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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Safeguard Mechanism (Crediting)
Amendment Bill 2022
No. , 2022
(Climate Change, Energy, the Environment and Water)
A Bill for an Act to amend legislation relating to
emissions reductions, and for related purposes
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Safeguard mechanism
3
Part 1--Amendment of the National Greenhouse and Energy
Reporting Act 2007
3
National Greenhouse and Energy Reporting Act 2007
3
Part 2--Amendment of the Income Tax Assessment Act 1997
29
Income Tax Assessment Act 1997
29
Part 3--Application of amendments
30
Schedule 2--Australian National Registry of Emissions Units
32
Australian National Registry of Emissions Units Act 2011
32
Carbon Credits (Carbon Farming Initiative) Act 2011
45
Schedule 3--Clean Energy Regulator
46
Clean Energy (Consequential Amendments) Act 2011
46
Clean Energy Regulator Act 2011
46
National Greenhouse and Energy Reporting Act 2007
46
Schedule 4--Other amendments
49
Carbon Credits (Carbon Farming Initiative) Act 2011
49
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
1
A Bill for an Act to amend legislation relating to
1
emissions reductions, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Safeguard Mechanism (Crediting) Amendment Act
5
2022
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
3
Schedule 1--Safeguard mechanism
1
Part 1--Amendment of the National Greenhouse and
2
Energy Reporting Act 2007
3
National Greenhouse and Energy Reporting Act 2007
4
1 Subsection 3(2)
5
Repeal the subsection, substitute:
6
(2) The second object of this Act is to contribute to the achievement of
7
Australia's greenhouse gas emissions reduction targets by ensuring
8
that:
9
(a) net covered emissions of greenhouse gases from the
10
operation of a designated large facility do not exceed the
11
baseline applicable to the facility; and
12
(b) aggregate net covered emissions from the operation of
13
designated large facilities decline.
14
2 Section 7
15
Insert:
16
1 April
, when used in the safeguard provisions, means:
17
(a) if the 1 April concerned is a business day--that 1 April; or
18
(b) if the 1 April concerned is not a business day--the first
19
business day after that 1 April.
20
3 Section 7 (definition of 1 March)
21
Repeal the definition.
22
4 Section 7
23
Insert:
24
associated provisions
means the following provisions:
25
(a) the provisions of a legislative instrument made under this
26
Act;
27
(b) the provisions of a legislative instrument made under the
28
regulations;
29
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
4
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(c) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
1
137.2 of the
Criminal Code
, in so far as those sections relate
2
to:
3
(i) this Act; or
4
(ii) a legislative instrument made under this Act; or
5
(iii) a legislative instrument made under the regulations.
6
Commonwealth Registry account
has the same meaning as in the
7
Australian National Registry of Emissions Units Act 2011
.
8
issue
, in relation to a safeguard mechanism credit unit, means issue
9
under section 22XNA.
10
5 Section 7 (definition of registered holder)
11
After "carbon unit", insert "or a relinquishable unit".
12
6 Section 7
13
Insert:
14
relinquishable unit
means an Australian carbon credit unit or a
15
safeguard mechanism credit unit.
16
7 Section 7 (definition of safeguard audit)
17
Before "subsection 22XQ(3)", insert "paragraph 22XNA(4)(c) or".
18
8 Section 7 (definition of safeguard audit report)
19
After "for the purposes of", insert "paragraph 22XNA(4)(c) or".
20
9 Section 7
21
Insert:
22
safeguard mechanism credit unit
means a unit issued under
23
section 22XNA.
24
10 Section 7 (after paragraph (c) of the definition of
25
safeguard provisions)
26
Insert:
27
(ca) paragraph 18B(3)(ba);
28
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
5
11 Paragraph 9(1)(b)
1
Omit "section 54 or 54A", substitute "section 54, 54A or 54B".
2
12 At the end of section 10
3
Add:
4
(4) A determination under subsection (3) may make provision in
5
relation to a matter by applying, adopting or incorporating, with or
6
without modification, a matter contained in an instrument or
7
writing:
8
(a) as in force or existing at a particular time; or
9
(b) as in force or existing from time to time.
10
(5) Subsection (4) has effect despite anything in subsection 14(2) of
11
the
Legislation Act 2003
.
12
(6) If a determination under subsection (3) makes provision in relation
13
to a matter by applying, adopting or incorporating, with or without
14
modification, a matter contained in an instrument or writing, the
15
Regulator must ensure that the text of the matter applied, adopted
16
or incorporated is published on its website.
17
(7) Subsection (6) does not apply if the publication would infringe
18
copyright.
19
(8) A determination under subsection (3) may make provision in
20
relation to a matter by conferring a power to make a decision of an
21
administrative character on the Regulator.
22
13 Subdivision B of Division 1 of Part 2 (heading)
23
Omit "
responsible emitter for a designated large facility etc.
",
24
substitute "
person who is not a controlling corporation
".
25
14 Section 15B (heading)
26
Omit "
responsible emitter for a designated large facility etc.
",
27
substitute "
person who is not a controlling corporation
".
28
15 After subsection 15B(3)
29
Insert:
30
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
6
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(3A) A person may apply, in accordance with this section, to be
1
registered under this Act if:
2
(a) the person has operational control of a facility of a kind
3
specified in the safeguard rules; and
4
(b) the person is not a controlling corporation.
5
16 Subsection 15B(4)
6
After "subsection (1)", insert "or (3A)".
7
17 After paragraph 18B(3)(b)
8
Insert:
9
(ba) if the person has been issued safeguard mechanism credit
10
units--the person has complied with any requirements
11
specified in the safeguard rules for the purposes of this
12
paragraph; and
13
18 Paragraph 22XB(1)(b)
14
Repeal the paragraph, substitute:
15
(b) either:
16
(i) at least one day in the relevant financial year is included
17
in a monitoring period for the facility in relation to the
18
person; or
19
(ii) the facility is specified in the safeguard rules; and
20
19 Subsection 22XB(1) (note)
21
After "Note", insert "1".
22
20 At the end of subsection 22XB(1)
23
Add:
24
Note 2:
For specification by class, see subsection 13(3) of the
Legislation Act
25
2003
.
26
21 At the end of section 22XD
27
Add:
28
•
This Part also sets up a scheme for issuing and relinquishing
29
safeguard mechanism credit units.
30
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
7
22 Subsection 22XF(1)
1
Omit "(1)".
2
23 Subsection 22XF(1)
3
Omit "at any time on or after".
4
24 Paragraphs 22XF(1)(c) and (d)
5
Omit "1 March", substitute "on the 1 April".
6
25 Subsection 22XF(1) (penalty)
7
Repeal the penalty, substitute:
8
Civil penalty:
The number of penalty units that is equal to
9
the difference between the net emissions number for the
10
facility for the monitoring period and the baseline
11
emissions number for the facility for the monitoring
12
period.
13
26 Subsections 22XF(2) to (4)
14
Repeal the subsections.
15
27 Subsection 22XK(2)
16
Omit "by the number of prescribed carbon units surrendered.",
17
substitute:
18
by:
19
(c) if the safeguard rules provide that this paragraph applies to
20
the surrender of those units--the number worked out in
21
accordance with the safeguard rules for that surrender; or
22
(d) otherwise--the number of units surrendered.
23
28 After subsection 22XK(2)
24
Insert:
25
(2A) Safeguard rules made for the purposes of paragraph (2)(c) may
26
provide that if:
27
(a) a person:
28
(i) surrendered; or
29
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
8
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(ii) because of safeguard rules made for the purposes of
1
paragraph (3)(d), is taken to have surrendered;
2
a number of prescribed carbon units for the purpose of
3
reducing the net emissions number for a facility for a period;
4
and
5
(b) some or all of those units:
6
(i) are prescribed carbon units of a specified kind; or
7
(ii) satisfy specified conditions;
8
the
net emissions number
for the facility for the period is reduced
9
(but not below zero) by a number, worked out in accordance with
10
those rules, that is less than the number of prescribed carbon units
11
surrendered.
12
(2B) Subsection (2A) does not limit the safeguard rules that may be
13
made for the purposes of paragraph (2)(c).
14
29 At the end of section 22XK
15
Add:
16
(5) Subsection (4) does not apply in circumstances prescribed by the
17
safeguard rules.
18
30 After paragraph 22XM(1)(a)
19
Insert:
20
(aa) a safeguard mechanism credit unit; or
21
31 Subsection 22XN(1)
22
Repeal the subsection, substitute:
23
(1) A person who is the registered holder of one or more prescribed
24
carbon units may, by electronic notice transmitted to the Regulator,
25
surrender any or all of those units for the purposes of reducing the
26
net emissions number for a facility for a period if:
27
(a) the person has complied with the requirements (if any)
28
specified in the safeguard rules; and
29
(b) the surrender meets the requirements (if any) specified in the
30
safeguard rules; and
31
(c) the period meets the requirements (if any) specified in the
32
safeguard rules.
33
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
9
(1A) Safeguard rules made for the purposes of paragraph (1)(b) may
1
provide that a surrender of prescribed carbon units under
2
subsection (1):
3
(a) must include a number of:
4
(i) prescribed carbon units of a specified kind; or
5
(ii) prescribed carbon units that satisfy specified conditions;
6
that is worked out in accordance with those rules; or
7
(b) must not include a number of:
8
(i) prescribed carbon units of a specified kind; or
9
(ii) prescribed carbon units that satisfy specified conditions;
10
that exceeds a number worked out in accordance with those
11
rules.
12
(1B) Subsection (1A) does not limit the safeguard rules that may be
13
made for the purposes of paragraph (1)(b).
14
32 Paragraph 22XN(2)(b)
15
Omit "for a specified facility for a specified period", substitute "for the
16
facility for the period".
17
33 At the end of section 22XN
18
Add:
19
(7) Subsection (6) does not apply in circumstances prescribed by the
20
safeguard rules.
21
34 After Division 4 of Part 3H
22
Insert:
23
Division 4A--Safeguard mechanism credit units
24
Subdivision A--Issuing safeguard mechanism credit units
25
22XNA Issuing safeguard mechanism credit units
26
(1) The Regulator may, on behalf of the Commonwealth, issue units
27
(to be known as
safeguard mechanism credit units
) to one or more
28
persons in relation to a facility
.
29
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
10
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Note:
Safeguard mechanism credit units may be issued under this section to
1
the Commonwealth in relation to a facility.
2
(2) The safeguard rules may make provision for, or in relation to, the
3
issuing of safeguard mechanism credit units by the Regulator.
4
(3) Without limiting subsection (2), the safeguard rules may make
5
provision in relation to one or more of the following:
6
(a) applying for safeguard mechanism credit units to be issued;
7
(b) the number of such units that may be issued to a person in
8
relation to a facility;
9
(c) how the Regulator is to determine the number of such units
10
to be issued to a person in relation to a facility;
11
(d) any conditions that may be imposed by the Regulator on a
12
person issued with such units;
13
(e) the review or reconsideration of any decision under the
14
safeguard rules relating to the issuing of such units.
15
(4) Without limiting paragraph (3)(c), the safeguard rules may provide
16
for the following in relation to a determination by the Regulator
17
mentioned in that paragraph:
18
(a) the methodology to be used by the Regulator in making a
19
determination;
20
(b) how a person may apply for a determination;
21
(c) requiring an application for a determination to be
22
accompanied by an audit report that is:
23
(i) prescribed by the safeguard rules; and
24
(ii) prepared by a registered greenhouse and energy auditor
25
who has been appointed as an audit team leader for that
26
purpose.
27
22XNB Entry in Registry account must be made if safeguard
28
mechanism credit units issued
29
Units issued to the Commonwealth
30
(1) If the Regulator decides to issue a safeguard mechanism credit unit
31
to the Commonwealth in relation to a facility, the Regulator must
32
make an entry for the unit in a Commonwealth Registry account.
33
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
11
Units issued to persons other than the Commonwealth
1
(2) If the Regulator decides to issue a safeguard mechanism credit unit
2
to a person (other than the Commonwealth) in relation to a facility,
3
the Regulator must make an entry for the unit in a Registry account
4
kept by the person.
5
(3) The Regulator must not issue a safeguard mechanism credit unit to
6
a person (other than the Commonwealth) unless:
7
(a) the person is a registered person; and
8
(b) the person has a Registry account.
9
22XNC Safeguard mechanism credit units issued must be identified
10
with a financial year
11
Scope
12
(1) This section applies if the Regulator decides to issue a safeguard
13
mechanism credit unit to a person in relation to a facility.
14
Requirement
15
(2) The Regulator must, in accordance with safeguard rules made for
16
the purposes of this subsection, identify the unit with a financial
17
year.
18
22XND Safeguard mechanism credit units held in Commonwealth
19
Registry accounts
20
(1) Without limiting subsection 22XNA(2), the safeguard rules may
21
provide for:
22
(a) the transfer, in specified circumstances, of safeguard
23
mechanism credit units held in a Commonwealth Registry
24
account because of subsection 22XNB(1) to another person's
25
Registry account; or
26
(b) the cancellation, in specified circumstances, of such units.
27
(2) If safeguard mechanism credit units held in a Commonwealth
28
Registry account are cancelled in accordance with safeguard rules
29
made for the purposes of paragraph (1)(b), the Regulator must
30
remove the entries for those units from that account.
31
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
12
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Subdivision B--Requirement to relinquish safeguard
1
mechanism credit units etc.
2
22XNE Regulator may require relinquishment of safeguard
3
mechanism credit units etc. issued on false or misleading
4
information
5
Scope
6
(1) This section applies if:
7
(a) a number of safeguard mechanism credit units have been
8
issued to a person (other than the Commonwealth) in relation
9
to a facility; and
10
(b) the units were issued to the person on the basis of
11
information given to the Regulator (whether or not by the
12
person); and
13
(c) the information was false or misleading in a material
14
particular; and
15
(d) the issue of any or all of the units was directly or indirectly
16
attributable to the false or misleading information.
17
Note:
An example of false or misleading information would be a report
18
given under this Act that contained inaccurate information about
19
greenhouse gas emissions.
20
Relinquishment
21
(2) The Regulator may, by written notice given to the person, require
22
the person to relinquish a specified number of relinquishable units.
23
(3) The specified number must not exceed the number of safeguard
24
mechanism credit units the issue of which was directly or indirectly
25
attributable to the false or misleading information.
26
(4) The person must comply with the requirement within 90 days after
27
the notice was given.
28
Note:
An administrative penalty is payable under section 22XNI for
29
non-compliance with a relinquishment requirement.
30
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
13
22XNF Court may order relinquishment of safeguard mechanism
1
credit units etc. issued as a result of fraudulent conduct
2
Scope
3
(1) This section applies if:
4
(a) one or more safeguard mechanism credit units were issued to
5
a person on a particular occasion; and
6
(b) the person has been convicted of an offence against:
7
(i) section 134.1 of the
Criminal Code
; or
8
(ii) section 134.2 of the
Criminal Code
; or
9
(iii) section 135.1 of the
Criminal Code
; or
10
(iv) section 135.2 of the
Criminal Code
; or
11
(v) section 135.4 of the
Criminal Code
; or
12
(vi) section 136.1 of the
Criminal Code
; or
13
(vii) section 137.1 of the
Criminal Code
; or
14
(viii) section 137.2 of the
Criminal Code
; and
15
(c) an appropriate court is satisfied that the issue of any or all of
16
the units was directly or indirectly attributable to the
17
commission of the offence.
18
Note:
For
appropriate court
, see subsection (7).
19
Relinquishment
20
(2) The court may, on application made by the Director of Public
21
Prosecutions or the Regulator, order the person:
22
(a) to relinquish a specified number of relinquishable units not
23
exceeding the number of safeguard mechanism credit units
24
issued as mentioned in paragraph (1)(a); and
25
(b) to do so by a specified time.
26
Compliance
27
(3) The person must comply with an order under subsection (2).
28
Note:
An administrative penalty is payable under section 22XNI for
29
non-compliance with a relinquishment requirement.
30
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
14
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(4) The person does not comply with an order under subsection (2)
1
unless the notice of relinquishment under section 22XNH specifies
2
the order.
3
(5) To avoid doubt, the person is required to comply with an order
4
under subsection (2) even if:
5
(a) the person is not the registered holder of any relinquishable
6
units; or
7
(b) the person is not the registered holder of the number of
8
relinquishable units required to be relinquished.
9
Copy of order
10
(6) A copy of an order under subsection (2) is to be given to the
11
Regulator.
12
Appropriate court
13
(7) For the purposes of this section, each of the following is an
14
appropriate court
:
15
(a) the court that convicted the person of the offence;
16
(b) the Federal Court of Australia;
17
(c) the Supreme Court of a State or Territory.
18
Spent convictions
19
(8) Nothing in this section affects the operation of Part VIIC of the
20
Crimes Act 1914
(which includes provisions that, in certain
21
circumstances, relieve persons from the requirement to disclose
22
spent convictions and require persons aware of such convictions to
23
disregard them).
24
22XNG Information on Regulator's website regarding
25
relinquishment requirements
26
(1) If a person is required under section 22XNE or 22XNF to
27
relinquish a specified number of relinquishable units, the Regulator
28
must publish the following information on the Regulator's website:
29
(a) the person's name;
30
(b) details of the requirement;
31
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
15
(c) if an amount payable by the person under section 22XNI in
1
relation to non-compliance with the requirement remains
2
unpaid after the time when the amount became due for
3
payment--details of the unpaid amount;
4
(d) if the person relinquishes one or more units to comply with
5
the requirement--the total number of units relinquished.
6
(2) If a decision by the Regulator under section 22XNE is the subject
7
of an application for review made to the Administrative Appeals
8
Tribunal, the Regulator must publish an appropriate annotation on
9
the Regulator's website about:
10
(a) the application; and
11
(b) when the review by the Administrative Appeals Tribunal
12
(including any court proceedings arising out of the review)
13
has been finalised.
14
Subdivision C--Compliance with relinquishment requirement
15
22XNH Relinquishing safeguard mechanism credit units etc. to
16
comply with requirements
17
(1) If:
18
(a) a person is required under section 22XNE or 22XNF to
19
relinquish a specified number of relinquishable units; and
20
(b) the person is the registered holder of one or more
21
relinquishable units;
22
the person may, by electronic notice transmitted to the Regulator,
23
relinquish any or all of the units held by the person.
24
(2) The notice must specify:
25
(a) the units that are being relinquished; and
26
(b) the requirement to which the relinquishment relates; and
27
(c) the account number or account numbers of the person's
28
Registry account, or the person's Registry accounts, in which
29
there is an entry or entries for the units that are being
30
relinquished.
31
(3) The units relinquished are cancelled and the Regulator must
32
remove the entries for those units from the person's Registry
33
account.
34
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
16
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(4) The Registry must set out a record of each notice under
1
subsection (1).
2
22XNI Administrative penalty if relinquishment requirements not
3
complied with
4
Scope
5
(1) This section applies if:
6
(a) a person is required under section 22XNE or 22XNF to
7
relinquish a particular number of relinquishable units; and
8
(b) the person is required to do so by a particular time (the
9
compliance deadline
).
10
No units relinquished
11
(2) If, by the compliance deadline, the person has not relinquished any
12
units in order to comply with the requirement, the person is liable
13
to pay to the Commonwealth, by way of penalty, an amount
14
worked out using the formula:
15
Number of units
Prescribed amount
required to be relinquished
ï‚´
16
where:
17
prescribed amount
means the greater of the following amounts:
18
(a) $20;
19
(b) 200% of the market value of a safeguard mechanism credit
20
unit
as at the compliance deadline.
21
Relinquishment of insufficient units
22
(3) If, by the compliance deadline:
23
(a) the person has relinquished one or more units in order to
24
comply with the requirement; and
25
(b) the number of units is less than the number of units required
26
to be relinquished;
27
the person is liable to pay to the Commonwealth, by way of
28
penalty, an amount worked out using the formula:
29
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
17
Number of units
Number of
required to be
Prescribed amount
relinquished units
relinquished




−
ï‚´






1
where:
2
prescribed amount
means the greater of the following amounts:
3
(a) $20;
4
(b) 200% of the market value of a safeguard mechanism credit
5
unit
as at the compliance deadline.
6
When penalty becomes due and payable
7
(4) An amount payable under this section is due and payable at the end
8
of 30 days after the compliance deadline.
9
Compliance
10
(5) To avoid doubt, a person may be liable to pay a penalty under this
11
section even if:
12
(a) the person is not the registered holder of any relinquishable
13
units; or
14
(b) the person is not the registered holder of the number of
15
relinquishable units required to be relinquished.
16
Market value
17
(6) The safeguard rules may provide that, for the purposes of this
18
section, the
market value
of a safeguard mechanism credit unit is
19
to be ascertained in accordance with those rules.
20
22XNJ Late payment penalty
21
Penalty
22
(1) If an amount payable by a person under section 22XNI remains
23
unpaid after the time when it became due for payment, the person
24
is liable to pay, by way of penalty, an amount calculated at the rate
25
of:
26
(a) 20% per annum; or
27
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Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
18
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(b) if a lower rate per annum is specified in the safeguard rules--
1
that lower rate per annum;
2
on the amount unpaid, computed from that time.
3
Power to remit
4
(2) The Regulator may remit the whole or a part of an amount payable
5
under subsection (1) if:
6
(a) the Regulator is satisfied that the person did not contribute to
7
the delay in payment and has taken reasonable steps to
8
mitigate the causes of the delay; or
9
(b) the Regulator is satisfied:
10
(i) that the person contributed to the delay but has taken
11
reasonable steps to mitigate the causes of the delay; and
12
(ii) having regard to the nature of the reasons that caused
13
the delay, that it would be fair and reasonable to remit
14
some or all of the amount; or
15
(c) the Regulator is satisfied that there are special circumstances
16
that make it reasonable to remit some or all of the amount.
17
(3) The Regulator may exercise the power conferred by subsection (2):
18
(a) on written application being made to the Regulator by a
19
person; or
20
(b) on the Regulator's own initiative.
21
Refusal
22
(4) If:
23
(a) the Regulator decides to refuse to remit the whole or a part of
24
an amount payable under subsection (1); and
25
(b) the Regulator made the decision in response to an
26
application;
27
the Regulator must give written notice of the decision to the
28
applicant.
29
22XNK Recovery of penalties
30
An amount payable under section 22XNI or 22XNJ:
31
(a) is a debt due to the Commonwealth; and
32
Safeguard mechanism
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Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
19
(b) may be recovered by the Regulator, on behalf of the
1
Commonwealth, by action in a court of competent
2
jurisdiction.
3
22XNL Set-off
4
If:
5
(a) an amount (the
first amount
) is payable under section 22XNI
6
or 22XNJ by a person; and
7
(b) the following conditions are satisfied in relation to another
8
amount (the
second amount
):
9
(i) the amount is payable by the Commonwealth to the
10
person;
11
(ii) the amount is of a kind specified in the safeguard rules;
12
the Regulator may, on behalf of the Commonwealth, set off the
13
whole or a part of the first amount against the whole or a part of
14
the second amount.
15
22XNM Refund of overpayments
16
Refund
17
(1) If either of the following amounts has been overpaid by a person,
18
the amount overpaid must be refunded by the Commonwealth:
19
(a) an amount payable under section 22XNI;
20
(b) an amount payable under section 22XNJ.
21
Note:
For the appropriation for the refund, see section 77 of the
Public
22
Governance, Performance and Accountability Act 2013
.
23
Interest on overpayment
24
(2) If:
25
(a) an amount overpaid by a person is refunded by the
26
Commonwealth under subsection (1); and
27
(b) the overpayment is attributable, in whole or in part, to an
28
error made by the Regulator;
29
interest calculated in accordance with subsection (3) is payable by
30
the Commonwealth to the person in respect of the amount
31
refunded.
32
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Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
20
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(3) Interest payable to a person under subsection (2) in respect of an
1
amount refunded to the person is to be calculated:
2
(a) in respect of the period that:
3
(i) began when the overpaid amount was paid to the
4
Commonwealth; and
5
(ii) ended when the amount was refunded; and
6
(b) at the base interest rate (within the meaning of section 8AAD
7
of the
Taxation Administration Act 1953
).
8
(4) The Consolidated Revenue Fund is appropriated for the purposes
9
of making payments of interest under subsection (2).
10
22XNN Stay of proceedings for the recovery of an administrative
11
penalty
12
Scope
13
(1) This section applies if:
14
(a) a notice was given to a person under section 22XNE; and
15
(b) the notice required the person to relinquish a particular
16
number of relinquishable units; and
17
(c) the person did not comply with the requirement within 90
18
days after the notice was given; and
19
(d) proceedings for the recovery of the penalty payable under
20
section 22XNI in respect of the non-compliance with the
21
requirement (including any late payment penalty payable
22
under section 22XNJ in relation to the section 22XNI
23
penalty) are before a court; and
24
(e) the decision to require the person to relinquish a specified
25
number of relinquishable units is the subject of an application
26
for review by the Administrative Appeals Tribunal.
27
Stay of proceedings
28
(2) The court may stay the proceedings until the review by the
29
Administrative Appeals Tribunal (including any court proceedings
30
arising out of the review) has been finalised.
31
(3) This section does not limit the power of:
32
(a) a court; or
33
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
21
(b) a Judge; or
1
(c) a magistrate;
2
under any other law to order a stay of proceedings.
3
35 After subparagraph 22XR(3)(b)(v)
4
Insert:
5
and (va) section 22XNA;
6
36 Subsection 22XS(1)
7
Omit "subsection (2)", substitute "subsections (1A) and (2)".
8
37 After subsection 22XS(1)
9
Insert:
10
(1A) The Minister must not make safeguard rules unless satisfied that
11
those rules are consistent with the second object of this Act.
12
38 At the end of section 22XS
13
Add:
14
(4) Safeguard rules may make provision in relation to a matter by
15
applying, adopting or incorporating, with or without modification,
16
a matter contained in an instrument or writing:
17
(a) as in force or existing at a particular time; or
18
(b) as in force or existing from time to time.
19
(5) Subsection (4) has effect despite anything in subsection 14(2) of
20
the
Legislation Act 2003
.
21
(6) If safeguard rules make provision in relation to a matter by
22
applying, adopting or incorporating, with or without modification,
23
a matter contained in an instrument or writing, the Regulator must
24
ensure that the text of the matter applied, adopted or incorporated
25
is published on its website.
26
(7) Subsection (6) does not apply if the publication would infringe
27
copyright.
28
39 Subsection 30(2A)
29
After "22X", insert ", 74AA".
30
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
22
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
40 After subsection 30(2B)
1
Insert:
2
(2C) If, under section 22XF, a person is required to ensure that an
3
excess emissions situation does not exist on a particular 1 April in
4
relation to a facility for a monitoring period, and the person fails to
5
comply with that requirement, the person is liable for a civil
6
penalty for each day that the person fails to comply in the 2 year
7
period beginning immediately after that 1 April.
8
Civil penalty:
100 penalty units per day.
9
41 Subsection 30(3)
10
Omit "such a requirement", substitute "a requirement covered by this
11
section".
12
42 Section 41
13
Before "The", insert "(1)".
14
43 Section 41
15
After "civil penalty provision", insert "(other than section 22XF)".
16
44 At the end of section 41
17
Add:
18
(2) The penalty to be specified in an infringement notice relating to a
19
person's alleged contravention of section 22XF must be a
20
pecuniary penalty equal to whichever is the lesser of the following
21
amounts:
22
(a) one third of the maximum penalty that a Court could impose
23
on the person for that contravention;
24
(b) 150,000 penalty units.
25
Note:
To work out the maximum penalty mentioned in paragraph (a), see
26
subsection 31(3).
27
45 Paragraph 49(1)(q)
28
Omit "subsection 22XF(1)", substitute "section 22XF".
29
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
23
46 After section 54A
1
Insert:
2
54B Regulator may declare facility--anti-avoidance
3
(1) If:
4
(a) one or more persons enter into, begin to carry out, or carry
5
out, a scheme; and
6
(b) an activity or a series of activities (including ancillary
7
activities) (the
relevant activities
) that form a single
8
undertaking or enterprise would, but for this section, be a
9
facility for the purposes of this Act; and
10
(c) but for the scheme, some or all of the relevant activities
11
would or might reasonably be expected to form all or part of
12
a different single undertaking or enterprise (the
expected
13
undertaking or enterprise
) that meets the requirements of the
14
regulations (if any) made for the purposes of paragraph (1)(a)
15
of the definition of
facility
in section 9; and
16
(d) having regard to the matters specified in subsection (2) of
17
this section, it could reasonably be concluded that the person,
18
or any of the persons, who enter into, begin to carry out, or
19
carry out, the scheme are doing so (or did so) solely or
20
substantially for the purpose of:
21
(i) achieving the result that, for the purposes of this Act,
22
the relevant activities are a facility that is not a
23
designated large facility (whether or not the relevant
24
activities are or have previously been a designated large
25
facility); or
26
(ii) achieving the result that, for the purposes of this Act,
27
the relevant activities are a facility with a higher
28
baseline emissions number, or fewer covered emissions,
29
than the baseline emissions number or covered
30
emissions (as the case may be) of the expected
31
undertaking or enterprise; or
32
(iii) achieving the result that, for the purposes of this Act,
33
the relevant activities are a facility that is attributable to
34
an industry sector other than the industry sector to
35
which the expected undertaking or enterprise is
36
attributable;
37
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
24
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
the Regulator may, on the Regulator's own initiative, declare that
1
the expected undertaking or enterprise is a facility.
2
(2) The following matters are specified:
3
(a) the manner in which the scheme is entered into or carried
4
out;
5
(b) the form and substance of the scheme;
6
(c) the time when the scheme is entered into and the length of
7
the period during which the scheme is carried out;
8
(d) the result in relation to the operation of this Act (if any) that,
9
but for this section, would or might reasonably be expected
10
to be achieved by the scheme in addition to the results
11
mentioned in paragraph (1)(d).
12
(3) If the Regulator makes a declaration under subsection (1), the
13
Regulator must notify, in writing, the person that has, or that the
14
Regulator reasonably believes has, operational control of the
15
facility to which the declaration relates.
16
47 After paragraph 56(dc)
17
Insert:
18
(dca) issue, or refuse to issue, safeguard mechanism credit units
19
under section 22XNA;
20
(dcb) require a relinquishment of relinquishable units under
21
section 22XNE;
22
(dcc) refuse to remit the whole or a part of an amount under
23
subsection 22XNJ(2);
24
48 After paragraph 56(gb)
25
Insert:
26
(gc) declare a facility under subsection 54B(1);
27
49 Subsection 71(1)
28
After "this Act", insert "or the associated provisions".
29
50 Subsection 73(1)
30
Omit "regulations", substitute "associated provisions".
31
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
25
51 Paragraph 73(2)(b)
1
Omit "regulations", substitute "associated provisions".
2
52 Subsection 73A(1)
3
Omit "regulations", substitute "associated provisions".
4
53 Paragraph 73A(2)(b)
5
Omit "regulations", substitute "associated provisions".
6
54 Subsection 74(1)
7
Omit "regulations", substitute "associated provisions".
8
55 After section 74
9
Insert:
10
74AA Audit of persons providing reports under section 19, 22G, 22X
11
or 22XB
12
Scope
13
(1) This section applies if:
14
(a) a person is required to provide a report (the
regulatory
15
report
) under section 19, 22G, 22X or 22XB for a financial
16
year in relation to one or more facilities; and
17
(b) for that financial year, the facility, or at least one of those
18
facilities, was:
19
(i) a designated large facility; or
20
(ii) a facility of a kind specified by the safeguard rules for
21
the purposes of this subparagraph; and
22
(c) the conditions set out in the safeguard rules are satisfied.
23
Audit
24
(2) The person must:
25
(a) appoint as an audit team leader a registered greenhouse and
26
energy auditor of the person's choice; and
27
(b) arrange for the audit team leader to carry out an audit of:
28
(i) the regulatory report; and
29
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
26
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(ii) such other matters (if any) relating to the regulatory
1
report as are specified in the safeguard rules; and
2
(iii) if the regulatory report was under section 19--the
3
person's compliance with section 22 (about
4
record-keeping) in relation to the financial year and so
5
much of the report as relates to facilities to which
6
paragraph (1)(b) of this section applies; and
7
(iv) if the regulatory report was under section 22G--the
8
person's compliance with section 22H (about
9
record-keeping) in relation to the financial year; and
10
(v) if the regulatory report was under section 22X--the
11
person's compliance with section 22XA (about
12
record-keeping) in relation to the financial year; and
13
(vi) if the regulatory report was under section 22XB--the
14
person's compliance with section 22XC (about
15
record-keeping) in relation to the financial year; and
16
(c) arrange for the audit team leader to give the person a written
17
report setting out the results of the audit; and
18
(d) give the Regulator a copy of the audit report:
19
(i) on the day on which the regulatory report is provided to
20
the Regulator; and
21
(ii) in the manner specified in the safeguard rules.
22
Civil penalty:
23
(a) for an individual--200 penalty units; or
24
(b) otherwise--1,000 penalty units.
25
(3) The safeguard rules may specify:
26
(a) the type of audit to be carried out; and
27
(b) the matters to be covered by the audit; and
28
(c) the form of the audit report and the kinds of details it is to
29
contain.
30
(4) The person must provide the audit team leader and any audit team
31
members with all reasonable facilities and assistance necessary for
32
the effective exercise of the audit team leader's duties under this
33
Act.
34
Civil penalty:
35
(a) for an individual--50 penalty units; or
36
Safeguard mechanism
Schedule 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
Part 1
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
27
(b) otherwise--250 penalty units.
1
56 Subsection 74A(1)
2
Omit "regulations", substitute "associated provisions".
3
57 Paragraph 74B(1)(a)
4
Repeal the paragraph, substitute:
5
(a) either:
6
(i) the person is the responsible member mentioned in
7
subsection 22X(1); or
8
(ii) the person is the responsible emitter for a facility that is
9
or was a designated large facility in relation to a
10
financial year; and
11
58 Paragraphs 74B(1)(c) and (2)(b)
12
Omit "regulations", substitute "associated provisions".
13
59 Paragraph 74C(1)(a)
14
Repeal the paragraph, substitute:
15
(a) either:
16
(i) the person is the responsible member mentioned in
17
subsection 22X(1); or
18
(ii) the person is the responsible emitter for a facility that is
19
or was a designated large facility in relation to a
20
financial year; and
21
60 Subsection 74C(2)
22
Omit "regulations", substitute "associated provisions".
23
61 After paragraph 75A(5)(i)
24
Insert:
25
(ia) inspection of the performance of registered greenhouse and
26
energy auditors in carrying out ERF audits;
27
(ib) inspection of the performance of registered greenhouse and
28
energy auditors in carrying out safeguard audits;
29
62 Section 77
30
Before "The", insert "(1)".
31
Schedule 1
Safeguard mechanism
Part 1
Amendment of the National Greenhouse and Energy Reporting Act 2007
28
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
63 At the end of section 77
1
Add:
2
(2) The regulations may make provision in relation to a matter by
3
applying, adopting or incorporating, with or without modification,
4
a matter contained in an instrument or writing:
5
(a) as in force or existing at a particular time; or
6
(b) as in force or existing from time to time.
7
(3) Subsection (2) has effect despite anything in subsection 14(2) of
8
the
Legislation Act 2003
.
9
(4) If the regulations make provision in relation to a matter by
10
applying, adopting or incorporating, with or without modification,
11
a matter contained in an instrument or writing, the Regulator must
12
ensure that the text of the matter applied, adopted or incorporated
13
is published on its website.
14
(5) Subsection (4) does not apply if the publication would infringe
15
copyright.
16
(6) The regulations may make provision in relation to a matter by
17
conferring a power to make a decision of an administrative
18
character on the Regulator.
19
Safeguard mechanism
Schedule 1
Amendment of the Income Tax Assessment Act 1997
Part 2
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
29
Part 2--Amendment of the Income Tax Assessment
1
Act 1997
2
Income Tax Assessment Act 1997
3
64 After paragraph 420-10(d)
4
Insert:
5
or (e) a
*
safeguard mechanism credit unit;
6
65 After subparagraph 420-52(a)(iii)
7
Insert:
8
or (iv)
*
safeguard mechanism credit units;
9
66 Subsection 995-1(1)
10
Insert:
11
safeguard mechanism credit unit
has the same meaning as in the
12
National Greenhouse and Energy Reporting Act 2007
.
13
Schedule 1
Safeguard mechanism
Part 3
Application of amendments
30
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Part 3--Application of amendments
1
67 Application of amendments
2
(1)
Despite the repeal of the definition of
1 March
in section 7 of the
3
National Greenhouse and Energy Reporting Act 2007
by Part 1 of this
4
Schedule, that definition continues to apply, for the purposes of
5
section 22XF of that Act, in relation to a monitoring period ending
6
before 1 July 2023.
7
(2)
Despite the repeal of subsection 22XF(2) of the
National Greenhouse
8
and Energy Reporting Act 2007
by Part 1 of this Schedule, the
9
regulations made for the purposes of that subsection, as in force
10
immediately before that repeal, continue to apply in relation to a
11
contravention of section 22XF of that Act that relates to a monitoring
12
period ending before 1 July 2023.
13
(3)
The amendments of section 22XF of the
National Greenhouse and
14
Energy Reporting Act 2007
made by Part 1 of this Schedule apply in
15
relation to monitoring periods ending on or after 1 July 2023.
16
(4)
The amendments of section 30 of the
National Greenhouse and Energy
17
Reporting Act 2007
made by Part 1 of this Schedule apply in relation to
18
a contravention of section 22XF of that Act, as amended by that Part,
19
that relates to a monitoring period ending on or after 1 July 2023.
20
(5)
The amendments of section 41 of the
National Greenhouse and Energy
21
Reporting Act 2007
made by Part 1 of this Schedule apply in relation to
22
an alleged contravention of section 22XF of that Act, as amended by
23
that Part, that relates to a monitoring period ending on or after 1 July
24
2023.
25
(6)
Section 54B of the
National Greenhouse and Energy Reporting Act
26
2007
, as inserted by Part 1 of this Schedule, applies in relation to a
27
scheme that is entered into, begun to be carried out, or carried out on or
28
after the day the Bill for this Act was introduced into the House of
29
Representatives.
30
(7)
The amendments of section 73 of the
National Greenhouse and Energy
31
Reporting Act 2007
made by Part 1 of this Schedule apply in relation to
32
Safeguard mechanism
Schedule 1
Application of amendments
Part 3
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
31
a notice given to a registered corporation after the commencement of
1
this item.
2
(8)
The amendments of section 73A of the
National Greenhouse and
3
Energy Reporting Act 2007
made by Part 1 of this Schedule apply in
4
relation to a notice given to a person after the commencement of this
5
item.
6
(9)
The amendment of section 74 of the
National Greenhouse and Energy
7
Reporting Act 2007
made by Part 1 of this Schedule applies in relation
8
to an appointment made after the commencement of this item.
9
(10)
Section 74AA of the
National Greenhouse and Energy Reporting Act
10
2007
, as inserted by Part 1 of this Schedule, applies in relation to the
11
financial year beginning on 1 July 2023 and later financial years.
12
(11)
The amendment of section 74A of the
National Greenhouse and Energy
13
Reporting Act 2007
made by Part 1 of this Schedule applies in relation
14
to an appointment made after the commencement of this item.
15
(12)
The amendments of section 74B of the
National Greenhouse and
16
Energy Reporting Act 2007
made by Part 1 of this Schedule apply in
17
relation to a notice given to a relevant person after the commencement
18
of this item.
19
(13)
The amendments of section 74C of the
National Greenhouse and
20
Energy Reporting Act 2007
made by Part 1 of this Schedule apply in
21
relation to an appointment made after the commencement of this item.
22
Schedule 2
Australian National Registry of Emissions Units
32
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Schedule 2--Australian National Registry of
1
Emissions Units
2
3
Australian National Registry of Emissions Units Act 2011
4
1 Section 3
5
Omit:
6
•
Entries may be made in Registry accounts for:
7
(a)
Australian carbon credit units; and
8
(b)
Kyoto units.
9
•
This Act sets out rules about dealings with Kyoto units.
10
substitute:
11
•
Entries may be made in Registry accounts for:
12
(a)
Australian carbon credit units; and
13
(b)
Kyoto units; and
14
(c)
safeguard mechanism credit units.
15
•
This Act sets out rules about dealings with:
16
(a)
Kyoto units; and
17
(b)
safeguard mechanism credit units.
18
2 Section 4 (paragraph (d) of the definition of eligible
19
international emissions unit)
20
Omit "rules.", substitute "rules; or".
21
3 Section 4 (after paragraph (d) of the definition of eligible
22
international emissions unit)
23
Insert:
24
(e) a safeguard mechanism credit unit if legislative rules made
25
for the purposes of this paragraph specify that kind of unit.
26
Australian National Registry of Emissions Units
Schedule 2
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
33
4 Section 4 (definition of issue)
1
Repeal the definition, substitute:
2
issue
:
3
(a) in relation to an Australian carbon credit unit--has the same
4
meaning as in the
Carbon Credits (Carbon Farming
5
Initiative) Act 2011
; or
6
(b) in relation to a safeguard mechanism credit unit--has the
7
same meaning as in the
National Greenhouse and Energy
8
Reporting Act 2007
.
9
5 Section 4
10
Insert:
11
legislative rules
means rules made under section 94A.
12
quarter
means a period of 3 months starting on 1 July, 1 October,
13
1 January or 1 April.
14
6 Section 4 (definition of registered holder)
15
Repeal the definition, substitute:
16
registered holder
, in relation to:
17
(a) an Australian carbon credit unit; or
18
(b) a Kyoto unit; or
19
(c) a safeguard mechanism credit unit;
20
means the person in whose Registry account there is an entry for
21
the unit.
22
7 Section 4
23
Insert:
24
safeguard mechanism credit unit
has the same meaning as in the
25
National Greenhouse and Energy Reporting Act 2007
.
26
8 Section 4 (definition of transfer)
27
Repeal the definition, substitute:
28
transfer
:
29
Schedule 2
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34
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(a) in relation to a Kyoto unit--has the meaning given by
1
section 33; or
2
(b) in relation to a safeguard mechanism credit unit--has the
3
meaning given by section 48C.
4
9 Paragraph 9(4)(a)
5
Repeal the paragraph, substitute:
6
(a) to be a registry for:
7
(i) Australian carbon credit units; and
8
(ii) safeguard mechanism credit units;
9
10 Paragraph 11(5)(a)
10
Repeal the paragraph, substitute:
11
(a) issue to the account any:
12
(i) Australian carbon credit units; or
13
(ii) safeguard mechanism credit units; or
14
11 At the end of subsection 15(2)
15
Add:
16
; and (d) there are no entries for any safeguard mechanism credit units
17
in the account.
18
12 At the end of paragraph 16(2)(b)
19
Add:
20
; and (iii) setting out the effect of any legislative rules made for
21
the purposes of subsection (5).
22
13 After subsection 16(4)
23
Insert:
24
(5) The legislative rules may provide that if, immediately before the
25
Regulator closes a Registry account under regulations made for the
26
purposes of subsection (1), there is an entry for a safeguard
27
mechanism credit unit in the account, then the Regulator must take
28
such action in relation to the unit as is specified in the legislative
29
rules.
30
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35
14 At the end of subsection 16(7)
1
Add:
2
; and (c) each action taken under legislative rules made for the
3
purposes of subsection (5).
4
15 At the end of section 17
5
Add:
6
Safeguard mechanism credit units
7
(3) An entry for a safeguard mechanism credit unit in a Registry
8
account may be made in accordance with this Act.
9
16 After paragraph 19(3A)(a)
10
Insert:
11
(aa) section 48A of this Act; or
12
17 After paragraph 22(4A)(a)
13
Insert:
14
(aa) section 48A of this Act; or
15
18 Subsection 26(3) (heading)
16
Repeal the heading, substitute:
17
Exceptions
18
19 After subparagraph 26(3)(a)(ii)
19
Insert:
20
or (iii) safeguard mechanism credit units;
21
20 After paragraph 28A(1)(b)
22
Insert:
23
or (c) safeguard mechanism credit units;
24
21 After paragraph 28B(1)(b)
25
Insert:
26
or (c) safeguard mechanism credit units;
27
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Safeguard Mechanism (Crediting) Amendment Bill 2022
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22 Subparagraph 28D(5)(a)(ii)
1
After "Australian carbon credit units", insert "or safeguard mechanism
2
credit units".
3
23 At the end of subsection 28D(5)
4
Add:
5
; and (c) a notice to relinquish Australian carbon credit units or
6
safeguard mechanism credit units under section 22XNE of
7
the
National Greenhouse and Energy Reporting Act 2007
8
does not have effect.
9
24 At the end of subsection 28D(16)
10
Add:
11
; or (c) anything in the
National Greenhouse and Energy Reporting
12
Act 2007
.
13
25 After Part 3
14
Insert:
15
Part 4--Safeguard mechanism credit units
16
17
48 Simplified outline of this Part
18
•
This Part sets out rules about the ownership, transfer and
19
transmission of safeguard mechanism credit units.
20
48A A safeguard mechanism credit unit is personal property
21
A safeguard mechanism credit unit is personal property and,
22
subject to sections 48D and 48E, is transmissible by assignment, by
23
will and by devolution by operation of law.
24
48B Ownership of safeguard mechanism credit units
25
(1) The registered holder of a safeguard mechanism credit unit:
26
(a) is the legal owner of the unit; and
27
Australian National Registry of Emissions Units
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37
(b) may, subject to this Act and the
National Greenhouse and
1
Energy Reporting Act 2007
, deal with the unit as its legal
2
owner and give good discharges for any consideration for
3
any such dealing.
4
(2) Subsection (1) only protects a person who deals with the registered
5
holder of the unit as a purchaser:
6
(a) in good faith for value; and
7
(b) without notice of any defect in the title of the registered
8
holder.
9
48C Transfer of safeguard mechanism credit units
10
For the purposes of this Act, if there is an entry for a safeguard
11
mechanism credit unit in a Registry account (the
first Registry
12
account
) kept by a person (the
first person
):
13
(a) a
transfer
of the unit from the first Registry account to a
14
Registry account kept by another person consists of:
15
(i) the removal of the entry for the unit from the first
16
Registry account; and
17
(ii) the making of an entry for the unit in the Registry
18
account kept by the other person; and
19
(b) a
transfer
of the unit from the first Registry account to
20
another Registry account kept by the first person consists of:
21
(i) the removal of the entry for the unit from the first
22
Registry account; and
23
(ii) the making of an entry for the unit in the other Registry
24
account kept by the first person.
25
48D Transmission of safeguard mechanism credit units by
26
assignment
27
(1) A transmission by assignment of a safeguard mechanism credit
28
unit for which there is an entry in a Registry account is of no force
29
until:
30
(a) the transferor, by electronic notice transmitted to the
31
Regulator, instructs the Regulator to transfer the unit from
32
the relevant Registry account kept by the transferor to a
33
Registry account kept by the transferee; and
34
(b) the Regulator complies with that instruction.
35
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Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(2) An instruction under paragraph (1)(a) must set out:
1
(a) the account number of the transferor's Registry account; and
2
(b) the account number of the transferee's Registry account.
3
(3) If the Regulator receives an instruction under paragraph (1)(a), the
4
Regulator must comply with the instruction as soon as practicable
5
after receiving it.
6
(4) The Registry must set out a record of each instruction under
7
paragraph (1)(a).
8
(5) If the transferor is the Commonwealth, the Minister may give an
9
instruction under paragraph (1)(a) on behalf of the transferor.
10
48E Transmission of safeguard mechanism credit units by operation
11
of law etc.
12
Scope
13
(1) This section applies if a safeguard mechanism credit unit for which
14
there is an entry in a Registry account is transmitted from a person
15
(the
transferor
) to another person (the
transferee
) by any lawful
16
means other than by a transfer under section 48D.
17
Effect of transmission
18
(2) The transmission is of no force until the Regulator transfers the
19
safeguard mechanism credit unit under subsection (8) or (9).
20
Declaration of transmission
21
(3) The transferee must, within 90 days after the transmission, give the
22
Regulator:
23
(a) a declaration of transmission; and
24
(b) such evidence of transmission as is specified in the
25
legislative rules.
26
(4) A declaration of transmission must be made in accordance with the
27
legislative rules.
28
(5) If the transferee does not already have a Registry account, the
29
declaration of transmission must be accompanied by a request,
30
Australian National Registry of Emissions Units
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under regulations made for the purposes of subsection 10(1), for
1
the Regulator to open a Registry account in the name of the
2
transferee.
3
(6) If the Regulator is satisfied that special circumstances warrant the
4
extension of the 90-day period mentioned in subsection (3), the
5
Regulator may extend that period.
6
(7) The Regulator may exercise the power conferred by subsection (6):
7
(a) on written application being made to the Regulator by the
8
transferee; or
9
(b) on the Regulator's own initiative.
10
Transfer of unit--transferee already has a Registry account
11
(8) If the transferee already has a Registry account, the Regulator
12
must, as soon as practicable after receiving the declaration of
13
transmission, transfer the unit from the relevant Registry account
14
kept by the transferor to a Registry account kept by the transferee.
15
Transfer of unit--transferee does not have a Registry account
16
(9) If:
17
(a) the transferee does not already have a Registry account; and
18
(b) in accordance with the request under regulations made for the
19
purposes of subsection 10(1), the Regulator has opened a
20
Registry account in the name of the transferee;
21
the Regulator must, as soon as practicable after opening the
22
Registry account, transfer the unit from the relevant Registry
23
account kept by the transferor to the Registry account kept by the
24
transferee.
25
Record
26
(10) If the Regulator transfers the unit under subsection (8) or (9), the
27
Registry must set out a record of the declaration of transmission.
28
When the transferee is the Commonwealth
29
(11) If the transferee is the Commonwealth, the Minister may give:
30
(a) the declaration of transmission; and
31
(b) the evidence mentioned in paragraph (3)(b);
32
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40
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
on behalf of the transferee.
1
Notification
2
(12) If:
3
(a) the Regulator decides to:
4
(i) extend the 90-day period mentioned in subsection (3);
5
or
6
(ii) refuse to extend the 90-day period mentioned in
7
subsection (3); and
8
(b) the Regulator made the decision in response to an
9
application;
10
the Regulator must give written notice of the decision to the
11
applicant.
12
48F Transfer of safeguard mechanism credit units to another
13
Registry account held by the transferor
14
Scope
15
(1) This section applies if:
16
(a) a person keeps a Registry account (the
first Registry
17
account
) in which there is an entry for a safeguard
18
mechanism credit unit; and
19
(b) the person, by electronic notice transmitted to the Regulator,
20
instructs the Regulator to transfer the unit from the first
21
Registry account to another Registry account kept by the
22
person; and
23
(c) the instruction sets out:
24
(i) the account number of the first Registry account; and
25
(ii) the account number of the other Registry account.
26
Compliance with instruction
27
(2) If a person gives the Regulator an instruction under
28
paragraph (1)(b), the Regulator must comply with the instruction as
29
soon as practicable after receiving it.
30
(3) The Registry must set out a record of the instruction under
31
paragraph (1)(b).
32
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48G Registration of equitable interests in relation to a safeguard
1
mechanism credit unit
2
(1) The legislative rules may make provision for or in relation to the
3
registration in the Registry of equitable interests in relation to
4
safeguard mechanism credit units.
5
(2) Subsection (1) does not apply to an equitable interest that is a
6
security interest within the meaning of the
Personal Property
7
Securities Act 2009
, and to which that Act applies.
8
48H Equitable interests in relation to a safeguard mechanism credit
9
unit
10
(1) This Act does not affect:
11
(a) the creation of; or
12
(b) any dealings with; or
13
(c) the enforcement of;
14
equitable interests in relation to a safeguard mechanism credit unit.
15
(2) Subsection (1) is enacted for the avoidance of doubt.
16
48J Legislative rules about safeguard mechanism credit units
17
The legislative rules may make further provision in relation to
18
safeguard mechanism credit units.
19
26 Section 58
20
Omit:
21
•
The Regulator must publish certain information about:
22
(a)
the holders of Registry accounts; and
23
(b)
Kyoto units.
24
substitute:
25
•
The Regulator must publish certain information about:
26
(a)
the holders of Registry accounts; and
27
(b)
Kyoto units; and
28
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42
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(c)
Australian carbon credit units; and
1
(d)
safeguard mechanism credit units.
2
27 After section 60
3
Insert:
4
60A Information about Australian carbon credit units
5
The legislative rules may require the Regulator to:
6
(a) publish on the Regulator's website specified information
7
about:
8
(i) Australian carbon credit units for which there are entries
9
in Registry accounts; and
10
(ii) the registered holders of such units; and
11
(b) do so in accordance with specified requirements.
12
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
13
2003
.
14
60B Information about safeguard mechanism credit units
15
The legislative rules may require the Regulator to:
16
(a) publish on the Regulator's website specified information
17
about:
18
(i) safeguard mechanism credit units for which there are
19
entries in Registry accounts; and
20
(ii) the registered holders of such units; and
21
(b) do so in accordance with specified requirements.
22
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
23
2003
.
24
28 At the end of Part 5
25
Add:
26
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Schedule 2
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Safeguard Mechanism (Crediting) Amendment Bill 2022
43
63 Information about number of voluntarily cancelled safeguard
1
mechanism credit units
2
As soon as practicable after one or more safeguard mechanism
3
credit units held by a person are cancelled under section 66, the
4
Regulator must publish on the Regulator's website:
5
(a) the name of the person; and
6
(b) the total number of safeguard mechanism credit units
7
cancelled; and
8
(c) such other information (if any) as is specified in the
9
legislative rules.
10
29 At the end of subsection 65(2)
11
Add:
12
; and (c) set out such other information (if any) as is specified in the
13
legislative rules.
14
30 At the end of Part 6
15
Add:
16
66 Voluntary cancellation of safeguard mechanism credit units
17
(1) If:
18
(a) a person is the registered holder of one or more safeguard
19
mechanism credit units; and
20
(b) a determination is in force under subsection (5);
21
the person may, by electronic notice transmitted to the Regulator,
22
request the Regulator to cancel any or all of those units.
23
(2) A notice under subsection (1) must:
24
(a) specify the safeguard mechanism credit unit or units that are
25
to be cancelled; and
26
(b) specify the account number or account numbers of the
27
person's Registry account, or the person's Registry accounts,
28
in which there is an entry or entries for the safeguard
29
mechanism credit unit or units that are to be cancelled; and
30
(c) set out such other information (if any) as is specified in the
31
legislative rules.
32
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44
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
(3) If the Regulator receives a notice under subsection (1) in relation to
1
a safeguard mechanism credit unit:
2
(a) if the legislative rules require the Regulator to cancel the
3
unit--the Regulator must cancel the unit; and
4
(b) if the legislative rules require the Regulator to take specified
5
action in relation to the unit--the Regulator must take that
6
action; and
7
(c) the Regulator must remove the entry for the unit from the
8
person's Registry account in which there is an entry for the
9
unit.
10
(4) The Registry must set out a record of each notice under
11
subsection (1).
12
(5) The Minister may, by legislative instrument, determine that any
13
person who is the registered holder of one or more safeguard
14
mechanism credit units may request the Regulator to cancel any or
15
all of those units.
16
31 Section 82 (table item 1)
17
After "subsection 47(5)", insert "or 48E(6)".
18
32 After section 94
19
Insert:
20
94A Legislative rules
21
(1) The Minister may, by legislative instrument, make rules
22
(
legislative rules
) prescribing matters:
23
(a) required or permitted by this Act to be prescribed by the
24
rules; or
25
(b) necessary or convenient to be prescribed for carrying out or
26
giving effect to this Act.
27
(2) To avoid doubt, the legislative rules may not do the following:
28
(a) create an offence or civil penalty;
29
(b) provide powers of:
30
(i) arrest or detention; or
31
(ii) entry, search or seizure;
32
(c) impose a tax;
33
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45
(d) set an amount to be appropriated from the Consolidated
1
Revenue Fund under an appropriation in this Act;
2
(e) directly amend the text of this Act.
3
(3) Legislative rules that are inconsistent with the regulations
have no
4
effect to the extent of the inconsistency, but legislative rules
are
5
taken to be consistent with the regulations
to the extent that
6
legislative rules
are capable of operating concurrently with the
7
regulations.
8
(4) Legislative rules may make provision in relation to a matter by
9
applying, adopting or incorporating, with or without modification,
10
a matter contained in an instrument or writing:
11
(a) as in force or existing at a particular time; or
12
(b) as in force or existing from time to time.
13
(5) Subsection (4) has effect despite anything in subsection 14(2) of
14
the
Legislation Act 2003
.
15
(6) If legislative rules make provision in relation to a matter by
16
applying, adopting or incorporating, with or without modification,
17
a matter contained in an instrument or writing, the Regulator must
18
ensure that the text of the matter applied, adopted or incorporated
19
is published on its website.
20
(7) Subsection (6) does not apply if the publication would infringe
21
copyright.
22
33 Section 95 (heading)
23
Omit "
Prescribing
", substitute "
Regulations may prescribe
".
24
Carbon Credits (Carbon Farming Initiative) Act 2011
25
34
Paragraph 51(1)(b)
26
After "regulations", insert "or legislative rules".
27
Schedule 3
Clean Energy Regulator
46
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
Schedule 3--Clean Energy Regulator
1
2
Clean Energy (Consequential Amendments) Act 2011
3
1 Items 219 to 220A of Schedule 1
4
Repeal the items.
5
Clean Energy Regulator Act 2011
6
2 Section 4 (at the end of the definition of climate change
7
law)
8
Add:
9
; (o) the
Regulatory Powers (Standard Provisions) Act 2014
as
10
applied by an Act mentioned in a preceding paragraph of this
11
definition.
12
3 Section 4 (paragraph (a) of the definition of protected
13
information)
14
Omit "was obtained after the commencement of this section", substitute
15
"is held".
16
National Greenhouse and Energy Reporting Act 2007
17
4 Section 7
18
Insert:
19
engage in conduct
means:
20
(a) do an act; or
21
(b) omit to perform an act.
22
5 Section 7 (definition of protected information)
23
Repeal the definition.
24
6 Section 23 (at the end of the heading)
25
Add "
--audit information
".
26
Clean Energy Regulator
Schedule 3
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
47
7 Paragraph 23(1)(a)
1
Omit "greenhouse and energy information or".
2
8 Paragraph 23(1)(aa)
3
Repeal the paragraph.
4
9 Subparagraph 23(1)(b)(ii)
5
Omit "Commonwealth; or", substitute "Commonwealth.".
6
10 Subparagraphs 23(1)(b)(iii) to (v)
7
Repeal the subparagraphs.
8
11 Paragraph 23(2)(c)
9
Repeal the paragraph.
10
12 Paragraph 23(2)(da)
11
Omit "member; or", substitute "member.".
12
13 Paragraphs 23(2)(e) to (g)
13
Repeal the paragraphs.
14
14 Subsection 23(2) (note)
15
Omit "See also", substitute "For the protection of other information,
16
see".
17
15 Paragraph 27(1)(a)
18
After "subsection 19(9)", insert ", 22G(5) or 22X(6)".
19
16 At the end of section 27
20
Add:
21
(3) A person commits an offence if:
22
(a) the person is subject to a condition mentioned in
23
paragraph (2)(a); and
24
(b) the person engages in conduct; and
25
(c) the person's conduct breaches the condition.
26
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
27
Schedule 3
Clean Energy Regulator
48
Safeguard Mechanism (Crediting) Amendment Bill 2022
No. , 2022
17 Application provision
1
Subsection 27(3) of the
National Greenhouse and Energy Reporting Act
2
2007
, as added by this Schedule, applies in relation to greenhouse and
3
energy information that is disclosed under subsection 27(1) of that Act
4
before, on or after the day this Schedule commences.
5
Other amendments
Schedule 4
No. , 2022
Safeguard Mechanism (Crediting) Amendment Bill 2022
49
Schedule 4--Other amendments
1
2
Carbon Credits (Carbon Farming Initiative) Act 2011
3
1 At the end of section 20C
4
Add:
5
(3) The Regulator must not enter into a carbon abatement contract
6
under section 20B (otherwise than by way of novation) if any of
7
the eligible carbon credit units to be purchased under the contract:
8
(a) were issued; or
9
(b) at the time of purchase, would have been issued;
10
in respect of an eligible offsets project of a kind specified in the
11
legislative rules.
12
2 After subsection 20G(2)
13
Insert:
14
(2A) Without limiting paragraph (2)(b), the legislative rules may
15
provide that the Regulator must exclude from one or more carbon
16
abatement purchasing processes carbon abatement that results, or is
17
to result, from the carrying out of an offsets project of a specified
18
kind.
19
3 Paragraph 20H(1)(a)
20
After "units to", insert "or from".
21
4 After paragraph 20H(1)(a)
22
Insert:
23
(aa) selling units held in such an account;
24
5 Subparagraph 27(4A)(b)(i)
25
Omit "(other than the
National Greenhouse and Energy Reporting Act
26
2007
)".
27