Bills Digest No. 106, 2016–17
PDF version [757KB]
Sophie Power
Science, Technology, Environment and Resources Section
13 June 2017
Contents
The Bills Digest at a glance
List of abbreviations
Purpose of the Bill
Structure of the Bill
Background
International commitments
Kigali Amendment and the HFC phase-down
Australia’s regulatory regime
Review of the Ozone Protection and
Synthetic Greenhouse Gas Management Program
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
New HFC phase-down scheme
Reserve HFC quotas
Directions to export HFCs
Global warming potentials
HCFC scheme
HCFC ban from 2020
Amendments to the existing HCFC
scheme
Calculating quantities of HCFCs
Transferring HCFC quotas
Licencing and reporting changes
Licence renewals
Reporting requirements
Licence levy thresholds and late
payment penalty
Late payment penalty
Levy threshold
Other changes to licence provisions
Termination of licences
New and used gases
Maximum quantities
New substances
Other amendments
Objectives of the Act
Delegation powers
Other drafting changes
Bulk substances and equipment
Date introduced: 30
March 2017
House: House of
Representatives
Portfolio: Environment
and Energy
Commencement:
Sections 1 to 3 on Royal Assent.
Schedule 1 on proclamation or six months after
Royal Assent, whichever is earlier.
Schedule 2 on the later of 1 January 2018 or
immediately after the commencement of Schedule 1.
Schedule 3 on 1 January 2020.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
The Bills Digest at a glance
Background
- Australia
is a party to the Montreal
Protocol on Substances that Deplete the Ozone Layer (the Montreal
Protocol), which was agreed in 1987. The ‘ozone layer’ provides important
protection for life on earth by absorbing ultraviolet (UV) radiation from the
sun. The Montreal Protocol aims to protect the ozone layer by reducing
the production and consumption of ozone depleting substances such as chlorofluorocarbons
(CFCs) and hydrochlorofluorocarbons (HCFCs).
- In
October 2016, parties to the Montreal Protocol, including Australia, agreed
to an amendment to the Montreal Protocol (the Kigali
Amendment). This amendment commits parties to a new international phase‑down
of hydrofluorocarbons (HFCs), which are potent greenhouse gases, mostly used in
refrigeration and air‑conditioning equipment.
- Australia had already announced in June 2016 a domestic HFC phase-down, beginning in January
2018.
Purpose of the Bill
- The
Bill implements Australia’s international commitment to phase-down the import,
export and production of HFCs from 1 January 2018 under the new Kigali
Amendment.
- At
the same time, the Bill implements the first tranche of proposed measures
stemming from a recent review
of the federal Ozone Protection and Synthetic Greenhouse Gas
Management Program (OPSGGM Program) which controls the manufacture, import,
export and uses of ozone depleting substances in Australia. This includes
amendments to regulate two new synthetic greenhouse gases (nitrogen
trifluoride and PFC-9-1-18) and amend licensing and reporting requirements.
- The
Bill also adjusts provisions relating to the existing phase-out of HCFCs and
prohibits the use of new HCFCs from 1 January 2020, in line with Australia’s
commitments under the Montreal Protocol.
Stakeholder comments
- Stakeholders
are supportive of the proposed HFC phase-down but do not appear to have
commented directly on the Bill at the time of writing.
List of abbreviations
Abbreviation |
Definition |
AAT |
Administrative Appeals Tribunal |
BCM |
bromochloromethane |
CFC |
chlorofluorocarbon |
DEE |
Department of the Environment and Energy |
GWP |
global warming potential |
HBFC |
hydrobromofluorocarbon |
HCFC |
hydrochlorofluorocarbon |
HFC |
hydrofluorocarbon |
Import Levy Act |
Ozone Protection and Synthetic Greenhouse Gas (Import
Levy) Act 1995 |
IPCC |
Intergovernmental Panel on Climate Change |
Kigali Amendment |
Amendment to the Montreal Protocol on Substances that
Deplete the Ozone Layer (done in Kigali 10–15 October 2016) |
Kyoto Protocol |
Kyoto Protocol to the United Nations Framework
Convention on Climate Change |
Manufacture Levy Act |
Ozone Protection and Synthetic Greenhouse Gas
(Manufacture Levy) Act 1995 |
Montreal Protocol |
Montreal Protocol on Substances that Deplete the Ozone
Layer |
NF3 |
nitrogen trifluoride |
ODS |
ozone depleting substance |
OPSGGM Act |
Ozone Protection and Synthetic Greenhouse
Gas Management Act 1989 |
OPSGGM Program |
Ozone Protection and Synthetic Greenhouse
Gas Management Program |
PFC |
perfluorocarbon |
SES |
Senior Executive Service |
SF6 |
sulfur hexafluoride |
SGG |
synthetic greenhouse gas |
UNFCCC |
United Nations Framework Convention on Climate Change |
UV |
Ultraviolet |
Purpose of
the Bill
The purpose of the Ozone Protection and Synthetic
Greenhouse Gas Management Legislation Amendment Bill 2017 (the Bill) is to
amend the Ozone
Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM
Act), the Ozone
Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 (Import
Levy Act), and the Ozone Protection
and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995 (Manufacture
Levy Act) to:
- implement
Australia’s commitment to phase-down the import, export and production of
hydrofluorocarbons (HFCs) from 1 January 2018 under the new Kigali
Amendment to the Montreal Protocol
- adjust
provisions relating to the existing phase-out of hydrochlorofluorocarbons (HCFCs)
and prohibit the use of new HCFCs from 1 January 2020 (other than for permitted
uses)
- extend
the regime to regulate two new synthetic greenhouse gases (nitrogen trifluoride
and PFC-9-1-18) and
- amend
licensing and reporting requirements, including to enable licence renewals,
reduce the reporting frequency for licence holders and introduce a minimum threshold
for the cost recovery levy.
Structure
of the Bill
The Bill contains three schedules, each with several
parts. Schedule 1 contains four parts:
- Part
1 amends the existing HCFC phase-out scheme and implements a new HFC phase‑down
scheme
- Part
2 replaces terminology in the legislation relating to ‘products’ with the term
‘equipment’
- Part
3 removes the text of relevant international conventions from the OPSGGM Act
and
- Part
4 extends the Minister’s power to delegate his or her functions and powers
under the OPSGGM Act and regulations to Executive Level 2 employees, or
acting Executive Level 2 employees.
Schedule 2 (which commences on 1 January 2018) contains
five parts:
- Part
1 enables licence holders to renew their licences, rather than requiring new
licence applications
- Part
2 reduces reporting requirements for licence holders from quarterly to twice
yearly and introduces a minimum threshold for the cost recovery levy for
licences
- Part
3 removes a requirement to specify maximum quantities of substances covered by a
licence
- Part
4 extends the regime to regulate two new synthetic greenhouse gases (nitrogen
trifluoride and PFC‑9‑1‑18) and
- Part
5 clarifies how exports of HCFCs will be taken into account when calculating
quota for the HCFC phase‑out.
Schedule 3 (which commences on 1 January 2020) contains
two parts, which both implement Australia’s obligations under the Montreal
Protocol to restrict the use of new HCFCs from 1 January 2020.
Background
The ozone layer is a gaseous layer of naturally occurring
ozone (O3) molecules in the earth’s upper atmosphere (the
stratosphere) above the earth’s surface. This ‘ozone layer’ absorbs ultraviolet
(UV) radiation from the sun, thereby protecting life on earth. UV radiation is
linked to skin cancer, genetic damage and immune system suppression in living
organisms, as well as reduced productivity in agricultural crops and the food
chain.[1]
In the mid-1970s, it was discovered that some
human-produced chemicals could lead to depletion of the ozone layer. These
ozone depleting substances (ODSs) include chlorofluorocarbons (CFCs), halons,
methyl chloroform, carbon tetrachloride, hydrochlorofluorocarbons (HCFCs) and
methyl bromide.[2]
These substances are (or were) used in refrigerators, air conditioners, fire
extinguishers, aerosols, agricultural fumigants, in foam and as solvents for
cleaning electronic equipment.[3]
International
commitments
The Montreal
Protocol on Substances that Deplete the Ozone Layer (the Montreal
Protocol) was designed to reduce the production and consumption of ozone
depleting substances and, thereby, protect the earth’s ozone layer. The Protocol
was agreed in 1987 and entered into force in 1989.[4]
The Montreal Protocol sets binding progressive
phase-out obligations for developed and developing countries for all major
ozone depleting substances, including CFCs, halons, and HCFCs. The Protocol
has been amended several times to bring forward phase-out schedules and add new
ozone depleting substances to the list of controlled substances.[5]
The Montreal Protocol is generally regarded as ‘one of the most
successful and effective environmental treaties’.[6]
In 2016, scientists reported the first signs of healing in the ozone hole over
Antarctica.[7]
However, while CFCs have been phased out and HCFCs will be
phased out by 2020 under the Montreal Protocol, some of the key replacements
are still problematic. Many are potent greenhouse gases which means they contribute
to climate change. In particular, the phase-out of ODSs led to a shift towards HFCs,
which are primarily used as refrigerants in refrigeration and air conditioning
equipment, but also in the production of foams, as fire extinguishing agents,
solvents and in aerosols.[8]
Many HFCs have high global warming potentials (GWPs). GWP is a measure used to
compare the warming effects of the different greenhouse gases, which uses
carbon dioxide as a reference. The warming potential of carbon dioxide is given
a value of one, against which the other gases are compared.[9]
For example, a commonly used HFC in Australia is HFC-134a (a refrigerant),
which has a GWP of 1300. This means that ‘it is 1300 times as potent in the
atmosphere as carbon dioxide’.[10]
Kigali
Amendment and the HFC phase-down
In October 2016, following many years of negotiations, parties
to the Montreal Protocol agreed to an international phase-down of HFCs.
This agreement was made through an
amendment to the Montreal Protocol in Kigali in Rwanda, now known as
the ‘Kigali Amendment’.[11]
As noted earlier, HFCs are a type of synthetic greenhouse gas, mostly used in
refrigeration and air-conditioning equipment, and are not to be confused with HCFCs
(which are both ozone depleting and greenhouse gases). HFCs are
not manufactured in Australia, but are imported.[12] Australia had already
announced in June 2016 a domestic HFC phase-down, beginning in January 2018.[13] Australia reportedly
played a key role in securing the Kigali agreement.[14]
The Kigali Amendment will enter into force
on 1 January 2019, provided that it is ratified by at least 20 parties to the Montreal
Protocol.[15]
The Explanatory Memorandum suggests that ‘Australia will deliver on its
commitment to start phasing down imports of HFCs from 2018 through this Bill,
which will also allow ratification of the Kigali Amendment’.[16]
HFCs contribute between 1–2 per cent of
Australia’s greenhouse gas emissions. According to the Regulation Impact
Statement attached to the Explanatory Memorandum, current Australian
consumption of HFCs is 7.82 Mt CO2-e (in 2016) and the objective of
the HFC phase-down ‘is to reduce this to 1.17 Mt CO2-e by 2036’.[17]
Australia’s
regulatory regime
The OPSGGM Act and related Acts[18]
implement Australia’s obligations under the Montreal Protocol. The
Department of the Environment and Energy (the Department) administers the Ozone Protection and Synthetic Greenhouse Gas Management Program (OPSGGM Program) which controls the manufacture, import, export and
major end-uses of ozone depleting substances (ODSs) in Australia.
The specific ODSs currently controlled under
the OPSGGM Act are CFCs; HCFCs; halons (1211, 1301
and 2402); carbon tetrachloride (CCl4); methyl chloroform (CH3CCl3);
hydrobromofluorocarbon (HBFC); methyl bromide; and bromochlormethane (BCM).[19]
However, the OPSGGM Act also
regulates synthetic greenhouse gases (SGGs).
The SGGs that are controlled under the OPSGGM Act
are HFCs, perfluorocarbons (PFCs) and sulfur hexafluoride (SF6).[20]
In 2012–13, SGGs accounted for 1.8 per cent of Australia’s greenhouse gas
emissions.[21]
This aspect of the regime also implements Australia’s obligations under the Kyoto Protocol, an international agreement
on climate change.[22]
The greenhouse gases covered by the Kyoto Protocol are carbon dioxide
(CO2), methane (CH4), nitrous oxide (N2O),
HFCs, PFCs and sulfur hexafluoride (SF6).[23]
The Doha
Amendment to the Kyoto Protocol, agreed in 2012, amended this list
to add nitrogen trifluoride (NF3).[24]
Australia ratified the Doha Amendment in November 2016.[25]
Together, ODSs and SGGs are referred to as ‘controlled
substances’ under the OPSGGM Program. The
import, export and manufacture of controlled substances, and the import and
manufacture of certain products or equipment containing (or designed to
contain) some of these substances, is prohibited in Australia unless the
correct licence or exemption is held.[26]
There are four types of import/export licences under the Act:[27]
1. ODS/SGG equipment licences: used to import equipment that contains ozone depleting substances or
synthetic greenhouse gases, including air conditioning and refrigeration
equipment that contain a HFC or HCFC.[28]
2. Controlled substances licences: used to import, export and manufacture SGGs, HCFCs and methyl bromide.[29]
3. Essential uses licences: for
the import, export and manufacture of CFCs, halons, methyl chloroform, carbon
tetrachloride, and BCMs. These are only available for uses which meet a
strictly limited range of essential use criteria approved by the parties to the
Montreal Protocol, including laboratory and analytical uses.[30]
4. Used substances licences: for the import and export of used or recycled CFCs, HCFCs, methyl bromide,
HBFCs, halons, carbon tetrachloride and methyl chloroform is prohibited without
a used substance licence.[31]
There are some limited exemptions under the OPSGGM Act.[32]
Licence holders are also required to pay quarterly levies
and to report to the Department every three months in relation to the type and
amount of ODSs and SGGs manufactured, imported and exported, including in relevant
equipment.[33]
Review of
the Ozone Protection and Synthetic Greenhouse Gas Management Program
In May 2014, the Minister for the Environment announced a review
of the OPSGGM Program. The review had two objectives,
being to identify opportunities to:
- reduce
emissions of ODSs and SGGs in line with international efforts and
- improve
and streamline the operation of the program, including reducing regulatory compliance
costs.[34]
As part of the review, the Department of the Environment released
an Options
Paper for public consultation in October 2015, which received 57
submissions.[35]
A final review report does not appear to have been publicly released. However,
a government
statement was issued in April 2016,[36]
together with a list of Measures
to achieve emissions reduction and efficiency and effectiveness gains in the
Ozone Protection and Synthetic Greenhouse Gas Management Programme.[37]
Some of the key regulatory measures on this list included:
- an
85 per cent phase-down of HFC imports, commencing on 1 January 2018, with the
85 per cent phase‑down being reached from 2036
- provision
for bans on the import and manufacture of specified equipment containing
specified high global warming potential HFCs and
- compliance
powers will be strengthened. This will include new offence provisions,
infringement notices for refrigeration and air conditioning and fire protection
schemes, and publication of compliance actions. Also, licences will be able to
be suspended.[38]
Key ‘streamlining’ measures proposed by the review to
‘reduce the burden on business’ included:
- extend
the maximum duration of end use licences and permits from two to three years
- introduce
licence renewals
- reduce
reporting requirements from quarterly to twice yearly (while retaining
flexibility for more frequent reporting if licence holders prefer to do so) and
- waiver
of small levy debts up to $330.[39]
The Government’s stated aim was for these measures to be
in place by the start of January 2018.[40]
The Department’s website indicates that the current Bill includes ‘most of the efficiency
measures announced in the review, including streamlining of licensing
provisions, waiving uneconomic levy debts and reduce reporting frequency’. At
the same time, the Departmental website stated:
The HFC phase-down was prioritised for drafting in this Bill
as it was important to provide industry and consumers investment certainty.
Further measures including strengthened compliance and enforcement powers
covering more of the program and additional efficiency measures will follow in
a second tranche of amendments, planned for 2018.[41]
Committee
consideration
Selection
of Bills Committee
At its meeting on 10 May 2017, the Selection of Bills
Committee deferred consideration as to whether the Bill should be referred to a
committee for inquiry and report until its next meeting.[42]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
raised a number of issues in relation to the Bill.[43]
The first set of issues related to item 20 of Schedule
1 of the Bill, which seeks to repeal and replace section 13 of the OPSGGM
Act with a more clearly drafted version. Section 13 sets out an offence and
civil penalty provision relating to unlicensed manufacture, import or export of
ODSs and SGGs (see further ‘Key issues and provisions’). The Committee noted
that the revised structure of section 13 results in a reversal of the
evidential burden of proof, meaning the defendant will now be required to
establish applicable exceptions to the unlicensed manufacture, import or export
offence in proposed subsections 13(2), (3), (5) or (6).[44]
The Committee noted the Explanatory Memorandum suggests that the reverse burden
is justified because 'the matters to be proved under these subsections (namely,
that the defendant held a licence or that the circumstances of the activity
meant the defendant was subject to an exemption) are particularly within the
defendant's knowledge'.[45]
However, the Committee was concerned:
... it is not clear from the information provided that each of
the matters outlined in the exceptions is, in fact, particularly within the
defendant's knowledge. It is also noted that the Guide to Framing
Commonwealth Offences states that in general it is expected that provisions
which reverse the onus of proof will be peculiarly within the knowledge of the
defendant rather than within their particular knowledge (which is a more
stringent standard).[46]
The Committee has requested the Minister's advice as to
how each of the matters outlined in the exceptions are peculiarly within the
knowledge of the defendant and how it would be significantly more difficult and
costly for the prosecution to disprove than for the defendant to establish the
matter.[47]
The Committee was also concerned that proposed section
13 leaves ‘significant matters’ to delegated legislation, in particular,
the exceptions to the offence rely on certain circumstances, types of
equipment, amounts of relevant substances, and conditions being prescribed in
the Regulations. The Committee acknowledged that ‘some of these matters may be
technical in nature and therefore potentially appropriate for inclusion in
delegated legislation’. Nevertheless, the Committee noted the lack of
justification in the Explanatory Memorandum, and stated its expectation that
‘explanatory material should provide details as to why it is appropriate for
these matters to be included in delegated, rather than primary, legislation’.[48]
Further, the Committee considered that ‘specific consultation obligations’
should be included in the Bill in relation to those matters, and that
compliance with those obligations should be a condition of the validity of the
legislative instrument.[49]
The Committee also requested a detailed justification for the strict liability
nature of the offence in proposed section 13.[50]
The Committee also raised issues in relation to proposed
section 45C (inserted by item 2 of Schedule 3), which
introduces a new offence in relation to the use of HCFCs that are manufactured
or imported on or after 1 January 2020 (see further ‘Key issues and
provisions’).[51]
Proposed subsection 45C(2) provides for an exemption to that offence if
the prohibited use is for a purpose prescribed in the Regulations. The
Committee was concerned that the proposed provision contains a reserve burden
of proof in that the defendant would need to prove that their use of a HCFC was
for a purpose prescribed by the Regulations.[52]
The Committee also commented that this means significant elements of the
offence (or exceptions) are provided for in Regulations rather than primary
legislation. The Committee noted the Explanatory Memorandum’s justification
that this approach is 'necessary to ensure that the OPSGGM Act reflects
any allowable uses that may be agreed under the Montreal Protocol before 2020',
and that it 'is envisaged that the prescribed uses would align with those
prescribed under the Montreal Protocol'.[53]
Nevertheless, the Committee again observed that where the Parliament delegates
its legislative power in relation to significant regulatory matters, specific
consultation obligations should be included in the Bill.
The Committee therefore again requested the Minister's
advice in relation to the types of exempted purposes that are likely to be
prescribed in the Regulations, the type of consultation to be undertaken prior
to prescribing allowable purposes under proposed subsection 45C(2), and whether
specific consultation requirements can be included in the Bill.[54]
Finally, the Committee also requested a more detailed justification from the
Minister for the proposed application of strict liability in subsection 45C(3).[55]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents do not appear to have commented directly on this Bill. However,
the Australian Greens have been calling for a phase-down on the production and
consumption of HFCs for many years.[56]
Position of
major interest groups
Major interest groups do not appear to have commented on
the Bill itself. However, some commented on the Kigali Amendment when it was
announced. For example, the Fire Protection Association Australia congratulated
the Australian Government on its key role in securing the Kigali Agreement,
which it considered will have a ‘positive impact on the environment’.[57]
Similarly, the Australian Institute of Refrigeration Air
Conditioning and Heating (AIRAH) applauded the announcement of an HFC
phase-down, observing that the measure is ‘pivotal to national and
international efforts to reduce CO2-equivalent emissions in the face of climate
change’, that also provides certainty to those in the industry to ‘plan for and
invest in new technology that will be required’.[58]
The Australian Refrigeration Council has stated, in
relation to the proposed HFC phase-down, that ‘recent technology advances
suggest that reducing our reliance on HFCs will not be as hard as it sounds’
and that ‘meeting our requirements under the new agreement will be relatively
smooth’.[59]
In addition, some groups commented on the options paper released
in October 2015 during the review of the OPSGGM Program.[60]
Most seemed broadly supportive of an HFC phase-down, while some argued for a
more ambitious approach to the phase-down. For example, the Climate Institute
strongly supported the government’s proposal for a HFC phase-down, noting that
it had supported a phase-down for some time as part of a strategy to achieve greenhouse
gas emissions reductions. Indeed, the Climate Institute considered the Government
should ‘fast track’ an HFC phase-down through parliament.[61]
In its submission, the Australian Refrigeration
Association (ARA) supported the proposed HFC phase-down, considering that ‘the
need and opportunity for HFC phase down is both environmentally and
commercially warranted in Australia’. In fact, the ARA recommended ‘a more ambitious
Australian strategy for HFC phase down’.[62]
Financial
implications
According to the Explanatory Memorandum, the total
financial impact of the measures contained in the Bill is estimated to be $3.04
million annually. The HFC phase-down will impose an estimated annual regulatory
burden of $4.2 million, while the efficiency measures in the Bill are estimated
to result in an annual regulatory burden saving of $548,000.[63]
A Regulation Impact Statement was prepared for options to reduce HFCs and is
set out in full in an attachment to the Explanatory Memorandum.[64]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[65]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill did not raise human rights concerns.[66]
Key issues
and provisions
New HFC
phase-down scheme
Part 1 of Schedule 1 of the Bill contains
amendments to implement the new HFC phase‑down scheme in Australia, in
order to implement Australia’s commitment, under the Kigali Amendment,
to reduce the use of HFCs by 85 per cent (compared to current consumption
levels) by 2036.[67]
This phase-down will be achieved by establishing a quota scheme with a
diminishing cap on imports of HFCs starting on 1 January 2018. As the Minister
noted in his second reading speech, this is similar to the previous approach
which was successfully used to phase-out CFCs and HCFCs.[68]
HFCs are already regulated under the OPSGGM Act as
SGGs, with various HFCs listed in Part IX of Schedule 1 of the Act. Under
subsection 13(1A), for example, it is currently an offence to import, export or
manufacture SGGs (defined in section 7 to include HFCs) without a controlled substance
licence (unless an exemption applies).
However, to achieve the phase-down, item 47 of Schedule
1 inserts a new Part IVA into the OPSGGM Act to implement the
HFC phase-down by establishing an HFC import quota scheme:
The HFC phase-down will be undertaken through the gradual
reduction over 18 years of the maximum amount of new HFCs permitted to be
imported into Australia (there are no HFCs manufactured in Australia).[69]
New Part IV introduces the concept of a ‘regulated
HFC activity’, to be defined in proposed subsection 36B as the
manufacture or import of HFCs.[70]
The definition does not include the import of recycled or used SGGs, the import
of HFCs in SGG equipment, or the manufacture or import of HFCs in circumstances
prescribed in Regulations.[71]
To facilitate the HFC phase-down, item 30
in Schedule 1 of the Bill amends section 18 of the OPSGGM Act, which sets out the conditions that apply to certain licences under
the Act. Item 30 would repeal subsections 18(1) to (3) and
replace them with a new table setting out conditions for different
licence types. Items 1–3 in the proposed table effectively replicate the
existing conditions for controlled substance licences and licences that are not
SGG licences. Items 4 to 6 in the proposed table set out new conditions for SGG
licences (which are defined in section 7 as a controlled substance licence that
relates to SGGs).
In short, under item 4, the licensee must not engage in a
‘regulated HFC activity’ (as defined in proposed subsection 36B, at item
47 of Schedule 1) unless the licensee has been allocated a quota[72]
and the total quantity of HFCs involved in regulated HFC activities engaged in
by the licensee is not more than the licensee’s quotas.[73]
Under items 5 and 6 in the table, once the Kigali Amendment enters into force
for Australia, SGG licencees may also only import or export HFCs from countries
that are registered as a Montreal Protocol country.[74]
Proposed section 36A in the new Part IVA
then enables Regulations to be made prescribing an HFC industry limit for each
calendar year. Those Regulations must be consistent with Australia’s
international obligations.[75]
Under proposed subsection 36A(2), the sum of all HFC quotas allocated
for a calendar year must not exceed the HFC industry limit for that year. Proposed
subsection 36B(2) sets out a formula for working out the quantity of HFCs
that is taken to be involved in ‘regulated HFC activities’ engaged in by an SGG
licensee in a period.
The proposal to set out the details relating to HFC
industry limits in Regulations is different to the process for HCFCs, for which
the yearly industry limits are set out in the Act itself (see section 24 of the
OPSGGM Act). The Explanatory Memorandum suggests it is necessary to
prescribe the industry limits and the quota allocation process in Regulations
because:
... the HFC phase-down schedule requires Australia to achieve
an 85% phase-down of HFC imports by 31 December 2036. Given the period during
which the phase-down will be in place, having the ability to prescribe the
industry limits in the OPSGGM Regulations will provide flexibility in the
administration of the phase-down, should Australia need to vary the schedule
within the limits set under the Montreal Protocol.[76]
The Department has also published the proposed phase-down
schedule, including yearly limits, in a
table on its website.[77]
Proposed section 36C also enables Regulations to
provide the processes for applying HFC quotas, processes for the Minister to
allocate, vary, stop or cancel allocated quotas. Proposed section 36F
would provide for the transfer of the unused part of HFC quotas. Item 48
provides that the HFC phase-down in the new Part IVA would apply from
2018.
Reserve HFC
quotas
Proposed section 36G in new Part IVA deals
with the allocation of reserve HFC quotas.[78]
The Explanatory Memorandum suggests that allocation of reserve HFC quota would
be ‘on an ad hoc basis’:
The amount of reserve HFC quota available at any time is
intended to be the difference between Australia’s industry limit and the
Montreal Protocol limit for the relevant year, if a difference exists. If no
difference exists, no reserve quota will be available in the relevant year. It
is envisaged reserve HFC quota would only be granted in exceptional
circumstances and where criteria to be specified in the OPSGGM Regulations have
been met.[79]
Proposed subsection 36G(1) would provide that the
Minister must not allocate a reserve HFC quota unless satisfied that
circumstances prescribed by the Regulations exist. In relation to the sorts of
circumstances in which reserve quota could be allocated, the Explanatory
Memorandum suggests that it would be ‘in exceptional circumstances, such as for
medical, veterinary, defence, public safety or energy efficiency purposes where
HFCs are not available from another source’.[80]
Proposed subsection 36G(2) would also provide for
the process for the allocation of reserve HFC quotas to be prescribed in Regulations.
Proposed subsections 36G(3) and (4) provide for Regulations to be made
to set a limit on how much reserve quota the Minister may allocate. Under proposed
subsection 36G(5), these Regulations must be consistent with Australia’s
international obligations. The total of HFC quota and HFC reserve quota could
not exceed Australia’s Montreal Protocol limit.[81]
Much of the detail relating to HFC reserve quotas under proposed
section 36G has been left to Regulations. The Explanatory Memorandum
suggests that this provides flexibility ‘should Australia need to vary the
schedule within the limits set under the Montreal Protocol’.[82]
Directions
to export HFCs
Proposed section 36H would allow the Minister to
direct a SGG licensee to export a specified quantity of HFCs within a specified
time if the licensee exceeds their total HFC quota[83]
for that year. Under proposed subsection 36H(2), the specific
quantity directed to be exported must be no greater than the amount by which
the SGG licensee has exceeded their relevant quota or quotas. As noted earlier
in this Digest, once the Kigali Amendment enters into force for Australia, SGG
licencees may also only import or export HFCs from countries that are
registered as a Montreal Protocol country.[84]
The note to new subsection 36H(1) would clarify
that it is a condition of a licence under subsection 18(1) that the licensee
complies with the directions of the Minister to export HFCs where quota has
been exceeded.[85]
Under existing subsection 18(7) (which is not being amended by the Bill), a
licensee must not contravene a licence condition: the maximum penalty for an
individual is 500 penalty units (equivalent to $90,000) or 2,500 penalty units
($450,000) for a corporation.[86]
Under section 66 of the OPSGGM Act, applications
may be made to the Administrative Appeals Tribunal (AAT) for review of certain
decisions made under the Act. As a result of item 52, which inserts a new
paragraph 66(eb) into the OPSGGM Act, decisions to direct an SGG
licensee to export a quantity of HFCs under proposed section 36H
will also be reviewable by the AAT.
Finally, proposed section 36J clarifies that HFC
quotas (including reserve quotas) may be varied or cancelled, and ‘no
compensation is payable’ in this situation.
Global
warming potentials
As noted earlier, the HFC phase-down will be based on a
yearly industry limit and under proposed subsection 36A(1) the HFC
limit will be expressed in ‘CO2e megatonnes’. C02e, or
carbon dioxide equivalent is a unit used to compare the global warming
potential (GWP) of a greenhouse gas, based on its ability to absorb heat and
its lifetime in the atmosphere, compared to carbon dioxide (C02)
(see the discussion of GWPs in the background section of this Digest). This is
a different approach to the limits for HCFCs in the OPSGGM Act, which
are set based on their ozone depleting potential (or ODP).[87]
Item 17 of Schedule 1 to the Bill proposes
to insert a new section 9A to clarify that a reference in the Act to ‘CO2e
megatonnes’[88]
is a reference to the quantity of an HCFC or HFC that results from multiplying
its mass in megatonnes by its 100-year GWP. Item 5 then proposes to
amend section 7 of the OPSGGM Act to insert a definition of ‘100-year
global warming potential’ as the amount (if any) specified for that substance
by a table in Schedule 1 of the Act.
The current Parts V and IX of Schedule 1 of the OPSGGM
Act list the HCFCs and HFCs regulated under the Act. Items 55 and 56
of Schedule 1 of the Bill repeal and replace these lists. The key difference
is that the revised parts would provide the GWPs for all HFCs and some HCFCs.
As noted above, these GWPs will be used to calculate the quota limits for HFCs.
The GWP values are from the Independent Panel on Climate Change (IPCC) Fourth
Assessment Report, published in 2007.[89]
These values were updated by the IPCC in its Fifth Assessment Report, published
in 2013.[90]
However, the lists of HFCs and HCFCs and their associated GWP values are the
same as those agreed in the Kigali
amendment.[91]
Note also that one HFC, HFC-161, currently included in
Part IX of Schedule 1 of the OPSGGM Act is not included in the proposed
replacement Part IX substituted by item 56 in Schedule 1 of the
Bill. This is presumably because it is not listed in the Kigali amendment.
HCFC scheme
Under the Montreal Protocol, developed countries have
agreed to phase-out HCFCs by 2020.[92]
Australia’s phase‑out schedule is implemented by allocating HCFC
importers and manufacturers a limited quota under Part IV of the OPSGGM
Act. According to the Department’s website, Australia already largely
phased out consumption of HCFC by 2016, four years ahead of the schedule
required under the Protocol.[93]
HCFC ban
from 2020
Schedule 3 of the Bill contains two parts, which
both implement Australia’s obligations under the Montreal Protocol to restrict
the use of new HCFCs from 1 January 2020.
Item 2 of Part 1 of Schedule 3 inserts a new
section 45C into the OPSGGM Act which contains a strict liability
offence for the use of an HCFC that was manufactured or imported on or after 1
January 2020. The maximum penalty is 300 penalty units for an individual
(currently equivalent to $54,000).
Proposed subsection 45C(2) would provide an
exception to the offence for uses for purposes prescribed by Regulations. The
Explanatory Memorandum suggests that enabling particular purposes to be
prescribed in Regulations is needed to reflect any allowable uses that may be
agreed under the Montreal Protocol, and it ‘is envisaged that the
prescribed uses would align with those prescribed under the Montreal Protocol’.[94]
As noted earlier in this Digest, the Senate Scrutiny of Bills Committee raised
a number of issues in relation to proposed section 45C.
Section 38 of the OPSGGM Act contains a strict
liability offence for manufacture and import of equipment that contains or uses
scheduled substances, in contravention of Schedule 4 of the OPSGGM Act. Schedule
4 then sets out a list of various types of equipment such as dry cleaning
machinery and refrigeration and air conditioning equipment. Item 18 in Part
2 of Schedule 3 of the Bill would amend Schedule 4 of the OPSGGM Act
to add a new item 11 to the Schedule, being ‘HCFC equipment’. This
would prohibit persons from manufacturing or importing equipment that contains
or uses HCFCs on or after 1 January 2020.[95]
This amendment complements the ban on the use of HCFCs set out in proposed section
45C.[96]
Amendments to
the existing HCFC scheme
The Bill also proposes amendments which aim to ‘streamline
and improve the HCFC phase-down provisions’ in the OPSGGM Act.[97]
Most are relatively minor, such as items 6, 8, 13, 14, 16 and 37 in Schedule
1 which move definitions of ‘HCFC quota’, ‘HCFC reserve quota’ and ‘HCFC
quota period’ without making substantive changes to their meaning. However,
some of the more substantive or complex amendments are outlined below.
Calculating
quantities of HCFCs
Under the OPSGGM Act, licence holders engaged in a
‘regulated HCFC activity’ are allocated a quota which must not be exceeded.[98]
A ‘regulated HCFC activity’ is currently defined in section 7 of the OPSGGM
Act as the manufacture or import of HCFCs. Item 38 in Schedule 1
proposes to move this definition into a new section 25A which will
continue to define a regulated HCFC activity as the manufacture or import of
HCFCs.[99]
Proposed subsection 25A(2) then clarifies the quantity of HCFCs that is
taken to be involved in regulated HCFC activities engaged in by a licensee in a
period for the purposes of calculating quotas under the regime. This proposed
subsection uses the same wording as the current subsection 18(1A), which is to
be repealed by item 30. Under both subsections, the relevant quantity involved
in regulated HCFCs activities is reduced by a ‘heel allowance percentage’:
Heel is a residual amount of gas remaining in an imported
transport cylinder after all usable gas has been decanted or offloaded. Removal
of the heel risks damaging the cylinder through changes in pressure or
introducing contaminants into the gas. Removing the heel also increases safety
risks for the handler. As the heel is not removed from the imported cylinder,
the OPSGGM Act excludes a heel allowance percentage (currently set at
5%) from the calculation of levies applied to ODS and SGG imports and manufacture,
and the HCFC import quota.[100]
Proposed subsection 25A(2) would continue to
provide that the ‘heel allowance percentage’ for HCFCs is not taken into
account when calculating the quantity of HCFCs that are involved in a regulated
HCFC activity. The relevant ‘heel allowance percentage’, currently five per
cent, is prescribed by the Regulations.[101]
Item 86 in Part 5 of Schedule 2 would
then amend this proposed subsection 25A(2). It is important to note that
these two amendments have different commencement dates. The first amendment (item
38) is contained in Schedule 1 of the Bill, which commences on proclamation
or six months after Royal Assent, whichever is earlier. The subsequent
amendment, item 86 in Schedule 2, would commence on the later of
1 January 2018 or immediately after the commencement of Schedule 1.[102]
Although somewhat confusing, this approach is perhaps intended to give licensees
sufficient notice and time to adjust to the new approach that will be taken to
exports of HCFCs, as outlined below.
Proposed subsection 25A(2) as amended by item 86
in Schedule 2 will provide a new formula for calculating the quantity of
HCFCs taken to be involved in regulated HCFC activities. In short, the key
difference is that the formula allows HCFC exports to be subtracted from imports
of HCFCs and continues to provide a heel allowance percentage.[103]
As the Explanatory Memorandum notes, this formula ‘aligns with the definition
of consumption under the Montreal Protocol, which is production and imports
minus exports’.[104]
However, HCFCs exported under a direction given to the
licensee under proposed section 35A are not included.[105]
Proposed section 35A is inserted by item 45 of Schedule 1
of the Bill and would allow the Minister to direct licensees to export
specified amounts of HCFCs if a licensee exceeds their quota. The Explanatory Memorandum
states that ‘this is to ensure Australia avoids non-compliance with Montreal
Protocol obligations’.[106]
A Ministerial direction to export HCFCs under proposed section 35A is
reviewable by the AAT.[107]
Transferring
HCFC quotas
Section 35 of the OPSGGM Act currently enables a
licensee to transfer the unused part of their HCFC quota to another person. In
particular, under subsection 35(2), a licensee may transfer their quota, or
part of their quota, without transferring their licence.
Item 43 in Schedule 1 would replace subsection
35(2) and insert a new subsection 35(2A). The amended subsection
35(2) would continue to allow a licensee to transfer their entire unused
HCFC quota to another licence holder, without transferring their licence. New
subsection 35(2A) clarifies that a licensee may transfer a percentage of
their unused HCFC quota or quotas to another licensee, while retaining the
remaining percentage.
Licencing
and reporting changes
Parts 1 to 3 of Schedule 2 of the Bill
contain amendments to the licensing provisions in the ozone legislation.
Licence
renewals
Part 1 of Schedule 2 contains amendments
enabling licences holders to renew their licences at the end of the two year
licence period, rather than requiring a new licence application. Currently,
licences stay in force for a maximum period of two years.[108]
Licence holders are currently required to apply for a new licence at the end of
each licence period.[109]
Item 9 of Schedule 2 would amend section 19
and item 10 would insert a new Division 5 into Part III of the OPSGGM
Act to provide for licences to be renewed. Proposed section 19AA in
this new Division provides for licence holders to apply to the Minister for a
licence renewal no later than 60 days before their licence expires. Proposed
section 19AB enables the Minister to request further information from the
licence holder relating to their renewal application within 60 days after a
renewal application is received. Proposed section 19AC requires the
Minister to decide to renew or refuse to renew a licence and to give the
applicant written notice of that decision. In deciding whether to grant a
licence renewal, the Minister must have regard to the same matters as for the
initial grant of a licence, such as Australia’s international obligations.[110]
Under proposed subsection 19AD(1), the Minister must make a
decision on a renewal application within 60 days (or within 60 days of
receiving further information requested under proposed section 19AB), otherwise
the Minister is deemed to have refused the application. A decision to refuse a
licence renewal (including deemed refusal) will be subject to AAT review.[111]
The introduction of licence renewal provisions reflects
the measures proposed as a result of the review of the OPSGGM Program. However,
the licence period would remain two years,[112]
despite the fact that the duration of licences under the scheme was proposed to
be extended to three years.[113]
It is unclear why this measure was not included in this Bill, although it may
be included in the second tranche of amendments foreshadowed by the Department
(as discussed in the Background section of this Digest).
Reporting
requirements
Part 2 of Schedule 2 reduces the reporting
requirements for licence holders from quarterly to twice yearly, with
flexibility to allow those who wish to continue to report quarterly to do so. It
also reflects the measures stemming from the review of the OPSGGM Program.[114]
Currently, under sections 46 and 46A of the OPSGGM Act,
a person who manufactured, imported or exported a scheduled substance, [115]
or ODS or SGG equipment during a quarter is required to provide a report to the
Minister. This includes a requirement to report a nil amount if the person did
not undertake any of those activities during the quarter.[116]
The report must be provided to the Minister within 15 days after the end of the
relevant quarter. A person who fails to comply with these requirements commits
a strict liability offence.[117]
The Explanatory Memorandum states:
The requirement for licence holders to report on activity,
even if the licence holder has not undertaken any activity during the quarter,
imposes a regulatory burden on businesses as considerable time and resources
can be spent to lodge the quarterly reports.[118]
Item 60 in Schedule 2 inserts a new definition
of ‘reporting period’ into section 7 of the OPSGGM Act, as the period of
six months starting on 1 January or 1 July. Item 62 would then repeal
subsections 46(1) and (2) and replace them with new subsections to clarify which
activities will trigger the reporting requirements. In particular, proposed
subsection 46(1) includes a table of activities such as manufacturing,
importing, exporting or destroying a scheduled substance or SGG, or importing ODS
or SGG equipment. Under proposed subsection 46(1A), reports must be
provided to the Minister within 15 days of the end of the reporting period. In
other words, for those who have engaged in relevant activities, reports will
only be required twice a year instead of quarterly.[119]
Reports of nil quantity would also no longer be required. Failure to comply
with the reporting requirements would still be a strict liability offence,
subject to the same penalty.[120]
To reflect the change to reporting periods, items 51–58
and items 71–74 in Schedule 2 make consequential amendments to
the Import Levy Act and the Manufacture Levy Act.
Licence levy
thresholds and late payment penalty
Under the Import Levy Act, a levy is imposed on the
holders of licences who import scheduled substances, or ODS or SGG equipment.
Additionally, under the Manufacture Levy Act, a levy is imposed on the
holders of licences who manufacture scheduled substances. The Bill proposes to
remove the late payment penalty for such levies and to introduce a new threshold
below which licence holders will no longer be required to pay the cost recovery
levy.
Late
payment penalty
Unless the Minister has allowed a longer period, levies
under the regime are currently due 60 days after the end of the reporting
period to which the levy relates.[121]
If a levy is not paid by the date, subsection 69(2) of the OPSGGM Act currently
imposes a late payment penalty on the licence holder. The late payment penalty
is calculated at the rate of 30 per cent per annum of the unpaid levy,
calculated from the due date. Item 70 of Schedule 2 would repeal
subsection 69(2) of the OPSGGM Act, removing the late payment penalty.
The Explanatory Memorandum states, although the ‘late
payment penalty was initially intended to be a deterrent, it has not had this
effect’:
The majority of licence holders that have been subjected to
the requirement to pay a late payment penalty are repeat offenders, suggesting
the late payment penalty has a limited deterrent value. In addition, late
payment penalty amounts have been of a small value, resulting in an excess of
non-cost effective transactions to the Department per year (approximately 2200
transactions in 2014) ...[122]
The Explanatory Memorandum suggests that other provisions
in the OPSGGM Act ‘can be used as a stronger deterrent against the late
payment of levy, including taking such matters into account in considering
whether the licence holder is a fit and proper person’.[123]
Levy
threshold
According to the Explanatory Memorandum, levy liabilities
are often for very small amounts: ‘for example, the levy liability for
importing 100 refrigerators containing 200 grams of refrigerants would be
$3.30’.[124]
The Explanatory Memorandum suggests that ‘having a large number of small value
levy transactions can impose a significant regulatory burden on licence
holders’ and that ‘eliminating small value levy transactions will result in
efficiencies for both business and the Government’.[125]
Item 70 therefore proposes to insert a new
subsection 69(3) into the OPSGGM Act which will enable a licence
levy threshold to be specified in Regulations. If the amount of the levy
liability in a reporting period is under this threshold, the licence holder
would not need not to pay the levy. This amendment reflects the outcomes of the
review of the OPSGGM Program, which included a proposed waiver of small levy
debts up to $330.[126]
The Explanatory Memorandum considers:
It is appropriate for the levy threshold to be specified in
the OPSGGM Regulations in order to provide sufficient flexibility to vary the
threshold over time due to changing circumstances. Such changing circumstances
could include changes due to inflation or to the rate of the levy that is
imposed for the purposes of the Import Levy Act and the Manufacture Levy Act.
The rate of levy imposed under both of those Acts is prescribed in regulations
made for the purposes of those Acts.[127]
Item 76 is a transitional provision to clarify that
if the total debts owed immediately before the commencement of the item are
$330 or less, then those debts cease to be payable on commencement of the item.
Other
changes to licence provisions
Termination
of licences
Section 19A of the OPSGGM Act currently enables the
Minister to terminate a licence. Under the current subsection 19A(2), the
Minister must not terminate a licence (other than an SGG licence or an ODS/SGG
equipment licence) unless satisfied that it is necessary to do so for the
purposes of giving effect to an adjustment or amendment of the Montreal
Protocol.[128]
Item 11 in Schedule 2 would replace subsection 19A(2) to provide
that the Minister must not terminate any licence unless satisfied that
it is necessary for the purpose of giving effect to an adjustment of the United
Nations Convention on Climate Change (UNFCCC)[129]
or the Kyoto Protocol, as well as the Montreal Protocol. This
reflects the fact that the OPSGGM Act implements Australia’s obligations
not only under the Montreal Protocol, but also Australia’s obligations
under the UNFCCC and the Kyoto Protocol.[130]
New and
used gases
Section 13A of the OPSGGM Act currently outlines
the different types of licences under the Act and sets out the activities
allowed by the licences (as discussed in the background section of this Digest).
In particular, subsection 13A(2) currently sets out the activities allowed
under controlled substances licences, being the manufacture, import and export
of HCFCs, methyl bromide and SGGs. Items 22-26 of Schedule 1
amend section 13A.
Item 23 would insert a proposed subsection
13A(2A) to provide that a controlled substances licence does not apply to
recycled or used HCFCs, methyl bromide or SGGs. As the Explanatory Memorandum
notes:
Instead, a used substances licence would be required to
import or export these substances. This differentiates new and used gas and is
required to prevent used substances being counted against Australia’s Montreal
Protocol consumption and yearly industry limits under the HFC phase-down. Used
gases are accounted for in the country of manufacture. [131]
Subsection 13A(3) currently sets out the activities
allowed under essential uses licences, being the manufacture, import and export
of stage-1 or stage-2 scheduled substances. These are defined in section 7 of
the Act as CFCs, halons, methyl chloroform, carbon tetrachloride, and
bromochloromethane. Item 25 inserts proposed subsection 13A(3A)
to provide that an essential uses licence does not apply to recycled or used
stage-1 or stage‑2 scheduled substances.[132]
Again, these could be imported or exported under a used substances licence.
Subsection 13A(4) currently sets out the activities
allowed under used substance licences: that is, the import or export of
recycled or used stage-1 or stage-2 scheduled substances, HCFCs or methyl bromide.
Item 26 proposes to amend subsection 13A(4) to allow the import or
export of recycled or used SGGs[133]
under a used substances licence. As noted previously, SGGs are defined in
section 7 of the OPSGGM Act as HFCs, PFCs and sulfur hexafluoride. This
would mean, for example, that recycled or used HFCs could be imported or
exported under a used substances licence. The Explanatory Memorandum states ‘this
amendment is required for consistency with the Montreal Protocol which
differentiates between new and used gas’.[134]
Maximum
quantities
Currently subsection 16(3) of the OPSSGM Act
provides that a licence (other than an HCFC licence, an SGG licence or an
equipment licence) must specify:
- the substance or substances to which it relates and
- the activities it allows and
- the maximum quantities of the substance (or substances), allowed
for those activities.
Item 77 in Part 3 of Schedule 2 would
replace subsection 16(3) to provide that a licence must specify the substance
or substances to which it relates and the activities it allows. However, under proposed
paragraph 16(3)(b), the maximum quantities of the substance (or
substances), allowed for those activities, may be specified. In other
words, it will no longer be a mandatory requirement to specify maximum
quantities of substances for activities permitted by licences. The Explanatory
Memorandum suggests that this amendment is needed because it is ‘not always
appropriate or possible’ to specify maximum quantities of substances. An
example is given of the import of methyl bromide under a controlled substances
licence:
While the use of methyl bromide is generally prohibited under
the OPSGGM Act, there are some circumstances in which it can be used. Methyl
bromide is a highly effective fumigant used to protect the biosecurity
interests of Australia and other nations across the world. Under the Montreal
Protocol, one of the permitted uses of methyl bromide is for certified
Quarantine and Pre-Shipment uses and the Montreal Protocol does not place
limits on the use of methyl bromide for certified Quarantine and Pre-Shipment
uses. Therefore, the requirement under paragraph 16(3)(b) of the OPSGGM Act to
specify the maximum quantity for the import of methyl bromide for certified
Quarantine and Pre-Shipment uses is arbitrary and results in an unnecessary
administrative burden as licence holders are required to request variations to
their licences if these arbitrary import limits are exceeded.[135]
This amendment also reflects the measure, proposed as a
result of the review of the OPSGGM Program, to remove licence conditions that limit
the amount of methyl bromide that can be imported for Quarantine and
Pre-Shipment applications.[136]
New
substances
Part 4 of Schedule 2 of the Bill proposes to
add two new synthetic greenhouse gases (SGGs) to be regulated under the OPSGGM
Act: nitrogen trifluoride and PFC-9-1-18. PFC 9-1-18 has a limited number
of medical applications, while nitrogen trifluoride is used in the electronics
industry (semiconductor and LCD manufacture), and is increasingly a replacement
for PFCs and sulfur hexafluoride.[137]
The Explanatory Memorandum suggests that nitrogen trifluoride and an additional
PFC (PFC-9-1-18) were ‘included in the Kyoto Protocol for the second commitment
period’.[138]
The second commitment period under the Kyoto Protocol
was established by the Doha Amendment,
as noted in the background to this Digest. While nitrogen trifluoride was added
by the Doha Amendment, PFCs were already included in Annex A of the Kyoto
Protocol.
SGG or synthetic greenhouse gas is currently defined in
section 7 of the Act to mean an HFC, a PFC or sulfur hexafluoride. Item 79
of Schedule 2 would replace this definition to add nitrogen trifluoride.
Each SGG is defined in section 7 by reference to the lists
of ‘scheduled substances’ in Schedule 1 of the OPSGGM Act. Item
78 would insert a definition of nitrogen trifluoride in section 7 of the
Act, also referring to Schedule 1 of the Act. Item 84 would insert a new
Part XII into Schedule 1 of the Act in order to include nitrogen
trifluoride, while item 83 would amend the existing listing of PFCs in
Part X of Schedule 1 to add PFC-9-1-18.
As the Explanatory Memorandum states, the inclusion of
these new substances means that a controlled substances licence will be
required for the import, export of manufacture of these gases, and equipment
licences will be required for the import of equipment containing these gases.[139]
These licence holders will also be required to provide reports and pay relevant
levies to the Department in relation to the import, export or manufacture of
those substances.[140]
The inclusion of these additional substances also
implements the measures proposed as a result of the review of the OPSGGM
Program.[141]
Other
amendments
Objectives
of the Act
Items 3 and 4 of Schedule 1 of the Bill amend the
objectives in section 3 of the OPSGGM Act. The current objectives refer
to the Montreal Protocol and controls on ODSs. However, as noted in the
background to this Digest, as a result of the Kigali Amendment, the Montreal
Protocol will now regulate not just ODSs, but also SGGs. Items 3 and 4
therefore amend section 3 to refer to both ODSs and SGGs to reflect this
change.
Delegation
powers
Part 4 of Schedule 1 proposes to amend the
delegation provision in section 67A of the OPSGGM Act to extend the
Minister’s delegation power. Subsection 67A(1) currently enables the Minister
to delegate his or her functions and powers under the OPSGGM Act and regulations
to a Senior Executive Service (SES) employee or acting SES employee.[142]
Item 118 of Schedule 1 replaces subsection 67A(1) to extend this
power of delegation to Executive Level 2 employees, or acting Executive Level 2
employees, in the Department.
Other drafting
changes
Many other amendments in the Bill adjust
the wording of relevant provisions, to provide clearer drafting and to reflect
current drafting practices, without making any substantive changes. For
example, several items in Schedule 2 rename the current ‘ODS/SGG
equipment licence’ as an ‘equipment licence’.[143]
Most items in Part 2 of Schedule 1 replace
the word ‘products’ in the OPSGGM Act, the Import Levy Act and
the Manufacture Levy Act with the term ‘equipment’. Item 63 in Schedule
1 would then insert a definition of ‘equipment’ to define equipment as
including products.
Items 112–117 in Part 3 of Schedule 1
revise the definitions of relevant international agreements (such as the Montreal
Protocol, the Framework Convention on Climate Change and the Kyoto
Protocol) and remove the text of those agreements from Schedules 2 to 3E of
the OPSGGM Act. This avoids the need for amendments to the OPSGGM Act
if these conventions are amended. Notes to the new definitions refer readers to
the Australian Treaties Library on the AustLII website, consistent with current
legislative drafting practices where legislation involves international
conventions.
The Bill also proposes to replace section 13 of the OPSGGM
Act with a more clearly drafted version. Section 13 currently prohibits the
manufacture, import and export of HCFCs, methyl bromide, HBFCs, and other ODSs
and SGGs, as well as equipment containing ODSs and SGGs. Under section 13,
undertaking these activities without a licence is an offence of strict
liability (see subsection 13(8)), with a civil penalty of up to 500 penalty
units for an individual (currently equivalent to $90,000). Item 20 in Part
1 of Schedule 1 replaces section 13 with a new version of the same
provision. As the Explanatory Memorandum notes, proposed section 13
‘would retain existing prohibitions and exemptions, but would be structured
more clearly’.[144]
Proposed subsection 13(7) continues to provide that the offence is a
strict liability offence, and the maximum penalty also remains the same. However,
the revised structure of section 13 results in a reversal of the evidential
burden of proof, meaning the defendant will now be required to establish
applicable exceptions to the unlicensed manufacture, import or export offence
in proposed subsections 13(2), (3), (5) or (6).[145]
As noted earlier in this Digest, the Senate Scrutiny of Bills Committee raised
a number of issues in relation to this proposed subsection.
Bulk
substances and equipment
Section 9 of the OPSGGM Act currently provides that
certain parts of the Act (Parts III, IV and VII) do not regulate scheduled
substances (other than SGGs) in bulk. The section is intended to distinguish
between the regulation of products that contain and use scheduled substances in
their operation or were manufactured with controlled substances, from those
parts that are intended to control substances in their bulk form. In
particular, under section 9, products that solely store or transport scheduled
substance are not taken to be products that use scheduled substances in their
operation.
Item 66 in Part 2 of Schedule 1 of
the Bill would replace and redraft section 9 in an attempt to provide
greater clarity as to when a scheduled substance is considered to be a bulk
scheduled substance and when it is considered to be contained in equipment under
the OPSGGM Act. As the Explanatory Memorandum states ‘the distinction
between bulk scheduled substances as opposed to those imported in equipment is
an important one, as it informs whether or not quota may be required and the
kind of licence that may be required’:
Only HCFCs imported as bulk scheduled substances currently
require quota. Under the proposed amendments ... both HFCs and HCFCs imported as
bulk scheduled substances would require quota under the respective HCFC and HFC
quota schemes. HFCs and HCFCs contained in equipment would be exempt from quota
requirements (although are still subject to the other licensing requirements of
the OPSGGM Act). [146]
Proposed subsection 9(2) would provide that a
scheduled substance is a ‘bulk scheduled substance’, unless it falls under one
of two exemptions:
- the
substance is contained in equipment for a purpose other than, or in addition
to, the purpose of storing or transporting the substance or
- the
substance is used in the operation of equipment.
If a scheduled substance falls under either of these
exemptions, it would be considered to be contained in equipment for the
purposes of the OPSGGM Act, and relevant requirements relating to
equipment may apply.[147]
Note that item 63 of Schedule 1 to the Bill inserts definitions
of ‘bulk scheduled substance’, ‘containing’ and ‘using’ (which all refer back
to section 9) into section 7 of the OPSGGM Act.
A key difference in the proposed new section is that proposed
subsection 9(6) would enable Regulations to provide that a scheduled
substance is or is not a bulk scheduled substance; that a scheduled
substance is or is not taken to be contained in equipment; or is or is
not taken to be used in the operation of equipment.
[1]. Department
of the Environment and Energy (DEE), ‘The
ozone layer’, DEE website.
[2]. These
gases deplete the ozone layer by releasing chlorine and bromine atoms into the
stratosphere, which destroy ozone molecules. See further P Fraser, N Derek,
P Krummel and P Steele, ‘What
are ozone depleting substances?’, The Conversation, 13 September
2012.
[3]. DEE,
‘The
ozone layer’, op. cit.
[4]. Montreal
Protocol on Substances that Deplete the Ozone Layer, done in Montreal,
16 September 1987, [1989] ATS 18 (entered into force for Australia 17 August 1989).
[5]. DEE,
‘Montreal
Protocol on substances that deplete the ozone layer’, DEE website.
[6]. I
Rae, ‘Saving
the ozone layer: why the Montreal Protocol worked’, The
Conversation, 10 September 2012.
[7]. S
Soloman, D Ivy, D Kinnison, M Mills, R Neely III, A Schmidt, ‘Emergence
of healing in the Antarctic ozone layer’, Science, 353(6296),
15 July 2016.
[8]. DEE,
‘Synthetic
greenhouse gases’, DEE website.
[9]. Ibid.
Note that the GWP for each greenhouse gas is calculated over a specific time
interval. The standard generally used to calculate carbon dioxide equivalents
is 100 years, although a 20-year GWP is sometimes used for gases with shorter
lifetimes. For further information, see, for example, United States Environment
Protection Agency (US EPA), ‘Understanding
global warming potentials’, US EPA website, 14 February 2017.
[10]. DEE,
‘Synthetic
greenhouse gases’, op. cit.
[11]. Amendment
to the Montreal Protocol on Substances that Deplete the Ozone Layer,
(Kigali Amendment), done in Kigali 10–15 October 2016 (not yet in force).
[12]. I
Rae, ‘How
a saviour of the ozone hole became a climate change villain: and how we're
going to fix it’, The Conversation, 18 October 2016.
[13]. This
followed a study commissioned by the Department of the Environment which found
that viable lower and zero Global Warming Potential (GWP) alternatives were
available or being developed for commercial release in the near future, for the
majority of existing uses of HFCs: see further DEE, ‘HFC
consumption in Australia in 2013 and an assessment of the capacity of industry
to transition to nil and lower GWP alternatives’, DEE website, 2014.
[14]. J
Bishop (Minister for Foreign Affairs), G Hunt (Minister for Industry,
Innovation and Science) and J Frydenberg (Minister for the Environment and
Energy), Australia
plays lead role to secure 85 per cent reduction in global HFC emissions,
media release, 16 October 2016.
[15]. If
that condition is not met by that date, the Amendment will become effective on
the 90th day following the date of ratification by the 20th party: see Kigali
Amendment, Article IV. See also United Nations Environment Programme, Frequently
asked questions relating to the Kigali Amendment to the Montreal Protocol,
17 February 2017.
[16]. Explanatory
Memorandum, Ozone Protection and Synthetic Greenhouse Gas Management
Legislation Amendment Bill 2017, p. 11.
[17]. Ibid.,
Attachment, p. 1.
[18]. That
is, the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995
and the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act
1995.
[19]. DEE,
‘Licences
and reporting requirements’, DEE website. See also OPSGGM Act,
Schedule 1.
[20]. Ibid.
PFCs are used, for example, as refrigerants or as fire extinguishing agents,
although the aluminium industry is the main source of Australia's PFCs
emissions, which are a by-product of the smelting process. SF6 is an
insulating gas used by the electricity supply industry to prevent arcing in
electrical switchgear. Emissions occur due to leakage and during equipment maintenance
and decommissioning: DEE, ‘Synthetic
greenhouse gases’, op. cit.
[21]. DEE,
‘Domestic
HFC phase-down: frequently asked questions’, DEE website.
[22]. Kyoto
Protocol to the United Nations Framework Convention on Climate Change,
done in Kyoto, 11 December 1997, [2008] ATS 2 (entered into force for Australia
11 March 2008).
[23]. Kyoto
Protocol, Annex A.
[24]. Doha
Amendment to the Kyoto Protocol, done in Doha, 8 December 2012 (not yet
in force). See further K Loynes, Australia
and the Doha Amendment: a quick guide, Research paper series, 2016–17,
Parliamentary Library, Canberra, 2016.
[25]. M
Turnbull (Prime Minister), J Bishop (Minister for Foreign Affairs), J
Frydenberg (Minister for the Environment and Energy), Ratification
of the Paris Agreement on climate change and the Doha Amendment to the Kyoto
Protocol, media release, 10 November 2016.
[26]. DEE,
‘Licences
and reporting requirements’, DEE website.
[27]. OPSGGM
Act, section 13A. See also DEE, ‘Licences and
reporting requirements’, DEE website.
[28]. OPSGGM
Act, subsection 13A(5).
[29]. OPSGGM
Act, subsection 13A(2). A controlled substance licence covers
‘bulk’ gases: that is, gases in containers, such as cylinders. Controlled
substance licences do not cover products or equipment such as refrigerators or
car air conditioners which already have gas in them. These are covered by SGG
equipment licences, which are required under subsection 13(6A) for the import
of equipment that contains SGGs: see further DEE, ‘Controlled
substances licence to import synthetic greenhouse gases (SGGs): HFCs, PFCs
and/or SF6’, DEE website.
[30]. OPSGGM
Act, subsection 13A(3). See also DEE, ‘Essential
uses licences’, DEE website.
[31]. OPSGGM
Act, subsection 13A(4).
[32]. See
further DEE, ‘Exemptions:
do I need a licence?’, DEE website.
[33]. DEE,
‘Licences
and reporting requirements’, DEE website.
[34]. DEE,
‘Review
of the Ozone Protection and Synthetic Greenhouse Gas Management Program’,
DEE website.
[35]. Department
of the Environment, For
consultation: options paper: review of the Ozone Protection and Synthetic
Greenhouse Gas Management Programme, n.d.
[36]. Department
of the Environment, Government
statement: improvements to the Ozone Protection and Synthetic Greenhouse Gas
Management Programme to achieve emissions reductions and streamline its
operation, 2016.
[37]. Department
of the Environment, Measures
to achieve emissions reduction and efficiency and effectiveness gains in the
Ozone Protection and Synthetic Greenhouse Gas Management Programme,
April 2016.
[38]. DEE,
‘Review
of the Ozone Protection and Synthetic Greenhouse Gas Management Program’,
op. cit.
[39]. Ibid.
[40]. Ibid.
[41]. Ibid.
[42]. Senate
Selection of Bills Committee, Report,
5, 2017, 11 May 2017, p. 4.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, Canberra, 10 May 2017, pp. 31–38.
[44]. Ibid.,
p. 32.
[45]. Ibid.,
p. 32. See also Explanatory Memorandum, op. cit., p. 50.
[46]. Ibid.,
p. 32.
[47]. Ibid.
[48]. Ibid.,
p. 33.
[49]. Ibid.
[50]. Ibid.,
p. 34. See item 20, proposed subsection 13(7).
[51]. Senate
Standing Committee for the Scrutiny of Bills, op. cit., pp. 35–38.
[52]. Ibid.,
p. 35.
[53]. Ibid.,
p. 36. See also Explanatory Memorandum, op. cit., p. 50.
[54]. Ibid.
[55]. Ibid.,
p. 37.
[56]. See,
for example, C Milne (Australian Greens Leader), Senate
backs Greens call to phase out globe-warming refrigerants at 25th anniversary
meeting, media release, 1 November 2012.
[57]. Fire
Protection Association Australia, Global
success for Australia led by the Department of the Environment and Energy,
media release, 19 October 2016.
[58]. Australian
Institute of Refrigeration Air Conditioning and Heating (AIRAH), AIRAH
gives a thumbs-up to announcement of HFC phase-down, media release, 29
June 2016.
[59]. Australian
Refrigeration Council, ‘Kigali
HFC phase-down agreement reached: coming in from the cold’, Cool Change,
43, December 2016, p. 5.
[60]. For
all published submissions made to the consultation on the Options Paper, see
DEE, ‘Consultation
on the Ozone Protection and Synthetic Greenhouse Gas Management Programme
options paper’, DEE website.
[61]. The
Climate Institute, Submission
to the DEE, Consultation on the Ozone Protection and Synthetic Greenhouse
Gas Management Programme options paper, November 2015.
[62]. Australian
Refrigeration Association (ARA), Submission
to the DEE, Consultation on the Ozone Protection and Synthetic Greenhouse
Gas Management Programme options paper, submission 2, 16 November 2015.
[63]. Explanatory
Memorandum, Ozone Protection and Synthetic Greenhouse Gas Management
Legislation Amendment Bill 2017, p. 3.
[64]. Ibid.,
Attachment.
[65]. The
Statement of Compatibility with Human Rights can be found at pages 5–9 of the
Explanatory Memorandum to the Bill.
[66]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, Canberra, 9 May 2017, p. 74.
[67]. J
Bishop (Minister for Foreign Affairs), G Hunt (Minister for Industry,
Innovation and Science) and J Frydenberg (Minister for the Environment and
Energy), Australia
plays lead role to secure 85 per cent reduction in global HFC emissions,
media release, 16 October 2016.
[68]. J
Frydenberg, ‘Second
reading speech: Ozone Protection and Synthetic Greenhouse Gas Management
Legislation Amendment Bill 2017’, House of Representatives, Debates,
30 March 2017, p. 3791.
[69]. Explanatory
Memorandum, op. cit., p. 11.
[70]. Item
13 also inserts a definition of ‘regulated HFC activity’ which refers to proposed
section 36B.
[71]. The
relevant regulations would be made under proposed subsection 13(3) at item
20 of Schedule 1.
[72]. Proposed
subsection 18(1), item 4, paragraph (a).
[73]. Proposed
subsection 18(1), item 4, paragraphs (b) and (c).
[74]. The
Minister maintains a Register of Montreal Protocol Countries under
section 41 of the Act: see DEE, ‘Register
of Montreal Protocol countries: imports and exports of ozone depleting
substances’, DEE website.
[75]. Proposed
subsection 36A(3).
[76]. Explanatory
Memorandum, op. cit., p. 20; see also p. 22.
[77]. DEE,
‘Domestic
HFC phase-down: frequently asked questions’, DEE website.
[78]. Item
48 provides that a reserve HFC quota must not come into force before 1
January 2018.
[79]. Explanatory
Memorandum, op. cit., pp. 11–12. See also proposed subsection 36G(5), which
provides that Regulations made setting the reserve HFC quota limit must be
consistent with Australia’s international obligations.
[80]. Explanatory
Memorandum, op. cit., p. 23.
[81]. Ibid.,
p. 23.
[82]. Ibid.,
p. 24.
[83]. That
is, the total of both their HFC quota and/or any reserve HFC quotas allocated
to the licensee for that year: see proposed paragraphs 36H(1)(a)(ii)
and 36H(1)(b)(ii).
[84]. See
table items 5 and 6 in proposed subsection 18(1) of the OPSGGM Act,
at item 30 of Schedule 1 to the Bill. The Minister maintains a
Register of Montreal Protocol Countries under section 41 of the Act: see DEE, ‘Register
of Montreal Protocol countries: imports and exports of ozone depleting
substances’, op. cit.
[85]. See
also item 30 which amends section 18.
[86]. The
value of a penalty unit is set out in the Crimes Act 1914, section 4AA.
Section 4B of the Crimes Act provides that the maximum penalty
applicable to a corporation is five times the maximum penalty that could be
imposed on an individual. Note that the Crimes Amendment
(Penalty Unit) Act 2017 increases the amount of a Commonwealth penalty
unit from $180 to $210 from 1 July 2017.
[87]. OPSGGM
Act, section 24.
[88]. Item
5 proposes to amend section 7 of the Act to insert a definition of ‘CO2e
megatonnes’ which will refer to section 9A.
[89]. Explanatory
Memorandum, op. cit., p. 12. Intergovernmental Panel on Climate Change (IPCC), Climate change 2007: the physical
science basis, Cambridge University Press, Cambridge, 2007, p. 212.
[90]. IPCC,
Climate change 2013: the
physical science basis, Cambridge University Press, Cambridge, 2013,
see especially Chapter 8, Appendix 8.A.
[91]. They
are also consistent with the GWPs set out in Regulation 2.02 of the National Greenhouse
and Energy Reporting Regulations 2008.
[92]. Montreal
Protocol, Article 2F. Note that there is a very small allowance until 2030
for servicing of existing refrigeration and air conditioning equipment.
[93]. DEE,
‘Montreal
Protocol on substances that deplete the ozone layer’, DEE website.
[94]. Explanatory
Memorandum, op. cit., p. 50.
[95]. See
item 19 of Schedule 3, which clarifies the application of the
amendments made by Part 2 of Schedule 3. Note that the other
items in Part 2 of Schedule 3 are consequential to the
amendment in item 18.
[96]. Explanatory
Memorandum, op. cit., p. 51.
[97]. Explanatory
Memorandum, op. cit., p. 16.
[98]. OPSGGM
Act, subsection 18(1).
[99]. The
existing definition of ‘regulated HCFC activity’ in section 7 is proposed to be
repealed and replaced by items 12–13 in Schedule 1 with a
definition that refers to section 25A.
[100]. Explanatory
Memorandum, op. cit., p. 17.
[101]. See
the definition of ‘heel allowance percentage’: OPSGGM Act, section 7 and
regulation 2AA of the Ozone Protection and
Synthetic Greenhouse Gas Management Regulations 1995.
[102]. See
commencement information in clause 2 of the Bill.
[103]. Note
that in situations where a quota holder exports more than they import, proposed
subsection 25A(2) is worded so that the quantity worked out using the
formula must be greater than nil.
[104]. Explanatory
Memorandum, op. cit., p. 49.
[105]. Schedule
2, Part 5, item 86, proposed subsection 25A(2).
[106]. Explanatory
Memorandum, op. cit., p. 49.
[107]. Item
52 of Schedule 1, which amends section 66 of the OPSGGM Act.
[108]. OPSGGM
Act, sections 8A and 19.
[109]. Explanatory
Memorandum, op. cit., p. 32.
[110]. Proposed
subsections 19AC(2) and (3). The matters for the initial grant of a licence
are set out in existing subsections 16(3A) to (6B).
[111]. Item
13 of Schedule 2 of the Bill, which amends section 66 of the OPSGGM
Act.
[112]. OPSGGM
Act, section 8A which is unamended by this Bill.
[113]. DEE,
‘Review
of the Ozone Protection and Synthetic Greenhouse Gas Management Program’, op.
cit.
[114]. Ibid.
[115]. ‘Scheduled
substance’ is defined in the section 7 of the OPSGGM Act to mean a
substance referred to in Schedule 1 of the OPSGGM Act, whether existing
alone or in a mixture. Schedule 1 contains lists of various ODSs and SGGs.
[116]. OPSGGM
Act, subsections 46(3), 46A(4A) and (4B).
[117]. OPSGGM
Act, subsections 46(2A) and 46A(6).
[118]. Explanatory
Memorandum, op. cit., p. 43.
[119]. Note
that item 65 repeals the current section 46A, since the activities
covered by section 46A would be covered by the table in proposed subsection 46(1).
[120]. Proposed
subsection 46(2) and existing subsection 46(2A).
[121]. OPSGGM
Act, subsection 69(1). Note item 69 would amend this subsection to
replace the reference to ‘quarter’ with a reference to ‘reporting period’ as a
result of the amendments to the reporting periods outlined elsewhere in this
Digest.
[122]. Explanatory
Memorandum, op. cit., p. 45.
[123]. Ibid.
See also OPSGGM Act, subsection 16(4).
[124]. Explanatory
Memorandum, op. cit., p. 45.
[125]. Ibid.
[126]. DEE,
‘Review
of the Ozone Protection and Synthetic Greenhouse Gas Management Program’,
op. cit.
[127]. Explanatory
Memorandum, op. cit., p. 45.
[128]. OPSGGM
Act, subsection 19A(2). Note that the Minister has a separate power to cancel
a licence under section 20 of the OPSGGM Act, where the Minister is
satisfied that the licensee is no longer a fit and proper person to hold a
licence or the licensee has contravened a condition of the licence.
[129]. United
Nations Framework Convention on Climate Change done in New York, 9 May
1992, [1994] ATS 2 (entered into force for generally and for Australia 21 March
1994).
[130]. Explanatory
Memorandum, op. cit., p. 35.
[131]. Explanatory
Memorandum, op. cit., p. 15.
[132]. Item
9 in Schedule 1 of the Bill inserts a new definition of ‘recycled or
used stage-1 or stage-2 scheduled substances’ into the OPSGGM Act.
[133]. Item
9 in Schedule 1 of the Bill inserts a new definition of ‘recycled or
used SGGs’ into the OPSGGM Act.
[134]. Explanatory
Memorandum, op. cit., p. 15.
[135]. Explanatory
Memorandum, op. cit., p. 47.
[136]. Department
of the Environment, Measures
to achieve emissions reduction and efficiency and effectiveness gains in the
Ozone Protection and Synthetic Greenhouse Gas Management Programme,
April 2016, p. 11.
[137]. Australian
Government, Submission
to the AWG-LCA and AWG-KP, Views on the coverage of greenhouse gases,
n.d., p. 3; see also F Pearce, ‘Rogue greenhouse gas should be
covered by climate plans’, New Scientist, 199(2663), 7 May 2008, p. 10,
Academic Search Premier database.
[138]. Explanatory
Memorandum, op. cit., p. 47.
[139]. Ibid.,
p. 48.
[140]. Ibid.,
p. 48.
[141]. Department
of the Environment, Measures to achieve emissions reduction, op. cit.,
p. 7. Note that the measures also proposed to add HFC‑41‑10mee.
This appears to have been a typographical error as no such substance is listed
under the Montreal Protocol or the Kigali Amendment. However, HFC-43-10mee
is covered by the regime and is already listed under the OPSGGM Act.
[142]. Although
note that some powers are excepted from this under subsection 67A(2).
[143]. See,
for example, items 5, 14–18 in Part 1 of Schedule 2 of the
Bill.
[144]. Explanatory
Memorandum, op. cit., p. 14.
[145]. Ibid.
[146]. Explanatory
Memorandum, op. cit., p. 26.
[147]. Ibid.,
p. 26.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.