accepted) for the sale of the unit to the owner of the unit, except to the extent that that performance is prevented by circumstances outside the solar retailer’s control;
(d) that the unit is:
(i) complete; and
(ii) generating electricity or capable of generating electricity;
(e) if the unit is a grid‑connected power system—that:
(i) the unit is connected to the grid; or
(ii) the solar retailer has completed the solar retailer’s obligations under the contract (or the quote accepted) relating to the connection of the unit to the grid;
(f) that the solar retailer has provided information in writing to the owner of the unit about the feed in tariffs and export limits for the unit; and
(g) that the solar retailer has provided information in writing to the owner of the unit about one or more of the following for the unit:
(i) the expected payback period;
(ii) the expected energy savings;
(iii) the expected cost savings;
(h) that the information provided as mentioned in paragraphs (f) and (g) is true, correct and complete;
(i) that any actual or potential conflicts of interest of the solar retailer relating to the sale or installation of the unit, or the creation of certificates for the unit, including any conflicts of interest in relation to persons or entities related to the solar retailer, have been:
(i) disclosed to the owner of the unit; and
(ii) managed appropriately;
(j) that a declaration under regulation 20AH is not in effect in relation to the solar retailer on the day the statement is given.
(5B) Subsection (5A) does not apply in relation to a unit if:
(a) the unit was installed by the owner of the unit; or
(b) the installation of the unit was sold to the owner of the unit by a person other than the solar retailer or a person related to the solar retailer.
Electrical wiring to which subregulation (3) does not apply
(6) Subregulation (3) does not apply to electrical wiring if:
(a) the unit is not grid‑connected; and
(b) the wiring does not involve alternating current of 50 or more volts; and
(c) the wiring does not involve direct current of 120 or more volts; and
(d) before any certificates are created for the unit, the person who is entitled to create the certificates for the unit obtains a written statement by the installer of the unit that:
(i) the unit is not grid‑connected; and
(ii) an electrical worker holding an unrestricted license for electrical work issued by the State or Territory authority for the place where the unit was installed undertook all wiring of the unit that involves:
(A) alternating current of 50 or more volts; or
(B) direct current of 120 or more volts.
Condition—statements to include statement of truth, correctness and completeness
(7) Each statement obtained for the purposes of subregulation (5) or (5A) includes a statement that the information in the statement is true, correct and complete.
Condition—information not to be false or misleading
(8) None of the documents, statements or evidence obtained for the purposes of subregulation (5) or (5A) contain information that:
(a) is false or misleading in a material particular; or
(b) omits a matter or thing without which the information is misleading in a material particular.
Note: See also section 24B of the Act (which relates to civil penalties for giving false or misleading information in relation to the installation of small generation units that results in the improper creation of certificates in relation to the units).
Approved eligible models of inverters
(9) For the purposes of subparagraph (5)(e)(i), a model of an inverter is an approved eligible model at a particular time if, at the time:
(a) the model is included in the list of approved inverters (as existing from time to time) that is published by the person to whom regulation 20AE applies; and
(b) a declaration under regulation 20AF is not in effect in relation to the model; and
(c) a recall notice has not been issued for the model under subsection 122(1) of the Australian Consumer Law (compulsory recall of consumer goods); and
(d) section 128 of the Australian Consumer Law (voluntary recall of consumer goods) does not apply in relation to the model.
Note: The reference to the Australian Consumer Law is a reference to Schedule 2 to the Competition and Consumer Act 2010 as it applies as a law of the Commonwealth, States and Territories: see section 140K of that Act and corresponding provisions of Acts of States and Territories applying that Schedule.
Approved eligible models of photovoltaic modules
(10) For the purposes of subparagraph (5)(f)(i), a model of a photovoltaic module is an approved eligible model at a particular time if, at the time:
(a) the model complies with:
(i) if the time is before 19 May 2022—Australian/New Zealand Standard AS/NZS 5033:2014, Installation and safety requirements for photovoltaic (PV) arrays, published jointly by, or on behalf of, Standards Australia and Standards New Zealand (as existing from time to time); or
(ii) if the time is on or after 19 May 2022—Australian/New Zealand Standard AS/NZS 5033:2021, Installation and safety requirements for photovoltaic (PV) arrays, published jointly by, or on behalf of, Standards Australia and Standards New Zealand (as existing from time to time); and
(b) the model is included in the list of approved photovoltaic modules (as existing from time to time) that is published by the person to whom regulation 20AE applies; and
(c) a declaration under regulation 20AF is not in effect in relation to the model; and
(d) a recall notice has not been issued for the model under subsection 122(1) of the Australian Consumer Law (compulsory recall of consumer goods); and
(e) section 128 of the Australian Consumer Law (voluntary recall of consumer goods) does not apply in relation to the model.
Note: The reference to the Australian Consumer Law is a reference to Schedule 2 to the Competition and Consumer Act 2010 as it applies as a law of the Commonwealth, States and Territories: see section 140K of that Act and corresponding provisions of Acts of States and Territories applying that Schedule.
20AD Provision of serial numbers for inverters and photovoltaic modules
(1) For the purposes of subregulations 20AC(2B) and (2C), the responsible person for an inverter or photovoltaic module used in the installation of a small generation unit must give the serial number for the inverter or photovoltaic module to:
(a) a person in relation to whom a nomination is in effect under subregulation (2) of this regulation; or
(b) if no nomination is in effect under subregulation (2) of this regulation—the Regulator.
Note: The responsible person may commit an offence if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code).
(2) The Regulator may, in writing, nominate a person for the purposes of paragraph (1)(a) if the Regulator is reasonably satisfied that the person:
(a) will, if nominated, receive, store and disseminate serial numbers for inverters and photovoltaic modules to facilitate the creation of certificates in relation to small generation units in accordance with the Act and these Regulations; and
(b) has, or will have, appropriate arrangements for receiving, storing and disseminating the serial numbers.
(3) If the Regulator nominates a person under subregulation (2), the Regulator must publish the person’s contact details on the Regulator’s website.
(4) In this regulation:
responsible person, for an inverter or photovoltaic module used in the installation of a small generation unit, means:
(a) if the inverter or photovoltaic module was not imported into Australia—the manufacturer of the inverter or photovoltaic module; or
(b) if the inverter or photovoltaic module was imported into Australia—the person who imported the inverter or photovoltaic module.
20AE Publisher of lists of approved inverters and photovoltaic modules
(1) For the purposes of paragraphs 20AC(9)(a) and (10)(b), this regulation applies to:
(a) a person in relation to whom a nomination is in effect under subregulation (2) of this regulation; or
(b) if no nomination is in effect under subregulation (2) of this regulation—the Clean Energy Council.
(2) The Regulator may, in writing, nominate a person for the purposes of paragraph (1)(a).
Public consultation about whether any person should be nominated
(3) The Regulator must, before 1 January 2023, undertake public consultation about whether any person should be nominated under subregulation (2).
Process for nominating a particular person
(4) In deciding whether to nominate a person under subregulation (2), the Regulator must consider the following matters:
(a) the efficiency, integrity and effectiveness of the person’s proposed processes, including testing and verification processes, for including a model of an inverter or photovoltaic module on the person’s list of approved inverters or approved photovoltaic modules;
(b) the person’s capacity to publish the person’s lists of approved inverters and approved photovoltaic modules and keep them updated;
(c) the fees that the person proposes to charge in relation to the inclusion of a model of an inverter or photovoltaic module on the person’s list of approved inverters or approved photovoltaic modules;
(d) any other relevant matter.
(5) Before nominating a person under subregulation (2), the Regulator must:
(a) publish the proposed nomination on the Regulator’s website; and
(b) consider any submissions made in accordance with subregulation (6) in relation to the proposed nomination.
(6) A person who would be affected by a proposed nomination may, within 28 days after the day the Regulator publishes the proposed nomination, make a written submission to the Regulator.
(7) If the Regulator nominates a person under subregulation (2), the Regulator must publish the person’s contact details on the Regulator’s website.
20AF Regulator may declare models of inverters or photovoltaic modules ineligible
(1) The Regulator may, in writing, declare that a model of an inverter, or a model of a photovoltaic module, is not eligible for use in the installation of small generation units for the purposes of these Regulations.
(2) In deciding whether or not to make a declaration in relation to a model of an inverter or photovoltaic module, the Regulator must consider the following matters:
(a) whether the model complies with the Australian standards applicable to the inverter or photovoltaic module;
(b) whether evidence that independent testing has shown that the model complies with those standards has been provided by:
(i) the manufacturer of the model; or
(ii) if the model was imported into Australia—the person who imported the model;
(c) whether the model was included in the list mentioned in paragraph 20AC(9)(a) or (10)(b) on the basis of false or misleading information;
(d) whether the inclusion of the model in the list mentioned in paragraph 20AC(9)(a) or (10)(b) presents a risk to the integrity or creation of small‑scale technology certificates;
(e) whether regulation 20AD has been complied with in relation to the model;
(f) any other relevant matters.
Process before making declarations
(3) Before making a declaration, the Regulator must:
(a) publish the proposed declaration on the Regulator’s website; and
(b) consider any submissions made in accordance with subregulation (4) in relation to the proposed declaration.
(4) A person who would be affected by a proposed declaration may, within 28 days after the day the Regulator publishes the proposed declaration, make a written submission to the Regulator.
(5) Subregulations (3) and (4) do not apply in relation to a model of an inverter or photovoltaic module if the Regulator is reasonably satisfied that there is an imminent safety risk to a person or to property from the use of the model in the installation of small generation units.
Publication of declarations
(6) If the Regulator makes a declaration, the Regulator must publish the declaration on the Regulator’s website.
20AG Regulator may declare persons ineligible to design or install small generation units
Designers
(1) Subregulation (2) applies in relation to a person who has designed one or more small generation units as mentioned in subregulation 20AC(2) if:
(a) the Regulator is reasonably satisfied that the person has, on or after 1 April 2022, given 3 or more statements mentioned in paragraph 20AC(5)(aa) that contain information that:
(i) is false or misleading in a material particular; or
(ii) omits a matter or thing without which the information is misleading in a material particular; or
(b) the Regulator is reasonably satisfied that the person has, on or after 1 April 2022, on 3 or more occasions failed to comply with the accreditation scheme under which the person is accredited.
(2) The Regulator may, in writing, declare that the person is not eligible to design small generation units for the purposes of subregulation 20AC(2).
Installers
(3) Subregulation (4) applies in relation to a person who has installed one or more small generation units as mentioned in subregulation 20AC(2) if:
(a) the Regulator is reasonably satisfied that the person has, on or after 1 January 2022, given 3 or more statements mentioned in subregulation 20AC(5) that contain information that:
(i) is false or misleading in a material particular; or
(ii) omits a matter or thing without which the information is misleading in a material particular; or
(b) the Regulator is reasonably satisfied, on the basis of information received from one or more State or Territory authorities, that the person has, on or after 1 January 2022, on 3 or more occasions installed a small generation unit in a material breach of a local or State or Territory government requirement for the installation of the unit; or
(c) the Regulator is reasonably satisfied that the person has, on or after 1 January 2022, on 3 or more occasions failed to comply with the accreditation scheme under which the person is accredited.
(4) The Regulator may, in writing, declare that the person is not eligible to install small generation units for the purposes of subregulation 20AC(2).
Period of effect and publication of declarations
(5) A declaration under this regulation has effect for the period, not exceeding 3 years, specified in the declaration.
(6) The Regulator must publish a declaration under this regulation on the Regulator’s website.
20AH Regulator may declare persons ineligible to make solar retailer statements
(1) Subregulation (2) applies in relation to a person if the Regulator is reasonably satisfied that:
(a) the person has, on or after 1 April 2022, given 3 or more statements in relation to small generation units for the purposes of subregulation 20AC(5A) that contain information that:
(i) is false or misleading in a material particular; or
(ii) omits a matter or thing without which the information is misleading in a material particular; or
(b) both:
(i) on or after 1 April 2022, the person sold a small generation unit that is a solar (photovoltaic) system to the owner of the unit; and
(ii) the person is related to a person in respect of whom a declaration is in effect under this regulation.
(2) The Regulator may, in writing, declare that the person is not eligible to make statements in relation to small generation units for the purposes of subregulation 20AC(5A).
(3) A declaration under this regulation has effect for the period, not exceeding 3 years, specified in the declaration.
(4) The Regulator must publish a declaration under this regulation on the Regulator’s website.
20AI Making declarations under regulations 20AG and 20AH
(1) In deciding whether or not to make a declaration under regulation 20AG or 20AH in relation to a person, the Regulator must consider the following matters:
(a) if the proposed declaration is to be made on the basis of paragraph 20AG(1)(a) or (3)(a) or 20AH(1)(a)—the materiality of the false or misleading information concerned;
(b) if the proposed declaration is to be made on the basis of paragraph 20AG(3)(b)—the materiality of the breaches of local or State or Territory government requirements concerned;
(c) if the proposed declaration is to be made on the basis of paragraph 20AG(1)(b) or (3)(c)—the materiality of the failures (to comply with the accreditation scheme under which the person is accredited) concerned;
(d) any harm or loss caused to the owners of the small generation units concerned, or to third parties, resulting from the false or misleading statements, breaches or failures (as applicable);
(e) whether the person has rectified any problems resulting from the false or misleading statements, breaches or failures (as applicable);
(f) any other relevant matters.
(2) Before making a declaration in relation to a person, the Regulator must:
(a) give the person written notice of the proposed declaration; and
(b) consider any submissions made in accordance with subregulation (3) in relation to the proposed declaration.
(3) The person may, within 28 days after the Regulator gives the person notice of the proposed declaration, make a written submission to the Regulator.
20A Assignment of small generation unit certificates (Act s 23C)
For subsection 23C(2) of the Act, a right to create a certificate for a small generation unit under regulation 19D may be assigned for a 1‑, 5‑ or 15‑year period.
20B Election to not create certificates (Act s 23E)
For the definition of qualifying small generation unit in subsection 23E(5) of the Act, a kind of small generation unit is a device:
(aa) installed before 1 January 2018; and
(a) with an energy source that is solar (photovoltaic); and
(b) that has a kW rating from 10 kW to 100 kW (inclusive); and
(c) that generates from 25 MWh to 250 MWh (inclusive) of electricity each year.
20BA Record keeping for small generation units
For paragraph 160(2)(d) of the Act, a registered person must keep any document relevant to ascertaining the matters mentioned in regulation 20AC.
Subdivision 2.3.4—Designer and installer accreditation scheme
20BB Approval of accreditation schemes
This Subdivision sets out the process for approving an accreditation scheme mentioned in subregulation 20AC(2).
20BC Interpretation
(1) In this Subdivision:
scheme operator: see subparagraph 20BE(b)(iii).
(2) For the purposes of this Subdivision, in determining whether a scheme operator is a fit and proper person, the Regulator must have regard to the matters set out in regulation 3L, as if the reference to the applicant in that regulation were a reference to a scheme operator under this Subdivision.
20BD Applying for accreditation
Applications for accreditation
(1) A person may apply to the Regulator to approve an accreditation scheme developed by the person for the purposes of paragraph 20AC(2)(a), (b), (c) or (d).
Matters to be included in applications
(2) An application must:
(a) be made in the manner and form specified by the Regulator on the Regulator’s website; and
(b) include a draft of the accreditation scheme proposed to be approved; and
(c) include the information required by regulation 20BE; and
(d) be accompanied by the documents required by regulation 20BE; and
(e) include any information, and be accompanied by any documents, required by the form; and
(f) include an undertaking that complies with subregulation (3); and
(g) be made:
(i) in the period specified by the Regulator; or
(ii) at a later time agreed with the Regulator in writing.
Undertakings to be included in applications
(3) For the purposes of paragraph (2)(f), an undertaking must provide that, if the scheme were to be approved, the scheme operator undertakes to do the following:
(a) notify the Regulator, in writing, of any matters that arise that adversely affect, or that might adversely affect, the integrity of the scheme and the steps being taken, or proposed to be taken, by the scheme operator to address those matters;
(b) notify the Regulator, in writing, before making any changes to the fees charged under the scheme and provide the Regulator with an explanation of the changes;
(c) notify the Regulator, in writing, before varying or amending the scheme and provide the Regulator with an explanation of how the variations or amendments are consistent with the scheme as approved by the Regulator;
(d) notify the Regulator, in writing, if any of the events or circumstances mentioned in regulation 3L that affect the scheme operator come to the attention of the scheme operator;
(e) notify the Regulator, in writing, if the scheme operator ceases to undertake, or proposes to cease undertaking, activities authorised by the scheme;
(f) if the scheme operator is a body corporate—notify the Regulator, in writing, if there is a change, or a proposed change, in any of the directors or officers of the body corporate;
(g) if the scheme operator is a body corporate—notify the Regulator, in writing, if a transaction results in, or a proposed transaction will result in, a change to the type, name or number of shares in the body corporate;
(h) notify the following, in writing, if a designer or an installer accredited under the scheme is excluded from the scheme:
(i) the Regulator;
(ii) the operator of every other accreditation scheme approved under this Subdivision;
(i) if requested by the Regulator in writing—provide the Regulator with requested information, in writing, about the operation of the scheme.
Period in which application must be made
(4) The Regulator must specify a period for the purposes of subparagraph (2)(g)(i).
(5) The specified period must be a period of 3 months between 1 July 2022 and 31 March 2023 and must be published on the Regulator’s website.
20BE Matters to be included in applications
An application must:
(a) include the following:
(i) the name of the applicant;
(ii) if the scheme operator is a body corporate—the scheme operator’s ACN, ABN or ARBN;
(iii) if the scheme operator is a body corporate—details of the directors or officers of the body corporate;
(iv) if the scheme operator is a body corporate—details of the type, name or number of shares in the body corporate;
(v) the mailing address and email address of the applicant;
(vi) a telephone contact number for the applicant; and
(b) include the following:
(i) details of the proposed scheme’s scope;
(ii) an explanation of how the proposed scheme is to be managed and operated, including details of the governance arrangements for the proposed scheme;
(iii) the name and contact details of the person or persons (the scheme operator) who will be responsible for managing the scheme;
(iv) details of the qualifications and experience of the scheme operator that will enable the scheme operator to properly manage the proposed scheme in accordance with the requirements of the scheme and any requirements of the Act and these Regulations;
(v) details of how the proposed scheme will be monitored for compliance with the requirements of the scheme and any requirements of the Act and these Regulations; and
(c) be accompanied by details and evidence of the training to be provided to designers and installers under the proposed scheme, including training in relation to written statements by installers under subregulation 20AC(5); and
(d) include details of the measures and procedures that are in place, or will be in place before approval, and will be maintained after approval, to ensure:
(i) quality assurance and process control of the accreditation process; and
(ii) compliance with the scheme’s requirements, and the requirements of the Act and these Regulations, in relation to the installation of small generation units and the creation of certificates for such units; and
(e) include details of the following:
(i) requirements of the proposed scheme relating to insurance and any codes of conduct;
(ii) the measures and procedures that are in place, or will be in place before approval, and will be maintained after approval, for identifying and dealing with actual and perceived conflicts of interest in relation to the proposed scheme;
(iii) the fees to be charged under the proposed scheme and an explanation of the basis for setting the fees and changing the amount of fees over time; and
(f) set out reasons why the applicant believes the proposed scheme should be approved, having regard to each of the criteria and requirements for approval specified in regulation 20BH.
20BF Further information
(1) For the purposes of making a decision under regulation 20BG, the Regulator may, by notice in writing, request further information from the applicant.
(2) The notice must set out:
(a) the information sought; and
(b) the day by which the information is to be provided to the Regulator.
(3) The Regulator is not required to consider an application while waiting for the information to be provided.
(4) If the information is not provided on or before the day specified in the notice, the application is taken to have been withdrawn.
20BG Regulator to approve or refuse application
If the Regulator receives an application that is properly made under this Subdivision, the Regulator must:
(a) approve the application; or
(b) refuse the application.
20BH Approval of accreditation scheme
(1) The Regulator may approve an accreditation scheme if, and only if, the Regulator is satisfied that:
(a) the scheme operator is a fit and proper person; and
(b) the scheme operator, and each person involved in the management of the scheme:
(i) has appropriate knowledge and understanding of the regulatory framework and standards applicable to the installation of small generation units, including the framework for the creation of certificates under the Act and these Regulations; and
(ii) has the necessary qualifications, experience and expertise to properly manage the operation of the scheme; and
(c) the scheme operator has the capacity, resources and record (if any) to properly manage the operation of the scheme, consistent with the details set out in the application, in a sound, objective, transparent and rigorous manner; and
(d) the governance arrangements for the scheme are appropriate, having regard to the scope of the scheme; and
(e) the scheme includes appropriate measures and procedures to ensure that the requirements of the scheme, and the requirements of the Act and these Regulations, in relation to the installation of small generation units and the creation of certificates for such units are complied with; and
(f) the scheme operator has in place appropriate measures and procedures to identify and manage actual and perceived conflicts of interest in relation to the scheme; and
(g) the scheme operator has in place appropriate measures and procedures to identify and address non‑compliance with the requirements of the scheme and the requirements of the Act and these Regulations, including requirements in relation to the creation of certificates for small generation units; and
(h) the scheme operator has in place appropriate measures and procedures for the discipline of persons accredited under the scheme for failing to comply with the scheme’s requirements, and the requirements of the Act and these Regulations, in relation to the design and installation of small generation units and the creation of certificates for such units; and
(i) the scheme operator has given the undertaking mentioned in paragraph 20BD(2)(f); and
(j) the fees to be charged under the scheme are reasonable.
(2) In deciding whether to approve an application, the Regulator must have regard to any guidelines determined by the Regulator under subregulation (3) for the purposes of this regulation.
(3) The Regulator may, in writing, determine guidelines for the purposes of this regulation.
(4) The Regulator must publish details of any guidelines determined under subregulation (3) on the Regulator’s website.
20BI Notification of decision
(1) A decision of the Regulator to approve, or refuse, an application is to be made by notifiable instrument as soon as practicable after the decision is made.
(2) In addition to the requirement under subregulation (1), the Regulator must, within 28 days of making a decision to approve, or refuse, the application:
(a) notify the applicant in writing of the decision; and
(b) publish the decision on the Regulator’s website; and
(c) if the decision is to approve the application—on the Regulator’s website:
(i) provide details of a publicly accessible website where persons can view a copy of the accreditation scheme; and
(ii) specify the day on which the accreditation scheme comes into force; and
(d) if the decision is to refuse the application—include in the notice under paragraph (a) a statement of the applicant’s review rights under regulation 49.
20BJ Duration of approval
An approval remains in force until it is revoked by the Regulator under regulation 20BK.
20BK Revocation of approval
(1) The Regulator may revoke the approval of an accreditation scheme if:
(a) the Regulator considers it is no longer appropriate for the scheme to be approved having regard to the criteria in subregulation 20BH(1) concerning the granting of approvals; and
(b) the Regulator reasonably believes any of the following:
(i) the applicant made a false or misleading statement in an application under this Subdivision;
(ii) any person involved in the management of the scheme gave false or misleading information or documents to the Regulator or to another person performing functions or exercising powers under the Act or these Regulations;
(iii) there has been a failure to comply with an undertaking given under paragraph 20BD(2)(f);
(iv) the scheme is operating in a manner that is materially different from the manner described by the applicant in the application for approval;
(v) non‑compliance with the requirements of the scheme is not being addressed to the satisfaction of the Regulator;
(vi) the scheme operator or any other person involved in the management of the scheme is not a fit and proper person.
(2) The Regulator must revoke the approval of an accreditation scheme if the scheme operator requests the Regulator, in writing, to revoke the approval.
20BL Notice of proposed revocation
Notice of proposed revocation
(1) Before deciding to revoke an approval of an accreditation scheme under subregulation 20BK(1), the Regulator must:
(a) notify the scheme operator, in writing, of:
(i) the proposed revocation; and
(ii) the reasons for the proposed revocation; and
(b) invite the scheme operator to:
(i) make a submission as to why the approval should not be revoked; and
(ii) do so within the period specified in the notice; and
(c) both:
(i) publish details of the proposed revocation and reasons on the Regulator’s website on the day that the Regulator notifies the scheme operator under paragraph (a); and
(ii) invite members of the public to make submissions on the proposed revocation within the period specified in the notice under paragraph (a).
(2) The period (the response period) specified in the notice under paragraph (1)(a) must be at least 28 days commencing on the day the notice is given.
Decision on revocation
(3) In deciding whether to revoke the approval of an accreditation scheme under subregulation 20BK(1), the Regulator must consider any submissions made within the response period.
(4) The Regulator must:
(a) both:
(i) notify the scheme operator, in writing, of the decision; and
(ii) publish details of the decision on the Regulator’s website; and
(b) do so within 28 days after the end of the response period.
(5) If the decision is to revoke the approval of the accreditation scheme, the notice and published details must include the reasons for the decision.
Deemed decision to revoke
(6) If the Regulator does not comply with subregulation (4) within 28 days after the end of the response period, the Regulator is taken to have decided to revoke the approval of the accreditation scheme at the end of that period.
(7) Paragraph (4)(a) does not apply to a decision that is taken to have been made because of subregulation (6).
When revocation has effect
(8) If no submissions were made within the response period, the revocation has effect on the day after the last day of the response period.
(9) If submissions were made within the response period, the revocation has effect on:
(a) if the scheme operator was given a notice under subregulation (4)—the day after the scheme operator was given the notice; or
(b) if the scheme operator was not given a notice under subregulation (4)—the day after the Regulator is taken, under subregulation (6), to have decided to revoke the approval of the accreditation scheme.
Notification of deemed decision
(10) If a decision (the deemed decision) is taken to have been made because of subregulation (6), the Regulator must publish details of the deemed decision on the Regulator’s website as soon as practicable after the deemed decision is taken to have been made.
Decision to be notified by notifiable instrument
(11) In addition to any other requirement under this regulation, a decision (including a deemed decision) to revoke the approval of an accreditation scheme is to be notified by notifiable instrument as soon as practicable after the decision is made or is taken to have been made.
20BM Effect of revocation
If the Regulator revokes the approval of an accreditation scheme, the following provisions have effect:
(a) subject to paragraph (b), a person accredited under the scheme continues to be accredited (the continued accreditation) for all purposes as if the approval had not been revoked;
(b) the continued accreditation ceases to be in effect at the end of the earlier of:
(i) unless otherwise agreed in writing with the Regulator—the day the person’s accreditation would have ceased to be in effect if the approval of the accreditation scheme had not been revoked; and
(ii) 12 months after the day the revocation of the approval of the accreditation scheme comes into effect.
20BN Further approvals if no approved accreditation scheme
(1) If a revocation of the approval of an accreditation scheme for a kind of small generation unit mentioned in subregulation 20AC(2) results in there being no approved accreditation scheme in force for that kind of small generation unit, a person may, under regulation 20BD, apply to the Regulator to approve an accreditation scheme for that kind of small generation unit.
(2) Despite subregulations 20BD(4) and (5), the application must be made within the period specified for the purposes of this regulation by the Regulator on the Regulator’s website.
Division 2.5A—Suspension of registration
20CL Determining fit and proper person
For subsection 30A(5A) of the Act, in determining whether a registered person is a fit and proper person, the Regulator must have regard to the matters set out in regulation 3L, as if the reference to the applicant in that regulation were a reference to the registered person.
Division 2.5—Suspending accreditation of a power station
20DA Matters relevant to a decision to suspend the accreditation of a power station (Act s 30D)
(1) For subsection 30D(4A) of the Act, the Regulator must have regard to the following matters:
(a) whether the excess is material when measured against the baseline applicable to the excess station concerned;
(b) whether the shortfall is material when measured against the baseline applicable to the shortfall station concerned;
(c) whether the availability or amount of the relevant supply varied during the year for reasons that were beyond the control of the shortfall station or the excess station, as the case may be;
(d) whether the pattern of distribution of the relevant supply between the excess station and the shortfall station was occurring before 1 January 1997;
(e) whether the primary purpose of the distribution of the relevant supply between the excess station and the shortfall station was to increase the efficiency with which a product other than electricity was produced;
(f) the relative energy conversion efficiencies of the excess station and the shortfall station;
(g) if the shortfall station was permanently closed or temporarily non‑operational during the year—the reasons for the closure or temporary lack of operation of the power station;
(h) whether the relevant supply was distributed from the shortfall power station to the excess station for the purpose of displacing fossil fuel use at the excess station.
Note 1: Excess station, relevant supply and shortfall station have the same meanings as in section 30D of the Act.
Note 2: Eligible renewable energy source and renewable energy certificate have the same meanings as in subsection 5(1) of the Act.
(2) In this regulation:
material, in relation to an excess or shortfall, means an excess or shortfall greater than 2% of the baseline of the station concerned, or the amount of electricity that would need to be generated to create 2000 renewable energy certificates under the Act, whichever is less.
20D Circumstances for suspending accreditation of an accredited power station (Act s 30E)
(1) For the purposes of subsection 30E(5) of the Act, the Regulator may suspend the accreditation of an accredited power station if:
(a) the power station no longer generates electricity using an eligible energy source; or
(b) the power station is in the national electricity market and no longer uses standard metering that meets the requirements set by the National Electricity Rules; or
(c) the power station is not in the national electricity market and no longer uses metering which allows the Regulator to determine the amount of electricity generated by the power station; or
(d) both:
(i) at least one certificate has been created in relation to electricity generated by the power station using eligible WCMG; and
(ii) after the creation of the certificate, one of the following is created in relation to electricity generated by the power station using waste coal mine gas:
(A) an abatement certificate under the Electricity Supply Act 1995 (NSW);
(B) a gas electricity certificate under the Electricity Act 1994 (Qld);
(C) an abatement certificate under the Electricity (Greenhouse Gas Emissions) Act 2004 (ACT); or
(e) the nominated person for the power station applies, in accordance with subregulation (2), to suspend the accreditation of the power station; or
(f) the power station has become inoperable because of the removal, in whole or in part, of the components of the electricity generation system that make up the power station; or
(g) both of the following apply:
(i) the nominated person for the power station is a registered person whose registration is suspended under section 30 or 30A of the Act;
(ii) the suspension relates to the power station.
(2) For the purposes of paragraph (1)(e), the application must:
(a) be made in a manner and form approved by the Regulator; and
(b) provide a reason for the proposed suspension; and
(c) specify the day the proposed suspension is to begin and the period of the proposed suspension, which may be indefinite; and
(d) be accompanied by a statement in writing from any other stakeholder in relation to the power station indicating that the stakeholder agrees to the making of the application.
Division 2.6—Varying 1997 eligible renewable power baseline for an accredited power station
20E Circumstances for varying 1997 eligible renewable power baseline for an accredited power station (Act s 30F)
Application made to Regulator
(1) For subsections 30F(1) and (2) of the Act, the Regulator may vary the 1997 eligible renewable power baseline for an accredited power station if:
(a) one or more of the following situations arise:
(i) the nominated person for the power station becomes aware that information used to determine the baseline was inaccurate, misleading or incomplete; or
(ii) the nominated person for the power station becomes aware of an error in the determination of the baseline; or
(iii) an action or policy of the Commonwealth Government reduces the power station’s ability to generate electricity using an eligible energy source for a sustained period (for example, if the action or policy requires water to be diverted from one power station to another power station); and
(b) the nominated person makes an application to the Regulator in the manner set out in subregulation (3), to vary the 1997 eligible renewable power baseline; and
(c) the Regulator considers the application, taking into account, as appropriate, the matters set out in subregulation (4), and decides that the 1997 eligible renewable power baseline should be varied.
On Regulator’s own initiative
(2) For subsections 30F(1) and (2) of the Act, the Regulator may, on his or her own initiative, vary the 1997 eligible renewable power baseline for an accredited power station if:
(a) the Regulator becomes aware that 1 or more of the following situations has arisen:
(i) that information used to determine the baseline was inaccurate, misleading or incomplete;
(ii) that there is an error in the determination of the baseline;
(iii) an action or policy of the Commonwealth Government reduces the power station’s ability to generate electricity using an eligible energy source for a sustained period (for example, if the action or policy requires water to be diverted from one power station to another power station); and
(b) the Regulator gives the nominated person written notice stating:
(i) that the Regulator is considering whether to vary the baseline; and
(ii) the reasons for the possible variation; and
(iii) that the nominated person may give to the Regulator, by the date and in the form (if any) specified in the notice, any information that may assist the Regulator in deciding whether to vary the baseline; and
(c) the Regulator, having become aware of the situation and taking into account any information provided by the nominated person in response to a notice under paragraph (b), decides that the 1997 eligible renewable power baseline should be varied.
Form of application
(3) An application by a nominated person for an accredited power station for a variation of the 1997 eligible renewable power baseline for the power station:
(a) must be in writing; and
(b) must state the circumstance in paragraph (1)(a) on the basis of which the request is made; and
(c) must include, or be accompanied by, a statement explaining the reasons why the variation should be made and setting out any other relevant information.
Special considerations
(4) If the nominated person for a hydro‑electric power station requests a variation of the 1997 eligible renewable power baseline for the power station on the basis of the situation mentioned in subparagraph (1)(a)(iii), the Regulator must, in deciding whether to vary the baseline, consider the following matters:
(a) whether any water diverted to or from the power station is a direct result of an action or policy of the Commonwealth Government;
(b) the release patterns of any diverted water flows;
(c) whether any diverted water flows pass through the power station;
(d) if any water was diverted from the power station—the water‑to‑generation ratio of the power station;
(e) if the power station is part of a group of interconnected power stations—the water‑to‑generation ratio of the group of interconnected power stations.
20F Notification of determination under regulation 20E
(1) If the Regulator makes a determination varying the 1997 eligible renewable power baseline for an accredited power station (whether at the request of the nominated person for the power station or on his or her own initiative), the Regulator must, as soon as practicable after making the determination, give to the nominated person:
(a) a copy of the determination; and
(b) a statement of the reasons for the determination.
(2) If, after considering a request from a nominated person for an accredited power station, the Regulator makes a determination not to vary the 1997 eligible renewable power baseline for the power station, the Regulator must, as soon as practicable after making the determination, give to the nominated person:
(a) a copy of the determination; and
(b) a statement of the reasons for the determination.
Note: A determination varying the 1997 eligible renewable power baseline for an accredited power station is a reviewable decision under section 66 of the Act.
Division 2.7—Varying 2008 WCMG limit for an accredited power station
20FA Guidelines for varying 2008 WCMG limit
This Division prescribes guidelines for subsection 30G(2) of the Act.
20FB Circumstances for varying 2008 WCMG limit for an accredited power station
On application to Regulator
(1) The Regulator may vary the 2008 WCMG limit for an accredited power station if:
(a) the nominated person for the power station:
(i) becomes aware that information used to determine the 2008 WCMG limit was inaccurate, misleading or incomplete; or
(ii) becomes aware of an error in the determination of the 2008 WCMG limit; and
(b) the nominated person makes an application to the Regulator, in the manner set out in subregulation (3), to vary the 2008 WCMG limit; and
(c) after considering the application, the Regulator considers that the 2008 WCMG limit should be varied.
On Regulator’s own initiative
(2) The Regulator may, on his or her own initiative, vary the 2008 WCMG limit for an accredited power station if:
(a) the Regulator becomes aware that:
(i) information used to determine the 2008 WCMG limit was inaccurate, misleading or incomplete; or
(ii) there is an error in the determination of the 2008 WCMG limit; and
(b) the Regulator gives the nominated person written notice stating:
(i) that the Regulator is considering whether to vary the 2008 WCMG limit; and
(ii) the reasons for the possible variation; and
(iii) that the nominated person may give to the Regulator, by the date and in the form (if any) specified in the notice, any information that may assist the Regulator in deciding whether to vary the 2008 WCMG limit; and
(c) the Regulator, having become aware of the situation and having taken into account any information provided by the nominated person in response to a notice under paragraph (b), considers that the 2008 WCMG limit should be varied.
Form of application
(3) An application by a nominated person for an accredited power station for a variation of the 2008 WCMG limit for the power station:
(a) must be in writing in a form approved by the Regulator; and
(b) must state the circumstance in paragraph (1)(a) on the basis of which the request is made; and
(c) must include, or be accompanied by, a statement explaining the reasons why the variation should be made and setting out any other information the nominated person considers relevant; and
(d) must include, or be accompanied by, any other information or document required by the approved form.
20FC Redistribution of 2008 WCMG limits between accredited power stations
(1) The Regulator may vary the 2008 WCMG limit for a year for 2 or more accredited power stations if:
(a) the nominated person for each power station makes an application to the Regulator, in the manner set out in subregulation (3), to vary the 2008 WCMG limits for the power stations; and
(b) at least one certificate has been created in relation to electricity generated by each power station using waste coal mine gas; and
(c) after considering the applications, the Regulator considers that the 2008 WCMG limits should be varied for the year.
(2) However, the variation must not increase the combined total of the 2008 WCMG limits of the power stations.
(3) Each application for the variation of the 2008 WCMG limit of 2 or more power stations for a year:
(a) must be in writing in a form approved by the Regulator; and
(b) must be given to the Regulator by the nominated person no later than 30 September in the previous year; and
(c) must identify the power stations and the proposed change to the 2008 WCMG limit for each power station; and
(d) must include, or be accompanied by, any other information or document required by the approved form.
(4) The Regulator must not make a variation unless each application identifies the same power stations and the same proposed change to the 2008 WCMG limit for each power station.
20FD Notification of determination
(1) If the Regulator makes a determination under regulation 20FB or 20FC varying the 2008 WCMG limit for an accredited power station (whether at the request of the nominated person for the power station or on his or her own initiative), the Regulator must, as soon as practicable after making the determination, give to the nominated person:
(a) a copy of the determination; and
(b) a statement of the reasons for the determination.
(2) If, after considering a request from a nominated person under regulation 20FB or 20FC for an accredited power station, the Regulator makes a determination not to vary the 2008 WCMG limit for the power station, the Regulator must, as soon as practicable after making the determination, give to the nominated person:
(a) a copy of the determination; and
(b) a statement of the reasons for the determination.
Note: A determination varying the 2008 WCMG limit for an accredited power station is a reviewable decision under section 66 of the Act.
Part 2A—Clearing house for small‑scale technology certificates
20G Operation of clearing house
(1) For subsection 30U(1) of the Act, the Regulator may operate the clearing house as part of the register of small‑scale technology certificates.
(2) The clearing house transfer list is to be:
(a) maintained by electronic means; and
(b) made available for inspection on the internet.
(3) The Regulator must ensure that the clearing house transfer list is kept up to date.
(4) A person is not entitled to use the clearing house unless the person agrees to the terms and conditions determined by the Regulator for use of the clearing house.
(5) The Regulator must make the terms and conditions available to a person proposing to use the clearing house.
20H Application to enter small‑scale technology certificates into clearing house
(1) For paragraph 30K(2)(c) of the Act, an application must be accompanied by the following information:
(a) the applicant’s ABN and ACN (if any);
(b) the name and contact details of a contact person for the application;
(c) whether the applicant is registered for GST or required to be registered for GST;
(d) the bank account details of an Australian bank into which the Regulator is to make payments to the applicant for the sale of the applicant’s small‑scale technology certificates;
(e) the unique identification code for each small‑scale technology certificate proposed to be entered into the clearing house;
(f) if the applicant is registered for GST or required to be registered for GST—whether there is any reason why the transfer of any of the applicant’s small‑scale technology certificates to a purchaser under section 30N of the Act would not be a taxable supply.
(2) For the purposes of paragraphs 30K(2)(c) and (d) of the Act, the application must be accompanied by identity evidence for the applicant.
(3) Subregulation (1) does not apply to information if:
(a) the applicant has previously provided the information to the Regulator; and
(b) the information remains current.
(4) Subregulation (2) does not apply to identity evidence for the applicant if:
(a) the applicant has previously provided the identity evidence to the Regulator; and
(b) the documentation or the digital identity in respect of which the identity evidence was provided remains current.
20I Entering small‑scale technology certificates into the clearing house
For subsection 30L(1) of the Act, if more than 1 small‑scale technology certificate is included in an application under section 30K of the Act, the Regulator may, subject to subsection 30L(2) of the Act, include the certificates on the clearing house transfer list in the order in which the Regulator considers appropriate.
20J Removing small‑scale technology certificates from clearing house transfer list
For paragraph 30U(2)(d) of the Act, the Regulator may remove a small‑scale technology certificate from the clearing house transfer list if:
(a) the certificate has, for any reason, ceased to be valid; or
(b) the removal of the certificate is necessary to comply with a court order; or
(c) the Regulator decides to withdraw the certificate from the list under regulation 20K.
20K Regulator may withdraw small‑scale technology certificates from clearing house
(1) This regulation applies if a small‑scale technology certificate is on the clearing house transfer list and the registered owner of the certificate transfers the certificate to another person (the transferee) otherwise than under Part 2A of the Act.
(2) For paragraph 30U(2)(c) of the Act, the Regulator may withdraw the certificate from the clearing house unless the transferee provides the Regulator with the following information and identity evidence within the time specified in subregulation (3):
(a) the transferee’s ABN and ACN (if any);
(b) the name and work contact details of a contact person for the certificate;
(c) whether the transferee is registered for GST or required to be registered for GST;
(d) the bank account details of an Australian bank into which the Regulator is to make payments to the transferee for the transfer of the certificate;
(e) if the transferee is registered for GST or required to be registered for GST—whether there is any reason why the transfer of any of the transferee’s certificates to a purchaser under section 30N of the Act would not be a taxable supply;
(f) identity evidence for the transferee.
(3) The information and identity evidence must be provided to the Regulator by electronic communication:
(a) within 7 days after the certificate is transferred to the transferee; or
(b) no later than the day the certificate is listed at the top of the clearing house transfer list;
whichever occurs first.
(4) The Regulator must, within 7 days after withdrawing the certificate from the clearing house, notify the transferee in writing of the withdrawal.
(5) Subregulation (2) does not apply to information if:
(a) the transferee has previously provided the information to the Regulator; and
(b) the information remains current.
(6) Subregulation (2) does not apply to identity evidence for the transferee if:
(a) the transferee has previously provided the identity evidence to the Regulator; and
(b) the documentation or the digital identity in respect of which the identity evidence was provided remains current.
20L Owner may request Regulator to withdraw small‑scale technology certificates
(1) The registered owner of a small‑scale technology certificate on the clearing house transfer list may, in writing, request the Regulator to withdraw the certificate from the clearing house.
(2) The request must be made by electronic communication to the Regulator.
(3) The electronic communication must be in the form specified by the Regulator.
20M Persons not entitled to purchase small‑scale technology certificates through clearing house
(1) For subsection 30M(2) of the Act, a person is not entitled to make an application to purchase a small‑scale technology certificate unless, before the person makes the application, the person is registered for GST and provides the Regulator with the following information and identity evidence:
(a) the person’s ABN or ACN (if any);
(b) the name and work contact details of a contact person for the certificate;
(c) the bank account details of an Australian bank into which the Regulator is to make any refunds to the person under the Act;
(d) whether there is any reason why the transfer of the certificate to the person under section 30N or subsection 30P(3) of the Act would not be a taxable supply; and
(e) identity evidence for the applicant.
(2) Subregulation (1) does not apply to information if:
(a) the applicant has previously provided the information to the Regulator; and
(b) the information remains current.
(3) Subregulation (1) does not apply to identity evidence for the applicant if:
(a) the applicant has previously provided the identity evidence to the Regulator; and
(b) the documentation or the digital identity in respect of which the identity evidence was provided remains current.
20N Small‑scale technology certificates to be transferred or created within 3 days
(1) For paragraph 30U(2)(b) of the Act, if section 30N of the Act applies to an application to purchase a small‑scale technology certificate, the Regulator must, in accordance with subsection 30N(2) of the Act, transfer the certificate within 3 business days after the GST inclusive clearing house price accompanying the application is received as cleared funds in the Regulator’s bank account.
(2) For paragraph 30U(2)(b) of the Act, if section 30P of the Act applies to an application to purchase a small‑scale technology certificate, the Regulator must, in accordance with subsection 30P(2) of the Act, create the certificate within 3 business days after the GST inclusive clearing house price accompanying the application is received as cleared funds in the Regulator’s bank account.
20O Refunds
(1) This regulation is made for subparagraph 30U(2)(i)(i) of the Act and applies if the Regulator:
(a) has transferred 1 or more certificates to a purchaser; and
(b) is required under paragraph 30N(3)(b) of the Act to pay the seller the clearing house price for each certificate.
(2) The Regulator must pay into the purchaser’s bank account an amount equal to 10% of the clearing house price for each certificate.
(3) In this regulation:
bank account, for a purchaser, means the purchaser’s bank account, the details of which have been provided to the Regulator under paragraph 20M(c).
20P GST registration
(1) This regulation applies if the registered owner of a certificate that is on the clearing house transfer list becomes registered, or required to be registered, for GST, or ceases to be registered, or required to be registered, for GST, before the certificate is transferred to a purchaser under subsection 30N(2) of the Act.
(2) For subsection 30U(1) of the Act, the registered owner must notify the Regulator that the owner has become registered, or required to be registered, for GST or has ceased to be registered, or required to be registered, for GST.
(3) The notice must:
(a) be made by electronic communication; and
(b) be communicated to the Regulator within 7 days after the registered owner becomes registered, or required to be registered, for GST or ceases to be registered, or required to be registered, for GST.
20Q Identity evidence
(1) A person provides evidence (identity evidence) of the person’s identity if:
(a) in the case that the person is an individual—the person consents to the transfer of the person’s digital identity from an identity service provider to the Regulator; or
(b) in any case—the person provides documents to establish the person’s identity to the Regulator.
Note: For the requirement to provide identity evidence, see subregulation 20H(2) and paragraphs 20K(2)(f) and 20M(1)(e).
(2) A person may provide a document identifier for a document in place of a document mentioned in paragraph (1)(b) if the Regulator is able to verify the document by providing the document identifier to the document verification service.
Part 3—Acquisition of electricity
21A Prescribed person or body
For paragraphs 31(2)(c) and 32(1)(a) and section 34 of the Act, NTESMO is prescribed.
21 Amount of electricity acquired
(1) For subsection 31(3) of the Act, the amount of electricity acquired under a relevant acquisition is:
(a) if the electricity is acquired from AEMO or NTESMO—the amount worked out on the basis of metering data used for AEMO or NTESMO settlement statements; or
(b) if the electricity is acquired directly from the person who generated the electricity at the interface between the transmission and distribution system—the amount worked out using:
(i) AEMO or NTESMO equivalent settlement data; or
(ii) if the person who generated the electricity and the liable entity are not in the same distribution network—customer purchase data adjusted to the node, or node equivalent, by using the applicable distribution loss factor; or
(iii) generation data adjusted to the node, or node equivalent, by using the applicable marginal loss factor or equivalent; or
(c) if the electricity is used outside the site of generation but in the same distribution network—the amount worked out using, depending on the applicable contractual arrangements:
(i) the amount generated, as metered at the power station’s grid connection point; or
(ii) the acquisition as metered at the customer’s grid connection point; or
(d) if the electricity is acquired at the site of the generation—the amount of metered electricity at the point on which the contractual arrangement is based; or
(e) if none of paragraphs (a) to (d) applies:
(i) the amount of metered or calculated electricity provided at the interface between the transmission and distribution system; or
(ii) the amount of metered or calculated electricity at the point at which ownership of the electricity changes, in accordance with contractual arrangements.
(2) In paragraphs (1)(b), (c), and (e), the method of calculation used is to be chosen by the Regulator after consultation with the liable entity.
22 Capacity of grids
(1) For the purposes of subsection 31(3) of the Act, the capacity of a grid is the sum of the nameplate capacity (specified by the manufacturer in MW) for each electricity generator connected (directly or indirectly) to the grid, other than:
(a) a privately owned domestic generator; or
(b) a generator that:
(i) has been connected (directly or indirectly) to the grid for at least the 3 calendar years before the assessment year; and
(ii) in each of those years either produced less than 50 GWh or had a load factor of less than 5%.
(2) Despite subregulation (1), if a liable entity satisfies the Regulator that it is not appropriate to use the nameplate capacity for a particular electricity generator to determine the capacity of a grid, the Regulator may calculate the capacity of the grid by using the nominal capacity of that generator.
Part 3A—Exemption Certificates
Division 1—Interpretation
22A Interpretation
(1) In this Part and Schedule 6:
ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
ACN has the same meaning as in the Corporations Act 2001.
acquired has the meaning given by subregulation 22A(8).
activity group has the meaning given by subregulation 22A(9).
applicant means a prescribed person that makes an application for an exemption certificate.
ASTM followed by a number (for example, ASTM D6347/D6347M‑99) means a standard of that number issued by ASTM International and, if a date is included, of that date.
Note: ASTM means the American Society for Testing and Materials.
carbon steel means material which:
(a) contains by mass more iron (Fe) than any other single element; and
(b) has a carbon (C) concentration less than 2%.
certifiable amount has the meaning given by subregulation 22ZHC(2).
coke oven coke means the solid product obtained from the carbonisation of coal (principally coking coal) at a high temperature and includes coke breeze and foundry coke.
condensate has the same meaning as in the Excise Act 1901.
controlling corporation means a corporation to which paragraph 51(xx) of the Constitution applies that does not have a holding company incorporated in Australia.
Department of Climate Change and Energy Efficiency means the Department administered by the Minister who administers the National Greenhouse and Energy Reporting Act 2007.
electricity use method advice has the meaning given by paragraph 22O(1)(i).
eligible petroleum feedstocks means any 1 or more of the following that were not produced through the conduct of an emissions‑intensive trade‑exposed activity carried on in Australia:
(a) catalytic cracker feedstocks that are processed in the catalytic cracker in carrying on the emissions‑intensive trade‑exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere;
(b) hydro‑cracker unit feedstocks that are processed in the hydro‑cracking unit in carrying on the emissions‑intensive trade‑exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere;
(c) reformer unit feedstocks that are used to produce reformate in carrying on the emissions‑intensive trade‑exposed activity and have a density of 0.6 to 0.80 kg/L at 15 °C and 1 atmosphere;
(d) alkylation unit feedstocks that are used to produce alkylate in carrying on the emissions‑intensive trade‑exposed activity and have a density of 0.55 to 0.62 kg/L at 15 °C and 1 atmosphere;
(e) bitumen feedstocks that are used to produce bitumen in carrying on the emissions‑intensive trade‑exposed activity and have a density greater than or equal to 0.95 kg/L at 15 °C and 1 atmosphere;
(f) lubricant base stock feedstocks that are used to produce lubricant base stocks in carrying on the emissions‑intensive trade‑exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere.
facility has the meaning given by section 9 of the National Greenhouse and Energy Reporting Act 2007.
financial control has the meaning given by subregulations 22K(4) and (5).
group has the meaning given by subregulation (2).
highly emissions‑intensive has the meaning given in subregulation (3).
iron ore, for Part 37 of Schedule 6, means any form of iron ore product that has not been semi‑processed into iron ore balls or exposed to a hardening process by the application of heat or pressure and includes:
(a) magnetite ore that has been concentrated; and
(b) hematite ore that has been crushed to varying extents.
joint venture means an unincorporated enterprise carried on by 2 or more entities in common otherwise than as a partnership.
LGC means a large‑scale generation certificate.
limited assurance conclusion has the same meaning as in the National Greenhouse and Energy Reporting (Audit) Determination 2009.
member has the meaning given by subregulation (4).
moderately emissions‑intensive has the meaning given in subregulation (5).
operational control has the meaning given by subregulation (6).
product means a product that is specified in Division 3 of a Part in Schedule 6 as the basis for the issue of an exemption certificate in relation to the carrying on of an emissions‑intensive trade‑exposed activity.
reasonable assurance conclusion has the same meaning as in the National Greenhouse and Energy Reporting (Audit) Determination 2009.
REC means a renewable energy certificate.
referrable to a site has the meaning given in subregulation (7).
relevant financial year means:
(a) if the application made under subsection 46A(1) of the Act for a year (the application year) is not for a site that meets the criteria for a new entrant site specified in subregulation 22ZD(3)—the financial year which ended 6 months before the application year; or
(b) if the application made under subsection 46A(1) of the Act for the application year is for a site that meets the criteria for a new entrant site specified in subregulation 22ZD(3)—the financial year which began 6 months before the application year.
relevant product means:
(a) in relation to an application for an exemption certificate:
(i) a product that is identified in the application as meeting the requirements specified in Division 3 of a Part in Schedule 6; or
(ii) a substance mentioned in paragraphs 664(1)(a) to (e) of Schedule 6 that satisfies the requirements to be included in the kilolitres of product relevant for applying the electricity baseline for the activity of petroleum refining; and
(b) in relation to an exemption certificate that has been issued:
(i) a product that meets the requirements specified in Division 3 of a Part in Schedule 6 as the basis for the issue of the certificate; or
(ii) a substance mentioned in paragraphs 664(1)(a) to (e) of Schedule 6 that satisfies the requirements to be included in the kilolitres of product relevant for applying the electricity baseline for the activity of petroleum refining.
saleable quality has the meaning given in regulation 22C.
stabilised crude petroleum oil has the meaning given in the Australian Taxation Office Interpretative Decision, ATO ID 2008/154, published on 18 November 2008.
unleaded petrol means all grades of unleaded petrol meeting Australian or international standards, including standard unleaded petrol, premium unleaded petrol and other proprietary forms of unleaded petrol.
use amount for a liable entity has the meaning given by paragraph 22ZHC(2)(a).
(2) Entities are taken to be a group if the entities are a controlling corporation’s group under the National Greenhouse and Energy Reporting Act 2007.
(3) An emissions‑intensive trade‑exposed activity is highly emissions‑intensive if the activity is classified as a highly emissions‑intensive activity in Division 2 of the relevant Part in Schedule 6 for the activity.
(4) An entity is a member of a controlling corporation’s group if the entity is a member of the controlling corporation’s group under the National Greenhouse and Energy Reporting Act 2007.
(5) An emissions‑intensive trade‑exposed activity is moderately emissions‑intensive if the activity is classified as a moderately emissions‑intensive activity in Division 2 of the relevant Part in Schedule 6 for the activity.
(6) An entity is taken to have operational control over a facility if the entity has operational control of the facility under the National Greenhouse and Energy Reporting Act 2007.
(7) An amount or volume of a relevant product that is identified in an application for an exemption certificate is referrable to a site only if:
(a) the site is nominated in the application for the certificate in relation to the product; and
(b) the Regulator is satisfied that the nomination meets the conditions specified in subregulation 22B(1); and
(c) the Regulator is satisfied that the amount or volume of relevant product meets the conditions specified in subregulation 22B(2).
(8) Electricity is acquired for use at a site only if the electricity is used at the site and, in relation to that electricity, there was a relevant acquisition between the point of generation of the electricity and the point of use.
(9) If an emissions‑intensive trade‑exposed activity is, or is to be, carried on partly at 1 site and partly at 1 or more different sites, then all of those sites constitute an activity group if:
(a) the processes involved in the transformation relevant to the carrying on of the activity occur, or will occur:
(i) at those different sites; and
(ii) as part of the same production process; and
(b) for the activity of petroleum refining—the products produced from relevant products are transferred between the sites in order to conduct any of the processes listed in paragraphs 662(1)(a) to (d) of Schedule 6; and
(c) for any other activity—the production of the relevant product from the activity involves the transfer of an intermediate product between the sites in order to produce the relevant product.
22B Conditions for production to be referrable to a site
(1) For paragraph 22A(7)(b), the conditions for the nomination of a site in relation to an amount or volume of a relevant product are as follows:
(a) the relevant product in relation to which a site is nominated is, or will be, the product of an emissions‑intensive trade‑exposed activity that is, or is to be, carried on wholly or partly at the nominated site;
(b) only 1 site is to be nominated in respect of an amount or volume of relevant product;
(c) the site is not a site at which the emissions‑intensive trade‑exposed activity is, or is to be, carried on only in an ancillary way.
(2) For paragraph 22A(7)(c), the conditions that the amount or volume of relevant product must meet are as follows:
(a) if the amount or volume of relevant product is identified in the application as the product of a single site—the site:
(i) is not part of an activity group; or
(ii) if the site is part of an activity group, all other sites in the activity group are sites at which the activity is, or is to be, only carried on in an ancillary way;
(b) if the amount or volume of relevant product is identified in the application as the product of each site nominated in an activity group— the amount or volume is calculated in accordance with the following formula:
where:
PT is the total amount or volume of the relevant product produced, or to be produced, from the emissions‑intensive trade‑exposed activity at all of the sites that are part of the same activity group.
ES is a reasonable estimate of the following amounts of electricity:
(a) if 80% or more of the electricity used at the site is used for the purpose of carrying on the activity—the amount of electricity (expressed in megawatt hours) acquired for use at the site; or
(b) if less than 80% of the electricity used at the site is used for the purpose of carrying on the activity—the amount of electricity (expressed in megawatt hours) acquired for use in carrying out the activity.
ET is the sum of all the estimated amounts of electricity (ES) for all of the sites in the activity group (other than sites at which the emissions‑intensive trade‑exposed activity is, or is to be, only carried on in an ancillary way).
22C Meaning of saleable quality
(1) In this Part and Schedule 6, saleable quality is intended to have its ordinary meaning as understood by participants in the relevant market, subject to subregulations (2) to (5).
(2) A product is taken to be of saleable quality if it is produced to a level at which it would ordinarily be considered by participants in the relevant market:
(a) to be the output of a process carried on as part of an emissions‑intensive trade‑exposed activity; and
(b) to have a commercial value as that output.
Note: On this basis, the output may meet particular industry standards or specifications (either general specifications or those set by particular customers). It may also meet internal standards by which it can be used by the firm as part of another process conducted by the firm.
Outputs that are of saleable quality do not need to be sold in the year of production. Therefore, an output that is produced and entered on an inventory can be of saleable quality.
(3) A sub‑standard product that is discarded is taken not to be of saleable quality.
(4) A product that is recycled back into the same emissions‑intensive trade‑exposed activity to produce a new output is taken to be of saleable quality only once.
Examples:
1 Metal that is re‑melted in the same equipment in which it was produced.
2 Paper that is re‑inputted into a paper making process.
(5) Material that is scrapped or lost before it is packaged as a product that is of saleable quality:
(a) is taken not to be of saleable quality; and
(b) is taken not to be included in an amount of product that is of saleable quality that is to be counted for the purpose of calculating a liable entity’s exemption.
Division 2—Emissions‑intensive trade‑exposed activities
22D Emissions‑intensive trade‑exposed activities
For the purposes of the definition of emissions‑intensive trade‑exposed activity in section 5 of the Act, each activity specified in Division 1 of a Part (other than Part 1) in Schedule 6 is prescribed.
Note: Other Divisions in a Part of Schedule 6 set out information that is required for the purposes of calculating the amount of a liable entity’s exemption.
Division 3—Publication of information
22E Information about exemptions to be published—section 38C of the Act
(1) For the purposes of paragraph 38C(1)(c) of the Act, the name of each of the emissions‑intensive trade‑exposed activities set out in the exemption certificates to which the exemption relates is required.
(2) For the purposes of subsection 38C(2) of the Act, the following information is required to be published within 28 days after an exemption certificate is issued:
(a) the name of the person to whom the certificate is issued;
(b) the site and the emissions‑intensive trade‑exposed activity or activities set out in the certificate;
(c) the State or Territory in which the site is located.
(3) For the purposes of subsection 38C(2) of the Act, for a year, an estimate of the total amount of exemptions given for each emissions‑intensive trade‑exposed activity is required to be published by 30 March in the year after the year to which the exemptions relate.
Division 4—Applications for exemption certificates
Subdivision A—Who may apply—prescribed persons
22F Prescribed persons—subsection 46A(1) of the Act
This Subdivision prescribes persons for subsection 46A(1) of the Act.
22G Prescribed person—person with contract for supply of electricity to site
If:
(a) a person is making an application under subsection 46A(1) of the Act in relation to a site and a year (the application year); and
(b) the person (the contracting person) was a party to a contract for the supply of electricity consumed at the site during the whole, or part of, the year immediately preceding the application year; and
(c) the contract was with a liable entity in relation to electricity consumed at the site during the period mentioned in paragraph (b); and
(d) an emissions‑intensive trade‑exposed activity is to be carried on at the site during the application year; and
(e) immediately before the day the application is made:
(i) the contracting person is a party to a contract for the supply of electricity consumed at the site; and
(ii) in relation to the site, activity and the application year there is no valid application before the Regulator, and there is no exemption certificate issued, for the activity, the site and the application year;
then the contracting person is a prescribed person for the activity, the site and the application year.
22H Prescribed person—liable entity with operational control
If:
(a) a person has operational control of a facility immediately before the person makes an application under subsection 46A(1) of the Act in respect of a site and a year; and
(b) an emissions‑intensive trade‑exposed activity is carried on at the site; and
(c) the facility is the principal facility that is carried on at the site; and
(d) the person is the liable entity for:
(i) over 30% of the electricity consumed at the site; or
(ii) the majority of the electricity consumed at the site that gives rise to a relevant acquisition;
in the 6 months immediately preceding the day the person makes the application; and
(e) immediately before the day the application is made in relation to the activity, the site and the year there is no valid application before the Regulator, and there is no exemption certificate issued for the activity, the site and the application year;
then the person is a prescribed person for the activity, the site and the year.
22I Prescribed person—liable entity for future activity
If:
(a) immediately before a person makes an application in respect of a site and a year, an emissions‑intensive trade‑exposed activity is not yet carried on at the site; and
(b) the emissions‑intensive trade‑exposed activity is to be carried on at the site during the application year; and
(c) when the emissions‑intensive trade‑exposed activity is first to be carried on at the site the person will have operational control of the facility; and
(d) the facility will be the principal facility that is carried on at the site; and
(e) the person will be the liable entity for over 30% of the electricity consumed at the site during the application year; and
(f) immediately before the day the application is made in relation to the activity, the site and the year there is no valid application before the Regulator, and there is no exemption certificate issued for the activity, the site and the application year;
then the person is a prescribed person for the activity, the site and the application year.
22J Prescribed person—person with a new contract for supply of electricity
If:
(a) a person is making an application under subsection 46A(1) of the Act in relation to a site and a year; and
(b) an emissions‑intensive trade‑exposed activity is to be carried on at the site during the year; and
(c) immediately before the day the application is made for the site, there is no prescribed person of a kind mentioned in regulation 22G, 22H or 22I; and
(d) the person is a party to a contract with a liable entity for a supply of electricity to be consumed at the site in the year; and
(da) upon making the application under subsection 46A(1) of the Act, the person is not eligible to be a prescribed person under regulation 22G, 22H or 22I; and
(e) immediately before the day the application is made in relation to the activity, the site and the application year there is no valid application before the Regulator, and there is no exemption certificate issued, for the activity, the site and the year;
then the person is a prescribed person in relation to the activity, the site and the year.
22K Prescribed person—nominated person
(1) If:
(a) a person is a prescribed person (the first person) under regulation 22G, 22H, 22I or 22J for an emissions‑intensive trade‑exposed activity to be carried on at a site during a year; and
(b) before the first person makes an application in respect of the site and the year under subsection 46A(1) of the Act, the first person gives the Regulator notice; and
(c) the notice states that another person in relation to the principal facility carried on, or to be carried on, at the site may apply for an exemption certificate for the activity, the site and the year; and
(d) the other person is a controlling person (see subregulation (3)) in relation to the principal facility; and
(e) immediately before the day the application is made in relation to the activity, the site and the year there is no valid application before the Regulator, and there is no exemption certificate issued, for the activity, the site and the year;
then the other person is taken to be the prescribed person for the activity, the site and the year.
(2) The notice under subregulation (1) must be given in writing.
(3) Controlling person, in relation to the principal facility to be carried on at the site, means 1 of the following:
(a) a person with operational control of the facility;
(b) the controlling corporation that has a member of its group with operational control of the facility;
(c) a person that is not the operator of the facility who has financial control (see subregulation (4)) over the facility.
(4) If a person (the operator) has operational control over a facility, another person (the second person) has financial control over the facility if:
(a) under a contract between:
(i) the operator; and
(ii) the second person;
the operator operates the facility on behalf of the second person; or
(b) under a contract between:
(i) the operator; and
(ii) the second person and 1 or more other persons;
the operator operates the facility on behalf of the second person and those other persons; or
(c) the second person is able to control the trading or financial relationships of the operator in relation to the facility; or
(d) the second person has the economic benefits from the facility; or
(e) all of the following conditions are satisfied:
(i) the second person is a participant in a joint venture;
(ii) there is only 1 other participant in the joint venture;
(iii) the second person shares the economic benefits from the facility with the other participant;
(iv) the second person’s share equals or exceeds the share of the other participant; or
(f) all of the following conditions are satisfied:
(i) the second person is a participant in a joint venture;
(ii) there are 2 or more other participants in the joint venture;
(iii) the second person shares the economic benefits from the facility with the other participants;
(iv) no other participant has a share of the economic benefits from the facility; or
(g) all of the following conditions are satisfied:
(i) the second person is a partner in a partnership;
(ii) there are 2 or more other partners in the partnership;
(iii) the second person shares the economic benefits from the facility with the other partners;
(iv) no other partner has a share that exceeds the share of the second person; or
(h) the second person is able to direct or sell the output of the facility.
(5) In determining whether the second person has that financial control, regard must be had to the economic and commercial substance of the matters mentioned in subregulation (4).
22L Prescribed person—liable entity changes (production calculation method)
(1) If:
(a) a prescribed person has been granted an exemption certificate in relation to an emissions‑intensive trade‑exposed activity, site and year; and
(aa) the amount of the exemption is worked out under Division 5 (production calculation method); and
(b) during the year the liable entity set out in the certificate ceases to be the liable entity in relation to the electricity consumed at the site; and
(c) a second liable entity begins to be the liable entity in relation to electricity consumed at the site; and
(d) the prescribed person applies again under subsection 46A(1) of the Act before the end of the year in relation to the activity, site, year and second liable entity;
then the prescribed person is a prescribed person for the activity, the site, the year and the second liable entity.
(2) If during the year:
(a) the second liable entity ceases to be the liable entity in relation to the electricity consumed at the site; and
(b) a third liable entity begins to be the liable entity in relation to electricity consumed at the site; and
(c) the prescribed person applies again under subsection 46A(1) of the Act before the end of the year in relation to the activity, site, year and third liable entity;
then the prescribed person is a prescribed person for the activity, the site, the year and the third liable entity.
22LA Prescribed person—liable entity changes (electricity use method)
(1) If:
(a) a prescribed person has been granted an exemption certificate in relation to an emissions‑intensive trade‑exposed activity, site and year; and
(b) the amount of the exemption is worked out under Division 5A (electricity use method); and
(c) during the year, the liable entity set out in the certificate (the old liable entity) ceases to be a liable entity in relation to electricity consumed at the site; and
(d) another entity (the new liable entity) begins to be a liable entity in relation to electricity consumed at the site instead of the old liable entity; and
(e) either:
(i) the prescribed person applies again under subsection 46A(1) of the Act before the end of the year in relation to the activity, site, year and new liable entity; or
(ii) subregulation (2) applies in relation to another person (the contracting person);
then the prescribed person or the contracting person, as the case requires, is a prescribed person for the activity, site, year and new liable entity.
(2) For the purposes of subparagraph (1)(e)(ii), this subregulation applies in relation to the contracting person, if:
(a) with the consent of the prescribed person mentioned in paragraph (1)(a), the contracting person makes an application under subsection 46A(1) of the Act before the end of the year in relation to the activity, site, year and new liable entity; and
(b) immediately before the day the application is made, the contracting person is a party to a contract with the new liable entity for the supply of electricity consumed at the site.
22M Prescribed person—multiple liable entities (production calculation method)
If:
(a) a prescribed person has been granted an exemption certificate in relation to an emissions‑intensive trade‑exposed activity, site and year; and
(aa) the amount of the exemption is worked out under Division 5 (production calculation method); and
(b) either:
(i) at the start of the year there are one or more liable entities in relation to the electricity consumed at the site, other than the liable entity set out in the certificate; or
(ii) during the year one or more liable entities, in addition to the liable entity set out in the certificate, begin to be a liable entity in relation to the electricity consumed at the site; and
(c) the prescribed person has not been, or has not applied to be, a prescribed person under subregulation 22L(1) for the activity, site and year; and
(d) the prescribed person applies again under subsection 46A(1) of the Act before the end of the year in relation to:
(i) the activity; and
(ii) the site; and
(iii) the year; and
(iv) the liable entity that is likely to be responsible for the most amounts of relevant acquisitions consumed at the site during the year by all the liable entities mentioned in subparagraphs (b)(i) or (ii) (other than the liable entity set out in the certificate);
then the prescribed person is a prescribed person for the activity, the site, the year and the second liable entity.
Example: Company A operates a zinc smelter at a site with 2 connection points to the National Electricity Market. The company has a different retailer for each of those connection points. The company would first apply in relation to one of the retailers and obtain the full value of the exemption for the emissions‑intensive trade‑exposed activity. The company would then apply for a second certificate for the second retailer by becoming a prescribed person under regulation 22M. Once approved, the first certificate would be reduced in accordance with regulation 22ZQ.
22MA Prescribed person—multiple liable entities (electricity use method)
If:
(a) a prescribed person has been granted one or more exemption certificates, in relation to an emissions‑intensive trade‑exposed activity, site, year and one or more liable entities (an earlier liable entity); and
(b) the amount or amounts of the exemptions is worked out under Division 5A (electricity use method); and
(c) during the year, an entity (an added liable entity) begins to be a liable entity in relation to electricity consumed at the site in addition to the earlier liable entities; and
(d) the prescribed person has not been, and has not applied to be, a prescribed person under regulation 22LA for the activity, site, year and the added liable entity; and
(e) the prescribed person applies again under subsection 46A(1) of the Act before the end of the year in relation to the activity, site, year and the added liable entity;
then the prescribed person is a prescribed person for the activity, site, year and added liable entity.
Subdivision B—Information to be included in applications under subsection 46A(1) of the Act
22N Information to be included
(1) This Subdivision prescribes information that must be included in an application under subsection 46A(1) of the Act.
(2) The Subdivision is made for the purposes of paragraph 46A(2)(b) of the Act.
22O Information to be included with all applications
(1) The following information is prescribed in relation to all applications under subsection 46A(1):
(a) the applicant’s name, address and contact details;
(b) the applicant’s ABN and ACN;
(c) the name and work contact details of a contact person for the application;
(d) a description of the basis upon which the applicant is a prescribed person;
(e) an explanation of how the emission‑intensive trade‑exposed activity or activities will be carried on at the site in the year and how any requirements relating to the conduct of the activity or activities will be met;
(f) if the amount of the exemption is to be worked out under Division 5 (production calculation method)—an explanation of the amount or volume of relevant production and other numbers relevant to the application of the method in Division 5, including:
(i) the basis on which such amounts have been calculated; and
(ii) how any amounts or volumes of relevant product have been measured and the frequency of the measurements; and
(iii) how the nomination of amounts or volumes of a relevant product satisfy the conditions in regulation 22B; and
(iv) how any other requirements relating to those amounts have been met;
(g) if the amount of the exemption is to be worked out under Division 5 (production calculation method)—a statement of the amount of the exemption that should be set out in the exemption certificate and how that amount should be calculated in accordance with Division 5 (including any assumptions made about values or amounts not known at the time of the application);
(h) if the amount of the exemption is to be worked out under Division 5A (electricity use method):
(i) the names of the liable entity or entities to which the application relates; and
(ii) for each activity identified in the application—an estimate of the amount or volume of relevant product identified in the application and referrable to the site; and
(iii) if the applicant considers that metering data should be used (whether alone or as part of a formula with other elements) to identify the use amount for a liable entity to which the application relates—identifying information for the meters supplying the data, including the National Metering Identifier (if any) for each such meter within the meaning of the National Electricity Rules; and
(iv) if there are one or more meters at the site with a National Metering Identifier (within the meaning of the National Electricity Rules) to which subparagraph (iii) does not apply—identifying information for each such meter, including the National Metering Identifier;
(i) if the amount of the exemption is to be worked out under Division 5A (electricity use method)—the following information (the electricity use method advice):
(i) whether the applicant considers that metering data is sufficient and appropriate to identify the use amount for a liable entity to which the application relates, and why or why not;
(ii) if the applicant considers that metering data is not sufficient or not appropriate to identify the use amount for a liable entity—the formula that, having regard to the Regulator’s object set out in subregulation 22ZHC(5), the applicant considers would be appropriate to identify the use amount, and an explanation of the elements of the proposed formula and why it would be appropriate.
(2) The following information is also prescribed in relation to all applications made under subsection 46A(1) of the Act (other than an application of a kind mentioned in regulation 22S or 22T):
(a) a map that sets out the following:
(i) the site in respect of which the application is made;
(ii) where on the site the emission‑intensive trade‑exposed activities are carried on;
(iii) the sources of electricity generation that are part of the site and the nameplate rating (in MW) of each of those sources;
(iv) any point at which electricity is delivered to the site other than by means of an electricity grid with a capacity of 100 MW or more;
(v) how the site is connected to an electricity grid with a capacity that is 100 MW or more;
(b) the name of the liable entity (as referred to in paragraph 46A(1)(b) of the Act);
(c) if:
(i) an emission‑intensive trade‑exposed activity is proposed to be carried on at the site but is not, at the time of the application, carried on at the site; and
(ii) an approval is necessary to carry out the emission‑intensive trade‑exposed activity proposed at the site;
a statement of what those approvals are and whether the prescribed person has obtained them at the time of making the application;
(d) information about any generation capacity that exists at the site and whether the generation gives rise to any relevant acquisitions;
(e) information about any electricity used at the site that is not a relevant acquisition because of subsection 31(2) of the Act;
(f) whether the prescribed person intends to apply to be a prescribed person under regulation 22M in relation to the activity, site and year in respect of a second liable entity at the site;
(g) whether the prescribed person intends to apply to be a prescribed person under regulation 22MA in relation to the activity, site and year in respect of an added liable entity (within the meaning of that regulation) at the site.
22S Information to be included for person prescribed under regulation 22L or 22LA
(1) If an application under subsection 46A(1) of the Act is made by a prescribed person mentioned in subregulation 22L(1), in addition to the information mentioned in subregulation 22O(1), the application must:
(a) specify the circumstances in which the liable entity (the old liable entity) mentioned in paragraph 22L(1)(b) ceased to be the liable entity; and
(b) provide evidence of the date on which the old liable entity ceased to be the liable entity and the date the liable entity mentioned in paragraph 22L(1)(c) (the new liable entity) became the liable entity; and
(c) provide evidence that both the old and new liable entity have been informed of the application.
(2) If an application under subsection 46A(1) of the Act is made by a prescribed person mentioned in subregulation 22L(2), in addition to the information mentioned in subregulation 22O(1), the application must:
(a) specify the circumstances in which the liable entity (the old liable entity) mentioned in paragraph 22L(2)(a) ceased to be the liable entity; and
(b) provide evidence of the date on which the old liable entity ceased to be the liable entity and the date the liable entity mentioned in paragraph 22L(2)(b) (the new liable entity) became the liable entity; and
(c) provide evidence that both the old and new liable entity have been informed of the application.
(3) If an application under subsection 46A(1) of the Act is made by a prescribed person under regulation 22LA, in addition to the information mentioned in subregulation 22O(1), the application must:
(a) specify the circumstances in which the liable entity mentioned in paragraph 22LA(c) (the old liable entity) ceased to be the liable entity; and
(b) provide evidence of the date on which the old liable entity ceased to be the liable entity and the date the liable entity mentioned in paragraph 22LA(d) (the new liable entity) became the liable entity; and
(c) provide evidence that both the old and new liable entity have been informed of the application; and
(ca) if the application is made by the contracting person within the meaning of subparagraph 22LA(1)(e)(ii)—provide evidence that the prescribed person mentioned in paragraph 22LA(1)(a) has consented to the contracting person making the application; and
(d) if the applicant considers the use amount for the new liable entity should be identified in a way that is materially different from the way the use amount for the old liable entity is identified—include a description of the material difference; and
(e) provide a description of, and reasons for, amendments that the applicant considers the Regulator should make to an exemption certificate issued in relation to the old liable entity.
22T Information to be included for person prescribed under regulation 22M or 22MA
(1) If an application under subsection 46A(1) of the Act is made by a prescribed person mentioned in regulation 22M, in addition to the information mentioned in subregulation 22O(1), the application must:
(a) include a description of the liable entities in relation to electricity consumed at the site and the amount of relevant acquisitions expected in relation to each liable entity in the year to which the exemption certificate relates; and
(b) provide evidence that the liable entities specified in the certificates mentioned in regulation 22M have been informed of the application.
(2) If an application under subsection 46A(1) of the Act is made by a prescribed person mentioned in regulation 22MA, in addition to the information mentioned in subregulation 22O(1), the application must:
(a) include a description of the liable entities in relation to electricity consumed at the site and the amount of relevant acquisitions expected in relation to each liable entity in the year to which the exemption certificate relates; and
(b) provide evidence that the liable entities specified in the certificates mentioned in regulation 22MA have been informed of the application; and
(c) if the applicant considers the use amount for the entity mentioned in paragraph 22MA(c) (the added liable entity) should be identified in a way that is materially different from the way the use amount for one or more liable entities mentioned in paragraph 22MA(a) (the earlier liable entity) is identified—include a description of the material difference; and
(d) provide a description of, and reasons for, amendments that the applicant considers the Regulator should make to one or more exemption certificates that have been issued in relation to one or more earlier liable entities.
Subdivision BA—Reports to accompany certain applications for exemption amounts to be worked out under Division 5 (production calculation method)
22UA Reports to accompany certain applications
(1) This Subdivision is made for paragraph 46A(2)(bb) of the Act and sets out the reports that must accompany certain applications under subsection 46A(1) of the Act.
(2) This subdivision applies to an application:
(aa) for which the amount of the exemption applied for is to be worked out under Division 5 (production calculation method); and
(a) for 2012 or a subsequent year; and
(b) that is made by a person who is a prescribed person under regulation 22G, 22H, 22I, 22J or 22K; and
(c) for which the amount of exemption applied for exceeds 15 000 MWh for the application year.
22UB Application to be accompanied by audit report
(1) The application must be accompanied by an audit report that complies with this regulation.
(2) The audit report must be prepared by:
(a) a person that is a registered company auditor under section 1280 of the Corporations Act 2001; or
(b) a company that is an authorised audit company under section 1299C of the Corporations Act 2001; or
(c) a registered greenhouse and energy auditor, within the meaning of the National Greenhouse and Energy Reporting Act 2007, who is registered as a Category 2 auditor under the National Greenhouse and Energy Reporting Regulations 2008.
(3) The audit report must set out, under a separate heading from any limited assurance conclusion provided, the auditor’s reasonable assurance conclusion as to whether:
(a) the activities set out in the application that are claimed to be an emissions‑intensive trade‑exposed activity comply, in all material respects, with each of the requirements in the description of the activity set out in Schedule 6; and
(b) the application presents fairly, in all material respects, the amount or volume of the relevant product produced in each previous financial year that is relevant to the application in accordance with:
(i) the requirements for that amount or volume set out in Schedule 6; and
(ii) the measurement policies adopted and disclosed by the applicant in the application.
(3A) For an application to which subregulation 22ZD(3) or (4) applies, the audit report must set out, under a separate heading from any reasonable assurance conclusion provided, the auditor’s limited assurance conclusion as to whether, based on the audit procedures performed, anything causes the auditor to believe that:
(a) the applicant’s assumptions do not provide a reasonable basis for the preparation of the expected production amount or volume of the relevant product; and
(b) the expected production is not properly prepared, in all material respects, on the basis of the assumptions described in the application; and
(c) the expected production is not presented fairly, in all material respects, in accordance with the measurement policies adopted and disclosed by the applicant in the application.
(4) The audit company or auditor mentioned in subregulation (2) must be independent of the applicant or applicants to the extent that a conflict of interest situation (within the meaning of the National Greenhouse and Energy Reporting Regulations 2008) does not arise in relation to the auditing of the application.
(5) The person preparing the audit report must ensure that the audit to which the report relates is conducted in accordance with the relevant requirements for assurance engagements under:
(a) subject to regulation 22UC, the National Greenhouse and Energy Reporting (Audit) Determination 2009; or
(b) if a registered company auditor or authorised audit company is not a registered greenhouse and energy auditor, and does not wish to use the requirements in that instrument:
(i) ASAE 3000, Assurance Engagements Other than Audits or Reviews of Historical Financial Information, issued by the Auditing and Assurance Standards Board; and
(ii) any other relevant auditing standard issued by the Auditing and Assurance Standards Board.
22UC Application of National Greenhouse and Energy Reporting (Audit) Determination 2009
For paragraph 22UB(5)(a), a reference in the definition of misstatement in the National Greenhouse and Energy Reporting (Audit) Determination 2009 to ‘the Act’ or ‘the Regulations’ is to be read as a reference to the Renewable Energy (Electricity) Act 2000 and these Regulations.
Subdivision BB—Reports to accompany certain applications for exemption amounts to be worked out under Division 5A (electricity use method)
22UF Application of this Subdivision
This Subdivision is made:
(a) for the purposes of paragraph 46A(2)(bb) of the Act; and
(b) in relation to an application for an exemption certificate for which the amount of the exemption is to be worked out under Division 5A (electricity use method).
22UG When an audit report is required
Use of electricity use method for first time
(1) An application for a year, in relation to a site, must be accompanied by an audit report if:
(a) an application has not previously been made in relation to the site for which the amount of the exemption applied for is to be worked out under Division 5A (electricity use method); and
(b) the total amount of exemptions applied for in the application is likely to exceed 15,000 MWh.
Every 5 years
(2) An application for a year, in relation to a site, must also be accompanied by an audit report if:
(a) the year is at least 4 years after the last year for which an application in relation to the site was accompanied by an audit report required under this regulation; and
(b) the total amount of exemptions applied for in the application is likely to exceed 15,000 MWh.
On request
(3) An application for a year, in relation to a site, must also be accompanied by an audit report if the Regulator has given the applicant a notice in writing for the year and the site in accordance with subregulation (4).
(4) For the purposes of subregulation (3), the Regulator may give a person a written notice, for a year and a site, requiring an application by the person to be accompanied by an audit report, if the Regulator is satisfied that the way the use amount for a liable entity is identified for the year in relation to the site is likely to be materially different from the way the use amount for a liable entity is identified in relation to the site for the year or the previous year.
Application by prescribed person mentioned in regulation 22LA or 22MA
(5) Subject to subregulation (7), an application for a year, in relation to a site, must also be accompanied by an audit report if:
(a) the application is made by a prescribed person mentioned in regulation 22LA; and
(b) the applicant considers that the use amount for the new liable entity mentioned in paragraph 22LA(d) should be identified in a way that is materially different from the way the use amount for the old liable entity mentioned in paragraph 22LA(c) is identified; and
(c) the total amount of exemptions applied for in the application is likely to exceed 15,000 MWh.
(6) Subject to subregulation (7), an application for a year, in relation to a site, must also be accompanied by an audit report if:
(a) the application is made by a prescribed person mentioned in regulation 22MA; and
(b) the applicant considers that the use amount for the added liable entity mentioned in paragraph 22MA(c) should be identified in a way that is materially different from the way the use amount for one or more earlier liable entities mentioned in paragraph 22MA(a) is identified; and
(c) the total amount of exemptions applied for in the application is likely to exceed 15,000 MWh.
(7) Subregulations (5) and (6) do not apply if the Regulator determines that an audit report is not required.
(8) The applicant may apply to the Regulator for a determination that an audit report is not required.
22UH Requirements for audit report
(1) The audit report must be prepared by a registered greenhouse and energy auditor (within the meaning of the National Greenhouse and Energy Reporting Act 2007):
(a) who is registered as a Category 2 auditor under the National Greenhouse and Energy Reporting Regulations 2008; and
(b) for whom no conflict of interest situation (within the meaning of those Regulations) exists in relation to the applicant.
(2) The auditor must ensure that the audit to which the report relates is conducted in accordance with the applicable requirements under the National Greenhouse and Energy Reporting (Audit) Determination 2009 for assurance engagements.
(3) The audit report must set out the auditor’s reasonable assurance conclusion as to whether:
(a) the activities set out in the application that are claimed to be an emissions‑intensive trade‑exposed activity comply, in all material respects, with each of the requirements in the description of the activity set out in Schedule 6; and
(b) the application presents fairly, in all material respects, the electricity use method advice (see paragraph 22O(1)(i)); and
(c) the electricity use method advice is reasonable, and in all material respects is not likely to result in including an amount of electricity that is not a use amount; and
(d) if an audit report is required under subregulation 22UG(5) or (6)—the amendments and reasons for the amendments mentioned in paragraph 22S(3)(e) or 22T(2)(d) are reasonable.
Subdivision C—Time and manner of lodging applications under section 46A of the Act
22V Time for lodging
This Subdivision is made for paragraph 46A(2)(c) of the Act.
22X Time for lodging—applications for exemption amount to be worked out under Division 5 (production calculation method)
(1AA) This regulation applies in relation to an application for an exemption certificate, for a year, if the amount of the exemption is to be worked out under Division 5 (production calculation method).
(1) An application under subsection 46A(1) of the Act for an exemption certificate in relation to a year occurring after 2010 made by a prescribed person mentioned in regulation 22G, 22H, 22I, 22J or 22K must be lodged with the Regulator before 31 March of the year to which the application relates.
(1A) However, if an application under subsection 46A(1) of the Act for an exemption certificate is:
(a) for 2013; and
(b) made by a prescribed person mentioned in regulation 22G, 22H, 22I, 22J or 22K; and
(c) for an emissions‑intensive trade‑exposed activity mentioned in Part 51 or 52 of Schedule 6 (production of glass wool or coal char);
the application must be lodged with the Regulator before 13 December 2013.
(2) An application under subsection 46A(1) of the Act for an exemption certificate in relation to a year occurring after 2010 made by a prescribed person mentioned in regulation 22L must be lodged with the Regulator before 1 January of the year immediately following the year to which the application relates.
(3) An application under subsection 46A(1) of the Act for an exemption certificate made by a person mentioned in regulation 22M must be lodged with the Regulator before:
(a) if the application relates to a liable entity first mentioned in subparagraph 22M(b)(i)—1 July of the year to which the application relates; or
(b) if the application relates to a liable entity first mentioned in subparagraph 22M(b)(ii)—1 January of the year immediately after the year to which the application relates.
22XA Time for lodging—applications for exemption amount to be worked out under Division 5A (electricity use method)
(1) This regulation applies in relation to an application for an exemption certificate, for a year, if the amount of the exemption is to be worked out under Division 5A (electricity use method).
(2) If the applicant is a prescribed person mentioned in regulation 22G, 22H, 22I, 22J or 22K, the application must be lodged during the period:
(a) starting on 1 August of the previous year; and
(b) ending on 30 March of the year.
(2A) However, if an application for an exemption certificate is:
(a) for 2021; and
(b) made by a prescribed person mentioned in regulation 22G, 22H, 22I, 22J or 22K;
the application must be lodged on or before 10 December 2021.
(3) If the applicant is a prescribed person mentioned in regulation 22LA or 22MA, the application must be lodged by the end of the year.
22Y Manner and form of lodging
An application under subsection 46A(1) of the Act must be lodged with the Regulator in a manner and form specified by the Regulator on the Regulator’s website.
Division 5—Method for working out amount of exemption: production calculation method (before 2020)
Subdivision A—General
22Z Method for calculating amount of exemption
(1) This Division is made for paragraph 46B(1)(a) of the Act and prescribes the method for calculating the amount of a liable entity’s exemption for a year in relation to an emissions‑intensive trade‑exposed activity and site mentioned in an application under subsection 46A(1) of the Act.
(1A) This Division does not apply for working out the amount of a liable entity’s exemption if Division 5A applies.
Note: Division 5A applies for 2020 and later years. Division 5A may apply in some cases for 2018 and 2019 as well. See regulation 22ZHA.
(2) For the purpose of calculating the liable entity’s exemption in respect of the emissions‑intensive trade‑exposed activity, Divisions 2 and 3 of a Part in Schedule 6 set out, respectively:
(a) whether the activity is:
(i) highly emissions‑intensive; or
(ii) moderately emissions‑intensive; and
(b) the electricity baseline for calculating the amount of the liable entity’s exemption in respect of the activity.
(3) Subdivision B sets out the method for calculating the amount of the liable entity’s exemption. Subregulation 22ZA(1) contains the formula for the calculation.
(4) Subdivision C sets out matters relating to ASP, a factor in the formula.
(5) Subdivision D sets out matters relating to G, a factor in the formula.
(6) Subdivision E sets out the method for calculating the amount of an exemption where the applicant is a prescribed person because of regulation 22L or 22M.
Subdivision B—Method for calculation
22ZA Method
(1) Subject to subregulation (3) and regulations 22ZF and 22ZG, the method for calculating the amount of the liable entity’s exemption for the year in relation to the emissions‑intensive trade‑exposed activity and site mentioned in the application under subsection 46A(1) of the Act is:
where:
PE is the amount of the liable entity’s exemption measured in megawatt hours.
i represents the liable entity.
a represents the emissions‑intensive trade‑exposed activity carried on at the site and mentioned in the application.
t represents the year to which the application relates and during which the activity is, or is to be, carried on at the site.
EP is the electricity baseline set out in Division 3 of a Part (other than Part 1) in Schedule 6 in respect of the activity.
ASP is the amount or volume of relevant product produced by the activity as determined under Subdivision C.
kat means 100%.
G is an adjustment for the generation or acquisition of electricity (that does not constitute a relevant acquisition) and is worked out under subregulation 22ZE(1) and expressed as a percentage.
(3) If a liable entity’s exemption calculated for a year in accordance with subregulation (1) is a negative amount, the entity’s exemption for the year is zero.
(6) If there are multiple relevant products for the same emissions‑intensive trade‑exposed activity, the formula in subsection (1) must be applied to each of those products and the result summed to calculate the amount of the exemption.
Subdivision C—Matters relating to factor ASP
22ZB Factor—ASP
(1) For the factor ASP in subregulation 22ZA(1), the amount or volume of relevant product for 2010 is the amount or volume:
(a) that:
(i) was produced by the applicant in the financial year commencing on 1 July 2006, 1 July 2007 or 1 July 2008; or
(ii) if no relevant product was produced in any of those financial years—is reasonably likely to be produced in the financial year commencing on 1 July 2009; and
(b) that is set out in the application; and
(c) that the Regulator is, in accordance with regulation 22ZC, satisfied is accurate or is the best estimate of the amount or volume possible in all the circumstances; and
(d) is referrable to the site mentioned in the application.
(2) For the factor ASP in subregulation 22ZA(1), the amount or volume relevant product for a year after 2010 is the amount or volume that:
(a) is set out in the application; and
(b) the Regulator is, in accordance with regulation 22ZC, satisfied:
(i) is accurate or the best estimate of the amount or volume possible in all the circumstances; and
(ii) has been correctly calculated using the formula in subregulation (3).
(2A) For an application relating to an activity mentioned in Part 51 or 52 of Schedule 6 (production of glass wool or coal char) for the year ending 30 June 2013, the factor ASP in subregulation 22ZA(1) is worked out using the formula in subregulation (3) or using the following formula:
where:
SPia2013 is the amount or volume of the relevant product produced in the financial year ending 30 June 2013 that is referrable to the site mentioned in the application.
(3) For subparagraph (2)(b)(ii), the formula is:
where:
SPiatfinprev is, subject to subregulations (4A) and (4B), the amount or volume of the relevant product produced in the financial year that ended 6 months before the year to which the application relates and that is referrable to the site mentioned in the application.
EASPiatfincurr is the new or expected additional production (within the meaning of subregulation 22ZD(1)) for:
(a) the liable entity; and
(b) the site that meets:
(i) for a new entrant—1 of the criteria specified in subregulation 22ZD(3); or
(ii) for a significant expansion—the criteria specified in regulation 22ZD (4).
STiatfincurr is, subject to subregulation (4), the adjustment for the previous financial year’s production, worked out using the formula:
where:
SPiatfinprev is, subject to subregulations (4A) and (4B), the amount or volume of the relevant product produced in the financial year that ended 6 months before the year to which the application relates and that is referrable to the site mentioned in the application.
SPiatfinprev‑1 is, subject to subregulation (5), the amount or volume of the relevant product produced in the financial year that began 30 months before the year to which the application relates and that is referrable to the site mentioned in the application.
EASPiatfinprev is the amount or volume that related to expected production for the relevant site in the financial year that began 18 months before the year to which the application relates and was referrable to the site mentioned in the application.
(4) In subregulation (3), the factor STiatfincurr is 0 in relation to a site:
(a) that meets the new entrant criteria specified in subregulation 22ZD(3); or
(b) in respect of which no exemption certificate was issued in the year preceding the application for the emissions‑intensive trade‑exposed activity and site to which the application relates.
(4A) For the activity of petroleum refining, the factor SPiatfinprev in subregulation (3) is 0 in relation to a site:
(a) that meets the new entrant site criteria specified in subregulation 22ZD(3); and
(b) for which the combined volume of diesel, jet fuel, unleaded petrol, lubricant base stocks and bitumen, at 15 °C and 1 atmosphere, that is produced from stabilised crude petroleum oil, condensate, tallow, vegetable oil and eligible petroleum feedstocks is less than 75% of the total kilolitres of those substances used in the financial year that ended 18 months before the year to which the application relates.
(4B) For the activity of integrated iron and steel manufacturing, the factor SPiatfinprev in subregulation (3) is 0 in relation to a site:
(a) that meets the new entrant site criteria specified in subregulation 22ZD(3); and
(b) for which, in the financial year that ended 18 months before the year to which the application relates, the percentage of cold ferrous feed transformed into 1 or more of the items in subparagraphs 656(1)(e)(i) to (iii) of Schedule 6, as a portion of molten iron and cold ferrous feed, was greater than 30%.
(5) For the 2011 year, in the formula for STiatfincurr in subregulation (3), factor SPiatfinprev‑1 is the amount or volume of relevant product that was set out in the application for 2010.
22ZC Regulator must be satisfied about amount or volume
(1) For paragraph 22ZB(1)(c), the Regulator must be satisfied that the amount or volume is accurate or the best estimate of the relevant amount or volume possible in all the circumstances.
(2) For paragraph 22ZB(2)(b), the Regulator must be satisfied that the amount or volume:
(a) is accurate or the best estimate of the relevant amount or volume possible in all the circumstances; and
(b) correctly calculated under subregulation 22ZB(3).
(3) Under subregulations (1) and (2), the Regulator must be so satisfied in relation to:
(a) the year to which the application relates; and
(b) the liable entity that is the subject of the application; and
(c) the period during which the emissions‑intensive trade‑exposed activity is carried on; and
(d) the site that is mentioned in the application.
(4) The Regulator must, when deciding under subregulation (1) or (2), have regard to the following:
(a) if the amount or volume relates to an amount or volume previously given to the Department of Climate Change and Energy Efficiency for:
(i) the assessment of whether the activity should be an emissions‑intensive trade‑exposed activity; and
(ii) the determination of the electricity baseline for each relevant product of the activity;
the amount or volume and any related audit report provided with it;
(b) if the application relates to 2013 or 2014—the considerations that applied under the Jobs and Competitiveness Program in relation to an application for free carbon units in respect of an equivalent amount or volume of relevant product;
(ba) if the application relates to 2015—the considerations that apply under the modified JCP in relation to a reportable application for free carbon units in respect of an equivalent amount or volume of relevant product;
(c) if the application relates to 2016 or a later year—the following matters in relation to the measurement of an amount or volume of relevant product:
(i) any relevant requirements imposed by or under the National Measurement Act 1960;
(ii) the way in which the amount or volume of relevant product is measured by the industry;
(iii) accredited industry test methods for measuring the amount or volume of relevant product;
(iv) whether the measurement of the amount or volume of the relevant product is frequent enough to produce data that is representative and unbiased;
(v) the risk of the relevant product not satisfying the qualities required by Schedule 6;
(vi) the administrative costs in implementing more accurate testing methods for measuring the amount or volume of relevant product at the site;
(d) any other relevant matter.
(5) In this regulation:
modified JCP has the meaning given by subsection 3(2) of the Clean Energy Legislation (Carbon Tax Repeal) (Jobs and Competitiveness Program) Rules 2014.
reportable application has the meaning given by subsection 3(2) of the Clean Energy Legislation (Carbon Tax Repeal) (Jobs and Competitiveness Program) Rules 2014.
22ZD Factor—EASPiatfincurr
New or expected additional production
(1) For the factor EASPiatfincurr in subregulation 22ZB(3), new or expected additional production is, if the site meets the criteria for a new entrant, the amount or volume of relevant product that is reasonably likely to be produced in the financial year that began six months before the year to which the application relates and that is referrable to that site.
(2) For the factor EASPiatfincurr in subregulation 22ZB(3), new or expected additional production is, if the site meets the criteria for a significant expansion, the amount or volume of the relevant product that:
(a) is reasonably likely to be produced in the financial year that began six months before the year to which the application relates; and
(b) exceeds the amount of the production of the relevant product produced in the previous financial year; and
(c) is referrable to that site.
Criteria for new entrant site
(3) For subparagraph (b)(i) of the factor EASPiatfincurr in subregulation 22ZB(3), the specified criteria are:
(a) the emissions‑intensive trade‑exposed activity mentioned in the application in relation to the site has not been carried on at that site in the financial year that began 18 months before the year to which the application relates; or
(b) all of the following:
(i) the emissions‑intensive trade‑exposed activity mentioned in the application in relation to the site was carried on for the first time at that site in the financial year that began 18 months before the year to which the application relates;
(ii) no application for an exemption certificate was made in relation to the carrying on of that activity at that site for the previous year; or
(c) all of the following:
(i) the emissions‑intensive trade‑exposed activity mentioned in the application in relation to the site commenced to be carried on again at the site in the financial year that began 18 months before the year to which the application relates after a period of more than 12 months during which the activity was not carried on at the site;
(ii) no application for an exemption certificate was made in relation to the carrying on of that activity at that site for the previous year.
Criteria for significant expansion site
(4) For subparagraph (b)(ii) of the factor EASPiatfincurr in subregulation 22ZB(3), the specified criteria are:
(a) an emissions‑intensive trade‑exposed activity was carried on at the site in the year preceding the year to which the application relates; and
(b) equipment has been installed, or is to be installed, at the site to carry on the activity; and
(c) the equipment has not previously been taken into account under these Regulations in relation to the significant expansion of a site; and
(d) for equipment that has been installed—the equipment was first fully installed at the site not more than 4 and a half years before the start of the year to which the application relates; and
(e) for equipment that is to be installed—the equipment is expected to be installed, or substantially installed, within 6 months after the end of the year to which the application relates; and
(f) after the equipment is commissioned, and any existing equipment that is to be decommissioned has been decommissioned, the maximum productive capacity of the equipment used to produce the relevant product will be more than 20% greater than the maximum productive capacity of the equipment that existed before the installation.
(5) In paragraph (4)(f), a reference to the equipment that existed before the installation does not include decommissioned equipment that exists at the site and that:
(a) has not been used since the equipment was installed; and
(b) is not proposed to be used for at least 12 months after the application year.
(6) In subregulation (4), equipment means equipment that is used, or is to be used, to carry on an emission‑intensive trade‑exposed activity, including the following:
(a) an apparatus;
(b) an appliance;
(c) a boiler;
(d) a chimney;
(e) a crane;
(f) a device;
(g) a dredge;
(h) a dryer;
(i) an electrolytic cell;
(j) an engine;
(k) a furnace;
(l) a generator;
(m) an incinerator;
(n) an instrument;
(o) a kiln;
(p) a machine;
(q) an oven;
(r) plant;
(s) a retort;
(t) a structure;
(u) a tool.
Subdivision D—Matters relating to factor G
22ZE Factor—G
(1) For subregulation 22ZA(1), G is worked out using the following formula:
where:
ECiatfinprev is:
(a) for a site that does not meet the criteria specified in subregulation 22ZD(3) for a new entrant—the amount of electricity (measured in MWh) that is consumed at the site at which the activity occurs in the financial year that ended 6 months before the year to which the application relates; or
(b) for a site that meets the criteria specified in subregulation 22ZD(3) for a new entrant—the amount of electricity (measured in MWh) that is reasonably likely to be consumed at the site in the financial year that began 6 months before the year to which the application relates.
EGiatfinprev is:
(a) for a site that does not meet the criteria specified in subregulation 22ZD(3) for a new entrant—the sum of the following amounts of electricity (measured in MWh) for the financial year that ended 6 months before the year to which the application relates:
(i) the amount of electricity generated and consumed at the site for which there is no relevant acquisition;
(ii) the amount of electricity delivered to the site for which no relevant acquisition occurs between the point of generation and the point of use; or
(b) for a site that meets the criteria specified in subregulation 22ZD(3) for a new entrant—the sum of the following amounts of electricity (measured in MWh) for the financial year that began 6 months before the year to which the application relates:
(i) the amount of electricity that is reasonably likely to be generated and consumed at the site for which there is no relevant acquisition;
(ii) the amount of electricity that is reasonably likely to be delivered to the site for which no relevant acquisition occurs between the point of generation and the point of use.
(2) For the purposes of working out G using the formula in subregulation (1), electricity generation from an electricity generator with a nameplate rating of less than 1 MW may be disregarded.
Subdivision E—Method for calculation if liable entity changes and new certificate is issued
22ZF Prescribed method if liable entity changes and new certificate is issued—paragraph 46B(1)(a) of the Act
(1) If:
(a) a prescribed person is issued an exemption certificate in relation to the liable entity (the old liable entity) set out in the application made by that person under subsection 46A(1) of the Act; and
(b) during the same year, the prescribed person applies for another exemption certificate in relation to another liable entity (the second liable entity) as a prescribed person mentioned in regulation 22L;
the amount of the second liable entity’s exemption is calculated in accordance with the following formula:
where:
OL is the amount of the exemption, expressed in megawatt hours, set out in the exemption certificate issued in relation to the old liable entity.
D is the number of days in the year for which the second liable entity will be the liable entity in relation to the exemption.
year’s days is the number of days in the year to which the exemption certificates relate.
(2) If:
(a) the Regulator issues an exemption certificate mentioned in paragraph (1)(b); and
(b) during the same year, the prescribed person applies for another exemption certificate in relation to another liable entity (the third liable entity) as a prescribed person mentioned in regulation 22L;
the amount of the third liable entity’s exemption is calculated in accordance with the following formula:
where:
OL is the amount of the exemption, expressed in megawatt hours, set out in the exemption certificate issued in relation to the second liable entity.
D is the number of days in the year for which the third liable entity will be the liable entity in relation to the exemption.
OLD is the number of days used as D in subregulation (1).
22ZG Prescribed method if there is a second liable entity and new certificate is issued—paragraph 46B(1)(a) of the Act
If:
(a) a prescribed person is issued an exemption certificate in relation to the liable entity (the first liable entity) set out in the application made by that person under subsection 46A(1) of the Act; and
(b) during the same year, the prescribed person applies for another exemption certificate in relation to another liable entity (the second liable entity) as a prescribed person mentioned in regulation 22M;
the amount of the second liable entity’s exemption is calculated in accordance with the following formula:
where:
OL is the amount of the exemption, expressed in megawatt hours, set out in the exemption certificate issued in relation to the first liable entity.
SL is the reasonable estimate of the expected relevant acquisitions of electricity consumed at the site by the second liable entity in the year to which the exemption relates.
FL is the reasonable estimate of the expected relevant acquisitions of electricity consumed at the site by the first liable entity in the year to which the exemption certificate relates.
Division 5A—Method for working out amount of exemption: electricity use method
22ZHA Application of this Division
(1) This Division applies for the purposes of working out the amount of a liable entity’s exemption, in relation to an emissions‑intensive trade‑exposed activity and a site, for 2020 and later years.
(2) This Division also applies for the purposes of working out the amount of a liable entity’s exemption, in relation to an emissions‑intensive trade‑exposed activity and a site, for a year before 2020, if:
(a) the application for the exemption certificate for the year indicates that the applicant chooses for this Division to apply instead of Division 5; or
(b) a previous application for an exemption certificate for the year, in relation to any activity carried on at the site (whether or not made by the same applicant or for the same liable entity) indicated that the applicant chose for this Division to apply instead of Division 5; or
(c) both:
(i) the site is part of an activity group; and
(ii) a previous application for an exemption certificate for the year, in relation to any activity carried on at any site that is part of the activity group (whether or not made by the same applicant or for the same liable entity) indicated that the applicant chose for this Division to apply instead of Division 5; or
(d) the activity was prescribed as an emissions‑intensive trade‑exposed activity within the meaning of these Regulations on or after the day this regulation commenced; or
(e) the year is 2019 and the total electricity consumed at the site in 2018 was more than 2,000 GWh; or
(f) the year is 2019 and the amount of the exemption in an exemption certificate issued for 2018 in relation to any activity carried on at the site was worked out under this Division.
22ZHB When electricity is consumed in carrying on an activity
For the purposes of this Division, electricity is only consumed in carrying on an emissions‑intensive trade‑exposed activity if:
(a) every aspect of the activity as described in Schedule 6 is carried on at the site; or
(b) aspects of the activity are carried on at different sites and all of those sites together constitute an activity group within the meaning of subregulation 22A(9).
22ZHC Method for working out amount of exemption
(1) For the purposes of paragraph 46B(4)(a) of the Act, this regulation prescribes the method for working out, for a liable entity in relation to which an application for an exemption certificate is made, the amount of the liable entity’s exemption for a year, in relation to the emissions‑intensive trade‑exposed activity or activities, and the site, specified in the application.
(2) The method is:
(a) unless subregulation (3) applies, to use metering data to identify the amount of electricity consumed at the site in the year that is:
(i) acquired by, or from, the liable entity under a relevant acquisition; and
(ii) consumed in carrying on the activity or activities;
(the use amount for the liable entity); and
(b) to adjust the use amount by adding or subtracting an amount to reflect:
(i) any changes to the exemption amount in an exemption certificate (within the meaning of subsection 38B(2) of the Act) in relation to the previous year that resulted from changes to the final settlement data issued by AEMO; and
(ii) any errors in metering data used to identify the exemption amount in an exemption certificate in relation to the previous year; and
(iii) any other errors that have affected the exemption amount in an exemption certificate in relation to any of the 3 immediately preceding years that have not otherwise been corrected; and
(c) if the result is not a whole MWh—to round the result down to the nearest whole MWh.
This is the certifiable amount.
(3) If the Regulator is satisfied that metering data is not sufficient, or not appropriate, to identify the use amount for the liable entity, the Regulator may instead determine a formula to be used to identify the use amount for the liable entity.
Note: The formula may or may not use metering data, as well as having other elements based on data from a site.
(4) The metering data used may be:
(a) data for the year; or
(b) if the Regulator is satisfied that a reasonable approximation of the use amount can be obtained by using data for a 12 month period determined by the Regulator that includes at least 3 quarters in the year—data for that 12 month period.
(5) In making a decision for the purposes of this regulation, the Regulator’s object must be to choose the most accurate way to identify the use amount for a liable entity, having regard to:
(a) the instrument titled Emissions‑Intensive Trade‑Exposed Activity Boundaries, as existing from time to time; and
(b) the practicalities and costs of giving effect to the method; and
(c) any other matters the Regulator considers relevant.
22ZHD Notice of certifiable amount
As soon as practicable after a certifiable amount is determined in accordance with the method specified or described in an exemption certificate, the Regulator must give written notice of the amount:
(a) to the applicant for the certificate; and
(b) if the applicant consents to the Regulator doing so—to the liable entity to which the certificate relates.
Division 6—Form of exemption certificate
22ZI Prescribed information—paragraph 46B(1)(b) of the Act
This Division prescribes information for paragraph 46B(1)(b) of the Act.
22ZJ Exemption certificate information
The following information is prescribed information:
(a) a unique identification number for the certificate as determined by the Regulator;
(b) the name of the person to whom the certificate is issued;
(c) the name of the liable entity to whom the application relates (as referred to in paragraph 46A(1)(b) of the Act);
(d) the site and the emissions‑intensive trade‑exposed activity or activities to which the application relates;
(e) the year to which the application relates;
(f) the date the certificate is issued;
(g) if the amount of the exemption is worked out under Division 5 (production calculation method)—the amount of production that was used in the determination of the liable entity’s exemption for the year in relation to the site and the emissions‑intensive trade‑exposed activity;
(h) if the amount of the exemption is worked out under Division 5 (production calculation method)—the percentage calculated in accordance with subregulation 22ZE(1) and used in the determination of the liable entity’s exemption for the year in relation to the site and the emissions‑intensive trade‑exposed activity;
(ha) if the amount of the exemption is worked out under Division 5A (electricity use method) and the Regulator determines a formula to be used to identify the use amount for the liable entity under subregulation 22ZHC(3)—the formula;
(i) if the certificate has been amended, the date of the amendments and an indication of the amendments made.
Division 7—Prescribed period for issuing exemption certificates
22ZK Prescribed period
This Division is made for subsection 46B(2) of the Act.
22ZL Prescribed period for issuing exemption certificate for 2010 and subsequent years
(1) If:
(a) a prescribed person has applied under subsection 46A(1) of the Act in relation to 2010 or a subsequent year; and
(aa) the amount of the exemption is worked out under Division 5 (production calculation method); and
(b) the Regulator did not seek further information in respect of the application;
then the Regulator must issue the exemption certificate:
(c) for 2010—within the period of 60 days after receiving the application; or
(d) for 2011 or a subsequent year—within:
(i) 7 days after the small‑scale technology percentage for the year has been prescribed; or
(ii) the period of 60 days after receiving the application;
whichever occurs later.
(2) If:
(a) a prescribed person has applied under subsection 46A(1) of the Act in relation to 2010 or a subsequent year; and
(aa) the amount of the exemption is worked out under Division 5 (production calculation method); and
(b) the Regulator did seek further information in respect of the application;
then the Regulator must issue the exemption certificate:
(c) for 2010—within the period of 60 days after receiving the further information; or
(d) for 2011 or a subsequent year—within:
(i) 7 days after the small‑scale technology percentage for the year has been prescribed; or
(ii) the period of 60 days after receiving the further information;
whichever occurs later.
(3) If a prescribed person has applied under subsection 46A(1) of the Act for an exemption certificate and the amount of the exemption is worked out under Division 5A (electricity use method), the Regulator must issue the exemption certificate within the period of 60 business days after the later of:
(a) the day the application was received; or
(b) if the Regulator sought further information in respect of the application—the day the further information was received.
Division 8—Amending exemption certificates
Subdivision A—Amendment of exemption certificates on application—paragraph 46C(2)(a) of the Act
22ZN Amendment upon request
(1) This regulation prescribes matters for paragraph 46C(2)(a) of the Act.
(2) The matters that the Regulator must have regard to are the following:
(a) whether the information in the exemption certificate is inaccurate;
(b) if the amount of the exemption is worked out under Division 5 (production calculation method)—whether the Regulator miscalculated the amount of the exemption given the amount of the relevant product that the Regulator had identified in applying the method prescribed in the regulations to the application under subsection 46A(1) of the Act;
(ba) if the amount of the exemption is worked out under Division 5A (electricity use method)—whether the amendment would result in the certificate better giving effect to the requirements of Division 5A;
(bb) if the amount of the exemption is worked out under Division 5A (electricity use method) and the way the use amount for a liable entity is to be identified is likely to be materially different from the way the use amount is identified in an exemption certificate issued in relation to the liable entity—whether an audit report has been provided under regulation 22UG;
(c) whether the liable entity set out in the exemption certificate has consented in writing to the amendment;
(d) whether the request for an amendment is based upon issues that were considered in the granting of the exemption certificate;
(e) whether the request for an amendment is made before the end of the year to which the exemption certificate relates;
(f) that in general an exemption certificate should not be amended more than 5 years after the start of the year to which the certificate relates.
Subdivision B—Amendment of exemption certificate on Regulator’s own initiative—subsection 46C(3) of the Act
22ZO Amendment of exemption certificate—subsection 46A(3) of the Act
Each regulation in this Subdivision prescribes a circumstance for the purposes of subsection 46C(3) of the Act.
22ZP Circumstance—if change of liable entity (regulation 22L applies)
(1) If:
(a) an exemption certificate (the first certificate) is issued in relation to a liable entity (the first liable entity) and a year following an application by a prescribed person; and
(b) the prescribed person becomes a prescribed person under regulation 22L; and
(c) the prescribed person makes an application under subsection 46A(1) of the Act in relation to another liable entity (the second liable entity) and the year; and
(d) in issuing another certificate (the second certificate), the Regulator is satisfied that the evidence referred to in paragraphs 22S(1)(b) and (c) evidences the matters stated in those paragraphs;
then the Regulator may amend the first certificate.
(2) The amendment must reduce the amount of the first liable entity’s exemption set out in the certificate that is attributable to the activity by the number calculated in accordance with the following formula:
where:
OL is the amount of the exemption set out in the first exemption certificate expressed as megawatt hours.
D is the number of days in the year for which the second liable entity will be the liable entity.
year’s days is the number of days in the year to which the exemption certificates relate.
(3) If:
(a) the Regulator amends the first certificate under subregulation (1) and issues another certificate as mentioned in paragraph (1)(d) (the second certificate) in relation to the second liable entity; and
(b) the prescribed person again becomes a prescribed person under regulation 22L; and
(c) the prescribed person makes an application under subsection 46A(1) of the Act in relation to another liable entity (the third liable entity) and the year; and
(d) in issuing another certificate (the third certificate) in respect of the third liable entity, the Regulator is satisfied that the evidence referred to in paragraphs 22S(2)(b) and (c) evidences the matters stated in those paragraphs;
then the Regulator may again, on 1 occasion only, amend the second certificate.
(4) The amendment must reduce the amount of the second liable entity’s exemption set out in the certificate that is attributable to the activity by the number calculated in accordance with the following formula:
where:
OL is the amount of the exemption set out in the first exemption certificate expressed as megawatt hours.
D is the number of days in the year for which the third liable entity will be the liable entity in relation to the exemption.
OLD is the number of days used as D in subregulation (2).
22ZPA Circumstance—if change of liable entity (regulation 22LA applies)
If:
(a) an exemption certificate (the first certificate) is issued in relation to a liable entity, an activity, a site and a year; and
(b) a person becomes a prescribed person under regulation 22LA; and
(c) the prescribed person makes an application under subsection 46A(1) of the Act in relation to the activity, the site and the year and another liable entity; and
(d) in issuing another certificate (the second certificate), the Regulator is satisfied that the evidence referred to in paragraphs 22S(3)(b) and (c), and (ca) if applicable, evidences the matters stated in those paragraphs;
then the Regulator may amend the first certificate to take account of the issuing of the second certificate.
22ZQ Circumstances—if there is a second liable entity (regulation 22M applies)
(1) If:
(a) an exemption certificate (the first certificate) is issued in relation to a liable entity (the first liable entity) and a year following an application by a prescribed person; and
(b) the prescribed person becomes a prescribed person under regulation 22M; and
(c) the prescribed person makes an application under subsection 46A(1) of the Act in relation to another liable entity (the second liable entity) and the year; and
(d) in issuing another certificate, the Regulator is satisfied that:
(i) the second liable entity is the liable entity in respect of the electricity consumed at the site during the year; and
(ii) the evidence referred to in paragraph 22T(1)(b) evidences the matters stated in those paragraphs;
then the Regulator may amend the first certificate.
(2) The amendment must reduce the amount of the first liable entity’s exemption set out in the certificate that is attributable to the activity by the number calculated in accordance with the following formula:
where:
OL is the amount of the exemption, expressed as megawatt hours, set out in the first certificate in relation to the first liable entity.
SL is the reasonable estimate of the expected relevant acquisitions of electricity consumed at the site by the second liable entity in the year to which the exemption relates.
FL is the reasonable estimate of the expected relevant acquisitions of electricity consumed at the site by the first liable entity in the year to which the exemption certificate relates.
22ZQA Circumstances—if there are multiple liable entities (regulation 22MA applies)
If:
(a) one or more exemption certificates (the earlier certificates) have been issued in relation to a liable entity and a year following an application or applications by a prescribed person; and
(b) the prescribed person becomes a prescribed person under regulation 22MA; and
(c) the prescribed person makes an application under subsection 46A(1) of the Act in relation to another liable entity (an added liable entity) and the year; and
(d) in issuing another certificate as a result of the application, the Regulator is satisfied that:
(i) the added liable entity is a liable entity in respect of the electricity consumed at the site during the year; and
(ii) the evidence referred to in paragraph 22T(2)(b) evidences the matters stated in those paragraphs;
then the Regulator may amend an earlier certificate to take account of the issuing of the additional certificate.
22ZR Circumstance—if activity ceases at site
(1) If:
(a) an exemption certificate has been issued in respect of an emissions‑intensive trade‑exposed activity, a site and a year; and
(b) during the year, the Regulator becomes satisfied that:
(i) the activity has not been conducted at the site for a period of at least 3 months; and
(ii) it is unlikely that the activity will be conducted again at the site for at least 9 months from the end of the period mentioned in subparagraph (i); and
then, subject to subregulation (3), the Regulator may amend the certificate.
(2) If the amount of the exemption is worked out under Division 5 (production calculation method), the amendment must reduce the amount of the exemption set out in the certificate that is attributable to the activity by the number calculated in accordance with the following formula:
where:
OL is the amount of the exemption set out in the exemption certificate expressed as megawatt hours.
D is the number of days in the year that the activity was not, or is not likely to be, conducted.
year’s days is the number of days in the year to which the exemption certificate relates.
(3) The Regulator must not amend the certificate if the certificate has previously been amended under regulation 22ZP because the liable entity set out in the certificate ceased to be a liable entity for the site:
(a) in the circumstances mentioned in paragraph 22L(1)(b) or paragraph 22L(2)(a); and
(b) before the last time during the year when the emissions‑intensive trade‑exposed activity was conducted at the site.
(4) If the amount of the exemption is worked out under Division 5A (electricity use method), the amendment must take account of the cessation of the activity at the site.
22ZS Circumstance—if exemption certificate is inaccurate
(1) If:
(a) the Regulator becomes aware that an exemption certificate is inaccurate; and
(b) the Regulator becomes aware before 1 February in the year after the year to which the certificate relates;
then, subject to subregulation (2), the Regulator may amend the certificate to correct the inaccuracy.
(2) The Regulator must not amend the exemption certificate unless the Regulator has, in writing, advised the following persons about the inaccuracy and the proposed correction:
(a) the prescribed person to whom the certificate has been issued;
(b) the liable entity in respect of which the certificate has been issued.
(3) Without limiting the circumstances in which an exemption certificate for which the amount of the exemption is worked out under Division 5A may be inaccurate, the certificate is taken to be inaccurate if there has been any change in relation to:
(a) information that formed part of the electricity use method advice (see paragraph 22O(1)(i)); or
(b) any other matter that affected a decision of the Regulator in relation to the certificate under regulation 22ZHC.
Division 8A—Information for exemption certificates
22ZSA Requirement to give information
For paragraph 46D(1)(a) of the Act, the information is information about all of the following:
(a) the emissions of greenhouse gases for the activity;
(b) the electricity used by the activity;
(c) the revenue generated by the activity.
Division 9—Record keeping
22ZT Records to be kept by persons issued with an exemption certificate
(1) For paragraph 160(3A)(b) of the Act, if in relation to an exemption certificate, the percentage calculated in accordance with subregulation 22ZE(1) is less than 100%, the following matters are prescribed:
(a) the amount of the electricity consumed at the site during the financial year that started 6 months before the year to which the exemption relates;
(b) the amount of electricity generated and consumed, at the site for which there is no relevant acquisition of electricity during that financial year;
(c) the amount of electricity delivered to the site for which no relevant acquisition occurs between the point of generation and the point of use.
(2) This regulation does not apply in relation to an exemption certificate if the amount of the exemption is worked out under Division 5A (electricity use method).
Part 4—Renewable energy shortfall charge
Division 1—Liability to charge—small‑scale technology shortfall charge
22ZU Prescribed percentage
For subsection 38AF(7) of the Act, the prescribed percentage is 10%.
22ZV Energy acquisition statement lodged—requirements for Regulator exercising powers or functions
(1) This regulation is made for subsection 38AF(9) of the Act and sets out the requirements the Regulator must comply with when exercising his or her functions or powers under section 38AF of the Act.
(2) If the Regulator is satisfied that the proposed amount specified in the liable entity’s application is the best estimate of the liable entity’s reduced acquisitions for the assessment year, the Regulator must determine that amount under paragraph 38AF(3)(a) of the Act.
(3) If the Regulator is not satisfied as mentioned in subregulation (2), the Regulator must, subject to subsection 38AF(5) of the Act, determine an amount that is the Regulator’s best estimate of the liable entity’s reduced acquisitions for the assessment year.
22ZW No energy acquisition statement lodged—requirements for Regulator exercising powers or functions
(1) This regulation is made for subsection 38AG(8) of the Act and sets out the requirements the Regulator must comply with when exercising his or her functions or powers under section 38AG of the Act.
(2) If the Regulator is satisfied that the proposed amount for a quarter specified in the liable entity’s application is the best estimate of 4 times the liable entity’s reduced acquisitions for the relevant quarter, the Regulator must determine that amount for the relevant quarter under paragraph 38AG(3)(a) of the Act.
(3) If the Regulator is not satisfied as mentioned in subregulation (2), the Regulator must, subject to subsection 38AG(5) of the Act, determine an amount that is the Regulator’s best estimate of 4 times the liable entity’s reduced acquisitions for the relevant quarter.
(4) In making a decision under subregulation (2) or (3), the Regulator must deduct, on a pro‑rata basis, the estimated total amount of exemptions for the assessment year from each quarter’s relevant acquisitions.
22ZX Applications under section 38AF of Act
(1) This regulation is made for section 38AI of the Act and sets out the information that must be included in an application under section 38AF of the Act by a liable entity.
(2) The application must:
(a) set out the liable entity’s reasons for choosing the proposed amount; and
(b) include a written statement from a person with responsibility for the liable entity’s compliance with the Act that the proposed amount is the person’s best estimate of the amount of the liable entity’s reduced acquisitions for the year at the time of the application; and
(c) set out an estimate of the amount of relevant acquisitions made by the liable entity in the year before the day of the application; and
(d) set out any factors of which the liable entity is aware that could result in the amount of the liable entity’s reduced acquisitions being more, or less, than the proposed amount; and
(e) if the application is made before 1 April in the assessment year—set out the estimated amount of the liable entity’s previous year’s reduced acquisitions that would apply if the Regulator did not make a determination under section 38AF of the Act; and
(f) if the application is made after 1 April in the assessment year—set out the amount of the liable entity’s previous year’s reduced acquisitions that would apply if the Regulator did not make a determination under section 38AF of the Act.
22ZY Applications under section 38AG of Act
(1) This regulation is made for section 38AI of the Act and sets out the information that must be included in an application under section 38AG of the Act by a liable entity.
(2) The application must:
(a) set out the liable entity’s reasons for choosing the proposed amount; and
(b) include a written statement from a person with responsibility for the liable entity’s compliance with the Act that, subject to subregulation (3), the proposed amount is the person’s best estimate of 4 times the amount of the liable entity’s reduced acquisitions for a relevant quarter at the time of the application; and
(c) set out an estimate of the amount of the relevant acquisitions made by the entity in the year before the day of the application; and
(d) specify whether there is any quarter in which the liable entity has not, or is not likely to, make any relevant acquisitions; and
(e) set out any factors of which the liable entity is aware that could result in the amount of the liable entity’s reduced acquisitions being more, or less, than the proposed amount for a quarter.
(3) For paragraph (2)(b), the person is to assume that the total amount of exemptions are allocated on a pro‑rata basis for the estimated amount of relevant acquisitions for the year.
Division 2—Large‑scale generation shortfall charge
23 Renewable power percentage
For subsection 39(1) of the Act, the renewable power percentage is the following:
(a) for 2001—0.24%;
(b) for 2002—0.62%;
(c) for 2003—0.88%;
(d) for 2004—1.25%;
(e) for 2005—1.64%;
(f) for 2006—2.17%;
(g) for 2007—2.70%;
(h) for 2008—3.14%;
(i) for 2009—3.64%;
(j) for 2010—5.98%;
(k) for 2011—5.62%;
(l) for 2012—9.15%;
(m) for 2013—10.65%;
(n) for 2014—9.87%;
(o) for 2015—11.11%;
(p) for 2016—12.75%;
(q) for 2017—14.22%;
(r) for 2018—16.06%;
(s) for 2019—18.60%;
(t) for 2020—19.31%;
(u) for 2021—18.54%;
(v) for 2022—18.64%;
(w) for 2023—18.96%;
(x) for 2024—18.48%.
Division 3—Small‑scale technology shortfall charge
23A Small‑scale technology percentage
For subsection 40A(1) of the Act, the small‑scale technology percentage is the following:
(a) for 2011—14.80%;
(b) for 2012—23.96%;
(c) for 2013—19.70%;
(d) for 2014—10.48%;
(e) for 2015—11.71%;
(f) for 2016—9.68%;
(g) for 2017—7.01%;
(h) for 2018—17.08%;
(i) for 2019—21.73%;
(j) for 2020—24.40%;
(k) for 2021—28.80%;
(l) for 2022—27.26%;
(m) for 2023—16.29%;
(n) for 2024—21.26%.
Part 5—Statements and assessments
24 Annual energy acquisition statements
(1) For paragraph 44(2)(f) of the Act, an energy acquisition statement must set out the following information:
(a) the year to which the statement applies;
(b) the date of the statement;
(c) whether the liable entity must lodge a renewable energy shortfall statement for the year;
(d) how any small‑scale technology shortfalls and large‑scale generation shortfalls were calculated;
(e) the telephone number, fax number and email address (if any) of the liable entity;
(f) any large‑scale generation shortfall charge refund owing under section 98 of the Act;
(g) any changes to information already given to the Regulator about the following matters for the liable entity:
(i) ownership;
(ii) company mergers;
(iii) street address, telephone number, fax number and email address (if any);
(iv) electricity supply arrangements;
(h) the year for which the renewable energy certificates are being surrendered;
(i) any adjustments to the information set out in an energy acquisition statement lodged in a previous year (for example, changes to the statement resulting from changes to the final settlement data issued by AEMO or NTESMO).
Note: For other information that must also be included in the statement, see subsection 44(2) of the Act.
(2) For paragraph 44(6)(b) of the Act, an energy acquisition statement must be lodged with the Regulator:
(a) electronically; or
(b) in exceptional circumstances—by post.
(3) For paragraph (2)(b), exceptional circumstances means a circumstance that makes electronic lodgement not reasonably possible.
Examples: Major natural disaster or other large‑scale emergency.
24A Surrender of small‑scale technology certificates
For subparagraph 45(1)(a)(ii) of the Act, the notice must be lodged electronically in the register of small‑scale technology certificates.
24B Surrender of additional certificates
For paragraph 45C(2)(c) of the Act, the additional surrender notice must be lodged electronically in the register of large‑scale generation certificates or the register of small‑scale technology certificates, as the case requires.
25 Annual large‑scale generation shortfall statements
(1) For paragraph 46(3)(e) of the Act, an annual large‑scale generation shortfall statement must set out the following information:
(a) the year to which the statement applies;
(b) the telephone number, fax number and email address (if any) of the liable entity;
(c) how any large‑scale generation shortfall charge was worked out;
(d) any adjustments to the information set out in a large‑scale generation shortfall statement lodged in a previous year (for example, changes to the statement resulting from changes to the final settlement data issued by AEMO or NTESMO).
Note: For other information that must also be included in the statement, see subsection 46(3) of the Act.
(2) For paragraph 46(6)(b) of the Act, a large‑scale generation shortfall statement must be lodged with the Regulator:
(a) electronically; or
(b) in exceptional circumstances—by post.
(3) For paragraph (2)(b), exceptional circumstances means a circumstance that makes electronic lodgement not reasonably possible.
Examples: Major natural disaster or other large‑scale emergency.
25A Annual small‑scale technology shortfall statements
(1) For paragraph 46(5)(d) of the Act, an annual small‑scale technology shortfall statement must set out the following information:
(a) the year to which the statement applies;
(b) the telephone number, fax number and email address (if any) of the liable entity;
(c) how the small‑scale technology shortfall charge was worked out;
(d) any adjustments to the information set out in a small‑scale technology shortfall statement lodged in a previous year (for example, changes to the statement resulting from changes to the final settlement data issued by AEMO or NTESMO).
Note: For other information that must also be included in the statement, see subsection 46(5) of the Act.
(2) For paragraph 46(6)(b) of the Act, a small‑scale technology shortfall statement must be lodged with the Regulator:
(a) electronically; or
(b) in exceptional circumstances—by post.
(3) For paragraph (2)(b), exceptional circumstances means a circumstance that makes electronic lodgement not reasonably possible.
Examples: Major natural disaster or other large‑scale emergency.
Part 6—Administration
26 Seizing and disposing of property
(1) For subsection 94(2) of the Act, this regulation sets how an authorised person may seize and dispose of the property of a deceased person.
(2) After property is seized, the authorised person must keep it secure until the authorised person disposes of it.
(3) On a sale of land under this regulation, the authorised person must comply with the law of the State or Territory where the land is situated for the transfer of title to land.
(4) The authorised person may sell as much of the property that is seized as will, in the opinion of the authorised person, be sufficient to raise the amount mentioned in subsection 94(1) of the Act.
(5) A sale of seized property must take place as soon as possible after the property is seized.
(6) After the authorised person sells seized property, he or she:
(a) may keep the reasonable costs incurred by him or her; and
(b) must give any remaining amount to the Regulator.
(7) The authorised person must tell the Regulator if the sale of all available property of the deceased person raises less than the amount mentioned in subsection 94(1) of the Act.
27 Identity cards for authorised officers
For subsection 108(1) of the Act, an identity card must include:
(a) the signature of the authorised officer; and
(b) the name and office of the authorised officer; and
(c) the date the card expires; and
(d) any other information that may be necessary to indicate that the officer is authorised to exercise powers or to perform functions under the Act.
28 Fees
(1) For paragraph 10(2)(d) of the Act:
(a) the fee for an application for registration is $20; and
(b) the fee for an application for registration as a person to whom certificates may be assigned under subsection 23(2) or 23C(2) of the Act is $250.
(2) For paragraphs 12A(2)(f) and 13(2)(e) of the Act, the fee for an application for provisional accreditation or accreditation is:
Item | Generator | 1997 eligible renewable power baseline type | Fee |
1 | < 10 kW, small generation unit or solar water heater for which the right to create certificates is not assigned under subsection 23(2) or 23C(2) of the Act | Any baseline | $20 |
2 | < 10MW, other than small generation unit or solar water heater to which item 1 applies | (a) default or nil baseline | $50 |
(b) special baseline with data | $150 |
(c) special baseline without required data (modelling required) | $250 |
3 | ≥ 10 MW, ≤ 25 MW | (a) default or nil baseline | $200 |
(b) special baseline with data | $500 |
(c) special baseline without required data (modelling required) | $1 000 |
4 | > 25 MW | (a) default or nil baseline | $1 000 |
(b) special baseline with data | $1 700 |
(c) special baseline without required data (modelling required) | $3 000 |
(3) For subsection 26(3A) of the Act, the fee for registration of a certificate is:
(a) for a small‑scale technology certificate created on or after 17 October 2011 for a small generation unit:
(i) for the first 250 certificates registered—nil;
(ii) for the 251st certificate registered—$117.97;
(iii) for each certificate registered after the 251st certificate—47 cents; and
(b) for any other certificate:
(i) for the first 250 certificates registered—nil;
(ii) for the 251st certificate registered—$20.08;
(iii) for each certificate registered after the 251st certificate—8 cents.
(4) For subsection 45E(1) of the Act, the fee for the surrender of a certificate under Subdivision A of Division 1 of Part 5 of the Act is 8 cents.
(5) For section 98 of the Act, the administration fee for a certificate surrendered by a liable entity under section 95 of the Act for a charge year is:
where:
total of certificate values is the total of the certificate values of all certificates surrendered by the liable entity under paragraph 95(1)(b) for that year.
number of certificates is the number of certificates surrendered by the liable entity under section 95 for that year.
P is:
(a) if the total of certificate values for the number of certificates surrendered for the charge year is less than $1 000—2%; or
(b) if the total of certificate values for the number of certificates surrendered for the charge year is at least $1 000 but less than $5 000—1.5%; or
(c) if the total of certificate values for the number of certificates surrendered for the charge year is at least $5 000 but less than $15 000—1%; or
(d) if the total of certificate values for the number of certificates surrendered for the charge year is $15 000 or more—0.5%.
Note: For the meaning of certificate value, see section 96 of the Act.
Part 7—Inspections of small generation units
Division 1—General
29 Purpose of Part
(1) The purpose of this Part is to establish a scheme for the inspection of small generation units for which renewable energy certificates have been created.
(2) This Part is made for section 23AAA of the Act.
30 General requirements for inspections
(1) The Regulator must ensure that each year a statistically significant selection of small generation units that were installed during the year are inspected under this Part for conformance with:
(a) Australian standards; and
(b) other standards or requirements relevant to the creation of certificates in relation to the installed small generation unit.
(2) The Regulator must ensure that an inspection under this Part is carried out by a person or organisation who:
(a) is independent of the person or organisation who designed and/or installed the small generation unit; and
(b) does not have a conflict of interest in relation to the small generation unit or administration of the matters being inspected.
31 Part 7 not to limit other inspections
Nothing in regulation 30 prevents small generation units for which certificates have been created from:
(a) being inspected under this Part at any time that the Regulator considers it is appropriate or necessary to do so; or
(b) being inspected as part of an audit under Part 11 of the Act.
32 Publication of inspections
(1) The Regulator must, for each year, publish on the Regulator’s website the number of inspections conducted under this Part during the year.
(2) The Regulator may also publish any other general information about inspections that the Regulator considers appropriate.
Division 2—Appointment of inspectors
33 Appointment of inspectors
(1) The Regulator may, in writing, appoint a person to be an inspector for this Part.
(2) The Regulator is not to appoint a person as an inspector unless the Regulator is satisfied that the person:
(a) is of sufficient maturity, and has had sufficient training, to properly exercise the powers of an inspector; and
(b) holds an unrestricted licence for electrical work under the laws of a State or Territory; and
(c) has sufficient expertise in matters arising under the Act and these Regulations in relation to small generation units in order to critically examine the requirements in regulation 39 and to prepare a report under regulation 42; and
(d) is of good repute, having regard to the person’s character, honesty and integrity.
(3) In exercising a power or performing a function as an inspector, an inspector must comply with any directions of the Regulator.
Note: Part 12 of the Act applies to inspectors appointed under this regulation.
34 Identity cards
(1) The Regulator must issue an identity card to an inspector.
(2) An identity card must include:
(a) the signature of the inspector; and
(b) the name of the inspector; and
(c) the date the card expires; and
(d) any other information that may be necessary to indicate that the inspector is authorised to exercise powers or to perform functions under this Part.
(3) An inspector must carry the identity card at all times when exercising powers or performing functions as an inspector.
35 Offence for not returning identity card
A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not, immediately upon so ceasing, return the identity card to the Regulator.
Penalty: 1 penalty unit.
36 Inspector must not have conflict of interest
A person commits an offence if:
(a) the person is an inspector; and
(b) the person conducts an inspection of a small generation unit under this Part; and
(c) at the time of the inspection, the person:
(i) is not independent of the person or organisation who designed and/or installed the small generation unit; or
(ii) has a conflict of interest in relation to the small generation unit or administration of the matters being inspected.
Penalty: 5 penalty units.
Division 3—Powers of inspectors
37 Entry to premises
(1) For the purpose of conducting an inspection under this Part, an inspector may:
(a) at any reasonable time of the day, enter any premises on which a small generation unit has been installed; and
(b) conduct an inspection of the unit and premises in order to determine if the requirements in regulation 39 have been satisfied.
(2) An inspector is not authorised to enter premises under subregulation (1) unless:
(a) the inspector has, at least 24 hours before the proposed inspection, contacted the occupier of the premises and arranged a time for the inspection; and
(b) the occupier has consented to the entry at that time; and
(c) the inspector has shown his or her identity card to the occupier or a person who represents the occupier; and
(d) before undertaking the inspection, the inspector has explained the purpose and scope of the inspection to the occupier or a person who represents the occupier.
38 Consent
(1) Before obtaining the consent of an occupier for paragraph 37(2)(b), the inspector must inform the occupier that he or she may refuse consent.
(2) An entry of an inspector by virtue of the consent of the occupier is not lawful unless the occupier voluntarily consented to the entry.
39 Matters for inspection
In conducting an inspection under this Part, the inspector is to determine whether there is material or pervasive evidence that the following requirements in relation to the small generation unit being inspected have not been satisfied:
(a) the unit is installed at the address specified in the application to create certificates and is able to produce and deliver electricity;
(b) the unit is a small generation unit within the meaning of subregulation 3(2);
(c) all local and State or Territory government requirements have been met for the installation of the unit;
(d) the installation of the unit complies with the following standards, as in force at the time the unit was installed:
(i) AS/NZS 3000, Electrical installations;
(ii) AS/NZS 1768, Lightning protection;
(iii) if the unit is an on‑grid system—AS 4777, Grid connection of energy systems via inverters;
(iv) if the unit is solar (photovoltaic) system—AS/NZS 5033, Installation of photovoltaic (PV) arrays and AS/NZS 1170.2, Structural design actions, Part 2: Wind actions;
(v) if the unit is an off‑grid solar (photovoltaic) system or a wind system—AS/NZS 4509.1, Stand alone power systems, Part 1: Safety and installation and AS 4086.2, Secondary batteries for use with stand‑alone power systems, Part 2: Installation and maintenance;
(vi) if the unit is a wind system—AS/NZS 1170.2, Structural design actions, Part 2: Wind actions;
(e) the statements and documentation mentioned in subregulations 20AC(5) and (5A) for the unit have been obtained;
(f) the documents, statements and evidence mentioned in subregulations 20AC(5) and (5A) for the unit do not contain information that:
(i) is false or misleading in a material particular; or
(ii) omits a matter or thing without which the information is misleading in a material particular;
(g) if the certificates created for the unit were multiplied under regulation 20AA—the circumstances in subregulation 20AA(3) apply to the multiplication of the certificates;
(h) if subregulation 20(2C) or (2E) applies to the unit—the unit is an off‑grid small generation unit.
40 Conduct of inspection
(1) In conducting an inspection of a small generation unit under this Part, an inspector:
(a) may examine and test the unit and any wiring or equipment associated with the unit; and
(b) may take photographs of anything on the premises relevant to the inspection; and
(c) may make a video recording of the inspection; and
(d) may request the occupier to answer any questions related to:
(i) the design or installation of a small generation unit at the premises; and
(ii) the creation of certificates for the unit; and
(e) may do anything incidental to the matters mentioned in paragraphs (a) to (d); and
(f) must comply with:
(i) any requirements or conditions of the inspector’s electrical licence; or
(ii) the law of the State or Territory where the unit is located.
(2) A person is not required to answer any questions asked by an inspector under paragraph (1)(e).
(3) The inspector must leave the premises if the occupier asks the inspector to do so.
(4) The occupier, or a person who represents the occupier, is entitled to observe the inspection being carried out.
41 Dealing with imminent safety risks
(1) If, during an inspection, the inspector considers that there is an imminent safety risk to a person or to property from a small generation unit on the premises, the inspector must immediately notify all interested parties, and may notify any other person, of the extent and nature of the safety risk.
(2) In determining if there is an imminent safety risk to a person or property, the inspector must take into account any guidelines issued by the Regulator.
(3) The inspector must, after notifying the Regulator, comply with any directions given to the inspector by the Regulator.
(4) The inspector must notify the relevant State or Territory Regulator by telephone and must, as soon as practicable after the telephone notification, confirm the notification by email or other electronic communication.
(5) In this regulation:
Building Code of Australia means the publication known as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time.
interested parties means the following:
(a) the occupier;
(b) the Regulator;
(c) the relevant State or Territory Regulator;
(d) the relevant distribution network service provider;
(e) the owner of the small generation unit.
relevant distribution network service provider, for a State or Territory, means a person who engages in the activity of owning, controlling or operating an electricity distribution system in the State or Territory.
relevant State or Territory Regulator, for a State or Territory, means:
(a) for matters relating to electrical work—the State or Territory agency responsible for the administration or enforcement of safety standards for electrical work in the State or Territory; and
(b) for matters relating to the design and construction of buildings and structures—the State or Territory agency responsible for the administration or enforcement of the Building Code of Australia in its application to the State or Territory.
Division 4—Reports
42 Inspector to prepare a report
(1) Upon completion of an inspection, the inspector must prepare a written report that complies with this regulation.
(2) The report must be in the form approved by the Regulator.
(3) The report must include one of the following conclusions about the design and installation of the small generation unit inspected by the inspector:
(a) a conclusion that the inspection found no material or pervasive evidence that one or more of the requirements in regulation 39 were not satisfied;
(b) a conclusion that the inspection found material or pervasive evidence that one or more of the requirements in regulation 39 were not satisfied and the non‑compliance presents an imminent risk to the safe operation of the small generation unit;
(c) a conclusion that the inspection found material or pervasive evidence that one or more of the requirements in regulation 39 were not satisfied but the non‑compliance does not present an imminent risk to the safe operation of the small generation unit.
(4) The report must also include:
(a) a brief summary of how the inspection was conducted; and
(b) a recommendation as to the steps that should be taken to rectify any problems discovered during the inspection and, in particular, how to ensure that any safety or operational problems discovered can be rectified; and
(c) any other information required by the Regulator.
43 Procedural fairness
(1) If the report is likely to contain an adverse finding in relation to any of the following persons, the inspector must provide a copy of the finding to the person before finalising the report:
(a) a person who designed or installed the small generation unit;
(b) the person who sold the unit to the owner of the unit;
(c) a person who created certificates for the unit.
(2) The inspector must:
(a) allow the person a reasonable opportunity to comment on the proposed adverse finding; and
(b) take account of any comments provided by the person when finalising the report.
44 Copy of final report to be provided to interested parties
(1) The Regulator must provide a copy of the inspector’s final report for a small generation unit at particular premises to the following persons:
(a) the owner of the unit;
(b) the occupier of the premises;
(c) the person who created certificates for the unit;
(d) the designer of the unit;
(e) the installer of the unit.
(2) If a person mentioned in a paragraph in subregulation (1) is the same person mentioned in another paragraph of subregulation (1), the Regulator is only required to provide the person with 1 copy of the report.
45 Copy of report to be provided to scheme operator
If the final report contains a conclusion that there is material or pervasive evidence that one or more of the requirements in paragraphs 39(c) to (f) have not been satisfied in relation to the design and installation of a small generation unit, the Regulator must provide a copy of the report to the scheme operator for the accreditation scheme under which the person or persons who designed and installed the small generation unit were accredited.
46 Copy of report to be provided to relevant State or Territory Regulators
(1) If the final report contains a conclusion that there is material or pervasive evidence that one or more of the requirements in paragraphs 39(c) and (d) have not been satisfied in relation to the design and installation of a small generation unit, the Regulator must provide a copy of the report to the relevant State or Territory Regulator.
(2) In this regulation:
Building Code of Australia means the publication known as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time.
relevant State or Territory Regulator, for a State or Territory, means:
(a) for matters relating to electrical work—the State or Territory agency responsible for the administration or enforcement of safety standards for electrical work in the State or Territory; and
(b) for matters relating to the design and construction of buildings and structures—the State or Territory agency responsible for the administration or enforcement of the Building Code of Australia in its application to the State or Territory.
47 Regulator may declare person ineligible to design and install small generation units
(1) This regulation applies if a person mentioned in paragraph 20AC(2)(a), (b), (c) or (d) is subject to an adverse finding in an inspection report on 3 separate occasions.
(2) The Regulator may, in writing, declare that the person is not eligible to design and install small generation units for the purposes of subregulation 20AC(2).
(3) A declaration has effect for the period specified in the declaration.
(3A) A period specified in a declaration cannot exceed:
(a) if the 3 adverse findings relate to the requirement mentioned in paragraph 39(f) not being satisfied for a document, statement or evidence obtained from the person—3 years;
(b) in any other case—12 months.
(4) The Regulator may publish the declaration on the Regulator’s website.
48 Matters to consider before making declaration
(1) In deciding whether or not to make a declaration in relation to a person, the Regulator must consider the following matters:
(a) the nature and extent of the adverse finding identified in an inspection report;
(b) the circumstances relating to the adverse finding;
(c) whether the person has rectified the problems surrounding the adverse finding;
(d) the extent to which the person has cooperated with inspectors and the Regulator with respect to the adverse finding;
(e) any other matters the Regulator considers relevant.
(2) Before making a declaration, the Regulator must:
(a) allow the person a reasonable opportunity to comment on the proposed declaration; and
(b) take account of any comments provided by the person in relation to the proposed declaration.
Part 8—Review
49 Review of decisions
(1) A person mentioned in column 3 of an item in the following table may request the Regulator to reconsider a decision mentioned in column 2 for that item.
Item | Decision | Person |
1 | Decision under regulation 19BA to determine the number of certificates that may be created for a solar water heater | Manufacturer of the solar water heater |
2 | Decision under regulation 19BC in relation to a request to make or vary a determination about a solar water heater | Person making the request |
2AA | Decision under subregulation 19C(3A) to remove a device from the Register of solar water heaters | Any of the following: (a) the manufacturer of the device; (b) a person who made a request in relation to the device under subregulation 19BC(1); (c) a person whose business involves the sale or installation of the device |
2AB | Decision under regulation 20AF to declare that a model of an inverter or photovoltaic module is not eligible for use in the installation of small generation units for the purposes of these Regulations | Either: (a) the manufacturer of the model; or (b) if the model was imported into Australia—the person who imported the model |
2AC | Decision under regulation 20AG to declare that a person is not eligible to design small generation units for the purposes of subregulation 20AC(2) | Person subject to the declaration |
2AD | Decision under regulation 20AG to declare that a person is not eligible to install small generation units for the purposes of subregulation 20AC(2) | Person subject to the declaration |
2AE | Decision under regulation 20AH to declare that a person is not eligible to make statements in relation to small generation units for the purposes of subregulation 20AC(5A) | Person subject to the declaration |
2AF | Decision under Subdivision 2.3.4 to refuse to approve an accreditation scheme | Applicant for the approval |
2AG | Decision under subregulation 20BK(1) to revoke the approval of an accreditation scheme | Person whose interests are affected by the decision |
2A | Decision under subregulation 22UG(4) to give a notice (requiring application for exemption certificate to be accompanied by audit report) | Person to whom the notice is given |
2B | Decision under subregulation 22ZHC(3) to specify a formula in an exemption certificate (identification of use amount for a liable entity) | Applicant for the exemption certificate |
3 | Decision under subregulation 47(2) to declare that a person is not eligible to design and install small generation units | Person subject to the declaration |
(2) The request must be:
(a) in writing; and
(b) given to the Regulator not later than 60 days after the decision is made.
(3) The Regulator must reconsider the decision and confirm, vary or set aside the decision.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires the person to be notified of the person’s review rights.
(4) If the Regulator does not give written notice of the Regulator’s decision under subregulation (3) to the person within 60 days after the person gives the request to the Regulator:
(a) the Regulator is taken to have made a decision confirming the original decision; and
(b) the Regulator’s decision is taken to have been made immediately after the end of the 60 days.
(5) An application may be made to the Administrative Review Tribunal for review of a decision of the Regulator under subregulation (3).
Part 9—Application and transitional provisions
50 Amendments made by the Clean Energy Legislation Amendment (2014 Measures No. 1) Regulation 2014
The amendments of these Regulations made by items 16 and 17 of Schedule 1 to the Clean Energy Legislation Amendment (2014 Measures No. 1) Regulation 2014 apply in relation to the following applications for the issue of exemption certificates in respect of the production of coal char:
(a) an application made, but not finally determined, before the commencement of this regulation;
(b) an application made on or after the commencement of this regulation.
51 Amendments made by the Renewable Energy (Electricity) Amendment (Exemptions for EITE Activities) Regulation 2015
Application—partial exemptions for 2014 and earlier years
(1) Despite the amendments made by the amending regulation, these regulations, as in force immediately before the commencement of the amending regulation, continue to apply in relation to partial exemptions (and partial exemption certificates) for 2014 and earlier years.
Transitional—exemption certificates
(2) Subregulation 3 applies if, before the commencement of the amending regulation, a partial exemption amount (the exemption amount) for 2015:
(a) is calculated in accordance with the formula in subregulation 22ZF(1) or (2) or regulation 22ZG; or
(b) is reduced in accordance with the formula in subregulation 22ZP(2) or (4) or 22ZQ(2).
(3) The Regulator must amend the certificates concerned so they have effect as if the exemption amounts had been calculated after items 30 and 31 of Schedule 1 of the amending regulation had commenced.
Meaning of amending regulation
(4) In this regulation:
amending regulation means the Renewable Energy (Electricity) Amendment (Exemptions for EITE Activities) Regulation 2015.
52 Amendments made by the Renewable Energy (Electricity) Amendment (Small‑scale Solar Eligibility and Other Measures) Regulations 2019
The amendments of these Regulations made by Part 2 of Schedule 1 to the Renewable Energy (Electricity) Amendment (Small‑scale Solar Eligibility and Other Measures) Regulations 2019 that relate to amendments of exemption certificates apply in relation to applications for amendments to exemption certificates for 2019 and later years.
53 Amendments made by Schedule 1 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021
(1) Subject to this regulation, the amendments of these Regulations made by Schedule 1 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021 apply to the creation of certificates in relation to a small generation unit that is installed on or after 1 April 2022.
(2) Paragraphs 39(e) and (f), as amended by Schedule 1 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021, apply to the inspection of a small generation unit that is installed on or after 1 April 2022.
54 Amendments made by Schedule 2 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021
Existing accreditations
(1) This regulation applies if an accreditation mentioned in paragraph 20AC(2)(a), (b), (c) or (d) was in force for a person immediately before 1 July 2022.
(2) The accreditation for the person:
(a) continues to have effect on and from 1 July 2022 as if it were an accreditation mentioned in paragraph 20AC(2)(a), (b), (c) or (d), as amended by the amending Schedule; and
(b) unless it ceases to have effect earlier in accordance with its terms, ceases to have effect at the later of:
(i) the end of 31 December 2022; and
(ii) the end of the period of 3 months commencing on the day the Regulator approves an accreditation scheme under regulation 20BH.
Pending applications
(3) This regulation also applies in relation to an application by a person for accreditation under the Clean Energy Council accreditation scheme:
(a) made, but not finally determined, before 1 July 2022; or
(b) made on or after 1 July 2022 and before the approval of an accreditation scheme under regulation 20BG.
(4) Despite the repeal and substitution of paragraphs 20AC(2)(a), (b), (c) and (d) by the amending Schedule, the person may, until an accreditation scheme is approved under regulation 20BG, be accredited under the Clean Energy Council accreditation scheme as if those paragraphs had not been repealed.
(5) An accreditation mentioned in subregulation (4):
(a) has effect as if it were an accreditation under an accreditation scheme approved by the Regulator under regulation 20BG; and
(b) unless it ceases to have effect earlier in accordance with its terms, ceases to have effect at the later of:
(i) the end of 31 December 2022; and
(ii) the end of the period of 3 months commencing on the day the Regulator approves an accreditation scheme under regulation 20BG.
Definitions
(6) In this regulation:
amending Schedule means Schedule 2 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021.
55 Amendments made by Schedule 3 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021
The amendments of these Regulations made by Schedule 3 to the Renewable Energy (Electricity) Amendment (Small‑Scale Renewable Energy Scheme Reforms and Other Measures) Regulations 2021 apply to devices entered in the Register of solar water heaters before, on or after 1 January 2022.
56 Amendments made by the Renewable Energy (Electricity) Amendment (Native Forest Wood Waste) Regulations 2022
Despite the amendments of regulation 8 made by Schedule 1 to the Renewable Energy (Electricity) Amendment (Native Forest Wood Waste) Regulations 2022, that regulation continues to apply, as if those amendments had not been made, in relation to an accredited power station if:
(a) the power station first became accredited as an accredited power station during the period that:
(i) began on 27 June 2015; and
(ii) ended immediately before the commencement of this regulation; and
(b) the application for accreditation of the power station listed the eligible energy source of wood waste.
57 Amendments made by the Energy Legislation Amendment (Information Requirements) Regulations 2023
The amendments of this instrument made by Schedule 1 to the Energy Legislation Amendment (Information Requirements) Regulations 2023 (the amending instrument) apply in relation to:
(a) an application under subsection 30K(1) or 30M(1) of the Act made after the commencement of the amending instrument; or
(b) the transfer of a small‑scale technology certificate after the commencement of the amending instrument.
