Greg Combet (Charlton, Australian Labor Party, Minister for Climate Change and Energy Efficiency) Share this | Hansard source

I thank the Leader of the Opposition for that courtesy. I present the supplementary explanatory memorandum for the Clean Energy (Consequential Amendments) Bill 2011, the Clean Energy Regulator Bill 2011 and the Clean Energy (Household Assistance Amendments) Bill 2011 and I move government amendments (1) to (13) to the Clean Energy (Consequential Amendments) Bill 2011, government amendments (1) to (22) to the Clean Energy (Household Assistance Amendments) Bill 2011 and the government amendment (1) to the Clean Energy Regulator Bill 2011:

(1) Schedule 1, item 307, page 58 (line 17), after "11A,", insert "11AA, 11AB,".

(2) Schedule 1, page 65 (after line 12), after item 339, insert:

339AA At the end of section 10

Add:

(4) A determination under subsection (3) may also deal with matters required or permitted by section 32 or 32A of the Clean Energy Act 2011 to be dealt with by such a determination.

(3) Schedule 1, item 348, page 66 (line 8), after "11A,", insert "11AA, 11AB,".

(4) Schedule 1, item 349, page 66 (after line 27), after section 11A, insert:

11AA Operational control during part of fixed charge year—nominated person

Scope

(1) This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, the first 9 months of a fixed charge year:

(a) 2 or more persons could satisfy paragraph 11(1)(a) in relation to a facility throughout the period;

(b) no particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility throughout the period;

(c) no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

(d) as at the start of 1 April in the fixed charge year, it may reasonably be expected that a person would have had an interim emissions number for the fixed charge year if it were assumed that:

(i) the person had operational control over the facility throughout the period; and

(ii) none of the persons mentioned in paragraph (a) of this subsection had operational control over the facility throughout the period.

Nomination

(2) The persons mentioned in paragraph (1)(a) must, before the end of 30 April in the fixed charge year, jointly nominate one of them to be the nominated person in relation to the facility for the period.

Civil penalty: 1,000 penalty units.

(3) A nomination must:

(a) be in writing; and

(b) be in a form approved by the Regulator; and

(c) be accompanied by such information as is specified in the regulations.

(4) If:

(a) any of those persons is a foreign person; and

(b) any of those persons is not a foreign person;

a foreign person cannot be nominated.

Operational control—nomination made

(5) If a nomination is made and the facility is a facility of a joint venture, the nominated person is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

(6) If a nomination is made and the facility is not a facility of a joint venture, the nominated person is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

Operational control—nomination not made

(7) If no nomination is made and the facility is a facility of a joint venture, each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act, to have operational control over the facility throughout the period.

(8) If no nomination is made and the facility is not a facility of a joint venture:

(a) each of the persons mentioned in paragraph (1)(a) is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

(b) if there is a provisional emissions number of such a person for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (9).

(9) The formula is:

Unadjusted provisional emissions number

Total Number of persons mentioned in

paragraph (1)(a)

where:

unadjusted provisional emissions number means the number that, apart from paragraph (8)(b), would be the provisional emissions number of the person for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period.

Exception

(10) A person is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

(a) this Act; or

(b) the Clean Energy Act 2011.

11AB Operational control during part of fixed charge year—trust with multiple trustees

Scope

(1) This section applies if the following conditions are satisfied in relation to a period that is included in, or consists of, the first 9 months of a fixed charge year:

(a) because of section 11, 11A or 11AA, a trust has operational control over a facility throughout the period;

(b) throughout the period, there are 2 or more trustees of the trust;

(c) no declaration under section 55 or 55A applies in relation to the facility at any time during the period;

(d) as at the start of 1 April in the fixed charge year, it may reasonably be expected that a person would have had an interim emissions number for the fixed charge year if it were assumed that:

(i) the person had operational control over the facility throughout the period; and

(ii) the trust did not have operational control over the facility throughout the period.

Nomination

(2) The trustees must, before the end of 30 April in the fixed charge year, jointly nominate one of them to be the nominated trustee in relation to the facility for the period.

Civil penalty: 1,000 penalty units.

(3) A nomination must:

(a) be in writing; and

(b) be in a form approved by the Regulator; and

(c) be accompanied by such information as is specified in the regulations.

(4) If:

(a) any of those trustees is a foreign person; and

(b) any of those trustees is not a foreign person;

a foreign person cannot be nominated.

Operational control

(5) If a nomination is made, the nominated trustee is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period.

(6) If no nomination is made:

(a) each of those trustees is taken, for the purposes of this Act and the Clean Energy Act 2011, to have operational control over the facility throughout the period; and

(b) if there is a provisional emissions number of such a trustee for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (7).

(7) The formula is:

Unadjusted provisional emissions number

Total Number of trustees mentioned in

paragraph (1)(b)

where:

unadjusted provisional emissions number means the number that, apart from paragraph (6)(b), would be the provisional emissions number of the trustee for the fixed charge year in relation to greenhouse gases emitted from the operation of the facility during the period.

Exception

(8) A trustee is not required to comply with subsection (2) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under:

(a) this Act; or

(b) the Clean Energy Act 2011.

(5) Schedule 1, item 349, page 67 (line 13), omit "period.", substitute "period;".

(6) Schedule 1, item 349, page 67 (after line 13), at the end of subsection 11B(1), add:

(d) if the period is included in a fixed charge year—section 11AA does not apply to the facility for the period.

(7) Schedule 1, item 349, page 68 (lines 16 to 24), omit paragraph 11B(8)(b), substitute:

(b) if there is a provisional emissions number of such a person for the eligible financial year in relation to greenhouse gases emitted from the operation of the facility during the period—for the purposes of this Act and the Clean Energy Act 2011, that provisional emissions number is taken to be the number worked out using the formula set out in subsection (9).

(8) Schedule 1, item 349, page 68 (lines 30 and 31), omit "or the controlling corporation, as the case may be,".

(9) Schedule 1, item 349, page 69 (line 17), omit "period.", substitute "period;".

(10) Schedule 1, item 349, page 69 (after line 17), at the end of subsection 11C(1), add:

(d) if the period is included in a fixed charge year—section 11AB does not apply to the facility for the period.

(11) Schedule 3, item 1, page 174 (lines 12 and 13), omit subsection 11(2), substitute:

(2) The Regulator may refuse the application if the Regulator is satisfied that the applicant is not a fit and proper person.

(2A) For the purposes of subsection (2), in determining whether the applicant is a fit and proper person, the Regulator:

(a) must have regard to the matters specified in regulations made for the purposes of this subsection; and

(b) may have regard to such other matters (if any) as the Regulator considers relevant.

(12) Schedule 3, item 5, page 176 (lines 4 and 5), omit subsection 30A(5), substitute:

(5) The Regulator may, by written notice, suspend the registration of a registered person if the Regulator is satisfied that the registered person is not a fit and proper person.

(5A) For the purposes of subsection (5), in determining whether the registered person is a fit and proper person, the Regulator:

(a) must have regard to the matters specified in regulations made for the purposes of this subsection; and

(b) may have regard to such other matters (if any) as the Regulator considers relevant.

(13) Schedule 4, page 189 (after line 3), after item 25, insert:

25A After subsection 47(1)

Insert:

Effect of transmission

(1A) The transmission is of no force until the Administrator transfers the unit under subsection (7) or (8).

(1) Schedule 1, item 1, page 5 (after line 18), after paragraph 914(1)(b), insert:

(ba) the person is residing in Australia; and

(2) Schedule 1, item 1, page 5 (after line 26), after paragraph 914(2)(b), insert:

(ba) the person is residing in Australia; and

(3) Schedule 1, item 1, page 6 (line 4), omit "and (b)", substitute ", (b) and (ba)".

(4) Schedule 1, item 1, page 6 (after line 34), after paragraph 914A(1)(b), insert:

(ba) the person is residing in Australia; and

(5) Schedule 1, item 1, page 7 (after line 8), after paragraph 914A(2)(b), insert:

(ba) the person is residing in Australia; and

(6) Schedule 1, item 1, page 7 (after line 16), after paragraph 914A(3)(b), insert:

(ba) the person is residing in Australia; and

(7) Schedule 1, item 1, page 7 (line 22), omit "and (b)", substitute ", (b) and (ba)".

(8) Schedule 2, page 66 (after line 31), after item 15, insert:

15A At the end of section 62

Add:

(5) For the purposes of working out an individual's rate of family tax benefit, if the individual is an absent overseas recipient on a day (disregarding section 63A), then the following provisions do not apply in relation to that day:

(a) paragraph (cb) of step 1 of the method statement in clause 3 of Schedule 1;

(b) paragraph (e) of step 1 of the method statement in clause 25 of Schedule 1;

(c) paragraph 29(1)(c) of Schedule 1;

(d) paragraph (c) of step 1 of the method statement in subclause 29(2) of Schedule 1;

(e) paragraph 29A(2)(c) of Schedule 1.

(9) Schedule 2, page 66, after proposed item 15A, insert:

15B At the end of section 63

Add:

(5) For the purposes of working out an individual's rate of family tax benefit, if an FTB child of the individual is an absent overseas FTB child on a day (disregarding section 63A), then disregard that child in working out the amount applicable in relation to that day under the following provisions:

(a) paragraph (cb) of step 1 of the method statement in clause 3 of Schedule 1;

(b) paragraph (e) of step 1 of the method statement in clause 25 of Schedule 1;

(c) paragraph 29(1)(c) of Schedule 1;

(d) paragraph (c) of step 1 of the method statement in subclause 29(2) of Schedule 1;

(e) paragraph 29A(2)(c) of Schedule 1.

(10) Schedule 2, item 34, page 77 (line 13), omit "16", substitute "15A".

(11) Schedule 3, item 6, page 85 (after line 20), after paragraph 61A(1)(b), insert:

(ba) the person is residing in Australia; and

(12) Schedule 3, item 6, page 85 (after line 29), after paragraph 61A(2)(b), insert:

(ba) the person is residing in Australia; and

(13) Schedule 3, item 6, page 86 (line 4), omit "and (b)", substitute ", (b) and (ba)".

(14) Schedule 4, item 9, page 119 (after line 9), after paragraph 424A(1)(a), insert:

(aa) the person is residing in Australia on the test day; and

(15) Schedule 4, item 9, page 119 (after line 16), after paragraph 424A(2)(a), insert:

(aa) the person is residing in Australia on the test day; and

(16) Schedule 4, item 9, page 119 (line 19), after "met", insert ", the person is residing in Australia".

(17) Schedule 4, item 9, page 120 (after line 11), after paragraph 424B(1)(a), insert:

(aa) the person is residing in Australia on the test day; and

(18) Schedule 4, item 9, page 120 (after line 18), after paragraph 424B(2)(a), insert:

(aa) the person is residing in Australia on the test day; and

(19) Schedule 4, item 9, page 120 (line 21), after "met", insert ", the person is residing in Australia".

(20) Schedule 4, item 9, page 121 (after line 11), after paragraph 424C(1)(a), insert:

(aa) the person is residing in Australia on the test day; and

(21) Schedule 4, item 9, page 121 (after line 19), after paragraph 424C(2)(a), insert:

(aa) the person is residing in Australia on the test day; and

(22) Schedule 4, item 9, page 121 (line 22), after "met", insert ", the person is residing in Australia".

(1) Clause 49, page 26 (after line 23), after paragraph (1)(t), insert:

(ta) the Energy Security Council;

Sheet 257 deals with amendments to the Clean Energy (Consequential Amendments) Bill 2011. Items (1), (3) to (6), (9) and (10) of sheet 257 bring forward the deadline for nominating a person with operational control of a facility from 31 August to 30 April. The basic provisions deal with situations where no single person has operational control of a facility and a person must be nominated from those who have some operational control. The items correct an oversight which meant that nominations would have been required after the provisional surrender obligation on 15 June. The amendment I am moving will allow the person who is going to be liable for emissions from the facility to register by 1 May and meet their progressive surrender obligations on 15 June of each charge year.

Item (2) of sheet 257 clarifies that the measurement determination made under the National Greenhouse and Energy Reporting Act will be used to measure legacy emissions and exempt landfill emissions for the purposes of clauses 32 and 32A of the Clean Energy Bill. This is a technical amendment to ensure that all emissions from landfill facilities, including covered emissions, legacy emissions and exempt landfill emissions, are measured in accordance with a single consistent set of methods under the NGER Act.

Items (7) and (8) of sheet 257 correct an error in proposed section 11B of the NGER Act. They ensure that liability applies to liable entities as defined in the Clean Energy Bill 2011, instead of controlling corporations as a result of a nomination.

Items (11) and (12) of sheet 257 clarify the new provisions for refusing or suspending registration under the renewable energy target in light of the issues raised by the Senate Scrutiny of Bills Committee. In its current form the Clean Energy (Consequential Amendments) Bill includes an amendment that provides for the regulator to refuse or suspend the registration of persons under the renewable energy target legislation which enables them to create renewable energy certificates. This provision responds to stakeholder concerns around alleged unscrupulous conduct by agents selling certificates on behalf of owners and installers of small-scale renewable energy systems.

The government is moving a further amendment to clarify that the additional powers to refuse or suspend registration of an entity under the renewable energy legislation are to be constrained to situations where the regulator is satisfied that the entity is not a fit and proper person. Regulations will prescribe matters to be considered by the regulator in determining whether or not the applicant or registered entity is a fit and proper person.

Item (13) of sheet 257 provides that a transmission of Kyoto units by force of law is of no force until the units are registered in the account of the transferee. This amendment makes it clear that changes in title over Kyoto units must be effected through the Australian National Registry of Emissions Units so there is no ambiguity about legal ownership of units. There is similar provision for the transmission of carbon units, Australian carbon credit units and prescribed international units. This amendment ensures the same situation applies to Kyoto units.

Sheet 269 amends the Clean Energy Regulator Bill 2011 to allow information to be shared with the Energy Security Council. Sheet 238 amends the Clean Energy (Household Assistance Amendments) Bill 2011 to clarify in legislation the government's policy in relation to residency for household assistance. Items (1) to (21) address inconsistencies in the drafting process.

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