Clean Energy Amendment Regulation 2012 (No. 7)1

Select Legislative Instrument 2012 No. 289

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Clean Energy Act 2011.

Dated 6 December 2012

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

GREG COMBET

Minister for Climate Change and Energy Efficiency

Contents

 1 Name of regulation

 2 Commencement

 3 Amendment of Clean Energy Regulations 2011

Schedule 1 Amendments commencing on day after registration

Schedule 2 Amendments commencing after commencement of Clean Energy Amendment (International Emissions Trading and Other Measures) Act 2012

1 Name of regulation

  This regulation is the Clean Energy Amendment Regulation 2012 (No. 7).

2 Commencement

  This regulation commences as follows:

 (a) on the day after it is registered—sections 1 to 3 and Schedule 1;

 (b) on the later of:

 (i) the day after it is registered; and

 (ii) the commencement of Schedule 1, Part 1 of the Clean Energy Amendment (International Emissions Trading and Other Measures) Act 2012;

 Schedule 2.

3 Amendment of Clean Energy Regulations 2011

  Schedules 1 and 2 amend the Clean Energy Regulations 2011.

Schedule 1 Amendments commencing on day after registration

(section 3)

[1] Regulation 1.3

insert

designated opt‑in person, for the Opt‑in Scheme, has the meaning given in regulation 3.30.

[2] Regulation 1.3, note

insert

• Climate Change Convention

[3] Regulation 1.3, note

insert

• eligible international emissions unit

[4] Regulation 1.3, note

insert

 fuel tax credit

 GST group

 GST joint venture

 Information Database

[5] Regulation 1.3, note

insert

 liable entity

 liquid petroleum fuel

[6] Regulation 1.3, note

insert

 person

[7] Regulation 1.3, note

insert

 Regulator

[8] Regulation 1.3, note

insert

• surrender

[9] Regulation 1.3, note

insert

 taxable fuel

[10] After regulation 1.14

insert

1.15 Status of lists of contents

 (1) A Part, Division or Schedule of these Regulations may contain a list of the provisions in the Part, Division or Schedule.

 (2) The list may be added to or edited in any published version of these Regulations.

[11] After Division 6 of Part 3

insert

Division 7 Opt‑in Scheme

Subdivision 7.1 Preliminary

3.29 Opt‑in Scheme

 (1) This is the Opt‑in Scheme for Division 7 of Part 3 of the Act.

 (2) The Scheme provides when a designated opt‑in person will be a liable entity in relation to the acquisition, manufacture or importation of specified taxable fuel.

3.30 Definitions

  For this Division:

designated opt‑in person is a person declared by the Regulator under regulation 3.37 as the person who is taken to be the designated opt‑in person in relation to an opt‑in amount.

eligibility test means the test specified in regulation 3.32.

enterprise has the same meaning as in the Fuel Tax Act 2006.

entity has the same meaning as in the Fuel Tax Act 2006.

Note:    See also regulation 3.31 (when an entity is entitled to a fuel tax credit).

GST Act means the A New Tax System (Goods and Services Tax) Act 1999.

joint venture operator, of a GST joint venture, has the same meaning as in the Fuel Tax Act 2006.

opt‑in amount, in relation to a designated opt‑in person, means:

 (a) the amount of specified taxable fuel for a financial year declared by the Regulator in relation to the person under regulation 3.37; or

 (b) if a variation is in effect in relation to the person under regulation 3.42 for a particular financial year—the amount of specified taxable fuel mentioned in the variation for the financial year.

participant, in a GST joint venture, has the same meaning as in the Fuel Tax Act 2006.

provisional emissions number means the number specified in subregulation 3.43 (2).

representative member, of a GST group, has the meaning given by section 195-1 of the GST Act.

specified taxable fuel means taxable fuel of a kind specified for the Opt‑in Scheme under regulation 3.33.

threshold test means the test specified in regulation 3.34.

3.31 When an entity is entitled to a fuel tax credit

  For the purposes of this Division, in determining whether an entity is entitled to a fuel tax credit in respect of an acquisition, manufacture or import of an amount of taxable fuel, disregard section 41-30 of the Fuel Tax Act 2006.

3.32 Eligibility test

 (1) A person passes the eligibility test in relation to an acquisition, manufacture or import of specified taxable fuel during a financial year if:

 (a) in a case where:

 (i) the designated opt‑in person was a member of a GST group at the start of the financial year; and

 (ii) if it were assumed that the fuel had been acquired, manufactured or imported at the start of the financial year—the entity that would have been entitled to a fuel tax credit in relation to that acquisition, manufacture or import would have consisted of the members of the GST group;

the fuel was acquired, manufactured or imported by a person who was a member of the GST group as at the start of the financial year; or

 (b) in a case where:

 (i) the designated opt‑in person was a participant in a GST joint venture at the start of the financial year; and

 (ii) if it were assumed that the fuel had been acquired, manufactured or imported at the start of the financial year—the entity that would have been entitled to a fuel tax credit in relation to that acquisition, manufacture or import would have consisted of the participants in the GST joint venture;

the fuel was acquired, manufactured or imported by a person who was a participant in the GST joint venture as at the start of the financial year; or

 (c) in any other case—the designated opt‑in person is the entity that was entitled to a fuel tax credit in relation to that acquisition, manufacture or import.

 (2) For the purposes of subparagraphs (1) (a) (ii) and (b) (ii), in determining the entity that would have been entitled to a fuel tax credit in relation to an acquisition, manufacture or import of specified taxable fuel, disregard:

 (a) so much of subsection 70‑5 (2) of the Fuel Tax Act 2006 as does not consist of the table; and

 (b) column 2 of the table in that subsection.

3.33 Specified taxable fuel

  Taxable fuel specified for the Opt‑in Scheme is liquid petroleum fuel.

3.34 Threshold test

 (1) An applicant passes the threshold test if:

 (a) the requirements in subregulation (2) are met by:

 (i) if the applicant is applying to be a designated opt‑in person on behalf of a GST group—the GST group; or

 (ii) if the applicant is applying to be designated opt‑in person on behalf of a GST joint venture—the GST joint venture; or

 (iii) in any other case—the applicant; or

 (b) the applicant:

 (i) is a liable entity on the Information Database on 30 June of the financial year before an application is given to the Regulator; or

 (ii) is a liable entity on the Information Database on the day the application is given to the Regulator; or

 (iii) is likely to have operational control over a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect; or

 (iv) is likely to be a participant in a designated joint venture that has a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect; or

 (v) holds a liability transfer certificate for a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect.

 (2) For paragraph (1) (a), the requirements are:

 (a) the fuel user has used an amount of eligible threshold fuel that has the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more in either of the two previous financial years before the applicant requests the declaration under regulation 3.37 to have effect; or

 (b) the fuel user is likely to use an amount of eligible threshold fuel that has the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect.

 (3) In this regulation:

eligible threshold fuel means specified taxable fuel that:

 (a) if not covered by this Scheme, would be subject to a carbon reduction that is more than zero under section 43-8 of the Fuel Tax Act 2006; or

 (b) is subject to a carbon component rate under section 6FA or 6FB of the Excise Tariff Act 1921.

Note   The reference to sections 6FA and 6FB of the Excise Tariff Act 1921 includes a reference to those sections as they have effect in relation to rates of duties of custom because of section 19A of the Customs Tariff Act 1995.

fuel user means the GST group, GST joint venture or applicant mentioned in subparagraph (1) (a) (i), (ii) or (iii).

Subdivision 7.2 Application for designated opt‑in person

3.35 Who may apply to be designated opt‑in person

  A person may apply to the Regulator for a declaration to be taken to be a designated opt‑in person in relation to an amount of specified taxable fuel if:

 (a) the person:

 (i) is not an individual; and

 (ii) is not a foreign person; and

 (b) for an application in relation to fuel acquired, manufactured or imported by members of a GST group—the person is the representative member of the GST group; and

 (c) for an application in relation to fuel acquired, manufactured or imported by participants in a GST joint venture—the person is the joint venture operator of the GST joint venture; and

 (d) for an application in relation to fuel acquired, manufactured or imported by the person—the person is:

 (i) the entity that was entitled to a fuel tax credit in relation to the fuel; or

 (ii) a member of a GST group that is entitled to a fuel tax credit in relation to the fuel.

3.36 Application for designated opt‑in person

 (1) An application to be a designated opt‑in person must be:

 (a) in a form approved by the Regulator for this paragraph; and

 (b) for a financial year that begins on or after 1 July 2013; and

 (c) given to the Regulator on or before 31 March of the financial year before the financial year in which the declaration is to have effect.

 (2) The application must include the following information:

 (a) evidence that the applicant:

 (i) is not an individual; and

 (ii) is not a foreign person;

 (b) the identifying information for:

 (i) the applicant; and

 (ii) if the application is in relation to fuel acquired, manufactured or imported by members of a GST group or by participants in a GST joint venture—each member of the applicant’s GST group or participant in the applicant’s GST joint venture; and

 (iii) if the application is in relation to fuel acquired, manufactured or imported by the person—the entity that is entitled to a fuel tax credit in relation to that acquisition, manufacture or import;

 (c) evidence that the applicant is likely to pass the eligibility test in the financial year in which the applicant requests the declaration to have effect;

 (d) evidence that the applicant passes the threshold test;

 (e) the financial year from which the applicant requests the declaration is to have effect.

 (3) The application must also include consent in accordance with regulation 3.47, if the applicant is:

 (a) the representative member of a GST group; or

 (b) the joint venture operator of a GST joint venture; or

 (c) a person who acquires, manufactures or imports the fuel and is a member of a GST group that is entitled to a fuel tax credit in relation to that fuel.

Subdivision 7.3 Declaration of designated opt‑in person

3.37 Declared person is designated opt‑in person

 (1) The Regulator must declare that a person is taken to be a designated opt‑in person in relation to the opt‑in amount mentioned in subregulation (2), with effect from the financial year after the declaration is made, if the Regulator is satisfied that:

 (a) the person is a person who may apply to be a designated opt‑in person under regulation 3.35; and

 (b) the application meets the requirements mentioned in regulation 3.36; and

 (c) if consent is required under subregulation 3.36 (3)—the person has obtained that consent; and

 (d) the person passes the threshold test mentioned in subregulation 3.34 (1); and

 (e) the person is likely to pass the eligibility test for the financial year the person has requested the declaration to have effect; and

 (f) the amount, or part of the amount, of specified taxable fuel to be declared to be the opt‑in amount for the person has not been declared to be an opt‑in amount for another person for that financial year.

 (2) The opt‑in amount for a designated opt‑in person is the amount set out in the table.

 (3) A declaration under subregulation (1) remains in effect until the Regulator decides the person is no longer a designated opt‑in person in accordance with regulation 3.45.

 (4) However, the opt‑in amount in relation to which a person is declared a designated opt‑in person may be varied under regulation 3.42 for a particular financial year.

 (5) If the Regulator makes a declaration under subregulation (1), within 14 days of making the declaration, the Regulator must give a copy of the declaration to:

  (a) the person who is declared to be a designated opt‑in person; and

 (b) the persons mentioned in subparagraphs 3.36 (2) (b) (ii) and (iii); and

 (c) the Commissioner for Taxation; and

 (d) the Chief Executive Officer of Customs.

3.38 Applications not considered

 (1) If an applicant does not satisfy regulation 3.35, the Regulator must:

 (a) refuse to consider the application; or

 (b) refuse to take any action, or any further action, in relation to the application.

 (2) The Regulator must give written notice to the applicant within 14 days of making the decision that the applicant does not satisfy regulation 3.35.

3.39 Request for further information or documents

 (1) In considering an application under regulation 3.36 or 3.41, the Regulator may, by written notice to an applicant, require the applicant to give the Regulator further information or documents in connection with the application within 14 days after the day the notice is given.

 (2) If the applicant fails to provide the information or documents, the Regulator may make a decision on the basis of the information that is available to the Regulator.

3.40 Timeframes for declaration to be made

  The Regulator must take all reasonable steps to ensure that a decision is made on an application given to the Regulator under regulation 3.36:

 (a) if the Regulator requires the applicant to give further information or documents under regulation 3.39 in relation to the application—within 90 days after the applicant gave the Regulator the information; or

 (b) in any other case—within 90 days after the application was given to the Regulator.

Subdivision 7.4 Variation to declaration of designated opt‑in person

3.41 Application to vary declaration in relation to opt‑in amount

 (1) A designated opt‑in person who is a representative member of a GST group may apply to the Regulator to have the opt‑in amount for the person varied in relation to an amount of fuel acquired, manufactured or imported by a member of the person’s GST group (the member).

 (2) An application for a variation must:

 (a) be given to the Regulator:

 (i) in a form approved by the Regulator for this subparagraph; and

 (ii) within 28 days of the member no longer satisfying the membership requirement mentioned in paragraph 48-10 (1) (b) of the GST Act; and

 (b) include the following information and documents for the member the application relates to:

 (i) identifying information for the member;

 (ii) evidence that the member no longer satisfies the membership requirement mentioned in paragraph 48-10 (1) (b) of the GST Act;

 (iii) the day on which the member ceased to satisfy the membership requirement.

3.42 Variation to declaration

 (1) The Regulator may vary the declaration in relation to a designated opt‑in person, by excluding an amount mentioned in subregulation (2) from the person’s opt‑in amount, if the Regulator is satisfied that:

 (a) the fuel of the member was included in the designated opt‑in person’s opt‑in amount for the financial year in which the application for the variation is given to the Regulator; and

 (b) the member no longer satisfies the membership requirement mentioned in paragraph 48-10 (1) (b) of the GST Act.

 (2) The amount a Regulator may exclude from an opt‑in amount is the amount of any specified taxable fuel acquired, manufactured or imported by the member of the GST group on and after the day mentioned in the variation.

 (3) If the Regulator decides to vary a declaration under subregulation (1), the opt‑in amount for the designated opt‑in person is varied from the day mentioned in the variation until the end of the financial year in which the application for variation is given to the Regulator.

 (4) The day mentioned in the variation may be a day before the variation is made by the Regulator.

 (5) Within 14 days of making a variation the Regulator must give a copy of the variation to:

  (a) the designated opt‑in person; and

 (b) the member; and

 (c) the Commissioner for Taxation; and

 (d) the Chief Executive Officer of Customs.

Subdivision 7.5 Designated opt‑in person as liable entity

3.43 Liability for emissions

 (1) The designated opt‑in person’s preliminary emissions number, for the purposes of the Scheme, for a financial year is the potential greenhouse gas emissions embodied in the opt‑in amount (in CO2‑e tonnes) for the designated opt‑in person if all of the following conditions are met:

 (a) during an eligible financial year, a person acquires, manufactures or imports an amount of specified taxable fuel;

 (b) an entity is entitled to a fuel tax credit in relation to that acquisition, manufacture or import;

 (c) a person is declared to be a designated opt‑in person in relation to some or all of the amount of specified taxable fuel mentioned in paragraph (a);

 (d) the designated opt‑in person passes the eligibility test.

 (2) If a designated opt‑in person has one or more preliminary emissions numbers for an eligible financial year then, for the purposes of the Act:

 (a) the sum of those preliminary emissions numbers is a provisional emissions number of the designated opt‑in person for the eligible financial year; and

 (b) the designated opt‑in person is a liable entity for the eligible financial year.

3.44 Reduction of provisional emissions number

 (1) If a person:

 (a) is a designated opt‑in person; and

 (b) under the scheme, the person has a provisional emissions number for an eligible financial year;

that provisional emissions number is to be reduced (but not below zero) by the number mentioned in subregulation (2).

 (2) The number is the potential greenhouse gas emissions, in CO2‑e tonnes, embodied in the amount of specified taxable fuel:

 (a) that is covered by a carbon reduction of zero under paragraph 43-8 (4) (b), (c) or (d) of the Fuel Tax Act 2006; or

 (b) for which a carbon component rate under section 6FA or 6FB of the Excise Tariff Act 1921 does not apply.

Note   The reference to sections 6FA and 6FB of the Excise Tariff Act 1921 includes a reference to those sections as they have effect in relation to rates of duties of custom because of section 19A of the Customs Tariff Act 1995.

3.45 Opting out of Scheme

 (1) The Regulator may decide that a person is no longer a designated opt‑in person if:

 (a) the person notifies the Regulator that the person wants to opt-out of the Scheme, in a form approved by the Regulator for this paragraph, on or before the 31 May preceding the financial year the person requests the decision to have effect; or

 (b) the person does not lodge a report in accordance with regulation 3.48; or

 (c) the Regulator is not satisfied for the financial year the decision is to have effect that:

 (i) the person meets the requirements of regulation 3.35; or

 (ii) the person passes the eligibility test; or

 (iii) if the person passed the threshold test under paragraph 3.34 (1) (a)—the person, the person’s GST group or the person’s GST joint venture are likely to use an amount of specified taxable fuel with the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more; or

 (iv) if the person passed the threshold test under subparagraph 3.34 (1) (b) (i), (ii), (iv) or (v)—the person is likely to be a liable entity on the Information Database other than as a designated opt‑in person; or

 (v) if the person passed the threshold test under subparagraph 3.34 (1) (b) (iii)—the person is likely to have operational control over a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act; or

 (d) an amount of unit shortfall charge the designated opt‑in person is liable for remains unpaid for more than 30 days after it becomes due for payment; or

 (e) the designated opt‑in person has become an externally‑administered body corporate within the meaning of the Corporations Act 2001; or

 (f) the designated opt‑in person has not provided the consent required in accordance with subregulation 3.47 (2).

 (2) If the Regulator makes a decision under paragraph (1) (a), the decision:

 (a) must be made on or before the 30 June of the financial year before the decision is to have effect; and

 (b) is taken to have effect from 1 July of the following financial year.

 (3) If the Regulator makes a decision under paragraph (1) (b), (c), (d), (e) or (f) the decision has effect from the day specified in the notice of the decision.

 (4) Within 14 days of making a decision, the Regulator must give a copy of the decision to:

  (a) the person that is no longer a designated opt‑in person; and

 (b) the persons mentioned in subparagraphs 3.36 (2) (b) (ii) and (iii); and

 (c) the Commissioner for Taxation; and

 (d) the Chief Executive Officer of Customs.

3.46 Request for further information or documents for decision to opt-out of Scheme

 (1) Before making a decision under paragraph 3.45 (1) (c), the Regulator may, by written notice to an applicant, require a designated opt‑in person to give the Regulator further information or documents, in relation to the matters mentioned in the paragraph, within 14 days after the day the notice is given.

 (2) If the designated opt‑in person fails to provide the information or documents within 14 days after the day the notice is given, the Regulator may make a decision under subregulation 3.45 (1) that the person is no longer a designated opt‑in person.

3.47 Consent to be liable entity

 (1) The following persons must provide consent for an applicant to be a designated opt‑in person, in a form approved by the Regulator for this regulation:

 (a) if the applicant is the representative member of a GST group—each member of the GST group of which the applicant is a member;

 (b) if the applicant is the joint venture operator of a GST joint venture—each participant of the GST joint venture of which the applicant is an operator;

 (c) if the applicant is a member of a GST group that is entitled to a fuel tax credit—the representative member of the GST group.

 (2) If:

 (a) a declaration has been made under regulation 3.37; and

 (b) during a financial year a member or participant joins the designated opt‑in person’s GST group or GST joint venture; and

 (c) the member or participant has not provided consent for the designated opt‑in person to be the designated opt‑in person for the GST group or GST joint venture;

consent, in the form approved by the Regulator, must be provided to the Regulator before the end of the financial year in which the member or participant joined the designated opt‑in person’s GST group or GST joint venture.

 (3) A member, participant or representative member (the consenter) who provides consent for the designated opt‑in person to be the designated opt‑in person for the GST group, GST joint venture or GST group member is taken to have guaranteed, for any financial year the consenter’s fuel is included in the designated opt‑in person’s opt‑in amount, the payment the designated opt‑in person may become liable for in relation to:

 (a) an amount of unit shortfall charge calculated from a designated opt‑in person’s provisional emissions number; and

 (b) an amount payable under section 135 of the Act because of the late payment of an amount covered by paragraph (a).

 (4) If the designated opt‑in person does not pay the amounts mentioned in paragraph (3) (a) or (b), each consenter who is taken to have guaranteed the payment is jointly and severally liable to pay the amounts.

Subdivision 7.6 Notification, reporting and record keeping requirements

3.48 Reporting requirement

 (1) A designated opt‑in person must give a report to the Regulator for each financial year after the person is declared to be a designated opt‑in person by 14 July of each year in a form approved by the Regulator for this subregulation.

 (2) The report must provide the following information in relation to the current financial year for which the designated opt‑in person is a liable entity:

 (a) evidence that the person:

 (i) meets the requirements of regulation 3.35; and

 (ii) passes the eligibility test for the financial year;

 (b) the name of the entity that is entitled to a fuel tax credit in relation to the person’s opt‑in amount for the financial year;

  (c) if the designated opt‑in person applied as a representative member or joint venture operator—the identifying information for the members of the GST group or the participants in the GST joint venture, at the start of the financial year for which the designated opt‑in person is liable.

 (3) However, a report is not required to be provided to the Regulator for the first financial year the person is declared to be a designated opt‑in person.

3.49 Record keeping requirement

  A designated opt‑in person must keep records of any information or documents that are provided to the Regulator for the purposes of this Scheme for 5 years after the record is given to the Regulator.

3.50 Fuel tax credit—notification of changes requirement

  A designated opt‑in person must notify the Regulator within 14 days of the person becoming aware that:

 (a) if the person applied in relation to fuel acquired, manufactured or imported by the person:

 (i) the entity that is entitled to a fuel tax credit in relation to the opt‑in amount for the person has changed; or

 (ii) if the person is a member of a GST group—the representative member of the person’s GST group has changed; and

 (b) if the person applied as a representative member of a GST group or joint venture operator of a GST joint venture—the person is no longer a representative member of the GST group or the GST joint venture operator; and

 (c) the person becomes an externally-administered body corporate within the meaning of the Corporations Act 2001; and

 (d) the identifying information for the designated opt‑in person that was given to the Regulator has changed.

[12] After Part 4

insert

Part 6 Surrender of eligible emissions units

6.1 Surrender restrictions

 (1) This regulation:

 (a) is made for subsection 123 (1) of the Act; and

 (b) applies to the following eligible international emissions units:

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

 (ii) an emission reduction unit.

Note   These eligible international emissions units are defined in the ANREU Act.

 (2) The surrender of either of those eligible international emissions units is prohibited if the emissions unit is attributable to:

 (a) the destruction of:

 (i) trifluoromethane (also known as HFC 23); or

 (ii) nitrous oxide that is created as a result of producing adipic acid; or

 (b) a project that includes the production of:

 (i) nuclear energy; or

 (ii) hydropower that has a generating capacity of more than 20 MW unless an independent validating entity, using the EU compliance report, has assessed that the project respects the international criteria.

 (3) In this regulation:

Common understanding means the document titled ‘Guidelines on a common understanding of Article 11b (6) of Directive 2003/87/EC as amended by Directive 2004/101/EC’, published by the European Commission.

Note   At the commencement of this regulation the Guidelines are available at http://ec.europa.eu/clima/policies/ets/linking/ji-cdm/docs/art11b6_guide_en.pdf.

EU compliance report means the report in:

 (a) Annex 1 to the Common understanding; or

 (b) ‘Australia’s National Guidelines and Procedures for Approving Participation in Clean Development Mechanism Projects’, published by the Australian National Authority for the CDM and JI; or

 (c) ‘Australia’s National Guidelines and Procedures for Approving Participation in Joint Implementation Projects’, published by the Australian National Authority for the CDM and JI.

Note   At the commencement of this regulation:

(a) the report mentioned in paragraph (a) is available at http://ec.europa.eu/clima/policies/ets/linking/ji-cdm/docs/art11b6_comp_temp_en.pdf; and

(b) the reports mentioned in paragraphs (b) and (c) are available at www.climatechange.gov.au.

independent validating entity means an entity that is accredited as:

 (a) a designated operational entity by the Clean Development Mechanism Executive Board established under the Climate Change Convention; or

 (b) an accredited independent entity by the Joint Implementation Supervisory Committee.

international criteria means the criteria set out in Annex 1 to the Common understanding.

Joint Implementation Supervisory Committee means the committee established by Article 3 of Decision 9/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol.

[13] Paragraph 14.1 (1) (a)

omit

subsections

insert

provisions

[14] Subparagraph 14.1 (1) (a) (vi)

substitute

 (vi) subsection 85 (2) (liability transfer certificate—financial control);

 (vii) section 92A (Opt‑in Scheme); or

[15] Before regulation 21.1

insert

21.1A Reviewable decisions—Opt‑in Scheme

  For item 14 of the table in section 281 of the Act, the decisions of the Regulator under the Opt‑in Scheme in Division 7 of Part 3, set out in the following table, are prescribed.

[16] Schedule 1, after subclause 318 (5)

insert

 (5A) For the production of pulp from recovered paper as part of printing and writing paper manufacturing, the basis for the issue of free carbon units is by an air dried tonne (assuming a 10% moisture content) of equivalent pulp that is:

 (a) produced from recovered paper; and

 (b) used in the process of manufacturing printing and writing paper; and

 (c) produced as part of carrying on the emissions-intensive trade-exposed activity.

[17] Schedule 1, Part 3, after Division 47

insert

Division 48 Production of nickel

348 (1) The production of nickel is the chemical and physical transformation of either or both of:

 (a) nickel bearing inputs into intermediate nickel products, primary nickel products or cobalt products;

 (b) intermediate nickel products into primary nickel products or cobalt products.

 (2) The production of nickel is specified as an emissions-intensive trade-exposed activity.

 (3) The production of nickel is a moderately emissions‑intensive activity.

 (4) For the production of nickel, the basis for the issue of free carbon units is that the nickel is:

 (a) measured, on a dry weight basis, by a tonne of:

 (i) 100% equivalent nickel, contained in the following:

 (A) primary nickel products produced from nickel bearing inputs;

 (B) intermediate nickel products produced from nickel bearing inputs that are not subsequently transformed into primary nickel products at the same facility;

 (C) primary nickel products produced from intermediate nickel products that have not been produced at the same facility; or

 (ii) 100% equivalent cobalt, contained in cobalt products; and

 (b) produced by carrying on the emissions-intensive trade‑exposed activity; and

 (c) of saleable quality.

Note   Saleable quality is explained in Part 2.

 (5) In this Division:

cobalt products means:

 (a) cobalt hydroxide (Co(OH)2) where the concentration of cobalt is at least 65% with respect to mass, measured on a dry weight basis; and

 (b) cobalt (Co) where the concentration of cobalt is at least 99% cobalt with respect to mass, measured on a dry weight basis.

intermediate nickel products means the following outputs of saleable quality from a nickel production process that are suitable for further refining:

 (a) nickel matte where the concentration of nickel is at least 64% nickel with respect to mass, measured on a dry weight basis;

 (b) mixed nickel-cobalt hydroxide precipitate where the concentration of nickel is between 42% and 47% with respect to mass, measured on a dry weight basis;

 (c) basic nickel carbonate (Ni3(CO3)(OH)4) where the concentration of nickel is between 40% and 45% with respect to mass, measured on a dry weight basis;

 (d) nickel sulphide concentrate (NiS) where the concentration of nickel is between 11% and 29% with respect to mass, measured on a dry weight basis.

nickel bearing inputs means mineralised nickel ores and low grade nickel waste products that require equivalent processing to mineralised nickel ores to produce intermediate or primary nickel products.

primary nickel products means:

 (a) basic nickel carbonate (Ni3(CO3)(OH)4) where the concentration of nickel is at least 50% nickel with respect to mass, measured on a dry weight basis; and

 (b) nickel oxide (NiO) where the concentration of nickel is at least 78% nickel with respect to mass, measured on a dry weight basis; and

 (c) nickel (Ni) where the concentration of nickel is at least 98% nickel with respect to mass, measured on a dry weight basis.

[18] Schedule 1, subclause 401 (1), table, item 1.12

substitute

[19] Schedule 1, subclause 401 (1), table, after item 2.13

insert

[20] Schedule 1, after subclause 702 (1)

insert

 (1A) Despite paragraph (1) (c), an application for the year ending 30 June 2013 relating to an activity mentioned in Division 48 of Part 3 may be given to the Regulator not later than 31 March 2013.

 (1B) Subclause (1A) expires on 30 June 2013 as if it had been repealed by another legislative instrument.

[21] Schedule 1, subclause 907 (13)

omit

NGAFit is explained in the following table.

insert

  The factor NGAFit, measured in tonnes of CO2–e per terajoule (TJ), is:

 (a) for ethene produced in accordance with Division 23 of Part 3 in:

 (i) New South Wales—an ethane-specific factor of 21.5; and

 (ii) Victoria—an ethane-specific factor of 4.8; and

 (b) for a product that is not ethene—explained in the following table.

[22] Schedule 1, subclause 907 (14), before definition of metropolitan

insert

ethane-specific factor means the factor worked out in relation to the emissions associated with the production and transmission of ethane.

Schedule 2 Amendments commencing after commencement of Clean Energy Amendment (International Emissions Trading and Other Measures) Act 2012

(section 3)

[1] Subparagraph 3.32 (1) (b) (i)

omit

GST joint venture

insert

GST joint venture, or the joint venture operator of a GST joint venture,

[2] Subparagraph 3.32 (1) (b) (ii)

omit

GST joint venture;

insert

GST joint venture or the joint venture operator of a GST joint venture;

[3] Paragraph 3.32 (1) (b)

omit

GST joint venture

insert

GST joint venture, or the joint venture operator of a GST joint venture,

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.