Commonwealth Numbered Regulations - Explanatory Statements
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NATIONAL GREENHOUSE AND ENERGY REPORTING AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 115 OF 2011)
EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 115
Issued by the Authority of the Minister for Climate Change and Energy Efficiency
National Greenhouse and Energy Reporting Act 2007
National Greenhouse and Energy Reporting Amendment Regulations 2011 (No. 1)
The National Greenhouse and Energy Reporting Act 2007 (the Act) establishes the National
Greenhouse and Energy Reporting (NGER) System, which is a national framework for reporting greenhouse gas emissions, greenhouse gas projects and energy consumption and production by Australian corporations.
Section 77 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 10(3) of the Act states that the Minister may determine, by legislative instrument, the methods for measuring emissions, energy production and energy consumption, which is undertaken through the publication of the NGER (Measurement) Determination 2008 (the Measurement Determination). Subsection 19 (6)(c) of the Act outlines that that a report submitted under the Act must include any information specified in the National Greenhouse and Energy Reporting Regulations 2008 (the Principal Regulations).
The National Greenhouse and Energy Reporting Amendment Regulations 2011 (No. 1) (the Regulations) make a number of technical and administrative amendments to the Principal Regulations.
The Act makes it mandatory for corporations which are governed under the Constitution, and which trigger certain thresholds to report annually on their greenhouse gas emissions, energy consumption and energy production.
Data reported under the Act will inform decision making during the establishment of a carbon price mechanism, assist Australia to meet its international reporting obligations and inform government policy and programs and the Australian public. The Act also establishes the Greenhouse and Energy Data Officer (GEDO) as the regulatory and administrative decision maker under the Act.
The purpose of the Regulations is two-fold:
• to ensure consistency between the Principal Regulations and recent amendments made to the Measurement Determination. Amendments to the Measurement Determination primarily relate to revising and clarifying definitions and emission calculation methodologies. Amendments to the Principal Regulations are required to ensure that the reporting requirements are consistent with the methods for reporting as reflected in the most up-to-date Measurement Determination; and
• to clarify ambiguities in the Principal Regulations in order to simplify administration, reporting and auditing, including providing clarity to existing reporting arrangements.
Details of the Regulations are set out in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
Consultation on the definitions and calculation methods was conducted as part of a five-year review of the Measurement Determination. The Department of Climate Change and Energy Efficiency released the NGER Measurement Determination - Discussion Paper (Discussion Paper) on its website in August 2010 for four weeks. The Discussion Paper sought submissions from stakeholders, in particular organisations registered for reporting under the NGER System. Feedback received through submissions was considered in finalising the amendments to the Measurement Determination and the Principal Regulations.
Consultation has not been undertaken on the amendments designed to clarify ambiguities within the existing Principal Regulations as they are of a minor nature and do not substantially alter the existing arrangements.
ATTACHMENT
Details of the National Greenhouse and Energy Reporting Amendment Regulations
2011 (No. 1)
Regulation 1 - Name of Regulations
This regulation provides that the title of the Regulations is the National Greenhouse and Energy Reporting Amendment Regulations 2011 (No. 1).
Regulation 2 - Commencement
This regulation provides for the Regulations to have two commencement dates. Regulations 1-3 and Schedule 1 commence on 1 July 2011, while Schedule 2 commence on 1 July 2012.
This recognises that amendments in Schedule 2 require more time for reporting entities to establish processes for accurate reporting.
Regulation 3 - Amendment of National Greenhouse and Energy Reporting Regulations 2008
This regulation outlines that Schedules 1 and 2 amend the National Greenhouse and Energy Reporting Regulations 2008 (the Principal Regulations).
Regulation 4 - Application
This regulation provides that these Amendment Regulations will not affect reports for the 2010/11 reporting year, which are required to be submitted by 31 October 2011.
SCHEDULE 1 AMENDMENTS COMMENCING ON 1 JULY 2011
Items [1] - [3], [11], [12], [47], [48] and [50] relate to changes to the NGER (Measurement) Determination 2008 resulting from its five-year review. These amendments ensure consistency between the two legislative instruments.
Item [1] Regulation 1.03, after definition of CO2
This item inserts new definitions for "coal briquettes" and "coal coke". These definitions have been revised to ensure consistency with the NGER (Measurement) Determination 2008. Amendments to the definition are reflective of changes made to the NGER (Measurement) Determination 2008 in order to enable reporting of coke that is produced through non-coke oven processes, such as the production of char and other solid fuels of fossil origin.
Additionally, the term 'brown coal briquettes' has been expanded to include coal briquettes produced from other types of coal.
Item [2] Regulation 1.03, definition of coke oven coke
This item removes the definition of coke oven coke. New definitions have been included for 'coking coal' and 'coal coke'.
Item [3] Regulation 1.03, after definition of coke oven gas
This item inserts a new definition for 'coking coal' consistent with amendments to the NGER (Measurement) Determination 2008.
Item [4] Regulation 1.03, definition of gassy mine
This item inserts a space between the term 'the' and the term 'measurement' to correct a typographical error.
Item [5] Subdivision 2.4.1, before regulation 2.14
This amendment clarifies that a reference to a 'corporation' in Division 2.4 includes both controlling corporations, which by definition under the NGER Act are constitutional corporations, and also members of a controlling corporation's group. This would include joint ventures or partnerships. The effect of this amendment is that group members can be deemed to have overall control of a facility. The approach is consistent with the definition of operational control provided in section 11 of the NGER Act.
Items [6] - [7] Paragraphs 3.05 (e) and (f)
These items clarify that a company, which requests deregistration, is required to provide a statement indicating that the company does not hold a Reporting Transfer Certificate. The amendment is designed to provide assurances that the company requesting deregistration does not have any outstanding reporting requirements.
Item [8] Paragraph 4.04 (3) (b)
This item removes the requirement for network and pipeline facilities to provide longitudes/latitudes. Removing this requirement for geographically spread out facilities, such as network and pipeline facilities, simplifies reporting obligations.
Item [9] After paragraph 4.04 (3) (d)
This item includes network and pipeline facilities, in addition to transport facilities, to ensure that these facilities report the state or territory in which they are located to allow for accurate apportioning to applicable states and territories.
Item [10] Subregulation 4.04 (3), at the foot
This item inserts a note that network and pipeline facilities may cross state or territory borders.
Item [11] Subregulation 4.13 (2), table, item 2
This item amends item 2 in the regulation by updating the list of 'matters to be identified' for the estimation method for lime production to accurately reflect the revised method set out in the NGER (Measurement) Determination 2008.
Item [12] Subregulation 4.17 (2), table, items 2, 3 and 4
This item adds 'method 4' as an acceptable method for calculating emissions for Item 4 Waste incineration. This will ensure consistency with the NGER (Measurement) Determination 2008 to enable reporting on emission estimations using method 4 for waste incineration.
This item also modifies the list of 'matters to be identified' and specifies that chemical oxygen demand (COD) in effluent leaving the site should be measured, to accurately reflect the revised method set out in the NGER (Measurement) Determination 2008.
Items [13] - [24] Regulations 4.19, 4.20, 4.22 and 4.23
These items ensure that:
* both the amount (for example tonnes or kilolitres) and energy content (i.e. in gigajoules) is reported for each energy type; and
* notes are included to provide clarity that energy content is to be reported in gigajoules in accordance with chapter 6 of the NGER (Measurement) Determination 2008.
Item [25] Paragraph 4.25 (3) (c)
This item inserts a new provision which requires facilities to provide the relevant state or territory to which the activities are attributable to in addition to street address and longitude/latitudes (unless it is a transport, network or pipeline facility).
NGER data is supplied to states and territories as per the objectives of the NGER Act. This amendment ensures that submitted data can be accurately allocated to the appropriate state and/or territory.
Item [26] Paragraph 4.33 (1) (f)
This item ensures that identical information is provided if the application for a determination under section 20 of the Act is made by the either the registered corporation or by the 'other person'. This amendment seeks to rectify a discrepancy in applications under section 20 of the Act between registered corporations and the 'other person'. The correction means that either party must, as part of their application, provide a statement to show that the 'other person' refused to provide information.
Item [27] After paragraph 5.02 (1) (a)
This item revises the specified persons to specifically include the Parliamentary Secretary, Minister and their staff to explicitly enable disclosure of information. Only people listed in Regulation 5.02 may have the information disclosed to them and this amendment seeks to clarify the position of staff working in the offices of the Minister and the Parliamentary Secretary.
Item [28] Subparagraph 6.02(1)(g) (ii)
This item inserts a reference to the new subparagraph (iv), as inserted by item 33.
Item [29] Subparagraph 6.02(1)(g) (iii)
This item inserts a link to the new subparagraph (iv), as inserted by item 33.
Item [30] After subparagraph 6.02(1)(g) (iii)
This item inserts a new subparagraph (iv) to remove the requirement for geographically spread out facilities, such as network and pipeline facilities, to provide longitude and latitudes. This amendment recognises the difficulties associated with assigning specific geospatial coordinates to these facilities. In place of longitudes/latitudes, these facilities will provide the state or territory in which they are located to allow allocation of data to states and territories.
Item [31] After subregulation 6.02(1)
This item inserts a note that network and pipeline facilities may cross state or territory borders.
Item [32] Paragraph 6.03 (e)
Previously only network and transport facilities were exempt from providing the information under paragraph 6.03 (e), even though pipeline facilities share many of the same characteristics as network and transport facilities. This amendment explicitly includes pipelines facilities in the same category as network and transport facilities for the purposes of this regulation.
Item [33] Subparagraph 6.03 (e) (iv)
This item makes a minor change to allow the addition of new subparagraph (v) by item 37.
Item [34] After subparagraph 6.03 (e) (iv)
This item inserts a new subparagraph (v) that requires the activity to be attributed to the relevant state or territory where the facility is located.
This amendment ensures that submitted data can be accurately allocated to the appropriate state and territory.
Item [35] Paragraph 6.03 (f)
This item includes a specific reference to pipeline facilities to clarify that they are in the same category as network facilities for the purposes of this regulation.
Item [36] Subparagraph 6.03 (f) (ii)
This item replaces subparagraph 6.03 (f)(ii) with a requirement to supply the state or territory in which the facility is located instead of the requirement to provide latitude and longitude details.
This amendment removes the requirement for geographically spread out facilities such as network and pipeline facilities to provide longitude and latitudes. This amendment recognises the difficulties associated with assigning specific geospatial coordinates to these facilities. In place of longitudes/latitudes, these facilities will provide the state or territory in which they are located to allow allocation of data to states and territories.
Item [37] After regulation 6.03
This item inserts a note that network and pipeline facilities may cross state or territory borders.
Item [38] Regulation 6.11
This item clarifies that the academic qualifications of the applicant auditor seeking registration must be relevant, in the opinion of the GEDO, to the functions performed by auditors under the Act.
Item [39] Subdivision 6.6.8, before regulation 6.64
This item inserts a definition for the term 'alternative audit' as used in this subdivision.
This item is part of a broader change in emphasis to allow for greenhouse and energy audits not conducted under the Act to be considered for the purposes of maintaining registration. A "greenhouse and energy audit" is defined in the NGER Act as an audit under any of sections 73 to 74A. The proposed amendment allows for the GEDO to accept an audit that is a greenhouse and energy audit in nature, but not one that has been commissioned under the Act. The purpose behind this amendment is to increase the flexibility of evidence used by auditors and accepted by the GEDO in order to maintain registration.
A similar reasoning also applies to items [40] - [42].
Item [40] Regulation 6.66, heading
This item replaces the heading of regulation 6.66 to accurately reflect the content change of the regulation to include audits which are comparable to greenhouse and energy audits but not conducted under the Act.
Item [41] Regulation 6.66
This item reformats this regulation to allow a second subregulation to be inserted by item 45.
Item [42] After regulation 6.66
This item inserts a new subregulation to allow audits comparable to greenhouse and energy audits but not conducted under the Act to be considered as evidence of participation in audits for the purposes of maintaining registration as a greenhouse and energy auditor. These alternative audits will only be considered at the discretion of the GEDO.
Item [43] Subregulation 6.68 (1)
This item clearly defines "Officer" as the Greenhouse and Energy Data Officer. This amendment removes ambiguity from this regulation.
Item [44] Subregulations 6.69 (1) and (2)
This item amends the submission deadline from 31 December to 'the anniversary of a person's registration as a greenhouse and energy auditor'. This also changes the report to be in relation to the previous 12 months of registration, as opposed to the previous financial year and requires information relating to alternative audits.
The amendment is designed to provide the GEDO with sufficient time to review reports submitted by auditors. Previously, an auditor provided a report 6 months after the end financial year to which the report pertains, which left little time to rectify any issues identified in the report.
Item [45] Paragraph 6.69 (3) (a)
This item adds the requirement for auditors to also report on 'alternative audits' which are comparable to greenhouse and energy audits but not conducted under the Act, if those audits are used as evidence for maintaining registration.
Item [46] Subparagraphs 6.69 (3) (a) (i), (ii), (iii), (iv) and (v)
This item replaces previous subparagraphs to specify what information must be included in regards to 'alternative audits' in addition to greenhouse and energy audits conducted under the Act.
Item [47] Schedule 1, item 4
This item inserts 'coal' instead of 'brown coal' to include non-brown coal content such as an agglomerate formed by compacting a particulate coal material from a range of coal sources.
Item [48] Schedule 1, item 5
This item replaces 'coke oven coke' with 'coal coke'. The fuel name and definition for "coke" was updated in the NGER (Measurement) Determination 2008 in order to enable reporting of coke that is produced through non-coke oven processes, such as the production of char and other solid fuels of fossil origin.
Item [49] Schedule 1, item 17
This item removes the word 'if' from Schedule 1, item 17 to ensure consistency of wording with the NGER (Measurement) Determination 2008.
This item redefines bitumen under the Regulations to exclude the reporting of consumption of bitumen for non-combustion purposes (e.g. as a sealant or road surfacing agent) but retains the requirement to report bitumen production.
Item [51] Schedule 1, item 66
This item provides clarity on the scope of item 66, in relation to what the term 'acquired' is intended to cover. The amendment is intended to ensure 'acquired' includes all manner of acquisitions including transactions without legal consideration.
The amendment also clarifies that registered corporations should only report item 66 energy commodities (such as steam, compressed air or waste gas) if the commodities have been acquired from outside the facility boundary.
SCHEDULE 2 AMENDMENTS COMMENCING ON 1 JULY 20112
These items relate to changes to the NGER (Measurement) Determination 2008 resulting from its five-year review. These amendments ensure consistency between the two legislative instruments.
Item [1] Regulation 1.03, after definition of affected group member
This item inserts a definition for 'anthracite'. 'Black coal' has been removed from the fuel list under Schedule 1 and replaced with three sub-categories of black coal (sub-bituminous coal, bituminous coal and anthracite) to reflect the differing energy content of various coal types and to allow for more accurate reporting.
This definition for anthracite was developed using the Australian Standard for Classification and Coding Systems for Australian Coals (AS 2096-1987).
Item [2] Regulation 1.03, after definition of Australian Statistician
This item inserts a definition for 'bituminous coal'. 'Black coal' has been removed from the fuel list under Schedule 1 and replaced with three sub-categories of black coal (sub-bituminous coal, bituminous coal and anthracite) to reflect the differing energy content of various coal types and to allow for more accurate reporting.
This definition for bituminous coal was developed using the Australian Standard for Classification and Coding Systems for Australian Coals (AS 2096-1987).
Item [3] Regulation 1.03, definition of brown coal
This item replaces the definition of 'brown coal'. The definition of brown coal has been revised to align with broader changes to increase the level of disaggregation of black coal types available for reporting. This improves the accuracy of the energy content values reported for coal under method 1 in the NGER (Measurement) Determination 2008. The disaggregated coal fuel types require a coherent system of definitions that are applicable to Australian coal users and as such, this definition was developed using the Australian Standard for Classification and Coding Systems for Australian Coals (AS 2096-1987).
Item [4] Regulation 1.03, after definition of source
This item inserts a definition for 'sub-bituminous coal'. 'Black coal' has been removed from the fuel list under Schedule 1 and replaced with three sub-categories of black coal (sub-bituminous coal, bituminous coal and anthracite), to reflect the differing energy content of various coal types and to allow for more accurate reporting.
This definition for sub-bituminous coal was developed using the Australian Standard for Classification and Coding Systems for Australian Coals (AS 2096-1987).
Item [5] Subregulation 4.14, table, item 5
This item adds the words 'using a carbon anode' at the end of item 5 in the list of 'matters to be identified'. This is consistent with the wider definition of chemical or mineral production in the NGER (Measurement) Determination 2008 to enable reporting of consumption of carbon anodes. This item also updates the list of items under 'matters to be identified' for Item 5: chemical products to accurately reflect the revised method set out in the NGER (Measurement) Determination 2008.
Items [6] - [7] Subregulation 4.15 (2), table, items 1, 2 and 4
These items update the 'matters to be identified' for:
* item 1: Iron, steel or other metal production using integrated metalworks;
* item 2: Ferroalloys production; and
* item 4: Production of other metals.
The 'matters to be identified' have been updated to accurately reflect the revised method set out in the NGER (Measurement) Determination 2008.
Item [8] Schedule 1, item 1
This item replaces 'Black coal' with three categories of coal: bituminous coal, sub-bituminous coal and anthracite.
'Black coal' has been removed from the fuel list under Schedule 1 and replaced with three sub-categories of black coal (sub-bituminous coal, bituminous coal and anthracite) to reflect the differing energy content of various coal types.
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