Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Renewable
Energy (Electricity) Bill 2000
No. ,
2000
(Environment and
Heritage)
A Bill for an Act for the
establishment and administration of a scheme to encourage additional electricity
generation from renewable energy sources, and for related
purposes
ISBN: 0642 436371
Contents
A Bill for an Act for the establishment and
administration of a scheme to encourage additional electricity generation from
renewable energy sources, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Renewable Energy (Electricity) Act
2000.
This Act commences 28 days after the day on which it receives the Royal
Assent.
The object of this Act is to encourage the additional generation of
electricity from renewable sources.
This is done through the issuing of certificates for the generation of
qualifying electricity and requiring certain purchasers (called liable
entities) to surrender a specified number of certificates for the
electricity that they acquire during a year.
Where a liable entity does not have enough certificates to surrender, the
liable entity will have to pay renewable energy certificate charge.
This Act applies to the year commencing on 1 January 2001 and to all
subsequent years. However, no certificates can be created, and no liability
arises, in respect of electricity generated on or after 1 January
2021.
(1) In this Act, unless the contrary intention appears:
1997 eligible renewable power baseline has the meaning given
by section 14.
Agriculture Department means the Department responsible for
administering the Primary Industries Levies and Charges Collection Act
1991.
arrangement means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct.
Australia, when used in a geographical sense, includes all
the external Territories.
Australian Greenhouse Office, if that Office does not exist,
means the Department responsible for administering the Environment Protection
and Biodiversity Conservation Act 1999.
authorised Commonwealth contractor means a
person who:
(a) provides, or proposes to provide, services to the Commonwealth under a
contract; and
(b) is authorised, in writing, by the Regulator for the purposes of this
definition.
carried forward shortfall has the meaning given by subsection
36(2).
carried forward surplus has the meaning given by
section 38.
certificate means a renewable energy certificate created
under Division 4 of Part 2.
document includes a document in electronic form.
electricity generation return has the meaning given by
section 20.
energy acquisition statement has the meaning given by
section 44.
general interest charge rate, for a day, is the rate that is
the general interest charge rate for that day for the purposes of the
Taxation Administration Act 1953.
government body means the Commonwealth, a State, a Territory
or an authority of the Commonwealth or of a State or Territory.
GWh means gigawatt hour.
Head of the Australian Greenhouse Office, if that Office does
not exist, means the Secretary of the Department responsible for administering
the Environment Protection and Biodiversity Conservation Act
1999.
identification code has the meaning given by
section 16.
liable entity has the meaning given by
section 35.
Minister for Finance means the Minister administering the
Financial Management and Accountability Act 1997.
monitoring warrant has the meaning given by
section 125.
MW means megawatt.
MWh means megawatt hour.
National Electricity Code means the code of conduct
called the National Electricity Code referred to in Schedule 1 to the
National Electricity (South Australia) Act 1996 of South
Australia.
NEMMCO has the same meaning as in the National Electricity
Code.
objection decision has the meaning given by
section 58.
Office of the Renewable Energy Regulator has the meaning
given by section 149.
outstanding renewable energy shortfall charge related
liability of a person at a particular time means a renewable energy
shortfall charge related liability of the person:
(a) that has arisen at or before that time (whether or not it is due and
payable at that time); and
(b) an amount of which has not been paid before that time.
produce includes permit access to.
protected document means a document that:
(a) contains information about a person; and
(b) is obtained or made by a person to whom Part 12 applies in the
course of, or because of, the person’s duties under or in relation to this
Act.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a person to whom Part 12 applies
in the course of, or because of, the person’s duties under or in relation
to this Act.
register of accredited power stations has the meaning given
by section 138.
register of registered persons has the meaning given by
section 136.
register of renewable energy certificates has the meaning
given by section 140.
registration number has the meaning given by
section 12.
Regulator means the Renewable Energy Regulator (see
section 142).
relevant acquisition has the meaning given by
section 31.
renewable energy certificate means a certificate created
under Division 4 of Part 2.
renewable energy certificate charge means the charge payable
under section 36.
renewable energy certificate shortfall has the meaning given
by section 38.
renewable energy shortfall charge related liability means a
pecuniary liability to the Commonwealth (including a liability the amount of
which is not yet due and payable) being:
(a) renewable energy shortfall charge; or
(b) additional renewable energy shortfall charge under section 70 or
Part 7.
renewable energy shortfall statement has the meaning given by
section 46.
renewable power percentage means the percentage prescribed
under section 39.
required GWh of renewable source electricity has the meaning
given by section 40.
senior employee, in relation to an authorised Commonwealth
contractor, means an employee of the contractor, where the skills and
responsibilities that are expected of the employee are equivalent to, or exceed,
the skills and responsibilities expected of at least one of the senior officers
of the Regulator.
senior officer, in relation to the Office of the Renewable
Energy Regulator, means:
(a) an SES employee or acting SES employee in the Office of the Renewable
Energy Regulator; or
(b) a person who holds or performs the duties of an Executive Officer
(Level 2) office or position in the Office of the Renewable Energy
Regulator.
solar water heater means a device that heats water using
solar energy that satisfies any conditions set out in the regulations.
warrant premises, in relation to a monitoring warrant, means
the premises to which the warrant relates.
(2) For the purposes of this Act, electricity is taken to be a good that
can be acquired.
(1) This Act binds the Crown in each of its capacities.
(2) Nothing in this Act permits the Crown to be prosecuted for an
offence.
This Act extends to every external Territory.
This Part provides for the creation, trading and extinguishing of renewable
energy certificates.
The certificates are used to avoid or reduce the amount of renewable energy
certificate charge that liable entities who acquire electricity have to pay. The
liable entities will generally acquire the certificates by purchasing
them.
The certificates are created by people who generate power from accredited
power stations using renewable energy sources where the amount generated exceeds
the relevant 1997 eligible renewable power base line. The certificates are also
created for approved installations of solar hot water heaters.
A person needs to be registered under Division 2 before they can
create a certificate.
A power station needs to be accredited under Division 3 before a
certificate can be issued in relation to power generated by it.
A certificate must be registered when it is created. Every transfer of the
certificate must also be registered.
When a certificate has been surrendered by a liable party, it ceases to be
valid.
(1) Any person may be registered under this Act.
(2) However, if a person’s registration has been suspended under
section 30, the person cannot be registered during the period of the
suspension.
(1) A person may apply to the Regulator to be registered.
(2) The application must:
(a) be made in a form and manner required by the Regulator; and
(b) contain any information required by the Regulator; and
(c) be accompanied by any documents required by the Regulator;
and
(d) be accompanied by the fee (if any) prescribed by the regulations for
the making of applications for registration.
If the Regulator receives an application that is properly made under
section 10, the Regulator must approve the application unless the person
has previously been registered. If the person has previously been registered,
the Regulator must refuse the application.
If the Regulator approves an application, the Regulator must allocate the
applicant a unique registration number and advise the applicant of the
number.
(1) A registered person may apply to the Regulator for accreditation, as
an accredited power station, of a particular electricity generation system that
the person owns.
(2) The application must:
(a) be made in a form and manner required by the Regulator; and
(b) specify those parts of the system that the applicant considers are a
single power station; and
(c) contain any other information required by the Regulator; and
(d) be accompanied by any documents required by the Regulator;
and
(e) be accompanied by the fee (if any) prescribed by the regulations for
the making of applications for accreditation.
(1) If the Regulator receives an application that is properly made under
section 13, the Regulator must:
(a) determine which components of the system are to be taken to be a power
station for the purposes of this Act; and
(b) determine whether the power station is eligible for
accreditation.
(2) A power station is eligible for accreditation if:
(a) some or all of the power generated by the power station is generated
from an eligible renewable power source; and
(b) the power station satisfies any prescribed requirements.
(3) If the Regulator determines that the power station is eligible for
accreditation, the Regulator must also determine:
(a) the 1997 eligible renewable power baseline for the power
station; and
(b) any energy sources used by the power station that are not eligible
renewable energy sources.
(4) The Regulator must determine the matters specified in
paragraphs (1)(a) and (b), (2)(a) and (b) and (3)(a) and (b) in accordance
with guidelines prescribed in the regulations.
(5) To avoid doubt:
(a) the regulations may provide that a power station includes components
that are integral to the operation of the power station or to the generation of
electricity by the power station; and
(b) the 1997 eligible renewable power baseline for a power station may be
nil.
If the Regulator determines that a power station is eligible for
accreditation, the Regulator must approve the application. In any other case,
the Regulator must refuse the application.
If the Regulator approves an application, the Regulator must allocate the
power station a unique identification code and advise the applicant of the
code.
The regulations must specify the renewable energy sources that are
eligible renewable energy sources. Fossil fuels and waste products
derived from fossil fuels are not to be prescribed as eligible renewable energy
sources.
(1) A registered person may create a certificate for each whole MWh of
electricity generated by an accredited power station that the person operates
during a year that is in excess of the power station’s 1997
eligible renewable power baseline.
(2) If the amount of electricity generated by an accredited power station
that a registered person operates during a year that is in excess of the power
station’s 1997 eligible renewable power baseline is less
than 1 MWh but greater than or equal to 0.5 MWh, the person may create a 1 MWh
certificate in respect of the electricity generated during the year.
(3) The amount of electricity generated by an accredited power station is
to be worked out in accordance with the regulations.
(4) Electricity is to be excluded from all calculations under this section
to the extent that the electricity was generated using any energy sources that
are not eligible renewable energy sources.
The certificate may be created immediately after the generation of the
final part of the electricity in relation to which it is created.
Note: For offences related to the creation of certificates,
see section 24.
(1) A registered person who generates electricity during a year must give
an electricity generation return for the year to the Regulator before
14 February in the immediately following year.
(2) The return must include details of:
(a) the amount of electricity generated by the person during the year;
and
(b) the amount of that electricity that was generated using eligible
renewable energy sources; and
(c) the number of certificates created by the person in respect of the
electricity generated.
(1) If a solar water heater is installed on or after 1 January 2001
and the solar water heater displaces non-renewable electricity, certificates may
be created after the heater is installed.
(2) Whether a solar water heater displaces non-renewable electricity is to
be determined in accordance with the regulations.
The number of certificates (each representing 1 MWh) that may be created
for a particular installation of a solar water heater is to be determined in
accordance with the regulations.
(1) The owner of the solar water heater at the time that it is installed
is entitled to create the certificate or certificates that relate to the solar
water heater.
(2) However, the owner may, by written notice, assign the right to create
the certificate or certificates to another person. If the owner does this, the
owner is not entitled to create the certificate or certificates but the person
to whom the right was assigned is entitled to create the certificate or
certificates.
(3) Despite subsections (1) and (2), a person who is not registered
may not create a certificate that relates to the solar water heater.
(1) A person is guilty of an offence if:
(a) the person creates a certificate; and
(b) the person is not entitled to create the certificate.
Maximum penalty: 1 penalty unit.
(2) Subsection (1) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility and Chapter 3 of the
Criminal Code contains general principles relating to
penalties.
Note 2: For strict liability, see section 6.1 of the
Criminal Code.
(3) A person is guilty of an offence if:
(a) the person creates a certificate; and
(b) the person is not entitled to create the certificate.
Maximum penalty: 5 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility and Chapter 3 of the
Criminal Code contains general principles relating to
penalties.
(4) To avoid doubt, a penalty may be imposed in respect of each
certificate in respect of which a person is guilty of an offence.
Example: An individual who commits an offence under
subsection (1) by creating 20 certificates that the individual was not
entitled to create would be subject to a maximum penalty of 20 penalty units. If
the offence were under subsection (3), the individual would be subject to a
maximum penalty of 100 units.
(1) Certificates are to be created in an electronic form approved in
writing by the Regulator.
(2) Each certificate is to contain:
(a) a unique identification code; and
(b) the electronic signature of the person who created the certificate;
and
(c) the date on which the electricity in relation to which the certificate
was created was generated; and
(d) the date on which the certificate was created.
(3) A certificate’s unique identification code is to consist of the
following in the following order:
(a) the registered person’s registration number;
(b) the power station’s identification code;
(c) the year;
(d) a number in an unbroken sequence, that is used for all certificates
issued in respect of electricity generated by the power station in that year,
that starts at one and has increments of one.
(1) A certificate is not valid until it has been registered by the
Regulator.
(2) The Regulator must be advised of the creation of a certificate by
electronic transmission in the manner determined, in writing, by the
Regulator.
(3) When the Regulator is notified that a certificate has been created,
the Regulator must determine whether the certificate is eligible for
registration.
(4) If the Regulator determines that a certificate is eligible for
registration, the Regulator must create an entry for the certificate in the
register of renewable energy certificates and record the person who created the
certificate as the owner of the certificate.
(5) If the Regulator determines that a certificate is not eligible for
registration, the Regulator must notify the person who created the
certificate.
Certificates that have been registered under section 26 may be
transferred to any person.
(1) The Regulator must be notified of each transfer of a
certificate.
(2) The notification must be by electronic transmission in the manner
determined, in writing, by the Regulator.
(3) When the Regulator is notified, the Regulator must alter the register
of certificates to show the transferee as the owner of the
certificate.
(1) Where a certificate is surrendered under section 44, the
certificate ceases to be valid.
(2) When a certificate ceases to be valid, the Regulator must alter the
entry relating to the certificate in the register of certificates to show that
the certificate is no longer valid.
(1) If a registered person has been convicted of an offence under
subsection 24(3), the Regulator may suspend the person’s registration for
such period (not exceeding 2 years) as the Regulator considers appropriate in
all of the circumstances.
(2) If a person whose registration has previously been suspended under
subsection (1) is convicted of another offence under subsection 24(3), the
Regulator may suspend the person’s registration for such period (including
permanently) as the Regulator considers appropriate in all of the
circumstances.
(1) There are 2 types of relevant acquisitions of
electricity. These are:
(a) a wholesale acquisition (see section 32); and
(b) a notional wholesale acquisition (see section 33).
(2) An acquisition is not a relevant acquisition if:
(a) the electricity was delivered on a grid that has a capacity that is
less than 100 MW and that is not, directly or indirectly, connected to a grid
that has a capacity of 100 MW or more; or
(b) the end user of the electricity generated the electricity and either
of the following conditions are satisfied:
(i) the point at which the electricity is generated is less than 1
kilometre from the point at which the electricity is used;
(ii) the electricity is transmitted or distributed between the point of
generation and the point of use and the line on which the electricity is
transmitted or distributed is used solely for the transmission or distribution
of electricity between those 2 points.
(3) The amount of electricity acquired under a relevant acquisition and
the capacity of a grid are to be determined in accordance with the
regulations.
(1) A wholesale acquisition is an acquisition of electricity
from:
(a) NEMMCO; or
(b) a person who did not acquire it from another person.
(2) To avoid doubt, subsection (1) does not apply where an end user
acquires electricity from a generator and subsection 33(2) applies to create a
notional wholesale acquisition in connection with that acquisition.
(1) There are 2 situations in which a notional wholesale
acquisition of electricity takes place.
(2) The first situation is where the end user of the electricity acquires
the electricity from the person who generated the electricity and the end user
is not registered under the National Electricity Code. In this situation, the
generator is taken to be 2 persons (the notional generator and the
notional wholesaler), and this Act applies as if the notional
wholesaler acquired the electricity from the notional generator at the time that
the end user acquired the electricity. That acquisition is a notional
wholesale acquisition.
(3) The second situation is where the end user of the electricity
generated the electricity and neither of the following conditions are
satisfied:
(a) the point at which the electricity is generated is less than 1
kilometre from the point at which the electricity is used;
(b) the electricity is transmitted or distributed between the point of
generation and the point of use and the line on which the electricity is
transmitted or distributed is used solely for the transmission or distribution
of electricity between those 2 points.
In this situation, the generator is taken to be 2 persons (the
notional generator and the notional wholesaler), and
this Act applies as if the notional wholesaler acquired the electricity from the
notional generator at the time that the electricity is used. That acquisition is
a notional wholesale acquisition.
Despite section 31, no acquisition of electricity by NEMMCO is a
relevant acquisition.
A person who, during a year, makes a relevant acquisition of electricity
is called a liable entity.
Note: Relevant acquisition is defined in
section 31.
(1) Subject to subsection (2), if a liable entity has a renewable
energy certificate shortfall for a year, renewable energy certificate
charge is payable in respect of the shortfall.
(2) No renewable energy certificate charge is payable by a liable entity
for a year if its renewable energy certificate shortfall for the year is less
than 10% of the liable entity’s required renewable energy for the year.
However, the renewable energy certificate shortfall becomes a carried
forward shortfall for the year.
(3) Renewable energy certificate charge imposed in respect of a liable
entity’s renewable energy certificate shortfall for a year is payable by
the liable entity.
The amount of renewable energy shortfall charge payable by a liable
entity is worked out using the formula:
where:
rate of charge is the rate of charge for the year as
specified under the Renewable Energy (Electricity) (Charge) Act
2000.
The following method statement shows how to work out a liable
entity’s renewable energy certificate shortfall for a year.
Method statement—working out the renewable energy certificate
shortfall
Step 1. Work out the total amount, in MWh, of electricity acquired
by the liable entity during the year under relevant acquisitions.
Step 2. Multiply the total electricity acquired by the renewable
power percentage for the year and round the result to the nearest MWh (rounding
0.5 upwards). Add to the result any carried forward shortfall from the previous
year or subtract any carried forward surplus for the previous year. The result
is the liable entity’s required renewable energy for the
year.
Step 3. Subtract the total value, in MWh, of renewable energy
certificates surrendered to the Regulator for that year by the liable person
from the required renewable energy for the year.
Result: If the result is greater than zero, the liable person has a
renewable energy certificate shortfall for the year equal to the
result.
If the result is zero, the liable person does not have a renewable energy
certificate shortfall for the year.
If the result is less than zero, the liable person has a carried
forward surplus for the year.
(1) The renewable power percentage for a year is the
percentage specified in the regulations. The regulation specifying a percentage
for a year must be made on or before 31 March in the year.
(2) If the regulations do not specify a percentage for a year, the
percentage for the year is:
(a) for the year commencing on 1 January 2001—0.24%;
and
(b) for any later year—the rate worked out using the
formula:
(3) Before the Governor-General makes a regulation under
subsection (1), the Minister must take into consideration:
(a) the required GWh of renewable source electricity for the year;
and
(b) the amount estimated as the amount of electricity that will be
acquired under relevant acquisitions during the year; and
(c) the amount by which the required GWhs of renewable source electricity
for all previous years has exceeded, or has been exceeded by, the amount of
renewable source electricity required under the scheme in those years.
(4) The amount of renewable source electricity required under the scheme
in a year is worked out using the formula:
(5) A failure to comply with subsection (3) does not affect the
validity of the regulations.
The required GWh of renewable source electricity for a year
is set out in of the following table:
|
Required GWh of renewable source electricity |
|
|---|---|
|
Year |
Required additional GWh |
|
2001 |
400 |
|
2002 |
1100 |
|
2003 |
1800 |
|
2004 |
2600 |
|
2005 |
3400 |
|
2006 |
4500 |
|
2007 |
5600 |
|
2008 |
6800 |
|
2009 |
8100 |
|
2010 and later years |
9500 |
If:
(a) a liable entity makes an arrangement; and
(b) as a result of the arrangement the liable entity’s renewable
energy certificate shortfall in a year is reduced; and
(c) in the Regulator’s opinion the arrangement was made solely or
principally for the purpose of avoiding payment of renewable energy shortfall
charge otherwise than in accordance with this Act;
the liable entity is liable to pay for the year an amount of renewable
energy shortfall charge equal to the amount that, in the Regulator’s
opinion, the liable entity would have been liable to pay if the arrangement had
not been made.
(1) The Commonwealth is not liable to pay renewable energy shortfall
charge (including additional renewable energy shortfall charge) that is payable
under this Act. However, it is the Parliament’s intention that the
Commonwealth should be notionally liable to pay renewable energy shortfall
charge (including additional renewable energy shortfall charge).
(2) The Minister for Finance may give such written directions as are
necessary or convenient for carrying out or giving effect to subsection (1)
and, in particular, may give directions in relation to the transfer of money
within an account, or between accounts, operated by the Commonwealth.
(3) Directions under subsection (2) have effect, and must be complied
with, despite any other Commonwealth law.
(4) In subsections (1) and (2):
Commonwealth includes:
(a) an Agency (within the meaning of the Financial Management and
Accountability Act 1997); and
(b) a Commonwealth authority (within the meaning of the Commonwealth
Authorities and Companies Act 1997);
that cannot be made liable to taxation by a Commonwealth law.
(1) This section cancels the effect of a provision of another Act that
would have the effect of exempting a person from liability to pay charge payable
under this Act.
(2) The cancellation does not apply if the provision of the other
Act:
(a) commences after this section commences; and
(b) refers specifically to charge payable under this Act.
(1) A liable entity who acquired electricity under a relevant acquisition
during a year must lodge an energy acquisition statement for the year on or
before:
(a) 14 February in the following year; or
(b) any later day allowed by the Regulator.
(2) The statement must set out:
(a) the name and postal address of the liable entity; and
(b) the amount of electricity acquired under relevant acquisitions during
the year; and
(c) the value, in MWh, of renewable energy certificates being surrendered
for that year; and
(d) any carried forward shortfall or carried forward surplus for the
previous year; and
(e) any carried forward surplus for the current year.
(3) The statement must:
(a) be in a form approved by the Regulator; and
(b) be lodged with the Regulator in accordance with the regulations;
and
(c) be signed by or on behalf of the liable entity making the
statement.
(4) The annual energy acquisition statement must be accompanied by details
of all renewable energy certificates being surrendered for that year. A
certificate cannot be specified unless the liable person is recorded in the
register of certificates as the owner of the certificates at the time that the
statement is lodged.
A certificate cannot be surrendered unless:
(a) the certificate is valid; and
(b) the certificate was created before the end of the year to which the
energy acquisition statement relates; and
(c) the liable person is recorded in the register of certificates as the
owner of the certificate at the time that the statement is lodged.
(1) A liable entity that has a renewable energy certificate shortfall for
a year must lodge a renewable energy shortfall statement for the year on or
before:
(a) 14 February in the following year; or
(b) any later day allowed by the Regulator.
(2) The statement must set out:
(a) the name and postal address of the liable entity; and
(b) the liable entity’s renewable energy certificate shortfall for
the year; and
(c) any carried forward shortfall or carried forward surplus for the
previous year; and
(d) any carried forward shortfall for the year; and
(e) the amount of the renewable energy certificate charge for the
year.
(3) The statement must:
(a) be in a form approved by the Regulator; and
(b) be lodged with the Regulator in accordance with the regulations;
and
(c) be signed by or on behalf of the liable entity making the
statement.
If:
(a) a liable entity lodges a renewable energy shortfall statement for a
year; and
(b) a renewable energy shortfall statement has not previously been lodged,
and an assessment has not previously been made, for the year in relation to the
liable entity;
then:
(c) the statement has effect as an assessment of the liable entity’s
renewable energy certificate shortfall for the year and of the renewable energy
certificate charge payable on the shortfall; and
(d) the assessment is taken to have been made on 14 February in the
following year or the day on which the statement was lodged, whichever is the
later; and
(e) the renewable energy certificate shortfall specified in the statement
is to be taken to be the amount of renewable energy certificate charge payable
by the liable entity for the year; and
(f) the statement has effect as if it were a notice of assessment signed
by the Regulator and given to the liable entity on the day on which the
assessment is taken to have been made.
(1) If a liable entity has lodged an energy acquisition statement for a
year but:
(a) the liable entity has not lodged a renewable energy shortfall
statement for the year; and
(b) the Regulator is of the opinion that the liable entity is liable to
pay renewable energy certificate charge for the year;
the Regulator may make an assessment of the liable entity’s renewable
energy certificate shortfall for the year, taking into account any certificates
surrendered, and of the renewable energy certificate charge payable on the
shortfall.
(2) If:
(a) a liable entity has not lodged a renewable energy shortfall statement
for a year; and
(b) the liable entity has also not lodged an energy acquisition statement
for the year; and
(c) the Regulator is of the opinion that the liable entity is liable to
pay renewable energy certificate charge for the year;
the Regulator may make an assessment of the liable entity’s renewable
energy certificate shortfall for the year, assuming that no certificates have
been surrendered, and of the renewable energy certificate charge payable on the
shortfall.
(3) For the purposes of making an assessment under subsection (1) or
(2), the renewable energy certificate shortfall is taken to be the amount that,
in the Regulator’s opinion, might reasonably be expected to be the
shortfall.
(4) Renewable energy certificate charge in relation to an assessment for a
year made under this section is taken to have become payable on 14 February
in the following year.
(5) An assessment under this section may not be made until after
14 February in the following year.
(1) The Regulator may, subject to this section, at any time amend any
assessment by making any alterations or additions that the Regulator thinks
necessary, whether or not renewable energy shortfall charge has been paid in
relation to the assessment.
(2) Subject to this section, if there has been an avoidance of renewable
energy shortfall charge, the Regulator may:
(a) if the Regulator is of the opinion that the avoidance of the charge is
due to fraud or evasion—at any time; or
(b) in any other case—within 4 years from the day on which the
assessment is made;
amend the assessment by making any alterations or additions that the
Regulator thinks necessary to correct the assessment.
(3) An amendment effecting a reduction in a liable entity’s
liability under an assessment is not effective unless it is made within 4 years
from the day on which the assessment was made.
(4) If an assessment has, under this section, been amended in any
particular, the Regulator may, within 4 years from the day on which renewable
energy shortfall charge became payable under the amended assessment, make, in or
in relation to the particular, any further amendment in the assessment that, in
the Regulator’s opinion, is necessary to effect such reduction in the
liable entity’s liability under the assessment as is just.
(5) If:
(a) a liable entity applies for an amendment of the liable entity’s
assessment within 4 years from the day that renewable energy shortfall charge
became payable under the assessment; and
(b) within that period, the liable entity lodges all information the
Regulator needs to decide the application;
the Regulator may amend the assessment when considering the application,
even if that period has elapsed.
(6) Nothing in this section prevents the amendment of an assessment to
give effect to:
(a) the decision on any review or appeal; or
(b) its amendment by reduction of any particular following the liable
entity’s objection or pending any review or appeal.
(7) Renewable energy shortfall charge under an amended assessment is taken
to have become payable:
(a) if the amendment is wholly or partly as a result of an error by the
Regulator—on the day on which the amended assessment is made; or
(b) in any other case—on the day on which charge under the original
assessment became payable.
(1) If, because an assessment is amended, a person’s liability to
renewable energy shortfall charge is reduced:
(a) the amount by which the charge is reduced is taken, for the purposes
of section 70, never to have been payable; and
(b) the Regulator must:
(i) refund any overpaid amount; or
(ii) apply any overpaid amount against the person’s liability (if
any) to the Commonwealth and refund any part of the amount that is not so
applied.
(2) In subsection (1):
overpaid amount includes any overpaid amount of additional
renewable energy shortfall charge under section 70 or
Part 9.
Except as otherwise expressly provided by this Act, an amended assessment
is taken to be an assessment for all the purposes of this Act.
As soon as practicable after an assessment is made under section 48
or is amended under section 49, the Regulator must give written notice of
the assessment or amendment (as the case may be) to the person liable to pay the
renewable energy shortfall charge.
The validity of an assessment is not affected because any provision of
this Act has not been complied with.
A liable entity who is dissatisfied with an assessment may object in the
manner set out in this Division.
A person making an objection must:
(a) make it in writing; and
(b) lodge it with the Regulator within 60 days after the assessment is
made; and
(c) state in it, fully and in detail, the grounds that the person relies
on.
If the objection is made against an amended assessment, then a liable
entity’s right to object against the amended assessment is limited to a
right to object against alterations or additions made as part of the amendment
of the assessment.
(1) If the 60 days specified in paragraph 55(b) have passed, the liable
entity may nevertheless lodge the objection with the Regulator together with a
written request asking the Regulator to deal with the objection as if it had
been lodged within the 60 days.
(2) The request must state fully and in detail the circumstances
concerning, and the reasons for, the person’s failure to lodge the
objection with the Regulator within the 60 days.
(3) After considering the request, the Regulator must decide whether to
agree to it or refuse it.
(4) The Regulator must give the person written notice of the
Regulator’s decision.
(5) If the Regulator decides to agree to the request, then, for the
purposes of this Part, the objection is taken to have been lodged with the
Regulator within the 60 days.
(6) If the Regulator decides to refuse the request, the person may apply
to the Administrative Appeals Tribunal for review of the decision.
(1) If the objection has been lodged with the Regulator within the 60
days, the Regulator must decide whether to:
(a) allow it, wholly or in part; or
(b) disallow it.
(2) Such a decision is in this Part called an objection
decision.
(3) The Regulator must cause to be served on the person written notice of
the Regulator’s objection decision.
(1) This section applies if the objection has been lodged with the
Regulator within the 60 days and the Regulator has not made an objection
decision by whichever is the later of the following times:
(a) the end of the period (the original 60-day period) of 60
days after whichever is the later of the following days:
(i) the day on which the objection is lodged with the Regulator;
(ii) if the Regulator decides under section 57 to agree to a request
in relation to the objection—the day on which the decision is
made;
(b) if the Regulator, by written notice served on the liable entity within
the original 60-day period, requires the liable entity to give information
relating to the objection—the end of the period of 60 days after the
Regulator receives that information.
(2) The liable entity may give the Regulator a written notice requiring
the Regulator to make an objection decision.
(3) If the Regulator has not made an objection decision by the end of the
period of 60 days after being given the notice, then, at the end of that period,
the Regulator is taken to have made a decision under subsection 58(1) to
disallow the objection.
If the liable entity is dissatisfied with the Regulator’s objection
decision, the liable entity may either:
(a) apply to the Administrative Appeals Tribunal for review of the
decision; or
(b) appeal to the Federal Court against the decision.
Note: Time limits for making applications to the
Administrative Appeals Tribunal, and matters related to procedures before that
Tribunal are set out in the Administrative Appeals Tribunal Act
1975.
In proceedings under this Part on a review before the Administrative
Appeals Tribunal or on appeal to the Federal Court:
(a) the liable entity is, unless the Administrative Appeals Tribunal or
the Federal Court otherwise orders, limited to the grounds stated in the
objection; and
(b) the burden of proving that a prescribed decision is incorrect, or that
an assessment is excessive, lies on the liable entity.
An appeal to the Federal Court against an objection decision must be
lodged with the Court within 60 days after the person appealing is served with
notice of the decision.
Where the Federal Court hears an appeal against an objection decision
under section 60, the Court may make such order in relation to the decision
as it thinks fit, including an order confirming or varying the
decision.
(1) When the order of the Federal Court in relation to the decision
becomes final, the Regulator must, within 60 days, take such action, including
amending any assessment or determination concerned, as is necessary to give
effect to the decision.
(2) For the purposes of subsection (1):
(a) if the order is made by the Federal Court constituted by a single
Judge and no appeal is lodged against the order within the period for lodging an
appeal—the order becomes final at the end of the period; and
(b) if the order is made by the Full Court of the Federal Court and no
application for special leave to appeal to the High Court against the order is
made within the period of 30 days after the order is made—the order
becomes final at the end of the period.
The fact that an appeal is pending in relation to a decision does not in
the meantime interfere with, or affect, the decision and any renewable energy
shortfall charge, additional renewable energy shortfall charge or other amount
may be recovered as if no appeal were pending.
(1) An affected person in relation to a reviewable decision may request
that the Regulator reconsider the decision. The following table sets out the
reviewable decisions and, for each decision, sets out the provision under which
it is made and the affected person in relation to it.
|
Table of reviewable decisions |
|||
|---|---|---|---|
|
Item |
For a decision ... |
made under ... |
the affected person is ... |
|
1 |
to refuse to register a person |
section 11 |
the person. |
|
2 |
in relation to an application for accreditation of a power
station |
section 14 |
the applicant for accreditation. |
|
3 |
to refuse to accredit a power station |
section 15 |
the applicant for accreditation. |
|
4 |
not to register a certificate |
section 26 |
the person who created the certificate. |
|
5 |
to suspend a person’s registration |
section 30 |
the registered person. |
|
6 |
assessing additional renewable shortfall charge |
section 102 |
the liable entity that is liable to pay the additional renewable energy
shortfall charge. |
|
7 |
not to remit, or to remit only a part of, additional renewable energy
shortfall charge |
section 103 |
the liable entity that is liable to pay the additional renewable energy
shortfall charge. |
(2) The request must be:
(a) in writing; and
(b) given to the Regulator within 60 days of the making of the
decision.
(3) The Regulator must reconsider the decision and confirm, vary or set
aside the decision.
Note: Section 27A of the Administrative Appeals
Tribunal Act 1975 requires the person to be notified of the person’s
review rights.
(4) The Regulator is taken to have confirmed the decision under
subsection (3) if the Regulator does not give written notice of the
Regulator’s decision under that subsection within 60 days of the
request.
(5) Applications may be made to the Administrative Appeals Tribunal for
review of a decision of the Regulator under subsection (3) to confirm, vary
or set aside the decision.
Renewable energy shortfall charge for a year is payable:
(a) if, on or before 14 February in the following year, the liable
entity lodges a renewable energy shortfall statement for that year—on that
day; or
(b) if, after that day, the liable entity lodges a renewable energy
shortfall statement for that year—on the day on which the statement is
lodged.
Additional renewable energy shortfall charge under Part 9 becomes
payable on the day specified for the purpose in the notice of assessment of the
additional charge.
The Regulator may, in such circumstances as the Regulator thinks fit,
extend the time for payment of an amount of a renewable energy shortfall charge
related liability for such period as the Regulator determines, and, if the
Regulator does so, the charge is payable accordingly.
(1) If any amount of a renewable energy shortfall charge related liability
which a liable entity is liable to pay remains unpaid after the time by which it
is due to be paid, the liable entity is liable to pay additional renewable
energy shortfall charge on the unpaid amount.
(2) The liable entity is liable to pay the additional renewable energy
shortfall charge for each day in the period that:
(a) started at the beginning of the day by which the renewable energy
shortfall charge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day,
any of the following remains unpaid:
(i) the renewable energy shortfall charge;
(ii) additional renewable energy shortfall charge on any of the renewable
energy shortfall charge.
(3) The amount of the additional renewable energy shortfall interest
charge for each day is worked out by multiplying the unpaid amount by the
general interest charge rate for the day.
(1) A renewable energy shortfall charge related liability that is
payable:
(a) is a debt due to the Commonwealth; and
(b) payable to the Regulator in the manner and at the place
prescribed.
(2) The Regulator may sue in his or her official name in a court of
competent jurisdiction to recover an amount of a renewable energy shortfall
charge related liability that remains unpaid after it has become due and
payable.
(1) This section applies if a document needs to be served on a person in
respect of a proceeding to recover an amount of a renewable energy shortfall
related liability, and the Regulator, after making reasonable inquiries, is
satisfied that:
(a) the person is absent from Australia and does not have any agent in
Australia on whom the document can be served; or
(b) the person cannot be found.
(2) The Regulator may, without the court’s leave, serve the document
by posting it, or a sealed copy of it, in a letter addressed to the person at
any Australian address of the person (including the person’s Australian
place of business or residence) that is last known to the
Regulator.
Amount recoverable under this Subdivision
(1) This Subdivision applies if any of the following amounts (the
debt) is payable to the Commonwealth by a person (the
debtor) (whether or not the debt has become due and
payable):
(a) an amount of a renewable energy shortfall charge related
liability;
(b) a judgment debt for a renewable energy shortfall charge related
liability;
(c) costs for such a judgment debt;
(d) an amount that a court has ordered the debtor to pay to the Regulator
following the debtor’s conviction for an offence against this
Act.
Regulator may give notice to a person
(2) The Regulator may give a written notice to a person (the third
party) under this section if the third party owes or may later owe money
to the debtor.
Third party regarded as owing money in these circumstances
(3) The third party is taken to owe money (the available
money) to the debtor if the third party:
(a) is a person by whom the money is due or accruing to the debtor;
or
(b) holds the money for, or on account of, the debtor; or
(c) holds the money on account of some other person for payment to the
debtor; or
(d) has authority from some other person to pay the money to the
debtor.
The third party is so taken to owe the money to the debtor even
if:
(e) the money is not due, or is not so held, or payable under the
authority, unless a condition is fulfilled; and
(f) the condition has not been fulfilled.
How much is payable under the notice
(4) A notice under this section must:
(a) require the third party to pay to the Regulator the lesser of, or a
specified amount not exceeding the lesser of:
(i) the debt; or
(ii) the available money; or
(b) if there will be amounts of the available money from time to
time—require the third party to pay to the Regulator a specified amount,
or a specified percentage, of each amount of the available money, until the debt
is satisfied.
When amount must be paid
(5) The notice must require the third party to pay an amount under
paragraph (4)(a), or each amount under paragraph (4)(b):
(a) immediately after; or
(b) at or within a specified time after;
the amount of the available money concerned becomes an amount owing to the
debtor.
Debtor must be notified
(6) The Regulator must send a copy of the notice to the debtor.
Setting-off amounts
(7) If a person other than the third party has paid an amount to the
Regulator that satisfies all or part of the debt:
(a) the Regulator must notify the third party of that fact; and
(b) any amount that the third party is required to pay under the notice is
reduced by the amount so paid.
If the third party is the Commonwealth, a State or a Territory, the
Regulator may give the notice to a person who:
(a) is employed by the Commonwealth, or by the State or Territory (as
appropriate); and
(b) has the duty of disbursing public money under a law of the
Commonwealth, or of the State or Territory (as appropriate).
An amount that the third party pays to the Regulator under this
Subdivision is taken to have been authorised by:
(a) the debtor; and
(b) any other person who is entitled to all or a part of the
amount;
and the third party is indemnified for the payment.
(1) The third party must not fail to comply with the Regulator’s
notice.
Penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
(2) The court may, in addition to imposing a penalty on a person convicted
of an offence against subsection (1) in relation to failing to pay an
amount under the notice, order the person to pay to the Regulator an amount not
exceeding that amount.
(1) This Subdivision applies to a person who becomes a liquidator of a
company that is, or has been, a liable entity.
(2) Within 14 days after becoming liquidator, the liquidator must give
written notice of that fact to the Regulator.
(3) The Regulator must, as soon as practicable, notify the liquidator of
the amount (the notified amount) that the Regulator considers is
enough to discharge any outstanding renewable energy shortfall charge related
liabilities that the company has when the notice is given.
(4) The liquidator must not, without the Regulator’s permission,
part with any of the company’s assets before receiving the
Regulator’s notice.
(5) However, subsection (4) does not prevent the liquidator from
parting with the company’s assets to pay debts of the company not covered
by either of the following paragraphs:
(a) the outstanding renewable energy shortfall charge related
liabilities;
(b) any debts of the company which:
(i) are unsecured; and
(ii) are not required, by an Australian law, to be paid in priority to
some or all of the other debts of the company.
(6) After receiving the Regulator’s notice, the liquidator must set
aside, out of the assets available for paying amounts covered by
paragraph (5)(a) or (b) (the ordinary debts), assets with a
value calculated using the formula:
where:
amount of remaining ordinary debts means the sum of the
company’s ordinary debts other than the outstanding renewable energy
shortfall charge related liabilities.
(7) The liquidator must, in his or her capacity as liquidator, discharge
the outstanding renewable energy shortfall charge related liabilities, to the
extent of the value of the assets that the liquidator is required to set
aside.
(8) The liquidator is personally liable to discharge the liabilities, to
the extent of that value, if the liquidator contravenes this section.
The liquidator must not fail to comply with subsection 77(2), (4), (6) or
(7).
Penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
If there are 2 or more persons who become liquidators of the company, the
obligations and liabilities under this Subdivision:
(a) apply to all the liquidators; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of a
liquidator arising elsewhere.
(1) This Subdivision applies to a person (the receiver) who,
in the capacity of receiver, or of receiver and manager, takes possession of a
company’s assets for the company’s debenture holders.
(2) Within 14 days after taking possession of the assets, the receiver
must give written notice of that fact to the Regulator.
(3) The Regulator must, as soon as practicable, notify the receiver of the
amount (the notified amount) that the Regulator considers is
enough to discharge any outstanding renewable energy shortfall charge related
liabilities that the company has when the notice is given.
(4) The receiver must not, without the Regulator’s permission, part
with any of the company’s assets before receiving the Regulator’s
notice.
(5) However, subsection (4) does not prevent the receiver from
parting with the company’s assets to pay debts of the company not covered
by either of the following paragraphs:
(a) the outstanding renewable energy shortfall charge related
liabilities;
(b) any debts of the company which:
(i) are unsecured; and
(ii) are not required, by an Australian law, to be paid in priority to
some or all of the other debts of the company.
(6) After receiving the Regulator’s notice, the receiver must set
aside, out of the assets available for paying amounts covered by
paragraph (5)(a) or (b) (the ordinary debts), assets with a
value calculated using the formula:
where:
amount of remaining ordinary debts means the sum of the
company’s ordinary debts other than the outstanding renewable energy
shortfall charge related liabilities.
(7) The receiver must, in his or her capacity as receiver, or as receiver
and manager, discharge the outstanding renewable energy shortfall charge related
liabilities, to the extent of the value of the assets that the receiver is
required to set aside.
(8) The receiver is personally liable to discharge the liabilities, to the
extent of that value, if the receiver contravenes this section.
The receiver must not fail to comply with subsection 81(2), (4), (6) or
(7).
Maximum penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
If 2 or more persons (the receivers) take possession of a
company’s assets, for the company’s debenture holders, in the
capacity of receiver, or of receiver and manager, the obligations and
liabilities under this Subdivision apply to:
(a) all the receivers; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of the
receiver or receivers arising elsewhere.
(1) This Subdivision applies to an agent whose principal:
(a) is not an Australian resident; and
(b) has instructed the agent to wind up so much of the principal’s
business as is carried on in Australia.
(2) Within 14 days after receiving the instructions, the agent must give
written notice of that fact to the Regulator.
(3) The Regulator must, as soon as practicable after receiving the notice,
notify the agent of the amount (the notified amount) that the
Regulator considers is enough to discharge any outstanding renewable energy
shortfall charge related liabilities that the principal has when the notice is
given.
(4) Before receiving the Regulator’s notice, the agent must not,
without the Regulator’s permission, part with any of the principal’s
assets that are available for discharging the outstanding renewable energy
shortfall charge related liabilities.
(5) After receiving the notice, the agent must set aside:
(a) out of the assets available for discharging the outstanding renewable
energy shortfall charge related liabilities, assets to the value of the notified
amount; or
(b) all of the assets so available, if their value is less than the
notified amount.
(6) The agent must, in that capacity, discharge the outstanding renewable
energy shortfall charge related liabilities, to the extent of the value of the
assets that the agent is required to set aside.
(7) The agent is personally liable to discharge the liabilities, to the
extent of that value, if the agent contravenes this section.
A person must not fail to comply with subsection 85(2), (4), (5) or
(6).
Maximum penalty: 30 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of penalty units.
If 2 or more agents are jointly instructed by the principal to wind up
the business, the obligations and liabilities under this Subdivision:
(a) apply to all the agents; but
(b) may be discharged by any of them.
This Subdivision does not reduce any obligation or liability of the agent
or agents arising elsewhere.
(1) This section applies if:
(a) a person has an outstanding renewable energy shortfall charge related
liability when the person dies; and
(b) either of the following is granted after the death:
(i) probate of the person’s will;
(ii) letters of administration of the person’s estate.
(2) The Regulator may, in respect of the liability, deal with the trustee
of the deceased person’s estate as if:
(a) the deceased person were still alive; and
(b) the trustee were the deceased person.
(3) Without limiting subsection (2), the trustee must:
(a) provide any returns and other information that the deceased person was
liable to provide, or would have been liable to provide if he or she were still
alive; and
(b) provide any additional returns or other information relating to the
liability that the Regulator requires; and
(c) in the trustee’s representative capacity, discharge the
liability and any penalty imposed in respect of the liability under this Act for
which the deceased person would be liable if he or she were still
alive.
(4) If:
(a) the amount of the liability requires an assessment under this Act but
the assessment has not been made; and
(b) the trustee fails to provide a return or other information in relation
to assessing that amount as required by the Regulator;
the Regulator may assess that amount. If the Regulator does so, the
assessment has the same effect as if it were made under this Act.
(5) A trustee who is dissatisfied with an assessment under
subsection (4) may object in the manner set out in Division 1 of
Part 6.
(6) Division 1 of Part 6 applies in relation to the objection as
if the trustee were the deceased person.
(1) This section applies if neither of the following is granted within 6
months after a person’s death:
(a) probate of the person’s will;
(b) letters of administration of the person’s estate.
(2) The Regulator may determine the total amount of outstanding renewable
energy shortfall charge related liabilities that the person had at the time of
death.
(3) The Regulator must publish notice of the determination twice in a
daily newspaper circulating in the State or Territory in which the person
resided at the time of death.
(4) A notice of the determination is conclusive evidence of the
outstanding renewable energy shortfall charge related liabilities, unless the
determination is amended.
(5) A person who is dissatisfied with the determination may object in the
manner set out in Division 1 of Part 6 if the person:
(a) claims an interest in the estate; or
(b) is granted probate of the deceased person’s will or letters of
administration of the estate.
(6) Division 1 of Part 6 applies in relation to the objection as
if the person making it were the deceased person.
This Division deals with a person’s right to recover from another
person an amount paid in discharge of a renewable energy shortfall charge
related liability if:
• the person has paid the amount for or on behalf of the other
person; or
• the persons are jointly liable to pay the amount.
A person who has paid an amount of a renewable energy shortfall charge
related liability for or on behalf of another person may:
(a) recover that amount from the other person as a debt (together with the
costs of recovery) in a court of competent jurisdiction; or
(b) retain or deduct the amount out of money held by the person that
belongs to, or is payable to, the other person.
(1) If 2 or more persons are jointly liable to pay an amount of a
renewable energy shortfall charge related liability, they are each liable for
the whole of the amount.
(2) If one of the persons has paid an amount of the liability, the person
may recover in a court of competent jurisdiction, as a debt, from another of
those persons:
(a) an amount equal to so much of the amount paid; and
(b) an amount equal to so much of the costs of recovery under this
section;
as the court considers just and equitable.
(1) The Regulator may, in writing, authorise a person (the
authorised person) to recover:
(a) the total amount of the outstanding renewable energy shortfall charge
related liabilities of a deceased person as determined under section 90
(about unadministered estates); and
(b) any reasonable costs incurred by the authorised person in recovering
that amount;
by seizing and disposing of any property of the deceased person.
(2) The authorised person may seize and dispose of the property as
prescribed by the regulations.
(1) This Part applies where:
(a) a liable entity has paid renewable energy shortfall charge for a year
(the charge year); and
(b) during the allowable refund period, the liable entity surrenders
certificates under this section.
(2) The allowable refund period starts immediately after the
liable entity lodges the liable entity’s return for the year after the
charge year and ends 3 years after the liable entity paid the renewable energy
shortfall charge.
(3) The liable entity must specify the charge year in respect of which the
certificate is being surrendered.
(1) The certificate value for a certificate surrendered
under section 95 is equal to the renewable energy shortfall charge payable
in respect of 1 MWh in the charge year specified under subsection
95(3).
(2) The total of the certificate values of certificates surrendered by a
liable entity under section 95 in respect of a year must not exceed the
amount of renewable energy shortfall charge for that year.
A liable entity may only surrender certificates under section 95 if,
in the year immediately prior to the year in which the certificates are to be
surrendered, the liable entity did not have a renewable energy certificate
shortfall.
(1) If a liable entity surrenders certificates under section 95, the
Regulator must pay the liable entity the amount worked out using the
formula:
where:
administration fee is the amount worked out under the
regulations.
(2) The total of the certificate values for certificates surrendered by a
liable entity under section 95 in respect of a year must not exceed the
amount of renewable energy shortfall charge for that year.
(1) A liable entity, other than a government body, is liable to pay, by
way of penalty, additional renewable energy shortfall charge if the liable
entity refuses or fails to provide, when and as required under this
Act:
(a) an energy acquisition statement; or
(b) a renewable energy shortfall statement; or
(c) information relevant to assessing the liable entity’s liability
to pay renewable energy shortfall charge for a year.
(2) A liable entity is liable to pay, by way of penalty, additional
renewable energy shortfall charge if:
(a) the liable entity is liable to pay renewable energy shortfall charge
in relation to a year; and
(b) the liable entity fails to keep a record in relation to the year
containing details of the basis of calculation of the following amounts that
were specified in the liable entity’s energy acquisition statement for the
year:
(i) the amount of electricity acquired under relevant acquisitions during
the year; and
(ii) the value, in MWh, of renewable energy certificates being surrendered
for that year; and
(iii) any carried forward shortfall or carried forward surplus for the
previous year; and
(iv) any carried forward surplus for the current year.
(3) A liable entity is liable to pay, by way of penalty, additional
renewable energy shortfall charge if:
(a) the liable entity is liable to pay renewable energy shortfall charge
in relation to a year; and
(b) the liable entity refuses or fails to produce to the Regulator, when
and as required by the Regulator under this Act, a document containing details
of the basis of calculation of the amounts referred to in paragraph (2)(a)
that were specified in an energy acquisition statement.
(4) The additional renewable energy shortfall charge payable under
subsection (1), (2) or (3) is equal to double the amount of renewable
energy shortfall charge payable by the liable entity for the year.
(1) If:
(a) a liable entity other than a government body:
(i) makes a statement that is false or misleading in a material particular
to a person for a purpose connected with this Act; or
(ii) omits from a statement made to a person for a purpose connected with
this Act anything without which the statement is misleading in a material
particular; and
(b) the renewable energy shortfall charge properly payable by the liable
entity exceeds the renewable energy shortfall charge that would have been
payable by the liable entity if it were assessed on the basis that the statement
were not false or misleading;
the liable entity is liable to pay, by way of penalty, additional renewable
energy shortfall charge equal to double the amount of the excess referred to in
paragraph (b).
(2) A reference in this section to a statement made to a person for a
purpose connected with this Act is a reference to a statement made orally, in
writing, in a data processing device or in any other form and, for example,
includes a statement:
(a) made in an objection, statement or other document lodged with, given
to or prepared for the person; and
(b) made in answer to a question asked by the person; and
(c) made in any information provided to the person.
If, under section 41, a liable entity is liable to pay an amount of
renewable energy shortfall charge (the amount payable) that is
greater than the amount that would have been payable if section 41 had not
applied to the liable entity (the notional amount), the liable
entity is also liable to pay, by way of penalty, additional renewable energy
shortfall charge worked out using the formula:
(1) The Regulator must make an assessment of the additional renewable
energy shortfall charge payable by a liable entity under this Part and must, as
soon as practicable after the assessment is made, give written notice of the
assessment to the liable entity.
(2) Nothing in this Act is taken to prevent a notice from being
incorporated in a notice of any other assessment made in relation to the liable
entity under this Act.
The Regulator may remit all or part of the additional renewable energy
shortfall charge payable by a liable entity under this Part, but, for the
purposes of applying subsection 33(1) of the Acts Interpretation Act 1901
to the power of remission conferred by this section, nothing in this Act is
taken to prevent the exercise of the power at a time before an assessment is
made of the additional renewable energy shortfall charge.
The Regulator has the general administration of this Act.
After the end of each year, the Regulator must give the Minister a report
on the working of this Act during the year for presentation to the
Parliament.
This Part provides a regime for the audit of the affairs of registered
persons and liable entities in so far as they relate to this Act.
Division 2 provides for the appointment of authorised officers to
undertake audit functions and for the issue of identification for such
persons.
Division 3 sets out the powers of authorised officers and
Division 4 sets out the obligations imposed on authorised officers in the
exercise of those powers.
Division 5 deals with an occupier’s rights and responsibilities
in circumstances where an authorised officer seeks to exercise audit
powers.
Division 6 deals with the procedure for obtaining, and the nature of,
monitoring warrants.
(1) The Regulator may, in writing, appoint an officer or employee of the
Office of the Renewable Energy Regulator to be an authorised officer for the
purposes of this Part.
(2) The Regulator is not to appoint a person as an authorised officer
unless the Regulator is satisfied that the person is of sufficient maturity, and
has had sufficient training, to properly exercise the powers of an authorised
officer.
(3) In exercising powers or performing functions as an authorised officer,
an authorised officer must comply with any directions of the
Regulator.
(1) The Regulator must issue an identity card to an authorised officer in
the form prescribed by the regulations. The identity card must contain a recent
photograph of the authorised officer.
(2) An authorised officer must carry the identity card at all times when
exercising powers or performing functions as an authorised officer.
A person is guilty of an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an authorised officer; and
(c) the person does not, immediately after so ceasing, return the identity
card to the Regulator.
Maximum penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) For the purposes of substantiating information provided under this Act
or of determining whether this Act has been complied with, an authorised officer
may:
(a) enter any premises at any reasonable time of the day; and
(b) exercise the monitoring powers set out in section 111.
(2) An authorised officer is not authorised to enter premises under
subsection (1) unless:
(a) the premises are business premises, the occupier of the premises has
consented to the entry and the officer has shown his or her identity card if
required by the occupier; or
(b) the entry is made under a monitoring warrant.
(3) If an authorised officer is on the premises with the consent of the
occupier, the authorised officer must leave the premises if the occupier asks
the authorised officer to do so.
(1) For the purposes of this Part, the following are the monitoring powers
that an authorised officer may exercise in relation to premises under
section 110:
(a) the power to search the premises for any thing on the premises that
may relate to the creation or transfer of certificates or relevant acquisitions
of electricity;
(b) the power to examine any activity conducted on the premises that may
relate to information provided for the purposes of this Act;
(c) the power to examine any thing on the premises that may relate to
information provided for the purposes of this Act;
(d) the power to take photographs or make video or audio recordings or
sketches on the premises of any such activity or thing;
(e) the power to inspect any document on the premises that may relate to
information provided for the purposes of this Act;
(f) the power to take extracts from, or make copies of, any such
document;
(g) the power to take onto the premises such equipment and materials as
the authorised officer requires for the purpose of exercising powers in relation
to the premises;
(h) the power to secure a thing that:
(i) is found during the exercise of monitoring powers on the premises;
and
(ii) an authorised officer believes on reasonable grounds affords evidence
of the commission of an offence against this Act or the Crimes Act 1914;
and
(iii) that the authorised officer believes on reasonable grounds would be
lost, destroyed or tampered with before a warrant can be obtained;
until a warrant is obtained to seize the thing;
(i) the powers in subsections (2) and (3).
(2) For the purposes of this Part, monitoring powers include
the power to operate equipment at premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to assessing the correctness of
information provided under this Act.
(3) For the purposes of this Part, monitoring powers include
the following powers in relation to information described in subsection (2)
found in the exercise of the power under that subsection:
(a) the power to operate facilities at the premises to put the information
in documentary form and copy the documents so produced;
(b) the power to operate facilities at the premises to transfer the
information to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is at the premises and the use of which for the purpose has been
agreed in writing by the occupier of the premises;
(c) the power to remove from the premises a disk, tape or other storage
device to which the information has been transferred in exercise of the power
under paragraph (b).
Requesting
(1) If the authorised officer was only authorised to enter premises
because the occupier of the premises consented to the entry—the authorised
officer may request the occupier to:
(a) answer any questions related to the creation or transfer of
certificates, relevant acquisitions of electricity or the provision of
information under this Act that are put by the authorised officer; and
(b) produce any document requested by the authorised officer that is so
related.
Requiring
(2) If the authorised officer was authorised to enter the premises by a
monitoring warrant—the authorised officer has power to require any person
in or on the premises to:
(a) answer any questions related to the creation or transfer of
certificates, relevant acquisitions of electricity or the provision of
information under this Act that are put by the authorised officer; and
(b) produce any document requested by the authorised officer that is so
related.
(1) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under subsection 112(2).
Maximum penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) A person is excused from complying with a requirement of subsection
112(2) if the answer to the question or the production of the document might
tend to incriminate the person or expose the person to a penalty.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2), see subsection 13.3(3) of the Criminal
Code.
A person is guilty of an offence if:
(a) the person gives evidence to another person; and
(b) the person does so knowing that the evidence is false or misleading in
a material particular; and
(c) the evidence is given under section 112.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility and Chapter 3 of the
Criminal Code contains general principles relating to
penalties.
(1) A person is guilty of an offence if:
(a) the person produces a document to another person; and
(b) the person does so knowing that the document is false or misleading in
a material particular; and
(c) the document is produced in compliance or purported compliance with
section 112.
Maximum penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility and Chapter 3 of the
Criminal Code contains general principles relating to
penalties.
(2) Subsection (1) does not apply to a person who produces a document
if the document is accompanied by a written statement signed by the person or,
in the case of a body corporate, by a competent officer of the body
corporate:
(a) stating that the document is, to the knowledge of the first-mentioned
person, false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is, to the knowledge of the first-mentioned person, false or
misleading.
An authorised officer is not entitled to exercise any powers under this
Part in relation to premises if:
(a) the occupier of the premises requires the authorised officer to
produce his or her identity card for inspection by the occupier; and
(b) the authorised officer fails to comply with the requirement.
(1) Before obtaining the consent of a person for the purposes of paragraph
110(2)(a), the authorised officer must inform the person that he or she may
refuse consent.
(2) An entry of an authorised officer by virtue of the consent of a person
is not lawful unless the person voluntarily consented to the entry.
An authorised officer executing a monitoring warrant must, before
entering premises under the warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(1) If a monitoring warrant is being executed and the occupier of the
premises in respect of which it is being executed or another person who
apparently represents the occupier is present at the premises, the authorised
officer must make available to that person a copy of the warrant.
(2) The authorised officer must identify himself or herself to that
person.
(3) The copy of the warrant referred to in subsection (1) need not
include the signature of the magistrate who issued the warrant.
Note: Monitoring warrants are issued under
section 125.
(1) An authorised officer or a person assisting that officer may operate
electronic equipment already at premises in order to exercise monitoring powers
if he or she believes, on reasonable grounds, that the operation of the
equipment can be carried out without damage to the equipment.
(2) If the authorised officer or a person assisting that officer believes,
on reasonable grounds, that:
(a) there is on the premises material relating to information supplied
under this Act that may be accessible by operating electronic equipment on the
premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material
may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard, or otherwise.
(3) The authorised officer or a person assisting that officer must give
notice to the occupier of the premises of his or her intention to secure
equipment and of the fact that the equipment may be secured for up to 24
hours.
(4) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever first happens.
(5) If an authorised officer or a person assisting that officer believes,
on reasonable grounds, that the expert assistance will not be available within
24 hours, he or she may apply to a magistrate for an extension of the
period.
(6) The authorised officer or a person assisting that officer must give
notice to the occupier of the premises of his or her intention to apply for an
extension and the occupier is entitled to be heard in relation to that
application.
(7) The provisions of this Part relating to the issue of monitoring
warrants apply, with such modifications as are necessary, to the issue of an
extension.
(8) In this section:
premises means:
(a) premises that an authorised officer has entered, and remains on, with
the consent of the occupier; and
(b) warrant premises.
(1) If:
(a) damage is caused to equipment as a result of it being operated as
mentioned in section 120; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care being exercised by the person operating the
equipment;
compensation for the damage is payable to the owner of the
equipment.
(2) The Regulator must pay the owner such reasonable compensation as the
owner and the Regulator agree on. If the Regulator and the owner fail to agree,
the owner may institute proceedings in the Federal Court of Australia for such
reasonable amount of compensation as the Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises and his or her employees and agents, if
they were available at the time, had provided any warning or guidance as to the
operation of the equipment that was appropriate in the
circumstances.
(1) If a monitoring warrant is being executed and the occupier of the
warrant premises, or another person who apparently represents the occupier, is
present at the premises, the person is entitled to observe the execution of the
warrant.
(2) The right to observe the execution of the warrant ceases if the person
impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or
more areas of the premises at the same time.
The occupier of warrant premises, or another person who apparently
represents the occupier, must provide the officer executing the warrant and any
person assisting that officer with all reasonable facilities and assistance for
the effective exercise of their powers.
A person is guilty of an offence if the person fails to comply with the
obligation set out in section 123.
Maximum penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) An authorised officer may apply to a magistrate for a warrant under
this section in relation to premises.
(2) Subject to subsection (3), the magistrate may issue the warrant
if the magistrate is satisfied, by information on oath, that it is reasonably
necessary that one or more authorised officers should have access to the
premises for the purposes of substantiating information provided under this Act
or of determining whether this Act has been complied with.
(3) The magistrate must not issue the warrant unless the authorised
officer or some other person has given to the magistrate, either orally or by
affidavit, such further information (if any) as the magistrate requires
concerning the grounds on which the issue of the warrant is being
sought.
(4) The warrant must:
(a) authorise one or more authorised officers (whether or not named in the
warrant), with such assistance and by such force as is necessary and
reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 111 in relation to the
premises; and
(b) state whether the entry is authorised to be made at any time of the
day or during specified hours of the day; and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
(1) This Part applies to a person who is or has been:
(a) the Regulator; or
(b) an officer or employee of the branch of the APS under the direct
control of the Regulator; or
(c) otherwise appointed or employed by, or a provider of services for, the
Commonwealth.
Oath or declaration
(2) A person to whom this Part applies must, if and when required by the
Regulator to do so, make an oath or declaration to maintain secrecy in
accordance with this Part.
(3) The Regulator may determine, in writing:
(a) the form of the oath or declaration; and
(b) the manner in which the oath or declaration must be made.
(1) A person to whom this Part applies is guilty of an offence if the
person:
(a) makes a record of any protected information; or
(b) whether directly or indirectly, divulges or communicates to a person
any protected information about another person;
and the record is made, or the information is divulged or communicated,
other than:
(c) under or for the purposes of this Act; or
(d) in the performance of duties, as a person to whom this Part applies,
under or in relation to this Act.
Maximum penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) Despite 13.3(3) of the Criminal Code, a defendant does not bear
an evidential burden in relation to a matter specified in paragraph (1)(c)
or (d).
A person to whom this Part applies is not required:
(a) to divulge or communicate protected information to a court;
or
(b) to produce a protected document in court;
except where it is necessary to do so for the purpose of implementing this
Act.
(1) Nothing in this Act prohibits the Regulator or a person authorised by
the Regulator from divulging or communicating any information to a person
performing, as a person to whom this Part applies, duties under or in relation
to this Act for the purpose of enabling that person to perform those
duties.
(2) Despite 13.3(3) of the Criminal Code, a defendant does not bear
an evidential burden in relation to a matter specified in
subsection (1).
(1) Nothing in this Act prohibits the Regulator, or a person authorised by
the Regulator, from:
(a) divulging or communicating to a court any information obtained under
or for the purposes of this Act; or
(b) producing in court a document obtained or made under or for the
purposes of this Act;
where it is necessary to do so for the purpose of implementing this
Act.
(2) Despite 13.3(3) of the Criminal Code, a defendant does not bear
an evidential burden in relation to a matter specified in
subsection (1).
This Part does not prohibit the Regulator, or a person authorised by the
Regulator, from divulging or communicating any protected information relating to
a person, or the affairs of a person, if the person agrees in writing to the
divulging or communicating of the information.
(2) Despite 13.3(3) of the Criminal Code, a defendant does not bear
an evidential burden in relation to a matter specified in
subsection (1).
This Part does not prohibit the Regulator, or a person authorised by the
Regulator, from divulging or communicating any protected information
to:
(a) the Minister, the Head of the Australian Greenhouse Office or an
officer of the Australian Greenhouse Office authorised by the Head of the
Australian Greenhouse Office for the purposes of this Part; or
(b) the Administrative Appeals Tribunal for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(c) an officer of that part of the Agriculture Department known as the Australian Bureau of Agriculture and Resource Economics (ABARE) for the purposes of the performance of any