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OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 171 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 171
Subject- Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 2)
Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 45A(1) of the Act enables regulations to be made to regulate certain matters making provisions for regulating the sale or purchase or any other acquisition or disposal, of scheduled substances (paragraph 45A(1)(a)); the storage, use or handling of scheduled substances (paragraph 45A(1)(b)); and the labelling requirements for scheduled substances and for products that contain or use scheduled substances (paragraph 45A(1)(c)). Subsection 45A(2) clarifies that regulations may make provision for regulating something by providing that it must not be done unless specified conditions are met.
The Act provides measures to meet Australia’s obligations under the Vienna Convention, Montreal Protocol and the United Nations Framework Convention in Climate Change. In particular, the Act provides measures to protect the ozone layer from ozone depleting substances and to minimise emissions of synthetic greenhouse gases. Under the Act, ozone depleting substances and synthetic greenhouse gases (including methyl bromide) are listed as scheduled substances.
The purpose of the Regulations is to:
Details of the Regulations are set out in the Attachment.
Consultation was undertaken with relevant Commonwealth and State Government agencies and industry stakeholders during the development of the amendments. The amendments improve the operation of the Ozone and Synthetic Greenhouse Gas Management Regulations 1995 by simplifying Refrigerant Handling Licence requirements for engineers working in the maritime industry and updating reporting requirements for methyl bromide users. Changes to the requirements for pre-charged equipment Licenses are a result of recommendations made by the Productivity Commission. These changes effectively reduce the administrative burden on low volume importers.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations will commence on the day after they are registered on the Federal Register of Legislative Instruments.
Authority: Section 70 of the Ozone Protection and
Synthetic Greenhouse Gas Management Act 1989
ATTACHMENT
Ozone Protection and Synthetic Greenhouse Gas Management Amendment
Regulations 2009 (No. 2)
Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 2) are as follows:
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 2).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Amendment of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995
This regulation provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) are amended as set out in the Schedule.
Schedule – Amendments
Item 1 – After subregulation 3C (4)
This item inserts a new subregulation 3C (5) into the Principal Regulations which allows the Minister to partially waive the application fee for a pre-charged equipment licence (PCE Licence) where a person is only importing small quantities of refrigerant in a small number of pieces of pre-charged equipment. Pre-charged equipment includes such things as domestic refrigerators, air conditioning systems in automobiles and split-system air conditioners.
The purpose of new subregulation 3C (5) is to reduce the cost and administrative burden on small volume pre-charged equipment importers, such as those who conduct one-off imports of yachts and cars and who are as a consequence required to apply for a PCE Licence.
The PCE Licence is designed for large companies that import bulk quantities of equipment. The application fee for a PCE Licence is $3,000, and it is a condition of these licences that holders submit quarterly import reports to the department for a period of up to two years. Complying with these condition places a considerable administrative burden on small volume importers given the small volume of refrigerant imported by them. As a PCE Licence for which the fee is partially waived will only be valid for one import and the necessary reports and levy payments are made at the time of application, small volume importers will have their administrative burdens considerably reduced.
The thresholds on the number of pieces of equipment and the total refrigerant charge outlined in sub-paragraphs (a) and (b) have been determined based on two factors. A majority of importers of pre-charged equipment that import only once, for whom this measure is primarily designed, import 5 or fewer pieces of equipment and primarily import equipment designed for domestic use. Almost all equipment designed for domestic use has a charge of less than 2kg. Thus the thresholds of 5 pieces of equipment containing less than 10kg are established.
Paragraph (5)(c) restricts applicants to one fee waiver in any two year period. This restriction is to prevent medium to high volume importers structuring imports to avoid paying the full licence fee.
The requirement imposed by paragraph (5)(d), that the licence levy be paid prior to consideration of a waiver being made, is to ensure that the department’s administrative costs associated with administering licences for which a waiver has been granted are minimized. This is to ensure that the import permit scheme established under the Act continues to operate on a cost-recovery basis.
Item 2 – Regulation 6A
This item substitutes regulation 6A with a new regulation which extends the decisions which are reviewable by the Administrative Appeals Tribunal (AAT) to also enable an application to be made to the AAT for a review of a decision to refuse to waive part of the fee for a PCE Licence.
Item 3 - Regulation 110, before definition domestic refrigeration or air conditioning equipment
This item amends regulation 110 to insert two new definitions into the Principal Regulations “AMSA certificate” and “AMSA vessel”; both of which are required as a consequence of item 6 which creates a new exemption to the offence of handling refrigerant for holders of an AMSA certificate who handle refrigerant on an AMSA vessel as part of their duties.
The new definition “AMSA certificate” specifies Engineer Class I, Engineer Class II and Engineer Watchkeeper certificates issued by AMSA under the Marine Orders Part 3: Seagoing Qualifications, Issue 6 Order No 8 of 2004. The refrigeration and air conditioning aspects of the training requirements for these permits has been assessed as being equivalent to the requirements for a Full RAC Licence as defined in regulation 131 of the Principal Regulations. Therefore holders of these permits will not, when they are working on refrigeration and air conditioning equipment aboard an AMSA vessel, be required to hold a refrigerant handling licence.
The new definition of “AMSA vessel” is intended to cover all vessels which are subject to the Navigation Act 1912 as well as those vessels that, but for the fact that they are temporarily under the jurisdiction of the National Offshore Petroleum Safety Authority (NOPSA) would otherwise be AMSA vessels as defined above. The definition is designed to have the intended effect of allowing AMSA certified marine engineers to perform refrigeration and air conditioning work on AMSA vessels without being required to hold a refrigerant handling licence.
Vessels that are temporarily under the jurisdiction of the NOPSA are those vessels which perform functions as exploratory drilling platforms for petroleum, natural gas and other related off-shore mining activities. When they are not anchored to the sea-bed or attached to a permanent platform for these purposes, they are vessels which are subject to the Navigation Act 1912 and the nature of the equipment on board and the engineers assigned to service that equipment generally do not change when they attach to the sea bed for exploratory drilling or related purposes.
Item 4 – Regulation 110, definition of relevant authority
This item amends the definition of “relevant authority” in regulation 110 to clarify an ambiguity present in the existing definition. Currently, the definition of “relevant authority” provides that the Minister will be the relevant authority in relation to a refrigeration and air-conditioning (RAC) permit only where no relevant board has been appointed. The result of this phrasing is that the definition operates to prevent the Minister from exercising his or her RAC industry functions under subregulation 120(1) when the Minister has appointed one or more RAC Industry Boards pursuant to subregulation 120(2). The purpose of this item is to clarify that the Minister is still able to exercise his or her RAC industry powers and functions (as set out in subregulation 120(1)) even though the Minister has appointed one or more RAC Industry Boards and has authorised the RAC Industry Boards to exercise any or all of the Minister’s RAC industry powers and functions under paragraph 120(2)(c).
Item 5 – Subparagraph 111 (1) (c)(ii)
This item makes a minor punctuation change required as a consequence of item 6.
Item 6 – After paragraph 111 (1) (c)
This item inserts new paragraph 111(1)(d) into the Principal Regulations to include an additional exemption from the offence of handling refrigerant for the holder of an AMSA certificate who handles refrigerant on an AMSA vessel as part of their duties on the vessel.
This amendment acknowledges that the training that certain classes of engineers certified by AMSA encompasses all the requirements of the Certificate III in refrigeration and air conditioning currently recognised as the required qualification for a Full RAC class of refrigerant handling licence under regulation 131. The removal of the requirement for these engineers to hold a refrigerant handling licence is possible without compromising the environmental policy goals of the Principal Regulations due to the skills of these engineers and the existence of a competent national authority in AMSA that can apply and enforce the required standards.
The purpose of new paragraph 111(1)(d) is to recognise the formal qualifications accredited to marine engineers by AMSA as being sufficient to allow to them to work on refrigeration and air conditioning equipment without the need for them to acquire a refrigerant handling licence.
Item 7 – After subregulation 113A (2)
This item inserts subregulation 113A (2A) into the Principal Regulations which extends the offence of false representations to persons who are employed on AMSA vessels and hold themselves out as having an AMSA certificate but do not hold the relevant certificate at the time the representation was made. This new subregulation 113A(2A) is required as a consequence of item 6 which creates a new exemption to the offence of handling refrigerant for holders of an AMSA certificate who handle refrigerant on an AMSA vessel as part of their duties.
Item 8 – Subregulation 113A (3)
This item amends subregulation 113A (3) to apply to subregulations (1), (2) and (2A) as a consequence of item 7 to make the new offence in subregulation 113A (2A) an offence of strict liability. Strict liability is considered appropriate in this instance to ensure consistency with other similar offences in the Principal Regulations and to enhance the effectiveness of the enforcement regime in deterring offences. Pursuant to paragraph 6.1(1)(b) of the Criminal Code Act 1995, the defence of mistake of fact is still available and the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code Act 1995).
Item 9 – Subparagraph 120 (1) (d) (ii)
This item omits subparagraph 120 (1) (d) (ii) of the Principal Regulations and replaces it with a new subparagraph. This amendment corrects an oversight in the existing regulations. Under the existing regulations, the Minister is vested with the power under paragraph 120 (1) (d) to collect records supplied in accordance with a request under 141 (1) (b). However the Minister is not vested with the corresponding power to collect the records produced under regulation 141 (1) (n) which are also records that the holder of a refrigerant trading authorisation is required to keep. The purpose of this item is to enable the relevant authority to collect information supplied in response to any request made under paragraph 141 (1) (b) and 141 (1) (n).
Item 10 – Paragraph 140 (3) (b)
This item substitutes paragraph 140 (3) (b) with a new paragraph. Currently this paragraph specifies that a refrigerant trading authorisation may only be granted if the authority is satisfied that the applicant is able to ensure that a refrigerant is only handled by persons who are licensed to do so. The new paragraph extends this to enable a refrigerant trading authorisation to be granted to a holder of a licence granted under regulation 131, 133 or 134 or the holder of an AMSA certificate. This amendment was necessary as a consequence of the inclusion of item 6, which expanded the group of licensed persons to include marine engineers working within the scope of their AMSA certificate and to give appropriate clarity to the term “persons who are licensed to do so”.
Item 11 – Paragraph 141 (1) (i)
This item substitutes paragraph 141 (1) (i) with a new paragraph which extends the conditions to which a refrigerant trading authorisation is subject, to cover the circumstance where refrigerant is handled on board an AMSA vessel by the holder of an AMSA certificate. This amendment was necessary to reflect that AMSA qualified marine engineers are no longer required to hold a Refrigerant Handling Licence as a consequence of item 6.
Item 12 – Regulation 200, definition of Non-QPS Exemption List, paragraph (e)
This item makes a minor punctuation change required as a consequence of item 13.
Item 13 – Regulation 200, definition of Non-QPS Exemption List, after paragraph (e)
This item inserts new paragraph (f) into the definition of Non-QPS Exemption List in regulation 200, to extend the definition of Non-QPS Exemption List to refer to the Exemption List for Non QPS Applications of Methyl Bromide in 2010, which will be published in late 2009.
Item 14 – Subregulation 213 (6), definition of Non-QPS Intermediate Supplier List, paragraph (e)
This item makes a minor punctuation change required as a consequence of item 15.
Item 15 – Subregulation 213 (6), definition of Non-QPS Intermediate Supplier list, after paragraph (e)
This item inserts new paragraph (f) into subregulation 213 (6) to extend the definition of Non-QPS Intermediate Supplier List to refer to the Intermediate Supplier List for Non-QPS Applications of Methyl Bromide in 2010, which will be published in late 2009.
Item 16 – Subregulation 221 (1)
This item amends subregulation 221 (1) by removing the exemption to the requirement to keep records relating to the use of methyl bromide for a QPS or non-QPS application if the person is required to keep records under another law of the Commonwealth, State of Territory. The purpose of this amendment is to ensure that persons who use methyl bromide in accordance with the Principal Regulations keep records under the Principal Regulations relating to its use.
Item 17 – Subregulation 221 (1) and (2)
This item substitutes subregulation 221 (1) and (2) with new subregulations (1), (1A) and (2). These new subregulations reduce the record keeping requirements of methyl bromide users. Under the new provision, methyl bromide users will only be required to maintain summary records on a six monthly basis rather than the detailed daily use records currently required under the existing regulations. This change in reporting requirements is designed to reduce the administrative burden on methyl bromide users.
Item 18 – Subregulation 222 (4)
This item amends subregulation 222 (4) as a consequence of item 17.