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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
RENEWABLE ENERGY (ELECTRICITY) AMENDMENT BILL
2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for the
Environment and Heritage,
the Honourable Dr David Kemp
MP)
RENEWABLE ENERGY (ELECTRICITY) AMENDMENT BILL
2002
OUTLINE
The purpose of this Bill is to improve the administrative integrity,
effectiveness and efficiency of the Renewable Energy (Electricity) Act 2000 (the
Act) by:
• Clarifying the definitions used in the Act including the
definition of Eligible Renewable Energy Sources and the components of a power
station.
• Clarifying the provisions in relation to a relevant
acquisition of electricity to ensure that only one entity is made liable in
relation to the purchase of a particular quantum of
electricity.
• Clarifying the provisions with respect to the claiming
of renewable energy certificates associated with solar water heaters and
expediting the process by which certificates can be claimed for new solar water
heater models as they become commercially available.
• Providing the
Renewable Energy Regulator with the power to vary a number of assessments and
determinations under the Act, including varying the energy acquisition
statement, renewable energy shortfall statement and the 1997 eligible renewable
energy baselines for accredited power stations.
• Providing the
Renewable Energy Regulator with information gathering powers to enable the
effective monitoring and compliance with the provisions of the legislation.
• Allowing for the suspension of an accredited power station under a
number of circumstances including where there is thought to be gaming whereby
power station outputs are manipulated to increase the number of renewable energy
certificates that can be created without increasing renewable energy generation.
FINANCIAL IMPACT STATEMENT
This Amendment Bill does not change the net financial impact of the Renewable
Energy (Electricity) Act 2000.
NOTES ON CLAUSES
1. This is a formal provision specifying the short title of the Bill
2. Subclause 2(1) provides a table indicating when each provision of this Act
commences.
3. The table provides that the commencement date for sections
1, 2 and 3 of this Act is the day on which the Act receives Royal Assent, and
the commencement day for Schedule 1 of the Act is a single day to be fixed by
Proclamation, subject to subclause 2(3).
4. Subclause 2(3) provides for
an alternative commencement date for Schedule 1. If Schedule 1 of this Act does
not commence within six months of the Act receiving Royal Assent, then it will
commence on the first day after the end of this period. The deferral of
commencement date is to allow sufficient time for associated amendments to the
Renewable Energy (Electricity) Regulations 2001 (the Regulations) to be
made.
5. This clause provides that each Act that is specified in a Schedule is
amended or repealed as set out in that Schedule.
SCHEDULE 1 – AMENDMENTS
Administrative Decisions (Judicial Review) Act 1977
6. This item clarifies the avenues for appeal in relation to assessment
decisions under the Renewable Energy (Electricity) Act 2000 (the Act). The item
removes an avenue for appeal under the Administrative Decisions (Judicial
Review) Act 1977, given the comprehensive objections procedure in relation to
both shortfall and shortfall charge assessments included in sections 54 –
65 of the Act. A person who is dissatisfied with an assessment may object in
the manner set out in those provisions. In the event that a liable entity is
dissatisfied with the Regulator's decision on an objection, the liable entity
may seek review of that decision in the Administrative Appeals Tribunal, or
appeal to the Federal Court against the decision (section 60).
Renewable Energy (Electricity) Act 2000
7. This item improves consistency of terminology between sections of the Act.
8. This item defines the term ‘electronic signature’ for the purposes of the Act.
9. This item defines the term ‘eligible renewable energy source’ for the purposes of the Act.
10. This item removes an unnecessary definition.
11. This item defines the term ‘interest charge’ for the purposes of the Act. This definition assists in giving effect to the new section 70 inserted by item 108 below.
1. This item clarifies the meaning of ‘monitoring warrant’ under the Act.
2. This item defines the term ‘nominated person’ under the Act. This definition assists in giving effect to the new section 30B inserted by item 58 below.
3. This item defines the term ‘occupier’ for the purposes of the Act.
4. This item defines the term ‘penalty charge’ for the purposes of the Act. This definition assists in giving effect to the new section 70 inserted by item 108 below.
5. This item defines the term ‘premises’ for the purposes of the Act.
6. This item defines the term ‘registered person’ for the purposes of the Act.
7. This item defines the term ‘register of applications for accredited power stations’ for the purposes of the Act.
8. This item amends the definition of ‘renewable energy shortfall charge related liability’ to assist in giving effect to the new section 70 inserted by item 108 below.
9. This item clarifies the meaning of ‘senior employee’ under the Act.
10. This item inserts a definition of ‘stakeholder’ to assist in giving effect to the new sections 30B and 30C inserted by item 58 below.
11. This item improves consistency of terminology between sections of the Act.
12. This item clarifies that renewable energy certificates may be created for small generation units.
13. This item amends the heading to clarify that Division 2 of Part 2 applies to all persons registering under the Act.
Item 20: Subsection 9(2)
14. This item provides that during
suspension of a person’s registration under the additional grounds
contained in the new section 30A, the person cannot be registered.
Item 21: Subsection 13(1)
15. This item clarifies the relationship
between a power station and an electricity generation system, and also clarifies
the circumstances under which a single registered person can apply for
accreditation of the components of an electricity generation system as an
accredited power station under the Act.
16. This item, together with
items 25, 32, 34, and 58 below improves clarity and ease of application and
enforcement of provisions of the Act concerning accreditation of power stations,
creation of renewable energy certificates (RECs), and submission of electricity
generation returns. This set of items improves consistency of terminology
between sections, and clarifies that a power station is a subset of an
electricity generation system. The items also concentrate responsibility and
authority for accreditation, REC creation, and reporting in a single person and
provide that all other co-owners and co-operators must unanimously agree to this
person assuming these powers and responsibilities.
Item 22: Paragraph 13(2)(b)
17. This item improves consistency of
terminology between sections of the Act.
Item 23: After paragraph 13(2)(b)
18. This item adds a requirement
that an application for accreditation must specify all other co-owners and
co-operators of the electricity generation system components for which
accreditation is being sought.
Item 24: Subparagraph 13(2)(ba)(i)
19. This item improves
consistency of terminology between sections of the Act.
Item 25: At the end of subsection 13(2)
20. This item requires that
all other co-owners and co-operators consent in writing to the making of the
application for accreditation.
Item 26: At the end of subsection 14(1)
21. This item references a
new Division 10 to Part 2 (see section 30C under item 58 below) that provides
express power for the Regulator to later vary his/her determination of what
components are taken to comprise a particular accredited power station.
Item 27: Paragraph 14(2)(a)
22. This item improves consistency of
terminology between sections of the Act.
Item 28: After subsection 14(2)
23. This item provides the
Regulator the flexibility to determine that components of an electricity
generation system, for which accreditation is sought as a new power station,
should be considered instead to be an expansion or modification to an
already-accredited power station. This item prevents a person from being able
to gain accreditation as a separate power station, of components that would more
appropriately be considered under the Act to be part of another power station.
This item relies on the new section 30C, which empowers the Regulator to vary a
decision establishing the boundaries of what constitutes a particular accredited
power station, for effective operation. Please see explanation relating to Item
58 for further details.
Item 29: At the end of subsection 14(3)
24. This item brings the
attention of readers of the Act to a new Division 12 to Part 2 (see the new
section 30F inserted by item 58 below).
Item 30: Subsection 14(4)
25. This item removes redundant
references made in Subsection 14(4) in relation to guidelines prescribed in the
Regulations.
Item 31: At the end of section 15
26. This item brings the
attention of readers of the Act to a new Division 11 to Part 2 (see new sections
30D and 30E inserted by item 58) that provides grounds for suspending the
accreditation of a power station.
Item 32: After section 15
27. This item inserts a new section 15A
which provides that the registered person who has applied successfully for
accreditation of the components of an electricity generation system as an
accredited power station becomes the nominated person for that accredited power
station.
Item 33: Section 17
28. This item substitutes a new section 17
which clarifies what are eligible renewable energy sources and what are
ineligible energy sources under the Act by:
• Removing terms that
are redundant and/or not sources, but rather processes or technologies for
transforming energy sources into electricity.
• Reordering the
list of eligible renewable energy sources so that similar types of sources are
grouped together. Examples include geothermal (aquifer and hot dry rocks),
biomass (solid and wet wastes and gases sourced from various types of
activity)
• Regrouping some of the various types of waste in a
clearer manner.
• Ensuring that materials or waste products that
are made from fossil fuels or made from products, by-products or wastes from
processing of fossil fuels, including where mixed in with any of the eligible
renewable energy sources, are ineligible.
29. The Regulations may:
• define the meanings of eligible renewable energy sources, and
ineligible energy sources listed in the Act,
• limit the meaning of an
eligible renewable energy source, or
• extend the meaning of an
ineligible energy source.
These provisions enable regulations to be made to
include requirements and conditions in defining the meanings of eligible
renewable energy sources, and to prescribe the circumstances in which these
conditions can be met in order for these renewable energy sources to be eligible
under the Act.
Item 34: Subsection 18(1)
30. This item clarifies that only the
nominated person for an accredited power station may create renewable energy
certificates for eligible electricity generation in respect of that accredited
power station.
Item 35: After subsection 18(1)
31. This item clarifies that a
renewable energy certificate cannot be created for any megawatt-hour of
electricity where a portion of that megawatt-hour of electricity is generated in
one calendar year, and the remainder is generated in the following calendar
year.
Item 36: Subsection 18(2)
32. This item acts to make the
terminology in subsection 18(2) consistent with the new subsection 18(1) (see
item 34 above), by clarifying that it is the nominated person for that
accredited power station who may create the renewable energy certificate
referred to in subsection 18(1).
Item 37: Subsection 18(4)
33. This item clarifies that electricity
generated by a power station while its accreditation is suspended, or which was
generated using energy sources that are not eligible renewable energy sources,
is not eligible to earn renewable energy certificates or to contribute towards
meeting that power station’s 1997 eligible renewable power baseline.
Item 38: At the end of Section 18
34. This item clarifies that
while the registration of a registered person who is the nominated person for an
accredited power station is suspended, that nominated person may not create any
renewable energy certificates during that period of suspension.
Item 39: Section 19
35. This item clarifies that a renewable energy
certificate that is entitled to be created for a particular megawatt-hour
electricity generated, may be created at any time, including in a later
year, after that particular megawatt-hour of electricity has been generated.
Item 40: Subsection 20(1)
36. This item acts primarily to make the
timing requirements for submission of an electricity generation return (EGR) in
relation to an accredited power station consistent with those for submission of
liability- and compliance- related statements by liable entities under the
Act.
37. The new section also clarifies who is responsible for submission
of this EGR, and acts with item 34 to ensure that both the authority to create
renewable energy certificates and the responsibility to submit the EGR are
vested in the same person, that is, the nominated person for the particular
accredited power station.
Item 41: Paragraph 20(2)(a)
38. This item clarifies that
electricity is generated by a power station, for consistency with other
provisions of the Act.
Item 42: Paragraph 20(2)(c)
39. This item expands the information
to be included in an electricity generation return to clearly distinguish, for
tracking and checking purposes, the number of renewable energy certificates
created in the reporting year from generation in that year, and the number of
renewable energy certificates created in that year from electricity generated in
all preceding years.
Item 43: After section 20
40. This item adds a new section 20A
which enables electricity generation returns submitted in relation to an
accredited power station to be amended either by the Regulator upon own
initiative or upon request by the nominated person for that accredited power
station. If the Regulator refuses a request by the nominated person to amend an
electricity generation return, the Regulator must notify that nominated person
accordingly.
Item 44: Subsection 21(1)
41. This item recognizes that given the
complexity of electricity generation and dispatch in the National Electricity
Market and on other state grids, it is generally not possible to establish
clearly whether or not electricity displaced by a particular solar water heater
is in fact non-renewable electricity. On these grounds the requirement that a
solar water heater displace non-renewable electricity is for practical purposes
impossible to enforce. It is therefore removed.
Item 45: Subsection 21(2)
42. This item provides consistency in
terminology with the new subsection 21(1) inserted under item 44 above.
Item 46: At the end of section 21
43. This item clarifies that the
Regulations may provide that solar water heaters installed where there are no
existing water heaters may displace electricity.
Item 47: At the end of section 22
44. Currently, before a new solar
water heater model is able to earn renewable energy certificates for eligible
installations, details of the new solar water heater, including the number of
renewable energy certificates that may be created for eligible installations,
must first appear in Schedule 7 of the Regulations.
45. This item,
together with new section 23AA inserted by item 49 below, streamlines
administration and shortens the time taken to enable new solar water heater
models to be eligible to earn certficates under the Act by removing the need to
amend the Regulations to include these new models. Instead, the Regulator will
be able to establish and maintain a register of eligible solar water heaters on
the internet or elsewhere as a more rapidly and easily updated alternative to
Schedule 7 of the Regulations.
46. The item also enables regulations to
be made:
• empowering the Regulator to make written determinations in
relation to the number of renewable energy certificates able to be created for a
particular solar water heater installation, and
• requiring the
Regulator to have regard to prescribed guidelines in making these
determinations.
Item 48: After section 22
47. This item inserts new section 22A
which ensures that the time period after installation of a solar water
heater in which renewable energy certificates can be created for that
installation is limited to a maximum of 12 months.
48. This item inserts new section 23AA which allows for the Regulations to make provision for the Regulator keeping a register of solar water heaters to effectively replace Schedule 7 of the Regulations, which would then become redundant.
Item 50: Subsection 23A(1)
49. This item removes an unintended
restriction on the eligibility of installations of small-scale solar
photovoltaic, wind or hydro electricity generation units that are not large
enough to be classified under the Act as accredited power stations. Accredited
power stations using eligible renewable energy sources are not required to
displace non-renewable electricity, thus the requirement that these so-called
small generation units (SGUs) must do so is inconsistent with the intent of the
Act, and is removed.
Item 51: Subsection 23A(2)
50. This item removes a provision
rendered redundant by the amendment to subsection 23A(1) under item 50
above.
Item 52: Paragraph 25(2)(b)
51. This item clarifies that a
renewable energy certificate must contain the electronic signature of the person
who is registered under the Act to create the certificate, rather than the
signature of an individual who physically enters the required data onto the
Registry on behalf of the registered person.
Item 53: Paragraph 25(2)(c)
52. This item provides that, for
administrative clarity, a renewable energy certificate is to contain the date on
which the final part of the electricity in relation to that certificate
was generated.
Item 54: After Paragraph 25(2)(c)
53. This item improves
consistency between information required to be included as part of a renewable
energy certificate, and information required to be included in the Register of
Renewable Energy Certificates.
Item 55: Subsection 26(3A)
54. This item substitutes a new
subsection 26(3A) which provides that the Regulator must not consider whether a
certificate is eligible for registration unless the prescribed fee (if any) has
been paid.
Item 56: Subsection 29(1)
55. This item ensures that certificates
submitted under section 95 of the Act are retired.
Item 57: After section 30
56. This item inserts a new section 30A
which provides further grounds for suspension of registration of a registered
person.
30A Suspension of registration – other grounds
57. Once
created and registered, certificates cannot be revoked. This section enables
the Regulator to act to more proactively manage the risk of renewable energy
certificates being created contrary to the intent of the Act.
58. Section 30A extends the grounds for suspending a person’s
registration by empowering the Regulator to suspend the registration of a
person:
• if the Regulator believes on reasonable grounds that the
person has committed an offence against the Act or the Regulations,
or
• if registration is obtained improperly. An example of this is by
supplying incorrect information as part of the application for registration.
Item 58 At the end of Part 2
59. This item adds four new Divisions
after Division 8 of Part 2. These Divisions deal with processes relating to
accredited power stations under the Act.
Division 9-Changing the nominated
person for an accredited power station.
30B Changing the nominated person for an accredited power
station
60. Under section 30B, which is linked in its effect to new
subsection 18(1) inserted by item 34 above, provides a process for changing the
nominated person (defined under new subsection 5(1) inserted by item 8 above)
for an accredited power station. This provides flexibility for stakeholders
(defined under new subsection 5(1) inserted by item 16 above) to be able to
replace an existing nominated person to reflect changes in circumstances
relating to the accredited power station, such as changes in ownership or
operational control.
61. Section 30B provides that the intending
successor to the incumbent nominated person must make an application to the
Regulator, and provides that all other stakeholders, including the outgoing
nominated person where this person remains a stakeholder, must agree in
writing to the applicant becoming the new nominated person. If a nominated
person is no longer a stakeholder, that person’s consent is not required
for a new registered person to apply to become the nominated
person.
62. Section 30B also enables the Regulator to require other
documents to be included as part of an application for a change of nominated
person.
Division 10-Varying what constitutes a power station
30C Varying what constitutes a power station
63. Section 30C is
linked to new subsection 14(1) inserted by item 26, and addresses a current
limitation in the legislation that there is no express power for the Regulator
to vary what constitutes an accredited power station for the purposes of the Act
to reflect changed circumstances or to correct an error. Currently, it is
possible to interpret the Act such that any equipment such as wind turbines that
may be added to an existing wind farm, would require separate accreditation as a
new power station.
64. The new section sets out what information is to be
included in an application to vary the components of an accredited power
station, which includes written agreement by all stakeholders to the changes
proposed by the applicant.
Division 11-Suspending the accreditation
of a power station
65. Two new sections have been included in this
new Division to allow for the suspension of the accreditation of a power station
in a number of circumstances.
66. The sections include references to
new subsection 18(4) which is inserted by item 37.
30D Suspending the accreditation of a power station –
interconnected power stations
67. This section provides the Regulator
with a power to suspend the accreditation of a power station if satisfied that a
gaming arrangement has occurred. The concept of a gaming arrangement involves
the co-ordination of power station electricity outputs to increase the number of
renewable energy certificates that can be created in a year without equivalent
increase in renewable energy generation. Gaming has the potential to
significantly dilute the effectiveness of the measure to stimulate the growth of
the renewable energy industry and abate greenhouse gas emissions.
68. The section defines the meaning of a ‘gaming arrangement’
and specifies the conditions that must be present before the Regulator may
consider suspending the accreditation of a power station. It also requires the
Regulator to take into account information that demonstrates that specified
indicators of gaming were not the result of a gaming arrangement, in deciding on
whether to suspend the accreditation of a power station.
30E Suspending the accreditation of a power station – other
grounds
55. This section sets out two other circumstances where the
Regulator may suspend the accreditation of a power station. These
are:
• failure to provide an electricity generation return in
accordance with section 20 of the Act, or
• belief on reasonable
grounds that the power station is being operated in contravention of a
Commonwealth, State or Territory law.
56. The section also provides
that the Regulator may suspend accreditation in any other circumstances
prescribed by the Regulations. A note is included to clarify that renewable
energy certificates may not be created from electricity generated by a power
station while its accreditation is suspended, nor can this generation be counted
as contributing towards meeting the 1997 eligible renewable power baseline for
that power station.
Division 12-Varying 1997 eligible renewable power
baselines
30F Varying 1997 eligible renewable power baselines
57. This
section addresses an inflexibility in the Act that prevents a 1997 baseline
which has been set for an accredited power station from being subsequently
amended. The section allows the Regulator to vary the 1997 baseline in the
circumstances prescribed in the Regulations. Decisions to vary 1997 eligible
renewable power baselines are reviewable.
58. The section provides that
if the Regulator increases the 1997 baseline for an accredited power station, it
will only apply to years following the year in which the determination to
increase the baseline was made. If the Regulator reduces the 1997 baseline for
an accredited power station it will apply to the year(s) specified in the
determination.
Item 59: Subsection 32(2)
59. This item improves consistency in
terminology with other sections of the Act.
Item 60: At the end of section 32
60. It is possible under the
existing Act, that more than one transaction in a set of transactions occurring
in relation to supply of a particular quantum of electricity could be relevant
acquisitions under sections 31 to 34 of Part 3 of the Act, and that there would
be a liability under the Act in relation to each of those
transactions.
61. This item inserts a new subsection 32(3) which has the
effect that if the set of transactions includes a transaction which is an
acquisition from the National Electricity Market (NEM), then that acquisition
will be the only acquisition that gives rise to a liability under the Act. Any
other acquisition in relation to that quantum of electricity will not be a
relevant acquisition of electricity for the purposes of the Act, despite the
operation of any of the other provisions of Part 3.
62. The amendment
takes effect commencing from 1 January 2002, as the beginning of the 2002
compliance period, and transitional provisions (see item 164) cover possible
double liability situations that may have arisen in relation to the 2001
compliance period.
Item 61: Subsection 33(2)
63. This item improves consistency in
terminology with other sections of the Act.
Item 62: Subsection 33(2A)
64. This item removes an existing
subsection which is rendered redundant by the new subsection inserted under item
60.
Item 63: Subsection 33(3)
65. This item improves consistency in
terminology with other sections of the Act.
Item 64: Subsection 36(2)
66. This item clarifies the meaning of
required renewable energy in the context of this subsection.
Item 65: Section 38
67. This item improves consistency in
terminology with other sections of the Act.
Item 66: Paragraph 39(2)(b)
68. This item clarifies the meaning of
terms used in a formula for calculating the default renewable power percentage
for a year.
Item: 67: After subsection 39(3)
69. This item inserts a new
subsection 39(3A) which provides the Minister with the flexibility, in
determining the renewable power percentage (RPP) for a year, to consider an
estimate of certain information in relation to eligible renewable electricity
generated during previous years if the actual information is not available at
the time of consideration by the Minister.
Item 68: Section 40 (table, heading to column 2)
70. This item
clarifies that the gigawatt-hour column represents the total interim target for
each year and not the additional generation that must be added to the previous
year’s target.
Item 69: At the end of section 41
71. This item inserts a note to
also see section 101, which provides further details concerning a penalty charge
to be paid in addition to a charge applicable under section 41.
Items 70 and 71: Subsection 42(1)
72. Under the existing Act, two
different types of charge are covered by the term ‘additional renewable
energy shortfall charge.’ To avoid confusion between these two distinct
kinds of additional charge, and to prevent confusion with the renewable energy
shortfall charge, this item separately identifies these two types of charge as
‘penalty charge’ applicable under Part 9, and ‘interest
charge’ applicable under section 70 (see also items 6 and 8 for
definitions). Several other areas of the Act have been altered to reflect
this.
Item 72: At the end of subsection 44(1)
73. This item adds a note
which provides a reference link to a new section 45A which is inserted by item
77.
Item 73: Subsection 44(4)
74. This item improves consistency of
terminology within section 44.
Item 74: Subsection 44(4)
75. This item improves consistency in
terminology with other sections of the Act.
Item 75: Subsection 44(4)
76. This item improves consistency of
terminology used in the subsection.
Item 76: Subsection 44(5)
77. This item allows liable entities to
either lodge the required fee at the time of submitting the statement, or
optionally pay the fee for surrender of renewable energy certificates within a
period of 60 days following lodgment of an energy acquisition statement. Where
the fee is not paid within 60 days of lodging the statement, this becomes a debt
payable to the Commonwealth and is recoverable by the Regulator in a court.
Item 77: After section 45
78. This item inserts a new section
45A.
79. This new section enables the Regulator to amend an energy acquisition
statement (EAS) on his or her own initiative or on the application of the liable
entity. The Regulator is to notify the liable entity of a decision to amend
their EAS and a decision to amend or to refuse to amend an EAS will be
reviewable. Amending an EAS may also require the Regulator to issue a default
assessment under section 48 or amend an assessment under section 49.
Item 78: Paragraphs 46(2)(d) and (e)
80. This item substitutes new
paragraph 46(2)(d) which recognizes that a liable entity may have a carried
forward shortfall for a year or a renewable energy shortfall charge for the
year, but not both.
Item 79: Paragraph 47(c)
81. This item reflects the fact that in
some circumstances, when lodging a renewable energy shortfall statement, no
charge may be payable.
Item 80: Paragraph 47(e)
82. This item substitutes new paragraphs
47(e) and (ea) which improve on current reporting arrangements by ensuring that
all renewable energy certificate shortfalls for a year are identified in a
liable entity’s first renewable energy shortfall statement for that year,
even if the shortfall is less than 10% and a renewable energy shortfall charge
is not payable.
Item 81: Paragraph 48(1)(b)
83. This item strengthens reporting
arrangements relating to total liabilities by allowing the Regulator to make a
default assessment for any liable entity that they believe has a renewable
energy certificate shortfall for the year that has not lodged a renewable energy
shortfall statement.
Item 82: Subsection 48(1)
84. This item reflects the fact that in
some circumstances no charge may be payable in relation to a liable
entity’s renewable energy certificate shortfall for the year.
Item 83: Paragraph 48(2)(c)
85. Similar to item 81, this item
strengthens reporting arrangements relating to total liabilities by allowing the
Regulator to make a default assessment for any liable entity that they believe
has a renewable energy certificate shortfall for the year that has not lodged a
renewable energy shortfall statement or an energy acquisition statement.
Item 84: Subsection 48(2)
86. This item reflects the fact that in
some circumstances no charge may be payable in relation to a liable
entity’s renewable energy certificate shortfall for the year.
Item 85: At the end of subsection 49(1)
87. To avoid confusion,
this item adds a note to clarify that where the Regulator has made an assessment
of the penalty charge owed by a liable entity (see Part 9 of the Act), then the
liable entity may not apply to the Regulator to amend this assessment. If the
liable entity wishes to dispute the penalty charge, then they can apply for
review of that decision under section 66(l).
Item 86: Subsection 49(3)
88. This item clarifies that it is
possible for the Regulator to amend an assessment with a view to reducing a
liable entity’s liability beyond the four year time period allowed
where:
• the liable entity has applied for the assessment to be amended
within 4 years from the day that the renewable energy shortfall charge became
payable; and
• within that four year period the liable entity lodges
all information the Regulator needs to decide the application.
Item 87: Paragraph 49(6)(a)
89. This item rectifies a grammatical
error.
Item 88: Paragraph 49(6)(b)
90. This item rectifies a grammatical
error.
Item 89: Subsection 50(2) (definition of overpaid amount)
91. As
explained under item 70 above under the existing Act, two different types of
charge are covered by the term ‘additional renewable energy shortfall
charge.’ To avoid confusion between these two distinct kinds of
additional charge, and to prevent confusion with the renewable energy shortfall
charge, this item separately identifies these two types of charge as
‘penalty charge’ applicable under Part 9, and ‘interest
charge’ applicable under section 70 (see also items 6 and 10 for
definitions). Several other areas of the Act have been altered to reflect
this.
Item 90: Section 52
92. This item has been amended to replace the
reference to a ‘person’ with a reference to a ‘liable
entity’, consistent with the language of the Act.
Item 91: At the end of Part 5
93. This item inserts a new section
53A which clarifies that a liable party that has received an assessment of a
penalty charge cannot apply to have this assessment amended under Division 2 of
Part 6 of the Act.
Item 92: At the end of section 54
94. This item inserts a new
subsection 54(2) which clarifies that a liable party that has received an
assessment of a penalty charge cannot make an objection under this Division. If
the liable entity wishes to dispute the penalty charge, then they can apply for
review of that decision under section 66(l).
Item 93: Section 55
95. The term ‘person’ has been
replaced with ‘liable entity’ for consistency with the language used
throughout Part 6.
Item 94: Subsection 57(2)
96. The term ‘person’ has
been replaced with ‘liable entity’ for consistency with the language
used throughout Part 6. The heading of Section 57 is also changed to
‘Requests for extension of time’ in line with the requirement in
this section that the liable entity must make a written request to the Regulator
to deal with an objection.
Item 95: Subsection 57(4)
97. The term ‘person’ has
been replaced with ‘liable entity’ for consistency with the language
used throughout Part 6.
Item 96: Subsection 57(6)
98. The term ‘person’ has
been replaced with ‘liable entity’ for consistency with the language
used throughout Part 6.
Item 97: Subsection 58(3)
99. The term ‘person’ has
been replaced with ‘liable entity’ for consistency with the language
used throughout Part 6.
Item 98: Section 62
100. The term ‘person’ has been
replaced with ‘liable entity’ for consistency with the language used
throughout Part 6.
Item 99: Section 65
101. This item inserts a new subsection 65 to
clarify that additional renewable shortfall charge is now termed either penalty
charge or interest charge (see explanation of item 70).
Item 100: Subsection 66(1) (after table item 3)
102. This item
inserts a new item 3A in the Table of reviewable decisions that provides that
the Regulator’s decision to amend or to refuse to amend an electricity
generation return is a reviewable decision.
Item 101: Subsection 66(1) (table item 5)
103. This item includes a
reference to section 30A in the Table of reviewable decisions.
Item 102: Subsection 66(1) (after table item 5)
104. This item
inserts new items 5A to 5E in the Table of reviewable decisions to clarify that
the new provisions in Division 9, which provide for changing the nominated
person for an accredited power station, varying what constitutes a power
station, suspending the accreditation of a power station and varying 1997
eligible renewable power baselines, are reviewable decisions.
Item 103: Subsection 66(1) (table item 6)
105. As explained under
item 70 above, under the existing Act, two different types of charge are covered
by the term ‘additional renewable energy shortfall charge.’ To
avoid confusion between these two distinct kinds of additional charge, and to
prevent confusion with the renewable energy shortfall charge, this item
separately identifies these two types of charge as ‘penalty charge’
applicable under Part 9, and ‘interest charge’ applicable under
section 70 (see also items 6 and 8 for definitions). Several other areas of the
Act have been altered to reflect this.
Item 104: Subsection 66(1) (table item 7)
106. See explanation of
item 103 above.
Item 105: Part 7 (heading)
107. This item deletes the term
‘refunding’ from the title of this Part because the provisions only
deal with collection and recovery of charges.
Item 106: Section 68
108. See explanation of item 103 above.
Item 107: Section 68
109. This item substitutes the term
‘that charge’ in section 68 to clarify that this term refers to the
penalty charge.
Item 108: Section 70
110. This item substitutes a new section 70 to
clarify that the interest charge is only payable in relation to unpaid renewable
energy shortfall charge and unpaid penalty charge under Part 9, and that
interest is not payable on the interest charge. The interest charge for a day
becomes due and payable at the end of the day.
Item 109: Subsection 81(1)
111. This item substitutes a new
subsection 81(1). The current subsection 81(1) is too broad and could apply to
any receivers and principals. The new subsection narrows application to only
those receivers and principals that take possession of a company that is, or has
been, a liable entity under the Act.
Item 110: At the end of subsection 85(1)
112. This item adds a new
paragraph 85(1)(c) which limits the subdivision so it only applies to agents
whose principal is, or has been, a liable entity under the Act.
Item 111: Paragraph 89(3)(a)
113. This item substitutes the word
‘statement’ to clarify the type of information that a liable entity
has to provide, such as an energy acquisition statement or a renewable energy
shortfall statement.
Item 112: Paragraph 89(3)(b)
114. This item omits the redundant
term ‘additional returns’.
Item 113: Paragraph 89(4)(b)
115. This item substitutes the word
‘statement’ to clarify the type of information that a liable entity
has to provide, such as an energy acquisition statement or a renewable energy
shortfall statement.
Item 114:Subsection 95(2)
116. This item replaces the reference to
a ‘return’ with a reference to a ‘statement’, which is
consistent with the language used in the Act.
Item 115: Subsection 96(2)
117. This item clarifies that the amount
of renewable energy shortfall charge referred to in subsection 96(2) is the
amount which was paid by the liable entity.
Item 116: Subsection 99(1)
118. As explained under item 70, under
the existing Act, two different types of charge are covered by the term
‘additional renewable energy shortfall charge.’ To avoid confusion
between these two distinct kinds of additional charge, and to prevent confusion
with the renewable energy shortfall charge, this item separately identifies
these two types of charge as ‘penalty charge’ applicable under Part
9, and ‘interest charge’ applicable under section 70 (see also items
6 and 8 for definitions). Several other areas of the Act have been altered to
reflect this.
Item 117: Subsection 99(2)
119. See explanation of item 116 above.
Item 118: Subsection 99(3)
120. As explained under the existing
Act, two different types of charge are covered by the term ‘additional
renewable energy shortfall charge.’ To avoid confusion between these two
distinct kinds of additional charge, and to prevent confusion with the renewable
energy shortfall charge, this item separately identifies these two types of
charge as ‘penalty charge’ applicable under Part 9, and
‘interest charge’ applicable under section 70 (see also items 6 and
10 for definitions). Several other areas of the Act have been altered to
reflect this.
Item 119: Subsection 99(4)
121. See explanation of item 118
above.
Item 120: Subsection 100(1)
122. See explanation of item 118
above.
Item 121: Section 101
123. See explanation of item 118 above.
Item 122: Subsection 102(1)
124. See explanation of item 118
above.
Item 123 Section 103
125. See explanation of item 118 above.
Item 124: After subsection 107(1)
126. This item inserts a new
subsection 107 (1A) which allows the Regulator to also appoint, as authorised
officers, other persons appointed or employed by the Commonwealth, State or
Territory so that there is a larger pool of people the Regulator may draw on to
assist with auditing tasks.
Item 125: Subsection 110(1)
127. This item inserts a new
subsection 110(1) which extends the monitoring powers of an authorised officer
to enable him or her to enter premises to determine whether the Act or the
Regulations have been complied with. As information is also provided by liable
entities in accordance with the Regulations, it is necessary that the monitoring
provisions be extended so that authorised officers can substantiate such
information.
Item 126: paragraph 111(1)(b)
128. This item adds the words ‘
or the regulations’ to paragraph 111(1)(b) to ensure that an authorised
officer has the power to examine any activity on the premises to substantiate
information provided for the purposes of complying with the Regulations.
Item 127: Paragraph 111(1)(c)
129. This item adds the words
‘ or the regulations’ to paragraph 111(1)(c) to ensure that an
authorised officer has the power to examine any thing on the premises to
substantiate information provided for the purposes of complying with the
Regulations.
Item 128: Paragraph 111(1)(e)
130. This item adds the words
‘ or the regulations’ to paragraph 111(1)(e) to ensure that an
authorised officer has the power to inspect any document on the premises to
substantiate information provided for the purposes of complying with the
Regulations.
Item 129: Subparagraph 111(1)(h)(iii)
131. This item deletes the
term ‘that’ for grammatical reasons.
Item 130: Subsection 111(2)
132. This item replaces an existing
phrase with language that is consistent with the objectives of Section 110.
Item 131: Paragraph 112(1)(a)
133. This item adds the words
‘ or the regulations’ to paragraph 112(1)(a) to ensure that where an
authorised officer has entered premises with the consent of the occupier, the
authorised officer may request the occupier to answer any questions related to
the provision of information under the Regulations.
Item 132: Paragraph 112(2)(a)
134. This item adds the words
‘ or the regulations’ to paragraph 112(2)(a) to ensure that where an
authorised officer has entered premises by authority of a monitoring warrant,
the authorised officer may require the occupier to answer any questions related
to the provision of information under the Regulations.
Item 133: Paragraph 114(a)
135. This item replaces an existing
phrase with language that is consistent with and clarifies the link to section
112. As section 112 enables authorised officers to request the occupier of
premises to answer any questions relating to a range of matters, then the
offence provisions should relate to the answering of those questions.
Item 134: Paragraph 114(b)
136. This item substitutes the term
‘answer’ for ‘evidence’ to ensure consistency in
terminology with Section 112.
Item 135: Paragraph 114(c)
137. This item substitutes the term
‘answer’ for ‘evidence’ to ensure consistency in
terminology with Section 112.
Item 136: Subsection 119(1)
138. This item replaces ‘premises
in respect of which it is being executed’ with ‘warrant
premises’ to simplify the language of subsection 119(1) and for
consistency with the definition of warrant premises as defined in section
5(1) of the Act.
Item 137: Paragraph 120(2)(a)
139. As information is also provided
by liable entities in accordance with the Regulations, this item extends the
monitoring provisions so that authorised officers can substantiate such
information.
Item 138: Subsection 125(2)
140. As information is also provided by
liable entities in accordance with the Regulations, it is necessary that
authorised officers be provided with monitoring warrants to substantiate such
information.
Item 139: After Part 11
141. Currently, information-gathering
powers under the Act are restricted to authorised officers, and may only be
exercised when premises have been entered. This item adds a new Part 11A and
comprises sections 125A to 125F which provide the Regulator with new
information-gathering powers consistent with those contained in other
Commonwealth legislation such as the Textile, Clothing and Footwear Strategic
Program Act 1999 and the Diesel and Alternative Fuel Grants Scheme Act
1999.
125A Regulator may obtain information and documents
142. Section
125A provides that under certain circumstances the Regulator is empowered to
require a person to give information and evidence and produce documents relevant
to the operation of the Act. The section also requires that the Regulator give
written notice to this person when exercising powers under this section, and
requires that this notice set out the effect of specific provisions of the
Act.
143. This section also creates an offence for failure by the person
to comply with a requirement under subsection (2).
125B Self-incrimination
144. This section provides that an
individual is not excused from providing information, evidence or documentation
under Part11A on the grounds of self-incrimination, or of exposure of the
individual to a penalty. However, the section also sets limits on the
circumstances under which this information, evidence or documentation, or
anything deriving from it can be used in evidence against the individual in
criminal proceedings.
125C Copies of Documents
145. This section provides the Regulator
with powers in relation to inspecting, copying and taking extracts of documents
produced under Part 11A.
125D Regulator may retain documents
146. This section sets out
powers and responsibilities of the Regulator in relation to possession of a
document produced under Part11A, and the entitlements of a person otherwise
entitled to possession of the document.
125E False or misleading evidence
147. This section sets out the
grounds on which a person is guilty of an offence of providing false and
misleading evidence in relation to section 125A, and sets a maximum penalty of
12 months imprisonment for this offence.
125F False or misleading documents
148. This section sets out the
grounds on which a person is guilty of an offence of providing false or
misleading documents under section 125A, and sets a maximum penalty of 12 months
imprisonment for this offence.
Item 140: Paragraph 126(1)(b)
149. The Regulator is head of a
statutory agency called the Office of the Renewable Energy Regulator (see
section 151 of the Act). This item substitutes a new paragraph 126(1)(b) to
clarify that the secrecy provisions of Part 12 of the Act apply to the staff of
the Office of the Renewable Energy Regulator.
Item 141: Section 128
150. This item substitutes the phrase
‘for the purposes of this Act’ to clarify the meaning of this
section and enable disclosure of protected information or production of
protected documents to a court in the course of a criminal investigation under
the Act.
Item 142: Subsection 130(1)
151. This item substitutes the phrase
‘for the purposes of this Act’. This is to clarify the meaning of
this subsection and enable disclosure by the Regulator or a person authorised by
the Regulator to divulge information obtained, or produce in court a document
obtained under or for the purposes of the Act, where necessary to do so for the
purpose of the Act.
Item 143: Paragraph 132(1)(b)
152. This provision is currently
worded so broadly that protected information could be divulged in relation to
any matter. This item narrows the application of the provision to those matters
that relate to the Act.
Item 144: Paragraph 138(b)
153. This item requires that the name of
the ‘nominated person’ for the accredited power station is to be
included in the register of accredited power stations.
Item 145: Paragraph 140(a)
154. This item clarifies that the number
that appears on renewable energy certificates is a unique identification code
(see section 25 of the Act).
Item 146: Paragraph 141A(b)
155. This item clarifies that the
contents of the ‘register of applications for accredited power
stations’ is to include the location of those components of an electricity
generation system for which accreditation as an accredited power station is
being sought.
Item 147: Paragraph 141A(d)
156. This amendment is to correct a
typographical error in the Act.
Item 148: At the end of subsection 147(3)
157. This item inserts a
new paragraph 147(3)(e) which provides for the Regulator to be removed from
office if he or she fails, without reasonable excuse, to notify the Minister of
any conflicts of interest.
Item 149: After section 147
158. This item inserts a new section
147A which provides that the Regulator must give the Minister written notice of
all his or her interests that could conflict with their ability to undertake
their functions as Regulator.
Item 150: Subsection 148(3)
159. This item removes a redundant
reference to the Consolidated Revenue Fund which is covered by section 157.
Item 151: Subsection 160(1)
160. This item corrects a typographical
error in the Act.
Item 152: Subsection 161(2)
161. This item repeals subsection
161(2) which will expedite the regulation making process by removing the
requirement for draft new or amended regulations to be made available for public
comment for 30 days before they are made.
Item 153: Application – assessments
162. This item provides
that review under the Administrative Decisions (Judicial Review) Act 1977 of the
assessment-related decisions under the Renewable Energy (Electricity) Act 2000
that are detailed in item 1, is not available for decisions made after the
commencement of the amendment under item 1.
Item 154: Application – creation of renewable energy
certificates
163. This item clarifies that amendments inserted by items
listed under this item relating to the creation of renewable energy certificates
only apply to renewable energy certificates created after these amendments
commence.
Item 155: Application – charges
164. This item clarifies that
amendments inserted by items listed under this item relating to the amounts that
a liable entity becomes liable to pay only apply to amounts that become liable
for payment after these amendments commence.
Item 156: Application – applications for accreditation of a power
station
165. This item clarifies that amendments inserted by the items
listed under this item relating to applications for accreditation of a power
station only apply for applications made after these amendments commence.
Item 157: Application – electricity generation
166. This
item clarifies that amendments under item 33 relating to electricity generated
only apply for electricity generated after these amendments commence.
Item 158: Application – solar water heaters
167. This item
provides that amendments inserted by the items listed under this item relating
to solar water heaters apply to those solar water heaters installed after
commencement of these amendments.
Item 159: Application – small generation units
168. The
existing requirement that renewable energy certificates can only be created for
the installation of small generation units that displace non-renewable
electricity is inconsistent with the rest of the Act in that no other eligible
renewable energy source must demonstrate it displaces non-renewable electricity.
This has prevented persons who have installed small generation units from being
eligible to create renewable energy certificates. To address this problem, this
item provides that the amendments to small generation units apply to those
installed since the commencement of the Renewable Energy (Electricity) Act 2000.
Item 160: Application – registration of renewable energy
certificates
169. This item provides that amendments inserted by item 55
relating registration of renewable energy certificates applies only to
notifications made to the Regulator that certificates have been created, after
the commencement of these amendments.
Item 161: Application – relevant acquisitions of
electricity
170. This item provides that the amendments under items 60
and 62 apply to remove a potential double liability in relation to acquisitions
of electricity occurring from the year commencing 1 January 2002 onwards.
Item 162:Application – secrecy
171. This item provides that
amendments inserted by the items listed under this item apply in relation to
proceedings instituted after the commencement of these items.
Item 163: Transitional – accredited power
stations
172. Because there are already a number of existing accredited
power stations, it has been necessary to introduce some transitional
arrangements which are inserted by this item. These include:
• giving the Regulator 28 days to approve, in writing, a nominated person for each existing accredited power station. In this regard it should be noted that the approved person must be a stakeholder in the accredited power station;
• providing a definition of stakeholder for the purposes of this Act; and
• ensuring that the Regulator’s decision on this matter is reviewable. This means that any other stakeholder in relation to that accredited power station who has not been approved as the ‘nominated person’ may request the Regulator to review his or her decision.
Item 164: Transitional – relevant acquisitions of
electricity
173. This transitional provision and the application
provision under item 161 do not change the liability of an entity that has made
a wholesale or notional wholesale acquisition of electricity in the year 2001.
However, an entity which would not have incurred a liability if the
amendments under items 60 and 62 had applied to acquisitions for 2001,
could use the renewable energy certificates it has submitted to reduce another
liable entity’s renewable energy certificate shortfall for 2001.