NATIONAL GREENHOUSE AND ENERGY REPORTING AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 28 OF 2009) EXPLANATORY STATEMENT

NATIONAL GREENHOUSE AND ENERGY REPORTING AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 28 OF 2009)

ATTACHMENT

Details of the National Greenhouse and Energy Reporting Amendment Regulations 2009 (No. 1)

Details of amendments to the Regulations are as follows:

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the National Greenhouse and Energy Reporting Amendment Regulations 2009 (No. 1).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the commencement of item 1 of Schedule 1 to the National Greenhouse and Energy Reporting Amendment Act 2008. As provided in the Amendment Act, item 1 of Schedule 1 commences on 15 March 2009 unless proclaimed earlier.

Regulation 3 - Amendment of National Greenhouse and Energy Reporting Regulations 2008

This regulation outlines that Schedule 1 amends the National Greenhouse and Energy Reporting Regulations 2008 (the Principal Regulations).

Regulation 4 – Transitional

Subregulations 4(1) to 4(6) have been included to ensure applications for registration, deregistration, declarations and determinations by the Greenhouse and Energy Data Officer (GEDO), which are validly made prior to the commencement of these Regulations, will continue to be valid. This will ensure that a corporation which has made a valid application in accordance with the existing Principal Regulations will not be obliged to resubmit the application simply because it was not assessed prior to the commencement of the Regulations.

SCHEDULE 1 AMENDMENTS

Item [1] Regulation 1.03, after definition of ABN

This item [1] will insert a definition of ACN (Australian Company Number) into definitions for the Principal Regulations. The definition of ACN is required as it forms part of the definition for ‘identifying details’, a new term defined under item [5] of the Regulations.

Item [2] - Regulation 1.03, after the definition of Act

This item will insert a definition of ‘affected group member’ into definitions for the Principal Regulations. As foreshadowed in the Explanatory Memorandum to the Amendment Act, amendments made to sections 15 and 16 of the Act allow the Principal Regulations to target which members of a corporation’s group should be included in applications for registration by controlling corporations.

The intention is that members of a controlling corporation’s group most relevant for reporting purposes will be included in future applications for registration. This amendment will reduce the administrative burden for some controlling corporations who would otherwise have been required to specify every member of their corporate group (as defined in Section 8 of the Act) in an application for registration, regardless of their relevance for reporting purposes.

Changes made by items [18] and [21] below will ensure that only members defined as ‘affected group members’ will be required in future applications for registration and for inclusion on the National Greenhouse and Energy Register (the Register).

A member is an ‘affected group member’ if it meets, or is likely to meet, one or more of the following requirements:

Scenario:	‘Affected Group Members’:
During a financial year the group meets, or is likely to meet, one of the group thresholds for energy production, energy consumption or greenhouse gas emissions.	All members which have operational control of a facility for at least part of the financial year.
During a financial year, the group has operational control of a facility which meets, or is likely to meet, a facility threshold.	Any member which has operational control of a facility which meets the facility threshold for at least part of the year.
During the financial year, the controlling corporation applies for registration under Section 14.	The member which is undertaking or proposing to undertake a greenhouse gas project [to be defined].
Any member which has a subsidiary that meets, or is likely to meet, one of the above categories.

A member is considered ‘likely to meet’ one of the criteria if the chief executive officer (CEO) of the controlling corporation is satisfied that it is likely. This reflects the terminology used in subsection 12(3) of the Act, which allows a controlling corporation to apply for registration if the CEO is satisfied the corporation is likely to meet a threshold, thus enabling a corporation to apply for registration prior to meeting a threshold.

Item [3] Regulation 1.03, after definition of ANZSIC industry classification and code

This item will insert a definition of ARBN (Australian Registered Business Number) into definitions for the Principal Regulations. The definition of ARBN is required as it forms part of the definition of ‘identifying details’, a term introduced by item [5].

Item [4] Regulation 1.03, definition of Australian Statistician

This item will amend the existing definition of ‘Australian Statistician’ to more accurately reflect the Australian Bureau of Statistic Act 1975. Subsection 5(2) of that Act says that ‘there shall be an Australian Statistician’ without defining that term further. This amendment does not cause any practical change in the meaning of the term.

Item [5] - Regulation 1.03, after definition of green and air dried wood

In a number of areas of the Principal Regulations, ABNs (Australian Business Numbers) are relied upon as the principal identifying information for entities including controlling corporations, subsidiaries, joint ventures and partnerships.

Stakeholder feedback and legal advice indicates that some entities eligible to apply for registration under the Act may not necessarily have an ABN (for example, joint ventures or foreign corporations). Based on this advice, the Principal Regulations will be amended by this item to allow for alternatives to ABNs to be used.

Items [10] to [16], [18], [21], [24], [26], [28], [35], [36], [38], [39], and [41] below will replace the requirement to supply an ABN as identifier for particular entities with ‘identifying details.’

Identifying details consist of:

· an ABN;

· in cases where the entity does not have an ABN - an Australian Company Number (ACN) (within the meaning given by Section 9 of the Corporations Act 2001); or

· in cases where there is neither an ABN or ACN - the entity’s Australian Registered Business Number (ARBN) (within the meaning given by Section 9 of the Corporations Act 2001); or

· in cases where the entity does not have an ABN, an ACN or ARBN - the entity’s trading name and street address.

Item [6] - Regulation 1.03, definition of sludge gas

The term ‘sludge gas’ defined under regulation 1.03 of the Principal Regulations has been identified as inconsistent with the term ‘sludge biogas’ used in item 29 of Schedule 1 to the Principal Regulations. As ‘sludge biogas’ is the correct term, regulation 1.03 will be amended. The definition is otherwise correct.

Item [7] - Regulation 1.03, note at the foot

This item updates the note at the foot to list all items referred to in the Principal Regulations. Additional items include: greenhouse gas project and subsidiary. Other terms used in the Principal Regulations are defined in the Act. The amendment is made for completeness, but does not reflect any further change.

Item [8] - Before regulation 2.02

This item introduces a definition for ‘business unit’ into the definitions made under section 7 of the Act. The Amendment Act amended the Act to allow for this definition to be made in the Principal Regulations.

‘Business unit’ is currently defined in subregulation 4.25 (6). The definition introduced by this item is altered slightly to apply to a unit that is recognised by a registered corporation as having administrative responsibility for ‘1 or more facilities’ of the corporation rather than ‘for facilities’ of the corporation. Otherwise, the definition is the same as the existing definition of business unit currently used in the Principal Regulations.

Item [9] - Regulation 2.02, table

Regulation 2.02 lists the global warming potential (GWP) for the six Kyoto gases, including the hydrofluorocarbon and perfluorocarbon groups to be reported under the Act.

This item correctly aligns the GWPs listed under item 4, sulphur hexafluoride, and item 5, HFC‑23. This corrects a formatting error.

There is no change to the GWPs for these gases.

Item [10] - Paragraph 2.08 (2)(c)

Regulations made under paragraph 8 (6)(a) of the Act establish a process for nomination and revocation of a nomination for a responsible entity for a joint venture. Regulations under paragraph 8 (6)(b) of the Act establish a process for nomination and revocation of a nomination for a responsible entity for a partnership.

Regulation 2.08 currently requires a written nomination for a joint venture to include identifying and contact details for the nominee, its controlling corporation, other joint venture participants, and identifying and contact details for the joint venture.

This item provides for further detail to be included on nominees and contact officers for authentication purposes. Additions include:

· ‘identifying details’ (as defined by item [5] above) to be provided for the nominee (replacing the previous requirement which only allowed for provision of an ABN);

· the postal address and identifying details of the controlling corporation for the nominee (replacing the previous requirement which only allowed for provision of an ABN); and

· name, postal address, position, telephone number and email address of a contact person for the nominee, the controlling corporation of the nominee and each participant in the joint venture (other than the nominee).

These are not considered to be a significant additional administrative burden on corporations.

Item [11] - Paragraph 2.09 (6)(a)

Regulation 2.09 currently applies when a revocation application is unilaterally made by the nominated member. The responsible entity must give a written notice of intention to each member, stating that it intends to revoke its nomination as the responsible entity.

The notice to be provided to the Greenhouse and Energy Data Officer (GEDO) must include contact details for the nominated member, its controlling corporation, the joint venture participants and the joint venture itself, and must state that the member revokes its nomination as the responsible entity for the joint venture.

This item provides the following additions to be provided in a notice to the GEDO:

· the identifying details of the nominated member and each participant in the Joint Venture other than the nominee and the Joint Venture itself (replacing the previous requirement which only allowed for provision of an ABN);

· the postal address, position, telephone number and email address of a contact person for the nominated member, the controlling corporation of the nominated member and each participant in the Joint Venture other than the nominee; and

· the postal address and identifying details of the controlling corporation for the nominated member (replacing the previous requirement which only allowed for provision of an ABN).

These are not considered to be a significant additional administrative burden on corporations.

Item [12] - Subparagraphs 2.10 (2)(b) (i) to (v)

Where a revocation application is made by members of a joint venture other than the nominated responsible entity, a written revocation notice is to be provided to the GEDO.

Currently the notice to the GEDO must include details for the nominated member, its controlling corporation, the joint venture participants and the joint venture itself, and it must state that all participants (not necessarily including the nominated member) decide to revoke the nomination.

This item will require the following additions to be included in the notice to the GEDO:

· the postal address and identifying details of the joint venture (replacing the previous requirement which only allowed for provision of an ABN);

· the identifying details of the nominated member, the controlling corporation for the nominated member, and each participant in the joint venture other than the nominee (replacing the previous requirement which only allowed for provision of an ABN);

· the name, postal address, position, telephone number and email address of a contact person for the nominated member and the controlling corporation of the nominated member; and

· the postal address and position of a contact person for each participant in the joint venture other than the nominee.

These are not considered to be a significant additional administrative burden on corporations.

Item [13] - Paragraph 2.11 (2)(b)

Regulation 2.11 currently specifies that a written nomination for a partnership must include a statement that the nominee is to become the responsible entity for the partnership and that the other partners have agreed to the nomination.

The amendment made by this item will ensure that all partners to the partnership, including the nominee, have agreed to the nomination. To reflect this change, paragraph 2.11 (2)(b) will require that a nomination must include a statement to the effect that all of the partners in the partnership have agreed to the nomination. This is consistent with the similar requirement provided under existing paragraph 2.08 (2)(b) in relation to joint ventures.

Item [14] - Paragraph 2.11 (2)(c)

This item makes the following additions to be included in the notice to the GEDO under regulation 2.11:

· the identifying details of the nominee, the partnership and each partner in the partnership other than the nominee (replacing the previous requirement which only allowed for provision of an ABN);

· the postal address, position, telephone number, and email address of a contact person for the nominee, each partner in the partnership other than the nominee and for the controlling corporation of the nominee; and

· the postal address and identifying details of the controlling corporation for the nominee (replacing the previous requirement which only allowed for provision of an ABN).

These are not considered to be a significant additional administrative burden on corporations.

Item [15] - Paragraph 2.12 (6)(a)

If a responsible entity wishes to unilaterally revoke a nomination as responsible entity for a partnership, it must give a written notice of intention to the other partners, stating that it intends to revoke its nomination. The notice to the GEDO must include identifying and contact details for the responsible entity, its controlling corporation, other partners and the partnership itself, and it must state that the responsible entity revokes its nomination as the responsible entity for the partnership.

This item makes the following additions to be included in the notice to the GEDO under paragraph 2.12 (6)(a):

· the identifying details of the nominated member, the partnership and each partner (other than the nominee) in the partnership;

· the postal address, position, telephone number, and email address of a contact person for the nominated member, the controlling corporation of the nominated member and each partner in the partnership (other than the nominee); and

· the postal address and identifying details of the controlling corporation for the nominated member (replacing the previous requirement which only allowed for provision of an ABN).

Item [16] - Paragraph 2.13 (2)(b)

Where the partners in a partnership (other than the nominated member) wish to revoke a nomination, a written revocation notice is to be provided to the GEDO. The notice to the GEDO must include details for the nominated member, its controlling corporation, the other partners and the partnership itself, and it must state that all partners (not necessarily including the nominated member) decide to revoke the nomination.

This item makes the following additions to the contact information to be included in the notice to the GEDO under paragraph 2.13 (2)(b):

· the identifying details of the nominated member, the controlling corporation of the nominated member, and each partner in the partnership (other than the nominee) (replacing the requirement for ABNs only);

· the name, postal address, position, telephone number, and email address of a contact person for the nominated member, the controlling corporation of the nominated member and for each partner in the partnership (other than the nominee); and

· the postal address and identifying details of the partnership (requirement to provide ABN only removed).

Item [17] Regulation 2.18

This item deletes the term ‘the series’, which was previously used in paragraph 2.18 (1)(a). This has been removed to ensure clarity of the regulation. As currently defined, ‘the series’ is a shortening of the term ‘series of activities’ throughout the subsequent text of regulation 2.18 it is not consistently used in this manner. Further grammatical changes have been made to ensure the regulation is clear. The intent and application of this regulation is unchanged.

Item [18] - Subregulation 3.02 (1)

Existing regulation 3.02 specifies the information that a controlling corporation must include when applying for registration under section 12 of the Act. This information is used by the GEDO to register a corporation. Some of the information provided in the application is included on the Register as per regulation 3.04.

The existing regulation 3.02 refers to paragraph 15 (1)(c) of the Act. As this paragraph number will be altered by the Amendment Act, the Regulations provide for the new paragraph number to be used (i.e. paragraph 15 (c)).

Subregulation 3.02 (1), when amended by this item, will require applications to include basic information to identify the controlling corporation; its Chief Executive Officer (or equivalent); a primary contact person; members of its group; and details of ‘affected group members’ (as defined by item [1]).

The following additions will be made to the contact information to be included in an application under section 12 or 14 of the Act, and specified under paragraph 3.02 (1)(b):

· the name, identifying details (as opposed to the existing requirement for ABN only), trading name, and street address of a head office for the controlling corporation; and

· the identifying details and trading name of each member of the controlling corporation that is an affected group member.

It is expected that replacing the requirement to list all members of a group with a requirement to list only affected group members will lead to a reduction in the amount of information that must be listed in an application for registration.

The other amendment made by this item will remove the requirement that applications must be made in writing. This requirement will not be imposed by regulation 3.02, but will be reinserted in regulation 3.03 by item [20] below.

Item [19] - Regulation 3.03

This item amends regulation 3.03 to refer to paragraph 15(d) of the Act. This is required as a result of the Amendment Act, which renumbered the paragraphs within section 15.

In addition, the item converts this regulation into a subregulation, subregulation 3.03(1). This is required as a result of the addition of subregulation 3.03 (2) by item [20] below.

Item [20] After regulation 3.03

This item inserts a new subregulation (2) into regulation 3.03.

Currently, the requirement that applications must be made in writing is specified by subregulation 3.02 (1), which is made in accordance with paragraph 15 (c) of the Act. As the regulation making power will be in paragraph 15 (d) of the Act (as amended when item 8 of the Amendment Act comes into effect), this requirement is being moved to regulation 3.03, which is made under the appropriate provision.

Subregulation 3.03 (2) will also require an application for registration to identify the section of the Act under which the controlling corporation is applying to be registered. This was previously required in the regulations made under paragraph 15 (1)(c) of the Act, but will now sit under paragraph 15 (d) once item 9 of the Amendment Act comes into force.

As regulation 3.03 is not being substituted, there is no saving provision required in relation to any Gazette notices by the GEDO on the form of authentication of identity required to be used in applications.

Item [21] - Paragraphs 3.04 (c) to (e)

Regulation 3.04 specifies the information that must be entered on the Register. This item modifies paragraphs 3.04 (c) to (e) to enable the details for affected group members, as opposed to all group members, to be entered on the Register. Information to be included on the Register includes the identifying details of the controlling corporation and each affected group member, and the trading name (if any) of each affected group member. These changes provide for information collected through the amended registration process to be reflected on the Register.

The amendments to the Principal Regulations concerning applications for registration (item [18]) and the content of the Register (item [21]), in combination with the definition of affected group member (item [2]), should reduce the number of members which controlling corporations must identify in their applications for registration and the administrative burden associated with such applications.

Although these amendments have the potential to reduce the number of group members listed on the Register, they will not impact on the greenhouse gas emissions and energy information to be made publicly available about a registered corporation under section 24 of the Act. The amendments will more clearly identify the group members which produce emissions or produce or consume energy at the time of registration.

These amendments also do not impact on the content of a registered corporation’s report under section 19 of the Act. The report is not confined to the ‘affected group members’ listed on the Register. This will ensure the most current information is included in a corporation’s report for a given year.

The annual publication of information under section 24 of the Act is also not altered by the amendments to the registration process, as reported emissions totals may be published for each member of a corporation’s group. This is not limited to the ‘affected group members’ listed on the Register.

Item [22] - Paragraph 3.04 (g)

This item removes paragraph 3.04 (g), which requires information which must be published by the GEDO under section 24 to be included on the Register. This will simplify administration processes associated with the Register. The amendment makes no change to the information to be published by the GEDO under section 24, or to the way in which this information will be published.

Item [23] - Regulation 3.05

Regulation 3.05 is made under paragraph 18 (2)(a) of the Act, and specifies the information that a registered corporation must include when applying for deregistration. This information is used by the GEDO to deregister a corporation and remove its name from the Register.

The requirement that applications should be in writing should more correctly be made in the regulations under paragraph 18 (2)(b) of the Act. This requirement will now be made in regulation 3.06 as a result of item [25] below.

Item [24] - Paragraph 3.05 (a)

This item replaces the requirement to supply an ABN in an application for deregistration under regulation 3.05 with the requirement to provide identifying details as defined under item [5] above. This amendment will allow an alternative to an ABN as a means of identifying affected group members, where the affected group members may not have an ABN.

Item [25] - Regulation 3.06

Regulation 3.06 specifies the requirements for the form of applications for deregistration. Applications for deregistration must include the corporation’s authenticated identity, using a method approved by the GEDO and published via the Gazette.

This item inserts the requirement that applications must be in writing. This requirement was deleted from regulation 3.05 as a consequence of item [23] above, to ensure that the requirement is made in regulations under the appropriate provision of the Act (paragraph 18 (2)(b)).

As regulation 3.06 has not been substituted, no saving provision is required for existing Gazette notices.

Item [26] - Paragraphs 4.04 (1)(a) and (b)

Regulation 4.04 establishes general reporting requirements for identification, contact and location details for the registered corporation and members of its corporate group, including facilities under the corporate group’s operational control.

Subregulation 4.04 (1) specifies that a report is to include the ABN, postal and street addresses of the registered corporation’s head office, contact details for its CEO and contact details of a contact person for the corporation.

This item replaces the requirement to include an ABN under paragraph 4.04 (1)(a) with the requirement to provide identifying details (as defined in the definition inserted by item [5] above). This amendment will provide for an alternative to an ABN to be supplied as a means of identifying affected group members, where the affected group members may not have an ABN.

As it is possible that, in some circumstances, a corporation may provide a street address as its ‘identifying details’, paragraph 4.04 (1)(b) is amended by the item to ensure that duplicative information is not required.

Item [27] - Paragraphs 4.04 (1)(d) and (e)

This item substitutes paragraphs 4.04 (1)(d) and (e) with alternative paragraphs. Paragraph (d) will require the registered corporation to provide more specific contact information about the CEO or equivalent. Paragraph (e) will require details for a contact person for the corporation to be provided. The need for additional detail (name, telephone number, email address and postal address) was identified during the design process for forms to be used for registration and reporting.

The inclusion of these contact details in a corporation’s report mirrors equivalent information provided at the time of registration.

Item [28] - Subregulation 4.04 (2)

Subregulation 4.04 (2) previously specified that a report must include ABNs for all members of the corporation’s group with operational control over facilities, as well as for the holding companies of those members.

This item replaces all references to ABNs under paragraphs 4.04 (2)(a) to (f) with ‘identifying details’ (as inserted by Item 5 above).

As a result of including identifying details in this regulation, existing paragraph 4.04 (2)(e) is no longer required and will be deleted.

Item [29] - Subregulation 4.04 (3)

Subregulation 4.04 (3) specifies that a report is to contain details of facilities under the operational control of members of the corporate group determined by subregulation 4.04 (2). The exceptions to these requirements include reporting aggregated amounts from facilities (regulation 4.25) and reporting percentages of emissions and energy (regulation 4.26). This item clarifies this requirement.

The reference to ‘Regulation 4.25 and 4.26’ will be changed to ‘Regulation 4.25 or 4.26’. This clarifies that it is not necessary for a facility to be reported under both regulations in order to be exempt from the reporting requirements under subregulation 4.04 (3).

Item [30] - Paragraph 4.04 (3)(e)

This item will substitute paragraph 4.03(e) and insert a new paragraph into subregulation 4.04 (3). Paragraph 4.04 (3)(f) will require a corporation to indicate in their report the period for which the entity mentioned in subregulation 4.04 (2) had operational control of a facility, if the facility was not under the operational control of the entity for the whole reporting year.

This amendment is required as it is possible that a facility may be under the operational control of the same entity on multiple, separate occasions during a reporting year, or under the operational control of a number of different entities during a single reporting year. This possibility is recognised in subsection 13 (2) of the Act, which provides that a threshold may be reached if a member of a controlling corporation’s group has operational control for a number of, but not all, days in a financial year (the ‘control days’).

It is envisaged this information will be useful for the GEDO to ensure the accuracy of data, and for compliance monitoring processes.

The change to paragraph 4.04 (3)(e) is for grammatical purposes, reflecting the inclusion of a new subparagraph below. The paragraph is otherwise unchanged.

Item [31] - Paragraph 4.20 (1)(e)

Regulation 4.20 specifies that where a facility under the operational control of the registered corporation's group produces energy that is electricity during the reporting year, the report is to describe whether the electricity was produced using either thermal, geothermal, solar, wind or water generation. This item amends paragraph 4.20 (1)(e) to add the word ‘or’ to the end of the paragraph. This corrects a minor grammatical error. The regulation is otherwise unchanged.

Item [32] - Subregulation 4.20 (2)

This item clarifies subregulation 4.20 (2). ‘Facility’ is defined in section 9 of the Act, in part, as ‘an activity, or series of activities (including ancillary activities) that involve the production of greenhouse gas emissions, the production of energy or the consumption of energy.’

As a facility is defined as a series of activities, and not in a geographical or physical sense (i.e. there may not necessarily be a distinct boundary) the use of terms such as ‘inside’ or ‘outside’ is not appropriate in all instances.

Subregulation 4.20 (2) requires a corporation’s report to identify the quantity of electricity which is produced for use by (or at) the facility, the quantity produced for export and use at another facility, and the quantity produced for export to the electricity grid.

The policy intent of this regulation is that corporations which produce energy that is electricity by the means described in subregulation 4.20 (1), will identify in their reports the quantity of such electricity generated for use by (or at) the facility.

An example of this might be:

a controlling corporation has operational control over a facility whose primary production process is manufacturing;
the controlling corporation installs solar panels at the same site where the primary production process of the facility is located; and
all electricity generated by these panels is used as an energy source by one or more activities making up the same facility (e.g. to power an item of machinery used in the manufacturing process).

The other policy intent of the subregulation is to require corporations, which produce energy which is electricity by the means described in subregulation 4.20 (1), to identify in their reports the quantity of electricity not generated for use by (or at) the same facility.

An example of this might be:

a controlling corporation has operational control over a facility whose primary production process is manufacturing;
the controlling corporation installs solar panels at the same site where the primary production process of the facility is located; and
some of the electricity generated by these panels is used as an energy source for activities that do not constitute part of the facility (i.e. it is used to power machinery that is located at another facility, or is exported to the state power grid).

The proposed words added by this item more accurately describe the matters to be reported, and are consistent with Part 6.1 of the National Greenhouse and Energy Reporting (Measurement) Determination 2008.

The item does not require any changes to the content of a report by a corporation in accordance with the Act.

Item [33] - Subregulation 4.25 (6)

This item omits subregulation 4.25 (6). This subregulation is no longer required as a result of the definition of ‘business unit’ inserted into section 7 of the Act by the Amendment Act and included under item [8] above.

The removal of the definition from regulation 4.25 does not affect the application of the provision.

Item [34] - After subregulation 4.29 (3)

Regulation 4.29 establishes rules for facilities which can form a vertically integrated production process (VIPP). Subregulations 4.29 (2) and (3) establish that the greenhouse gas emissions, energy consumption and energy production information for vertically integrated facilities may be aggregated for reporting. The policy intent of this regulation is to reduce administrative costs of separate monitoring and measurement frameworks for sites that are intrinsically linked within a corporation’s business structure.

This item introduces a new subregulation 4.29 (3A), which clarifies that a corporation, when aggregating information about facilities that form a VIPP, must identify in its report each facility that makes up the VIPP. This amendment was identified during the design of the systems being established to administer the Act and Regulations.

Item [35] - Regulation 4.30

Regulation 4.30 establishes specific reporting requirements for a corporation with operational control over an entire facility within which one or more contractors are responsible for large amounts of greenhouse gas emissions or large amounts of energy use or production.

Subregulation 4.30 (2) currently specifies that a report for a facility must separately identify greenhouse gas emissions, energy production and energy consumption totals for contractors at that facility which meet the thresholds specified in subregulation 4.30 (1).

Without amendment, the combination of regulation 4.29 and 4.30 creates an anomalous situation whereby a corporation can provide an aggregated report on behalf of a number of facilities which make up a VIPP, but are required to report greenhouse and energy information relating to contractors separately for each facility in that VIPP. In cases where a contractor meets the thresholds in regulation 4.30, but the facility is part of a VIPP, regulation 4.29 is effectively rendered inoperable.

This item amends regulation 4.30 to allow that, in cases where a corporation reports aggregated facilities for a VIPP, the totals of greenhouse gas emissions, energy production and energy consumption by contractors operating at facilities making up the VIPP may be aggregated for whole VIPP rather than reported separately for each facility in the VIPP.

Subregulation 4.30 (2) also specifies that the name and ABN of contractors reported under regulation 4.30 was required. Subregulation 4.30 (2) will be amended to instead require the corporation to include in its report the identifying details of each contractor that engages in activities mentioned in subregulation 4.30 (1).

Item [36] - Subparagraphs 4.33 (1)(c)(iii) and (iv)

Regulation 4.33 specifies that applications for a section 20 determination are to be in writing and will include the authenticated identity for the registered corporation and the other person, and a description of the information to be provided by the other person.

This item substitutes subparagraphs 4.33 (1)(c)(iii) and (iv) with new subparagraphs which require the application to instead include the identifying details, and the name, position, telephone number, email address and postal address of a contact person. This amendment provides for further contact details to be included in the application.

Item [37] - Regulation 5.02

Section 26 of the Act permits the GEDO or the GEDO’s staff to disclose information to Commonwealth Ministers, a Secretary of a Department, the head of an authority of the Commonwealth, and Australian Public Service (APS) employees, or persons providing services to the Commonwealth if they are responsible for a program or collection of statistics related to greenhouse gas emissions or energy consumption or energy production and specified in the Regulations. This disclosure will be at the discretion of the GEDO.

Regulation 5.02 lists specified persons for disclosure of information in accordance with subsection 26 (1) of the Act. This item specifies more precisely the persons who may receive such data.

Disclosure to the following persons will give effect to several objectives behind the Act, including streamlining of corporate reporting requirements and facilitating policy development.

Item [37] therefore amends regulation 5.02 to further specify persons for disclosure of information under subsection 26 (1). Due to the likelihood of name changes within the Departments listed, APS employees, or employees of the Commonwealth have been specified by function where possible.

Under regulation 5.02 as amended, the following persons will be specified:

Commonwealth Ministers:

• the Minister for Climate Change and Water;

• the Minister for the Environment, Heritage and the Arts; and

• the Minister for Resources and Energy.

The Secretaries of:

• the Department of Climate Change;

• the Department of the Environment, Water, Heritage and the Arts; and

• the Department of Resources, Energy and Tourism.

The heads of the following agencies:

• the Australian Statistician;

• the Chair of the Australian Energy Regulator;

• the Executive Director of the Australian Bureau of Agricultural and Resource Economics within the Department of Agriculture, Fisheries and Forestry; and

• the Executive Director of the Australian Bureau of Infrastructure, Transport and Regional Economics within the Department of Infrastructure, Transport, Regional Development and Local Government.

Staff of the following APS agencies and authorities of the Commonwealth with particular functions:

• the Australian Bureau of Agricultural and Resource Economics;

• the Australian Bureau of Infrastructure, Transport and Regional Economics;

• the Australian Bureau of Statistics;

• the Australian Energy Regulator;

• the Department of Climate Change;

• the Department of the Environment, Water, Heritage and the Arts; and

• the Department of Resources, Energy and Tourism.

Note that, in accordance with section 26 of the Act, a person must not only be listed under regulation 5.02, but must also be ‘responsible for administering a program or collecting statistics relating to greenhouse gas emissions, energy consumption or energy production’, before the GEDO may disclose information to them under subsection 26 (1). Inclusion in this list does not give a person so specified automatic access to greenhouse and energy information.

Item [38] - Subparagraph 6.02 (1)(a)(ii)

Regulation 6.02 specifies information to be included in an application by a controlling corporation under section 54 of the Act. Section 54 of the Act provides the GEDO with the authority to declare that an activity or series of activities (including ancillary activities) is a facility, either in response to an application or on his or her own volition.

Item [38] will amend subparagraph 6.02 (1)(a)(ii) to substitute the requirement for the controlling corporation to include an ABN in its application with the requirement to include the identifying details of the controlling corporation.

This amendment will provide controlling corporations with alternatives to the provision of ABNs for use in cases where an ABN is not available.

Item [39] - Paragraph 6.02 (1)(b)

Existing paragraph 6.02 (1)(b) requires the applicant to provide the name and ABN of the member of the controlling corporation’s group with operational control over the activities subject to the application.

Item [39] will amend paragraph 6.02 (1)(b) to reflect the fact that a controlling corporation may have ‘operational control’ only in relation to facilities, and ‘overall control’ (as defined in regulation 2.14) in relation to activities.

Item [39] will also amend paragraph 6.02 (1)(b) by substituting the requirement for the controlling corporation to include an ABN in its application with the requirement to include the identifying details of the controlling corporation (in subparagraph 6.02 (1)(b)(iii)). These amendments will enable the controlling corporation to provide alternatives to an ABN in cases where an ABN is not available. The amendments will also require that the member provide a postal address and additional details for the contact person (in subparagraph 6.02 (1)(b)(iv)), in order to provide more practical contact information for the member of the corporation’s group.

Item [39] also introduces two new paragraphs, 6.02 (1)(ba) and (bb). These will require the controlling corporation to specify which kind of entity mentioned in subsection 8 (1) of the Act (i.e. a controlling corporation, subsidiary of the controlling corporation, or joint venture, or partnership) is making the application. If the member specified in new paragraph 6.02 (1)(b) is a joint venture or partnership, paragraph 6.02 (1)(bb) will require the member to include in their application whether the participants in the joint venture or the partners in the partnership have nominated a responsible entity for the joint venture or partnership.

These amendments will clarify regulation 6.02 to ensure it applies to all potential members of a controlling corporation’s group.

Item [40] - Before paragraph 6.03 (a)

Regulation 6.03 specifies the information to be included in an application by a controlling corporation or another member of the corporation’s group under section 55 of the Act. Section 55 of the Act provides the GEDO with the authority to declare operational control of a facility, either in response to an application by a corporation or on his or her own volition.

Existing regulation 6.03 requires the member of the corporation’s group (the applicant) to provide information about its identity, the controlling corporation (if it is not the applicant), and the member in relation to which a declaration is sought. The applicant must also provide information on corporations not in the corporate group that the applicant considers could have operational control of a facility for which the declaration is sought.

The applicant must currently provide details of the facility for which the declaration is sought. They must also provide any information on contracts or arrangements that would assist the GEDO consider which corporation has the greatest authority to introduce and implement policies mentioned in paragraph 11 (1)(a) of the Act in relation to that facility.

Item [40] will amend regulation 6.03 to require the controlling corporation or member of the controlling corporation’s group to specify which type of entity is making the application. Types of entities include:

the controlling corporation; or
a subsidiary of the controlling corporation; or
a participant in a joint venture (covered by subsection 8(4) of the Act); or
a partner in a partnership (covered by subsection 8(5) of the Act).

These amendments will clarify regulation 6.03 to ensure they apply to all potential members of a controlling corporation’s group.

Item [41] - Subparagraphs 6.03 (a)(ii), (b)(ii) and (c)(ii)

Item [41] will amend subparagraphs 6.03 (a)(ii), (b)(ii) and (c) (ii) to replace the requirement to provide an ABN on an application under regulation 6.03 with the requirement to provide identifying details. This amendment will enable the entity to provide alternatives to an ABN in cases where an ABN is not available.

Item [42] Subparagraph 6.03 (e)(iv)

Item [42] will amend subparagraph 6.03 (e)(iv) to correct an incorrect reference made to subregulation 2.20 (2). Subregulation 6.03 (e)(iv) should refer to the industry sectors listed under Schedule 2 to the Regulation, as those listed under subregulation 2.20 (2) relate only to network and or transport facilities. These sectors are not relevant for subparagraph 6.03 (e)(iv).

Item [43] - Subparagraph 6.03 (g) (iii)

Item [43] will amend subparagraph 6.03 (g)(iii) to allow an additional paragraph (6.03 (h)) to be inserted below. This amendment is a minor change for grammatical purposes. The subparagraph is otherwise unchanged.

Item [44] - After paragraph 6.03 (g)

Item [44] will insert an additional paragraph into regulation 6.03, which will require the applicant to include, in its application for a declaration that a controlling corporation or another member of the corporation’s group has operational control of a facility, the period in relation to which the declaration is sought.

Specifying the period in relation to which a declaration is sought acknowledges that there are likely to be changes in a corporation’s structure during a reporting year, and allows the applicant to indicate to the GEDO the time period for which the declaration is sought. It would remain at the discretion of the GEDO to determine whether the declaration should cover the period requested.

Item [45] - After regulation 6.03

Subsection 58 (1) of the Act requires the GEDO to issue identity cards to authorised officers in the form specified by the regulations. Subsection 58 (1) also states that the identity card must contain a recent photograph of the authorised officer.

Item [45] will insert a new regulation (regulation 6.04) to specify the form of an identity card to be issued by the GEDO to an authorised officer under subsection 58 (1). The new regulation 6.04 will require the following information to be included on the identity card:

(a) the full name of the authorised officer;

(b) the office held by the authorised officer;

(d) the date the card expires; and

(e) a statement that the authorised officer is authorised to exercise powers or to perform functions under the Act.

Commonwealth Numbered Regulations - Explanatory Statements

Issued by the Authority of the Minister for Climate Change and Water