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OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 4 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 4
Subject - Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1)
Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act, including regulations prescribing penalties, not exceeding ten penalty units, for offences against the regulations.
Subsection 45A(1) of the Act enables regulations to be made regulating certain matters including the sale or purchase, or any other acquisition or disposal of, scheduled substances (paragraph 45A(1)(a)), the storage, use or handling of scheduled substances (paragraph 45A(1)(b)), and labelling requirements for scheduled substances and for products that contain or use scheduled substances (paragraph 45A(1)(c)). Subsection 45A(2) clarifies that regulations may make provision for regulating something by providing that it must not be done unless specified conditions are met.
The Act provides measures to meet Australia’s obligations under the Vienna Convention for Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change. Practically, the Act provides measures to protect the ozone layer from ozone depleting substances and to minimise emissions of synthetic greenhouse gases. Under the Act, ozone depleting substances and synthetic greenhouse gases are listed as scheduled substances.
The Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) control the acquisition, use, storage and disposal of ozone depleting substances and synthetic greenhouse gases.
The Regulations have been prepared in response to changes in industry and government procedures and improve the operation of the Regulations by improving the efficacy of the Principal Regulations through amendments to existing regulatory arrangements for methyl bromide use, the refrigeration and air conditioning permit scheme, and the fire protection permit scheme.
In particular, the Regulations:
§ introduce new offences for refrigeration and air conditioning (RAC) work undertaken by or proposed to be undertaken by unlicensed parties;
§ introduce new offences for breaches of permit conditions by holders of RAC industry permits;
§ introduce new record keeping requirements for RAC permit holders to allow the regulator to streamline compliance and enforcement activities;
§ introduce provisions requiring permit holders to identify themselves to the public by means of publishing their permit number, thus enabling the public to more readily identify licensed technicians and authorised businesses;
§ allow the regulator to publish a list of all permit holders to enable the public to check that a permit holder is allowed by law to conduct RAC work that they are offering to do;
§ create a new class of refrigerant trading authorisation which allows the recovery of refrigerant from RAC equipment at the end of its useful life;
§ update the qualifications required for licences in Table 131 to incorporate revised qualifications packages under the National Qualifications Framework;
§ refine the application and reporting requirements for feedstock permits for methyl bromide to increase accountability for its use; and
§ make minor amendments to the fire protection industry permit application and management process to streamline re-application for permit holders who usually have these matters managed by their employers.
Details of the Regulations are set out in the Attachment.
Affected stakeholders were consulted regarding the Regulations. This consultation took the form of a discussion paper published in early 2008 by the Department of the Environment, Water, Heritage and the Arts (the Department). The Department also held industry meetings in every state and territory capital city and in the following regional centres: Townsville, Coffs Harbour, Dubbo, Shepparton and Launceston. Affected stakeholders were invited to submit comment on the discussion paper and 35 responses were received. The responses were, on the whole, supportive of the proposals.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations will commence on the day after they are registered on the Federal Register of Legislative Instruments.
Authority: Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
ATTACHMENT
Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1)
Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1) are as follows:
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Amendment of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995
This regulation provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) are amended as set out in the Schedule.
Schedule – Amendments
Item 1 – Regulation 110, definition of RAC industry permit, paragraph (d)
This item is required as a consequence of Item 2.
Item 2 – Regulation 110, definition of RAC industry permit, after paragraph (d)
This item amends regulation 110 to extend the definition of “RAC industry permit” to include the new class of restricted refrigerant trading authorisation. This new class of authorisation allows the holder of the authorisation to acquire, possess and dispose of refrigerant provided that the refrigerant is only acquired through recovering it from equipment at the end of its useful life and that it is only disposed of by providing it to the operator of a refrigerant destruction facility.
This new class of authorisation is designed to provide a permit that meets the needs of businesses that are engaged in decommissioning RAC equipment including waste management facilities, metal recyclers and automotive recyclers. These businesses do not need all the entitlements of the full refrigerant trading authorisation and should not be subject to all its requirements. To do so would create unnecessary obstacles to business licensing in this area and encourage non-compliance. As these businesses do not need all the entitlements of the full authorisation, it is appropriate not to charge them the full application fee.
Item 3 – Regulation 110, after definition of relevant Board
This item amends regulation 110 to insert a new definition of “restricted refrigerant trading authorisation”. This item is required as a consequence Item 24 which enables a relevant authority, on application, to grant a restricted refrigerant trading authorisation to a person.
Item 4 – Regulation 111
This item substitutes regulation 111 with a new regulation 111 to facilitate changes to the offence of handling refrigerant without a refrigerant handling licence. These changes are:
Item 5 – After regulation 113
This item inserts a new regulation 113A into the Principal Regulations which establishes offences associated with false representations.
Subregulation 113A(1) creates an offence for a person to make a representation that the person can provide a service involving the acquisition, disposal, storage, use or handling of refrigerant in circumstances when that person does not hold a relevant RAC industry permit which would allow that work to be legally undertaken nor does the person employ a person who holds the relevant licence for the work.
Subregulation 113A(2) creates an offence for a person to make a representation that the person holds a type of RAC industry permit when at the time of making the representation, the person does not in fact hold a RAC industry permit of the type claimed.
Both offences in subregulations 113A(1) and (2) are offences of strict liability with a maximum penalty of ten penalty units ($$1,00 for an individual or $5,500 for a body corporate). The offences attract strict liability to ensure consistency with other offences in the Principal Regulations and to enhance the effectiveness of the enforcement regime in deterring offences. Pursuant to paragraph 6.1(1)(b) of the Criminal Code Act 1995, the defence of mistake of fact is still available and the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code Act 1995).
Item 6 – Subparagraph 120(1)(e)(i)
This item is required as a consequence of item 7.
Item 7 – After paragraph 120(1)(e)
This inserts new paragraph 120(1)(ea) into the Principal Regulations. Subregulation 120(1) sets out the functions and powers of the Minister with respect to RAC industry permits. The purpose of new paragraph (ea) is to enable the Minister to keep and make available to the public an electronic register of holders of RAC industry permit, including the name of the holder of the permit, the type of permit held, the number allocated to the permit by the relevant authority and, in cases other than where a refrigerant handling licence is held, the address and phone number of the permit holder.
Item 8 – After subregulation 121(3)
This item inserts new subregulations 121(4), 121(5) and 121(6) into the Principal Regulations. These new subregulations set out the circumstances in which an applicant is taken to have withdrawn their application for a RAC industry permit. New subregulation 121(6) also clarifies that the fee for an application for a RAC industry permit is not refundable if an applicant withdraws an application or the application is taken to have been withdrawn.
Item 9 – Paragraph 123(1)(c)
This item is required as a consequence of item 10.
Item 10 – After paragraph 123(1)(c)
This item inserts new paragraphs 123(1)(d) and 123(1)(e) into the Principal Regulations which set out two additional circumstances upon which the Minister may cancel or suspend a RAC industry permit. The first is where the holder of a refrigerant trading authorisation does not meet the criteria which the relevant authority must consider when processing an application for this type of authorisation and which are detailed in regulation 140(3). The second is where the holder of a halon special permit does not meet the criteria which the Minister must consider when processing an application for this type of permit and which are detailed in regulation 150(3).
These circumstances are required to allow the cancellation of a permit which was issued based on erroneous or misleading information or a misinterpretation by the relevant authority of the information provided in the application.
Item 11 – After subregulation 130(4)
This item inserts a new subregulation 130(5) into the Principal Regulations which requires the relevant authority to assign a unique number to each refrigerant handling licence that it issues and to include that number on the licence document.
Item 12 – Subparagraph 131(2)(b)(ii)
This item is required as a consequence of Item 13.
Item 13 – After subparagraph 131(2)(b)(ii)
This item inserts new subparagraph 131(2)(b)(ii) which sets out an additional matter for which a relevant authority must be satisfied before it can grant a refrigerant handling licence to an applicant; namely that the applicant holds a qualification that, although not current, previously entitled the applicant to hold a licence of the kind to which the application relates.
Item 14 – Table 131, item 1, column 4, paragraph (d), Item 15 – Table 131, item 3, column 4, paragraph (c), Item 16 – Table 131, item 4, column 4, paragraph (d), Item 17 – Table 131, item 4, column 4, paragraph (e)
The purpose of these items is to update the references to the training packages required to be undertaken to obtain the qualifications required for a RAC industry licence to the current versions of the training packages available under the Australian Qualifications Framework.
Item 18 – After paragraph 135(1)(a), Item 19 – Paragraph 135(1)(d), Item 20 – After paragraph 135(1)(d)
These items insert new paragraphs 135(1(aa) and 135(1)(e) into the Principal Regulations. In particular, these items specify additional conditions to which a RAC licence is subject. New paragraph (aa) requires the supervisor of the holder of a trainee class of refrigerant handling licence to ensure that the trainee’s work is done in accordance with the standards listed in Table 135. New paragraph (e) requires that the licensee include their licence number on all invoices, receipts and quotes for work (except where the licensee is carrying out work as the employee or hiree of the holder of a refrigerant trading authorisation.
Item 19 is required as a consequence of item 20.
Item 21 – Regulation 136, Table 136, regulation 137, Table 137, and regulation 138
This item substitutes regulation 136, Table 136, regulation 137, Table 137 and regulation 138 with a new regulation 136. This item is required as these regulations and tables are no longer required as they establish transitional arrangements which ceased to be operative on 1 January 2007, in the case of regulations 136 and 137 and Tables 136 and 137 and 1 January 2006 in the case of regulation 138.
New regulation 136 creates an offence of contravening a condition to which a refrigerant handling licence is subject. This offence is an offence of strict liability, with a maximum penalty of 10 penalty units ($1,100 for an individual and $5,500 for a body corporate).
This offence attracts strict liability to ensure consistency with other offences in the Principal Regulations and to enhance the effectiveness of the enforcement regime in deterring offences. Pursuant to paragraph 6.1(1)(b) of the Criminal Code Act 1995, the defence of mistake of fact is still available and the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code Act 1995).
Item 22 – Subdivision 6A.2.3, heading
This item amends the heading of subdivision 6A.2.3 to “Refrigerant authorisations” and is required as a consequence of the introduction of the new class of restricted refrigerant trading authorisations.
Item 23 – Paragraph 140(1)(b)
This item is required as a consequence of item 24.
Item 24 – After paragraph 140(1)(b)
This item inserts a new paragraph 140(1)(c) into the Principal Regulations which allows the relevant authority to grant a new class of authorisation called a restricted refrigerant trading authorisation. This new class of authorisation allows the holder to recover refrigerant from RAC equipment, store the refrigerant and dispose of the refrigerant by providing it to the operator of a refrigerant destruction facility.
This new class of authorisation is designed to provide a permit that meets the needs of businesses that are engaged in decommissioning RAC equipment including waste management facilities, metal recyclers and automotive recyclers. These businesses do not need all the entitlements of the full refrigerant trading authorisation and should not be subject to all its requirements. To do so would create unnecessary obstacles to business licensing in this area and encourage non-compliance. As these businesses do not need all the entitlements of the full authorisation, it is appropriate not to charge them the full application fee.
Item 25 – Subregulation 140(2)
This item is required as a consequence of item 24.
Item 26 – After subregulation 140(2)
This item inserts subregulation 140(2A) into the Principal Regulations which establishes the application fee for the restricted refrigerant trading authorisation at $100 for a two year permit.
The application fee has been calculated to ensure that the costs of processing the application and administering the permit are recovered. The differential in cost to the full authorisation also reflects the reduced entitlements of this permit.
Item 27 – Paragraph 140(3)(c), Item 28 – Subregulation 140(3)(c), note
These items are required as a consequence of item 29.
Item 29 – After paragraph 140(3)(c)
This item inserts new paragraph 140(3)(d) into the Principal Regulations which specifies an additional matter to which the relevant authority must be satisfied before it grants an authorisation. New paragraph (d) specifically requires the relevant authority to be satisfied that the applicant is able to ensure that, at all times, persons engaged in removing refrigerant from RAC equipment are supervised by the holder of a licence granted under regulation 131 or 133 that entitles the holder to remove refrigerant from RAC equipment.
Item 30 – Subregulations 140(4), (5) and (6)
This item substitutes the existing subregulation 140(4), 140(5) and 140(6) with new subregulations.
Subregulation 140(4) has been substituted with a new subregulation because it detailed transitional arrangements that only applied to permit applications received before 1 January 2006 and is, therefore, inoperative.
The item adds a new subregulation 140(4) which is the same as the existing subregulation 140(5), effectively renumbering it. The new subregulation 140(5) which is the same as the existing subregulation 140(6), effectively renumbering it.
Finally, this item inserts new subregulation 140(6) which requires the relevant authority to assign a unique number to each refrigerant authorisation and to include that number on the authorisation document.
Item 31 – Subregulation 141(1)
This item amends the existing subregulation 141(1) and extends the scope of this subregulation to include the new restricted refrigerant trading authorisation along with the existing refrigerant trading authorisation and RAC equipment manufacturing authorisation.
Item 32 – Paragraph 141(1)(k)
This item is required as a consequence of item 33.
Item 33 – After paragraph 141(1)(k)
This item inserts a new subregulation 141(1)(l) which makes it a condition of holding a restricted refrigerant trading authorisation that the refrigerant in the possession of the holder of such a permit is handled only by:
§ the holder of a refrigerant handling licence that allows such handling of refrigerant; or
§ under the supervision of the holder of such a licence where refrigerant is being removed from RAC equipment.
This item further inserts new subregulation 141(1)(m) which requires the holder of any type of refrigerant authorisation to keep records each quarter of:
This item also inserts new subregulation 141(1)(n) which requires the holder of a refrigerant authorisation to provide to the relevant authority, within fourteen days of receiving a written request from that authority, copies of the records that they are required to keep.
Finally, this item inserts new subregulation 141(1)(o) which requires the holder of a refrigerant authorisation to include their permit number on:
Item 34 – Regulation 142, Table 142 and regulation 143
This substitutes regulation 142, Table 142 and regulation 143 as these created transitional arrangements that ceased to be valid, in the case of regulation 142 and Table 142, on 1 January 2 007 and, in the case of regulation 143, on 1 January 2006.
This item also substitutes regulation 142 with a new regulation, which creates an offence of contravening the condition of a refrigerant authorisation. This offence is an offence of strict liability, with a maximum penalty of 10 penalty units ($1,100 for an individual and $5,500 for a body corporate).
This offence attracts strict liability to ensure consistency with other offences in the Principal Regulations and to enhance the effectiveness of the enforcement regime in deterring offences. Pursuant to paragraph 6.1(1)(b) of the Criminal Code Act 1995, the defence of mistake of fact is still available and the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code Act 1995).
Item 35 – Subregulation 150(4), note
This item is required as a consequence of item 36.
Item 36 – After subregulation 150(4)
This item inserts a new subregulation 150(5) into the Principal Regulations. This new subregulation requires the Minister to allocate a unique number to a halon special permit when such a permit is granted, and document the unique number on the permit.
Item 37 – Paragraph 223(1)(c)
This item substitutes the existing subregulation 223(1)(c) with new subregulations 223(1)(c) and 223(1)(d). The effect of these subregulations is to provide greater accountability for those persons using methyl bromide as a feedstock through requiring more detailed records to be kept of what type and what quantity of chemicals were manufactured using the methyl bromide and what efforts were make to minimise the emission of methyl bromide to the atmosphere.
Item 38 – After paragraph 241(2)(e)
This item inserts subregulation 223(2)(ea) which requires an applicant for a feedstock permit include, as part of their application, information about the process in which methyl bromide is proposed to be used to manufacture chemicals.
Item 39 – Paragraph 302(1)(b)
This item is required as a consequence of item 40.
Item 40 – Paragraph 302(1)(c)
This item omits subregulation 302(1)(c). This corrects an error in drafting in that a halon special permit does not entitle the holder to handle halon as an extinguishing agent and therefore holding such a permit should not be an exception to the offence of unlicensed handling of an extinguishing agent which is created by regulation 302.
Item 41 – Subparagraph 311(2)(e)(i)
This item substitutes subparagraph 311(2)(e)(i) with a new subparagraph. Currently, this subparagraph enables the Fire Protection Industry Board to publish information collected from applications for fire protection industry permits in a way that does not allow any person to be identified or disclose confidential information. The new subparagraph allows the Fire Protection Industry Board to publish the business names of permit holders, even where the business name contains a natural person’s name.
This item corrects an unintended consequence of the original drafting of this subparagraph. This provision was intended to allow the Fire Protection Industry board to publish the names of all businesses that held fire protection industry permits so that consumers could verify that businesses in the fire protection industry held the relevant permits. The prohibition against allowing a person to be identified was intended to protect the privacy of permit holders that are natural persons. Where a natural person uses his or her name as part of their business name, the publishing of that business name would allow the individual to be identified and would be prohibited under the existing provision. Business names are matters of public record and are not subject to the protections of the Privacy Act.
Item 42 – Paragraph 311(2)(f)
This item is required as a consequence of item 45.
Item 43 – After paragraph 311(2)(f)
This item inserts a new paragraph 311(2)(g) into the Principal Regulations which allows the Fire Protection Industry Board to give to the employer of the holder of a fire protection industry permit the details of that permit if the employer requests those details.
Item 44 – Subparagraph 313(1)(c)(iii)
This item is required as a consequence of item 47.
Item 45 – After subparagraph 313(1)(c)(iii)
This item inserts a new subparagraph 313(1)(c)(iv) into the Principal Regulations which requires an applicant for a fire protection industry permit to include, in that application, the name of his or her employer, if such an employer exists.