Clean energy law in Australia

Description

Cover Page Full Title Copyright Foreword Publisher's Note Preface Table of Cases Table of Statutes Directory Table of Contents Chapter 1 - Legal Framework Introduction Sources of law Snapshot National legal framework - Carbon pricing mechanism Clean Energy Act 2011 (Cth) National Greenhouse and Energy Reporting Act 2007 (Cth) Fuel Tax Act 2006 (Cth) Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) National legal framework - Energy efficiency Energy Efficiencies Opportunities Act 2006 (Cth) Building Energy Efficiency Disclosure Act 2010 (Cth) National legal framework - Renewable energy Renewable Energy (Electricity) Act 2000 (Cth) National legal framework - Land sector Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) Regulatory oversight Clean Energy Regulator Australian Climate Change Authority Land Sector and Biodiversity Board Productivity Commission Australian Competition and Consumer Commission International framework United Nations Framework Convention on Climate Change Kyoto Protocol to the UNFCCC Ongoing modifications and additions to the UNFCCC Linking Australian targets and caps Chapter 2 - Registration, Measurement and Reporting Introduction Sources of law Who must register? Controlling corporation Controlling corporation's group Liable entity Person who may reasonably be expected to be liable Tests for registration Emissions threshold for registration by controlling corporation Group threshold for emissions and energy Threshold for facility Prorated threshold Exceptions from threshold Emissions threshold for registration by liable entity Emissions threshold for registration by person who is a potential liable entity Emissions Emissions of GHG Covered emissions Greenhouse gases Release into the atmosphere Direct result Territorial nexus Facility NGER reporting regulations requirements for facility Industry sector Operational control Tie-breaker tests for operational control Rules for joint ventures Rules for trusts with multiple trustees Consumption of energy Production of energy Energy Eligible financial year Voluntary registration Time for registration Form for registration Registration application by controlling corporation Registration application by liable entity Online registration Penalty for failing to register Register of registrations How are greenhouse gases measured? Overview of NGER (Measurement) Determination Emissions sources Categories of scope 1 emissions Units of measurement Carbon dioxide equivalence and global warming potential Measurement methods Uses of methods Due diligence for methods Rules for methods Carbon capture and storage Continuous emissions monitoring Example - coal mining: fugitive emissions - underground mining activities Available methods Fugitive emissions from extraction of coal Example - coal mining: fugitive emissions - open cut mines Available methods Fugitive emissions from extraction of coal Uncertainty Guidance Reporting obligations: who must report? Report by registered corporation Report by responsible member of a controlling corporation's group Report by liable entities Report by holders of liability transfer certificate Time for reporting Scope of information to be reported Reporting information about persons and facilities Reporting scope 1 and scope 2 emissions Scope 1 emissions from fuel combustion Scope 1 emissions from particular sources Example - reporting GHG emissions from coal mining Reporting energy production Reporting energy consumption Reporting primary or secondary fuels and energy commodities Other general reporting requirements Reporting aggregated amounts from facilities Reporting percentages of emissions and energy Reporting about incidental emissions and energy Reporting for facilities that are networks and pipelines Reporting for facilities that are vertically integrated production processes Reporting about contractors Reporting a change in principal activity for a facility Reporting if no group thresholds met Reporting of information by another person Reporting liability and related matters under the Clean Energy Act 2011 (Cth) Special reports Greenhouse gas projects Offsets of greenhouse emissions Form for reporting On-line report Penalty for failing to report Deregistration Declaration by the regulator of facilities and/or operational control Declaration of a facility - corporate group Declaration that a corporation has operational control of a facility - corporate group Declaration of a facility - non-group entity Declaration that a corporation has operational control of a facility - non-group entity Chapter 3 - Liability under the Clean Energy Act 2011 (Cth) Introduction Sources of law Direct emitters Introduction to Division 2 Person General rules for liability for non-landfill facilities General rules for liability for landfill facilities General rules for liability of participants in designated joint ventures General rules for liability of holders of a liability transfer certificate Facilities in the joint petroleum development area and greater sunrise unit area Natural gas suppliers Introduction to Division 3 Liable entity for the supply of natural gas Liable entity if a person quotes their obligation transfer number Liable entity if a person misuses their obligation transfer number Gaseous fuel suppliers Introduction to Division 3A General rules for liability for import of LPG or LNG for non-transport use General rules for liability for production of LPG or LNG for non-transport use Liable entity if a person quotes their obligation transfer number Liable entity if a person misuses their obligation transfer number Obligation transfer numbers Introduction to Division 4 Surrendering or cancelling an OTN Quoting an obligation transfer number Accepting or refusing to accept the quotation of an obligation transfer number Mandatory quotation of OTN Voluntary quotation of OTN Withdrawing the quotation of an OTN Misuse of an OTN Quotation of a bogus OTN OTN Register Joint ventures Introduction to Division 5 Mandatory designated joint venture Declared designated joint venture Allocation of liability in a joint venture - participating percentage determination Should an unincorporated joint venture become a designated joint venture or allocate liability using a liability transfer certificate? Liability transfer certificates Introduction to Division 6 Transfer of liability to another member of a corporate group Transfer of liability to a person who has financial control of a facility Duration of a liability transfer certificate Surrender of a liability transfer certificate Cancellation of a liability transfer certificate Opt-in Scheme Chapter 4 - Emissions Units Introduction Sources of law The Australian National Registry of Emissions Units Registry accounts Opening a registry account Entries in registry accounts Eligible emissions units Carbon units Australian carbon credit units Eligible international emissions units Original issues of carbon units Fixed charge carbon units Auction of carbon units Free carbon units Surrendering eligible emissions units Timing rules for surrender Surrendering carbon units Surrendering eligible Australian carbon credit units Surrendering eligible international emissions units International unit surrender charge Borrowing carbon units Cancelling emissions units Transfer of emissions units Transfer mechanics Deferral of transfers Relinquishment of carbon units Relinquishment mechanics Relinquishment for fraudulent conduct Relinquishment under the Jobs and Competitiveness Program What happens to carbon units after relinquishment? Non-compliance with a relinquishment notice Title in emissions units Emissions units as personal property Indefeasibility of title Dealing with emissions units Australian financial services licence Special dealings in emissions units Suspending a Registry account Appendix - Activity definitions for Jobs and Competitiveness Program Chapter 5 - Special Topics Introduction Anti-avoidance Tests Section 29 factors Publication of avoidance determination Audit Sources of law Pre-submission audit Compliance audit - suspected non-compliance Compliance audit - general Conduct of audits Greenhouse and energy auditors Constitutional foundation Is the charge for carbon units a tax? Liability of executive officers Pecuniary penalty Defence Information disclosure Publication of emissions and energy data Liable entities public information database Disclosure requirements of the Corporations Act 2001 (Cth) ASX listing rules International linking Background Importing Exporting Limitations to linking International unit surrender charge Record-keeping Sources of law Compliance with record-keeping requirements Record-keeping requirements - general Record-keeping requirements - applications to the regulator Record-keeping requirements - reports submitted to the regulator Record-keeping requirements - OTNs Taxation Goods and services tax Income taxation Stamp duty Unit surrender shortfalls and unit shortfall charge Unit shortfalls Unit shortfall charge Late payment penalty Default assessment Remission Unit surrender surplus Provisional surplus surrender number - fixed charge year Surplus and estimation error adjustment number - fixed charge year Final surplus surrender number - fixed charge year Surplus surrender number - flexible charge year Appendix Chapter 6 - Enforcement Powers of the Regulator Introduction Sources of law Information and document gathering powers Section 71 notice to give compellable information Section 221 notice to give information or produce documents Retention of documents by the regulator Claims for legal professional privilege and self-incrimination Monitoring compliance Appointment of authorised officers and inspectors Issue and use of identity cards Exercise of power under the directions of the regulator Entering premises Monitoring powers Asking questions and seeking production of documents Procedures for obtaining monitoring warrant Form of monitoring warrant Civil penalty provisions Excuse for mistake of fact Continuing contraventions Court powers to order civil penalty Civil enforcement of penalty Infringement notices Basis for issuing an infringement notice Form of infringement notice Infringement penalty Withdrawal of an infringement notice Effect of paying the infringement notice Savings for civil penalty proceedings Enforceable undertakings Acceptable undertakings Enforcement of undertakings Monitoring compliance with the undertaking Criminal sanctions Offences under the Criminal Code Act 1995 (Cth) Offences relating to unit shortfall charge Offence to obstruct the exercise of a warrant Offences in the Australian National Registry of Emissions Units Act 2011 (Cth) Appendix - Civil penalty provisions, penalties and infringement notice penalties Chapter 7 - Review and Appeals Introduction Source of law Processes and rules Process for internal reconsideration by the regulator Time limit for requesting internal review Grounds for reconsideration by the regulator Time limit for reconsideration of original decision Process for review by the Administrative Appeals Tribunal Time limit for application for review Merits review Judicial review Appeal to Federal Court of Australia Further appeals Appeal under the Administrative Decisions (Judicial Review) Act 1977 (Cth) Effect of review or appeal on monies owing to the regulator Liability for compensation and damages Index