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This is a Bill, not an Act. For current law, see the Acts databases.
CARBON CREDITS (CARBON FARMING INITIATIVE) BILL 2011
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Carbon Credits (Carbon Farming
Initiative) Bill 2011
No. , 2011
(Climate Change and Energy Efficiency)
A Bill for an Act about projects to remove carbon
dioxide from the atmosphere and projects to avoid
emissions of greenhouse gases, and for other
purposes
i Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Objects
...............................................................................................
3
4 Simplified
outline
..............................................................................
3
5 Definitions
.........................................................................................
4
6
Vacancy in the office of a Domestic Offsets Integrity
Committee member ......................................................................... 23
7
Electronic notice transmitted to the Administrator .......................... 23
8
Crown to be bound ........................................................................... 24
9
Extension to external Territories ...................................................... 25
Part 2--Issue of Australian carbon credit units in respect of
offsets projects
26
Division 1--Introduction
26
10 Simplified
outline
............................................................................
26
Division 2--Issue of Australian carbon credit units in respect of
offsets projects
27
11
Issue of Australian carbon credit units in respect of offsets
projects ............................................................................................. 27
Division 3--Certificate of entitlement
29
12 Application
for
certificate of entitlement ......................................... 29
13
Form of application .......................................................................... 29
14 Further
information
..........................................................................
30
15
Issue of certificate of entitlement ..................................................... 30
16 Unit
entitlement--sequestration
offsets projects other than
native forest protection projects ....................................................... 32
17
Unit entitlement--native forest protection projects ......................... 33
18 Unit
entitlement--emissions
avoidance offsets project ................... 35
19
Cancellation of units issued in respect of a project that is
subject to the voluntary automatic unit cancellation regime ............ 35
20
Certificate of entitlement not transferable ....................................... 36
Part 3--Eligible offsets projects
37
Division 1--Introduction
37
21 Simplified
outline
............................................................................
37
Division 2--Declaration of eligible offsets project
38
22
Application for declaration of eligible offsets project ..................... 38
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 ii
23
Form of application .......................................................................... 38
24 Further
information
..........................................................................
39
25 Withdrawal
of
application ............................................................... 39
26 Application
may be split .................................................................. 40
27 Declaration
of
eligible offsets project .............................................. 40
28
Declaration may be subject to condition about obtaining
regulatory approvals ........................................................................ 46
Division 3--Variation of declaration of eligible offsets project
47
29
Voluntary variation of declaration of eligible offsets project
in relation to the project area or project areas .................................. 47
30
Voluntary variation of declaration of eligible offsets project
in relation to the project proponent .................................................. 49
31
Voluntary variation of conditional declaration of eligible
offsets project--regulatory approvals obtained ............................... 51
Division 4--Revocation of declaration of eligible offsets project
53
Subdivision A--Voluntary revocation of declaration of eligible
offsets project
53
32
Voluntary revocation of declaration of eligible offsets
project--units issued ........................................................................ 53
33
Voluntary revocation of declaration of eligible offsets
project--no units issued ................................................................... 54
Subdivision B--Unilateral revocation of declaration of eligible
offsets project
55
34
Unilateral revocation of declaration of eligible offsets
project--regulatory approvals not obtained ..................................... 55
35
Unilateral revocation of declaration of eligible offsets
project--eligibility requirements not met etc. ................................. 55
36
Unilateral revocation of declaration of eligible offsets
project--project proponent ceases to be a recognised offsets
entity ................................................................................................ 56
37
Unilateral revocation of declaration of eligible offsets
project--person responsible for carrying out project ceases
to be the project proponent .............................................................. 57
38
Unilateral revocation of declaration of eligible offsets
project--false or misleading information ........................................ 58
Division 5--Entries in title registers
59
39
Entries in title registers--general ..................................................... 59
40
Entries in title registers--land subject to carbon maintenance
obligation ......................................................................................... 59
Division 6--Additionality test
60
41 Additionality
test
.............................................................................
60
iii Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 7--Net total number of Australian carbon credit units
issued in relation to an eligible offsets project
62
42
Net total number of Australian carbon credit units issued in
relation to an eligible offsets project ................................................ 62
Division 8--Applicable carbon sequestration right
63
43 Applicable
carbon
sequestration right ............................................. 63
Division 9--Eligible interest in an area of land
69
44
Eligible interest in an area of land--Torrens system land ............... 69
45
Eligible interest in an area of land--Crown land that is not
Torrens system land ......................................................................... 70
Division 10--Native title land
73
46
Registered native title bodies corporate--deemed project
proponent ......................................................................................... 73
47
Administrator to notify Crown lands Minister of declaration
of eligible offsets project ................................................................. 74
48
Designation of special native title account ...................................... 75
49
Issue of Australian carbon credit units to special native title
account ............................................................................................. 76
50
Units held in special native title account ......................................... 77
51
Regulations about consulting common law holders etc. .................. 77
Division 11--Freehold land rights land
78
52
Administrator to notify Crown lands Minister of declaration
of eligible offsets project ................................................................. 78
Division 12--Types of projects
79
53 Emissions
avoidance
offsets projects ............................................... 79
54 Sequestration
offsets projects .......................................................... 79
55
Kyoto offsets projects and non-Kyoto offsets projects etc. ............. 80
56 Excluded
offsets projects ................................................................. 81
Division 13--Restructure of eligible offsets projects
83
57 Restructure
of
eligible offsets projects ............................................. 83
58
Restructure of an eligible offsets project that is subject to the
voluntary automatic unit cancellation regime .................................. 85
Part 4--Recognised offsets entities
86
59 Simplified
outline
............................................................................
86
60 Application
for
recognition
as an offsets entity ............................... 86
61
Form of application .......................................................................... 86
62 Further
information
..........................................................................
86
63 Withdrawal
of
application ............................................................... 87
64 Recognition
as
an
offsets entity ....................................................... 87
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 iv
65 Cancellation
of recognition .............................................................. 90
66 Surrender
of
recognition .................................................................. 93
67 Recognition
is
not
transferable ........................................................ 93
Part 5--Crediting periods
94
Division 1--Introduction
94
68 Simplified
outline
............................................................................
94
Division 2--First crediting period
95
69 First
crediting
period
........................................................................
95
Division 3--Subsequent crediting period
96
70 Application
for
subsequent crediting period .................................... 96
71
Form of application .......................................................................... 97
72 Further
information
..........................................................................
97
73 Withdrawal
of
application ............................................................... 97
74
Determination of subsequent crediting period ................................. 98
Part 6--Reporting and notification requirements
100
Division 1--Introduction
100
75 Simplified
outline
..........................................................................
100
Division 2--Reporting requirements
101
76 Offsets
reports
................................................................................
101
77
Declaration that offsets report requirement does not apply ........... 103
Division 3--Notification requirements
105
Subdivision A--Project proponents
105
78
Notification requirement--ceasing to be the project
proponent for an eligible offsets project otherwise than
because of death ............................................................................. 105
79 Notification
requirement--death
of the project proponent for
an eligible offsets project ............................................................... 106
80 Notification
requirement--methodology determinations .............. 106
81 Notification
requirement--natural disturbances ............................ 107
82
Notification requirement--reversal of sequestration due to
conduct of another person .............................................................. 108
83
Notification requirement--project becomes inconsistent with
a regional natural resource management plan ................................ 110
Subdivision B--Recognised offsets entities
111
84 Notification
requirement--recognised offsets entities ................... 111
Subdivision C--General
112
85
Regulations may impose notification requirements ....................... 112
v Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 7--Requirements to relinquish Australian carbon credit
units
114
Division 1--Introduction
114
86 Simplified
outline
..........................................................................
114
87
Maximum potential relinquishment period .................................... 114
Division 2--General relinquishment requirements
116
88
Requirement to relinquish--false or misleading information ........ 116
Division 3--Relinquishment requirements for sequestration
offsets projects
118
89
Requirement to relinquish--revocation of declaration of
eligible offsets project .................................................................... 118
90
Requirement to relinquish--reversal of sequestration other
than due to natural disturbance or conduct etc. .............................. 119
91
Requirement to relinquish--reversal of sequestration due to
natural disturbance or conduct and no mitigation happens ............ 121
Division 4--Transition of offsets projects from prescribed
non-CFI offsets schemes
123
92
Request for determination .............................................................. 123
93
Form of request .............................................................................. 123
94 Further
information
........................................................................
123
95 Determination
................................................................................
124
Part 8--Carbon maintenance obligation
126
Division 1--Introduction
126
96 Simplified
outline
..........................................................................
126
Division 2--Carbon maintenance obligation
127
97 Carbon
maintenance obligation ..................................................... 127
98
Variation or revocation of declaration of carbon maintenance
obligation ....................................................................................... 131
99
Revocation of declaration of carbon maintenance
obligation--voluntary relinquishment of Australian carbon
credit units ..................................................................................... 133
Division 3--Injunctions
135
100 Injunctions
.....................................................................................
135
101 Interim
injunctions
.........................................................................
135
102 Discharge
etc.
of injunctions.......................................................... 136
103
Certain limits on granting injunctions not to apply ........................ 136
104
Other powers of the Federal Court unaffected ............................... 136
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 vi
Part 9--Methodology determinations
137
Division 1--Introduction
137
105 Simplified
outline
..........................................................................
137
Division 2--Methodology determinations
138
Subdivision A--Making of methodology determinations
138
106 Methodology
determinations ......................................................... 138
107 Baseline
.........................................................................................
141
108 Application
for
endorsement of proposal for methodology
determination ................................................................................. 141
109
Form of application ........................................................................ 141
110 Further
information
........................................................................
142
111 Withdrawal
of
application ............................................................. 142
112
Endorsement of proposal for methodology determination ............. 143
113 Advice
about
endorsement of proposal .......................................... 146
Subdivision B--Variation of methodology determinations
146
114
Variation of methodology determinations ..................................... 146
115
When variation takes effect ........................................................... 148
116
Application for endorsement of proposal for the variation of
a methodology determination ........................................................ 149
117
Form of application ........................................................................ 149
118 Further
information
........................................................................
149
119 Withdrawal
of
application ............................................................. 150
120
Endorsement of proposal for variation of methodology
determination ................................................................................. 150
121 Advice
about
endorsement of proposal .......................................... 154
Subdivision C--Duration of methodology determinations
154
122
Duration of methodology determinations ...................................... 154
Subdivision D--Revocation of methodology determinations
155
123 Revocation
of
methodology determinations .................................. 155
Subdivision E--Applicable methodology determination
156
124
Applicable methodology determination for a reporting period ...... 156
125 Original
methodology
determination continues to apply after
expiry ............................................................................................. 156
126 Original
methodology
determination continues to apply after
variation ......................................................................................... 157
127 Original
methodology
determination continues to apply after
revocation ...................................................................................... 157
128
Request to approve application of methodology
determination to a project with effect from the start of a
reporting period ............................................................................. 158
vii Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
129 Further
information
........................................................................
158
130 Administrator
may
approve application of methodology
determination to a project with effect from the start of a
reporting period ............................................................................. 159
Subdivision F--Transitional
160
131
Transitional--pre-commencement application for
endorsement of proposal ................................................................ 160
132
Transitional--pre-commencement endorsement of proposal ........ 160
Division 3--Offsets integrity standards
162
133 Offsets
integrity standards ............................................................. 162
Part 10--Multiple project proponents
165
Division 1--Introduction
165
134 Simplified
outline
..........................................................................
165
Division 2--References to project proponents
166
135
References to project proponents ................................................... 166
Division 3--Nominee of multiple project proponents
168
136
Nomination of nominee by multiple project proponents ............... 168
137
Service of documents on nominee ................................................. 169
138
Eligible voluntary action taken by nominee .................................. 169
139
Unilateral revocation of declaration of eligible offsets
project--failure of multiple project proponents to nominate a
nominee ......................................................................................... 171
140 Designation
of
nominee account .................................................... 171
141
Issue of Australian carbon credit units to nominee account ........... 172
142
Units held in nominee account ....................................................... 174
143 Instructions
in
relation to nominee account ................................... 174
144
Updating nominee account details on change of nominee ............. 175
Division 4--Obligations of multiple project proponents
176
145
Obligations of multiple project proponents ................................... 176
Part 11--Australian carbon credit units
177
Division 1--Introduction
177
146 Simplified
outline
..........................................................................
177
Division 2--Issue of Australian carbon credit units
178
147
Issue of Australian carbon credit units ........................................... 178
148
How Australian carbon credit units are to be issued ...................... 178
149
Circumstances in which Australian carbon credit units may
be issued ........................................................................................ 178
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 viii
Division 3--Property in, and transfer of, Australian carbon
credit units
179
150
An Australian carbon credit unit is personal property ................... 179
151 Transfer
of
Australian carbon credit units ..................................... 179
152 Transmission
of
Australian carbon credit units by
assignment ..................................................................................... 179
153
Transmission of Australian carbon credit units by operation
of law etc. ...................................................................................... 180
154
Outgoing international transfers of Australian carbon credit
units ............................................................................................... 182
155
Restrictions on outgoing international transfers of Kyoto
Australian carbon credit units ........................................................ 183
156
Transfer of Australian carbon credit units to another Registry
account held by the transferor ........................................................ 183
157
Exchange of Kyoto Australian carbon credit units for Kyoto
units ............................................................................................... 184
158
Equitable interests in relation to an Australian carbon credit
unit ................................................................................................. 185
Part 12--Publication of information
187
Division 1--Introduction
187
159 Simplified
outline
..........................................................................
187
Division 2--Information about units
188
160
Information about issue of Australian carbon credit units ............. 188
161
Quarterly reports about issue of Australian carbon credit
units ............................................................................................... 188
162
Publication of concise description of the characteristics of
Australian carbon credit units ........................................................ 188
Division 3--Information about voluntary cancellation of units
189
163
Information about number of voluntarily cancelled
Australian carbon credit units ........................................................ 189
Division 4--Information about relinquishment requirements
190
164
Information about relinquishment requirements ............................ 190
165
Information about unpaid administrative penalties ........................ 191
166
Information about number of relinquished units ............................ 191
Division 5--Register of Offsets Projects
193
167 Register
of
Offsets Projects ........................................................... 193
168
Entries in the Register .................................................................... 193
169
Requests for information about project area not to be set out
in the Register ................................................................................ 195
ix Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 13--Fraudulent conduct
197
170 Simplified
outline
..........................................................................
197
171
Units issued as a result of fraudulent conduct--court may
order relinquishment ...................................................................... 197
Part 14--Voluntary cancellation of Australian carbon credit
units
200
172 Simplified
outline
..........................................................................
200
173
Voluntary cancellation of Australian carbon credit units ............... 200
Part 15--Relinquishment of Australian carbon credit units
202
Division 1--Introduction
202
174 Simplified
outline
..........................................................................
202
Division 2--How Australian carbon credit units are relinquished
203
175
How Australian carbon credit units are relinquished ..................... 203
176 Deemed
relinquishment
.................................................................
205
177
Transfer of certain units instead of relinquishment of Kyoto
Australian carbon credit units ........................................................ 206
178
Transfer of certain units instead of relinquishment of
non-Kyoto Australian carbon credit units ...................................... 208
Division 3--Compliance with relinquishment requirements
210
179 Compliance
with
relinquishment requirements ............................. 210
180 Late
payment
penalty
.....................................................................
212
181 Recovery
of
penalties ..................................................................... 213
182 Set-off
............................................................................................
213
183 Refund
of
overpayments ................................................................ 213
Part 16--Information-gathering powers
215
184 Simplified
outline
..........................................................................
215
185
Administrator may obtain information or documents .................... 215
186 Copying
documents--compensation ............................................. 216
187 Copies
of
documents ...................................................................... 216
188 Administrator
may
retain documents ............................................. 217
189 Self-incrimination
..........................................................................
217
Part 17--Record-keeping and project monitoring requirements
219
Division 1--Introduction
219
190 Simplified
outline
..........................................................................
219
Division 2--Record-keeping requirements
220
191 Record-keeping
requirements--general ........................................ 220
192
Record-keeping requirements--preparation of offsets report ........ 221
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 x
193
Record-keeping requirements--methodology determinations ....... 222
Division 3--Project monitoring requirements
223
194 Project
monitoring
requirements--methodology
determinations ................................................................................ 223
Part 18--Monitoring powers
224
Division 1--Simplified outline
224
195 Simplified
outline
..........................................................................
224
Division 2--Appointment of inspectors and issue of identity
cards
225
196 Appointment
of
inspectors ............................................................. 225
197 Identity
cards
.................................................................................
225
Division 3--Powers of inspectors
227
Subdivision A--Monitoring powers
227
198
Inspector may enter premises by consent or under a warrant ........ 227
199 Monitoring
powers
of inspectors ................................................... 227
200 Persons
assisting
inspectors ........................................................... 230
Subdivision B--Powers of inspectors to ask questions and seek
production of documents
230
201
Inspector may ask questions and seek production of
documents ...................................................................................... 230
202 Self-incrimination
..........................................................................
231
Division 4--Obligations and incidental powers of inspectors
232
203 Consent
..........................................................................................
232
204
Announcement before entry under warrant ................................... 232
205
Inspector to be in possession of warrant ........................................ 232
206
Details of warrant etc. to be given to occupier............................... 233
207
Expert assistance to operate electronic equipment ......................... 233
208
Compensation for damage to electronic equipment ....................... 234
Division 5--Occupier's rights and responsibilities
236
209
Occupier entitled to observe execution of warrant ........................ 236
210
Occupier to provide inspector with facilities and assistance .......... 236
Division 6--Monitoring warrants
237
211 Monitoring
warrants
......................................................................
237
Division 7--Powers of magistrates
239
212 Powers
of
magistrates
....................................................................
239
xi Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 19--Audits
240
Division 1--Introduction
240
213 Simplified
outline
..........................................................................
240
Division 2--Audits
241
214 Compliance
audits
.........................................................................
241
215 Other
audits
....................................................................................
243
Part 20--Liability of executive officers of bodies corporate
245
216 Simplified
outline
..........................................................................
245
217
Civil penalties for executive officers of bodies corporate .............. 245
218
Reasonable steps to prevent contravention .................................... 246
Part 21--Civil penalty orders
247
219 Simplified
outline
..........................................................................
247
220
References to Court ....................................................................... 247
221
Civil penalty orders ........................................................................ 247
222
Who may apply for a civil penalty order ....................................... 248
223
Two or more proceedings may be heard together .......................... 248
224
Time limit for application for an order .......................................... 249
225
Civil evidence and procedure rules for civil penalty orders ........... 249
226
Civil proceedings after criminal proceedings ................................ 249
227 Criminal
proceedings
during civil proceedings ............................. 249
228 Criminal
proceedings
after civil proceedings ................................ 249
229
Evidence given in proceedings for a civil penalty order not
admissible in criminal proceedings ................................................ 250
230
Mistake of fact ............................................................................... 250
231
State of mind .................................................................................. 251
232 Continuing
contraventions ............................................................. 252
Part 22--Offences relating to administrative penalties
254
233 Simplified
outline
..........................................................................
254
234
Scheme to avoid existing liability to pay administrative
penalty ........................................................................................... 254
235
Scheme to avoid future liability to pay administrative penalty ...... 256
Part 23--Enforceable undertakings
259
236 Simplified
outline
..........................................................................
259
237 Acceptance
of
undertakings ........................................................... 259
238 Enforcement
of
undertakings ......................................................... 260
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 xii
Part 24--Review of decisions
261
Division 1--Introduction
261
239 Simplified
outline
..........................................................................
261
Division 2--Decisions of the Administrator
262
240 Reviewable
decisions ..................................................................... 262
241
Applications for reconsideration of decisions made by
delegates of the Administrator ....................................................... 263
242 Reconsideration
by
the Administrator ........................................... 264
243
Deadline for reconsideration .......................................................... 265
244
Review by the Administrative Appeals Tribunal ........................... 265
245
Stay of proceedings for the recovery of an administrative
penalty ........................................................................................... 265
Division 3--Decisions of the Domestic Offsets Integrity
Committee
267
245A
Review by the Administrative Appeals Tribunal ........................... 267
Part 25--Carbon Credits Administrator
268
246 Carbon
Credits
Administrator ........................................................ 268
247 Functions
of
the
Administrator ...................................................... 268
248 Acting
Administrator
.....................................................................
268
249
Delegation by the Administrator .................................................... 269
250
Administrator to be assisted by APS employees in the
Department .................................................................................... 269
251 Other
persons
assisting the Administrator ..................................... 270
252 Consultants
....................................................................................
270
253
Minister may give directions to the Administrator ........................ 270
Part 26--Domestic Offsets Integrity Committee
271
Division 1--Establishment and functions of the Domestic Offsets
Integrity Committee
271
254
Establishment of the Domestic Offsets Integrity Committee ......... 271
255
Functions of the Domestic Offsets Integrity Committee ............... 271
Division 2--Membership of the Domestic Offsets Integrity
Committee
272
256
Membership of the Domestic Offsets Integrity Committee ........... 272
257
Appointment of Domestic Offsets Integrity Committee
members ......................................................................................... 272
258
Period for appointment for Domestic Offsets Integrity
Committee members ...................................................................... 273
259 Acting
Domestic
Offsets
Integrity Committee members ............... 273
xiii Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
260 Procedures
.....................................................................................
275
261
Disclosure of interests to the Minister ........................................... 276
262
Disclosure of interests to Domestic Offsets Integrity
Committee ..................................................................................... 276
263
Outside employment ...................................................................... 277
264 Remuneration
and
allowances ....................................................... 277
265
Leave of absence ............................................................................ 277
266 Resignation
....................................................................................
278
267 Termination
of
appointment .......................................................... 278
268 Other
terms
and
conditions ............................................................ 279
269 Assistance
to
Domestic
Offsets Integrity Committee .................... 279
Part 27--Secrecy
280
270 Secrecy
...........................................................................................
280
271
Disclosure or use for the purposes of this Act or a legislative
instrument under this Act ............................................................... 280
272
Disclosure to the Minister .............................................................. 281
273
Disclosure to the Secretary etc. ...................................................... 281
274
Disclosure or use for purposes of development of
methodology determinations etc. ................................................... 282
275
Disclosure to a Royal Commission ................................................ 283
276
Disclosure to certain persons and bodies ....................................... 283
277
Disclosure to certain financial bodies ............................................ 285
278 Disclosure
with
consent
.................................................................
287
279
Disclosure to reduce threat to life or health ................................... 288
280 Disclosure
of
publicly
available information ................................. 288
281 Disclosure
of
summaries or statistics ............................................. 288
282
Disclosure for purposes of law enforcement--protected
Administrator information ............................................................. 289
283
Disclosure for purposes of law enforcement--protected
DOIC information .......................................................................... 291
284
Disclosure for purposes of review of Act ...................................... 293
285
Disclosure for purposes of review of compliance with
Australia's international obligations .............................................. 293
Part 28--Miscellaneous
294
286 Miscellaneous
functions
of the Administrator ............................... 294
287 Computerised
decision-making ..................................................... 294
288
Administrator's power to require further information ................... 295
289
Domestic Offsets Integrity Committee's power to require
further information ......................................................................... 296
290
Actions may be taken by an agent of a project proponent ............. 296
291
Delegation by the Minister ............................................................ 297
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 xiv
292
Delegation by a State Minister or a Territory Minister .................. 297
293
Delegation by the Secretary ........................................................... 297
294
Concurrent operation of State and Territory laws .......................... 298
295
Law relating to legal professional privilege not affected ............... 298
296
Arrangements with States and Territories ...................................... 298
297 Liability
for
damages ..................................................................... 300
298
Executive power of the Commonwealth ........................................ 300
299
Notional payments by the Commonwealth .................................... 301
300
Compensation for acquisition of property ..................................... 301
301
Native title rights not affected ........................................................ 301
302 Racial
Discrimination
Act not affected .......................................... 301
303
Additional effect of this Act and the regulations--introduced
animal emissions avoidance projects ............................................. 302
304
Prescribing matters by reference to other instruments ................... 302
305 Administrative
decisions
under the regulations ............................. 302
306
Reviews of operation of this Act etc. ............................................. 303
307 Regulations
....................................................................................
303
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 1
A Bill for an Act about projects to remove carbon
1
dioxide from the atmosphere and projects to avoid
2
emissions of greenhouse gases, and for other
3
purposes
4
The Parliament of Australia enacts:
5
Part 1--Preliminary
6
7
1 Short title
8
This Act may be cited as the Carbon Credits (Carbon Farming
9
Initiative) Act 2011.
10
Part 1 Preliminary
Section 2
2 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
307
A single day to be fixed by Proclamation.
A Proclamation must not specify a day that
occurs before the later of:
(a) the day the Australian National Registry
of Emissions Units Act 2011 receives the
Royal Assent; and
(b) the day the Carbon Credits
(Consequential Amendments) Act 2011
receives the Royal Assent.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the later of:
(c) the day the Australian National Registry
of Emissions Units Act 2011 receives the
Royal Assent; and
(d) the day the Carbon Credits
(Consequential Amendments) Act 2011
receives the Royal Assent;
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
Preliminary Part 1
Section 3
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 3
(2) Any information in column 3 of the table is not part of this Act.
1
Information may be inserted in this column, or information in it
2
may be edited, in any published version of this Act.
3
3 Objects
4
(1) This section sets out the objects of this Act.
5
Climate Change Convention and Kyoto Protocol
6
(2) The first object of this Act is to implement certain obligations that
7
Australia has under:
8
(a) the Climate Change Convention; and
9
(b) the Kyoto Protocol.
10
Incentives
11
(3) The second object of this Act is to create incentives for people to
12
carry on certain offsets projects.
13
Carbon abatement
14
(4) The third object of this Act is to increase carbon abatement in a
15
manner that:
16
(a) is consistent with the protection of Australia's natural
17
environment; and
18
(b) improves resilience to the effects of climate change.
19
4 Simplified outline
20
The following is a simplified outline of this Act:
21
·
This Act sets up a scheme for the issue of Australian carbon
22
credit units in relation to eligible offsets projects.
23
·
An Australian carbon credit unit is personal property and is
24
generally transferable.
25
·
The main eligibility requirements for eligible offsets projects
26
are as follows:
27
Part 1 Preliminary
Section 5
4 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a)
the project must be carried out in Australia;
1
(b)
the project must be covered by a methodology
2
determination made under this Act.
3
·
A methodology determination must comply with the offsets
4
integrity standards set out in this Act.
5
·
This Act is administered by the Carbon Credits Administrator.
6
5 Definitions
7
In this Act:
8
Aboriginal peoples has the same meaning as in the Native Title Act
9
1993.
10
account number, in relation to a Registry account, has the same
11
meaning as in the Australian National Registry of Emissions Units
12
Act 2011.
13
additionality test has the meaning given by section 41.
14
additionality test regulations means regulations made for the
15
purposes of paragraph 41(1)(a).
16
Administrator means the Carbon Credits Administrator.
17
agricultural emissions avoidance project means a project to avoid
18
any of the following emissions:
19
(a) an emission of methane from the digestive tract of livestock;
20
(b) an emission of:
21
(i)
methane;
or
22
(ii)
nitrous
oxide;
23
from the decomposition of:
24
(iii) livestock urine; or
25
(iv)
livestock
dung;
26
(c) an emission of methane from:
27
(i) rice fields; or
28
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 5
(ii)
rice
plants;
1
(d) an emission of:
2
(i)
methane;
or
3
(ii)
nitrous
oxide;
4
from the burning of:
5
(iii)
savannas;
or
6
(iv)
grasslands;
7
(e) an emission of:
8
(i)
methane;
or
9
(ii)
nitrous
oxide;
10
from the burning of:
11
(iii) crop stubble in fields; or
12
(iv) crop residues in fields; or
13
(v) sugar cane before harvest;
14
(f) an emission of:
15
(i)
methane;
or
16
(ii)
nitrous
oxide;
17
from
soil.
18
Paragraph (f) does not apply to an emission that is attributable to
19
the operation of a landfill facility.
20
alter the Registry has the same meaning as in the Australian
21
National Registry of Emissions Units Act 2011.
22
applicable carbon sequestration right, in relation to a project area
23
for an offsets project, has the meaning given by section 43.
24
applicable methodology determination, in relation to an offsets
25
project, means the methodology determination that is applicable to
26
the project.
27
Note:
See also sections 124 to 130.
28
assigned amount unit has the same meaning as in the Australian
29
National Registry of Emissions Units Act 2011.
30
associated provisions means the following provisions:
31
(a) the provisions of the regulations;
32
Part 1 Preliminary
Section 5
6 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
1
137.2 of the Criminal Code, in so far as those sections relate
2
to:
3
(i) this Act; or
4
(ii)
the
regulations.
5
audit team leader means a registered greenhouse and energy
6
auditor appointed under any of the following provisions:
7
(a)
paragraph
13(1)(e);
8
(b)
paragraph
23(1)(d);
9
(c)
paragraph
76(4)(c);
10
(d)
section
214;
11
(e)
section
215.
12
Australia, when used in a geographical sense, includes the external
13
Territories.
14
Australian carbon credit unit means a unit issued under
15
section 147.
16
Australian police force means:
17
(a) the Australian Federal Police; or
18
(b) a police force or police service of a State or Territory.
19
avoid, in relation to emissions of greenhouse gases, includes
20
reduce or eliminate.
21
baseline for an offsets project has a meaning affected by
22
section 107.
23
benchmark sequestration level has the meaning given by
24
subsection 97(8).
25
Biodiversity Convention means the Convention on Biological
26
Diversity, done at Rio de Janeiro on 5 June 1992, as amended and
27
in force for Australia from time to time.
28
Note:
The text of the Convention is set out in Australian Treaty Series 1993
29
No. 32 ([1993] ATS 32). In 2011, the text of a Convention in the
30
Australian Treaty Series was accessible through the Australian
31
Treaties Library on the AustLII website (www.austlii.edu.au).
32
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 7
carbon dioxide equivalence has the same meaning as in the
1
National Greenhouse and Energy Reporting Act 2007.
2
carbon maintenance obligation has the meaning given by
3
paragraph 97(2)(a).
4
certificate of entitlement means a certificate issued under
5
section 15.
6
certified emission reduction has the same meaning as in the
7
Australian National Registry of Emissions Units Act 2011.
8
civil penalty order means an order under subsection 221(1).
9
civil penalty provision means a provision declared by this Act to
10
be a civil penalty provision.
11
Climate Change Convention means the United Nations
12
Framework Convention on Climate Change done at New York on
13
9 May 1992, as amended and in force for Australia from time to
14
time.
15
Note:
The text of the Convention is set out in Australian Treaty Series 1994
16
No. 2 ([1994] ATS 2). In 2011, the text of a Convention in the
17
Australian Treaty Series was accessible through the Australian
18
Treaties Library on the AustLII website (www.austlii.edu.au).
19
commitment period has the same meaning as in the Australian
20
National Registry of Emissions Units Act 2011.
21
common law holders, in relation to native title land, has the same
22
meaning as in the Native Title Act 1993.
23
Commonwealth holding account has the same meaning as in the
24
Australian National Registry of Emissions Units Act 2011.
25
Commonwealth relinquished units account means the
26
Commonwealth Registry account designated as the
27
Commonwealth relinquished units account.
28
crediting period, in relation to an eligible offsets project, means:
29
(a) the first crediting period for the project, worked out under
30
section 69; or
31
Part 1 Preliminary
Section 5
8 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) a subsequent crediting period for the project, determined
1
under section 74.
2
Crown land means land that is the property of:
3
(a) the Commonwealth, a State or a Territory; or
4
(b) a statutory authority of:
5
(i) the Commonwealth; or
6
(ii) a State; or
7
(iii)
a
Territory.
8
For this purpose, it is immaterial whether the land is:
9
(c) subject to a lease or licence; or
10
(d) covered by a reservation, proclamation, dedication,
11
condition, permission or authority, made or conferred by the
12
Commonwealth, the State or the Territory; or
13
(e) covered by the making, amendment or repeal of legislation of
14
the Commonwealth, the State or the Territory under which
15
the whole or a part of the land is to be used for a public
16
purpose or public purposes; or
17
(f) held on trust for the benefit of another person; or
18
(g) subject to native title.
19
Crown lands Minister:
20
(a) in relation to a State--means the Minister of the State who,
21
under the regulations, is taken to be the Crown lands Minister
22
of the State; or
23
(b) in relation to the Northern Territory--means the Minister of
24
the Northern Territory who, under the regulations, is taken to
25
be the Crown lands Minister of the Northern Territory; or
26
(c) in relation to the Australian Capital Territory--means the
27
Minister of the Australian Capital Territory who, under the
28
regulations, is taken to be the Crown lands Minister of the
29
Australian Capital Territory; or
30
(d) in relation to a Territory other than the Northern Territory or
31
the Australian Capital Territory--means the person who,
32
under the regulations, is taken to be the Crown lands Minister
33
of the Territory.
34
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 9
designated, in relation to a Commonwealth Registry account, has
1
the same meaning as in the Australian National Registry of
2
Emissions Units Act 2011.
3
director includes a constituent member of a body corporate
4
incorporated for a public purpose by a law of the Commonwealth,
5
a State or a Territory.
6
Domestic Offsets Integrity Committee means the committee
7
established by section 254. This definition does not apply to the
8
definition of Interim Domestic Offsets Integrity Committee.
9
Domestic Offsets Integrity Committee member means a member
10
of the Domestic Offsets Integrity Committee, and includes the
11
Chair of the Domestic Offsets Integrity Committee.
12
electronic communication means a communication by means of
13
guided and/or unguided electromagnetic energy.
14
electronic notice transmitted to the Administrator has the meaning
15
given by section 7.
16
eligible interest, in relation to an area of land, has the meaning
17
given by section 44 or 45.
18
eligible Kyoto project has the meaning given by paragraph
19
27(2)(a).
20
eligible non-Kyoto project has the meaning given by paragraph
21
27(2)(b).
22
eligible offsets project has the meaning given by paragraph
23
27(2)(a) or (b).
24
eligible voluntary action means:
25
(a) making an application; or
26
(b) giving information in connection with an application; or
27
(c) withdrawing an application; or
28
(d) giving a notice (including an electronic notice); or
29
(e) making a submission; or
30
(f) making a request; or
31
(g) giving information in connection with a request;
32
Part 1 Preliminary
Section 5
10 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
to the Administrator, where the application, information, notice,
1
submission or request is permitted, but not required, to be made,
2
given or withdrawn, as the case may be, under this Act or the
3
regulations.
4
emission of greenhouse gas means the release of greenhouse gas
5
into the atmosphere.
6
emission reduction unit has the same meaning as in the Australian
7
National Registry of Emissions Units Act 2011.
8
emissions avoidance offsets project has the meaning given by
9
section 53.
10
engage in conduct means:
11
(a) do an act; or
12
(b) omit to perform an act.
13
entrusted public official means:
14
(a) the Administrator; or
15
(b) a delegate of the Administrator; or
16
(c) a person assisting the Administrator under section 250; or
17
(d) a person whose services are made available to the
18
Administrator under section 251; or
19
(e) a person engaged as a consultant under section 252; or
20
(f) an audit team leader; or
21
(g) a person assisting an audit team leader; or
22
(h) a Domestic Offsets Integrity Committee member; or
23
(i) a person assisting the Domestic Offsets Integrity Committee
24
under section 269.
25
evidential burden, in relation to a matter, means the burden of
26
adducing or pointing to evidence that suggests a reasonable
27
possibility that the matter exists or does not exist.
28
excluded offsets project has the meaning given by section 56.
29
exclusive possession native title land means native title land,
30
where the native title confers a right of exclusive possession over
31
the land.
32
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 11
executive officer of a body corporate means:
1
(a) a director of the body corporate; or
2
(b) the chief executive officer (however described) of the body
3
corporate; or
4
(c) the chief financial officer (however described) of the body
5
corporate; or
6
(d) the secretary of the body corporate.
7
externally-administered body corporate has the same meaning as
8
in the Corporations Act 2001.
9
Federal Court means the Federal Court of Australia.
10
foreign account, when used in relation to an Australian carbon
11
credit unit, means an account kept within a foreign non-Kyoto
12
registry.
13
foreign country includes a region where:
14
(a) the region is a colony, territory or protectorate of a foreign
15
country; or
16
(b) the region is part of a foreign country; or
17
(c) the region is under the protection of a foreign country; or
18
(d) a foreign country exercises jurisdiction or control over the
19
region; or
20
(e) a foreign country is responsible for the region's international
21
relations.
22
foreign non-Kyoto registry has the same meaning as in the
23
Australian National Registry of Emissions Units Act 2011.
24
freehold land rights land means land, where:
25
(a) a freehold estate exists over the land, and the grant of the
26
freehold estate took place under a law of a State or a
27
Territory that makes provision for the grant of such things
28
only to, or for the benefit of, Aboriginal peoples or Torres
29
Strait Islanders; or
30
(b) a freehold estate exists over the land, and the grant of the
31
freehold estate took place under a law of the Commonwealth
32
that makes provision for the grant of such things only to, or
33
Part 1 Preliminary
Section 5
12 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
for the benefit of, Aboriginal peoples or Torres Strait
1
Islanders; or
2
(c) the land is vested in a person, and the vesting took place
3
under a law of the Commonwealth that makes provision for
4
the vesting of land only in, or for the benefit of, Aboriginal
5
peoples or Torres Strait Islanders.
6
general law land means land other than:
7
(a) Torrens system land; or
8
(b)
Crown
land.
9
greenhouse gas has the same meaning as in the National
10
Greenhouse and Energy Reporting Act 2007.
11
hold an Australian carbon credit unit: a person holds an Australian
12
carbon credit unit if the person is the registered holder of the unit.
13
indigenous land use agreement has the same meaning as in the
14
Native Title Act 1993.
15
insolvent under administration
has the same meaning as in the
16
Corporations Act 2001.
17
inspector means a person appointed as an inspector under
18
section 196.
19
Interim Domestic Offsets Integrity Committee means the
20
committee that was:
21
(a) established under the executive power of the Commonwealth
22
before the commencement of this section; and
23
(b) known as the Domestic Offsets Integrity Committee.
24
international agreement means an agreement whose parties are:
25
(a) Australia and a foreign country; or
26
(b) Australia and 2 or more foreign countries.
27
introduced animal means an animal other than:
28
(a) a native animal (within the meaning of the Environment
29
Protection and Biodiversity Conservation Act 1999); or
30
(b)
livestock.
31
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 13
introduced animal emissions avoidance project means:
1
(a) a project to avoid emissions of methane from the digestive
2
tract of an introduced animal; or
3
(b) a project to avoid emissions of:
4
(i)
methane;
or
5
(ii)
nitrous
oxide;
6
from the decomposition of:
7
(iii) introduced animal urine; or
8
(iv) introduced animal dung.
9
Note:
See also section 303.
10
issue, in relation to an Australian carbon credit unit, means issue
11
under section 147.
12
joint implementation project means a project that is treated as a
13
joint implementation project for the purposes of the relevant
14
provisions of the Kyoto rules.
15
Kyoto abatement deadline means:
16
(a) 30 June 2012; or
17
(b) if a later day is specified in the regulations--the later day.
18
Kyoto Australian carbon credit unit means an Australian carbon
19
credit unit that has attributes specified in a legislative instrument
20
made by the Minister for the purposes of this definition.
21
Kyoto offsets project has the meaning given by section 55.
22
Kyoto Protocol means the Kyoto Protocol to the United Nations
23
Framework Convention on Climate Change done at Kyoto on
24
11 December 1997, as amended and in force for Australia from
25
time to time.
26
Note:
The text of the Kyoto Protocol is set out in Australian Treaty Series
27
2008 No. 2 ([2008] ATS 2). In 2011, the text of an international
28
agreement in the Australian Treaty Series was accessible through the
29
Australian Treaties Library on the AustLII website
30
(www.austlii.edu.au).
31
Kyoto rules has the same meaning as in the Australian National
32
Registry of Emissions Units Act 2011.
33
Part 1 Preliminary
Section 5
14 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Kyoto unit has the same meaning as in the Australian National
1
Registry of Emissions Units Act 2011.
2
landfill facility means a facility for the disposal of solid waste as
3
landfill, and includes a facility that is closed for the acceptance of
4
waste.
5
landfill legacy emissions avoidance project means a project to
6
avoid emissions of greenhouse gases from the operation of a
7
landfill facility, to the extent to which the emissions are
8
attributable to waste accepted by the facility before the day
9
specified in a legislative instrument made by the Minister for the
10
purposes of this definition.
11
land rights holder, in relation to land rights land, means:
12
(a) if the land rights land is covered by paragraph (a) of the
13
definition of land rights land--the person who holds the
14
freehold estate, or the lease, mentioned in that paragraph; or
15
(b) if the land rights land is covered by paragraph (b) of the
16
definition of land rights land--the person in whom the land
17
is vested as mentioned in that paragraph; or
18
(c) if the land rights land is covered by paragraph (c) of the
19
definition of land rights land--the person who holds the land
20
as mentioned in that paragraph; or
21
(d) if the land rights land is covered by paragraph (d) of the
22
definition of land rights land--the person who holds the land
23
reserved as mentioned in that paragraph; or
24
(e) if the land rights land is covered by paragraph (e) of the
25
definition of land rights land--a person specified in the
26
regulations.
27
land rights land means land, where:
28
(a) a freehold estate exists, or a lease is in force, over the land,
29
where the grant of the freehold estate or lease took place
30
under legislation that makes provision for the grant of such
31
things only to, or for the benefit of, Aboriginal peoples or
32
Torres Strait Islanders; or
33
(b) the land is vested in a person, where the vesting took place
34
under legislation that makes provision for the vesting of land
35
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 15
only in, or for the benefit of, Aboriginal peoples or Torres
1
Strait Islanders; or
2
(c) neither paragraph (a) nor (b) applies, and the land is held
3
expressly for the benefit of, or is held in trust expressly for
4
the benefit of, Aboriginal peoples or Torres Strait Islanders;
5
or
6
(d) the land is reserved expressly for the benefit of Aboriginal
7
peoples or Torres Strait Islanders; or
8
(e) the land is specified in the regulations.
9
Note:
For specification by class, see subsection 13(3) of the Legislative
10
Instruments Act 2003.
11
lease, in relation to land rights land, includes:
12
(a) a lease enforceable in equity; and
13
(b) a contract that contains a statement to the effect that it is a
14
lease; and
15
(c) anything that, at or before the time of its creation, is, for any
16
purpose, by a law of the Commonwealth, a State or a
17
Territory, declared to be or described as a lease.
18
long-term certified emission reduction has the same meaning as in
19
the Australian National Registry of Emissions Units Act 2011.
20
maximum potential relinquishment period, in relation to an
21
eligible offsets project, has the meaning given by section 87.
22
methodology determination has the meaning given by section 106.
23
monitoring powers has the meaning given by section 199.
24
monitoring warrant means a warrant issued under section 211.
25
National Inventory Report means the most recently published
26
document that is:
27
(a) known as the National Inventory Report; and
28
(b) prepared by the Department in fulfilment of obligations that
29
Australia has under the Climate Change Convention.
30
National Native Title Register has the same meaning as in the
31
Native Title Act 1993.
32
Part 1 Preliminary
Section 5
16 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
native forest means an area of land that:
1
(a) is dominated by trees that:
2
(i) are located within their natural range; and
3
(ii) have attained, or have the potential to attain, a crown
4
cover of at least 20% of the area of land; and
5
(iii) have reached, or have the potential to reach, a height of
6
at least 2 metres; and
7
(b) is not a plantation.
8
It is immaterial whether any of the trees have been established with
9
human assistance following any of the following events:
10
(c)
flood;
11
(b)
bushfire;
12
(d)
drought;
13
(e)
pest
attack;
14
(f)
disease;
15
(g) an event specified in the regulations.
16
The regulations may provide that, for the purposes of this
17
definition, trees and crown cover have the respective meanings
18
given by the regulations.
19
native forest protection project means a project:
20
(a) to remove carbon dioxide from the atmosphere by
21
sequestering carbon in trees in one or more native forests;
22
and
23
(b) to avoid emissions of greenhouse gases attributable to the
24
clearing or clear-felling of one or more native forests.
25
native title has the same meaning as in the Native Title Act 1993.
26
native title holder has the same meaning as in the Native Title Act
27
1993.
28
native title land: an area of land is native title land if there is an
29
entry on the National Native Title Register specifying that native
30
title exists in relation to the area.
31
natural disturbance, in relation to an eligible offsets project,
32
means any of the following events, where the event could not
33
reasonably be prevented by the project proponent for the project:
34
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 17
(a)
flood;
1
(b)
bushfire;
2
(c)
drought;
3
(d)
pest
attack;
4
(e)
disease;
5
(f) an event specified in the regulations.
6
net total number of Australian carbon credit units issued in
7
relation to an eligible offsets project in accordance with Part 2 has
8
the meaning given by section 42.
9
nominee account means a Registry account designated as a
10
nominee account under subsection 140(6).
11
non-Kyoto Australian carbon credit unit means an Australian
12
carbon credit unit other than a Kyoto Australian carbon credit unit.
13
non-Kyoto offsets project has the meaning given by section 55.
14
officer has the same meaning as in the Corporations Act 2001.
15
offsets integrity standards has the meaning given by section 133.
16
offsets project means:
17
(a) a sequestration offsets project; or
18
(b) an emissions avoidance offsets project.
19
For this purpose, it is immaterial whether the project has been
20
carried out.
21
offsets report means a report under section 76.
22
open, in relation to a Registry account, has the same meaning as in
23
the Australian National Registry of Emissions Units Act 2011.
24
operation, in relation to a landfill facility, includes the subsistence
25
of the landfill facility.
26
penalty unit has the meaning given by section 4AA of the Crimes
27
Act 1914.
28
permitted carbon activity has the meaning given by paragraph
29
97(2)(b).
30
Part 1 Preliminary
Section 5
18 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
person means any of the following:
1
(a)
an
individual;
2
(b) a body corporate;
3
(c)
a
trust;
4
(d) a corporation sole;
5
(e) a body politic;
6
(f) a local governing body.
7
person assisting an inspector has the meaning given by
8
section 200.
9
premises includes the following:
10
(a) a structure, building, vehicle, vessel or aircraft;
11
(b) a place (whether or not enclosed or built on);
12
(c) a part of a thing referred to in paragraph (a) or (b).
13
prescribed eligible carbon unit means a prescribed unit that is
14
issued under a scheme relating to either or both of the following:
15
(a) the removal of one or more greenhouse gases from the
16
atmosphere;
17
(b) the avoidance of emissions of one or more greenhouse gases.
18
It is immaterial whether a unit was issued in or outside Australia.
19
prescribed native forest protection project means a native forest
20
protection project that meets the requirements specified in
21
regulations made for the purposes of this definition.
22
prescribed non-CFI offsets scheme has the meaning given by the
23
regulations.
24
project includes a set of activities.
25
project area, in relation an offsets project, means an area of land
26
on which the project has been, is being, or is to be, carried out.
27
project proponent:
28
(a) in relation to a sequestration offsets project--means the
29
person who:
30
(i) is responsible for carrying out the project; and
31
(ii) has the legal right to carry out the project; and
32
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 19
(iii) holds the applicable carbon sequestration right in
1
relation to the project area or each of the project areas;
2
or
3
(b) in relation to an emissions avoidance offsets project--means
4
the person who:
5
(i) is responsible for carrying out the project; and
6
(ii) has the legal right to carry out the project.
7
Note 1:
See also section 46 (registered native title bodies corporate).
8
Note 2:
See also section 135 (multiple project proponents).
9
protected Administrator information means protected information
10
that was obtained by a person in the person's capacity as:
11
(a) the Administrator; or
12
(b) a delegate of the Administrator; or
13
(c) a person assisting the Administrator under section 250; or
14
(d) a person whose services are made available to the
15
Administrator under section 251; or
16
(e) a person engaged as a consultant under section 252; or
17
(f) an audit team leader; or
18
(g) a person assisting an audit team leader.
19
protected DOIC information means protected information that was
20
obtained by a person in the person's capacity as:
21
(a) a Domestic Offsets Integrity Committee member; or
22
(b) a person assisting the Domestic Offsets Integrity Committee
23
under section 269.
24
protected information means information that:
25
(a) was obtained after the commencement of this section by a
26
person in the person's capacity as an entrusted public official;
27
and
28
(b) relates to the affairs of a person other than an entrusted public
29
official.
30
quarter means a period of 3 months beginning on 1 January,
31
1 April, 1 July or 1 October.
32
recognised as an offsets entity means recognised under section 64.
33
Part 1 Preliminary
Section 5
20 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
recognised offsets entity means a person recognised as an offsets
1
entity.
2
regional natural resource management organisation has the
3
meaning given by the regulations.
4
regional natural resource management plan means a plan
5
prepared by a regional natural resource management organisation.
6
registered greenhouse and energy auditor has the same meaning
7
as in the National Greenhouse and Energy Reporting Act 2007.
8
registered holder, in relation to an Australian carbon credit unit,
9
means the person in whose Registry account there is an entry for
10
the unit.
11
registered indigenous land use agreement means an indigenous
12
land use agreement the details of which are entered on the Register
13
of Indigenous Land Use Agreements.
14
registered native title body corporate has the same meaning as in
15
the Native Title Act 1993.
16
Register of Indigenous Land Use Agreements has the same
17
meaning as in the Native Title Act 1993.
18
Register of Offsets Projects means the register kept under
19
section 167.
20
Registry means the Australian National Registry of Emissions
21
Units continued in existence under the Australian National
22
Registry of Emissions Units Act 2011.
23
Registry account has the same meaning as in the Australian
24
National Registry of Emissions Units Act 2011.
25
regulatory approval, in relation to an offsets project, means an
26
approval, licence or permit (however described) that:
27
(a) relates to, or to an element of, the project; and
28
(b) is required under a law of the Commonwealth, a State or
29
Territory that relates to:
30
(i) land use or development; or
31
Preliminary Part 1
Section 5
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 21
(ii) the environment; or
1
(iii)
water.
2
relevant carbon pool, in relation to a sequestration offsets project:
3
(a) to the extent (if any) to which the project is a project to
4
remove carbon dioxide from the atmosphere by sequestering
5
carbon in particular living biomass--means the biomass; or
6
(b) to the extent (if any) to which the project is a project to
7
remove carbon dioxide from the atmosphere by sequestering
8
carbon in particular dead organic matter--means the dead
9
organic matter; or
10
(c) to the extent (if any) to which the project is a project to
11
remove carbon dioxide from the atmosphere by sequestering
12
carbon in particular soil--means the soil.
13
relevant land registration official:
14
(a) in relation to a project that is or was an eligible offsets
15
project--means the Registrar of Titles or other proper officer
16
of the State or Territory in which the project area, or any of
17
the project areas, is situated; or
18
(b) in relation to an area of land that is or was subject to a carbon
19
maintenance obligation--means the Registrar of Titles or
20
other proper officer of the State or Territory in which the area
21
of land is situated.
22
relinquish, in relation to an Australian carbon credit unit, means
23
relinquish under section 175.
24
removal unit has the same meaning as in the Australian National
25
Registry of Emissions Units Act 2011.
26
reporting period for an eligible offsets project means a period that
27
is expressed, in an offsets report about the project, to be a reporting
28
period for the project.
29
Note: See
section
76.
30
reviewable decision has the meaning given by section 240.
31
Royal Commission has the same meaning as in the Royal
32
Commissions Act 1902.
33
Part 1 Preliminary
Section 5
22 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
scheme, when used in Part 22, means:
1
(a) any agreement, arrangement, understanding, promise or
2
undertaking, whether express or implied and whether or not
3
enforceable, or intended to be enforceable, by legal
4
proceedings; or
5
(b) any scheme, plan, proposal, action, course of action or course
6
of conduct, whether there are 2 or more parties or only one
7
party involved.
8
Secretary means the Secretary of the Department.
9
sequestration offsets project has the meaning given by section 54.
10
special native title account means a Registry account designated as
11
a special native title account under subsection 48(6).
12
statutory authority of the Commonwealth, a State or a Territory,
13
means an authority or body (including a corporation sole)
14
established by or under a law of the Commonwealth, the State or
15
the Territory (other than a general law allowing incorporation as a
16
company or body corporate), but does not include:
17
(a) an Aboriginal Land Trust established under the Aboriginal
18
Land Rights (Northern Territory) Act 1976; or
19
(b) the Wreck Bay Aboriginal Community Council established
20
by the Aboriginal Land Grant (Jervis Bay Territory) Act
21
1986; or
22
(c) a corporation registered under the Corporations (Aboriginal
23
and Torres Strait Islander) Act 2006; or
24
(d) an authority or body that is:
25
(i) established by or under a law of the Commonwealth, a
26
State or a Territory; and
27
(ii) specified in the regulations.
28
temporary certified emission reduction has the same meaning as
29
in the Australian National Registry of Emissions Units Act 2011.
30
Torrens system land: land is Torrens system land if the title to the
31
land is registered under a Torrens system of registration.
32
Torres Strait Islander has the same meaning as in the Native Title
33
Act 1993.
34
Preliminary Part 1
Section 6
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 23
transfer:
1
(a) in relation to an Australian carbon credit unit--has the
2
meaning given by section 151; or
3
(b) in relation to a Kyoto unit--has the same meaning as in the
4
Australian National Registry of Emissions Units Act 2011.
5
trust means a person in the capacity of trustee or, as the case
6
requires, a trust estate.
7
trustee has the same meaning as in the Income Tax Assessment Act
8
1997.
9
trust estate has the same meaning as in the Income Tax Assessment
10
Act 1997.
11
vacancy, in relation to the office of a Domestic Offsets Integrity
12
Committee member, has a meaning affected by section 6.
13
voluntary automatic unit cancellation regime: see paragraph
14
27(3)(e).
15
voluntary cancellation account has the same meaning as in the
16
Australian National Registry of Emissions Units Act 2011.
17
6 Vacancy in the office of a Domestic Offsets Integrity Committee
18
member
19
For the purposes of a reference in:
20
(a) this Act to a vacancy in the office of a Domestic Offsets
21
Integrity Committee member; or
22
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
23
membership of a body;
24
there are taken to be 4 offices of member of the Domestic Offsets
25
Integrity Committee in addition to the Chair of the Domestic
26
Offsets Integrity Committee.
27
7 Electronic notice transmitted to the Administrator
28
(1) For the purposes of this Act, a notice is an electronic notice
29
transmitted to the Administrator if, and only if:
30
Part 1 Preliminary
Section 8
24 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the notice is transmitted to the Administrator by means of an
1
electronic communication; and
2
(b) if the Administrator requires that the notice be transmitted, in
3
accordance with particular information technology
4
requirements, by means of a particular kind of electronic
5
communication--the Administrator's requirement has been
6
met; and
7
(c) the notice complies with regulations made for the purposes of
8
subsection (2).
9
(2) The regulations may make provision for or in relation to the
10
security and authenticity of notices transmitted to the
11
Administrator by means of an electronic communication.
12
(3) Regulations made for the purposes of subsection (2) may deal with:
13
(a)
encryption;
and
14
(b) authentication of identity.
15
(4) Subsection (3) does not limit subsection (2).
16
(5) For the purposes of this Act, if a notice is transmitted to the
17
Administrator by means of an electronic communication, the notice
18
is taken to have been transmitted on the day on which the
19
electronic communication is dispatched.
20
(6) Subsection (5) of this section has effect despite subsections 14(3)
21
and (4) of the Electronic Transactions Act 1999.
22
(7) This section does not, by implication, limit the regulations that may
23
be made under the Electronic Transactions Act 1999.
24
8 Crown to be bound
25
(1) This Act binds the Crown in each of its capacities.
26
(2) This Act does not make the Crown liable to a pecuniary penalty or
27
to be prosecuted for an offence.
28
(3) The protection in subsection (2) does not apply to an authority of
29
the Crown.
30
Preliminary Part 1
Section 9
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 25
(4) The protection in subsection (2) does not apply to a penalty under
1
section 179 or 180.
2
9 Extension to external Territories
3
This Act extends to every external Territory.
4
5
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 1 Introduction
Section 10
26 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 2--Issue of Australian carbon credit units in
1
respect of offsets projects
2
Division 1--Introduction
3
10 Simplified outline
4
The following is a simplified outline of this Part:
5
·
Australian carbon credit units may be issued in relation to an
6
eligible offsets project.
7
·
The number of Australian carbon credit units issued will be
8
worked out by reference to:
9
(a)
the relevant abatement amount calculated under the
10
applicable methodology determination; or
11
(b)
if the project is a native forest protection project--
12
the relevant sequestration amount calculated under
13
the applicable methodology determination.
14
·
For sequestration offsets projects, a risk of reversal buffer
15
applies.
16
17
Issue of Australian carbon credit units in respect of offsets projects Part 2
Issue of Australian carbon credit units in respect of offsets projects Division 2
Section 11
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 27
Division 2--Issue of Australian carbon credit units in
1
respect of offsets projects
2
11 Issue of Australian carbon credit units in respect of offsets
3
projects
4
Scope
5
(1) This section applies if a certificate of entitlement is in force in
6
respect of an eligible offsets project for a reporting period.
7
Note: For
certificate of entitlement, see section 15.
8
Issue of units
9
(2)
If:
10
(a) the project is an eligible Kyoto project; and
11
(b) the reporting period ends on or before the Kyoto abatement
12
deadline;
13
the Administrator must, as soon as practicable after the day on
14
which the certificate was issued, issue to the holder of the
15
certificate a number of Kyoto Australian carbon credit units equal
16
to the number specified in the certificate as the unit entitlement for
17
that certificate.
18
(3)
If:
19
(a) the project is an eligible non-Kyoto project; and
20
(b) the reporting period ends on or before the Kyoto abatement
21
deadline;
22
the Administrator must, as soon as practicable after the day on
23
which the certificate was issued, issue to the holder of the
24
certificate a number of non-Kyoto Australian carbon credit units
25
equal to the number specified in the certificate as the unit
26
entitlement for that certificate.
27
(4) If the reporting period ends after the Kyoto abatement deadline, the
28
Administrator must, as soon as practicable after the day on which
29
the certificate was issued, issue to the holder of the certificate a
30
number of non-Kyoto Australian carbon credit units equal to the
31
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 2 Issue of Australian carbon credit units in respect of offsets projects
Section 11
28 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
number specified in the certificate as the unit entitlement for that
1
certificate.
2
(5) The Administrator must not issue an Australian carbon credit unit
3
to a person in accordance with subsection (2), (3) or (4) unless the
4
person has a Registry account.
5
Note 1:
See also section 49 (issue of Australian carbon credit units to
6
registered native title bodies corporate).
7
Note 2:
See also section 141 (issue of Australian carbon credit units in relation
8
to projects with multiple project proponents).
9
(6) The Administrator must issue an Australian carbon credit unit to a
10
person in accordance with subsection (2), (3) or (4) by making an
11
entry for the unit in the person's Registry account the account
12
number of which is specified in the certificate.
13
Note 1:
See also section 49 (issue of Australian carbon credit units to
14
registered native title bodies corporate).
15
Note 2:
See also section 141 (issue of Australian carbon credit units in relation
16
to projects with multiple project proponents).
17
18
Issue of Australian carbon credit units in respect of offsets projects Part 2
Certificate of entitlement Division 3
Section 12
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 29
Division 3--Certificate of entitlement
1
12 Application for certificate of entitlement
2
After the end of a reporting period for an eligible offsets project, a
3
person may apply to the Administrator for the issue to the person
4
of a certificate of entitlement in respect of the project for the
5
reporting period.
6
Note 1:
For eligible offsets project, see section 27.
7
Note 2:
For reporting period, see section 5.
8
13 Form of application
9
(1) An application must:
10
(a) be in writing; and
11
(b) be in a form approved, in writing, by the Administrator; and
12
(c) set out the account number of a Registry account of the
13
applicant that should be specified in the certificate; and
14
(d) be accompanied by such information as is specified in the
15
regulations; and
16
(e) be accompanied by a prescribed audit report prepared by a
17
registered greenhouse and energy auditor who has been
18
appointed as an audit team leader for the purpose; and
19
(f) be accompanied by the offsets report about the project for the
20
relevant reporting period; and
21
(g) be accompanied by such other documents (if any) as are
22
specified in the regulations; and
23
(h) be accompanied by the fee (if any) specified in the
24
regulations.
25
Note 1:
See also section 49 (applications for certificates of entitlement by
26
registered native title bodies corporate).
27
Note 2:
See also section 141 (applications for certificates of entitlement in
28
relation to projects with multiple project proponents).
29
(2) The regulations may provide that a project of a kind specified in
30
the regulations is exempt from paragraph (1)(e).
31
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 3 Certificate of entitlement
Section 14
30 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(3) Subsection (2) of this section does not, by implication, limit the
1
application of subsection 13(3) of the Legislative Instruments Act
2
2003 to another instrument under this Act.
3
(4) The approved form of application may provide for verification by
4
statutory declaration of statements in applications.
5
(5) A fee specified under paragraph (1)(h) must not be such as to
6
amount to taxation.
7
14 Further information
8
(1) The Administrator may, by written notice given to an applicant,
9
require the applicant to give the Administrator, within the period
10
specified in the notice, further information in connection with the
11
application.
12
(2) If the applicant breaches the requirement, the Administrator may,
13
by written notice given to the applicant:
14
(a) refuse to consider the application; or
15
(b) refuse to take any action, or any further action, in relation to
16
the application.
17
15 Issue of certificate of entitlement
18
Scope
19
(1) This section applies if an application under section 12 has been
20
made for the issue of a certificate of entitlement in respect of an
21
eligible offsets project for a reporting period.
22
Issue of certificate
23
(2) If the Administrator is satisfied that:
24
(a) the applicant is a recognised offsets entity; and
25
(b) the applicant was, immediately before the end of the period:
26
(i) the project proponent for the project; and
27
(ii) identified in the relevant section 27 declaration as the
28
project proponent for the project; and
29
Issue of Australian carbon credit units in respect of offsets projects Part 2
Certificate of entitlement Division 3
Section 15
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 31
(c) the reporting period is included in a crediting period for the
1
project; and
2
(d) if the project is a prescribed native forest protection project--
3
the reporting period is the first reporting period for the
4
project; and
5
(e) if the relevant section 27 declaration is subject to the
6
condition that all regulatory approvals must be obtained for
7
the project before the end of the first crediting period for the
8
project--that condition has been met; and
9
(f) the applicant is not subject to a requirement under Part 7 to
10
relinquish a number of Australian carbon credit units; and
11
(g) no amount is payable by the applicant under:
12
(i) section 179; or
13
(ii)
section
180;
14
in relation to a requirement under Part 7 to relinquish a
15
number of Australian carbon credit units; and
16
(h) if the regulations specify one or more other eligibility
17
requirements--those requirements are met;
18
the Administrator must issue a certificate of entitlement in respect
19
of the project for the period.
20
Note: For
recognised offsets entity, see section 64.
21
(3) A certificate of entitlement must state that a specified number is
22
the unit entitlement in respect of the certificate.
23
Note:
For unit entitlement, see section 16, 17 or 18.
24
(4) If the application sets out the account number of a Registry account
25
of the applicant that should be specified in the certificate of
26
entitlement, the certificate must specify that account number.
27
Timing
28
(5) The Administrator must take all reasonable steps to ensure that a
29
decision is made on the application:
30
(a) if the Administrator requires the applicant to give further
31
information under subsection 14(1) in relation to the
32
application--within 90 days after the applicant gave the
33
Administrator the information; or
34
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 3 Certificate of entitlement
Section 16
32 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) otherwise--within 90 days after the application was made.
1
Refusal
2
(6) If the Administrator decides to refuse to issue a certificate of
3
entitlement, the Administrator must give written notice of the
4
decision to the applicant.
5
16 Unit entitlement--sequestration offsets projects other than native
6
forest protection projects
7
Scope
8
(1) This section applies to an eligible offsets project if the project is a
9
sequestration offsets project other than a native forest protection
10
project.
11
Note: For
sequestration offsets project, see section 5.
12
Unit entitlement
13
(2) The number to be specified in a certificate of entitlement in respect
14
of the project for a reporting period as the unit entitlement in
15
respect of the certificate is the number worked out using the
16
formula:
17
Risk of reversal
Net abatement number
buffer number
-
18
where:
19
net abatement number means the total number of tonnes in the
20
amount that, under the applicable methodology determination for
21
the reporting period, is the carbon dioxide equivalent net abatement
22
amount for the project in relation to the reporting period.
23
risk of reversal buffer number means:
24
(a)
5%;
or
25
(b)
if:
26
(i) at the start of the crediting period in which the reporting
27
period is included, another percentage is specified in the
28
regulations in relation to a particular kind of project;
29
and
30
Issue of Australian carbon credit units in respect of offsets projects Part 2
Certificate of entitlement Division 3
Section 17
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 33
(ii) the project is of that kind;
1
that other percentage;
2
of the net abatement number.
3
(3) If the number worked out using the formula in subsection (2) is not
4
a whole number, the number is to be rounded to the nearest whole
5
number (with a number ending in .5 being rounded down).
6
(4) For the purposes of subsection (3), zero is taken to be a whole
7
number.
8
17 Unit entitlement--native forest protection projects
9
Scope
10
(1) This section applies to an eligible offsets project if the project is a
11
native forest protection project.
12
Note: For
native forest protection project, see section 5.
13
Unit entitlement--prescribed native forest protection projects
14
(2) If the project is a prescribed native forest protection project, the
15
number to be specified in a certificate of entitlement in respect of
16
the project for a reporting period as the unit entitlement in respect
17
of the certificate is the number worked out using the formula:
18
Risk of reversal
Net sequestration number
buffer number
-
19
where:
20
net sequestration number means the total number of tonnes in the
21
amount that, under the applicable methodology determination, is
22
the carbon dioxide equivalent net sequestration amount for the
23
project for the crediting period in which the reporting period is
24
included.
25
risk of reversal buffer number means:
26
(a)
5%;
or
27
(b)
if:
28
(i) at the start of the crediting period in which the reporting
29
period is included, another percentage is specified in the
30
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 3 Certificate of entitlement
Section 17
34 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
regulations in relation to a particular kind of project;
1
and
2
(ii) the project is of that kind;
3
that other percentage;
4
of the net sequestration number.
5
Note: For
prescribed native forest protection project, see section 5.
6
Unit entitlement--other native forest protection projects
7
(3) If the project is not a prescribed native forest protection project, the
8
number to be specified in a certificate of entitlement in respect of
9
the project for a reporting period as the unit entitlement in respect
10
of the certificate is the number worked out using the formula:
11
Reporting period
number
Net sequestration
Risk of reversal
number
buffer number
Crediting period
number
-
×
12
where:
13
crediting period number means the number of years in the
14
crediting period in which the reporting period is included.
15
net sequestration number means the total number of tonnes in the
16
amount that, under the applicable methodology determination, is
17
the carbon dioxide equivalent net sequestration amount for the
18
project for the crediting period in which the reporting period is
19
included.
20
reporting period number means the number of years in the
21
reporting period.
22
risk of reversal buffer number means:
23
(a)
5%;
or
24
(b)
if:
25
(i) at the start of the crediting period in which the reporting
26
period is included, another percentage is specified in the
27
regulations in relation to a particular kind of project;
28
and
29
(ii) the project is of that kind;
30
Issue of Australian carbon credit units in respect of offsets projects Part 2
Certificate of entitlement Division 3
Section 18
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 35
that other percentage;
1
of the net sequestration number.
2
Rounding down
3
(4) If the number worked out using the formula in subsection (2) or (3)
4
is not a whole number, the number is to be rounded to the nearest
5
whole number (with a number ending in .5 being rounded down).
6
(5) For the purposes of subsection (4), zero is taken to be a whole
7
number.
8
18 Unit entitlement--emissions avoidance offsets project
9
Scope
10
(1) This section applies to an eligible offsets project if the project is an
11
emissions avoidance offsets project.
12
Note: For
emissions avoidance offsets project, see section 53.
13
Unit entitlement
14
(2) The number to be specified in a certificate of entitlement in respect
15
of the project for a reporting period as the unit entitlement in
16
respect of the certificate is the total number of tonnes in the amount
17
that, under the applicable methodology determination for the
18
reporting period, is the carbon dioxide equivalent net abatement
19
amount for the project in relation to the reporting period.
20
19 Cancellation of units issued in respect of a project that is subject
21
to the voluntary automatic unit cancellation regime
22
Scope
23
(1) This section applies if:
24
(a) an eligible offsets project is subject to the voluntary
25
automatic unit cancellation regime; and
26
(b) an Australian carbon credit unit is issued to a person in
27
respect of the project.
28
Part 2 Issue of Australian carbon credit units in respect of offsets projects
Division 3 Certificate of entitlement
Section 20
36 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Note:
For when an eligible offsets project is subject to the voluntary
1
automatic unit cancellation regime, see paragraph 27(3)(e).
2
Automatic cancellation
3
(2) Immediately after the issue of the unit:
4
(a) the unit is cancelled; and
5
(b) the Administrator must remove the entry for the unit from the
6
person's Registry account in which there is an entry for the
7
unit; and
8
(c) if the unit is a Kyoto Australian carbon credit unit:
9
(i) the Minister must, by written notice given to the
10
Administrator, direct the Administrator to transfer a
11
Kyoto unit from a Commonwealth holding account to a
12
voluntary cancellation account before the end of the
13
true-up period for the relevant commitment period; and
14
(ii) the Administrator must comply with a direction under
15
subparagraph (i).
16
(3) The Registry must set out a record of each cancellation under
17
subsection (2).
18
No transfer
19
(4) The Australian carbon credit unit cannot be transferred.
20
20 Certificate of entitlement not transferable
21
A certificate of entitlement is not transferable.
22
23
Eligible offsets projects Part 3
Introduction Division 1
Section 21
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 37
Part 3--Eligible offsets projects
1
Division 1--Introduction
2
21 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator may declare an offsets project to be an
5
eligible offsets project.
6
·
The Administrator may vary or revoke a declaration of an
7
eligible offsets project.
8
9
Part 3 Eligible offsets projects
Division 2 Declaration of eligible offsets project
Section 22
38 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Declaration of eligible offsets project
1
22 Application for declaration of eligible offsets project
2
(1) A person may apply to the Administrator for the declaration of an
3
offsets project as an eligible offsets project.
4
Note:
The Administrator has a function of providing advice and assistance in
5
relation to the making of applications: see section 286.
6
(2) A person is not entitled to make an application before the 28th day
7
after the commencement of this section.
8
23 Form of application
9
(1) An application must:
10
(a) be in writing; and
11
(b) be in a form approved, in writing, by the Administrator; and
12
(c) be accompanied by such information as is specified in the
13
regulations; and
14
(d) if the project is of a kind specified in the regulations--be
15
accompanied by a prescribed audit report prepared by a
16
registered greenhouse and energy auditor who has been
17
appointed as an audit team leader for the purpose; and
18
(e)
if:
19
(i) the project area for the project was, or the project areas
20
for the project were, wholly or partly covered by a
21
prescribed non-CFI offsets scheme; and
22
(ii) the applicant is entitled to make a request under
23
section 92 in relation to the project;
24
be accompanied by such a request; and
25
(f) if an indigenous land use agreement is relevant to the
26
Administrator's decision on the application--be
27
accompanied by a copy of the agreement; and
28
(g) if the project area, or any of the project areas, for the project
29
is covered by a regional natural resource management plan--
30
be accompanied by a statement about whether the project is
31
consistent with the plan; and
32
Eligible offsets projects Part 3
Declaration of eligible offsets project Division 2
Section 24
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 39
(h) be accompanied by such other documents (if any) as are
1
specified in the regulations; and
2
(i) be accompanied by the fee (if any) specified in the
3
regulations.
4
Note:
For specification by class, see subsection 13(3) of the Legislative
5
Instruments Act 2003.
6
(2) The approved form of application may provide for verification by
7
statutory declaration of statements in applications.
8
(3) A fee specified under paragraph (1)(i) must not be such as to
9
amount to taxation.
10
(4) An application may include a statement to the effect that the
11
project should be subject to the voluntary automatic unit
12
cancellation regime.
13
(5) Paragraph (1)(d) of this section does not, by implication, affect the
14
application of subsection 13(3) of the Legislative Instruments Act
15
2003 to:
16
(a) another paragraph of subsection (1) of this section; or
17
(b) another instrument under this Act.
18
24 Further information
19
(1) The Administrator may, by written notice given to an applicant,
20
require the applicant to give the Administrator, within the period
21
specified in the notice, further information in connection with the
22
application.
23
(2) If the applicant breaches the requirement, the Administrator may,
24
by written notice given to the applicant:
25
(a) refuse to consider the application; or
26
(b) refuse to take any action, or any further action, in relation to
27
the application.
28
25 Withdrawal of application
29
(1) An applicant may withdraw the application at any time before the
30
Administrator makes a decision on the application.
31
Part 3 Eligible offsets projects
Division 2 Declaration of eligible offsets project
Section 26
40 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(2) This Act does not prevent the applicant from making a fresh
1
application.
2
(3)
If:
3
(a) the applicant withdraws the application; and
4
(b) the applicant has paid a fee in relation to the application;
5
the Administrator must, on behalf of the Commonwealth, refund
6
the application fee.
7
26 Application may be split
8
Scope
9
(1) This section applies if:
10
(a) an application under section 22 has been made, or
11
purportedly made, for a declaration of an offsets project as an
12
eligible offsets project; and
13
(b) the Administrator is satisfied that the application relates to 2
14
or more offsets projects.
15
Note:
See also subsection 55(6).
16
Application may be split
17
(2) The Administrator may, by written notice given to the applicant,
18
determine that this Act has effect as if the applicant had made a
19
separate application under section 22 in relation to each of the
20
offsets projects referred to in paragraph (1)(b) of this section.
21
27 Declaration of eligible offsets project
22
Scope
23
(1) This section applies if an application under section 22 has been
24
made for a declaration of an offsets project as an eligible offsets
25
project.
26
Declaration
27
(2) After considering the application, the Administrator may, by
28
writing:
29
Eligible offsets projects Part 3
Declaration of eligible offsets project Division 2
Section 27
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 41
(a) declare that the offsets project is:
1
(i)
an
eligible offsets project for the purposes of this Act;
2
and
3
(ii)
an
eligible Kyoto project for the purposes of this Act; or
4
(b) declare that the offsets project is:
5
(i)
an
eligible offsets project for the purposes of this Act;
6
and
7
(ii)
an
eligible non-Kyoto project for the purposes of this
8
Act.
9
(3) A declaration under subsection (2) must:
10
(a) identify the name of the project; and
11
(b) identify, in accordance with the regulations, the project area
12
or project areas; and
13
(c) identify the project proponent for the project; and
14
(d) identify such attributes of the project as are specified in the
15
regulations; and
16
(e) if the application included a statement to the effect that the
17
project should be subject to the voluntary automatic unit
18
cancellation regime--declare that the project is subject to the
19
voluntary automatic unit cancellation regime.
20
Criteria for declaration
21
(4) The Administrator must not declare that the offsets project is an
22
eligible offsets project unless the Administrator is satisfied that:
23
(a) the project is, or is to be, carried on in Australia; and
24
(b) the project is covered by a methodology determination; and
25
(c) the project meets such requirements as are set out in the
26
methodology determination in accordance with paragraph
27
106(1)(b); and
28
(d) the project passes the additionality test; and
29
(e) the applicant is the project proponent for the project; and
30
(f) the applicant is a recognised offsets entity; and
31
(g) if the project is a sequestration offsets project--the project
32
area, or each project area, meets the requirements set out in
33
subsection (5) of this section; and
34
(h)
if:
35
Part 3 Eligible offsets projects
Division 2 Declaration of eligible offsets project
Section 27
42 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) the project is a sequestration offsets project; and
1
(ii) the project area is, or any of the project areas are, Crown
2
land in a State or Territory; and
3
(iii) the project area is not, or the project areas are not,
4
Torrens system land; and
5
(iv) the project area is not, or the project areas are not, the
6
property of the Commonwealth; and
7
(v) the project area is not, or the project areas are not,
8
freehold land rights land; and
9
(vi) the applicant is not the State or Territory;
10
the Crown lands Minister of the State or Territory has
11
certified in writing that:
12
(vii) the applicant holds the applicable carbon sequestration
13
right in relation to the project area or project areas; and
14
(viii) the State or Territory will not deal with the project area
15
or project areas in a way that is inconsistent with the
16
applicable carbon sequestration right; and
17
(ix) if another person is required to obtain the consent of the
18
State or Territory to a dealing with the project area or
19
project areas--the State or Territory will not give that
20
consent in a way that is inconsistent with the applicable
21
carbon sequestration right; and
22
(i)
if:
23
(i) the project is a sequestration offsets project; and
24
(ii) the project area is, or any of the project areas are, Crown
25
land; and
26
(iii) the project area is, or the project areas are, the property
27
of the Commonwealth;
28
(iv) the project area is not, or the project areas are not,
29
freehold land rights land; and
30
the Minister has certified in writing that:
31
(v) the applicant holds the applicable carbon sequestration
32
right in relation to the project area or project areas; and
33
(vi) the Commonwealth will not deal with the project area or
34
project areas in a way that is inconsistent with the
35
applicable carbon sequestration right; and
36
Eligible offsets projects Part 3
Declaration of eligible offsets project Division 2
Section 27
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 43
(vii) if another person is required to obtain the consent of the
1
Commonwealth to a dealing with the project area or
2
project areas--the Commonwealth will not give that
3
consent in a way that is inconsistent with the applicable
4
carbon sequestration right; and
5
(j) the project does not involve:
6
(i) the clearing of native forest; or
7
(ii) using material obtained as a result of the clearing or
8
harvesting of native forest; and
9
(k) if the project is a sequestration offsets project--each person
10
(other than the applicant) who holds an eligible interest in the
11
project area or any of the project areas has consented, in
12
writing, to the making of the application; and
13
(l) the project meets the eligibility requirements (if any)
14
specified in the regulations; and
15
(m) the project is not an excluded offsets project; and
16
(n) the project area is not, or the project areas are not, wholly or
17
partly covered by a prescribed non-CFI offsets scheme.
18
Note 1:
Methodology determinations are made under section 106.
19
Note 2:
For the additionality test, see section 41.
20
Note 3:
For excluded offsets project, see section 56.
21
(5) The requirements mentioned in paragraph (4)(g) are:
22
(a) the project area is Torrens system land or Crown land; and
23
(b) the project area is not specified in the regulations.
24
Note:
For specification by class, see subsection 13(3) of the Legislative
25
Instruments Act 2003.
26
(6) Subparagraph (4)(j)(ii) does not apply to a use specified in the
27
regulations.
28
(7) A consent under paragraph (4)(k) must be in a form approved, in
29
writing, by the Administrator.
30
(8) A consent under paragraph (4)(k) may be set out in a registered
31
indigenous land use agreement.
32
Part 3 Eligible offsets projects
Division 2 Declaration of eligible offsets project
Section 27
44 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(9) Subsection (7) does not apply to a consent under paragraph (4)(k)
1
if the consent is set out in a registered indigenous land use
2
agreement.
3
(10) The Administrator must not make a declaration under
4
subsection (2) if the project area is, or any of the project areas are,
5
subject to a carbon maintenance obligation.
6
(11) The Administrator must not make a declaration under
7
subsection (2) in relation to a project (the new project) if:
8
(a) a notice was given under section 88, 89, 90 or 91 in relation
9
to a project (the prior project) that is or was:
10
(i) an eligible offsets project; and
11
(ii) a sequestration offsets project; and
12
(b) the project area, or any of the project areas, for the new
13
project was or were identified in the relevant section 27
14
declaration as the project area or project areas for the prior
15
project; and
16
(c) the notice required a person to relinquish a particular number
17
of Australian carbon credit units; and
18
(d) the person did not comply with the requirement within 90
19
days after the notice was given; and
20
(e) the penalty payable under section 179 in respect of the
21
non-compliance with the requirement (including any late
22
payment penalty payable under section 180 in relation to the
23
section 179 penalty) has not been paid in full.
24
(12) The Administrator must not declare that the offsets project is an
25
eligible Kyoto project unless the Administrator is satisfied that the
26
project is a Kyoto offsets project.
27
(13) The Administrator must not declare that the offsets project is an
28
eligible non-Kyoto project unless the Administrator is satisfied that
29
the project is a non-Kyoto offsets project.
30
Timing
31
(14) The Administrator must take all reasonable steps to ensure that a
32
decision is made on the application:
33
Eligible offsets projects Part 3
Declaration of eligible offsets project Division 2
Section 27
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 45
(a) if the Administrator requires the applicant to give further
1
information under subsection 24(1) in relation to the
2
application--within 90 days after the applicant gave the
3
Administrator the information; or
4
(b) if the Administrator requires the applicant to give further
5
information under subsection 94(1) in relation to the offsets
6
project--within 90 days after the applicant gave the
7
Administrator the information; or
8
(c) otherwise--within 90 days after the application was made.
9
When a declaration takes effect
10
(15) A declaration under subsection (2) takes effect:
11
(a) when it is made; or
12
(b)
if:
13
(i) an earlier day is specified in the declaration; and
14
(ii) the applicant has consented to the specification of the
15
earlier day;
16
on the day specified.
17
(16) The specified day must not be a day that is earlier than 1 July 2010.
18
Notification of declaration
19
(17) As soon as practicable after making a declaration under
20
subsection (2), the Administrator must give a copy of the
21
declaration to:
22
(a) the applicant; and
23
(b) the relevant land registration official.
24
Refusal
25
(18) If the Administrator decides to refuse to declare the offsets project
26
as an eligible offsets project, the Administrator must give written
27
notice of the decision to the applicant.
28
Registered indigenous land use agreements
29
(19)
If:
30
(a) a declaration under subsection (2) is in force; and
31
Part 3 Eligible offsets projects
Division 2 Declaration of eligible offsets project
Section 28
46 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) a relevant consent under paragraph (4)(k) was set out in a
1
registered indigenous land use agreement;
2
details of the agreement must not be removed from the Register of
3
Indigenous Land Use Agreements under subparagraph
4
199C(1)(c)(ii) of the Native Title Act 1993 without the written
5
consent of the Administrator.
6
Declaration is not legislative instrument
7
(20) A declaration made under subsection (2) is not a legislative
8
instrument.
9
28 Declaration may be subject to condition about obtaining
10
regulatory approvals
11
Scope
12
(1) This section applies if:
13
(a) an application under section 22 has been made for a
14
declaration of an offsets project as an eligible offsets project;
15
and
16
(b) the Administrator makes a declaration under section 27 in
17
relation to the project; and
18
(c) the Administrator is not satisfied that all regulatory approvals
19
have been obtained for the project.
20
Condition
21
(2) The Administrator must specify in the declaration that the
22
declaration is subject to the condition that all regulatory approvals
23
must be obtained for the project before the end of the first crediting
24
period for the project.
25
26
Eligible offsets projects Part 3
Variation of declaration of eligible offsets project Division 3
Section 29
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 47
Division 3--Variation of declaration of eligible offsets
1
project
2
29 Voluntary variation of declaration of eligible offsets project in
3
relation to the project area or project areas
4
Regulations
5
(1) The regulations may make provision for and in relation to
6
empowering the Administrator to vary a declaration under
7
section 27 in relation to an offsets project so far as the declaration
8
identifies the project area or project areas.
9
(2) Regulations made for the purposes of subsection (1) must not
10
empower the Administrator to vary a declaration unless the project
11
proponent for the project applies to the Administrator for the
12
variation of the declaration.
13
(3) Regulations made for the purposes of subsection (1) may make
14
provision for or in relation to any or all of the following matters:
15
(a) applications for variations under those regulations;
16
(b) the approval by the Administrator of a form for such an
17
application;
18
(c) information that must accompany such an application;
19
(d) documents that must accompany such an application;
20
(e) verification by statutory declaration of statements in such an
21
application;
22
(f) consents that must be obtained for the making of such an
23
application;
24
(g) authorising a person to issue a certificate in relation to such
25
an application;
26
(h) requiring such an application to be accompanied by a
27
statement about consistency with a regional natural resource
28
management plan (if any) that covers the project area or any
29
of the project areas;
30
(i) the fee (if any) that must accompany such an application;
31
(j) the withdrawal of such an application;
32
(k) empowering the Administrator:
33
Part 3 Eligible offsets projects
Division 3 Variation of declaration of eligible offsets project
Section 29
48 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) to require an applicant to give the Administrator further
1
information in connection with such an application; and
2
(ii) if the applicant breaches the requirement--to refuse to
3
consider the application, or to refuse to take any action,
4
or any further action, in relation to the application.
5
(4) Subsection (3) does not limit subsection (1).
6
(5) A fee mentioned in paragraph (3)(i) must not be such as to amount
7
to taxation.
8
(6) Regulations made for the purposes of subsection (1) must provide
9
that, if a declaration of an eligible offsets project is varied in
10
accordance with those regulations, the Administrator must give a
11
copy of the variation to:
12
(a) the applicant for the variation; and
13
(b) the relevant land registration official.
14
(7) Regulations made for the purposes of subsection (1) must provide
15
that, if the Administrator decides to refuse to vary a declaration of
16
an eligible offsets project in accordance with an application for
17
variation under those regulations, the Administrator must give
18
written notice of the decision to the applicant for the variation.
19
Registered indigenous land use agreements
20
(8)
If:
21
(a) a declaration of an eligible offsets project is varied in
22
accordance with regulations made for the purposes of
23
subsection (1); and
24
(b) a consent to the making of the application for the variation
25
was set out in a registered indigenous land use agreement;
26
details of the agreement must not be removed from the Register of
27
Indigenous Land Use Agreements under subparagraph
28
199C(1)(c)(ii) of the Native Title Act 1993 without the written
29
consent of the Administrator.
30
References to eligible offsets project
31
(9) If a declaration of an eligible offsets project is varied in accordance
32
with regulations made for the purposes of subsection (1), a
33
Eligible offsets projects Part 3
Variation of declaration of eligible offsets project Division 3
Section 30
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 49
reference in this Act or the regulations to the eligible offsets
1
project is a reference to the eligible offsets project as varied.
2
30 Voluntary variation of declaration of eligible offsets project in
3
relation to the project proponent
4
Regulations
5
(1) The regulations may make provision for and in relation to
6
empowering the Administrator to vary a declaration under
7
section 27 in relation to an offsets project so far as the declaration
8
identifies the project proponent for the project.
9
(2) Regulations made for the purposes of subsection (1) must not
10
empower the Administrator to vary a declaration unless the project
11
proponent for the project applies to the Administrator for the
12
variation of the declaration.
13
(3) Regulations made for the purposes of subsection (1) may make
14
provision for or in relation to any or all of the following matters:
15
(a) applications for variations under those regulations;
16
(b) the approval by the Administrator of a form for such an
17
application;
18
(c) information that must accompany such an application;
19
(d) documents that must accompany such an application;
20
(e) verification by statutory declaration of statements in such an
21
application;
22
(f) the fee (if any) that must accompany such an application;
23
(g) the withdrawal of such an application;
24
(h) empowering the Administrator:
25
(i) to require an applicant to give the Administrator further
26
information in connection with such an application; and
27
(ii) if the applicant breaches the requirement--to refuse to
28
consider the application, or to refuse to take any action,
29
or any further action, in relation to the application;
30
(i) empowering the Administrator to require the applicant to
31
give security to the Commonwealth in relation to the
32
fulfilment by the applicant of any requirements to relinquish
33
Part 3 Eligible offsets projects
Division 3 Variation of declaration of eligible offsets project
Section 30
50 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Australian carbon credit units that may be imposed on the
1
applicant under this Part in relation to the project.
2
(4) Subsection (3) does not limit subsection (1).
3
(5) A fee mentioned in paragraph (3)(f) must not be such as to amount
4
to taxation.
5
(6) Regulations made for the purposes of subsection (1) must provide
6
that, if a declaration of an eligible offsets project is varied in
7
accordance with those regulations, the Administrator must give a
8
copy of the variation to:
9
(a) the applicant for the variation; and
10
(b) the relevant land registration official.
11
(7) Regulations made for the purposes of subsection (1) must provide
12
that, if a declaration of an eligible offsets project is varied in
13
accordance with those regulations, the variation takes effect:
14
(a) when it is made; or
15
(b)
if:
16
(i) the Administrator makes a written determination
17
specifying an earlier day; and
18
(ii) the applicant for the variation has consented to the
19
determination of the earlier day;
20
on the day so determined.
21
(8) A determination made under subparagraph (7)(b)(i) is not a
22
legislative instrument.
23
(9) Regulations made for the purposes of subsection (1) must provide
24
that, if the Administrator decides to refuse to vary a declaration of
25
an eligible offsets project in accordance with an application for
26
variation under those regulations, the Administrator must give
27
written notice of the decision to the applicant for the variation.
28
References to eligible offsets project
29
(10) If a declaration of an eligible offsets project is varied in accordance
30
with regulations made for the purposes of subsection (1), a
31
reference in this Act or the regulations to the eligible offsets
32
project is a reference to the eligible offsets project as varied.
33
Eligible offsets projects Part 3
Variation of declaration of eligible offsets project Division 3
Section 31
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 51
31 Voluntary variation of conditional declaration of eligible offsets
1
project--regulatory approvals obtained
2
Scope
3
(1) This section applies to a declaration under section 27 in relation to
4
an offsets project if the declaration is subject to a condition that all
5
regulatory approvals must be obtained for the project before the
6
end of the first crediting period for the project.
7
Regulations
8
(2) The regulations may make provision for and in relation to
9
empowering the Administrator to vary such a declaration by
10
removing such a condition.
11
(3) Regulations made for the purposes of subsection (2) must not
12
empower the Administrator to vary a declaration unless:
13
(a) the project proponent for the project applies to the
14
Administrator for the variation of the declaration; and
15
(b) the Administrator is satisfied that the condition has been met.
16
(4) Regulations made for the purposes of subsection (2) may make
17
provision for or in relation to any or all of the following matters:
18
(a) applications for variations under those regulations;
19
(b) the approval by the Administrator of a form for such an
20
application;
21
(c) information that must accompany such an application;
22
(d) documents that must accompany such an application;
23
(e) verification by statutory declaration of statements in such an
24
application;
25
(f) the fee (if any) that must accompany such an application;
26
(g) the withdrawal of such an application;
27
(h) empowering the Administrator:
28
(i) to require an applicant to give the Administrator further
29
information in connection with such an application; and
30
(ii) if the applicant breaches the requirement--to refuse to
31
consider the application, or to refuse to take any action,
32
or any further action, in relation to the application.
33
Part 3 Eligible offsets projects
Division 3 Variation of declaration of eligible offsets project
Section 31
52 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(5) Subsection (4) does not limit subsection (2).
1
(6) A fee mentioned in paragraph (4)(f) must not be such as to amount
2
to taxation.
3
(7) Regulations made for the purposes of subsection (2) must provide
4
that, if a declaration of an eligible offsets project is varied in
5
accordance with those regulations, the Administrator must give a
6
copy of the variation to:
7
(a) the applicant for the variation; and
8
(b) the relevant land registration official.
9
(8) Regulations made for the purposes of subsection (2) must provide
10
that, if the Administrator decides to refuse to vary a declaration of
11
an eligible offsets project in accordance with an application for
12
variation under those regulations, the Administrator must give
13
written notice of the decision to the applicant for the variation.
14
References to eligible offsets project
15
(9) If a declaration of an eligible offsets project is varied in accordance
16
with regulations made for the purposes of subsection (2), a
17
reference in this Act or the regulations to the eligible offsets
18
project is a reference to the eligible offsets project as varied.
19
20
Eligible offsets projects Part 3
Revocation of declaration of eligible offsets project Division 4
Section 32
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 53
Division 4--Revocation of declaration of eligible offsets
1
project
2
Subdivision A--Voluntary revocation of declaration of eligible
3
offsets project
4
32 Voluntary revocation of declaration of eligible offsets project--
5
units issued
6
(1) The regulations may make provision for and in relation to
7
empowering the Administrator to revoke a declaration under
8
section 27 in relation to an offsets project.
9
(2) Regulations made for the purposes of subsection (1) must not
10
empower the Administrator to revoke a declaration unless:
11
(a) one or more Australian carbon credit units have been issued
12
in relation to the project in accordance with Part 2; and
13
(b) the project proponent for the project applies to the
14
Administrator for the revocation of the declaration; and
15
(c) if the project is a sequestration offsets project--before the
16
application was made, the applicant voluntarily relinquished:
17
(i) a number of Kyoto Australian carbon credit units in
18
order to satisfy a condition for revocation of the
19
declaration; or
20
(ii) a number of non-Kyoto Australian carbon credit units in
21
order to satisfy a condition for revocation of the
22
declaration; and
23
(d) if the project is a sequestration offsets project--the number
24
of relinquished units equals the net total number of
25
Australian carbon credit units issued in relation to the project
26
in accordance with Part 2.
27
Note 1:
See also section 177 (transfer of certain units instead of
28
relinquishment of Kyoto Australian carbon credit units).
29
Note 2:
See also section 178 (transfer of certain units instead of
30
relinquishment of non-Kyoto Australian carbon credit units).
31
(3) Regulations made for the purposes of subsection (1) may make
32
provision for or in relation to either or both of the following
33
matters:
34
Part 3 Eligible offsets projects
Division 4 Revocation of declaration of eligible offsets project
Section 33
54 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) applications for revocations under those regulations;
1
(b) the approval by the Administrator of a form for such an
2
application.
3
(4) Subsection (3) does not limit subsection (1).
4
(5) Regulations made for the purposes of subsection (1) must provide
5
that, if a declaration of an eligible offsets project is revoked in
6
accordance with those regulations, the Administrator must give a
7
copy of the revocation to:
8
(a) the applicant for the revocation; and
9
(b) the relevant land registration official.
10
33 Voluntary revocation of declaration of eligible offsets project--no
11
units issued
12
(1) The regulations may make provision for and in relation to
13
empowering the Administrator to revoke a declaration under
14
section 27 in relation to an offsets project.
15
(2) Regulations made for the purposes of subsection (1) must not
16
empower the Administrator to revoke a declaration unless:
17
(a) no Australian carbon credit units have been issued in relation
18
to the project in accordance with Part 2; and
19
(b) the project proponent for the project applies to the
20
Administrator for the revocation of the declaration.
21
(3) Regulations made for the purposes of subsection (1) may make
22
provision for or in relation to either or both of the following
23
matters:
24
(a) applications for revocations under those regulations;
25
(b) the approval by the Administrator of a form for such an
26
application.
27
(4) Subsection (3) does not limit subsection (1).
28
(5) Regulations made for the purposes of subsection (1) must provide
29
that, if a declaration of an eligible offsets project is revoked in
30
accordance with those regulations, the Administrator must give a
31
copy of the revocation to:
32
Eligible offsets projects Part 3
Revocation of declaration of eligible offsets project Division 4
Section 34
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 55
(a) the applicant for the revocation; and
1
(b) the relevant land registration official.
2
Subdivision B--Unilateral revocation of declaration of eligible
3
offsets project
4
34 Unilateral revocation of declaration of eligible offsets project--
5
regulatory approvals not obtained
6
(1) The regulations may make provision for and in relation to
7
empowering the Administrator to revoke a declaration under
8
section 27 in relation to an offsets project.
9
(2) Regulations made for the purposes of subsection (1) must not
10
empower the Administrator to revoke a declaration unless:
11
(a) the declaration is subject to the condition that all regulatory
12
approvals for the project must be obtained before the end of
13
the first crediting period for the project; and
14
(b) the Administrator is satisfied that the condition has not been
15
met.
16
(3) Regulations made for the purposes of subsection (1) must require
17
the Administrator to consult the project proponent for the project
18
before deciding to revoke a declaration.
19
(4) Regulations made for the purposes of subsection (1) must provide
20
that, if a declaration of an eligible offsets project is revoked in
21
accordance with those regulations, the Administrator must give a
22
copy of the revocation to:
23
(a) the project proponent; and
24
(b) the relevant land registration official.
25
35 Unilateral revocation of declaration of eligible offsets project--
26
eligibility requirements not met etc.
27
(1) The regulations may make provision for and in relation to
28
empowering the Administrator to revoke a declaration under
29
section 27 in relation to an offsets project.
30
Part 3 Eligible offsets projects
Division 4 Revocation of declaration of eligible offsets project
Section 36
56 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(2) Regulations made for the purposes of subsection (1) must not
1
empower the Administrator to revoke a declaration unless the
2
Administrator is satisfied that the project does not meet a
3
requirement that is:
4
(a) set out in subsection 27(5); and
5
(b) specified in regulations made for the purposes of this
6
paragraph.
7
(3) Regulations made for the purposes of subsection (1) must require
8
the Administrator to consult the project proponent for the project
9
before deciding to revoke a declaration.
10
(4) Regulations made for the purposes of subsection (1) must provide
11
that, if a declaration of an eligible offsets project is revoked in
12
accordance with those regulations, the Administrator must give a
13
copy of the revocation to:
14
(a) the project proponent; and
15
(b) the relevant land registration official.
16
36 Unilateral revocation of declaration of eligible offsets project--
17
project proponent ceases to be a recognised offsets entity
18
(1) The regulations may make provision for and in relation to
19
empowering the Administrator to revoke a declaration under
20
section 27 in relation to an offsets project.
21
(2) Regulations made for the purposes of subsection (1) must not
22
empower the Administrator to revoke a declaration unless:
23
(a) the project proponent for the project ceases to be a
24
recognised offsets entity; and
25
(b) 90 days pass after the cessation, and the person who, at the
26
end of that 90-day period, is the project proponent for the
27
project is not a recognised offsets entity.
28
(3) Regulations made for the purposes of subsection (1) must require
29
the Administrator to consult the project proponent for the project
30
before deciding to revoke a declaration.
31
(4) Regulations made for the purposes of subsection (1) must provide
32
that, if a declaration of an eligible offsets project is revoked in
33
Eligible offsets projects Part 3
Revocation of declaration of eligible offsets project Division 4
Section 37
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 57
accordance with those regulations, the Administrator must give a
1
copy of the revocation to:
2
(a) the project proponent; and
3
(b) the relevant land registration official.
4
37 Unilateral revocation of declaration of eligible offsets project--
5
person responsible for carrying out project ceases to be
6
the project proponent
7
(1) The regulations may make provision for and in relation to
8
empowering the Administrator to revoke a declaration under
9
section 27 in relation to an offsets project.
10
(2) Regulations made for the purposes of subsection (1) must not
11
empower the Administrator to revoke a declaration unless:
12
(a) the person who is responsible for carrying out the project
13
ceases to be the project proponent for the project; and
14
(b) 90 days pass after the cessation, and the person who, at the
15
end of that 90-day period, is responsible for carrying out the
16
project is not:
17
(i) the project proponent for the project; and
18
(ii) a recognised offsets entity.
19
(3) Regulations made for the purposes of subsection (1) must require
20
the Administrator to consult the project proponent for the project
21
before deciding to revoke a declaration.
22
(4) Regulations made for the purposes of subsection (1) must provide
23
that, if a declaration of an eligible offsets project is revoked in
24
accordance with those regulations, the Administrator must give a
25
copy of the revocation to:
26
(a) the person who is responsible for carrying out the project;
27
and
28
(b) the relevant land registration official.
29
Part 3 Eligible offsets projects
Division 4 Revocation of declaration of eligible offsets project
Section 38
58 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
38 Unilateral revocation of declaration of eligible offsets project--
1
false or misleading information
2
(1) The regulations may make provision for and in relation to
3
empowering the Administrator to revoke a declaration under
4
section 27 in relation to an offsets project.
5
(2) Regulations made for the purposes of subsection (1) must not
6
empower the Administrator to revoke a declaration unless:
7
(a) information was given by a person to the Administrator in
8
connection with the project; and
9
(b) the information was:
10
(i) contained in an application under this Act or the
11
regulations; or
12
(ii) given in connection with an application under this Act
13
or the regulations; or
14
(iii) contained in an offsets report; or
15
(iv) contained in a notification under Part 6; and
16
(c) the information was false or misleading in a material
17
particular.
18
(3) Regulations made for the purposes of subsection (1) must require
19
the Administrator to consult the project proponent for the project
20
before deciding to revoke a declaration.
21
(4) Regulations made for the purposes of subsection (1) must provide
22
that, if a declaration of an eligible offsets project is revoked in
23
accordance with those regulations, the Administrator must give a
24
copy of the revocation to:
25
(a) the project proponent; and
26
(b) the relevant land registration official.
27
28
Eligible offsets projects Part 3
Entries in title registers Division 5
Section 39
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 59
Division 5--Entries in title registers
1
39 Entries in title registers--general
2
Scope
3
(1) This section applies to an eligible offsets project.
4
Entries
5
(2) The relevant land registration official may make such entries or
6
notations in or on registers or other documents kept by the official
7
(in electronic form or otherwise) as the official thinks appropriate
8
for the purposes of drawing the attention of persons to:
9
(a) the existence of the eligible offsets project; and
10
(b) the fact that requirements may arise under this Act in relation
11
to the project; and
12
(c) such other matters (if any) relating to this Act as the official
13
considers appropriate.
14
40 Entries in title registers--land subject to carbon maintenance
15
obligation
16
Scope
17
(1) This section applies to one or more areas of land if those areas of
18
land are subject to a carbon maintenance obligation.
19
Entries
20
(2) The relevant land registration official may make such entries or
21
notations in or on registers or other documents kept by the official
22
(in electronic form or otherwise) as the official thinks appropriate
23
for the purposes of drawing the attention of persons to the
24
obligation.
25
26
Part 3 Eligible offsets projects
Division 6 Additionality test
Section 41
60 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 6--Additionality test
1
41 Additionality test
2
(1) For the purposes of this Act, an offsets project passes the
3
additionality test if:
4
(a) the project is of a kind specified in the regulations; and
5
(b) the project is not required to be carried out by or under a law
6
of the Commonwealth, a State or a Territory.
7
(2) Before recommending to the Governor-General that regulations
8
should be made for the purposes of paragraph (1)(a) specifying a
9
particular kind of project, the Minister must request the Domestic
10
Offsets Integrity Committee to advise the Minister about whether
11
such a project should, or should not, be specified in those
12
regulations.
13
(3) In deciding whether to recommend to the Governor-General that
14
regulations should be made for the purposes of paragraph (1)(a)
15
specifying a particular kind of project, the Minister must have
16
regard to:
17
(a) whether carrying out such a project is not common practice
18
in:
19
(i) the relevant industry or the relevant part of the relevant
20
industry; or
21
(ii) the kind of environment in which such a project is to be
22
carried out; and
23
(b) whether, apart from Part 2, carrying out such a project would
24
not be common practice in:
25
(i) the relevant industry or the relevant part of the relevant
26
industry; or
27
(ii) the kind of environment in which such a project is to be
28
carried out; and
29
(c) any advice given by the Domestic Offsets Integrity
30
Committee under subsection (2); and
31
(d) such other matters (if any) as the Minister considers relevant.
32
Eligible offsets projects Part 3
Additionality test Division 6
Section 41
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 61
(4) Paragraph (1)(a) of this section does not, by implication, limit the
1
application of subsection 13(3) of the Legislative Instruments Act
2
2003 to another instrument under this Act.
3
(5)
If:
4
(a) the Domestic Offsets Integrity Committee gives advice to the
5
Minister under subsection (2) in relation to a particular kind
6
of project; and
7
(b) the Minister decides:
8
(i) to recommend to the Governor-General that regulations
9
should be made for the purposes of paragraph (1)(a)
10
specifying that kind of project; or
11
(ii) not to recommend to the Governor-General that
12
regulations should be made for the purposes of
13
paragraph (1)(a) specifying that kind of project;
14
the Minister must, as soon as practicable after making the decision,
15
cause a copy of the Domestic Offset Integrity Committee's advice
16
under subsection (2) to be published on the Department's website.
17
18
Part 3 Eligible offsets projects
Division 7 Net total number of Australian carbon credit units issued in relation to an
eligible offsets project
Section 42
62 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 7--Net total number of Australian carbon credit
1
units issued in relation to an eligible offsets
2
project
3
42 Net total number of Australian carbon credit units issued in
4
relation to an eligible offsets project
5
For the purposes of this Act, the net total number of Australian
6
carbon credit units issued in relation to an eligible offsets project in
7
accordance with Part 2 is the number worked out using the
8
following formula:
9
Total number of
Total number of
Australian carbon credit units
Australian carbon credit units
relinquished in order to comply
issued in relation to the project
with a requirement un
in acordance with Part 2
-
der
Part 7 in relation to the project
10
11
Eligible offsets projects Part 3
Applicable carbon sequestration right Division 8
Section 43
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 63
Division 8--Applicable carbon sequestration right
1
43 Applicable carbon sequestration right
2
Torrens system land
3
(1) For the purposes of the application of this Act to a sequestration
4
offsets project, if:
5
(a) an area of land is a project area for the project; and
6
(b) the area of land is Torrens system land; and
7
(c) a person holds a legal estate or interest in the area of land;
8
and
9
(d) the estate or interest is registered under a Torrens system of
10
registration; and
11
(e) as a result of holding the estate or interest, the person has the
12
exclusive legal right to obtain the benefit (whether present or
13
future) of sequestration of carbon in the relevant carbon pool
14
on the area of land;
15
the estate or interest is the applicable carbon sequestration right
16
held by the person in relation to the project area.
17
Note:
See subsections (9) and (10), which deal with certain native title land.
18
(2) For the purposes of the application of this Act to a sequestration
19
offsets project, if:
20
(a) an area of land is a project area for the project; and
21
(b) the area of land is Torrens system land; and
22
(c) a person has the exclusive legal right to obtain the benefit
23
(whether present or future) of sequestration of carbon in the
24
relevant carbon pool on the area of land; and
25
(d) the right is registered under a Torrens system of registration;
26
and
27
(e) under a law of a State or Territory, the right is, or is taken to
28
be, an estate or interest in land;
29
the exclusive right is the applicable carbon sequestration right
30
held by the person in relation to the project area.
31
Note:
See subsections (9) and (10), which deal with certain native title land.
32
Part 3 Eligible offsets projects
Division 8 Applicable carbon sequestration right
Section 43
64 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(3) For the purposes of the application of this Act to a sequestration
1
offsets project, if:
2
(a) an area of land is a project area for the project; and
3
(b) the area of land is Torrens system land; and
4
(c) a person has the exclusive legal right to obtain the benefit
5
(whether present or future) of sequestration of carbon in the
6
relevant carbon pool on the area of land; and
7
(d)
either:
8
(i) the right is registered under a Torrens system of
9
registration; or
10
(ii) the area of land is Torrens system land, and the right is
11
noted on the relevant certificate of title; and
12
(e) under a law of a State or Territory, the right runs with the
13
relevant land;
14
the exclusive right is the applicable carbon sequestration right
15
held by the person in relation to the project area.
16
Note:
See subsections (9) and (10), which deal with certain native title land.
17
Crown land that is not Torrens system land
18
(4) For the purposes of the application of this Act to a sequestration
19
offsets project, if:
20
(a) an area of land is a project area for the project; and
21
(b) the area of land is Crown land in a State or Territory; and
22
(c) the area of land is not Torrens system land; and
23
(d) a person (other than the Commonwealth, the State, the
24
Territory or a statutory authority of the Commonwealth, the
25
State or the Territory) holds a legal estate or interest in the
26
area of land; and
27
(e) as a result of holding the estate or interest, the person has the
28
exclusive legal right to obtain the benefit (whether present or
29
future) of sequestration of carbon in the relevant carbon pool
30
on the area of land;
31
the estate or interest is the applicable carbon sequestration right
32
held by the person in relation to the project area.
33
Note:
See subsections (9) and (10), which deal with certain native title land.
34
Eligible offsets projects Part 3
Applicable carbon sequestration right Division 8
Section 43
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 65
(5) For the purposes of the application of this Act to a sequestration
1
offsets project, if:
2
(a) an area of land is a project area for the project; and
3
(b) the area of land is Crown land in a State or Territory; and
4
(c) the area of land is not Torrens system land; and
5
(d) a person (other than the Commonwealth, the State, the
6
Territory or a statutory authority of the Commonwealth, the
7
State or the Territory) has the exclusive legal right to obtain
8
the benefit (whether present or future) of sequestration of
9
carbon in the relevant carbon pool on the area of land; and
10
(e) under a law of the State or Territory, the right is, or is taken
11
to be, an estate or interest in land;
12
the exclusive right is the applicable carbon sequestration right
13
held by the person in relation to the project area.
14
Note:
See subsections (9) and (10), which deal with certain native title land.
15
(6) For the purposes of the application of this Act to a sequestration
16
offsets project, if:
17
(a) an area of land is a project area for the project; and
18
(b) the area of land is Crown land in a State or Territory; and
19
(c) the area of land is not Torrens system land; and
20
(d) a person (other than the Commonwealth, the State, the
21
Territory or a statutory authority of the Commonwealth, the
22
State or the Territory) has the exclusive legal right to obtain
23
the benefit (whether present or future) of sequestration of
24
carbon in the relevant carbon pool on the area of land; and
25
(e) under a law of the State or Territory, the right runs with the
26
relevant land; and
27
(f) it is not the case that under a law of the State or Territory, the
28
right is, or is taken to be, an estate or interest in land;
29
the exclusive right is the applicable carbon sequestration right
30
held by the person in relation to the project area.
31
Note:
See subsections (9) and (10), which deal with certain native title land.
32
(7) For the purposes of this Act, if:
33
(a) an area of land is Crown land; and
34
(b) the area of land is not Torrens system land; and
35
Part 3 Eligible offsets projects
Division 8 Applicable carbon sequestration right
Section 43
66 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c) as a result of the area being Crown land:
1
(i) the Commonwealth; or
2
(ii) a statutory authority of the Commonwealth;
3
has the exclusive legal right to obtain the benefit (whether
4
present or future) of sequestration of carbon dioxide by trees
5
on the area of land;
6
the exclusive right is the carbon sequestration right held by the
7
Commonwealth or statutory authority, as the case may be, in
8
relation to the land.
9
Note:
See subsections (9) and (10), which deal with certain native title land.
10
(8) For the purposes of the application of this Act to a sequestration
11
offsets project, if:
12
(a) an area of land is a project area for the project; and
13
(b) the area of land is Crown land in a State or Territory; and
14
(c) the area of land is not Torrens system land; and
15
(d) as a result of the area of land being Crown land:
16
(i) the State or Territory; or
17
(ii) a statutory authority of the State or Territory;
18
has the exclusive legal right to obtain the benefit (whether
19
present or future) of sequestration of carbon in the relevant
20
carbon pool on the area of land;
21
the exclusive right is the applicable carbon sequestration right
22
held by the State, Territory or statutory authority, as the case may
23
be, in relation to the project area.
24
Note:
See subsections (9) and (10), which deal with certain native title land.
25
Native title land
26
(9) For the purposes of the application of this Act to a sequestration
27
offsets project, if:
28
(a) an area of land is a project area for the project; and
29
(b) the area of land is native title land; and
30
(c) there is a registered native title body corporate for the area of
31
land; and
32
(d) as a result of holding the native title, the native title holder
33
has the exclusive legal right to obtain the benefit (whether
34
Eligible offsets projects Part 3
Applicable carbon sequestration right Division 8
Section 43
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 67
present or future) of sequestration of carbon dioxide in the
1
relevant carbon pool on the area of land;
2
then:
3
(e) subsections (1), (2), (3), (4), (5), (6), (7) and (8) do not apply
4
in relation to the area of land; and
5
(f) the native title is the applicable carbon sequestration right
6
held by the native title holder in relation to the project area.
7
(10) For the purposes of the application of this Act to a sequestration
8
offsets project, if:
9
(a) an area of land is a project area for the project; and
10
(b) the area of land is native title land; and
11
(c) as a result of holding the native title, the native title holder
12
has the exclusive legal right to obtain the benefit (whether
13
present or future) of sequestration of carbon dioxide in the
14
relevant carbon pool on the area of land; and
15
(d) the exclusive right can be exercised by another person under
16
a registered indigenous land use agreement that is:
17
(i) with the registered native title body corporate in relation
18
to the area of land; and
19
(ii) covered by section 24BA of the Native Title Act 1993;
20
then:
21
(e) subsections (1), (2), (3), (4), (5), (6), (7) and (8) do not apply
22
in relation to the area of land; and
23
(f) the exclusive right is the applicable carbon sequestration
24
right held by the other person in relation to the project area.
25
Regulations
26
(11) For the purposes of the application of this Act to a sequestration
27
offsets project, if:
28
(a) an area of land is a project area for the project; and
29
(b) a person has:
30
(i) a prescribed right in relation to the area of land; or
31
(ii) a prescribed estate in the area of land; or
32
(iii) a prescribed interest in the area of land;
33
Part 3 Eligible offsets projects
Division 8 Applicable carbon sequestration right
Section 43
68 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
the prescribed right, prescribed estate or prescribed interest, as the
1
case may be, is the applicable carbon sequestration right held by
2
the person in relation to the project area.
3
4
Eligible offsets projects Part 3
Eligible interest in an area of land Division 9
Section 44
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 69
Division 9--Eligible interest in an area of land
1
44 Eligible interest in an area of land--Torrens system land
2
Scope
3
(1) This section applies to an area of land if the area is Torrens system
4
land.
5
Eligible interest
6
(2) For the purposes of this Act, if:
7
(a) a person holds an estate in fee simple, or any other legal
8
estate or interest, in the whole or a part of the area of land;
9
and
10
(b) the estate or interest is registered under a Torrens system of
11
registration;
12
the estate or interest is an eligible interest held by the person in the
13
area of land.
14
(3) For the purposes of this Act, if:
15
(a) under subsection (2), a person holds an eligible interest in the
16
area of land; and
17
(b)
another
person:
18
(i) is a mortgagee of the eligible interest, where the
19
mortgage is registered under a Torrens system of
20
registration; or
21
(ii) a chargee of the eligible interest, where the charge is
22
registered under a Torrens system of registration;
23
the mortgage or charge is an eligible interest held by the other
24
person in the area of land.
25
(4) For the purposes of this Act, if the area of land is Crown land, the
26
Crown lands Minister of the State or Territory holds an eligible
27
interest in the area of land.
28
(5) The regulations may provide that, for the purposes of this Act, a
29
person specified in, or ascertained in accordance with, the
30
regulations holds an eligible interest in the area of land.
31
Part 3 Eligible offsets projects
Division 9 Eligible interest in an area of land
Section 45
70 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(6) For the purposes of this Act, if:
1
(a) the area of land is land rights land; and
2
(b) any of the following subparagraphs applies to the area of
3
land:
4
(i) a lease is in force over the land, and the grant of the
5
lease took place under a law of the Commonwealth that
6
makes provision for the grant of such things only to, or
7
for the benefit of, Aboriginal peoples or Torres Strait
8
Islanders;
9
(ii) subparagraph (i) does not apply, and the land is held by
10
the Commonwealth;
11
(iii) subparagraph (i) does not apply, and the land is held by
12
a statutory authority of the Commonwealth;
13
then:
14
(c) if subparagraph (b)(i) applies--the Minister who administers
15
the law mentioned in that subparagraph holds an eligible
16
interest in the area of land; or
17
(d) if subparagraph (b)(ii) applies--the Minister who administers
18
the Aboriginal Land Rights (Northern Territory) Act 1976
19
holds an eligible interest in the area of land; or
20
(e) if subparagraph (b)(iii) applies--the Minister who
21
administers the Act that establishes the statutory authority
22
holds an eligible interest in the area of land.
23
(7) For the purposes of this Act, if:
24
(a) the area of land is land rights land in a State or Territory; and
25
(b) the area of land is not covered by subsection (6); and
26
(c) the area of land is not freehold land rights land;
27
the Crown lands Minister of the State or Territory holds an eligible
28
interest in the area of land.
29
45 Eligible interest in an area of land--Crown land that is not
30
Torrens system land
31
Scope
32
(1) This section applies to an area of land in a State or Territory if the
33
area of land:
34
Eligible offsets projects Part 3
Eligible interest in an area of land Division 9
Section 45
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 71
(a) is Crown land; and
1
(b) is not Torrens system land.
2
Eligible interest
3
(2) For the purposes of this Act, if the area of land is neither:
4
(a) exclusive possession native title land; nor
5
(b) land rights land;
6
the Crown lands Minister of the State or Territory holds an eligible
7
interest in the area of land.
8
(3) For the purposes of this Act, if:
9
(a) a person (other than the State or Territory) holds a legal
10
estate or interest (the relevant estate or interest) in the whole
11
or a part of the area of land; and
12
(b) any of the following conditions are satisfied:
13
(i) the relevant estate or interest came into existence as a
14
result of a grant by the Crown in any capacity;
15
(ii) the relevant estate or interest was derived from an estate
16
or interest that came into existence as a result of a grant
17
by the Crown in any capacity;
18
(iii) the relevant estate or interest was created by or under a
19
law of the Commonwealth, a State or a Territory;
20
(iv) the relevant estate or interest was derived from an estate
21
or interest that was created by or under a law of the
22
Commonwealth, a State or a Territory;
23
the relevant estate or interest is an eligible interest held by the
24
person in the area of land.
25
(4) For the purposes of this Act, if:
26
(a) under subsection (3), a person holds an eligible interest in the
27
area of land; and
28
(b)
another
person:
29
(i) is a mortgagee of the eligible interest; or
30
(ii) is a chargee of the eligible interest;
31
the mortgage or charge is an eligible interest held by the other
32
person in the area of land.
33
Part 3 Eligible offsets projects
Division 9 Eligible interest in an area of land
Section 45
72 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(5) The regulations may provide that, for the purposes of this Act, a
1
person specified in, or ascertained in accordance with, the
2
regulations holds an eligible interest in the area of land.
3
(6) For the purposes of this Act, if:
4
(a) the area of land is land rights land; and
5
(b) any of the following subparagraphs applies to the area of
6
land:
7
(i) a lease is in force over the land, and the grant of the
8
lease took place under a law of the Commonwealth that
9
makes provision for the grant of such things only to, or
10
for the benefit of, Aboriginal peoples or Torres Strait
11
Islanders;
12
(ii) subparagraph (i) does not apply, and the land is held by
13
the Commonwealth;
14
(iii) subparagraph (i) does not apply, and the land is held by
15
a statutory authority of the Commonwealth;
16
then:
17
(c) if subparagraph (b)(i) applies--the Minister who administers
18
the law mentioned in that subparagraph holds an eligible
19
interest in the area of land; or
20
(d) if subparagraph (b)(ii) applies--the Minister who administers
21
the Aboriginal Land Rights (Northern Territory) Act 1976
22
holds an eligible interest in the area of land; or
23
(e) if subparagraph (b)(iii) applies--the Minister who
24
administers the Act that establishes the statutory authority
25
holds an eligible interest in the area of land.
26
(7) For the purposes of this Act, if:
27
(a) the area of land is land rights land in a State or Territory; and
28
(b) the area of land is not covered by subsection (6); and
29
(c) the area of land is not freehold land rights land;
30
the Crown lands Minister of the State or Territory holds an eligible
31
interest in the area of land.
32
33
Eligible offsets projects Part 3
Native title land Division 10
Section 46
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 73
Division 10--Native title land
1
46 Registered native title bodies corporate--deemed project
2
proponent
3
Exclusive possession native title land
4
(1) For the purposes of the application of this Act to an offsets project,
5
if the following conditions are satisfied in relation to the project
6
area, or each of the project areas, for the offsets project:
7
(a) the project area is exclusive possession native title land;
8
(b) there is a registered native title body corporate for the project
9
area;
10
(c) no person (other than a body politic, the common law holders
11
or the registered native title body corporate) has the legal
12
right to carry out the project;
13
(d) no person (other than a body politic, the common law holders
14
or the registered native title body corporate) holds the
15
applicable carbon sequestration right in relation to the project
16
area;
17
then:
18
(e) the registered native title body corporate for the project area
19
is taken to be the project proponent for the offsets project;
20
and
21
(f) no other person is taken to be the project proponent for the
22
project; and
23
(g) paragraphs 27(4)(h) and (i) do not apply to the offsets
24
project.
25
Note:
Paragraphs 27(4)(h) and (i) deal with the issue of certificates in
26
relation to Crown land.
27
Native title holder has the legal right to carry out the project and
28
holds the applicable carbon sequestration right
29
(2) For the purposes of the application of this Act to an offsets project,
30
if the following conditions are satisfied in relation to the project
31
area, or each of the project areas, for the offsets project:
32
(a) the project area is native title land;
33
Part 3 Eligible offsets projects
Division 10 Native title land
Section 47
74 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) there is a registered native title body corporate for the project
1
area;
2
(c) the native title holder has the legal right to carry out the
3
project;
4
(d) the native title holder holds the applicable carbon
5
sequestration right in relation to the project area;
6
(e) subsection (1) does not apply to the project;
7
then:
8
(f) the registered native title body corporate for the project area
9
is taken to be the project proponent for the offsets project;
10
and
11
(g) no other person is taken to be the project proponent for the
12
project; and
13
(h) subparagraphs 27(4)(h)(vii) and (i)(v) have effect, in relation
14
to the project, as if a reference in those subparagraphs to the
15
applicant were a reference to the native title holder.
16
Note:
Paragraphs 27(4)(h) and (i) deal with the issue of certificates in
17
relation to Crown land.
18
47 Administrator to notify Crown lands Minister of declaration of
19
eligible offsets project
20
Scope
21
(1) This section applies if:
22
(a) a registered native title body corporate is taken, under
23
subsection 46(1), to be the project proponent for an offsets
24
project; and
25
(b) the project area is, or any of the project areas are, in a
26
particular State or Territory; and
27
(c) the project area is, or any of the project areas are, Crown
28
land; and
29
(d) the project area is not, or the project areas are not, Torrens
30
system land; and
31
(e) the Administrator makes a declaration under section 27 in
32
relation to the project.
33
Eligible offsets projects Part 3
Native title land Division 10
Section 48
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 75
Notification
1
(2) As soon as practicable after making the declaration, the
2
Administrator must notify the Crown lands Minister of the State or
3
Territory, in writing, of the making of the declaration.
4
48 Designation of special native title account
5
Scope
6
(1) This section applies if a registered native title body corporate is
7
taken, under section 46, to be the project proponent for an eligible
8
offsets project.
9
Request for special native title account
10
(2) The registered native title body corporate may:
11
(a) request the Administrator, under regulations made for the
12
purposes of subsection 10(1) of the Australian National
13
Registry of Emissions Units Act 2011, to open a Registry
14
account in the name of the registered native title body
15
corporate; and
16
(b) request the Administrator to designate that account as the
17
special native title account for the eligible offsets project.
18
(3) A request under paragraph (2)(b) must:
19
(a) be in writing; and
20
(b) be in a form approved, in writing, by the Administrator; and
21
(c) be accompanied by such information as is specified in the
22
regulations; and
23
(d) be accompanied by such other documents (if any) as are
24
specified in the regulations; and
25
(e) be accompanied by the fee (if any) specified in the
26
regulations.
27
(4) The approved form of request may provide for verification by
28
statutory declaration of statements in requests.
29
(5) A fee specified under paragraph (3)(e) must not be such as to
30
amount to taxation.
31
Part 3 Eligible offsets projects
Division 10 Native title land
Section 49
76 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Designation of special native title account
1
(6) After considering a request under paragraph (2)(b), the
2
Administrator may designate the Registry account as the special
3
native title account for the eligible offsets project.
4
49 Issue of Australian carbon credit units to special native title
5
account
6
Scope
7
(1) This section applies if a registered native title body corporate is
8
taken, under section 46, to be the project proponent for an eligible
9
offsets project.
10
Application for issue of Australian carbon credit units
11
(2) If the registered native title body corporate makes an application
12
under section 12 for the issue of a certificate of entitlement in
13
respect of the project for a reporting period, paragraph 13(1)(c)
14
does not apply to the application.
15
Note:
Paragraph 13(1)(c) requires the application to set out the account
16
number of a Registry account.
17
Issue of Australian carbon credit units
18
(3)
If:
19
(a) a special native title account for the project is kept in the
20
name of the registered native title body corporate; and
21
(b) apart from this subsection, the Administrator is required
22
under section 11 to issue one or more Australian carbon
23
credit units to the registered native title body corporate in
24
relation to the eligible offsets project;
25
then:
26
(c) the Administrator must comply with the requirement by
27
issuing the units to the registered native title body corporate
28
and making an entry for the units in the special native title
29
account; and
30
(d) subsections 11(5) and (6) do not apply to the issue of the
31
units.
32
Eligible offsets projects Part 3
Native title land Division 10
Section 50
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 77
(4)
If:
1
(a) there is not a special native title account for the project; and
2
(b) apart from this subsection, the Administrator is required
3
under section 11 to issue one or more Australian carbon
4
credit units to the registered native title body corporate in
5
relation to the eligible offsets project;
6
the Administrator must not issue the units.
7
50 Units held in special native title account
8
Scope
9
(1) This section applies to a Registry account that has been designated
10
as the special native title account for an eligible offsets project.
11
Units held in account
12
(2) Australian carbon credit units held in the special native title
13
account are held in trust for the persons who are, for the time
14
being, the common law holders of the native title in relation to the
15
project area, or each of the project areas, for the project.
16
51 Regulations about consulting common law holders etc.
17
(1) The regulations may make provision for a registered native title
18
body corporate to consult, and act in accordance with the directions
19
of, the common law holders in relation to anything done by the
20
registered native title body corporate under, or in connection with:
21
(a) this Act or the regulations; or
22
(b)
the
Australian National Registry of Emissions Units Act 2011
23
or regulations under that Act.
24
(2) The regulations may make provision for a registered native title
25
body corporate to be the agent of the common law holders for the
26
purposes of giving a consent under this Act or the regulations.
27
28
Part 3 Eligible offsets projects
Division 11 Freehold land rights land
Section 52
78 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 11--Freehold land rights land
1
52 Administrator to notify Crown lands Minister of declaration of
2
eligible offsets project
3
Scope
4
(1) This section applies if:
5
(a) the Administrator makes a declaration under section 27 in
6
relation to an offsets project; and
7
(b) the project area is, or any of the project areas are, freehold
8
land rights land in a particular State or Territory; and
9
(c) the project area is, or any of the project areas are, Crown
10
land; and
11
(d) the project area is not, or the project areas are not, Torrens
12
system land.
13
Notification
14
(2) As soon as practicable after making the declaration, the
15
Administrator must notify the Crown lands Minister of the State or
16
Territory, in writing, of the making of the declaration.
17
18
Eligible offsets projects Part 3
Types of projects Division 12
Section 53
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 79
Division 12--Types of projects
1
53 Emissions avoidance offsets projects
2
(1) For the purposes of this Act, a project is an emissions avoidance
3
offsets project if it is:
4
(a) an agricultural emissions avoidance project; or
5
(b) a landfill legacy emissions avoidance project; or
6
(c) an introduced animal emissions avoidance project; or
7
(d) a project of a kind specified in the regulations.
8
(2) Paragraph (1)(d) does not, by implication, affect the application of
9
subsection 13(3) of the Legislative Instruments Act 2003 to another
10
instrument under this Act.
11
(3) For the purposes of this Act, a project is not an emissions
12
avoidance offsets project if the project is a sequestration offsets
13
project.
14
54 Sequestration offsets projects
15
For the purposes of this Act, a project is a sequestration offsets
16
project if it is a project:
17
(a) to remove carbon dioxide from the atmosphere by
18
sequestering carbon in one or more of the following:
19
(i)
living
biomass;
20
(ii)
dead
organic
matter;
21
(iii)
soil;
or
22
(b) to remove carbon dioxide from the atmosphere by
23
sequestering carbon in, and to avoid emissions of
24
greenhouses gases from, one or more of the following:
25
(i)
living
biomass;
26
(ii)
dead
organic
matter;
27
(iii)
soil.
28
Part 3 Eligible offsets projects
Division 12 Types of projects
Section 55
80 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
55 Kyoto offsets projects and non-Kyoto offsets projects etc.
1
Kyoto offsets projects
2
(1) For the purposes of this Act, an offsets project is a Kyoto offsets
3
project if it is:
4
(a) an agricultural emissions avoidance project; or
5
(b) a landfill legacy emissions avoidance project; or
6
(c) an offsets project of a kind specified in the regulations.
7
(2) Subsection (1) has effect subject to subsection (3).
8
(3) For the purposes of this Act, an offsets project is not a Kyoto
9
offsets project unless:
10
(a) if the project is a sequestration offsets project:
11
(i) to the extent to which the project is a project to remove
12
carbon dioxide from the atmosphere--the removal can
13
be used to meet Australia's climate change targets under
14
the Kyoto Protocol or an international agreement (if
15
any) that is the successor (whether immediate or
16
otherwise) to the Kyoto Protocol; and
17
(ii) to the extent (if any) to which the project is a project to
18
avoid emissions of greenhouse gases--the avoidance
19
can be used to meet Australia's climate change targets
20
under the Kyoto Protocol or an international agreement
21
(if any) that is the successor (whether immediate or
22
otherwise) to the Kyoto Protocol; or
23
(b) if the project is an emissions avoidance offsets project to
24
avoid emissions of one or more greenhouse gases--the
25
avoidance can be used to meet Australia's climate change
26
targets under:
27
(i) the Kyoto Protocol; or
28
(ii) an international agreement (if any) that is the successor
29
(whether immediate or otherwise) to the Kyoto
30
Protocol.
31
(4) Paragraph (1)(c) does not, by implication, affect the application of
32
subsection 13(3) of the Legislative Instruments Act 2003 to another
33
instrument under this Act.
34
Eligible offsets projects Part 3
Types of projects Division 12
Section 56
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 81
Non-Kyoto offsets projects
1
(5) For the purposes of this Act, an offsets project is a non-Kyoto
2
offsets project if it is an offsets project other than a Kyoto offsets
3
project.
4
Dissection of project
5
(6) For the purposes of this Act, if, apart from this subsection, an
6
offsets project (the overall project):
7
(a) is partly a Kyoto offsets project; and
8
(b) is partly a non-Kyoto offsets project;
9
then:
10
(c) the overall project, to the extent to which it is a Kyoto offsets
11
project, is taken to be an offsets project in its own right; and
12
(d) the overall project, to the extent to which it is a non-Kyoto
13
offsets project, is taken to be an offsets project in its own
14
right.
15
It is immaterial whether the Kyoto offsets project and the
16
non-Kyoto offsets project have the same project area or areas.
17
56 Excluded offsets projects
18
(1) For the purposes of this Act, an offsets project is an excluded
19
offsets project if it is a project of a kind specified in the
20
regulations.
21
(2) In deciding whether to recommend to the Governor-General that
22
regulations should be made for the purposes of subsection (1)
23
specifying a particular kind of project, the Minister must have
24
regard to whether there is a significant risk that that kind of project
25
will have a significant adverse impact on one or more of the
26
following:
27
(a) the availability of water;
28
(b) the conservation of biodiversity;
29
(c)
employment;
30
(d) the local community;
31
in, or in the vicinity of, the project area, or any of the project areas,
32
for that kind of project.
33
Part 3 Eligible offsets projects
Division 12 Types of projects
Section 56
82 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(3) Subsection (1) of this section does not, by implication, limit the
1
application of subsection 13(3) of the Legislative Instruments Act
2
2003 to another instrument under this Act.
3
4
Eligible offsets projects Part 3
Restructure of eligible offsets projects Division 13
Section 57
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 83
Division 13--Restructure of eligible offsets projects
1
57 Restructure of eligible offsets projects
2
(1) For the purposes of this section, if:
3
(a) as the result of the variation or revocation of a section 27
4
declaration, an area of land (the relevant area) ceases to be,
5
or ceases to be part of, the project area, or any of the project
6
areas, for an eligible offsets project that:
7
(i) is a sequestration offsets project; and
8
(ii) is not a native forest protection project; and
9
(b) as a result of the making or variation of another section 27
10
declaration, the relevant area becomes, or becomes part of,
11
the project area, or any of the project areas, for another
12
eligible offsets project that:
13
(i) is a sequestration offsets project; and
14
(ii) is not a native forest protection project;
15
then:
16
(c) the project mentioned in paragraph (a) is the transferor
17
offsets project; and
18
(d) the project mentioned in paragraph (b) is the transferee
19
offsets project.
20
Regulations
21
(2) The regulations may make provision for or in relation to the
22
adjustment of any or all of the following:
23
(a) the calculation of a unit entitlement in relation to the
24
transferee offsets project using the formula in subsection
25
16(2);
26
(b) the calculation of a unit entitlement in relation to the
27
transferor offsets project using the formula in subsection
28
16(2);
29
(c) the calculation of the net total number of Australian carbon
30
credit units issued in relation to the transferee offsets project
31
in accordance with Part 2;
32
Part 3 Eligible offsets projects
Division 13 Restructure of eligible offsets projects
Section 57
84 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(d) the calculation of the net total number of Australian carbon
1
credit units issued in relation to the transferor offsets project
2
in accordance with Part 2;
3
(e) the duration of a crediting period for the transferee offsets
4
project;
5
(f) the duration of a reporting period for the transferee offsets
6
project.
7
Determinations
8
(3) Regulations made for the purposes of subsection (2) may empower
9
the Administrator to determine that, whenever it is necessary to
10
calculate a unit entitlement in relation to the transferor offsets
11
project using the formula in subsection 16(2), that subsection has
12
effect, in relation to the transferor offsets project, as if the net
13
abatement number were decreased by the number specified in the
14
determination.
15
(4) Regulations made for the purposes of subsection (2) may empower
16
the Administrator to determine that, whenever it is necessary to
17
calculate a unit entitlement in relation to the transferee offsets
18
project using the formula in subsection 16(2), that subsection has
19
effect, in relation to the transferee offsets project, as if the net
20
abatement number were increased by the number specified in the
21
determination.
22
(5) Regulations made for the purposes of subsection (2) may empower
23
the Administrator to determine that, whenever it is necessary to
24
work out the net total number of Australian carbon credit units
25
issued in relation to the transferor offsets project, this Act has
26
effect, in relation to the transferor offsets project, as if the net total
27
number of Australian carbon credit units issued in relation to the
28
project in accordance with Part 2 were decreased by the number
29
specified in the determination.
30
(6) Regulations made for the purposes of subsection (2) may empower
31
the Administrator to determine that, whenever it is necessary to
32
work out the net total number of Australian carbon credit units
33
issued in relation to the transferee offsets project, this Act has
34
effect, in relation to the transferee offsets project, as if the net total
35
number of Australian carbon credit units issued in relation to the
36
Eligible offsets projects Part 3
Restructure of eligible offsets projects Division 13
Section 58
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 85
project in accordance with Part 2 were increased by the number
1
specified in the determination.
2
(7) Subsections (3) to (6) do not limit subsection (2).
3
Determination is not a legislative instrument
4
(8) A determination made under regulations made for the purposes
5
subsection (2) is not a legislative instrument.
6
58 Restructure of an eligible offsets project that is subject to the
7
voluntary automatic unit cancellation regime
8
Scope
9
(1) This section applies if, as the result of the variation or revocation
10
of a section 27 declaration, an area of land (the relevant area)
11
ceases to be, or ceases to be part of, the project area, or any of the
12
project areas, for an eligible offsets project that is or was subject to
13
the voluntary automatic unit cancellation regime.
14
Note:
For when an eligible offsets project is subject to the voluntary
15
automatic unit cancellation regime, see paragraph 27(3)(e).
16
Restriction
17
(2) The Administrator must not make or vary another section 27
18
declaration if doing so would result in the relevant area becoming,
19
or becoming part of, the project area, or any of the project areas,
20
for another eligible offsets project that is not subject to the
21
voluntary automatic unit cancellation regime.
22
23
Part 4 Recognised offsets entities
Section 59
86 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 4--Recognised offsets entities
1
2
59 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator may recognise a person as an offsets entity.
5
60 Application for recognition as an offsets entity
6
(1) A person may apply to the Administrator for recognition as an
7
offsets entity.
8
(2) A person is not entitled to make an application before the 28th day
9
after the commencement of this section.
10
61 Form of application
11
(1) An application must:
12
(a) be in writing; and
13
(b) be in a form approved, in writing, by the Administrator; and
14
(c) be accompanied by such information as is specified in the
15
regulations; and
16
(d) be accompanied by such documents (if any) as are specified
17
in the regulations; and
18
(e) be accompanied by the fee (if any) specified in the
19
regulations.
20
(2) The approved form of application may provide for verification by
21
statutory declaration of statements in applications.
22
(3) A fee specified under paragraph (1)(e) must not be such as to
23
amount to taxation.
24
62 Further information
25
(1) The Administrator may, by written notice given to an applicant,
26
require the applicant to give the Administrator, within the period
27
Recognised offsets entities Part 4
Section 63
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 87
specified in the notice, further information in connection with the
1
application.
2
(2) If the applicant breaches the requirement, the Administrator may,
3
by written notice given to the applicant:
4
(a) refuse to consider the application; or
5
(b) refuse to take any action, or any further action, in relation to
6
the application.
7
63 Withdrawal of application
8
(1) An applicant may withdraw the application at any time before the
9
Administrator makes a decision on the application.
10
(2) This Act does not prevent the applicant from making a fresh
11
application.
12
(3)
If:
13
(a) the applicant withdraws the application; and
14
(b) the applicant has paid a fee in relation to the application;
15
the Administrator must, on behalf of the Commonwealth, refund
16
the application fee.
17
64 Recognition as an offsets entity
18
Scope
19
(1) This section applies if an application under section 60 has been
20
made for recognition as an offsets entity.
21
Recognition
22
(2) After considering the application, the Administrator may, by
23
written notice given to the applicant, recognise the applicant as an
24
offsets entity.
25
Criteria for recognition
26
(3) The Administrator must not recognise the applicant as an offsets
27
entity unless:
28
Part 4 Recognised offsets entities
Section 64
88 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the Administrator is satisfied that the applicant is a fit and
1
proper person, having regard to the following:
2
(i) whether the applicant has been convicted of an offence
3
against a law of the Commonwealth, a State or a
4
Territory, where the offence relates to dishonest
5
conduct;
6
(ii) whether the applicant has been convicted of an offence
7
against a law of the Commonwealth, a State or a
8
Territory, where the offence relates to the conduct of a
9
business;
10
(iii) whether the applicant has been convicted of an offence
11
against section 136.1, 137.1 or 137.2 of the Criminal
12
Code;
13
(iv) whether an order has been made against the applicant
14
under section 76 of the Competition and Consumer Act
15
2010;
16
(v) whether an order has been made against the applicant
17
under section 224 of Schedule 2 to the Competition and
18
Consumer Act 2010, as that section applies as a law of
19
the Commonwealth, a State or a Territory;
20
(vi) whether the applicant has breached this Act or the
21
associated provisions;
22
(vii) whether the applicant has breached the Australian
23
National Registry of Emissions Units Act 2011 or
24
regulations under that Act;
25
(viii) whether the applicant has breached the National
26
Greenhouse and Energy Reporting Act 2007 or
27
regulations under that Act;
28
(ix) if the applicant is a body corporate--whether an
29
executive officer of the body corporate has been
30
convicted of an offence against a law of the
31
Commonwealth, a State or a Territory, where the
32
offence relates to dishonest conduct;
33
(x) if the applicant is a body corporate--whether an
34
executive officer of the body corporate has been
35
convicted of an offence against a law of the
36
Commonwealth, a State or a Territory, where the
37
offence relates to the conduct of a business;
38
Recognised offsets entities Part 4
Section 64
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 89
(xi) if the applicant is a body corporate--whether an
1
executive officer of the body corporate has been
2
convicted of an offence against section 136.1, 137.1 or
3
137.2 of the Criminal Code;
4
(xii) if the applicant is a body corporate--whether an order
5
has been made against an executive officer of the body
6
corporate under section 76 of the Competition and
7
Consumer Act 2010;
8
(xiii) if the applicant is a body corporate--whether an order
9
has been made against an executive officer of the body
10
corporate under section 224 of Schedule 2 to the
11
Competition and Consumer Act 2010, as that section
12
applies as a law of the Commonwealth, a State or a
13
Territory;
14
(xiv) if the applicant is a body corporate--whether an
15
executive officer of the body corporate has breached
16
this Act or the associated provisions;
17
(xv) if the applicant is a body corporate--whether an
18
executive officer of the body corporate has breached the
19
Australian National Registry of Emissions Units Act
20
2011 or regulations under that Act;
21
(xvi) if the applicant is a body corporate--whether an
22
executive officer of the body corporate has breached the
23
National Greenhouse and Energy Reporting Act 2007 or
24
regulations under that Act;
25
(xvii) such other matters (if any) as the Administrator
26
considers relevant; and
27
(b) if the applicant is an individual--the Administrator is
28
satisfied that the applicant is not an insolvent under
29
administration; and
30
(c) if the applicant is a body corporate--the Administrator is
31
satisfied that the applicant is not an externally-administered
32
body corporate; and
33
(d) if the regulations specify one or more other eligibility
34
requirements--the Administrator is satisfied that those
35
requirements are met.
36
(4) Subparagraphs (3)(a)(i) to (xvi) do not limit
37
subparagraph (3)(a)(xvii).
38
Part 4 Recognised offsets entities
Section 65
90 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Timing
1
(5) The Administrator must take all reasonable steps to ensure that a
2
decision is made on the application:
3
(a) if the Administrator requires the applicant to give further
4
information under subsection 62(1) in relation to the
5
application--within 90 days after the applicant gave the
6
Administrator the information; or
7
(b) otherwise--within 90 days after the application was made.
8
Refusal
9
(6) If the Administrator decides to refuse to recognise the applicant as
10
an offsets entity, the Administrator must give written notice of the
11
decision to the applicant.
12
Spent convictions
13
(7) Nothing in this section affects the operation of Part VIIC of the
14
Crimes Act 1914 (which includes provisions that, in certain
15
circumstances, relieve persons from the requirement to disclose
16
spent convictions and require persons aware of such convictions to
17
disregard them).
18
65 Cancellation of recognition
19
Cancellation
20
(1) The Administrator may cancel the recognition of a person as an
21
offsets entity if:
22
(a) the Administrator is satisfied that the person is not a fit and
23
proper person, having regard to the following:
24
(i) whether the person has been convicted of an offence
25
against a law of the Commonwealth, a State or a
26
Territory, where the offence relates to dishonest
27
conduct;
28
(ii) whether the person has been convicted of an offence
29
against a law of the Commonwealth, a State or a
30
Territory, where the offence relates to the conduct of a
31
business;
32
Recognised offsets entities Part 4
Section 65
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 91
(iii) whether the person has been convicted of an offence
1
against section 136.1, 137.1 or 137.2 of the Criminal
2
Code;
3
(iv) whether an order has been made against the person
4
under section 76 of the Competition and Consumer Act
5
2010;
6
(v) whether an order has been made against the person
7
under section 224 of Schedule 2 to the Competition and
8
Consumer Act 2010, as that section applies as a law of
9
the Commonwealth, a State or a Territory;
10
(vi) whether the person has breached this Act or the
11
associated provisions;
12
(vii) whether the person has breached the Australian
13
National Registry of Emissions Units Act 2011 or
14
regulations under that Act;
15
(viii) whether the person has breached the National
16
Greenhouse and Energy Reporting Act 2007 or
17
regulations under that Act;
18
(ix) if the person is a body corporate--whether an executive
19
officer of the body corporate has been convicted of an
20
offence against a law of the Commonwealth, a State or a
21
Territory, where the offence relates to dishonest
22
conduct;
23
(x) if the person is a body corporate--whether an executive
24
officer of the body corporate has been convicted of an
25
offence against a law of the Commonwealth, a State or a
26
Territory, where the offence relates to the conduct of a
27
business;
28
(xi) if the person is a body corporate--whether an executive
29
officer of the body corporate has been convicted of an
30
offence against section 136.1, 137.1 or 137.2 of the
31
Criminal Code;
32
(xii) if the person is a body corporate--whether an order has
33
been made against an executive officer of the body
34
corporate under section 76 of the Competition and
35
Consumer Act 2010;
36
(xiii) if the person is a body corporate--whether an order has
37
been made against an executive officer of the body
38
Part 4 Recognised offsets entities
Section 65
92 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
corporate under section 224 of Schedule 2 to the
1
Competition and Consumer Act 2010, as that section
2
applies as a law of the Commonwealth, a State or a
3
Territory;
4
(xiv) if the person is a body corporate--whether an executive
5
officer of the body corporate has breached this Act or
6
the associated provisions;
7
(xv) if the person is a body corporate--whether an executive
8
officer of the body corporate has breached the
9
Australian National Registry of Emissions Units Act
10
2011 or regulations under that Act;
11
(xvi) if the person is a body corporate--whether an executive
12
officer of the body corporate has breached the National
13
Greenhouse and Energy Reporting Act 2007 or
14
regulations under that Act;
15
(xvii) such other matters (if any) as the Administrator
16
considers relevant; or
17
(b) if the person is an individual--the Administrator is satisfied
18
that the person is an insolvent under administration; or
19
(c) if the person is a body corporate--the Administrator is
20
satisfied that the person is an externally-administered body
21
corporate; or
22
(d) if the regulations specify one or more other grounds for
23
cancellation--the Administrator is satisfied that at least one
24
of those grounds is applicable to the person.
25
(2) Subparagraphs (1)(a)(i) to (xvi) do not limit
26
subparagraph (1)(a)(xvii).
27
Spent convictions
28
(3) Nothing in this section affects the operation of Part VIIC of the
29
Crimes Act 1914 (which includes provisions that, in certain
30
circumstances, relieve persons from the requirement to disclose
31
spent convictions and require persons aware of such convictions to
32
disregard them).
33
Recognised offsets entities Part 4
Section 66
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 93
66 Surrender of recognition
1
Scope
2
(1) This section applies if a person is recognised as an offsets entity.
3
Surrender
4
(2) The person may, by written notice given to the Administrator,
5
surrender the person's recognition.
6
(3) The surrender takes effect on the day the notice is received by the
7
Administrator or, if a later day is specified in the notice, on that
8
later day.
9
67 Recognition is not transferable
10
If a person is recognised as an offsets entity, the person's
11
recognition is not transferable.
12
13
Part 5 Crediting periods
Division 1 Introduction
Section 68
94 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 5--Crediting periods
1
Division 1--Introduction
2
68 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If an eligible offsets project is a native forest protection
5
project, the first crediting period for the project is:
6
(a)
the period of 20 years; or
7
(b)
if another period is specified in the regulations--
8
that other period;
9
that began when the declaration of the project under
10
section 27 took effect.
11
·
If an eligible offsets project is not a native forest protection
12
project, the first crediting period for the project is:
13
(a)
the period of 7 years; or
14
(b)
if another period is specified in the regulations--
15
that other period;
16
that began when the declaration of the project under
17
section 27 took effect.
18
·
The Administrator may, on application by a project proponent,
19
determine a subsequent crediting period for an eligible offsets
20
project that is not a native forest protection project.
21
Note:
Under section 15, the Administrator may only issue a certificate of
22
entitlement to Australian carbon credit units in relation to a reporting
23
period for an eligible offsets project if the reporting period is included
24
in a crediting period for the project.
25
26
Crediting periods Part 5
First crediting period Division 2
Section 69
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 95
Division 2--First crediting period
1
69 First crediting period
2
(1) For the purposes of this Act, the first crediting period for an
3
eligible offsets project is:
4
(a) if the project is a native forest protection project:
5
(i) the period of 20 years; or
6
(ii) if another period is specified in the regulations--that
7
other period;
8
that began when the declaration of the project under
9
section 27 took effect; or
10
(b) if the project is not a native forest protection project:
11
(i) the period of 7 years; or
12
(ii) if another period is specified in the regulations--that
13
other period;
14
that began when the declaration of the project under
15
section 27 took effect.
16
(2) Regulations made for the purposes of subparagraph (1)(a)(ii) or
17
(b)(ii) may specify different periods for different kinds of projects.
18
This does not limit subsection 33(3A) of the Acts Interpretation
19
Act 1901.
20
21
Part 5 Crediting periods
Division 3 Subsequent crediting period
Section 70
96 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 3--Subsequent crediting period
1
70 Application for subsequent crediting period
2
Scope
3
(1) This section applies to an eligible offsets project if the project is
4
not a native forest protection project.
5
Application period
6
(2) For the purposes of this section, an application period for an
7
eligible offsets project is the period:
8
(a) beginning 6 months before the end of a crediting period (the
9
relevant crediting period) for the project; and
10
(b) ending 6 months after the end of the relevant crediting
11
period.
12
Application
13
(3) During an application period for the project, the project proponent
14
for the project may apply to the Administrator for the
15
determination of a specified period as a subsequent crediting
16
period for the project.
17
(4) The specified period must be:
18
(a) the period of 7 years; or
19
(b) if another period is specified in the regulations--that other
20
period;
21
beginning immediately after the end of the relevant crediting
22
period.
23
(5) Regulations made for the purposes of paragraph (4)(b) may specify
24
different periods for different kinds of projects. This does not limit
25
subsection 33(3A) of the Acts Interpretation Act 1901.
26
(6) To avoid doubt, the relevant crediting period may be a period that
27
is a crediting period because of a previous determination under
28
subsection 74(2).
29
Crediting periods Part 5
Subsequent crediting period Division 3
Section 71
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 97
71 Form of application
1
(1) An application must:
2
(a) be in writing; and
3
(b) be in a form approved, in writing, by the Administrator; and
4
(c) be accompanied by such information as is specified in the
5
regulations; and
6
(d) be accompanied by such other documents (if any) as are
7
specified in the regulations; and
8
(e) be accompanied by the fee (if any) specified in the
9
regulations.
10
(2) The approved form of application may provide for verification by
11
statutory declaration of statements in applications.
12
(3) A fee specified under paragraph (1)(e) must not be such as to
13
amount to taxation.
14
72 Further information
15
(1) The Administrator may, by written notice given to an applicant,
16
require the applicant to give the Administrator, within the period
17
specified in the notice, further information in connection with the
18
application.
19
(2) If the applicant breaches the requirement, the Administrator may,
20
by written notice given to the applicant:
21
(a) refuse to consider the application; or
22
(b) refuse to take any action, or any further action, in relation to
23
the application.
24
73 Withdrawal of application
25
(1) An applicant may withdraw the application at any time before the
26
Administrator makes a decision on the application.
27
(2) This Act does not prevent the applicant from making a fresh
28
application.
29
(3)
If:
30
Part 5 Crediting periods
Division 3 Subsequent crediting period
Section 74
98 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the applicant withdraws the application; and
1
(b) the applicant has paid a fee in relation to the application;
2
the Administrator must, on behalf of the Commonwealth, refund
3
the application fee.
4
74 Determination of subsequent crediting period
5
Scope
6
(1) This section applies if an application under section 70 has been
7
made for the determination of a specified period as a subsequent
8
crediting period for an eligible offsets project.
9
Determination
10
(2) After considering the application, the Administrator may, by
11
writing, determine that the period is a subsequent crediting period
12
for the project for the purposes of this Act.
13
(3) The Administrator must not make a determination under
14
subsection (2) unless the Administrator is satisfied that:
15
(a) the applicant is the project proponent for the project; and
16
(b) the project is covered by a methodology determination; and
17
(c) the project meets such requirements as are set out in the
18
applicable methodology determination in accordance with
19
paragraph 106(1)(b); and
20
(d) the project passes the additionality test.
21
Notification of determination
22
(4) As soon as practicable after making a determination under
23
subsection (2), the Administrator must give a copy of the
24
determination to the applicant.
25
Refusal
26
(5) If the Administrator decides to refuse to determine that the period
27
is a subsequent crediting period for the project, the Administrator
28
must give written notice of the decision to the applicant.
29
Crediting periods Part 5
Subsequent crediting period Division 3
Section 74
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 99
Determination is not a legislative instrument
1
(6) A determination made under subsection (2) is not a legislative
2
instrument.
3
4
Part 6 Reporting and notification requirements
Division 1 Introduction
Section 75
100 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 6--Reporting and notification requirements
1
Division 1--Introduction
2
75 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The project proponent for an eligible offsets project must give
5
the Administrator an offsets report for a period that is
6
expressed to be a reporting period for the project.
7
·
The first reporting period must begin when the declaration of
8
the project under section 27 took effect.
9
·
Each subsequent reporting period must begin immediately
10
after the end of the previous reporting period.
11
·
A reporting period must not be:
12
(a)
shorter than 12 months; or
13
(b)
longer than 5 years.
14
·
The Administrator must be notified of certain events relating
15
to eligible offsets projects.
16
17
Reporting and notification requirements Part 6
Reporting requirements Division 2
Section 76
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 101
Division 2--Reporting requirements
1
76 Offsets reports
2
Report for first reporting period
3
(1) The project proponent for an eligible offsets project must, in
4
accordance with this section, give the Administrator a written
5
report about the project for a period that:
6
(a) is expressed to be a reporting period for the project; and
7
(b) begins when the declaration of the project under section 27
8
took effect; and
9
(c) is not shorter than 12 months; and
10
(d) is not longer than 5 years.
11
Note:
Under section 15, the Administrator may only issue a certificate of
12
entitlement to Australian carbon credit units in relation to a reporting
13
period for an eligible offsets project if the reporting period is included
14
in a crediting period for the project.
15
Reports for subsequent reporting periods
16
(2) The project proponent for an eligible offsets project must, in
17
accordance with this section, give the Administrator a written
18
report about the project for a period that:
19
(a) is expressed to be a reporting period for the project; and
20
(b) begins immediately after the end of the previous reporting
21
period for the project; and
22
(c) is not shorter than 12 months; and
23
(d) is not longer than 5 years.
24
Note 1:
Under section 15, the Administrator may only issue a certificate of
25
entitlement to Australian carbon credit units in relation to a reporting
26
period for an eligible offsets project if the reporting period is included
27
in a crediting period for the project.
28
Note 2:
See also section 77.
29
Offsets report
30
(3) A report under this section is to be known as an offsets report.
31
Part 6 Reporting and notification requirements
Division 2 Reporting requirements
Section 76
102 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Offsets report requirements
1
(4) An offsets report about a project for a reporting period must:
2
(a) be given in the manner and form prescribed by the
3
regulations; and
4
(b) set out the information specified in the regulations; and
5
(c) be accompanied by a prescribed audit report prepared by a
6
registered greenhouse and energy auditor who has been
7
appointed as an audit team leader for the purpose; and
8
(d) be accompanied by such other documents (if any) as are
9
specified in the regulations; and
10
(e) be given to the Administrator within 3 months after the end
11
of the reporting period.
12
(5) The regulations may provide that a project of a kind specified in
13
the regulations is exempt from paragraph (4)(c).
14
(6) Subsection (5) of this section does not, by implication, limit the
15
application of subsection 13(3) of the Legislative Instruments Act
16
2003 to another instrument under this Act.
17
(7) If, under the applicable methodology determination, the project
18
proponent for the project is subject to a requirement to include
19
specified information relating to the project in the offsets report,
20
the offsets report must include that information.
21
(8) If the following conditions are satisfied in relation to 2 or more
22
eligible offsets projects:
23
(a) the relevant section 27 declarations were made as a result of
24
applications covered by a particular subsection 26(2)
25
determination;
26
(b) a particular person is the project proponent for the projects;
27
offsets reports relating to those projects may be set out in the same
28
document.
29
(9) Information specified in regulations made for the purposes of
30
paragraph (4)(b) may relate to a matter arising before, during or
31
after the reporting period.
32
Reporting and notification requirements Part 6
Reporting requirements Division 2
Section 77
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 103
(10) A document specified in regulations made for the purposes of
1
paragraph (4)(d) may relate to a matter arising before, during or
2
after the reporting period.
3
Ancillary contraventions
4
(11) A person must not:
5
(a) aid, abet, counsel or procure a contravention of
6
subsection (1); or
7
(b) induce, whether by threats or promises or otherwise, a
8
contravention of subsection (1); or
9
(c) be in any way, directly or indirectly, knowingly concerned in,
10
or party to, a contravention of subsection (1); or
11
(d) conspire with others to effect a contravention of
12
subsection (1).
13
Civil penalty provisions
14
(12) Subsections (1), (2) and (11) are civil penalty provisions.
15
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
16
provisions.
17
77 Declaration that offsets report requirement does not apply
18
Regulations
19
(1) The regulations may make provision for and in relation to
20
empowering the Administrator to declare that subsection 76(2)
21
does not apply to a particular eligible offsets project.
22
(2) Regulations made for the purposes of subsection (1) must not
23
empower the Administrator to make a declaration unless:
24
(a) the project is a sequestration offsets project; and
25
(b) the project proponent for the project applies to the
26
Administrator for the declaration; and
27
(c) the Administrator is satisfied that the project has reached its
28
maximum carbon sequestration capacity.
29
(3) Regulations made for the purposes of subsection (1) may make
30
provision for or in relation to any or all of the following matters:
31
Part 6 Reporting and notification requirements
Division 2 Reporting requirements
Section 77
104 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) applications for variations under those regulations;
1
(b) the approval by the Administrator of a form for such an
2
application;
3
(c) information that must accompany such an application;
4
(d) documents that must accompany such an application;
5
(e) verification by statutory declaration of statements in such an
6
application;
7
(f) the fee (if any) that must accompany such an application;
8
(g) the withdrawal of such an application;
9
(h) empowering the Administrator:
10
(i) to require an applicant to give the Administrator further
11
information in connection with such an application; and
12
(ii) if the applicant breaches the requirement--to refuse to
13
consider the application, or to refuse to take any action,
14
or any further action, in relation to the application.
15
(4) Subsection (3) does not limit subsection (1).
16
(5) A fee mentioned in paragraph (3)(f) must not be such as to amount
17
to taxation.
18
When a declaration takes effect
19
(6) A declaration under regulations made for the purposes of
20
subsection (1) takes effect:
21
(a) when it is made; or
22
(b) if a later day is specified in the declaration--on that later day.
23
24
Reporting and notification requirements Part 6
Notification requirements Division 3
Section 78
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 105
Division 3--Notification requirements
1
Subdivision A--Project proponents
2
78 Notification requirement--ceasing to be the project proponent
3
for an eligible offsets project otherwise than because of
4
death
5
Scope
6
(1) This section applies to a person if the person ceases to be the
7
project proponent for an eligible offsets project otherwise than
8
because of the death of the person.
9
Notification
10
(2) The person must, within 90 days after the cessation occurs, notify
11
the Administrator, in writing, of the cessation.
12
Ancillary contraventions
13
(3) A person must not:
14
(a) aid, abet, counsel or procure a contravention of
15
subsection (2); or
16
(b) induce, whether by threats or promises or otherwise, a
17
contravention of subsection (2); or
18
(c) be in any way, directly or indirectly, knowingly concerned in,
19
or party to, a contravention of subsection (2); or
20
(d) conspire with others to effect a contravention of
21
subsection (2).
22
Civil penalty provisions
23
(4) Subsections (2) and (3) are civil penalty provisions.
24
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
25
provisions.
26
Part 6 Reporting and notification requirements
Division 3 Notification requirements
Section 79
106 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
79 Notification requirement--death of the project proponent for an
1
eligible offsets project
2
Scope
3
(1) This section applies if a person who is the project proponent for an
4
eligible offsets project dies.
5
Notification
6
(2) The person's legal personal representative must, within 90 days
7
after the death, notify the Administrator, in writing, of the death.
8
Ancillary contraventions
9
(3) A person must not:
10
(a) aid, abet, counsel or procure a contravention of
11
subsection (2); or
12
(b) induce, whether by threats or promises or otherwise, a
13
contravention of subsection (2); or
14
(c) be in any way, directly or indirectly, knowingly concerned in,
15
or party to, a contravention of subsection (2); or
16
(d) conspire with others to effect a contravention of
17
subsection (2).
18
Civil penalty provisions
19
(4) Subsections (2) and (3) are civil penalty provisions.
20
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
21
provisions.
22
80 Notification requirement--methodology determinations
23
Scope
24
(1) This section applies if:
25
(a) there is an eligible offsets project; and
26
(b) under the applicable methodology determination, the project
27
proponent for the project is subject to a requirement to notify
28
Reporting and notification requirements Part 6
Notification requirements Division 3
Section 81
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 107
the Administrator of one or more matters relating to the
1
project.
2
Notification
3
(2) The project proponent must comply with the requirement.
4
Ancillary contraventions
5
(3) A person must not:
6
(a) aid, abet, counsel or procure a contravention of
7
subsection (2); or
8
(b) induce, whether by threats or promises or otherwise, a
9
contravention of subsection (2); or
10
(c) be in any way, directly or indirectly, knowingly concerned in,
11
or party to, a contravention of subsection (2); or
12
(d) conspire with others to effect a contravention of
13
subsection (2).
14
Civil penalty provisions
15
(4) Subsections (2) and (3) are civil penalty provisions.
16
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
17
provisions.
18
81 Notification requirement--natural disturbances
19
Scope
20
(1) This section applies to an eligible offsets project if the project is:
21
(a) a sequestration offsets project to remove carbon dioxide from
22
the atmosphere; or
23
(b) a sequestration offsets project to remove carbon dioxide from
24
the atmosphere and to avoid emissions of greenhouse gases.
25
Notification
26
(2) The project proponent for the project must:
27
(a) notify the Administrator, in writing, of:
28
Part 6 Reporting and notification requirements
Division 3 Notification requirements
Section 82
108 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) a natural disturbance that causes a reversal of the
1
removal; or
2
(ii) a natural disturbance that is likely to cause a reversal of
3
the removal; and
4
(b) do so within 60 days after the project proponent becomes
5
aware that the natural disturbance has happened.
6
(3) Subsection (2) does not apply to a reversal unless the reversal is,
7
under the regulations, taken to be a significant reversal.
8
Ancillary contraventions
9
(4) A person must not:
10
(a) aid, abet, counsel or procure a contravention of
11
subsection (2); or
12
(b) induce, whether by threats or promises or otherwise, a
13
contravention of subsection (2); or
14
(c) be in any way, directly or indirectly, knowingly concerned in,
15
or party to, a contravention of subsection (2); or
16
(d) conspire with others to effect a contravention of
17
subsection (2).
18
Civil penalty provisions
19
(5) Subsections (2) and (4) are civil penalty provisions.
20
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
21
provisions.
22
82 Notification requirement--reversal of sequestration due to
23
conduct of another person
24
Scope
25
(1) This section applies to an eligible offsets project if the project is:
26
(a) a sequestration offsets project to remove carbon dioxide from
27
the atmosphere; or
28
(b) a sequestration offsets project to remove carbon dioxide from
29
the atmosphere and to avoid emissions of greenhouse gases.
30
Reporting and notification requirements Part 6
Notification requirements Division 3
Section 82
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 109
Notification
1
(2) The project proponent for the project must:
2
(a) notify the Administrator, in writing, of conduct engaged in by
3
a person (other than the project proponent), where the
4
conduct:
5
(i) is not within the reasonable control of the project
6
proponent; and
7
(ii) causes a reversal of the removal; and
8
(b) do so within 60 days after the project proponent becomes
9
aware that the conduct has been engaged in.
10
(3) The project proponent for the project must:
11
(a) notify the Administrator, in writing, of conduct engaged in by
12
a person (other than the project proponent), where the
13
conduct:
14
(i) is not within the reasonable control of the project
15
proponent; and
16
(ii) is likely to cause a reversal of the removal; and
17
(b) do so within 60 days after the project proponent becomes
18
aware that the conduct has been engaged in.
19
(4) Subsections (2) and (3) do not apply to a reversal unless the
20
reversal is, under the regulations, taken to be a significant reversal.
21
Ancillary contraventions
22
(5) A person must not:
23
(a) aid, abet, counsel or procure a contravention of subsection (2)
24
or (3); or
25
(b) induce, whether by threats or promises or otherwise, a
26
contravention of subsection (2) or (3); or
27
(c) be in any way, directly or indirectly, knowingly concerned in,
28
or party to, a contravention of subsection (2) or (3); or
29
(d) conspire with others to effect a contravention of
30
subsection (2) or (3).
31
Part 6 Reporting and notification requirements
Division 3 Notification requirements
Section 83
110 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Civil penalty provisions
1
(5) Subsections (2), (3) and (5) are civil penalty provisions.
2
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
3
provisions.
4
83 Notification requirement--project becomes inconsistent with a
5
regional natural resource management plan
6
Scope
7
(1) This section applies if:
8
(a) there is an eligible offsets project; and
9
(b) the project area, or any of the project areas, for the project is
10
covered by a regional natural resource management plan; and
11
(c) as a result of a change to the project, the project becomes
12
inconsistent with the plan.
13
Notification
14
(2) The project proponent for the project must, within 90 days after the
15
change, notify the Administrator, in writing, of:
16
(a) the change; and
17
(b)
the
inconsistency.
18
(3) A person must not:
19
(a) aid, abet, counsel or procure a contravention of
20
subsection (2); or
21
(b) induce, whether by threats or promises or otherwise, a
22
contravention of subsection (2); or
23
(c) be in any way, directly or indirectly, knowingly concerned in,
24
or party to, a contravention of subsection (2); or
25
(d) conspire with others to effect a contravention of
26
subsection (2).
27
Civil penalty provisions
28
(4) Subsections (2) and (3) are civil penalty provisions.
29
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
30
provisions.
31
Reporting and notification requirements Part 6
Notification requirements Division 3
Section 84
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 111
Subdivision B--Recognised offsets entities
1
84 Notification requirement--recognised offsets entities
2
Scope
3
(1) This section applies to a person if:
4
(a) the person is a recognised offsets entity; and
5
(b) any of the following events happen:
6
(i) the person is convicted of an offence against a law of
7
the Commonwealth, a State or a Territory, where the
8
offence relates to dishonest conduct;
9
(ii) the person is convicted of an offence against a law of
10
the Commonwealth, a State or a Territory, where the
11
offence relates to the conduct of a business;
12
(iii) the person is convicted of an offence against
13
section 136.1, 137.1 or 137.2 of the Criminal Code;
14
(iv) an order is made against the person under section 76 of
15
the Competition and Consumer Act 2010;
16
(v) an order is made against the person under section 224 of
17
Schedule 2 to the Competition and Consumer Act 2010,
18
as that section applies as a law of the Commonwealth, a
19
State or a Territory;
20
(vi) if the person is a body corporate--an executive officer
21
of the body corporate is convicted of an offence against
22
a law of the Commonwealth, a State or a Territory,
23
where the offence relates to dishonest conduct;
24
(vii) if the person is a body corporate--an executive officer
25
of the body corporate is convicted of an offence against
26
a law of the Commonwealth, a State or a Territory,
27
where the offence relates to the conduct of a business;
28
(viii) if the person is a body corporate--an executive officer
29
of the body corporate is convicted of an offence against
30
section 136.1, 137.1 or 137.2 of the Criminal Code;
31
(ix) if the person is a body corporate--an order is made
32
against an executive officer of the body corporate under
33
section 76 of the Competition and Consumer Act 2010;
34
Part 6 Reporting and notification requirements
Division 3 Notification requirements
Section 85
112 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(x) if the person is a body corporate--an order is made
1
against an executive officer of the body corporate under
2
section 224 of Schedule 2 to the Competition and
3
Consumer Act 2010, as that section applies as a law of
4
the Commonwealth, a State or a Territory;
5
(xi) the person becomes an insolvent under administration;
6
(xii) if the person is a body corporate--the person becomes
7
an externally-administered body corporate.
8
Notification
9
(2) The person must, within 90 days after the event, notify the
10
Administrator, in writing, of the event.
11
Ancillary contraventions
12
(3) A person must not:
13
(a) aid, abet, counsel or procure a contravention of
14
subsection (2); or
15
(b) induce, whether by threats or promises or otherwise, a
16
contravention of subsection (2); or
17
(c) be in any way, directly or indirectly, knowingly concerned in,
18
or party to, a contravention of subsection (2); or
19
(d) conspire with others to effect a contravention of
20
subsection (2).
21
Civil penalty provisions
22
(4) Subsections (2) and (3) are civil penalty provisions.
23
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
24
provisions.
25
Subdivision C--General
26
85 Regulations may impose notification requirements
27
Scope
28
(1) This section applies if a person is:
29
(a) the project proponent for an eligible offsets project; or
30
Reporting and notification requirements Part 6
Notification requirements Division 3
Section 85
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 113
(b) a recognised offsets entity.
1
Regulations
2
(2) The regulations may make provision requiring the person to notify
3
the Administrator of a matter.
4
(3) Regulations made for the purposes of subsection (2) may make
5
different provision with respect to different project proponents or
6
different recognised offsets entities. This does not limit subsection
7
33(3A) of the Acts Interpretation Act 1901.
8
(4) A matter specified in regulations made for the purposes of
9
subsection (2) must be relevant to the operation of this Act.
10
Requirement
11
(5) If a person is subject to a requirement under regulations made for
12
the purposes of subsection (2), the person must comply with that
13
requirement.
14
Ancillary contraventions
15
(6) A person must not:
16
(a) aid, abet, counsel or procure a contravention of
17
subsection (5); or
18
(b) induce, whether by threats or promises or otherwise, a
19
contravention of subsection (5); or
20
(c) be in any way, directly or indirectly, knowingly concerned in,
21
or party to, a contravention of subsection (5); or
22
(d) conspire with others to effect a contravention of
23
subsection (5).
24
Civil penalty provisions
25
(7) Subsections (5) and (6) are civil penalty provisions.
26
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
27
provisions.
28
29
Part 7 Requirements to relinquish Australian carbon credit units
Division 1 Introduction
Section 86
114 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 7--Requirements to relinquish Australian
1
carbon credit units
2
Division 1--Introduction
3
86 Simplified outline
4
The following is a simplified outline of this Part:
5
·
Australian carbon credit units may be required to be
6
relinquished if:
7
(a)
the issue of the units is attributable to the giving of
8
false or misleading information; or
9
(b)
the units were issued in relation to a sequestration
10
offsets project, and the declaration of the
11
sequestration offsets project as an eligible offsets
12
project has been varied or revoked; or
13
(c)
the units were issued in relation to a sequestration
14
offsets project, and there has been a complete or
15
partial reversal of sequestration.
16
87 Maximum potential relinquishment period
17
(1) For the purposes of this Act, the maximum potential
18
relinquishment period for an eligible offsets project is:
19
(a)
100
years;
or
20
(b) if, at the time when the declaration of the project as an
21
eligible offsets project was made, a greater number of years
22
was specified in the regulations--that greater number of
23
years.
24
(2)
However,
if:
25
(a) the regulations specify a number of years that is less than 100
26
years; and
27
Requirements to relinquish Australian carbon credit units Part 7
Introduction Division 1
Section 87
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 115
(b) those regulations are made after the time when the
1
declaration of a project as an eligible offsets project was
2
made;
3
then, despite subsection (1), that lesser number of years is the
4
maximum potential relinquishment period for the eligible offsets
5
project.
6
7
Part 7 Requirements to relinquish Australian carbon credit units
Division 2 General relinquishment requirements
Section 88
116 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--General relinquishment requirements
1
88 Requirement to relinquish--false or misleading information
2
Scope
3
(1) This section applies if:
4
(a) a number of Australian carbon credit units have been issued
5
to a person in relation to an eligible offsets project; and
6
(b) information was given by the person to the Administrator in
7
connection with the project; and
8
(c) the information was:
9
(i) contained in an application under this Act or the
10
regulations; or
11
(ii) given in connection with an application under this Act
12
or the regulations; or
13
(iii) contained in an offsets report; or
14
(iv) contained in a notification under Part 6; and
15
(d) the information was false or misleading in a material
16
particular; and
17
(e) the issue of any or all of the units was directly or indirectly
18
attributable to the false or misleading information.
19
Relinquishment
20
(2) If the units mentioned in paragraph (1)(e) are Kyoto Australian
21
carbon credit units, the Administrator may, by written notice given
22
to the person, require the person to relinquish a specified number
23
of Kyoto Australian carbon credit units.
24
Note 1:
See also section 177 (transfer of certain units instead of
25
relinquishment of Kyoto Australian carbon credit units).
26
Note 2:
See also section 178 (transfer of certain units instead of
27
relinquishment of non-Kyoto Australian carbon credit units).
28
(3) A number specified under subsection (2) must not exceed the
29
number of Kyoto Australian carbon credit units the issue of which
30
was directly or indirectly attributable to the false or misleading
31
information.
32
Requirements to relinquish Australian carbon credit units Part 7
General relinquishment requirements Division 2
Section 88
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 117
(4) If the units mentioned in paragraph (1)(e) are non-Kyoto
1
Australian carbon credit units, the Administrator may, by written
2
notice given to the person, require the person to relinquish a
3
specified number of non-Kyoto Australian carbon credit units.
4
(5) A number specified under subsection (4) must not exceed the
5
number of non-Kyoto Australian carbon credit units the issue of
6
which was directly or indirectly attributable to the false or
7
misleading information.
8
(6) The person must comply with the requirement within 90 days after
9
the notice was given.
10
Note:
An administrative penalty is payable under section 179 for
11
non-compliance with a relinquishment requirement.
12
13
Part 7 Requirements to relinquish Australian carbon credit units
Division 3 Relinquishment requirements for sequestration offsets projects
Section 89
118 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 3--Relinquishment requirements for
1
sequestration offsets projects
2
89 Requirement to relinquish--revocation of declaration of eligible
3
offsets project
4
Scope
5
(1) This section applies if:
6
(a) an eligible offsets project is a sequestration offsets project;
7
and
8
(b) a number of Australian carbon credit units have been issued
9
in relation to the project; and
10
(c) the declaration of the project as an eligible offsets project is
11
revoked under regulations made for the purposes of any of
12
the following provisions:
13
(i)
subsection
35(1);
14
(ii)
subsection
36(1);
15
(iii)
subsection
37(1);
16
(iv)
subsection
38(1);
17
(v) subsection 139(1); and
18
(d) if the declaration has never been varied so as to add one or
19
more project areas--the period that has passed since the first
20
occasion on which an Australian carbon credit unit was
21
issued in relation to the project in accordance with Part 2 is
22
shorter than the maximum potential relinquishment period for
23
the project; and
24
(e) if the declaration has been varied so as to add one or more
25
project areas--the period that has passed since the last
26
occasion on which the declaration was so varied is shorter
27
than the maximum potential relinquishment period for the
28
project.
29
Relinquishment
30
(2) The Administrator may, by written notice given to the project
31
proponent for the project, require the project proponent to
32
relinquish a specified number of:
33
Requirements to relinquish Australian carbon credit units Part 7
Relinquishment requirements for sequestration offsets projects Division 3
Section 90
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 119
(a) if the project is an eligible Kyoto project--Kyoto Australian
1
carbon credit units; or
2
(b) if the project is an eligible non-Kyoto project--non-Kyoto
3
Australian carbon credit units.
4
Note 1:
See also section 177 (transfer of certain units instead of
5
relinquishment of Kyoto Australian carbon credit units).
6
Note 2:
See also section 178 (transfer of certain units instead of
7
relinquishment of non-Kyoto Australian carbon credit units).
8
(3) The specified number must not exceed the net total number of
9
Australian carbon credit units issued in relation to the project in
10
accordance with Part 2.
11
(4) The project proponent must comply with the requirement within 90
12
days after the notice was given.
13
Note 1:
An administrative penalty is payable under section 179 for
14
non-compliance with a relinquishment requirement.
15
Note 2:
See also section 95 (transition of offsets projects).
16
90 Requirement to relinquish--reversal of sequestration other than
17
due to natural disturbance or conduct etc.
18
Scope
19
(1) This section applies if:
20
(a) an eligible offsets project is a sequestration offsets project to
21
remove carbon dioxide from the atmosphere; and
22
(b) a number of Australian carbon credit units have been issued
23
in relation to the project; and
24
(c) there has been a reversal of the removal; and
25
(d) the reversal is, under the regulations, taken to be a significant
26
reversal; and
27
(e) the reversal is not attributable to:
28
(i) natural disturbance; or
29
(ii) reasonable actions taken to reduce the risk of bushfire;
30
or
31
(iii) conduct engaged in by a person (other than the project
32
proponent for the project), where the conduct is not
33
Part 7 Requirements to relinquish Australian carbon credit units
Division 3 Relinquishment requirements for sequestration offsets projects
Section 90
120 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
within the reasonable control of the project proponent;
1
and
2
(f) if the relevant section 27 declaration has never been varied so
3
as to add one or more project areas--the period that has
4
passed since the first occasion on which an Australian carbon
5
credit unit was issued in relation to the project in accordance
6
with Part 2 is shorter than the maximum potential
7
relinquishment period for the project; and
8
(g) if the relevant section 27 declaration has been varied so as to
9
add one or more project areas--the period that has passed
10
since the last occasion on which the declaration was so varied
11
is shorter than the maximum potential relinquishment period
12
for the project.
13
Relinquishment
14
(2) The Administrator may, by written notice given to the project
15
proponent for the project, require the project proponent to
16
relinquish a specified number of:
17
(a) if the project is an eligible Kyoto project--Kyoto Australian
18
carbon credit units; or
19
(b) if the project is an eligible non-Kyoto project--non-Kyoto
20
Australian carbon credit units.
21
Note 1:
See also section 177 (transfer of certain units instead of
22
relinquishment of Kyoto Australian carbon credit units).
23
Note 2:
See also section 178 (transfer of certain units instead of
24
relinquishment of non-Kyoto Australian carbon credit units).
25
(3) The specified number must not exceed the net total number of
26
Australian carbon credit units issued in relation to the project in
27
accordance with Part 2.
28
(4) The project proponent must comply with the requirement within 90
29
days after the notice was given.
30
Note 1:
An administrative penalty is payable under section 179 for
31
non-compliance with a relinquishment requirement.
32
Note 2:
See also section 95 (transition of offsets projects).
33
Requirements to relinquish Australian carbon credit units Part 7
Relinquishment requirements for sequestration offsets projects Division 3
Section 91
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 121
91 Requirement to relinquish--reversal of sequestration due to
1
natural disturbance or conduct and no mitigation
2
happens
3
Scope
4
(1) This section applies if:
5
(a) an eligible offsets project is a sequestration offsets project to
6
remove carbon dioxide from the atmosphere; and
7
(b) a number of Australian carbon credit units have been issued
8
in relation to the project; and
9
(c) there has been a reversal of the removal; and
10
(d) the reversal is, under the regulations, taken to be a significant
11
reversal; and
12
(e) the reversal is attributable to:
13
(i) natural disturbance; or
14
(ii) conduct engaged in by a person (other than the project
15
proponent for the project), where the conduct is not
16
within the reasonable control of the project proponent;
17
and
18
(f) the Administrator is not satisfied that the project proponent
19
has, within a reasonable period, taken reasonable steps to
20
mitigate the effect of the natural disturbance or conduct, as
21
the case may be, on the project; and
22
(g) if the relevant section 27 declaration has never been varied so
23
as to add one or more project areas--the period that has
24
passed since the first occasion on which an Australian carbon
25
credit unit was issued in relation to the project in accordance
26
with Part 2 is shorter than the maximum potential
27
relinquishment period for the project; and
28
(h) if the relevant section 27 declaration has been varied so as to
29
add one or more project areas--the period that has passed
30
since the last occasion on which the declaration was so varied
31
is shorter than the maximum potential relinquishment period
32
for the project.
33
Part 7 Requirements to relinquish Australian carbon credit units
Division 3 Relinquishment requirements for sequestration offsets projects
Section 91
122 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Relinquishment
1
(2) The Administrator may, by written notice given to the project
2
proponent for the project, require the project proponent to
3
relinquish a specified number of:
4
(a) if the project is an eligible Kyoto project--Kyoto Australian
5
carbon credit units; or
6
(b) if the project is an eligible non-Kyoto project--non-Kyoto
7
Australian carbon credit units.
8
Note 1:
See also section 177 (transfer of certain units instead of
9
relinquishment of Kyoto Australian carbon credit units).
10
Note 2:
See also section 178 (transfer of certain units instead of
11
relinquishment of non-Kyoto Australian carbon credit units).
12
(3) The specified number must not exceed the net total number of
13
Australian carbon credit units issued in relation to the project in
14
accordance with Part 2.
15
(4) The project proponent must comply with the requirement within 90
16
days after the notice was given.
17
Note 1:
An administrative penalty is payable under section 179 for
18
non-compliance with a relinquishment requirement.
19
Note 2:
See also section 95 (transition of offsets projects).
20
21
Requirements to relinquish Australian carbon credit units Part 7
Transition of offsets projects from prescribed non-CFI offsets schemes Division 4
Section 92
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 123
Division 4--Transition of offsets projects from prescribed
1
non-CFI offsets schemes
2
92 Request for determination
3
(1) If a person applies under section 22 for a declaration of an offsets
4
project as an eligible offsets project, the application may be
5
accompanied by a request for a determination under section 95 in
6
relation to the project.
7
(2) A person is not entitled to make a request after the end of the
8
2-year period beginning at the commencement of this section.
9
93 Form of request
10
(1) A request must:
11
(a) be in writing; and
12
(b) be in a form approved, in writing, by the Administrator; and
13
(c) be accompanied by such information as is specified in the
14
regulations; and
15
(d) be accompanied by such documents (if any) as are specified
16
in the regulations.
17
(2) The approved form of request may provide for verification by
18
statutory declaration of statements in requests.
19
94 Further information
20
(1) The Administrator may, by written notice given to a person who
21
has made a request under section 92, require the person to give the
22
Administrator, within the period specified in the notice, further
23
information in connection with the request.
24
(2) If the person breaches the requirement, the Administrator may, by
25
written notice given to the person:
26
(a) refuse to consider:
27
(i) the request; and
28
(ii) the application under section 22; or
29
(b) refuse to take any action, or any further action, in relation to:
30
Part 7 Requirements to relinquish Australian carbon credit units
Division 4 Transition of offsets projects from prescribed non-CFI offsets schemes
Section 95
124 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) the request; and
1
(ii) the application under section 22.
2
95 Determination
3
Scope
4
(1) This section applies if:
5
(a) a request under section 92 has been made for a determination
6
under this section in relation to an offsets project; and
7
(b) under section 27, the Administrator has declared the offsets
8
project to be an eligible offsets project.
9
Determination
10
(2) As soon as practicable after making the declaration, the
11
Administrator must consider the request and may, by written notice
12
given to the person who made the request, determine that this Act
13
has effect, in relation to the project, as if:
14
(a) paragraphs 89(1)(b), 90(1)(b) and 91(1)(b) had not been
15
enacted; and
16
(b) the net total number of Australian carbon credit units
17
mentioned in subsections 89(3), 90(3) and 91(3) were
18
increased by the number specified in the determination.
19
(3) The Administrator must not make a determination under
20
subsection (2) unless the Administrator is satisfied that the project
21
area was, or the project areas were, wholly or partly covered by a
22
prescribed non-CFI offsets scheme.
23
(4) In making a determination under subsection (2), the Administrator
24
must comply with the regulations.
25
Refusal
26
(5) If the Administrator refuses to make a determination under
27
subsection (2), the Administrator must give notice of the refusal to
28
the person who made the request for the determination.
29
Requirements to relinquish Australian carbon credit units Part 7
Transition of offsets projects from prescribed non-CFI offsets schemes Division 4
Section 95
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 125
Determination is not legislative instrument
1
(6) A determination made under subsection (2) is not a legislative
2
instrument.
3
4
Part 8 Carbon maintenance obligation
Division 1 Introduction
Section 96
126 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 8--Carbon maintenance obligation
1
Division 1--Introduction
2
96 Simplified outline
3
The following is a simplified outline of this Part:
4
·
A carbon maintenance obligation may be imposed in relation
5
to an area or areas of land if a relinquishment requirement has
6
not been complied with.
7
8
Carbon maintenance obligation Part 8
Carbon maintenance obligation Division 2
Section 97
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 127
Division 2--Carbon maintenance obligation
1
97 Carbon maintenance obligation
2
Scope
3
(1) This section applies to one or more areas of land if:
4
(a) the following conditions are satisfied:
5
(i) a sequestration offsets project is or was an eligible
6
offsets project;
7
(ii) a notice was given under section 88, 89, 90 or 91 in
8
relation to the project;
9
(iii) the area was, or the areas were, identified in the relevant
10
section 27 declaration as the project area or project areas
11
for the eligible offsets project;
12
(iv) the notice required a person to relinquish a particular
13
number of Australian carbon credit units;
14
(v) the person did not comply with the requirement within
15
90 days after the notice was given; or
16
(b) the following conditions are satisfied:
17
(i) a sequestration offsets project is or was an eligible
18
offsets project;
19
(ii) a notice was given under section 88, 89, 90 or 91 in
20
relation to the project;
21
(iii) the area was, or the areas were, identified in the relevant
22
section 27 declaration as the project area or project areas
23
for the eligible offsets project;
24
(iv) the notice required a person to relinquish a particular
25
number of Australian carbon credit units;
26
(v) the Administrator is satisfied that it is likely that the
27
person will not comply with the requirement within 90
28
days after the notice was given; or
29
(c) the Administrator is satisfied that:
30
(i) a sequestration offsets project is or was an eligible
31
offsets project; and
32
(ii) it is likely that a notice will be given under section 88,
33
89, 90 or 91 in relation to the project; and
34
Part 8 Carbon maintenance obligation
Division 2 Carbon maintenance obligation
Section 97
128 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(iii) the area is, or the areas are, identified in the relevant
1
section 27 declaration as the project area or project areas
2
for the eligible offsets project; and
3
(iv) the notice is likely to require a person to relinquish a
4
particular number of Australian carbon credit units; and
5
(v) it is likely that the person will not comply with the
6
requirement within 90 days after the notice is given.
7
Declaration
8
(2) The Administrator may, by writing, declare that:
9
(a) the area or areas of land are subject to a carbon maintenance
10
obligation; and
11
(b) an activity (if any) specified in the declaration is a permitted
12
carbon activity in relation to the area or areas of land for the
13
purposes of this Act.
14
Note:
For specification by class, see the Acts Interpretation Act 1901.
15
(3) If the area or areas of land are subject to a carbon maintenance
16
obligation, the carbon maintenance obligation relates to the project
17
mentioned in whichever of subparagraph (1)(a)(i), (1)(b)(i) or
18
(1)(c)(i) applies.
19
(4) An activity may be specified under paragraph (2)(b) by reference
20
to:
21
(a) the area or areas of land on which the activity may be carried
22
out; or
23
(b) the manner in which the activity may be carried out; or
24
(c) the time or times at which the activity may be carried out; or
25
(d) the period or periods during which the activity may be
26
carried out; or
27
(e) the person or persons who may carry out the activity.
28
(5) Subsection (4) does not limit the ways in which an activity may be
29
specified under paragraph (2)(b).
30
(6) If the Administrator makes a declaration under subsection (2), the
31
Administrator must take all reasonable steps to ensure that a copy
32
of the declaration is given to:
33
Carbon maintenance obligation Part 8
Carbon maintenance obligation Division 2
Section 97
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 129
(a) the project proponent for the project; and
1
(b) each person who holds an eligible interest in the area, or any
2
of the areas, of land; and
3
(c) a person specified in the regulations; and
4
(d) the relevant land registration official.
5
(7) A failure to comply with subsection (6) does not affect the validity
6
of a declaration under subsection (2).
7
Benchmark sequestration level
8
(8) If the area or areas of land are subject to a carbon maintenance
9
obligation that relates to a sequestration offsets project, the
10
benchmark sequestration level is the number of tonnes of carbon
11
that was sequestered in the relevant carbon pool on the area or
12
areas when the declaration under subsection (2) was made in
13
relation to the area or areas.
14
Obligations
15
(9) If the area or areas of land are subject to a carbon maintenance
16
obligation, a person must not engage in conduct that:
17
(a) results, or is likely to result, in a reduction below the
18
benchmark sequestration level of the sequestration of carbon
19
in the relevant carbon pool on the area or areas; and
20
(b) is not a permitted carbon activity.
21
(10)
If:
22
(a) the area or areas of land are subject to a carbon maintenance
23
obligation; and
24
(b) there has been a reduction below the benchmark
25
sequestration level of the sequestration of carbon in the
26
relevant carbon pool on the area or areas;
27
the owner or occupier of the land must take all reasonable steps to
28
ensure that the number of tonnes of carbon sequestered in the
29
relevant carbon pool on the area or areas is not less than the
30
benchmark storage level.
31
Part 8 Carbon maintenance obligation
Division 2 Carbon maintenance obligation
Section 97
130 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Ancillary contraventions
1
(11) A person must not:
2
(a) aid, abet, counsel or procure a contravention of subsection (9)
3
or (10); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (9) or (10); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (9) or (10); or
8
(d) conspire with others to effect a contravention of
9
subsection (9) or (10).
10
Civil penalty provisions
11
(12) Subsections (9), (10) and (11) are civil penalty provisions.
12
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
Duration of declaration
15
(13) A declaration under subsection (2) comes into force when a copy
16
of the declaration is given to the project proponent for the project
17
under subsection (6).
18
(14) Unless sooner revoked, a declaration under subsection (2) ceases to
19
be in force at whichever of the following times happens first:
20
(a) when the penalty payable under section 179 in respect of the
21
non-compliance with the requirement referred to in
22
subparagraph (1)(a)(v) or (b)(v) (including any late payment
23
penalty payable under section 180 in relation to the
24
section 179 penalty) is paid in full;
25
(b)
if:
26
(i) the notice referred to in subparagraph (1)(c)(ii) is given;
27
and
28
(ii) the notice required a person to relinquish a particular
29
number of Australian carbon credit units; and
30
(iii) the person did not comply with the requirement within
31
90 days after the notice was given;
32
Carbon maintenance obligation Part 8
Carbon maintenance obligation Division 2
Section 98
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 131
when the penalty payable under section 179 in respect of the
1
non-compliance with the requirement (including any late
2
payment penalty payable under section 180 in relation to the
3
section 179 penalty) is paid in full;
4
(c) if the relevant section 27 declaration has never been varied so
5
as to add one or more project areas--the end of the period
6
that:
7
(i) begins on the first occasion on which an Australian
8
carbon credit unit was issued in relation to the project in
9
accordance with Part 2; and
10
(ii) is of the same duration as the maximum potential
11
relinquishment period for the project;
12
(d) if the relevant section 27 declaration has been varied so as to
13
add one or more project areas--the end of the period that:
14
(i) begins on the last occasion on which the declaration was
15
so varied; and
16
(ii) is of the same duration as the maximum potential
17
relinquishment period for the project.
18
Declaration is not a legislative instrument
19
(15) A declaration made under subsection (2) is not a legislative
20
instrument.
21
98 Variation or revocation of declaration of carbon maintenance
22
obligation
23
Scope
24
(1) This section applies if a declaration is in force under subsection
25
97(2) in relation to an area or areas of land.
26
Variation or revocation
27
(2) The Administrator may, by writing, vary or revoke the declaration.
28
(3) The Administrator may do so:
29
(a) on the Administrator's own initiative; or
30
(b) on application made to the Administrator by a person.
31
Part 8 Carbon maintenance obligation
Division 2 Carbon maintenance obligation
Section 98
132 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Application
1
(4) An application under paragraph (3)(b) must:
2
(a) be in writing; and
3
(b) be in a form approved, in writing, by the Administrator; and
4
(c) be accompanied by the fee (if any) specified in the
5
regulations.
6
(5) A fee specified under paragraph (4)(c) must not be such as to
7
amount to taxation.
8
Notification of variation or revocation
9
(6) If the Administrator varies or revokes the declaration, the
10
Administrator must take all reasonable steps to ensure that a copy
11
of the variation or revocation is given to:
12
(a) the project proponent for the project; and
13
(b) each person who holds an eligible interest in the area, or any
14
of the areas, of land; and
15
(c) a person specified in the regulations; and
16
(d) the relevant land registration official.
17
(7) A failure to comply with subsection (6) does not affect the validity
18
of a variation or revocation.
19
Refusal
20
(8) If the Administrator decides to refuse to vary or revoke the
21
declaration, the Administrator must give written notice of the
22
decision to the applicant.
23
Variation or revocation is not a legislative instrument
24
(9) A variation or revocation of the declaration is not a legislative
25
instrument.
26
Carbon maintenance obligation Part 8
Carbon maintenance obligation Division 2
Section 99
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 133
99 Revocation of declaration of carbon maintenance obligation--
1
voluntary relinquishment of Australian carbon credit
2
units
3
Scope
4
(1) This section applies if:
5
(a) an area or areas of land are subject to a carbon maintenance
6
obligation; and
7
(b) in the case of a single area--the area is not a project area for
8
an eligible offsets project; and
9
(c) in the case of 2 or more areas--none of the areas is a project
10
area for an eligible offsets project; and
11
(d) a person applies to the Administrator for the revocation of the
12
relevant subsection 97(2) declaration; and
13
(e) if the project is an eligible Kyoto project:
14
(i) before the application was made, the applicant or
15
another person voluntarily relinquished a number of
16
Kyoto Australian carbon credit units in order to satisfy a
17
condition for revocation of the declaration; and
18
(ii) the number of relinquished units equals the net total
19
number of Australian carbon credit units issued in
20
relation to the project in accordance with Part 2; and
21
(f) if the project is an eligible non-Kyoto project:
22
(i) before the application was made, the applicant or
23
another person voluntarily relinquished a number of
24
non-Kyoto Australian carbon credit units in order to
25
satisfy a condition for revocation of the declaration; and
26
(ii) the number of relinquished units equals the net total
27
number of Australian carbon credit units issued in
28
relation to the project in accordance with Part 2.
29
Note 1:
See also section 177 (transfer of certain units instead of
30
relinquishment of Kyoto Australian carbon credit units).
31
Note 2:
See also section 178 (transfer of certain units instead of
32
relinquishment of non-Kyoto Australian carbon credit units).
33
Revocation
34
(2) The Administrator must, by writing, revoke the declaration.
35
Part 8 Carbon maintenance obligation
Division 2 Carbon maintenance obligation
Section 99
134 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Application
1
(3) An application under paragraph (1)(d) must:
2
(a) be in writing; and
3
(b) be in a form approved, in writing, by the Administrator.
4
Notification of revocation
5
(4) If the Administrator revokes the declaration, the Administrator
6
must take all reasonable steps to ensure that a copy of the
7
revocation is given to:
8
(a) the project proponent for the project; and
9
(b) each person who holds an eligible interest in the area, or any
10
of the areas, of land; and
11
(c) a person specified in the regulations; and
12
(d) the relevant land registration official.
13
(5) A failure to comply with subsection (4) does not affect the validity
14
of a variation or revocation.
15
Refusal
16
(6) If the Administrator decides to refuse to revoke the declaration, the
17
Administrator must give written notice of the decision to the
18
applicant.
19
Revocation is not a legislative instrument
20
(7) A revocation of the declaration is not a legislative instrument.
21
22
Carbon maintenance obligation Part 8
Injunctions Division 3
Section 100
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 135
Division 3--Injunctions
1
100 Injunctions
2
Performance injunctions
3
(1)
If:
4
(a) a person has refused or failed, or is refusing or failing, or is
5
proposing to refuse or fail, to do an act or thing; and
6
(b) the refusal or failure was, is or would be a contravention of
7
subsection 97(9) or (10);
8
the Federal Court may, on the application of the Administrator,
9
grant an injunction requiring the person to do that act or thing.
10
Restraining injunctions
11
(2) If a person has engaged, is engaging or is proposing to engage, in
12
any conduct in contravention of subsection 97(9) or (10), the
13
Federal Court may, on the application of the Administrator, grant
14
an injunction:
15
(a) restraining the person from engaging in the conduct; and
16
(b) if, in the Court's opinion, it is desirable to do so--requiring
17
the person to do something.
18
101 Interim injunctions
19
Grant of interim injunction
20
(1) If an application is made to the Federal Court for an injunction
21
under section 100, the Court may, before considering the
22
application, grant an interim injunction restraining a person from
23
engaging in conduct of a kind referred to in that section.
24
No undertakings as to damages
25
(2) The Federal Court is not to require the Administrator, as a
26
condition of granting an interim injunction, to give any
27
undertakings as to damages.
28
Part 8 Carbon maintenance obligation
Division 3 Injunctions
Section 102
136 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
102 Discharge etc. of injunctions
1
The Federal Court may discharge or vary an injunction granted
2
under this Division.
3
103 Certain limits on granting injunctions not to apply
4
Performance injunctions
5
(1) The power of the Federal Court to grant an injunction requiring a
6
person to do an act or thing may be exercised:
7
(a) if the Court is satisfied that the person has refused or failed to
8
do that act or thing--whether or not it appears to the Court
9
that the person intends to refuse or fail again, or to continue
10
to refuse or fail, to do that act or thing; or
11
(b) if it appears to the Court that, if an injunction is not granted,
12
it is likely that the person will refuse or fail to do that act or
13
thing--whether or not the person has previously refused or
14
failed to do that act or thing.
15
Restraining injunctions
16
(2) The power of the Federal Court under this Division to grant an
17
injunction restraining a person from engaging in conduct of a
18
particular kind may be exercised:
19
(a) if the Court is satisfied that the person has engaged in
20
conduct of that kind--whether or not it appears to the Court
21
that the person intends to engage again, or to continue to
22
engage, in conduct of that kind; or
23
(b) if it appears to the Court that, if an injunction is not granted,
24
it is likely that the person will engage in conduct of that
25
kind--whether or not the person has previously engaged in
26
conduct of that kind.
27
104 Other powers of the Federal Court unaffected
28
The powers conferred on the Federal Court under this Division are
29
in addition to, and not instead of, any other powers of the Court,
30
whether conferred by this Act or otherwise.
31
32
Methodology determinations Part 9
Introduction Division 1
Section 105
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 137
Part 9--Methodology determinations
1
Division 1--Introduction
2
105 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Minister may make or vary a methodology determination
5
that applies to a specified kind of offsets project.
6
·
The Minister must not make or vary a methodology
7
determination unless:
8
(a)
a proposal for the determination or variation has
9
been endorsed by the Domestic Offsets Integrity
10
Committee; and
11
(b)
the determination, or varied determination,
12
complies with the offsets integrity standards and
13
certain other requirements.
14
·
A person may apply to the Domestic Offsets Integrity
15
Committee for the endorsement of a proposal to make or vary
16
a methodology determination.
17
18
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 106
138 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Methodology determinations
1
Subdivision A--Making of methodology determinations
2
106 Methodology determinations
3
(1) The Minister may, by legislative instrument, make a determination
4
that:
5
(a) is expressed to apply to a specified kind of offsets project;
6
and
7
(b) sets out requirements that must be met for such a project to
8
be an eligible offsets project; and
9
(c) provides that, if such a project is an eligible offsets project
10
other than a native forest protection project, the carbon
11
dioxide equivalent net abatement amount for the project in
12
relation to a reporting period for the project is taken, for the
13
purposes of this Act, to be equal to the amount ascertained
14
using a method specified in the determination; and
15
(d) provides that, if such a project is a native forest protection
16
project, the carbon dioxide equivalent net sequestration
17
amount for a crediting period for the project is taken, for the
18
purposes of this Act, to be equal to the amount ascertained
19
using a method specified in the determination.
20
Note:
For declarations of eligible offsets projects, see section 27.
21
(2) A determination under subsection (1) is to be known as a
22
methodology determination.
23
(3) A methodology determination that applies to a particular kind of
24
offsets project may provide that, if such a project is an eligible
25
offsets project, the project proponent for the project is subject to
26
any or all of the following requirements:
27
(a) specified requirements to include specified information
28
relating to the project in each offsets report about the project;
29
(b) specified requirements to notify one or more matters relating
30
to the project to the Administrator;
31
(c) specified record-keeping requirements relating to the project;
32
(d) specified requirements to monitor the project.
33
Methodology determinations Part 9
Methodology determinations Division 2
Section 106
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 139
(4) The Minister must not make a methodology determination unless:
1
(a) the determination gives effect to a particular proposal for a
2
methodology determination; and
3
(b) the Domestic Offsets Integrity Committee has:
4
(i) endorsed the proposal under section 112; and
5
(ii) advised the Minister of the endorsement under
6
section 113; and
7
(c) the determination complies with the offsets integrity
8
standards; and
9
(d) the determination does not specify a kind of offsets project
10
by reference to a State or a part of a State; and
11
(e) the determination complies with such requirements (if any)
12
as are specified in the regulations; and
13
(f) the method specified in the determination in accordance with
14
paragraph (1)(c) or (d) of this section includes a calculation
15
of a baseline for the project; and
16
(g) in a case where:
17
(i) a method determined under subsection 10(3) of the
18
National Greenhouse and Energy Reporting Act 2007 is
19
a method by which the amounts of the emissions of
20
greenhouse gases from a particular source are to be
21
measured for the purposes of that Act; and
22
(ii) the method specified in the methodology determination
23
in accordance with paragraph (1)(c) or (d) of this section
24
involves the measurement of emissions of greenhouse
25
gases from that source;
26
the methodology determination provides that the emissions
27
are to be measured, under the method specified in the
28
methodology determination in accordance with
29
paragraph (1)(c) or (d) of this section, in the same way as
30
they are measured under the method determined under
31
subsection 10(3) of the National Greenhouse and Energy
32
Reporting Act 2007.
33
Note 1:
For baseline, see section 107.
34
Note 2:
For transitional matters, see sections 131 and 132.
35
(5)
If:
36
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 106
140 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) an applicant applies under section 108 to the Domestic
1
Offsets Integrity Committee for the endorsement of a
2
proposal for a methodology determination; and
3
(b) the Domestic Offsets Integrity Committee:
4
(i) endorses the proposal under section 112; and
5
(ii) advises the Minister of the endorsement under
6
section 113; and
7
(c) the Minister decides not to make a methodology
8
determination to give effect to the proposal;
9
the Minister must, as soon as practicable after making the decision,
10
give the applicant a notice that sets out:
11
(d) the decision; and
12
(e) the reasons for the decision.
13
(6) Subsection (4) does not, by implication, prevent the Minister from:
14
(a) asking the Domestic Offsets Integrity Committee to give the
15
Minister additional advice about a matter arising under this
16
section; or
17
(b) asking another body or person to give the Minister advice
18
about a matter arising under this section.
19
(7) Paragraph (1)(a) of this section does not, by implication, affect the
20
application of subsection 13(3) of the Legislative Instruments Act
21
2003 to another instrument under this Act.
22
(8) A methodology determination may make provision in relation to a
23
matter by applying, adopting or incorporating, with or without
24
modification, a matter contained in an instrument or writing:
25
(a) as in force or existing at a particular time; or
26
(b) as in force or existing from time to time.
27
(9) Subsection (8) has effect despite anything in subsection 14(2) of
28
the Legislative Instruments Act 2003.
29
(10) If a methodology determination makes provision in relation to a
30
matter by applying, adopting or incorporating, with or without
31
modification, a matter contained in an instrument or writing, the
32
Domestic Offsets Integrity Committee must ensure that the text of
33
the matter applied, adopted or incorporated is published on its
34
website.
35
Methodology determinations Part 9
Methodology determinations Division 2
Section 107
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 141
(11) Subsection (10) does not apply if the publication would infringe
1
copyright.
2
(12)
If:
3
(a) the Domestic Offsets Integrity Committee:
4
(i) endorses a particular proposal for a methodology
5
determination under section 112; and
6
(ii) advises the Minister of the endorsement under
7
section 113; and
8
(b) the Minister decides:
9
(i) to make a methodology determination to give effect to
10
the proposal; or
11
(ii) not to make a methodology determination to give effect
12
to the proposal;
13
the Minister must, as soon as practicable after making the decision,
14
cause a copy of the Domestic Offset Integrity Committee's advice
15
under section 113 to be published on the Department's website.
16
107 Baseline
17
For the purposes of the application of this Act to a methodology
18
determination, a baseline for an offsets project is to be calculated
19
on the assumption that the project were not carried out.
20
108 Application for endorsement of proposal for methodology
21
determination
22
(1) A person may apply to the Domestic Offsets Integrity Committee
23
for endorsement of a specified proposal for a methodology
24
determination.
25
(2) To avoid doubt, the specified proposal does not have to be in the
26
form of a draft methodology determination.
27
109 Form of application
28
(1) An application under section 108 must:
29
(a) be in writing; and
30
(b) set out the proposal; and
31
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 110
142 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c) be in a form approved, in writing, by the Minister; and
1
(d) be accompanied by such information as is specified in the
2
regulations; and
3
(e) be accompanied by such other documents (if any) as are
4
specified in the regulations; and
5
(f) be accompanied by the fee (if any) specified in the
6
regulations.
7
(2) The approved form of application may provide for verification by
8
statutory declaration of statements in applications.
9
(3) A fee specified under paragraph (1)(f) must not be such as to
10
amount to taxation.
11
110 Further information
12
(1) The Domestic Offsets Integrity Committee may, by written notice
13
given to an applicant, require the applicant to give the Committee,
14
within the period specified in the notice, further information in
15
connection with the application.
16
(2) If the applicant breaches the requirement, the Domestic Offsets
17
Integrity Committee may, by written notice given to the applicant:
18
(a) refuse to consider the application; or
19
(b) refuse to take any action, or any further action, in relation to
20
the application.
21
111 Withdrawal of application
22
(1) An applicant may withdraw the application at any time before the
23
Domestic Offsets Integrity Committee makes a decision on the
24
application.
25
(2) This Act does not prevent the applicant from making a fresh
26
application.
27
(3)
If:
28
(a) the applicant withdraws the application; and
29
(b) the applicant has paid a fee in relation to the application;
30
Methodology determinations Part 9
Methodology determinations Division 2
Section 112
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 143
the Domestic Offsets Integrity Committee must, on behalf of the
1
Commonwealth, refund the application fee.
2
112 Endorsement of proposal for methodology determination
3
Scope
4
(1) This section applies if an application under section 108 has been
5
made for the endorsement of a proposal for a methodology
6
determination.
7
Endorsement
8
(2) After considering the application, the Domestic Offsets Integrity
9
Committee must, in writing, either:
10
(a) endorse the proposal; or
11
(b) refuse to endorse the proposal.
12
(3) The Domestic Offsets Integrity Committee must not endorse the
13
proposal unless the Committee is satisfied that, if the Minister were
14
to make a methodology determination to give effect to the
15
proposal:
16
(a) the determination would comply with the offsets integrity
17
standards; and
18
(b) the determination would not specify a kind of offsets project
19
by reference to a State or a part of a State; and
20
(c) the determination would comply with such requirements (if
21
any) as are specified in regulations made for the purposes of
22
paragraph 106(4)(e); and
23
(d) the method specified in the determination in accordance with
24
paragraph 106(1)(c) or (d) would include a calculation of a
25
baseline for the project;
26
(g) in a case where:
27
(i) a method determined under subsection 10(3) of the
28
National Greenhouse and Energy Reporting Act 2007 is
29
a method by which the amounts of the emissions of
30
greenhouse gases from a particular source are to be
31
measured for the purposes of that Act; and
32
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 112
144 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(ii) the method specified in the methodology determination
1
in accordance with paragraph 106(1)(c) or (d) would
2
involve the measurement of emissions of greenhouse
3
gases from that source;
4
the methodology determination would provide that the
5
emissions are to be measured, under the method specified in
6
the methodology determination in accordance with paragraph
7
106(1)(c) or (d), in the same way as they are measured under
8
the method determined under subsection 10(3) of the
9
National Greenhouse and Energy Reporting Act 2007.
10
Note: For
baseline, see section 107.
11
(4)
If:
12
(a) a Domestic Offsets Integrity Committee member:
13
(i) is an SES employee in the Department; or
14
(ii) holds or performs the duties of an Executive Level 2
15
position, or an equivalent position, in the Department;
16
and
17
(b) the member advises the Committee that, if the Minister were
18
to make a methodology determination to give effect to the
19
proposal, the determination would not comply with the
20
offsets integrity standard set out in paragraph 133(1)(c);
21
then, for the purposes of paragraph (3)(a) of this section, the
22
Domestic Offsets Integrity Committee is to assume that the
23
determination would not comply with that offsets integrity
24
standard.
25
Note:
Paragraph 133(1)(c) deals with consistency with the National
26
Inventory Report.
27
Consultation and publication
28
(5) The Domestic Offsets Integrity Committee must not endorse the
29
proposal unless the Committee has first:
30
(a) published on the Department's website:
31
(i) the proposal; and
32
(ii) a notice inviting the public to make a submission to the
33
Committee on the proposal by a specified time limit;
34
and
35
Methodology determinations Part 9
Methodology determinations Division 2
Section 112
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 145
(b) considered any submissions that were received within that
1
time limit.
2
(6) The time limit must not be shorter than 40 days.
3
(7) If the Domestic Offsets Integrity Committee publishes the proposal
4
on the Department's website under subsection (5), the Committee
5
may also publish on the Department's website information given
6
by the applicant to the Committee in accordance with section 109
7
or 110.
8
(8) However, the Domestic Offsets Integrity Committee must not
9
publish particular information under subsection (7) if the applicant
10
has requested the Committee not to publish the information.
11
(9) A request under subsection (8) must:
12
(a) be in writing; and
13
(b) be in a form approved, in writing, by the Committee.
14
(10) The Domestic Offsets Integrity Committee must refuse to endorse
15
the proposal if:
16
(a) the applicant has made a request under subsection (8) for the
17
Committee not to publish particular information; and
18
(b) the Committee is satisfied that failing to publish that
19
information could reasonably be expected to substantially
20
prejudice the ability of the public to make well-informed
21
submissions on the proposal under subsection (5).
22
(11) The Domestic Offsets Integrity Committee must publish on the
23
Department's website any submissions under subsection (5)
24
received within the time limit referred to in subparagraph (5)(a)(ii).
25
(12) However, the Domestic Offsets Integrity Committee must not
26
publish a particular submission made by a person if the person has
27
requested the Committee not to publish the submission on the
28
ground that publication of the submission could reasonably be
29
expected to substantially prejudice the commercial interests of the
30
person or another person.
31
(13) A request under subsection (12) must:
32
(a) be in writing; and
33
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 113
146 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) be in a form approved, in writing, by the Committee.
1
Notification
2
(14) As soon as practicable after making a decision under
3
subsection (2), the Domestic Offsets Integrity Committee must
4
give the applicant a notice that sets out:
5
(a) the decision; and
6
(b) if the decision is to refuse to endorse the proposal--the
7
reasons for the decision.
8
Instrument is not a legislative instrument
9
(15) An instrument under subsection (2) is not a legislative instrument.
10
113 Advice about endorsement of proposal
11
Scope
12
(1) This section applies if the Domestic Offsets Integrity Committee
13
endorses a proposal for a methodology determination under
14
section 112.
15
Advice
16
(2) As soon as practicable after endorsing the proposal, the Committee
17
must, by written notice given to the Minister, advise the Minister
18
of the endorsement.
19
Subdivision B--Variation of methodology determinations
20
114 Variation of methodology determinations
21
(1) The Minister may, by legislative instrument, vary a methodology
22
determination.
23
(2) The Minister must not vary a methodology determination unless:
24
(a) the variation gives effect to a particular proposal for the
25
variation of a methodology determination; and
26
(b) the Domestic Offsets Integrity Committee has:
27
(i) endorsed the proposal under section 120; and
28
Methodology determinations Part 9
Methodology determinations Division 2
Section 114
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 147
(ii) advised the Minister of the endorsement under
1
section 121; and
2
(c) the varied determination complies with the offsets integrity
3
standards; and
4
(d) the varied determination does not specify a kind of offsets
5
project by reference to a State or a part of a State; and
6
(e) the varied determination complies with such requirements (if
7
any) as are specified in regulations made for the purposes of
8
paragraph 106(4)(e); and
9
(f) the method specified in the varied determination in
10
accordance with paragraph 106(1)(c) or (d) includes a
11
calculation of a baseline for the project; and
12
(g) in a case where:
13
(i) a method determined under subsection 10(3) of the
14
National Greenhouse and Energy Reporting Act 2007 is
15
a method by which the amounts of the emissions of
16
greenhouse gases from a particular source are to be
17
measured for the purposes of that Act; and
18
(ii) the method specified in the varied methodology
19
determination in accordance with paragraph 106(1)(c)
20
or (d) involves the measurement of emissions of
21
greenhouse gases from that source;
22
the varied methodology determination provides that the
23
emissions are to be measured, under the method specified in
24
the varied methodology determination in accordance with
25
paragraph 106(1)(c) or (d), in the same way as they are
26
measured under the method determined under subsection
27
10(3) of the National Greenhouse and Energy Reporting Act
28
2007.
29
Note: For
baseline, see section 107.
30
(3)
If:
31
(a) an applicant applies under section 116 to the Domestic
32
Offsets Integrity Committee for the endorsement of a
33
proposal for the variation of a methodology determination;
34
and
35
(b) the Domestic Offsets Integrity Committee:
36
(i) endorses the proposal under section 120; and
37
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 115
148 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(ii) advises the Minister of the endorsement under
1
section 121; and
2
(c) the Minister decides not to vary the methodology
3
determination so as to give effect to the proposal;
4
the Minister must, as soon as practicable after making the decision,
5
give the applicant a notice that sets out:
6
(d) the decision; and
7
(e) the reasons for the decision.
8
(4) Subsection (2) does not, by implication, prevent the Minister from:
9
(a) asking the Domestic Offsets Integrity Committee to give the
10
Minister additional advice about a matter arising under this
11
section; or
12
(b) asking another body or person to give the Minister advice
13
about a matter arising under this section.
14
(5) Subsection (1) of this section does not, by implication, limit the
15
application of subsection 33(3) of the Acts Interpretation Act 1901
16
to other instruments under this Act.
17
(6)
If:
18
(a) the Domestic Offsets Integrity Committee:
19
(i) endorses a particular proposal for the variation of a
20
methodology determination under section 120; and
21
(ii) advises the Minister of the endorsement under
22
section 121; and
23
(b) the Minister decides:
24
(i) to vary the methodology determination so as to give
25
effect to the proposal; or
26
(ii) not to vary the methodology determination so as to give
27
effect to the proposal;
28
the Minister must, as soon as practicable after making the decision,
29
cause a copy of the Domestic Offset Integrity Committee's advice
30
under section 120 to be published on the Department's website.
31
115 When variation takes effect
32
A variation of a methodology determination takes effect:
33
Methodology determinations Part 9
Methodology determinations Division 2
Section 116
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 149
(a) on the day on which the instrument varying the methodology
1
determination is made; or
2
(b) if a later day is specified in the instrument--on that later day.
3
116 Application for endorsement of proposal for the variation of a
4
methodology determination
5
(1) A person may apply to the Domestic Offsets Integrity Committee
6
for endorsement of a specified proposal for the variation of a
7
methodology determination.
8
(2) To avoid doubt, the specified proposal does not have to be in the
9
form of a draft variation.
10
117 Form of application
11
(1) An application under section 116 must:
12
(a) be in writing; and
13
(b) set out the proposal; and
14
(c) be in a form approved, in writing, by the Domestic Offsets
15
Integrity Committee; and
16
(d) be accompanied by such information as is specified in the
17
regulations; and
18
(e) be accompanied by such other documents (if any) as are
19
specified in the regulations; and
20
(f) be accompanied by the fee (if any) specified in the
21
regulations.
22
(2) The approved form of application may provide for verification by
23
statutory declaration of statements in applications.
24
(3) A fee specified under paragraph (1)(f) must not be such as to
25
amount to taxation.
26
118 Further information
27
(1) The Domestic Offsets Integrity Committee may, by written notice
28
given to an applicant, require the applicant to give the Committee,
29
within the period specified in the notice, further information in
30
connection with the application.
31
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 119
150 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(2) If the applicant breaches the requirement, the Domestic Offsets
1
Integrity Committee may, by written notice given to the applicant:
2
(a) refuse to consider the application; or
3
(b) refuse to take any action, or any further action, in relation to
4
the application.
5
119 Withdrawal of application
6
(1) An applicant may withdraw the application at any time before the
7
Domestic Offsets Integrity Committee makes a decision on the
8
application.
9
(2) This Act does not prevent the applicant from making a fresh
10
application.
11
(3)
If:
12
(a) the applicant withdraws the application; and
13
(b) the applicant has paid a fee in relation to the application;
14
the Domestic Offsets Integrity Committee must, on behalf of the
15
Commonwealth, refund the application fee.
16
120 Endorsement of proposal for variation of methodology
17
determination
18
Scope
19
(1) This section applies if an application under section 116 has been
20
made for the endorsement of a proposal for the variation of a
21
methodology determination.
22
Endorsement
23
(2) After considering the application, the Domestic Offsets Integrity
24
Committee must, in writing, either:
25
(a) endorse the proposal; or
26
(b) refuse to endorse the proposal.
27
(3) The Domestic Offsets Integrity Committee must not endorse the
28
proposal unless the Committee is satisfied that, if the Minister were
29
Methodology determinations Part 9
Methodology determinations Division 2
Section 120
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 151
to vary the methodology determination so as to give effect to the
1
proposal:
2
(a) the varied determination would comply with the offsets
3
integrity standards; and
4
(b) the varied determination would not specify a kind of offsets
5
project by reference to a State or a part of a State; and
6
(c) the varied determination would comply with such
7
requirements (if any) as are specified in regulations made for
8
the purposes of paragraph 106(4)(e); and
9
(d) the method specified in the varied determination in
10
accordance with paragraph 106(1)(c) or (d) would include a
11
calculation of a baseline for the project; and
12
(e) in a case where:
13
(i) a method determined under subsection 10(3) of the
14
National Greenhouse and Energy Reporting Act 2007 is
15
a method by which the amounts of the emissions of
16
greenhouse gases from a particular source are to be
17
measured for the purposes of that Act; and
18
(ii) the method specified in the varied methodology
19
determination in accordance with paragraph 106(1)(c)
20
or (d) involves the measurement of emissions of
21
greenhouse gases from that source;
22
the varied methodology determination would provide that the
23
emissions are to be measured, under the method specified in
24
the varied methodology determination in accordance with
25
paragraph 106(1)(c) or (d), in the same way as they are
26
measured under the method determined under subsection
27
10(3) of the National Greenhouse and Energy Reporting Act
28
2007.
29
(4)
If:
30
(a) a Domestic Offsets Integrity Committee member:
31
(i) is an SES employee in the Department; or
32
(ii) holds or performs the duties of an Executive Level 2
33
position, or an equivalent position, in the Department;
34
and
35
(b) the member advises the Committee that, if the Minister were
36
to vary the methodology determination so as to give effect to
37
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 120
152 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
the proposal, the varied determination would not comply with
1
the offsets integrity standard set out in paragraph 133(1)(c);
2
then, for the purposes of paragraph (3)(a) of this section, the
3
Domestic Offsets Integrity Committee is to assume that the varied
4
determination would not comply with that offsets integrity
5
standard.
6
Note:
Paragraph 133(1)(c) deals with consistency with the National
7
Inventory Report.
8
Consultation and publication
9
(5) The Domestic Offsets Integrity Committee must not endorse the
10
proposal unless the Committee has first:
11
(a) published on the Department's website:
12
(i) the proposal; and
13
(ii) a notice inviting the public to make a submission to the
14
Committee on the proposal by a specified time limit;
15
and
16
(b) considered any submissions that were received within that
17
time limit.
18
(6) The time limit must not be shorter than 40 days.
19
(7) If the Domestic Offsets Integrity Committee publishes the proposal
20
on the Department's website under subsection (5), the Committee
21
may also publish on the Department's website information given
22
by the applicant to the Committee in accordance with section 117
23
or 118.
24
(8) However, the Domestic Offsets Integrity Committee must not
25
publish particular information under subsection (5) if the applicant
26
has requested the Committee not to publish the information.
27
(9) A request under subsection (8) must:
28
(a) be in writing; and
29
(b) be in a form approved, in writing, by the Committee.
30
(10) The Domestic Offsets Integrity Committee must refuse to endorse
31
the proposal if:
32
Methodology determinations Part 9
Methodology determinations Division 2
Section 120
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 153
(a) the applicant has made a request under subsection (8) for the
1
Committee not to publish particular information; and
2
(b) the Committee is satisfied that failing to publish that
3
information could reasonably be expected to substantially
4
prejudice the ability of the public to make well-informed
5
submissions on the proposal under subsection (5).
6
(11) The Domestic Offsets Integrity Committee must also publish on
7
the Department's website any submissions under subsection (5)
8
received within the time limit referred to in subparagraph (5)(a)(ii).
9
(12) However, the Domestic Offsets Integrity Committee must not
10
publish a particular submission made by a person if the person has
11
requested the Committee not to publish the submission on the
12
ground that publication of the submission could reasonably be
13
expected to substantially prejudice the commercial interests of the
14
person or another person.
15
(13) A request under subsection (12) must:
16
(a) be in writing; and
17
(b) be in a form approved, in writing, by the Committee.
18
Notification
19
(14) As soon as practicable after making a decision under
20
subsection (2), the Domestic Offsets Integrity Committee must
21
give the applicant a notice that sets out:
22
(a) the decision; and
23
(b) if the decision is to refuse to endorse the proposal--the
24
reasons for the decision.
25
Instrument is not a legislative instrument
26
(15) An instrument under subsection (2) is not a legislative instrument.
27
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 121
154 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
121 Advice about endorsement of proposal
1
Scope
2
(1) This section applies if the Domestic Offsets Integrity Committee
3
endorses a proposal for the variation of a methodology
4
determination under section 120.
5
Advice
6
(2) As soon as practicable after endorsing the proposal, the Committee
7
must, by written notice given to the Minister, advise the Minister
8
of the endorsement.
9
Subdivision C--Duration of methodology determinations
10
122 Duration of methodology determinations
11
(1) A methodology determination:
12
(a) comes into force:
13
(i) when it is made; or
14
(ii) if a later time is specified in the determination--at that
15
later time; and
16
(b) unless sooner revoked, remains in force for:
17
(i) the period specified in the determination; or
18
(ii) if a longer period is specified in relation to the
19
determination in a legislative instrument made by the
20
Minister--that longer period.
21
(2) Paragraph (1)(a) has effect subject to:
22
(a) subsection (3) of this section; and
23
(b)
section
130.
24
Note:
Section 130 deals with approval of the application of a specified
25
methodology determination to a project with effect from the start of a
26
reporting period.
27
(3) If a methodology determination is made on or before 30 June 2012,
28
the determination may be expressed to have come into force at the
29
start of 1 July 2010.
30
Methodology determinations Part 9
Methodology determinations Division 2
Section 123
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 155
(4) If a methodology determination expires, this Act does not prevent
1
the Minister from making a fresh methodology determination in
2
the same terms as the expired determination.
3
Subdivision D--Revocation of methodology determinations
4
123 Revocation of methodology determinations
5
(1) The Minister may, by legislative instrument, revoke a methodology
6
determination.
7
(2) Before revoking a methodology determination, the Minister must
8
request the Domestic Offsets Integrity Committee to advise the
9
Minister about whether the Minister should revoke the
10
determination.
11
(3) In deciding whether to revoke a methodology determination, the
12
Minister must have regard to the following:
13
(a) whether the determination complies with the offsets integrity
14
standards;
15
(b) any advice given by the Domestic Offsets Integrity
16
Committee under subsection (2);
17
(c) such other matters (if any) as the Minister considers relevant.
18
(4) Subsection (1) of this section does not, by implication, limit the
19
application of subsection 33(3) of the Acts Interpretation Act 1901
20
to other instruments under this Act.
21
(5) If the Minister decides:
22
(a) to revoke a methodology determination; or
23
(b) not to revoke a methodology determination;
24
the Minister must, as soon as practicable after making the decision,
25
cause a copy of any advice given by the Domestic Offset Integrity
26
Committee under subsection (2) in relation to the determination to
27
be published on the Department's website.
28
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 124
156 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Subdivision E--Applicable methodology determination
1
124 Applicable methodology determination for a reporting period
2
For the purposes of this Act, if a methodology determination
3
applies to an eligible offsets project throughout a reporting period
4
for the project, the determination is the applicable methodology
5
determination for the reporting period.
6
125 Original methodology determination continues to apply after
7
expiry
8
Scope
9
(1) This section applies if a methodology determination (the original
10
determination) that covers an eligible offsets project expires, in
11
accordance with section 122, at any time during a crediting period
12
for the project.
13
Continuation
14
(2) Despite the expiry:
15
(a) the original determination continues to apply to the project
16
during the remainder of the crediting period as if the original
17
determination had not expired; and
18
(b) no other methodology determination applies to the project
19
during the remainder of the crediting period.
20
(3) However, if the Administrator approves, under section 130, the
21
application of another methodology determination to the project,
22
with effect from a particular time, subsection (2) does not apply to
23
the project during so much of the crediting period as occurs after
24
that time.
25
Methodology determinations Part 9
Methodology determinations Division 2
Section 126
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 157
126 Original methodology determination continues to apply after
1
variation
2
Scope
3
(1) This section applies if a methodology determination (the original
4
determination) that covers an eligible offsets project is varied,
5
under section 114, at any time during a crediting period for the
6
project.
7
Continuation
8
(2) Despite the variation, the original determination continues to apply
9
to the project during the remainder of the crediting period as if the
10
original determination had not been varied.
11
(3) However, if the Administrator approves, under section 130:
12
(a) the application of another methodology determination to the
13
project, with effect from a particular time; or
14
(b) the application of the original determination as varied to the
15
project, with effect from a particular time;
16
subsection (2) does not apply to the project during so much of the
17
crediting period as occurs after that time.
18
127 Original methodology determination continues to apply after
19
revocation
20
Scope
21
(1) This section applies if a methodology determination (the original
22
determination) that covers an eligible offsets project is revoked,
23
under section 123, at any time during a crediting period for the
24
project.
25
Continuation
26
(2) Despite the revocation:
27
(a) the original determination continues to apply to the project
28
during the remainder of the crediting period as if the original
29
determination had not been revoked; and
30
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 128
158 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) no other methodology determination applies to the project
1
during the remainder of the crediting period.
2
(3) However, if the Administrator approves, under section 130, the
3
application of another methodology determination to the project,
4
with effect from a particular time, subsection (2) does not apply to
5
the project during so much of the crediting period as occurs after
6
that time.
7
128 Request to approve application of methodology determination to
8
a project with effect from the start of a reporting period
9
(1) During a reporting period for an eligible offsets project, the project
10
proponent for the project may request the Administrator to approve
11
the application of a specified methodology determination to the
12
project with effect from the start of the reporting period.
13
(2) A request must:
14
(a) be in writing; and
15
(b) be in a form approved, in writing, by the Administrator; and
16
(c) be accompanied by such information as is specified in the
17
regulations; and
18
(d) be accompanied by such other documents (if any) as are
19
specified in the regulations; and
20
(e) be accompanied by the fee (if any) specified in the
21
regulations.
22
(3) It is immaterial whether the end of the reporting period is known
23
when the request is made.
24
(4) The approved form of request may provide for verification by
25
statutory declaration of statements in requests.
26
(5) A fee specified under paragraph (2)(e) must not be such as to
27
amount to taxation.
28
129 Further information
29
(1) The Administrator may, by written notice given to a person who
30
made a request, require the person to give the Administrator,
31
Methodology determinations Part 9
Methodology determinations Division 2
Section 130
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 159
within the period specified in the notice, further information in
1
connection with the request.
2
(2) If the person breaches the requirement, the Administrator may, by
3
written notice given to the person:
4
(a) refuse to consider the request; or
5
(b) refuse to take any action, or any further action, in relation to
6
the request.
7
130 Administrator may approve application of methodology
8
determination to a project with effect from the start of a
9
reporting period
10
Scope
11
(1) This section applies if, during a reporting period for an eligible
12
offsets project, a request under section 128 has been made for the
13
approval of the application of a specified methodology
14
determination to the project with effect from the start of the
15
reporting period.
16
Approval
17
(2) After considering the request, the Administrator may, by writing,
18
approve the application of the methodology determination to the
19
project with effect from the start of the reporting period.
20
(3) The Administrator must not give an approval under subsection (2)
21
unless the Administrator is satisfied that the project is covered by
22
the methodology determination.
23
Notification of approval
24
(4) As soon as practicable after giving an approval under
25
subsection (2), the Administrator must give a copy of the approval
26
to the person who made the request.
27
Refusal
28
(5) If the Administrator decides to refuse to approve the application of
29
the methodology determination to the project, the Administrator
30
Part 9 Methodology determinations
Division 2 Methodology determinations
Section 131
160 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
must give written notice of the decision to the person who made
1
the request.
2
Approval is not a legislative instrument
3
(6) An approval given under subsection (2) is not a legislative
4
instrument.
5
Subdivision F--Transitional
6
131 Transitional--pre-commencement application for endorsement
7
of proposal
8
Scope
9
(1) This section applies if, before the commencement of this section:
10
(a) a person applied to the Interim Domestic Offsets Integrity
11
Committee for the endorsement of a proposal for a
12
methodology determination; and
13
(b) the Committee neither:
14
(i) endorsed the proposal; nor
15
(ii) refused to endorse the proposal.
16
(2) To avoid doubt, the proposal did not have to be in the form of a
17
draft methodology determination.
18
Effect of application
19
(3) The person's application has effect, after the commencement of
20
this section, as if it were an application under section 108 for the
21
endorsement of the proposal.
22
132 Transitional--pre-commencement endorsement of proposal
23
Scope
24
(1) This section applies if:
25
(a) before the commencement of this section, a person applied to
26
the Interim Domestic Offsets Integrity Committee for the
27
Methodology determinations Part 9
Methodology determinations Division 2
Section 132
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 161
endorsement of a proposal for a methodology determination;
1
and
2
(b) before the commencement of this section, the Committee
3
endorsed the proposal; and
4
(c)
assuming
that:
5
(i) sections 112 and 113 had been in force at all material
6
times before the commencement of this section; and
7
(ii) a reference in those sections to the Domestic Offsets
8
Integrity Committee were a reference to the Interim
9
Domestic Offsets Integrity Committee; and
10
(iii) the reference in subsection 112(6) to 40 days were a
11
reference to 30 days;
12
the Interim Domestic Offsets Integrity Committee complied
13
with those sections in relation to the proposal.
14
(2) To avoid doubt, the proposal did not have to be in the form of a
15
draft methodology determination.
16
Effect of application
17
(3) The person's application has effect, after the commencement of
18
this section, as if it were an application under section 108 for the
19
endorsement of the proposal.
20
Effect of proposal
21
(4) This Act has effect as if the Domestic Offsets Integrity Committee
22
had, immediately after the commencement of this section:
23
(a) endorsed the proposal under section 112; and
24
(b) advised the Minister of the endorsement under section 113.
25
26
Part 9 Methodology determinations
Division 3 Offsets integrity standards
Section 133
162 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 3--Offsets integrity standards
1
133 Offsets integrity standards
2
(1) For the purposes of this Act, the offsets integrity standards are as
3
follows:
4
(a) a project of a kind specified in a methodology determination
5
in accordance with paragraph 106(1)(a) should be covered by
6
the additionality test regulations
;
7
(b) to the extent to which a method specified in a methodology
8
determination in accordance with paragraph 106(1)(c) or (d)
9
involves ascertaining any of the following:
10
(i) the removal of one or more greenhouse gases from the
11
atmosphere;
12
(ii) the reduction of emissions of one or more greenhouse
13
gases into the atmosphere;
14
(iii) the emission of one or more greenhouse gases into the
15
atmosphere;
16
the removal, reduction or emission, as the case may be,
17
should be:
18
(iv)
measurable;
and
19
(v) capable of being verified;
20
(c) a method specified in a methodology determination in
21
accordance with paragraph 106(1)(c) or (d) should not be
22
inconsistent with the methods set out in the National
23
Inventory Report
;
24
(d) a method specified in a methodology determination in
25
accordance with paragraph 106(1)(c) or (d) should be
26
supported by relevant scientific results published in
27
peer-reviewed literature; and
28
(e) a method specified in a methodology determination in
29
accordance with paragraph 106(1)(c) or (d) should provide
30
that, in ascertaining whichever of the following is applicable:
31
(i) the carbon dioxide equivalent net abatement amount for
32
a project;
33
(ii) the carbon dioxide equivalent net sequestration amount
34
for a project;
35
Methodology determinations Part 9
Offsets integrity standards Division 3
Section 133
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 163
there is to be a deduction of the carbon dioxide equivalence
1
of the amount that, under the determination, is taken to be the
2
total amount of greenhouse gases that are emitted from any
3
source or sources as a consequence of carrying out the
4
project;
5
(f) a method specified in a methodology determination in
6
accordance with paragraph 106(1)(c) or (d) in relation to a
7
sequestration offsets project should provide for adjustments
8
to take account of significant cyclical variations that are
9
likely to occur in the amount of carbon sequestered in the
10
relevant carbon pool on the project area or project areas
11
during:
12
(i) a 100-year period; or
13
(ii) if, at the time when the methodology determination was
14
made, another period was specified in the regulations--
15
that other period;
16
(g) to the extent to which a method specified in a methodology
17
determination in accordance with paragraph 106(1)(c) or (d)
18
involves an estimate, projection or assumption--the estimate,
19
projection or assumption should be conservative;
20
(h)
if:
21
(a) a method determined under subsection 10(3) of the
22
National Greenhouse and Energy Reporting Act 2007 is
23
a method by which the amounts of the emissions of
24
greenhouse gases from a particular source are to be
25
measured for the purposes of that Act; and
26
(b) a method specified in a methodology determination in
27
accordance with paragraph 106(1)(c) or (d) involves the
28
measurement of emissions of greenhouse gases from
29
that source;
30
the methodology determination should provide that the
31
emissions are to be measured, under the method specified in
32
the methodology determination in accordance with paragraph
33
106(1)(c) or (d), in the same way as they are measured under
34
the method determined under subsection 10(3) of the
35
National Greenhouse and Energy Reporting Act 2007.
36
Note 1:
For the additionality test, see section 41.
37
Part 9 Methodology determinations
Division 3 Offsets integrity standards
Section 133
164 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Note 2:
The permanence of sequestration is dealt with in the following
1
provisions of this Act:
2
(a) sections 16 and 17 provide for a risk of reversal buffer;
3
(b) sections 90 and 91 provide for relinquishment of Australian
4
carbon credit units in the event of a reversal of sequestration;
5
(c) Part 8 provides for carbon maintenance obligations.
6
(2) Paragraph (1)(f) does not apply to a sequestration offsets project of
7
a kind specified in the regulations.
8
(3) Subsection (2) of this section does not, by implication, limit the
9
application of subsection 13(3) of the Legislative Instruments Act
10
2003 to another instrument under this Act.
11
Conservative estimates, projections or assumptions
12
(4) The Minister may, by legislative instrument, make a determination
13
providing that a specified estimate, projection or assumption is
14
taken to be conservative for the purposes of this section.
15
Note:
For specification by class, see subsection 13(3) of the Legislative
16
Instruments Act 2003.
17
(5) The Minister may, by legislative instrument, make a determination
18
providing that a specified estimate, projection or assumption is
19
taken not to be conservative for the purposes of this section.
20
Note:
For specification by class, see subsection 13(3) of the Legislative
21
Instruments Act 2003.
22
Methods determined under the National Greenhouse and Energy
23
Reporting Act 2007
24
(6) To avoid doubt, if a methodology determination complies with
25
paragraph (1)(h) in relation to emissions of greenhouses gases from
26
a particular source, the method specified in the methodology
27
determination in accordance with paragraph 106(1)(c), to the
28
extent that it involves the measurement of emissions of greenhouse
29
gases from that source, is taken, for the purposes of this section, to
30
be supported by relevant scientific results published in
31
peer-reviewed literature.
32
33
Multiple project proponents Part 10
Introduction Division 1
Section 134
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 165
Part 10--Multiple project proponents
1
Division 1--Introduction
2
134 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If there are multiple project proponents for an offsets project,
5
a reference in this Act to the project proponent is to be read as
6
a reference to each of the project proponents.
7
·
Multiple project proponents for an offsets project may
8
nominate a nominee for the purposes of:
9
(a)
the service of documents; and
10
(b)
the taking of eligible voluntary actions (for
11
example, the making of an application).
12
·
If there are multiple project proponents for an offsets project,
13
obligations are imposed on each of the proponents, but may be
14
discharged by any of the proponents.
15
16
Part 10 Multiple project proponents
Division 2 References to project proponents
Section 135
166 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--References to project proponents
1
135 References to project proponents
2
Sequestration offsets projects
3
(1)
If:
4
(a) an offsets project is a sequestration offsets project; and
5
(b) there are 2 or more persons (the multiple project proponents)
6
who:
7
(i) have joint responsibility for carrying out the project; and
8
(ii) jointly have the legal right to carry out the project; and
9
(iii) jointly hold the applicable carbon sequestration right in
10
relation to the project area, or each of the project areas;
11
then:
12
(c) for the purposes of this Act, each of the multiple project
13
proponents is a project proponent for the project; and
14
(d) a reference in:
15
(i) this Act; or
16
(ii) the regulations; or
17
(iii) another instrument made under this Act;
18
to the project proponent for the offsets project is to be read as
19
a reference to each of the multiple project proponents.
20
Emissions avoidance offsets projects
21
(2)
If:
22
(a) an offsets project is an emissions avoidance offsets project;
23
and
24
(b) there are 2 or more persons (the multiple project proponents)
25
who:
26
(i) have joint responsibility for carrying out the project; and
27
(ii) jointly have the legal right to carry out the project;
28
then:
29
(c) for the purposes of this Act, each of the multiple project
30
proponents is a project proponent for the project; and
31
(d) a reference in:
32
Multiple project proponents Part 10
References to project proponents Division 2
Section 135
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 167
(i) this Act; or
1
(ii) the regulations; or
2
(iii) any other instrument under this Act;
3
to the project proponent for the offsets project is to be read as
4
a reference to each of the multiple project proponents.
5
6
Part 10 Multiple project proponents
Division 3 Nominee of multiple project proponents
Section 136
168 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 3--Nominee of multiple project proponents
1
136 Nomination of nominee by multiple project proponents
2
Scope
3
(1) This section applies to an offsets project if there are 2 or more
4
project proponents (the multiple project proponents) for the
5
project.
6
Nomination
7
(2) The multiple project proponents may, by joint written notice given
8
to the Administrator, nominate one of them as being their nominee
9
in relation to the offsets project.
10
(3) The joint written notice must be in a form approved, in writing, by
11
the Administrator.
12
(4) A notice under subsection (2) may accompany an application under
13
this Act or the regulations. In this case, the nomination is taken to
14
have been given immediately before the application was made.
15
Revocation of nomination
16
(5)
If:
17
(a) a person has been nominated under subsection (2) in relation
18
to an eligible offsets project; and
19
(b) one of the project proponents for the eligible offsets project,
20
by written notice given to the Administrator, revokes the
21
nomination;
22
the nomination ceases to be in force.
23
Cessation of nomination--nominee ceases to be a project
24
proponent
25
(6)
If:
26
(a) a person has been nominated under subsection (2) in relation
27
to an eligible offsets project; and
28
(b) the nominee ceases to be one of the project proponents for
29
the eligible offsets project;
30
Multiple project proponents Part 10
Nominee of multiple project proponents Division 3
Section 137
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 169
the nomination ceases to be in force.
1
137 Service of documents on nominee
2
Scope
3
(1) This section applies if there are 2 or more project proponents (the
4
multiple project proponents) for an offsets project.
5
Service of documents
6
(2) For the purposes of this Act, if:
7
(a) the multiple project proponents have nominated a nominee
8
under subsection 136(2) in relation to the project; and
9
(b) the nomination is in force; and
10
(c) a document relating to the eligible offsets project is required
11
or permitted by this Act to be given to the project proponent;
12
and
13
(d) the document is given to the nominee;
14
the document is taken to have been given to each of the multiple
15
project proponents.
16
138 Eligible voluntary action taken by nominee
17
Scope
18
(1) This section applies if there are 2 or more project proponents (the
19
multiple project proponents) for an offsets project.
20
Eligible voluntary action to be taken by nominee
21
(2)
If:
22
(a) the multiple project proponents have nominated a nominee
23
under subsection 136(2) in relation to the project; and
24
(b) the nomination is in force; and
25
(c) the nominee takes an eligible voluntary action; and
26
(d) the application, nomination, request or notice to which the
27
eligible voluntary action relates is expressed to be made,
28
Part 10 Multiple project proponents
Division 3 Nominee of multiple project proponents
Section 138
170 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
withdrawn or given, as the case may be, on behalf of the
1
multiple project proponents;
2
this Act and the regulations have effect as if:
3
(e) the application, nomination, request or notice to which the
4
eligible voluntary action relates were made, withdrawn or
5
given, as the case may be, by the multiple project proponents
6
jointly; and
7
(f) if the eligible voluntary action is the making of an application
8
under section 22 for the declaration of an offsets project as an
9
eligible offsets project--each reference in subparagraphs
10
27(4)(h)(vii) and (i)(v) to the applicant holding the applicable
11
carbon sequestration right in relation to the project were a
12
reference to the multiple project proponents jointly holding
13
the applicable carbon sequestration right in relation to the
14
project; and
15
(g) if the eligible voluntary action is the making of an
16
application, under regulations made for the purposes of
17
subsection 29(1), for the variation of the declaration of an
18
eligible offsets project--each reference (if any) in those
19
regulations to the applicant holding the applicable carbon
20
sequestration right in relation to the varied project were a
21
reference to the multiple project proponents jointly holding
22
the applicable carbon sequestration right in relation to the
23
varied project; and
24
(h) if the eligible voluntary action is the making of an
25
application--a reference in this Act or the regulations (other
26
than a reference mentioned in paragraph (f) or (g)) to the
27
applicant were a reference to each of the multiple project
28
proponents.
29
(3) The multiple project proponents are not entitled to take an eligible
30
voluntary action except in accordance with subsection (2).
31
Multiple project proponents Part 10
Nominee of multiple project proponents Division 3
Section 139
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 171
139 Unilateral revocation of declaration of eligible offsets project--
1
failure of multiple project proponents to nominate a
2
nominee
3
(1) The regulations may make provision for and in relation to
4
empowering the Administrator to revoke a declaration under
5
section 27 in relation to an offsets project.
6
(2) Regulations made for the purposes of subsection (1) must not
7
empower the Administrator to revoke a declaration unless:
8
(a) there are 2 or more project proponents (the multiple project
9
proponents) for the offsets project; and
10
(b) a declaration is in force under section 27 in relation to the
11
project; and
12
(c) the multiple project proponents have nominated a person
13
under subsection 136(2); and
14
(d) the nomination ceases to be in force; and
15
(e) 90 days pass, and no new nomination under subsection
16
136(2) is made by the multiple project proponents.
17
(3) Regulations made for the purposes of subsection (1) must require
18
the Administrator to consult the multiple project proponents before
19
deciding to revoke a declaration.
20
140 Designation of nominee account
21
Scope
22
(1) This section applies if:
23
(a) there are 2 or more project proponents (the multiple project
24
proponents) for an eligible offsets project; and
25
(b) the multiple project proponents have nominated a nominee
26
under subsection 136(2) in relation to the project; and
27
(c) the nomination is in force.
28
Request for nominee account
29
(2) The nominee may:
30
Part 10 Multiple project proponents
Division 3 Nominee of multiple project proponents
Section 141
172 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) request the Administrator, under regulations made for the
1
purposes of subsection 10(1) of the Australian National
2
Registry of Emissions Units Act 2011, to open a Registry
3
account in the name of the nominee; and
4
(b) request the Administrator to designate that account as the
5
nominee account for the eligible offsets project.
6
(3) A request under paragraph (2)(b) must:
7
(a) be in writing; and
8
(b) be in a form approved, in writing, by the Administrator; and
9
(c) be accompanied by such information as is specified in the
10
regulations; and
11
(d) be accompanied by such other documents (if any) as are
12
specified in the regulations; and
13
(e) be accompanied by the fee (if any) specified in the
14
regulations.
15
(4) The approved form of request may provide for verification by
16
statutory declaration of statements in requests.
17
(5) A fee specified under paragraph (3)(e) must not be such as to
18
amount to taxation.
19
Designation of nominee account
20
(6) After considering a request under paragraph (2)(b), the
21
Administrator may designate the Registry account as the nominee
22
account for the for the eligible offsets project.
23
141 Issue of Australian carbon credit units to nominee account
24
Scope
25
(1) This section applies if there are 2 or more project proponents (the
26
multiple project proponents) for an eligible offsets project.
27
Application for issue of Australian carbon credit units
28
(2)
If:
29
Multiple project proponents Part 10
Nominee of multiple project proponents Division 3
Section 141
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 173
(a) the multiple project proponents have nominated a nominee
1
under subsection 136(2) in relation to the project; and
2
(b) the nomination is in force; and
3
(c) a nominee account for the project is kept in the name of the
4
nominee; and
5
(d) the nominee makes an application under section 12 for the
6
issue of a certificate of entitlement in respect of the project
7
for a reporting period;
8
paragraph 13(1)(c) does not apply to the application.
9
Note:
Paragraph 13(1)(c) requires the application to set out the account
10
number of a Registry account.
11
Issue of Australian carbon credit units
12
(3)
If:
13
(a) the multiple project proponents have nominated a nominee
14
under subsection 136(2) in relation to the project; and
15
(b) the nomination is in force; and
16
(c) a nominee account for the project is kept in the name of the
17
nominee; and
18
(d) apart from this subsection, the Administrator is required
19
under section 11 to issue one or more Australian carbon
20
credit units to the multiple project proponents in relation to
21
the eligible offsets project;
22
then:
23
(e) the Administrator must comply with the requirement by
24
issuing the units to the nominee and making an entry for the
25
units in the nominee account; and
26
(f) subsections 11(5) and (6) do not apply to the issue of the
27
units.
28
(4)
If:
29
(a) no nomination made by the multiple project proponents
30
under subsection 136(2) in relation to the project is in force;
31
and
32
(b) apart from this subsection, the Administrator is required
33
under section 11 to issue one or more Australian carbon
34
Part 10 Multiple project proponents
Division 3 Nominee of multiple project proponents
Section 142
174 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
credit units to the multiple project proponents in relation to
1
the eligible offsets project;
2
the Administrator must not issue the units.
3
142 Units held in nominee account
4
Scope
5
(1) This section applies to a Registry account that has been designated
6
as the nominee account for an eligible offsets project.
7
Units held in account
8
(2) Australian carbon credit units held in the nominee account are held
9
on trust for the persons who are, for the time being, the project
10
proponents for the project.
11
143 Instructions in relation to nominee account
12
Scope
13
(1) This section applies to a Registry account that has been designated
14
as the nominee account for an eligible offsets project.
15
Instructions by nominee
16
(2) A person is not entitled to give instructions under:
17
(a) this Act; or
18
(b)
the
Australian National Registry of Emissions Units Act
19
2011;
20
to the Administrator in relation to the nominee account unless:
21
(c) the account is kept in the name of the person; and
22
(d) the person has been nominated as a nominee under
23
subsection 136(2) in relation to the project; and
24
(e) the nomination is in force.
25
(3) If an instruction complies with subsection (2), the instruction is
26
taken to have been given on behalf of the project proponents for
27
the project.
28
Multiple project proponents Part 10
Nominee of multiple project proponents Division 3
Section 144
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 175
144 Updating nominee account details on change of nominee
1
Scope
2
(1) This section applies if:
3
(a) there are 2 or more project proponents (the multiple project
4
proponents) for an eligible offsets project; and
5
(b) the multiple project proponents have nominated a nominee
6
under subsection 136(2) in relation to the project; and
7
(c) a nominee account for the project is kept in the name of the
8
nominee; and
9
(d) the nomination ceases to be in force; and
10
(e) a new nomination of a nominee (the new nominee) is made
11
under subsection 136(2).
12
Updating account details
13
(2) As soon as practicable after receiving the new nomination, the
14
Administrator must make the necessary alterations in the Registry
15
to substitute the name of the new nominee for the name of the old
16
nominee.
17
18
Part 10 Multiple project proponents
Division 4 Obligations of multiple project proponents
Section 145
176 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 4--Obligations of multiple project proponents
1
145 Obligations of multiple project proponents
2
Scope
3
(1) This section applies if:
4
(a) there are 2 or more project proponents (the multiple project
5
proponents) for the eligible offsets project; and
6
(b) any of the following:
7
(i)
this
Act;
8
(ii)
the
regulations;
9
(iii) another instrument made under this Act;
10
imposes an obligation on the project proponent for the
11
project.
12
Obligations of project proponent
13
(2) The obligation is imposed on each of the multiple project
14
proponents, but may be discharged by any of the multiple project
15
proponents.
16
(3) The regulations may exempt a specified obligation from the scope
17
of subsection (2).
18
19
Australian carbon credit units Part 11
Introduction Division 1
Section 146
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 177
Part 11--Australian carbon credit units
1
Division 1--Introduction
2
146 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator may issue Australian carbon credit units.
5
·
An Australian carbon credit unit is generally transferable.
6
·
Entries may be made in Registry accounts for Australian
7
carbon credit units.
8
9
Part 11 Australian carbon credit units
Division 2 Issue of Australian carbon credit units
Section 147
178 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Issue of Australian carbon credit units
1
147 Issue of Australian carbon credit units
2
The Administrator may, on behalf of the Commonwealth, issue
3
units, to be known as Australian carbon credit units.
4
148 How Australian carbon credit units are to be issued
5
(1) The Administrator is to issue an Australian carbon credit unit to a
6
person by making an entry for the unit in a Registry account kept
7
by the person.
8
(2) The Administrator must not issue an Australian carbon credit unit
9
to a person unless the person has a Registry account.
10
149 Circumstances in which Australian carbon credit units may be
11
issued
12
The Administrator must not issue an Australian carbon credit unit
13
otherwise than in accordance with Part 2.
14
15
Australian carbon credit units Part 11
Property in, and transfer of, Australian carbon credit units Division 3
Section 150
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 179
Division 3--Property in, and transfer of, Australian carbon
1
credit units
2
150 An Australian carbon credit unit is personal property
3
An Australian carbon credit unit is personal property and, subject
4
to sections 152 and 153, is transmissible by assignment, by will
5
and by devolution by operation of law.
6
151 Transfer of Australian carbon credit units
7
For the purposes of this Act, if there is an entry for an Australian
8
carbon credit unit in a Registry account (the first Registry account)
9
kept by a person (the first person):
10
(a)
a
transfer of the unit from the first Registry account to a
11
Registry account kept by another person consists of:
12
(i) the removal of the entry for the unit from the first
13
Registry account; and
14
(ii) the making of an entry for the unit in the Registry
15
account kept by the other person; and
16
(b)
the
transfer of the unit from the first Registry account to
17
another Registry account kept by the first person consists of:
18
(i) the removal of the entry for the unit from the first
19
Registry account; and
20
(ii) the making of an entry for the unit in the other Registry
21
account kept by the first person.
22
152 Transmission of Australian carbon credit units by assignment
23
(1) A transmission by assignment of an Australian carbon credit unit is
24
of no force until:
25
(a) the transferor, by electronic notice transmitted to the
26
Administrator, instructs the Administrator to transfer the unit
27
from the relevant Registry account kept by the transferor to a
28
Registry account kept by the transferee; and
29
(b) the Administrator complies with that instruction.
30
(2) An instruction under paragraph (1)(a) must set out:
31
Part 11 Australian carbon credit units
Division 3 Property in, and transfer of, Australian carbon credit units
Section 153
180 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the account number of the transferor's Registry account; and
1
(b) the account number of the transferee's Registry account.
2
(3) If the Administrator receives an instruction under paragraph (1)(a),
3
the Administrator must comply with the instruction as soon as
4
practicable after receiving it.
5
(4) The Registry must set out a record of each instruction under
6
paragraph (1)(a).
7
(5) If the transferor is the Commonwealth, the Minister may give an
8
instruction under subsection (1) on behalf of the transferor.
9
153 Transmission of Australian carbon credit units by operation of
10
law etc.
11
Scope
12
(1) This section applies if an Australian carbon credit unit is
13
transmitted from a person (the transferor) to another person (the
14
transferee) by any lawful means other than by a transfer under
15
section 152.
16
Declaration of transmission
17
(2) The transferee must, within 90 days after the transmission, give the
18
Administrator:
19
(a) a declaration of transmission; and
20
(b) such evidence of transmission as is specified in the
21
regulations.
22
(3) A declaration of transmission must be made in accordance with the
23
regulations.
24
(4) If the transferee does not already have a Registry account, the
25
declaration of transmission must be accompanied by a request,
26
under regulations made for the purposes of subsection 10(1) of the
27
Australian National Registry of Emissions Units Act 2011, for the
28
Administrator to open a Registry account in the name of the
29
transferee.
30
Australian carbon credit units Part 11
Property in, and transfer of, Australian carbon credit units Division 3
Section 153
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 181
(5) If the Administrator is satisfied that special circumstances warrant
1
the extension of the 90-day period mentioned in subsection (2), the
2
Administrator may extend that period.
3
(6) The Administrator may exercise the power conferred by
4
subsection (5):
5
(a) on written application being made to the Administrator by the
6
transferee; or
7
(b) on the Administrator's own initiative.
8
Transfer of unit--transferee already has a Registry account
9
(7) If the transferee already has a Registry account, the Administrator
10
must, as soon as practicable after receiving the declaration of
11
transmission, transfer the unit from the relevant Registry account
12
kept by the transferor to a Registry account kept by the transferee.
13
Transfer of unit--transferee does not have a Registry account
14
(8)
If:
15
(a) the transferee does not already have a Registry account; and
16
(b) in accordance with the request under regulations made for the
17
purposes of subsection 10(1) of the Australian National
18
Registry of Emissions Units Act 2011, the Administrator has
19
opened a Registry account in the name of the transferee;
20
the Administrator must, as soon as practicable after opening the
21
Registry account, transfer the unit from the relevant Registry
22
account kept by the transferor to the Registry account kept by the
23
transferee.
24
Record
25
(9) If the Administrator transfers the unit under subsection (7) or (8),
26
the Registry must set out a record of the declaration of
27
transmission.
28
When the transferee is the Commonwealth
29
(10) If the transferee is the Commonwealth, the Minister may give:
30
(a) the declaration of transmission; and
31
Part 11 Australian carbon credit units
Division 3 Property in, and transfer of, Australian carbon credit units
Section 154
182 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) the evidence mentioned in paragraph (2)(b);
1
on behalf of the transferee.
2
Notification
3
(11)
If:
4
(a) the Administrator decides to:
5
(i) extend the 90-day period mentioned in subsection (2);
6
or
7
(ii) refuse to extend the 90-day period mentioned in
8
subsection (2); and
9
(b) the Administrator made the decision in response to an
10
application;
11
the Administrator must give written notice of the decision to the
12
applicant.
13
154 Outgoing international transfers of Australian carbon credit
14
units
15
Scope
16
(1) This section applies if:
17
(a) a person (the first person) keeps a Registry account in which
18
there is an entry for an Australian carbon credit unit; and
19
(b) the first person, by electronic notice transmitted to the
20
Administrator, instructs the Administrator to transfer the unit
21
from the Registry account to:
22
(i) a foreign account kept by another person; or
23
(ii) a foreign account kept by the first person; and
24
(c) if the unit is a Kyoto Australian carbon credit unit--the
25
instruction does not contravene regulations made for the
26
purposes of section 155 of this Act or subsection 41(3) of the
27
Australian National Registry of Emissions Units Act 2011.
28
(2) An instruction under subsection (1) must set out:
29
(a) the account number of the relevant Registry account kept by
30
the first person; and
31
(b) such other information as is specified in the regulations.
32
Australian carbon credit units Part 11
Property in, and transfer of, Australian carbon credit units Division 3
Section 155
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 183
Compliance with instruction
1
(3) If the Administrator receives an instruction under subsection (1),
2
the Administrator must take such steps as are required by the
3
regulations.
4
(4) Regulations made for the purposes of subsection (3) may require
5
the Administrator to remove the entry for the unit from the relevant
6
Registry account kept by the first person.
7
(5) If the unit is a Kyoto Australian carbon credit unit, regulations
8
made for the purposes of subsection (3) may require the
9
Administrator to transfer an assigned amount unit from a
10
Commonwealth holding account to a voluntary cancellation
11
account.
12
(6) If the Administrator takes steps under subsection (3) in relation to
13
an instruction, the Registry must set out a record of the instruction.
14
(7) If the first person is the Commonwealth, the Minister may give an
15
instruction under subsection (1) on behalf of the first person.
16
155 Restrictions on outgoing international transfers of Kyoto
17
Australian carbon credit units
18
The regulations may prevent, restrict or limit the transfer of Kyoto
19
Australian carbon credit units from a Registry account to a foreign
20
account.
21
156 Transfer of Australian carbon credit units to another Registry
22
account held by the transferor
23
Scope
24
(1) This section applies if:
25
(a) a person keeps a Registry account (the first Registry
26
account) in which there is an entry for an Australian carbon
27
credit unit; and
28
(b) the person, by electronic notice transmitted to the
29
Administrator, instructs the Administrator to transfer the unit
30
Part 11 Australian carbon credit units
Division 3 Property in, and transfer of, Australian carbon credit units
Section 157
184 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
from the first Registry account to another Registry account
1
kept by the person; and
2
(c) the instruction sets out:
3
(i) the account number of the first Registry account; and
4
(ii) the account number of the other Registry account.
5
Compliance with instruction
6
(2) If a person gives the Administrator an instruction under
7
paragraph (1)(b), the Administrator must comply with the
8
instruction as soon as practicable after receiving it.
9
(3) The Registry must set out a record of the instruction under
10
paragraph (1)(b).
11
157 Exchange of Kyoto Australian carbon credit units for Kyoto
12
units
13
Scope
14
(1) This section applies if:
15
(a) a person keeps a Registry account in which there is an entry
16
for a Kyoto Australian carbon credit unit issued to the
17
person; and
18
(b) before 1 July 2013, the person, by electronic notice
19
transmitted to the Administrator, instructs the Administrator
20
to exchange the unit for whichever of the following units is
21
specified in the instruction:
22
(i) an assigned amount unit;
23
(ii) if the Kyoto Australian carbon credit unit was issued in
24
respect of a sequestration offsets project--a removal
25
unit;
26
(iii) if the Kyoto Australian carbon credit unit was issued in
27
respect of a joint implementation project--an emission
28
reduction unit; and
29
(c) the instruction sets out the account number of the Registry
30
account; and
31
(d) the conditions (if any) specified in the regulations are
32
satisfied; and
33
Australian carbon credit units Part 11
Property in, and transfer of, Australian carbon credit units Division 3
Section 158
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 185
(e) the instruction does not contravene regulations made for the
1
purposes of subsection 41(4) of the Australian National
2
Registry of Emissions Units Act 2011.
3
Compliance with instruction
4
(2) If the Administrator receives an instruction under paragraph (1)(b),
5
the Administrator must take such steps as are required by the
6
regulations.
7
(3) Regulations made for the purposes of subsection (2) may require
8
the Administrator to:
9
(a) cancel the Kyoto Australian carbon credit unit; and
10
(b) remove the entry for the Kyoto Australian carbon credit unit
11
from the Registry account; and
12
(c) transfer an assigned amount unit, a removal unit, or an
13
emission reduction unit, as the case requires, from a
14
Commonwealth holding account to the Registry account.
15
(4) For the purposes of this Act, the assigned amount unit, removal
16
unit or emission reduction unit transferred to the Registry account
17
is taken to have been exchanged for the Kyoto Australian carbon
18
credit unit.
19
(5) The Registry must set out a record of the instruction under
20
paragraph (1)(b).
21
158 Equitable interests in relation to an Australian carbon credit
22
unit
23
(1) This Act does not affect:
24
(a) the creation of; or
25
(b) any dealings with; or
26
(c) the enforcement of;
27
equitable interests in relation to an Australian carbon credit unit.
28
(2) Subsection (1) has effect subject to:
29
(a) section 50; and
30
(b) regulations made for the purposes of section 51; and
31
(c)
section
142.
32
Part 11 Australian carbon credit units
Division 3 Property in, and transfer of, Australian carbon credit units
Section 158
186 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(3) This section is enacted for the avoidance of doubt.
1
2
Publication of information Part 12
Introduction Division 1
Section 159
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 187
Part 12--Publication of information
1
Division 1--Introduction
2
159 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator must publish certain information about the
5
operation of this Act.
6
7
Part 12 Publication of information
Division 2 Information about units
Section 160
188 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Information about units
1
160 Information about issue of Australian carbon credit units
2
As soon as practicable after Australian carbon credit units are
3
issued to a person, the Administrator must publish on the
4
Administrator's website:
5
(a) the name of the person; and
6
(b) the total number of Australian carbon credit units issued to
7
the person.
8
161 Quarterly reports about issue of Australian carbon credit units
9
As soon as practicable after the end of each quarter, the
10
Administrator must publish on the Administrator's website the
11
total number of Australian carbon credit units issued during the
12
quarter.
13
162 Publication of concise description of the characteristics of
14
Australian carbon credit units
15
The Administrator must:
16
(a) before 31 December 2011, publish on the Administrator's
17
website a statement setting out a concise description of the
18
characteristics of Australian carbon credit units; and
19
(b) keep that statement up-to-date.
20
21
Publication of information Part 12
Information about voluntary cancellation of units Division 3
Section 163
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 189
Division 3--Information about voluntary cancellation of
1
units
2
163 Information about number of voluntarily cancelled Australian
3
carbon credit units
4
As soon as practicable after one or more Australian carbon credit
5
units held by a person are cancelled under section 173, the
6
Administrator must publish on the Administrator's website:
7
(a) the name of the person; and
8
(b) the total number of Australian carbon credit units cancelled.
9
10
Part 12 Publication of information
Division 4 Information about relinquishment requirements
Section 164
190 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 4--Information about relinquishment
1
requirements
2
164 Information about relinquishment requirements
3
Scope
4
(1) This section applies if, under this Act, a person is required, during
5
a financial year, to relinquish a particular number of Australian
6
carbon credit units.
7
Relinquishment requirement
8
(2) The Administrator must publish on the Administrator's website:
9
(a) the name of the person; and
10
(b) details of the relinquishment requirement.
11
(3) If any of the following paragraphs applies:
12
(a) the decision to require the person to relinquish a specified
13
number of Australian carbon credit units is being
14
reconsidered by the Administrator under section 242;
15
(b) the decision to require the person to relinquish a specified
16
number of Australian carbon credit units has been affirmed or
17
varied by the Administrator under section 242, and the
18
decision as so affirmed or varied is the subject of an
19
application for review by the Administrative Appeals
20
Tribunal;
21
(c) the decision to require the person to relinquish a specified
22
number of Australian carbon credit units is the subject of an
23
application for review by the Administrative Appeals
24
Tribunal;
25
the Administrator must:
26
(d) publish an appropriate annotation on the Administrator's
27
website; and
28
(e) if paragraph (a) applies--when the Administrator notifies the
29
applicant for reconsideration of the Administrator's decision
30
on the reconsideration, the Administrator must publish an
31
appropriate annotation on the Administrator's website; and
32
Publication of information Part 12
Information about relinquishment requirements Division 4
Section 165
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 191
(f) if paragraph (b) or (c) applies--when the review by the
1
Administrative Appeals Tribunal (including any court
2
proceedings arising out of the review) has been finalised, the
3
Administrator must publish an appropriate annotation on the
4
Administrator's website.
5
165 Information about unpaid administrative penalties
6
Scope
7
(1) This section applies if:
8
(a) under this Act, a person is required to relinquish a particular
9
number of Australian carbon credit units; and
10
(b) during a financial year, an amount (the penalty amount)
11
payable by the person under section 179 in relation to
12
non-compliance with the relinquishment requirement remains
13
unpaid after the time when the penalty amount became due
14
for payment.
15
Penalty amount
16
(2) The Administrator must publish on the Administrator's website:
17
(a) the name of the person; and
18
(b) details of the unpaid penalty amount.
19
166 Information about number of relinquished units
20
Scope
21
(1) This section applies if:
22
(a) under this Act, a person is required to relinquish a particular
23
number of Australian carbon credit units; and
24
(b) during a financial year, the person relinquishes one or more
25
Australian carbon credit units in order to comply with the
26
requirement.
27
Australian carbon credit units relinquished
28
(2) As soon as practicable after receiving the relinquishment notice,
29
the Administrator must publish on the Administrator's website:
30
Part 12 Publication of information
Division 4 Information about relinquishment requirements
Section 166
192 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the name of the person; and
1
(b) the total number of Australian carbon credit units
2
relinquished.
3
4
Publication of information Part 12
Register of Offsets Projects Division 5
Section 167
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 193
Division 5--Register of Offsets Projects
1
167 Register of Offsets Projects
2
(1) The Administrator must keep a register, to be known as the
3
Register of Offsets Projects.
4
(2) The Register of Offsets Projects is to be maintained by electronic
5
means.
6
(3) The Register of Offsets Projects is to be made available for
7
inspection on the Administrator's website.
8
(4) The Administrator must ensure that the Register of Offsets Projects
9
is up-to-date.
10
168 Entries in the Register
11
(1) The Register of Offsets Projects must set out, for each eligible
12
offsets project:
13
(a) the name of the project; and
14
(b) the project area or project areas; and
15
(c) a description of the project; and
16
(d) whether the project is a joint implementation project; and
17
(e) the location of the project; and
18
(f) the project proponent for the project; and
19
(g) the name of the applicable methodology determination; and
20
(h) whether the relevant declaration under section 27 is subject to
21
a condition that all relevant regulatory approvals must be
22
obtained before the end of the first crediting period for the
23
project; and
24
(i) if the project area, or any of the project areas, is covered by a
25
regional natural resource management plan--whether the
26
project is consistent with the plan; and
27
(j) whether the project is subject to the voluntary automatic unit
28
cancellation regime;
29
(k) if any Kyoto Australian carbon credit units have been issued
30
in relation to the project in accordance with Part 2:
31
(i) the total number of units so issued; and
32
Part 12 Publication of information
Division 5 Register of Offsets Projects
Section 168
194 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(ii) the financial year, or each of the financial years, in
1
which those units were so issued; and
2
(iii) the name of the person, or each of the persons, to whom
3
those units have been issued; and
4
(iv) if any of those units have been exchanged for assigned
5
amount units--the total number of units so exchanged,
6
and the financial year, or each of the financial years, in
7
which those units were so exchanged; and
8
(v) if any of those units have been exchanged for removal
9
units--the total number of units so exchanged, and the
10
financial year, or each of the financial years, in which
11
those units were so exchanged; and
12
(vi) if any of those units have been exchanged for emission
13
reduction units--the total number of units so
14
exchanged, and the financial year, or each of the
15
financial years, in which those units were so exchanged;
16
and
17
(l) if any non-Kyoto Australian carbon credit units have been
18
issued in relation to the project in accordance with Part 2:
19
(i) the total number of units so issued; and
20
(ii) the financial year, or each of the financial years, in
21
which those units were so issued; and
22
(iii) the name of the person, or each of the persons, to whom
23
those units have been issued; and
24
(m) if any Australian carbon credit units have been relinquished
25
in order to comply with a requirement under Part 7 in relation
26
to the project--the total number of units so relinquished; and
27
(n) if the project area or project areas are subject to a carbon
28
maintenance obligation:
29
(i) a statement to that effect; and
30
(ii) the net total number of Australian carbon credit units
31
issued in relation to the project in accordance with
32
Part 2; and
33
(o)
if:
34
(i) the project proponent for the project has requested the
35
Administrator that particular information about the
36
environmental benefits, or community benefits, of the
37
project be set out in the Register of Offsets Projects; and
38
Publication of information Part 12
Register of Offsets Projects Division 5
Section 169
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 195
(ii) the request has not been withdrawn; and
1
(iii) the requested information meets the requirements
2
specified in the regulations;
3
the requested information; and
4
(p) if the project is a joint implementation project--such other
5
information relating to the project as is specified in the
6
regulations; and
7
(q) such other information (if any) relating to the project as the
8
Administrator considers appropriate.
9
(2) Paragraph (1)(b) has effect subject to section 169.
10
(3) If one or more areas of land that were formerly a project area or
11
project areas of an eligible offsets project are subject to a carbon
12
maintenance obligation, the Register of Offsets Projects must:
13
(a) set out a statement to that effect; and
14
(b) identify the area or areas of land; and
15
(c) set out the net total number of Australian carbon credit units
16
issued in relation to the project in accordance with Part 2.
17
(4) Regulations made for the purposes of paragraph (1)(p) must be
18
consistent with the Kyoto rules.
19
169 Requests for information about project area not to be set out in
20
the Register
21
(1) The Register of Offsets Projects must not set out the project area or
22
project areas for an eligible offsets project if:
23
(a) the project proponent for the project has requested the
24
Administrator not to set out the project area or project areas
25
in the Register of Offsets Projects; and
26
(b) the Administrator is satisfied that:
27
(i) the setting out of the project area or project areas could
28
reasonably be expected to substantially prejudice the
29
commercial interests of the project proponent or another
30
person; and
31
(ii) the prejudice outweighs the public interest in the setting
32
out of the project area or project areas.
33
Part 12 Publication of information
Division 5 Register of Offsets Projects
Section 169
196 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(2) A request under subsection (1) must:
1
(a) be in writing; and
2
(b) be in a form approved, in writing, by the Administrator.
3
(3) The Administrator must take all reasonable steps to ensure that a
4
decision is made on the request within 30 days after the request
5
was made.
6
(4) If the Administrator decides to refuse the request, the
7
Administrator must give written notice of the decision to the
8
project proponent.
9
10
Fraudulent conduct Part 13
Section 170
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 197
Part 13--Fraudulent conduct
1
2
170 Simplified outline
3
The following is a simplified outline of this Part:
4
·
If a person is convicted of an offence relating to fraudulent
5
conduct, and the issue of Australian carbon credit units is
6
attributable to the commission of the offence, a court may
7
order the person to relinquish a specified number of Australian
8
carbon credit units.
9
171 Units issued as a result of fraudulent conduct--court may order
10
relinquishment
11
Scope
12
(1) This section applies if:
13
(a) one or more Australian carbon credit units were issued to a
14
person on a particular occasion; and
15
(b) the person has been convicted of an offence against:
16
(i) section 134.1 of the Criminal Code; or
17
(ii) section 134.2 of the Criminal Code; or
18
(iii) section 135.1 of the Criminal Code; or
19
(iv) section 135.2 of the Criminal Code; or
20
(v) section 135.4 of the Criminal Code; or
21
(vi) section 136.1 of the Criminal Code; or
22
(vii) section 137.1 of the Criminal Code; or
23
(viii) section 137.2 of the Criminal Code; and
24
(c) an appropriate court is satisfied that the issue of any or all of
25
the units was directly or indirectly attributable to the
26
commission of the offence.
27
Note: For
appropriate court, see subsection (8).
28
Part 13 Fraudulent conduct
Section 171
198 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Relinquishment
1
(2) The court may, on application made by the Director of Public
2
Prosecutions or the Administrator, order the person:
3
(a) to relinquish a specified number of:
4
(i) Australian carbon credit units; or
5
(ii) Kyoto Australian carbon credit units; or
6
(iii) non-Kyoto Australian carbon credit units;
7
not exceeding the number of Australian carbon credit units
8
issued as mentioned in paragraph (1)(a); and
9
(b) to do so by a specified time.
10
Note 1:
See also section 177 (transfer of certain units instead of
11
relinquishment of Kyoto Australian carbon credit units).
12
Note 2:
See also section 178 (transfer of certain units instead of
13
relinquishment of non-Kyoto Australian carbon credit units).
14
Compliance
15
(3) The person must comply with an order under subsection (2).
16
Note:
An administrative penalty is payable under section 179 for
17
non-compliance with a relinquishment requirement.
18
(4) The person does not comply with an order under subsection (2)
19
unless the notice of relinquishment under section 175 specifies the
20
order.
21
(5) To avoid doubt, the person is required to comply with an order
22
under subsection (2) even if:
23
(a) the person is not the registered holder of any Australian
24
carbon credit units; or
25
(b) the person is not the registered holder of the number of
26
Australian carbon credit units required to be relinquished; or
27
(c) if the order requires the person to relinquish Kyoto Australian
28
carbon credit units:
29
(i) the person is not the registered holder of any Kyoto
30
Australian carbon credit units; or
31
(ii) the person is not the registered holder of the number of
32
Kyoto Australian carbon credit units required to be
33
relinquished; or
34
Fraudulent conduct Part 13
Section 171
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 199
(d) if the order requires the person to relinquish non-Kyoto
1
Australian carbon credit units:
2
(i) the person is not the registered holder of any non-Kyoto
3
Australian carbon credit units; or
4
(ii) the person is not the registered holder of the number of
5
non-Kyoto Australian carbon credit units required to be
6
relinquished.
7
Conviction
8
(6) It is immaterial whether the conviction occurred before, at or after
9
the commencement of this section.
10
Copy of order
11
(7) A copy of an order under subsection (2) is to be given to the
12
Administrator.
13
Appropriate court
14
(8) For the purposes of this section, each of the following courts is an
15
appropriate court:
16
(a) the court that convicted the person of the offence;
17
(b)
the
Federal
Court;
18
(c) the Supreme Court of a State or Territory.
19
Spent convictions
20
(9) Nothing in this section affects the operation of Part VIIC of the
21
Crimes Act 1914 (which includes provisions that, in certain
22
circumstances, relieve persons from the requirement to disclose
23
spent convictions and require persons aware of such convictions to
24
disregard them).
25
26
Part 14 Voluntary cancellation of Australian carbon credit units
Section 172
200 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 14--Voluntary cancellation of Australian
1
carbon credit units
2
3
172 Simplified outline
4
The following is a simplified outline of this Part:
5
·
If a person is the registered holder of one or more Australian
6
carbon credit units, the person may request the Administrator
7
to cancel any or all of those units.
8
173 Voluntary cancellation of Australian carbon credit units
9
(1) If a person is the registered holder of one or more Australian
10
carbon credit units, the person may, by electronic notice
11
transmitted to the Administrator, request the Administrator to
12
cancel any or all of those units.
13
(2) A notice under subsection (1) must:
14
(a) specify the Australian carbon credit unit or units that are to
15
be cancelled; and
16
(b) specify the account number or account numbers of the
17
person's Registry account, or the person's Registry accounts,
18
in which there is an entry or entries for the Australian carbon
19
credit unit or units that are to be cancelled.
20
(3) If the Administrator receives a notice under subsection (1) in
21
relation to an Australian carbon credit unit:
22
(a) the unit is cancelled; and
23
(b) the Administrator must remove the entry for the unit from the
24
person's Registry account in which there is an entry for the
25
unit; and
26
(c) if the unit is a Kyoto Australian carbon credit unit:
27
(i) the Minister must, by written notice given to the
28
Administrator, direct the Administrator to transfer a
29
Kyoto unit from a Commonwealth holding account to a
30
Voluntary cancellation of Australian carbon credit units Part 14
Section 173
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 201
voluntary cancellation account before the end of the
1
true-up period for the relevant commitment period; and
2
(ii) the Administrator must comply with a direction under
3
subparagraph (i).
4
(4) The Registry must set out a record of each notice under
5
subsection (1).
6
7
Part 15 Relinquishment of Australian carbon credit units
Division 1 Introduction
Section 174
202 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 15--Relinquishment of Australian carbon
1
credit units
2
Division 1--Introduction
3
174 Simplified outline
4
The following is a simplified outline of this Part:
5
·
If a person is the registered holder of one or more Australian
6
carbon credit units, the person may, by electronic notice
7
transmitted to the Administrator, relinquish any or all of those
8
units.
9
·
An administrative penalty is payable for non-compliance with
10
a relinquishment requirement under this Act.
11
Note 1:
A person may voluntarily relinquish Australian carbon credit units in
12
order to satisfy a condition for revocation of a section 27 declaration
13
in relation to an offsets project.
14
Note 2:
A person may be required to relinquish Australian carbon credit units
15
under Part 7.
16
17
Relinquishment of Australian carbon credit units Part 15
How Australian carbon credit units are relinquished Division 2
Section 175
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 203
Division 2--How Australian carbon credit units are
1
relinquished
2
175 How Australian carbon credit units are relinquished
3
(1) If a person is the registered holder of one or more Australian
4
carbon credit units, the person may, by electronic notice
5
transmitted to the Administrator, relinquish any or all of those
6
units.
7
(2) A notice under subsection (1) must:
8
(a) specify the Australian carbon credit unit or units that are
9
being relinquished; and
10
(b) if the Australian carbon credit unit or units are being
11
relinquished in order to comply with a requirement under
12
Part 7--specify the requirement to which the relinquishment
13
relates; and
14
(c) if the Australian carbon credit unit or units are being
15
voluntarily relinquished in order to satisfy a condition for
16
revocation of a section 27 declaration in relation to an offsets
17
project--set out a statement to that effect; and
18
(d) if the Australian carbon credit unit or units are being
19
voluntarily relinquished in order to satisfy a condition for
20
revocation of a subsection 97(2) declaration--set out a
21
statement to that effect; and
22
(e) if the Australian carbon credit unit or units are being
23
relinquished in order to comply with an order under
24
subsection 171(2) (fraudulent conduct)--specify the order to
25
which the relinquishment relates; and
26
(f) specify the account number or account numbers of the
27
person's Registry account, or the person's Registry accounts,
28
in which there is an entry or entries for the Australian carbon
29
credit unit or units that are being relinquished.
30
(3)
If:
31
(a) an Australian carbon credit unit is relinquished by a person in
32
order to comply with an order under subsection 171(2); and
33
(b) the order was made because the person was convicted by a
34
court of an offence that relates to Part 2;
35
Part 15 Relinquishment of Australian carbon credit units
Division 2 How Australian carbon credit units are relinquished
Section 175
204 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
then:
1
(c) the unit is cancelled; and
2
(d) the Administrator must remove the entry for the unit from the
3
person's Registry account in which there is an entry for the
4
unit.
5
(4)
If:
6
(a) an Australian carbon credit unit is relinquished by a person in
7
order to comply with an order under subsection 171(2); and
8
(b) the order was made because the person was convicted by a
9
court of an offence that does not relate to Part 2;
10
then:
11
(c) the Administrator must transfer the unit from the person's
12
Registry account in which there is an entry for the unit to the
13
Commonwealth relinquished units account; and
14
(d) when the unit is transferred to the Commonwealth
15
relinquished units account, property in the unit is transferred
16
to the Commonwealth.
17
(5)
If:
18
(a) an Australian carbon credit unit is relinquished by a person in
19
order to comply with a requirement under Part 7; or
20
(b) an Australian carbon credit unit is voluntarily relinquished in
21
order to satisfy a condition for revocation of a section 27
22
declaration in relation to an offsets project; or
23
(c) an Australian carbon credit unit is voluntarily relinquished in
24
order to satisfy a condition for revocation of a subsection
25
97(2) declaration;
26
then:
27
(d) the unit is cancelled; and
28
(e) the Administrator must remove the entry for the unit from the
29
person's Registry account in which there is an entry for the
30
unit.
31
(6) The Registry must set out a record of each notice under
32
subsection (1).
33
Relinquishment of Australian carbon credit units Part 15
How Australian carbon credit units are relinquished Division 2
Section 176
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 205
176 Deemed relinquishment
1
Scope
2
(1) This section applies if:
3
(a) under this Act, a person is subject to a requirement to
4
relinquish a particular number of Australian carbon credit
5
units (the relinquishment number); and
6
(b) under section 11, the Administrator is required to issue to the
7
person a particular number of Australian carbon credit units
8
(the issue number).
9
Deemed relinquishment
10
(2) If the issue number exceeds the relinquishment number:
11
(a) the person is taken, immediately after the issue of the units
12
mentioned in paragraph (1)(b) of this section, to have, by
13
electronic notice transmitted to the Administrator under
14
subsection 175(1), relinquished a number of those units equal
15
to the relinquishment number; and
16
(b) that notice is taken to have specified, as the units that are
17
being relinquished, such units as are determined by the
18
Administrator; and
19
(c) that notice is taken to have specified the requirement
20
mentioned in paragraph (1)(a) of this section as the
21
requirement to which the relinquishment relates.
22
(3) If the relinquishment number equals or exceeds the issue number:
23
(a) the person is taken, immediately after the issue of the units
24
mentioned in paragraph (1)(b) of this section, to have, by
25
electronic notice transmitted to the Administrator under
26
subsection 175(1), relinquished all of the units mentioned in
27
paragraph (1)(b) of this section; and
28
(b) that notice is taken to have specified, as the units that are
29
being relinquished, all of the units mentioned in
30
paragraph (1)(b); and
31
(c) that notice is taken to have specified the requirement
32
mentioned in paragraph (1)(a) of this section as the
33
requirement to which the relinquishment relates.
34
Part 15 Relinquishment of Australian carbon credit units
Division 2 How Australian carbon credit units are relinquished
Section 177
206 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
177 Transfer of certain units instead of relinquishment of Kyoto
1
Australian carbon credit units
2
Scope
3
(1) This section applies if, under this Act:
4
(a) a person is required to relinquish a particular number of
5
Kyoto Australian carbon credit units; or
6
(b) a particular number of Kyoto Australian carbon credit units
7
are being voluntarily relinquished by a person in order to
8
satisfy a condition for revocation of a section 27 declaration
9
in relation to an offsets project; or
10
(c) a particular number of Kyoto Australian carbon credit units
11
are being voluntarily relinquished by a person in order to
12
satisfy a condition for revocation of a subsection 97(2)
13
declaration.
14
Transfer of certain units instead of relinquishment
15
(2)
The
person
may:
16
(a) transfer to the Commonwealth an equal number of substitute
17
units; and
18
(b) by electronic notice transmitted to the Administrator, inform
19
the Administrator that the transfer is instead of the
20
relinquishment of the Kyoto Australian carbon credit units.
21
Note: For
substitute unit, see subsection (6).
22
(3) A notice under subsection (2) must:
23
(a) specify the substitute units that are being transferred; and
24
(b) if paragraph (1)(a) applies--specify the requirement
25
concerned; and
26
(c) if paragraph (1)(b) applies--a statement to the effect that the
27
units are being voluntarily relinquished in order to satisfy a
28
condition for revocation of a section 27 declaration in
29
relation to an offsets project; and
30
(d) if paragraph (1)(c) applies--a statement to the effect that the
31
units are being voluntarily relinquished in order to satisfy a
32
condition for revocation of a subsection 97(2) declaration.
33
Relinquishment of Australian carbon credit units Part 15
How Australian carbon credit units are relinquished Division 2
Section 177
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 207
(4) A transfer under subsection (2) must be in accordance with the
1
regulations.
2
Consequences of transfer
3
(5) If the person transfers the substitute units specified in the notice
4
under subsection (2), this Act (other than subsections 175(3), (4)
5
and (5)) has effect as if the person had relinquished the Kyoto
6
Australian carbon credit units:
7
(a) if paragraph (1)(a) applies--in order to comply with the
8
requirement mentioned in that paragraph; or
9
(b) if paragraph (1)(b) applies--in order to satisfy a condition for
10
revocation of a section 27 declaration in relation to an offsets
11
project; or
12
(c) if paragraph (1)(c) applies--in order to satisfy a condition for
13
revocation of a subsection 97(2) declaration.
14
Substitute unit
15
(6) For the purposes of this section, each of the following is a
16
substitute unit:
17
(a) a certified emission reduction (other than a temporary
18
certified emission reduction or a long-term certified emission
19
reduction);
20
(b) an emission reduction unit;
21
(c) a removal unit;
22
(d) an assigned amount unit issued in Australia;
23
(e) a prescribed eligible carbon unit.
24
(7) Subsection (6) has effect subject to subsection (8).
25
(8) The regulations may provide that a specified unit is not a substitute
26
unit for the purposes of this section.
27
Note:
For specification by class, see subsection 13(3) of the Legislative
28
Instruments Act 2003.
29
Part 15 Relinquishment of Australian carbon credit units
Division 2 How Australian carbon credit units are relinquished
Section 178
208 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
178 Transfer of certain units instead of relinquishment of non-Kyoto
1
Australian carbon credit units
2
Scope
3
(1) This section applies if, under this Act:
4
(a) a person is required to relinquish a particular number of
5
non-Kyoto Australian carbon credit units; or
6
(b) a particular number of non-Kyoto Australian carbon credit
7
units are being voluntarily relinquished by a person in order
8
to satisfy a condition for revocation of a section 27
9
declaration in relation to an offsets project; or
10
(c) a particular number of non-Kyoto Australian carbon credit
11
units are being voluntarily relinquished by a person in order
12
to satisfy a condition for revocation of a subsection 97(2)
13
declaration.
14
Transfer of certain units instead of relinquishment
15
(2)
The
person
may:
16
(a) transfer to the Commonwealth an equal number of substitute
17
units; and
18
(b) by electronic notice transmitted to the Administrator, inform
19
the Administrator that the transfer is instead of the
20
relinquishment of the non-Kyoto Australian carbon credit
21
units.
22
Note: For
substitute unit, see subsection (6).
23
(3) A notice under subsection (2) must:
24
(a) specify the substitute units that are being transferred; and
25
(b) if paragraph (1)(a) applies--specify the requirement
26
concerned; and
27
(c) if paragraph (1)(b) applies--a statement to the effect that the
28
units are being voluntarily relinquished in order to satisfy a
29
condition for revocation of a section 27 declaration in
30
relation to an offsets project; and
31
(d) if paragraph (1)(c) applies--a statement to the effect that the
32
units are being voluntarily relinquished in order to satisfy a
33
condition for revocation of a subsection 97(2) declaration.
34
Relinquishment of Australian carbon credit units Part 15
How Australian carbon credit units are relinquished Division 2
Section 178
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 209
(4) A transfer under subsection (2) must be in accordance with the
1
regulations.
2
Consequences of transfer
3
(5) If the person transfers the substitute units specified in the notice
4
under subsection (2), this Act (other than subsections 175(3), (4)
5
and (5)) has effect as if the person had relinquished the non-Kyoto
6
Australian carbon credit units:
7
(a) if paragraph (1)(a) applies--in order to comply with the
8
requirement mentioned in that paragraph; or
9
(b) if paragraph (1)(b) applies--in order to satisfy a condition for
10
revocation of a section 27 declaration in relation to an offsets
11
project; or
12
(c) if paragraph (1)(c) applies--in order to satisfy a condition for
13
revocation of a subsection 97(2) declaration.
14
Substitute unit
15
(6) For the purposes of this section, each of the following is a
16
substitute unit:
17
(a) a Kyoto Australian carbon credit unit;
18
(b) a certified emission reduction (other than a temporary
19
certified emission reduction or a long-term certified emission
20
reduction);
21
(c) an emission reduction unit;
22
(d) a removal unit;
23
(e) an assigned amount unit issued in Australia;
24
(f) a prescribed eligible carbon unit.
25
(7) Subsection (6) has effect subject to subsection (8).
26
(8) The regulations may provide that a specified unit is not a substitute
27
unit for the purposes of this section.
28
Note:
For specification by class, see subsection 13(3) of the Legislative
29
Instruments Act 2003.
30
31
Part 15 Relinquishment of Australian carbon credit units
Division 3 Compliance with relinquishment requirements
Section 179
210 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 3--Compliance with relinquishment requirements
1
179 Compliance with relinquishment requirements
2
Scope
3
(1) This section applies if, under this Act:
4
(a) a person is required to relinquish a particular number of
5
Australian carbon credit units; and
6
(b) the person is required to do so by a particular time (the
7
compliance deadline).
8
No units relinquished
9
(2) If, by the compliance deadline, the person has not relinquished any
10
Australian carbon credit units in order to comply with the
11
requirement, the person is liable to pay to the Commonwealth, by
12
way of penalty, an amount worked out using the formula:
13
Number of units
Prescribed amount
required to be relinquished ×
14
where:
15
prescribed amount means the greatest of the following amounts:
16
(a)
$20;
17
(b) if the Australian carbon credit units mentioned in
18
paragraph (1)(a) are Kyoto Australian carbon credit units--
19
200% of the market value of a Kyoto Australian carbon
20
credit unit as at the compliance deadline;
21
(c) if the Australian carbon credit units mentioned in
22
paragraph (1)(a) are non-Kyoto Australian carbon credit
23
units--200% of the market value of a non-Kyoto Australian
24
carbon credit unit as at the compliance deadline.
25
Relinquishment of insufficient units
26
(3) If, by the compliance deadline:
27
(a) the person has relinquished one or more Australian carbon
28
credit units in order to comply with the requirement; and
29
Relinquishment of Australian carbon credit units Part 15
Compliance with relinquishment requirements Division 3
Section 179
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 211
(b) the number of relinquished units is less than the number of
1
units required to be relinquished;
2
the person is liable to pay to the Commonwealth, by way of
3
penalty, an amount worked out using the formula:
4
Number of units
Number of
required to be
Prescribed amount
relinquished units
relinquished
-
×
5
where:
6
prescribed amount means the greatest of the following amounts:
7
(a)
$20;
8
(b) if the Australian carbon credit units mentioned in
9
paragraph (1)(a) are Kyoto Australian carbon credit units--
10
200% of the market value of a Kyoto Australian carbon
11
credit unit as at the compliance deadline;
12
(c) if the Australian carbon credit units mentioned in
13
paragraph (1)(a) are non-Kyoto Australian carbon credit
14
units--200% of the market value of a non-Kyoto Australian
15
carbon credit unit as at the compliance deadline.
16
When penalty becomes due and payable
17
(4) An amount payable under this section is due and payable at the end
18
of 30 days after the compliance deadline.
19
Compliance
20
(5) To avoid doubt, a person may be liable to pay a penalty under this
21
section even if:
22
(a) the person is not the registered holder of any Australian
23
carbon credit units; or
24
(b) the person is not the registered holder of the number of
25
Australian carbon credit units required to be relinquished.
26
Market value
27
(6) The regulations may provide that, for the purposes of this section,
28
the market value of an Australian carbon credit unit is to be
29
ascertained in accordance with the regulations.
30
Part 15 Relinquishment of Australian carbon credit units
Division 3 Compliance with relinquishment requirements
Section 180
212 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
180 Late payment penalty
1
Penalty
2
(1) If an amount payable by a person under section 179 remains
3
unpaid after the time when it became due for payment, the person
4
is liable to pay, by way of penalty, an amount calculated at the rate
5
of:
6
(a) 20% per annum; or
7
(b) if a lower rate per annum is specified in the regulations--that
8
lower rate per annum;
9
on the amount unpaid, computed from that time.
10
Power to remit
11
(2) The Administrator may remit the whole or a part of an amount
12
payable under subsection (1) if:
13
(a) the Administrator is satisfied that the person did not
14
contribute to the delay in payment and has taken reasonable
15
steps to mitigate the causes of the delay; or
16
(b) the Administrator is satisfied:
17
(i) that the person contributed to the delay but has taken
18
reasonable steps to mitigate the causes of the delay; and
19
(ii) having regard to the nature of the reasons that caused
20
the delay, that it would be fair and reasonable to remit
21
some or all of the amount; or
22
(c) the Administrator is satisfied that there are special
23
circumstances that make it reasonable to remit some or all of
24
the amount.
25
(3) The Administrator may exercise the power conferred by
26
subsection (2):
27
(a) on written application being made to the Administrator by a
28
person; or
29
(b) on the Administrator's own initiative.
30
Refusal
31
(4)
If:
32
Relinquishment of Australian carbon credit units Part 15
Compliance with relinquishment requirements Division 3
Section 181
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 213
(a) the Administrator decides to refuse to remit the whole or a
1
part of an amount payable under subsection (1); and
2
(b) the Administrator made the decision in response to an
3
application;
4
the Administrator must give written notice of the decision to the
5
applicant.
6
181 Recovery of penalties
7
An amount payable under section 179 or 180:
8
(a) is a debt due to the Commonwealth; and
9
(b) may be recovered by the Administrator, on behalf of the
10
Commonwealth, by action in a court of competent
11
jurisdiction.
12
182 Set-off
13
If:
14
(a) an amount (the first amount) is payable under section 179 or
15
180 by a person; and
16
(b) the following conditions are satisfied in relation to another
17
amount (the second amount):
18
(i) the amount is payable by the Commonwealth to the
19
person;
20
(ii) the amount is of a kind specified in the regulations;
21
the Administrator may, on behalf of the Commonwealth, set off the
22
whole or a part of the first amount against the whole or a part of
23
the second amount.
24
183 Refund of overpayments
25
Refund
26
(1) If either of the following amounts has been overpaid by a person,
27
the amount overpaid must be refunded by the Commonwealth:
28
(a) an amount payable under section 179;
29
(b) an amount payable under section 180.
30
Part 15 Relinquishment of Australian carbon credit units
Division 3 Compliance with relinquishment requirements
Section 183
214 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Note:
For appropriation, see section 28 of the Financial Management and
1
Accountability Act 1997.
2
Interest on overpayment
3
(2)
If:
4
(a) an amount overpaid by a person is refunded by the
5
Commonwealth under subsection (1); and
6
(b) the overpayment is attributable, in whole or in part, to an
7
error made by the Administrator;
8
interest calculated in accordance with subsection (3) is payable by
9
the Commonwealth to the person in respect of the amount
10
refunded.
11
(3) Interest payable to a person under subsection (2) in respect of an
12
amount refunded to the person is to be calculated:
13
(a) in respect of the period that:
14
(i) began when the overpaid amount was paid to the
15
Commonwealth; and
16
(ii) ended when the amount was refunded; and
17
(b) at the base interest rate (within the meaning of section 8AAD
18
of the Taxation Administration Act 1953).
19
(4) The Consolidated Revenue Fund is appropriated for the purposes
20
of making payments of interest under subsection (2).
21
22
Information-gathering powers Part 16
Section 184
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 215
Part 16--Information-gathering powers
1
2
184 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator may obtain information or documents.
5
185 Administrator may obtain information or documents
6
Scope
7
(1) This section applies to a person if the Administrator believes on
8
reasonable grounds that the person has information or a document
9
that is relevant to the operation of this Act or the associated
10
provisions.
11
Requirement
12
(2) The Administrator may, by written notice given to the person,
13
require the person:
14
(a) to give to the Administrator, within the period and in the
15
manner and form specified in the notice, any such
16
information; or
17
(b) to produce to the Administrator, within the period and in the
18
manner specified in the notice, any such documents; or
19
(c) to make copies of any such documents and to produce to the
20
Administrator, within the period and in the manner specified
21
in the notice, those copies.
22
(3) A period specified under subsection (2) must not be shorter than 14
23
days after the notice is given.
24
Compliance
25
(4) A person must comply with a requirement under subsection (2) to
26
the extent that the person is capable of doing so.
27
Part 16 Information-gathering powers
Section 186
216 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Ancillary contraventions
1
(5) A person must not:
2
(a) aid, abet, counsel or procure a contravention of
3
subsection (4); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (4); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (4); or
8
(d) conspire with others to effect a contravention of
9
subsection (4).
10
Civil penalty provisions
11
(6) Subsections (4) and (5) are civil penalty provisions.
12
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
No limitation
15
(7) This section is not limited by any other provision of this Act that
16
relates to the powers of the Administrator to obtain information or
17
documents.
18
186 Copying documents--compensation
19
A person is entitled to be paid by the Administrator, on behalf of
20
the Commonwealth, reasonable compensation for complying with
21
a requirement covered by paragraph 185(2)(c).
22
187 Copies of documents
23
(1) The Administrator may:
24
(a) inspect a document or copy produced under subsection
25
185(2); and
26
(b) make and retain copies of, or take and retain extracts from,
27
such a document.
28
Information-gathering powers Part 16
Section 188
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 217
(2) The Administrator may retain possession of a copy of a document
1
produced in accordance with a requirement covered by paragraph
2
185(2)(c).
3
188 Administrator may retain documents
4
(1) The Administrator may take, and retain for as long as is necessary,
5
possession of a document produced under subsection 185(2).
6
(2) The person otherwise entitled to possession of the document is
7
entitled to be supplied, as soon as practicable, with a copy certified
8
by the Administrator to be a true copy.
9
(3) The certified copy must be received in all courts and tribunals as
10
evidence as if it were the original.
11
(4) Until a certified copy is supplied, the Administrator must, at such
12
times and places as the Administrator thinks appropriate, permit
13
the person otherwise entitled to possession of the document, or a
14
person authorised by that person, to inspect and make copies of, or
15
take extracts from, the document.
16
189 Self-incrimination
17
(1) A person is not excused from giving information or producing a
18
document under section 185 on the ground that the information or
19
the production of the document might tend to incriminate the
20
person or expose the person to a penalty.
21
(2) However, in the case of an individual:
22
(a) the information given or the document produced; or
23
(b) giving the information or producing the document; or
24
(c) any information, document or thing obtained as a direct or
25
indirect consequence of giving the information or producing
26
the document;
27
is not admissible in evidence against the individual:
28
(d) in civil proceedings for the recovery of a penalty (other than
29
proceedings for the recovery of a penalty under section 179
30
or 180); or
31
Part 16 Information-gathering powers
Section 189
218 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(e) in criminal proceedings (other than proceedings for an
1
offence against section 137.1 or 137.2 of the Criminal Code
2
that relates to this Part).
3
4
Record-keeping and project monitoring requirements Part 17
Introduction Division 1
Section 190
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 219
Part 17--Record-keeping and project monitoring
1
requirements
2
Division 1--Introduction
3
190 Simplified outline
4
The following is a simplified outline of this Part:
5
·
The regulations may require a person to:
6
(a)
make a record of information; and
7
(b)
retain the record.
8
·
A person is subject to record-keeping requirements in relation
9
to the preparation of an offsets report.
10
·
A project proponent must comply with record-keeping and
11
project monitoring requirements imposed by a methodology
12
determination.
13
14
Part 17 Record-keeping and project monitoring requirements
Division 2 Record-keeping requirements
Section 191
220 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Record-keeping requirements
1
191 Record-keeping requirements--general
2
(1) The regulations may require a person to:
3
(a) make a record of specified information, where the
4
information is relevant to this Act; and
5
(b)
retain:
6
(i) the record; or
7
(ii) a copy of the record;
8
for 7 years after the making of the record.
9
(2) If a person is subject to a requirement under regulations made for
10
the purposes of subsection (1), the person must comply with that
11
requirement.
12
Ancillary contraventions
13
(3) A person must not:
14
(a) aid, abet, counsel or procure a contravention of
15
subsection (2); or
16
(b) induce, whether by threats or promises or otherwise, a
17
contravention of subsection (2); or
18
(c) be in any way, directly or indirectly, knowingly concerned in,
19
or party to, a contravention of subsection (2); or
20
(d) conspire with others to effect a contravention of
21
subsection (2).
22
Civil penalty provisions
23
(4) Subsections (2) and (3) are civil penalty provisions.
24
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
25
provisions.
26
Other provisions do not limit this section
27
(5) This section is not limited by any other provision of this Act that
28
relates to the keeping or retention of records.
29
Record-keeping and project monitoring requirements Part 17
Record-keeping requirements Division 2
Section 192
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 221
192 Record-keeping requirements--preparation of offsets report
1
Scope
2
(1) This section applies if a person:
3
(a) made a record of particular information; and
4
(b) used the information to prepare an offsets report.
5
Record-keeping requirements
6
(2) The regulations may require the person to retain:
7
(a) the record; or
8
(b) a copy of the record;
9
for 7 years after the offsets report was given to the Administrator.
10
(3) If a person is subject to a requirement under regulations made for
11
the purposes of subsection (2), the person must comply with that
12
requirement.
13
Ancillary contraventions
14
(4) A person must not:
15
(a) aid, abet, counsel or procure a contravention of
16
subsection (3); or
17
(b) induce, whether by threats or promises or otherwise, a
18
contravention of subsection (3); or
19
(c) be in any way, directly or indirectly, knowingly concerned in,
20
or party to, a contravention of subsection (3); or
21
(d) conspire with others to effect a contravention of
22
subsection (3).
23
Civil penalty provisions
24
(5) Subsections (3) and (4) are civil penalty provisions.
25
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
26
provisions.
27
Part 17 Record-keeping and project monitoring requirements
Division 2 Record-keeping requirements
Section 193
222 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
193 Record-keeping requirements--methodology determinations
1
Scope
2
(1) This section applies if:
3
(a) a person is the project proponent for an eligible offsets
4
project; and
5
(b) under the applicable methodology determination, the person
6
is subject to a record-keeping requirement relating to the
7
project.
8
Record-keeping requirement
9
(2) The person must comply with the requirement.
10
Ancillary contraventions
11
(3) A person must not:
12
(a) aid, abet, counsel or procure a contravention of
13
subsection (2); or
14
(b) induce, whether by threats or promises or otherwise, a
15
contravention of subsection (2); or
16
(c) be in any way, directly or indirectly, knowingly concerned in,
17
or party to, a contravention of subsection (2); or
18
(d) conspire with others to effect a contravention of
19
subsection (2).
20
Civil penalty provisions
21
(4) Subsections (2) and (3) are civil penalty provisions.
22
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
23
provisions.
24
25
Record-keeping and project monitoring requirements Part 17
Project monitoring requirements Division 3
Section 194
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 223
Division 3--Project monitoring requirements
1
194 Project monitoring requirements--methodology determinations
2
Scope
3
(1) This section applies if:
4
(a) a person is the project proponent for an eligible offsets
5
project; and
6
(b) under the applicable methodology determination, the person
7
is subject to a requirement to monitor the project.
8
Project monitoring requirement
9
(2) The person must comply with the requirement.
10
Ancillary contraventions
11
(3) A person must not:
12
(a) aid, abet, counsel or procure a contravention of
13
subsection (2); or
14
(b) induce, whether by threats or promises or otherwise, a
15
contravention of subsection (2); or
16
(c) be in any way, directly or indirectly, knowingly concerned in,
17
or party to, a contravention of subsection (2); or
18
(d) conspire with others to effect a contravention of
19
subsection (2).
20
Civil penalty provisions
21
(4) Subsections (2) and (3) are civil penalty provisions.
22
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
23
provisions.
24
25
Part 18 Monitoring powers
Division 1 Simplified outline
Section 195
224 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 18--Monitoring powers
1
Division 1--Simplified outline
2
195 Simplified outline
3
The following is a simplified outline of this Part:
4
·
An inspector may enter premises for the purpose of:
5
(a)
determining whether this Act or the associated
6
provisions have been complied with; or
7
(b)
substantiating information provided under this Act
8
or the associated provisions.
9
·
Entry must be with the consent of the occupier of the premises
10
or under a monitoring warrant.
11
·
An inspector who enters premises may exercise monitoring
12
powers. The inspector may be assisted by other persons if that
13
assistance is necessary and reasonable.
14
·
The occupier of the premises has certain rights and
15
responsibilities.
16
17
Monitoring powers Part 18
Appointment of inspectors and issue of identity cards Division 2
Section 196
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 225
Division 2--Appointment of inspectors and issue of
1
identity cards
2
196 Appointment of inspectors
3
(1) The Administrator may, in writing, appoint:
4
(a) a person who:
5
(i) is an SES employee, or acting SES employee, in the
6
Department; or
7
(ii) is an APS employee who holds or performs the duties of
8
an Executive Level 1 or 2 position, or an equivalent
9
position, in the Department; or
10
(b) a member or special member of the Australian Federal
11
Police;
12
as an inspector for the purposes of this Act.
13
(2) The Administrator must not appoint a person as an inspector unless
14
the Administrator is satisfied that the person has suitable
15
qualifications and experience to properly exercise the powers of an
16
inspector.
17
(3) An inspector must, in exercising powers as an inspector, comply
18
with any directions of the Administrator.
19
(4) If a direction is given under subsection (3) in writing, the direction
20
is not a legislative instrument.
21
197 Identity cards
22
(1) The Administrator must issue an identity card to an inspector.
23
Form of identity card
24
(2) The identity card must:
25
(a) be in the form prescribed by the regulations; and
26
(b) contain a recent photograph of the inspector.
27
Offence
28
(3) A person commits an offence if:
29
Part 18 Monitoring powers
Division 2 Appointment of inspectors and issue of identity cards
Section 197
226 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the person has been issued with an identity card; and
1
(b) the person ceases to be an inspector; and
2
(c) the person does not, as soon as practicable after so ceasing,
3
return the identity card to the Administrator.
4
Penalty: 1 penalty unit.
5
(4) An offence against subsection (3) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
Defence--card lost or destroyed
8
(5) Subsection (3) does not apply if the identity card was lost or
9
destroyed.
10
Note:
A defendant bears an evidential burden in relation to the matter in this
11
subsection: see subsection 13.3(3) of the Criminal Code.
12
Inspector must carry card
13
(6) An inspector must carry his or her identity card at all times when
14
exercising powers as an inspector.
15
16
Monitoring powers Part 18
Powers of inspectors Division 3
Section 198
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 227
Division 3--Powers of inspectors
1
Subdivision A--Monitoring powers
2
198 Inspector may enter premises by consent or under a warrant
3
(1) For the purpose of:
4
(a) determining whether this Act or the associated provisions
5
have been, or are being, complied with; or
6
(b) substantiating information provided under this Act or the
7
associated provisions;
8
an inspector may:
9
(c) enter any premises; and
10
(d) exercise the monitoring powers set out in section 199.
11
(2) However, an inspector is not authorised to enter the premises
12
unless:
13
(a) the occupier of the premises has consented to the entry and
14
the inspector has shown his or her identity card if required by
15
the occupier; or
16
(b) the entry is made under a monitoring warrant.
17
Note:
If entry to the premises is with the occupier's consent, the inspector
18
must leave the premises if the consent ceases to have effect: see
19
section 203.
20
199 Monitoring powers of inspectors
21
(1) The following are the monitoring powers that an inspector may
22
exercise in relation to premises under section 198:
23
(a) the power to search the premises and any thing on the
24
premises;
25
(b) the power to examine any activity conducted on the premises;
26
(c) the power to inspect, examine, take measurements of or
27
conduct tests on any thing on the premises;
28
(d) the power to make any still or moving image or any
29
recording of the premises or any thing on the premises;
30
(e) the power to inspect any document on the premises;
31
Part 18 Monitoring powers
Division 3 Powers of inspectors
Section 199
228 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(f) the power to take extracts from, or make copies of, any such
1
document;
2
(g) the power to take onto the premises such equipment and
3
materials as the inspector requires for the purpose of
4
exercising powers in relation to the premises;
5
(h) the powers set out in subsections (2), (3) and (5).
6
Operating electronic equipment
7
(2) The monitoring powers include the power to operate electronic
8
equipment on the premises to see whether:
9
(a) the equipment; or
10
(b) a disk, tape or other storage device that:
11
(i) is on the premises; and
12
(ii) can be used with the equipment or is associated with it;
13
contains information that is relevant to:
14
(c) determining whether this Act or the associated provisions
15
have been, or are being, complied with; or
16
(d) substantiating information provided under this Act or the
17
associated provisions.
18
(3) The monitoring powers include the following powers in relation to
19
information described in subsection (2) found in the exercise of the
20
power under that subsection:
21
(a) the power to operate electronic equipment on the premises to
22
put the information in documentary form and remove the
23
documents so produced from the premises;
24
(b) the power to operate electronic equipment on the premises to
25
transfer the information to a disk, tape or other storage device
26
that:
27
(i) is brought to the premises for the exercise of the power;
28
or
29
(ii) is on the premises and the use of which for that purpose
30
has been agreed in writing by the occupier of the
31
premises;
32
and remove the disk, tape or other storage device from the
33
premises.
34
Monitoring powers Part 18
Powers of inspectors Division 3
Section 199
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 229
(4) An inspector may operate electronic equipment as mentioned in
1
subsection (2) or (3) only if he or she believes on reasonable
2
grounds that the operation of the equipment can be carried out
3
without damage to the equipment.
4
Securing things if entry to premises is under a monitoring warrant
5
(5) If entry to the premises is under a monitoring warrant, the
6
monitoring powers include the power to secure a thing for a period
7
not exceeding 24 hours if:
8
(a) the thing is found during the exercise of monitoring powers
9
on the premises; and
10
(b) an inspector believes on reasonable grounds that:
11
(i) the thing affords evidence of the commission of an
12
offence against this Act or of an offence against the
13
Crimes Act 1914 or the Criminal Code that relates to
14
this Act; and
15
(ii) it is necessary to secure the thing in order to prevent it
16
from being concealed, lost or destroyed before a warrant
17
to seize the thing is obtained; and
18
(iii) the circumstances are serious and urgent.
19
(6) If an inspector believes on reasonable grounds that the thing needs
20
to be secured for more than 24 hours, he or she may apply to a
21
magistrate for an extension of that period.
22
(7) The inspector must give notice to the occupier of the premises, or
23
another person who apparently represents the occupier, of his or
24
her intention to apply for an extension. The occupier or other
25
person is entitled to be heard in relation to that application.
26
(8) The provisions of this Part relating to the issue of monitoring
27
warrants apply, with such modifications as are necessary, to the
28
issue of an extension.
29
(9) The 24 hour period:
30
(a) may be extended more than once; and
31
(b) must not be extended more than 3 times.
32
Part 18 Monitoring powers
Division 3 Powers of inspectors
Section 200
230 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
200 Persons assisting inspectors
1
Inspectors may be assisted by other persons
2
(1) An inspector may, in entering premises under section 198 and in
3
exercising monitoring powers in relation to the premises, be
4
assisted by other persons if that assistance is necessary and
5
reasonable. A person giving such assistance is a person assisting
6
the inspector.
7
Powers of a person assisting the inspector
8
(2) A person assisting the inspector may:
9
(a) enter the premises; and
10
(b) exercise monitoring powers in relation to the premises, but
11
only in accordance with a direction given to the person by the
12
inspector.
13
(3) A power exercised by a person assisting the inspector as mentioned
14
in subsection (2) is taken for all purposes to have been exercised by
15
the inspector.
16
(4) If a direction is given under paragraph (2)(b) in writing, the
17
direction is not a legislative instrument.
18
Subdivision B--Powers of inspectors to ask questions and seek
19
production of documents
20
201 Inspector may ask questions and seek production of documents
21
Entry with consent
22
(1) If an inspector is authorised to enter premises because the occupier
23
of the premises consented to the entry, the inspector may ask the
24
occupier to:
25
(a) answer any questions relating to the operation of this Act or
26
the associated provisions that are put by the inspector; and
27
(b) produce any document relating to the operation of this Act or
28
the associated provisions that is requested by the inspector.
29
Monitoring powers Part 18
Powers of inspectors Division 3
Section 202
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 231
Entry under a monitoring warrant
1
(2) If an inspector is authorised to enter premises by a monitoring
2
warrant, the inspector may require any person on the premises to:
3
(a) answer any questions relating to the operation of this Act or
4
the associated provisions that are put by the inspector; and
5
(b) produce any document relating to the operation of this Act or
6
the associated provisions that is requested by the inspector.
7
Offence
8
(3) A person commits an offence if:
9
(a) the person is subject to a requirement under subsection (2);
10
and
11
(b) the person fails to comply with the requirement.
12
Penalty: 30 penalty units.
13
202 Self-incrimination
14
(1) A person is not excused from giving an answer or producing a
15
document under section 201 on the ground that the answer or the
16
production of the document might tend to incriminate the person or
17
expose the person to a penalty.
18
(2) However, in the case of an individual:
19
(a)
the
answer given or the document produced; or
20
(b) giving the answer or producing the document; or
21
(c) any information, document or thing obtained as a direct or
22
indirect consequence of giving the answer or producing the
23
document;
24
is not admissible in evidence against the individual:
25
(d) in civil proceedings for the recovery of a penalty (other than
26
proceedings for the recovery of a penalty under section 179
27
or 180); or
28
(e) in criminal proceedings (other than proceedings for an
29
offence against section 137.1 or 137.2 of the Criminal Code
30
that relates to this Part).
31
32
Part 18 Monitoring powers
Division 4 Obligations and incidental powers of inspectors
Section 203
232 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 4--Obligations and incidental powers of
1
inspectors
2
203 Consent
3
(1) An inspector must, before obtaining the consent of an occupier of
4
premises for the purposes of paragraph 198(2)(a), inform the
5
occupier that the occupier may refuse consent.
6
(2) A consent has no effect unless the consent is voluntary.
7
(3) A consent may be expressed to be limited to entry during a
8
particular period. If so, the consent has effect for that period unless
9
the consent is withdrawn before the end of that period.
10
(4) A consent that is not limited as mentioned in subsection (3) has
11
effect until the consent is withdrawn.
12
(5) If an inspector entered premises because of the consent of the
13
occupier of the premises, the inspector, and any person assisting
14
the inspector, must leave the premises if the consent ceases to have
15
effect.
16
204 Announcement before entry under warrant
17
An inspector must, before entering premises under a monitoring
18
warrant:
19
(a) announce that he or she is authorised to enter the premises;
20
and
21
(b) show his or her identity card to the occupier of the premises,
22
or to another person who apparently represents the occupier,
23
if the occupier or other person is present at the premises; and
24
(c) give any person at the premises an opportunity to allow entry
25
to the premises.
26
205 Inspector to be in possession of warrant
27
If a monitoring warrant is being executed in relation to premises,
28
an inspector executing the warrant must be in possession of the
29
warrant or a copy of the warrant.
30
Monitoring powers Part 18
Obligations and incidental powers of inspectors Division 4
Section 206
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 233
206 Details of warrant etc. to be given to occupier
1
If:
2
(a) a monitoring warrant is being executed in relation to
3
premises; and
4
(b) the occupier of the premises, or another person who
5
apparently represents the occupier, is present at the premises;
6
an inspector executing the warrant must, as soon as practicable:
7
(c) make a copy of the warrant available to the occupier or other
8
person (which need not include the signature of the
9
magistrate who issued it); and
10
(d) inform the occupier or other person of the rights and
11
responsibilities of the occupier or other person under
12
Division 5.
13
207 Expert assistance to operate electronic equipment
14
(1) This section applies to premises to which a monitoring warrant
15
relates.
16
Securing equipment
17
(2) If an inspector believes on reasonable grounds that:
18
(a) there is on the premises information that is relevant to:
19
(i) determining whether this Act or the associated
20
provisions have been, or are being, complied with; or
21
(ii) substantiating information provided under this Act or
22
the associated provisions;
23
and that may be accessible by operating electronic equipment
24
on the premises; and
25
(b) expert assistance is required to operate the equipment; and
26
(c) if he or she does not take action under this subsection, the
27
information may be destroyed, altered or otherwise interfered
28
with;
29
he or she may do whatever is necessary to secure the equipment,
30
whether by locking it up, placing a guard or other means.
31
(3) The inspector must give notice to the occupier of the premises, or
32
another person who apparently represents the occupier, of his or
33
Part 18 Monitoring powers
Division 4 Obligations and incidental powers of inspectors
Section 208
234 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
her intention to secure the equipment and of the fact that the
1
equipment may be secured for up to 24 hours.
2
Period equipment may be secured
3
(4) The equipment may be secured:
4
(a) until the 24 hour period ends; or
5
(b) until the equipment has been operated by the expert;
6
whichever happens first.
7
Extensions
8
(5) If an inspector believes on reasonable grounds that the equipment
9
needs to be secured for more than 24 hours, he or she may apply to
10
a magistrate for an extension of that period.
11
(6) The inspector must give notice to the occupier of the premises, or
12
another person who apparently represents the occupier, of his or
13
her intention to apply for an extension. The occupier or other
14
person is entitled to be heard in relation to that application.
15
(7) The provisions of this Part relating to the issue of monitoring
16
warrants apply, with such modifications as are necessary, to the
17
issue of an extension.
18
(8) The 24 hour period:
19
(a) may be extended more than once; and
20
(b) must not be extended more than 3 times.
21
208 Compensation for damage to electronic equipment
22
(1) This section applies if:
23
(a) as a result of electronic equipment being operated as
24
mentioned in this Part:
25
(i) damage is caused to the equipment; or
26
(ii) the data recorded on the equipment is damaged; or
27
(iii) programs associated with the use of the equipment, or
28
with the use of the data, are damaged or corrupted; and
29
(b) the damage or corruption occurs because:
30
Monitoring powers Part 18
Obligations and incidental powers of inspectors Division 4
Section 208
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 235
(i) insufficient care was exercised in selecting the person
1
who was to operate the equipment; or
2
(ii) insufficient care was exercised by the person operating
3
the equipment.
4
(2) The Commonwealth must pay the owner of the equipment, or the
5
user of the data or programs, such reasonable compensation for the
6
damage or corruption as the Commonwealth and the owner or user
7
agree on.
8
(3) However, if the owner or user and the Commonwealth fail to
9
agree, the owner or user may institute proceedings in the Federal
10
Court for such reasonable amount of compensation as the Court
11
determines.
12
(4) In determining the amount of compensation payable, regard is to
13
be had to whether the occupier of the premises, or the occupier's
14
employees and agents, if they were available at the time, provided
15
any appropriate warning or guidance on the operation of the
16
equipment.
17
(5) In this section:
18
damage, in relation to data, includes damage by erasure of data or
19
addition of other data.
20
21
Part 18 Monitoring powers
Division 5 Occupier's rights and responsibilities
Section 209
236 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 5--Occupier's rights and responsibilities
1
209 Occupier entitled to observe execution of warrant
2
(1)
If:
3
(a) a monitoring warrant is being executed in relation to
4
premises; and
5
(b) the occupier of the premises, or another person who
6
apparently represents the occupier, is present at the premises;
7
the occupier or other person is entitled to observe the execution of
8
the warrant.
9
(2) The right to observe the execution of the warrant ceases if the
10
occupier or other person impedes that execution.
11
(3) This section does not prevent the execution of the warrant in 2 or
12
more areas of the premises at the same time.
13
210 Occupier to provide inspector with facilities and assistance
14
(1) The occupier of premises to which a monitoring warrant relates, or
15
another person who apparently represents the occupier, must
16
provide:
17
(a) an inspector executing the warrant; and
18
(b) any person assisting the inspector;
19
with all reasonable facilities and assistance for the effective
20
exercise of their powers.
21
(2) A person commits an offence if:
22
(a) the person is subject to subsection (1); and
23
(b) the person fails to comply with that subsection.
24
Penalty: 30 penalty units.
25
26
Monitoring powers Part 18
Monitoring warrants Division 6
Section 211
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 237
Division 6--Monitoring warrants
1
211 Monitoring warrants
2
Application for warrant
3
(1) An inspector may apply to a magistrate for a warrant under this
4
section in relation to premises.
5
Issue of warrant
6
(2) The magistrate may issue the warrant if the magistrate is satisfied,
7
by information on oath or affirmation, that it is reasonably
8
necessary that one or more inspectors should have access to the
9
premises for the purpose of:
10
(a) determining whether this Act or the associated provisions
11
have been, or are being, complied with; or
12
(b) substantiating information provided under this Act or the
13
associated provisions.
14
(3) However, the magistrate must not issue the warrant unless the
15
inspector or some other person has given to the magistrate, either
16
orally or by affidavit, such further information (if any) as the
17
magistrate requires concerning the grounds on which the issue of
18
the warrant is being sought.
19
Content of warrant
20
(4)
The
warrant
must:
21
(a) describe the premises to which the warrant relates; and
22
(b) state that the warrant is issued under this section; and
23
(c) state that the warrant is issued for the purpose of:
24
(i) determining whether this Act or the associated
25
provisions have been, or are being, complied with; or
26
(ii) substantiating information provided under this Act or
27
the associated provisions; and
28
(d) authorise one or more inspectors (whether or not named in
29
the warrant) from time to time while the warrant remains in
30
force:
31
Part 18 Monitoring powers
Division 6 Monitoring warrants
Section 211
238 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) to enter the premises; and
1
(ii) to exercise the powers set out in Divisions 3 and 4 in
2
relation to the premises; and
3
(e) state whether the entry is authorised to be made at any time
4
of the day or during specified hours of the day; and
5
(f) specify the day (not more than 6 months after the issue of the
6
warrant) on which the warrant ceases to be in force.
7
8
Monitoring powers Part 18
Powers of magistrates Division 7
Section 212
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 239
Division 7--Powers of magistrates
1
212 Powers of magistrates
2
Powers conferred personally
3
(1) A power conferred on a magistrate by this Part is conferred on the
4
magistrate:
5
(a) in a personal capacity; and
6
(b) not as a court or a member of a court.
7
Powers need not be accepted
8
(2) The magistrate need not accept the power conferred.
9
Protection and immunity
10
(3) A magistrate exercising a power conferred by this Part has the
11
same protection and immunity as if he or she were exercising the
12
power:
13
(a) as the court of which the magistrate is a member; or
14
(b) as a member of the court of which the magistrate is a
15
member.
16
17
Part 19 Audits
Division 1 Introduction
Section 213
240 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 19--Audits
1
Division 1--Introduction
2
213 Simplified outline
3
The following is a simplified outline of this Part:
4
·
The Administrator may require audits of one or more aspects
5
of a person's compliance with this Act and the regulations to
6
be carried out.
7
8
Audits Part 19
Audits Division 2
Section 214
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 241
Division 2--Audits
1
214 Compliance audits
2
Scope
3
(1) This section applies if:
4
(a) a person is, or has been, the project proponent for an eligible
5
offsets project; and
6
(b) the Administrator has reasonable grounds to suspect that the
7
person has contravened, is contravening, or is proposing to
8
contravene, this Act or the associated provisions.
9
Audit
10
(2) The Administrator may, by written notice given to the person,
11
require the person to:
12
(a) appoint as an audit team leader:
13
(i) a registered greenhouse and energy auditor of the
14
person's choice; or
15
(ii) if the Administrator specifies a registered greenhouse
16
and energy auditor in the notice--that auditor; or
17
(iii) if the Administrator specifies more than one registered
18
greenhouse and energy auditor in the notice--any one
19
of those auditors; and
20
(b) arrange for the audit team leader to carry out an audit on one
21
or more aspects of the person's compliance with this Act or
22
the associated provisions; and
23
(c) arrange for the audit team leader to give the person a written
24
report setting out the results of the audit; and
25
(d) give the Administrator a copy of the audit report on or before
26
the day specified in the notice.
27
Note:
For the conduct of an audit under this section, see section 75AA of the
28
National Greenhouse and Energy Reporting Act 2007.
29
(3) The notice must specify:
30
(a) the type of audit to be carried out; and
31
(b) the matters to be covered by the audit; and
32
Part 19 Audits
Division 2 Audits
Section 214
242 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c) the form of the audit report and the kinds of details it is to
1
contain.
2
(4) A person must provide the audit team leader, and any persons
3
assisting the audit team leader, with all reasonable facilities and
4
assistance necessary for the effective exercise of the audit team
5
leader's duties under this Act.
6
(5) If the Administrator gives a person written notice under
7
subsection (2), the person must comply with the requirements of
8
the notice.
9
Ancillary contraventions
10
(6) A person must not:
11
(a) aid, abet, counsel or procure a contravention of subsection (4)
12
or (5); or
13
(b) induce, whether by threats or promises or otherwise, a
14
contravention of subsection (4) or (5); or
15
(c) be in any way, directly or indirectly, knowingly concerned in,
16
or party to, a contravention of subsection (4) or (5); or
17
(d) conspire with others to effect a contravention of
18
subsection (4) or (5).
19
Civil penalty provisions
20
(7) Subsections (4), (5) and (6) are civil penalty provisions.
21
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
22
provisions.
23
Reimbursement
24
(8)
If:
25
(a) the Administrator gives a person a notice under
26
subsection (2); and
27
(b) in complying with that notice, the person arranges for an
28
audit team leader to carry out an audit on one or more aspects
29
of the person's compliance with this Act or the associated
30
provisions; and
31
Audits Part 19
Audits Division 2
Section 215
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 243
(c) the audit report does not indicate that there is evidence of
1
non-compliance by the person with this Act or the associated
2
provisions; and
3
(d) the person requests the Administrator to reimburse the person
4
for reasonable costs incurred by the person in complying with
5
the notice; and
6
(e) the Administrator is satisfied that the person would suffer
7
financial hardship if the person were not reimbursed for those
8
costs;
9
the Administrator may, on behalf of the Commonwealth, reimburse
10
the person for those costs.
11
(9) A request under paragraph (8)(d) must:
12
(a) be in writing; and
13
(b) be in a form approved, in writing, by the Administrator; and
14
(c) be accompanied by such information as is specified in the
15
regulations; and
16
(d) be accompanied by such documents (if any) as are specified
17
in the regulations.
18
(10) The approved form of request may provide for verification by
19
statutory declaration of statements in requests.
20
215 Other audits
21
Audit
22
(1) If a person is, or has been, the project proponent for an eligible
23
offsets project, the Administrator may appoint a registered
24
greenhouse and energy auditor as an audit team leader to carry out
25
an audit of the person's compliance with one or more aspects of
26
this Act or the associated provisions.
27
(2) The Administrator must give written notice to the person of a
28
decision to appoint an audit team leader under subsection (1). The
29
notice must:
30
(a) specify the audit team leader; and
31
(b) specify the period within which the audit is to be undertaken;
32
and
33
Part 19 Audits
Division 2 Audits
Section 215
244 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c) specify the type of audit to be carried out; and
1
(d) specify the matters to be covered by the audit; and
2
(e) be given to the person at a reasonable time before the audit is
3
to be undertaken.
4
Note:
For the conduct of an audit under this section, see section 75AA of the
5
National Greenhouse and Energy Reporting Act 2007.
6
(3) The person must provide the audit team leader, and any persons
7
assisting the audit team leader, with all reasonable facilities and
8
assistance necessary for the effective exercise of the audit team
9
leader's duties under this Act.
10
Ancillary contraventions
11
(4) A person must not:
12
(a) aid, abet, counsel or procure a contravention of
13
subsection (3); or
14
(b) induce, whether by threats or promises or otherwise, a
15
contravention of subsection (3); or
16
(c) be in any way, directly or indirectly, knowingly concerned in,
17
or party to, a contravention of subsection (3); or
18
(d) conspire with others to effect a contravention of
19
subsection (3).
20
Civil penalty provisions
21
(5) Subsections (3) and (4) are civil penalty provisions.
22
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
23
provisions.
24
25
Liability of executive officers of bodies corporate Part 20
Section 216
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 245
Part 20--Liability of executive officers of bodies
1
corporate
2
3
216 Simplified outline
4
The following is a simplified outline of this Part:
5
·
If a body corporate contravenes a civil penalty provision, and
6
an executive officer of the body corporate was involved in the
7
contravention, the officer will contravene a civil penalty
8
provision.
9
217 Civil penalties for executive officers of bodies corporate
10
(1)
If:
11
(a) a body corporate contravenes a civil penalty provision; and
12
(b) an executive officer of the body corporate knew that, or was
13
reckless or negligent as to whether, the contravention would
14
occur; and
15
(c) the officer was in a position to influence the conduct of the
16
body corporate in relation to the contravention; and
17
(d) the officer failed to take all reasonable steps to prevent the
18
contravention;
19
the officer contravenes this subsection.
20
(2) For the purposes of subsection (1), the officer is reckless as to
21
whether the contravention would occur if:
22
(a) the officer is aware of a substantial risk that the contravention
23
would occur; and
24
(b) having regard to the circumstances known to the officer, it is
25
unjustifiable to take the risk.
26
(3) For the purposes of subsection (1), the officer is negligent as to
27
whether the contravention would occur if the officer's conduct
28
involves:
29
(a) such a great falling short of the standard of care that a
30
reasonable person would exercise in the circumstances; and
31
Part 20 Liability of executive officers of bodies corporate
Section 218
246 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) such a high risk that the contravention would occur;
1
that the conduct merits the imposition of a pecuniary penalty.
2
Civil penalty provision
3
(4) Subsection (1) is a civil penalty provision.
4
Note:
Part 21 provides for pecuniary penalties for breaches of civil penalty
5
provisions.
6
218 Reasonable steps to prevent contravention
7
(1) For the purposes of section 217, in determining whether an
8
executive officer of a body corporate failed to take all reasonable
9
steps to prevent a contravention, a court may have regard to all
10
relevant matters, including:
11
(a) what action (if any) the officer took directed towards
12
ensuring the following (to the extent that the action is
13
relevant to the contravention):
14
(i) that the body corporate arranges regular professional
15
assessments of the body corporate's compliance with
16
civil penalty provisions;
17
(ii) that the body corporate implements any appropriate
18
recommendations arising from such an assessment;
19
(iii) that the body corporate's employees, agents and
20
contractors have a reasonable knowledge and
21
understanding of the requirements to comply with civil
22
penalty provisions in so far as those requirements affect
23
the employees, agents or contractors concerned; and
24
(b) what action (if any) the officer took when he or she became
25
aware of the contravention.
26
(2) This section does not limit section 217.
27
28
Civil penalty orders Part 21
Section 219
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 247
Part 21--Civil penalty orders
1
2
219 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Pecuniary penalties are payable for contraventions of civil
5
penalty provisions.
6
220 References to Court
7
In this Part:
8
Court means:
9
(a) the Federal Court; or
10
(b) a court of a State or Territory that has jurisdiction in relation
11
to matters arising under this Act.
12
221 Civil penalty orders
13
(1) If a Court is satisfied that a person has contravened a civil penalty
14
provision, the Court may order the person to pay the
15
Commonwealth a pecuniary penalty.
16
(2) An order under subsection (1) is to be known as a civil penalty
17
order.
18
Determining amount of pecuniary penalty
19
(3) In determining the pecuniary penalty, the Court may have regard to
20
all relevant matters, including:
21
(a) the nature and extent of the contravention; and
22
(b) the nature and extent of any loss or damage suffered as a
23
result of the contravention; and
24
(c) the circumstances in which the contravention took place; and
25
(d) whether the person has previously been found by a court in
26
proceedings under this Act to have engaged in any similar
27
conduct; and
28
Part 21 Civil penalty orders
Section 222
248 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(e) the extent to which the person has co-operated with the
1
authorities; and
2
(f) if the person is a body corporate:
3
(i) the level of the employees, officers or agents of the
4
body corporate involved in the contravention; and
5
(ii) whether the body corporate exercised due diligence to
6
avoid the contravention; and
7
(iii) whether the body corporate had a corporate culture
8
conducive to compliance.
9
(4) The pecuniary penalty payable under subsection (1) by a body
10
corporate must not exceed 10,000 penalty units for each
11
contravention.
12
(5) The pecuniary penalty payable under subsection (1) by a person
13
other than a body corporate must not exceed 2,000 penalty units for
14
each contravention.
15
Civil enforcement of penalty
16
(6) A pecuniary penalty is a civil debt payable to the Commonwealth.
17
The Commonwealth may enforce the civil penalty order as if it
18
were an order made in civil proceedings against the person to
19
recover a debt due by the person. The debt arising from the order is
20
taken to be a judgement debt.
21
222 Who may apply for a civil penalty order
22
(1) Only the Administrator may apply for a civil penalty order.
23
(2) Subsection (1) does not exclude the operation of the Director of
24
Public Prosecutions Act 1983.
25
223 Two or more proceedings may be heard together
26
The Court may direct that 2 or more proceedings for civil penalty
27
orders are to be heard together.
28
Civil penalty orders Part 21
Section 224
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 249
224 Time limit for application for an order
1
Proceedings for a civil penalty order may be started no later than 6
2
years after the contravention.
3
225 Civil evidence and procedure rules for civil penalty orders
4
The Court must apply the rules of evidence and procedure for civil
5
matters when hearing proceedings for a civil penalty order.
6
226 Civil proceedings after criminal proceedings
7
The Court must not make a civil penalty order against a person for
8
a contravention of a civil penalty provision if the person has been
9
convicted of an offence constituted by conduct that is substantially
10
the same as the conduct constituting the contravention.
11
227 Criminal proceedings during civil proceedings
12
(1) Proceedings for a civil penalty order against a person for a
13
contravention of a civil penalty provision are stayed if:
14
(a) criminal proceedings are started or have already been started
15
against the person for an offence; and
16
(b) the offence is constituted by conduct that is substantially the
17
same as the conduct alleged to constitute the contravention.
18
(2) The proceedings for the order may be resumed if the person is not
19
convicted of the offence. Otherwise, the proceedings for the order
20
are dismissed.
21
228 Criminal proceedings after civil proceedings
22
Criminal proceedings may be started against a person for conduct
23
that is substantially the same as conduct constituting a
24
contravention of a civil penalty provision regardless of whether a
25
civil penalty order has been made against the person.
26
Part 21 Civil penalty orders
Section 229
250 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
229 Evidence given in proceedings for a civil penalty order not
1
admissible in criminal proceedings
2
Evidence of information given, or evidence of production of
3
documents, by an individual is not admissible in criminal
4
proceedings against the individual if:
5
(a) the individual previously gave the evidence or produced the
6
documents in proceedings for a civil penalty order against the
7
individual for a contravention of a civil penalty provision
8
(whether or not the order was made); and
9
(b) the conduct alleged to constitute the offence is substantially
10
the same as the conduct that was claimed to constitute the
11
contravention.
12
However, this does not apply to a criminal proceeding in respect of
13
the falsity of the evidence given by the individual in the
14
proceedings for the civil penalty order.
15
230 Mistake of fact
16
(1) A person is not liable to have a civil penalty order made against the
17
person for a contravention of a civil penalty provision if:
18
(a) at or before the time of the conduct constituting the
19
contravention, the person:
20
(i) considered whether or not facts existed; and
21
(ii) was under a mistaken but reasonable belief about those
22
facts; and
23
(b) had those facts existed, the conduct would not have
24
constituted a contravention of the civil penalty provision.
25
(2) For the purposes of subsection (1), a person may be regarded as
26
having considered whether or not facts existed if:
27
(a) the person had considered, on a previous occasion, whether
28
those facts existed in the circumstances surrounding that
29
occasion; and
30
(b) the person honestly and reasonably believed that the
31
circumstances surrounding the present occasion were the
32
same, or substantially the same, as those surrounding the
33
previous occasion.
34
Civil penalty orders Part 21
Section 231
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 251
(3) A person who wishes to rely on subsection (1) or (2) in
1
proceedings for a civil penalty order bears an evidential burden in
2
relation to that matter.
3
231 State of mind
4
Scope
5
(1) This section applies to proceedings for a civil penalty order against
6
a person for a contravention of any of the following civil penalty
7
provisions:
8
(a)
subsection
76(1);
9
(b)
subsection
78(2);
10
(c)
subsection
79(2);
11
(d)
subsection
80(2);
12
(e)
subsection
81(2);
13
(f)
subsection
82(2);
14
(g)
subsection
82(3);
15
(h)
subsection
83(2);
16
(i)
subsection
84(2);
17
(j)
subsection
85(5);
18
(k)
subsection
97(9);
19
(l)
subsection
97(10);
20
(m)
subsection
185(4);
21
(n)
subsection
191(2);
22
(o)
subsection
192(3);
23
(p)
subsection
193(2);
24
(q)
subsection
194(2);
25
(r)
subsection
214(4);
26
(s)
subsection
214(5);
27
(t)
subsection
215(3).
28
State of mind
29
(2) In the proceedings, it is not necessary to prove:
30
(a) the person's intention; or
31
(b) the person's knowledge; or
32
Part 21 Civil penalty orders
Section 232
252 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c) the person's recklessness; or
1
(d) the person's negligence; or
2
(e) any other state of mind of the person.
3
(3) Subsection (2) does not affect the operation of section 230.
4
232 Continuing contraventions
5
(1) If an act or thing is required, under a civil penalty provision of this
6
Act, to be done within a particular period, or before a particular
7
time, then the obligation to do that act or thing continues (even if
8
the period has expired or the time has passed) until the act or thing
9
is done.
10
(2) A person who contravenes any of the following civil remedy
11
provisions:
12
(a)
subsection
76(1);
13
(b)
subsection
78(2);
14
(c)
subsection
79(2);
15
(d)
subsection
80(2);
16
(e)
subsection
81(2);
17
(f)
subsection
82(2);
18
(g)
subsection
82(3);
19
(h)
subsection
83(2);
20
(i)
subsection
84(2);
21
(j)
subsection
85(5);
22
(k)
subsection
185(4);
23
(l)
subsection
193(2);
24
(m)
subsection
194(2);
25
(n)
subsection
214(4);
26
(o)
subsection
214(5);
27
commits a separate contravention of that provision in respect of
28
each day (including a day of the making of a relevant civil penalty
29
order or any subsequent day) during which the contravention
30
continues.
31
Civil penalty orders Part 21
Section 232
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 253
(3) The pecuniary penalty payable under subsection 221(1) for such a
1
separate contravention in respect of a particular day must not
2
exceed:
3
(a) in the case of a contravention of subsection 185(4)--10% of
4
the maximum pecuniary penalty that could have been
5
imposed for the contravention if subsection (2) of this section
6
had not been enacted; or
7
(b) otherwise--5% of the maximum pecuniary penalty that could
8
have been imposed for the contravention if subsection (2) of
9
this section had not been enacted.
10
11
Part 22 Offences relating to administrative penalties
Section 233
254 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 22--Offences relating to administrative
1
penalties
2
3
233 Simplified outline
4
The following is a simplified outline of this Part:
5
·
A person must not enter into a scheme:
6
(a)
with the intention, knowledge or belief that the
7
scheme will secure or achieve the result that a
8
body corporate or trust will be unable to pay an
9
administrative penalty payable under this Act; or
10
(b)
if it would be reasonable to conclude that the
11
person entered into the scheme for the sole or
12
dominant purpose of securing or achieving the
13
result that a body corporate or trust will be unable
14
to pay an administrative penalty payable under this
15
Act.
16
234 Scheme to avoid existing liability to pay administrative penalty
17
Intention
18
(1) A person commits an offence if:
19
(a) a penalty is due and payable by a body corporate or trust
20
under section 179; and
21
(b) at or after the time when the penalty became due and
22
payable, the person entered into a scheme; and
23
(c) the person entered into the scheme with the intention of
24
securing or achieving the result, either generally or for a
25
limited period, that the body corporate or trust:
26
(i) will be unable; or
27
(ii) will be likely to be unable; or
28
(iii) will continue to be unable; or
29
(iv) will be likely to continue to be unable;
30
Offences relating to administrative penalties Part 22
Section 234
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 255
having regard to the other debts of the body corporate or
1
trust, to pay the penalty.
2
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
3
(2) For the purposes of subsection (1), it is immaterial whether the
4
body corporate or the trustee of the trust is:
5
(a) the person mentioned in subsection (1); or
6
(b) a party to the scheme.
7
Knowledge or belief
8
(3) A person commits an offence if:
9
(a) a penalty is due and payable by a body corporate or trust
10
under section 179; and
11
(b) at or after the time when the penalty became due and
12
payable, the person entered into a scheme; and
13
(c) the person entered into the scheme with the knowledge or
14
belief that the scheme will, or will be likely to, secure or
15
achieve the result, either generally or for a limited period,
16
that the body corporate or trust:
17
(i) will be unable; or
18
(ii) will be likely to be unable; or
19
(iii) will continue to be unable; or
20
(iv) will be likely to continue to be unable;
21
having regard to the other debts of the body corporate or
22
trust, to pay the penalty.
23
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
24
(4) For the purposes of subsection (3), it is immaterial whether the
25
body corporate or the trustee of the trust is:
26
(a) the person mentioned in subsection (3); or
27
(b) a party to the scheme.
28
Objective purpose
29
(5) A person (the first person) commits an offence if:
30
(a) a penalty is due and payable by a body corporate or trust
31
under section 179; and
32
Part 22 Offences relating to administrative penalties
Section 235
256 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) at or after the time when the penalty became due and
1
payable, the first person entered into a scheme; and
2
(c) having regard to:
3
(i) the manner in which the scheme was entered into; and
4
(ii) the form and substance of the scheme, including any
5
legal rights and obligations involved in the scheme and
6
the economic and commercial substance of the scheme;
7
and
8
(iii) the timing of the scheme;
9
it would be reasonable to conclude that the first person
10
entered into the scheme for the sole or dominant purpose of
11
securing or achieving the result, either generally or for a
12
limited period, that the body corporate or trust:
13
(iv) will be unable; or
14
(v) will be likely to be unable; or
15
(vi) will continue to be unable; or
16
(vii) will be likely to continue to be unable;
17
to pay the penalty.
18
Penalty: Imprisonment for 3 years or 850 penalty units, or both.
19
(6) For the purposes of subsection (5), it is immaterial whether the
20
body corporate or the trustee of the trust is:
21
(a) the first person; or
22
(b) a party to the scheme.
23
235 Scheme to avoid future liability to pay administrative penalty
24
Intention
25
(1) A person commits an offence if:
26
(a) a penalty is due and payable by a body corporate or trust
27
under section 179; and
28
(b) before the penalty became due and payable, the person
29
entered into a scheme; and
30
(c) the person entered into the scheme with the intention of
31
securing or achieving the result, either generally or for a
32
limited period, that, in the event that the body corporate or
33
Offences relating to administrative penalties Part 22
Section 235
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 257
trust were to become liable to pay the penalty, the body
1
corporate or trust:
2
(i) will be unable; or
3
(ii) will be likely to be unable; or
4
(iii) will continue to be unable; or
5
(iv) will be likely to continue to be unable;
6
having regard to the other debts of the body corporate or
7
trust, to pay the penalty.
8
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
9
(2) For the purposes of subsection (1), it is immaterial whether the
10
body corporate or the trustee of the trust is:
11
(a) the person mentioned in subsection (1); or
12
(b) a party to the scheme.
13
Knowledge or belief
14
(3) A person commits an offence if:
15
(a) a penalty is due and payable by a body corporate or trust
16
under section 179; and
17
(b) before the penalty became due and payable, the person
18
entered into a scheme; and
19
(c) the person entered into the scheme with the knowledge or
20
belief that the scheme will, or will be likely to, secure or
21
achieve the result, either generally or for a limited period,
22
that, in the event that the body corporate or trust were to
23
become liable to pay the penalty, the body corporate or trust:
24
(i) will be unable; or
25
(ii) will be likely to be unable; or
26
(iii) will continue to be unable; or
27
(iv) will be likely to continue to be unable;
28
having regard to the other debts of the body corporate or
29
trust, to pay the penalty.
30
Penalty: Imprisonment for 7 years or 2,000 penalty units, or both.
31
(4) For the purposes of subsection (3), it is immaterial whether the
32
body corporate or the trustee of the trust is:
33
Part 22 Offences relating to administrative penalties
Section 235
258 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(a) the person mentioned in subsection (3); or
1
(b) a party to the scheme.
2
Objective purpose
3
(5) A person (the first person) commits an offence if:
4
(a) a penalty is due and payable by a body corporate or trust
5
under section 179; and
6
(b) before the penalty became due and payable, the first person
7
entered into a scheme; and
8
(c) having regard to:
9
(i) the manner in which the scheme was entered into; and
10
(ii) the form and substance of the scheme, including any
11
legal rights and obligations involved in the scheme and
12
the economic and commercial substance of the scheme;
13
and
14
(iii) the timing of the scheme;
15
it would be reasonable to conclude that the first person
16
entered into the scheme for the sole or dominant purpose of
17
securing or achieving the result, either generally or for a
18
limited period, that, in the event that the body corporate or
19
trust were to become liable to pay the penalty, the body
20
corporate or trust:
21
(iv) will be unable; or
22
(v) will be likely to be unable; or
23
(vi) will continue to be unable; or
24
(vii) will be likely to continue to be unable;
25
to pay the penalty.
26
Penalty: Imprisonment for 3 years or 850 penalty units, or both.
27
(6) For the purposes of subsection (5), it is immaterial whether the
28
body corporate or the trustee of the trust is:
29
(a) the first person; or
30
(b) a party to the scheme.
31
32
Enforceable undertakings Part 23
Section 236
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 259
Part 23--Enforceable undertakings
1
2
236 Simplified outline
3
The following is a simplified outline of this Part:
4
·
A person may give the Administrator an enforceable
5
undertaking about compliance with this Act or the associated
6
provisions.
7
237 Acceptance of undertakings
8
(1) The Administrator may accept any of the following undertakings:
9
(a) a written undertaking given by a person that the person will,
10
in order to comply with this Act or the associated provisions,
11
take specified action;
12
(b) a written undertaking given by a person that the person will,
13
in order to comply with this Act or the associated provisions,
14
refrain from taking specified action;
15
(c) a written undertaking given by a person that the person will
16
take specified action directed towards ensuring that the
17
person does not contravene this Act or the associated
18
provisions, or is unlikely to contravene this Act or the
19
associated provisions, in the future.
20
(2) The undertaking must be expressed to be an undertaking under this
21
section.
22
(3) The person may withdraw or vary the undertaking at any time, but
23
only with the consent of the Administrator.
24
(4) The Administrator may, by written notice given to the person,
25
cancel the undertaking.
26
(5) The Administrator must publish the undertaking on the
27
Administrator's website.
28
Part 23 Enforceable undertakings
Section 238
260 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
238 Enforcement of undertakings
1
(1)
If:
2
(a) a person has given an undertaking under section 237; and
3
(b) the undertaking has not been withdrawn or cancelled; and
4
(c) the Administrator considers that the person has breached the
5
undertaking;
6
the Administrator may apply to the Federal Court for an order
7
under subsection (2) of this section.
8
(2) If the Federal Court is satisfied that the person has breached the
9
undertaking, the court may make any or all of the following orders:
10
(a) an order directing the person to comply with the undertaking;
11
(b) an order directing the person to pay to the Administrator, on
12
behalf of the Commonwealth, an amount up to the amount of
13
any financial benefit that the person has obtained directly or
14
indirectly and that is reasonably attributable to the breach;
15
(c) any order that the court considers appropriate directing the
16
person to compensate any other person who has suffered loss
17
or damage as a result of the breach;
18
(d) any other order that the court considers appropriate.
19
20
Review of decisions Part 24
Introduction Division 1
Section 239
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 261
Part 24--Review of decisions
1
Division 1--Introduction
2
239 Simplified outline
3
The following is a simplified outline of this Part:
4
·
Certain decisions of delegates of the Administrator may be
5
reviewed by the Administrative Appeals Tribunal following a
6
process of internal reconsideration by the Administrator.
7
·
Certain decisions of the Administrator may be reviewed by the
8
Administrative Appeals Tribunal.
9
·
Certain decisions of the Domestic Offsets Integrity Committee
10
may be reviewed by the Administrative Appeals Tribunal.
11
12
Part 24 Review of decisions
Division 2 Decisions of the Administrator
Section 240
262 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Decisions of the Administrator
1
240 Reviewable decisions
2
For the purposes of this Act, each of the following decisions of the
3
Administrator is a reviewable decision:
4
5
Reviewable decisions
Item Decision
1
A decision to refuse to issue a certificate of entitlement under section 15.
2
A decision under subsection 15(3) to state that a specified number is the unit
entitlement in respect of a certificate of entitlement.
3
A decision to refuse to declare that an offsets project is an eligible offsets
project under section 27.
4
A decision, under regulations made for the purposes of subsection 29(1), to
vary an eligible offsets project declaration.
5
A decision, under regulations made for the purposes of any of the following
provisions, to refuse to vary an eligible offsets project declaration:
(a) subsection 29(1);
(b) subsection 30(1);
(c) subsection 31(2).
6
A decision, under regulations made for the purposes of any of the following
provisions, to revoke an eligible offsets project declaration:
(a) subsection 32(1);
(b) subsection 33(1);
(c) subsection 34(1);
(d) subsection 35(1);
(e) subsection 36(1);
(f) subsection 37(1);
(g) subsection 38(1);
(h) subsection 139(1).
7
A decision, under regulations made for the purposes of either of the
following provisions, to refuse to revoke an eligible offsets project
declaration:
(a) subsection 32(1);
(b) subsection 33(1).
Review of decisions Part 24
Decisions of the Administrator Division 2
Section 241
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 263
Reviewable decisions
Item Decision
8
A decision to make a determination under section 57 or 58.
9
A decision to refuse to recognise a person as a recognised offsets entity
under section 64.
10
A decision under section 65 to cancel a person's recognition as a recognised
offsets entity.
11
A decision under section 74 to determine a subsequent crediting period for
an eligible offsets project.
12
A decision under section 74 to refuse to determine a subsequent crediting
period for an eligible offsets project.
13
A decision under section 88, 89, 90 or 91 to require a person to relinquish a
specified number of Australian carbon credit units.
14
A decision to refuse to make a determination under section 95.
15
A decision to make a declaration under subsection 97(2).
16
A decision under section 98 to vary a carbon maintenance obligation
declaration.
17
A decision under section 98 to refuse to vary a carbon maintenance
obligation declaration.
18
A decision under section 99 to refuse to revoke a carbon maintenance
obligation declaration.
19
A decision under section 130 to refuse to approve the application of a
methodology determination to an eligible offsets project.
20
A decision to refuse to extend a period under subsection 153(5).
21
A decision under section 169 to refuse a request not to set out the project
area or project areas for an eligible offsets project in the Register of Offsets
Projects.
22
A decision to refuse to remit the whole or a part of an amount under
subsection 180(2).
241 Applications for reconsideration of decisions made by delegates
1
of the Administrator
2
Scope
3
(1) This section applies to a reviewable decision if the decision is
4
made by a delegate of the Administrator.
5
Part 24 Review of decisions
Division 2 Decisions of the Administrator
Section 242
264 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Application
1
(2) A person affected by a reviewable decision who is dissatisfied with
2
the decision may apply to the Administrator for the Administrator
3
to reconsider the decision.
4
(3) The application must:
5
(a) be in a form approved in writing by the Administrator; and
6
(b) set out the reasons for the application; and
7
(c) be accompanied by the fee (if any) specified in the
8
regulations.
9
(4) The application must be made within:
10
(a) 28 days after the applicant is informed of the decision; or
11
(b) if, either before or after the end of that period of 28 days, the
12
Administrator extends the period within which the
13
application may be made--the extended period.
14
(5) An approved form of an application may provide for verification
15
by statutory declaration of statements in applications.
16
(6) A fee specified under paragraph (3)(c) must not be such as to
17
amount to taxation.
18
242 Reconsideration by the Administrator
19
(1) Upon receiving such an application, the Administrator must:
20
(a) reconsider the decision; and
21
(b) affirm, vary or revoke the decision.
22
(2) The Administrator's decision on reconsideration of a decision has
23
effect as if it had been made under the provision under which the
24
original decision was made.
25
(3) The Administrator must give to the applicant a written notice
26
stating the Administrator's decision on the reconsideration.
27
(4) Within 28 days after making the decision on the reconsideration,
28
the Administrator must give the applicant a written statement of the
29
Administrator's reasons for the decision.
30
Review of decisions Part 24
Decisions of the Administrator Division 2
Section 243
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 265
243 Deadline for reconsideration
1
(1) The Administrator must make his or her decision on
2
reconsideration of a decision within 90 days after receiving an
3
application for reconsideration.
4
(2) The Administrator is taken, for the purposes of this Part, to have
5
made a decision affirming the original decision if he or she has not
6
informed the applicant of his or her decision on the reconsideration
7
before the end of the period of 90 days.
8
244 Review by the Administrative Appeals Tribunal
9
(1) Applications may be made to the Administrative Appeals Tribunal
10
to review a reviewable decision if the Administrator has affirmed
11
or varied the decision under section 242.
12
(2) Applications may be made to the Administrative Appeals Tribunal
13
to review a reviewable decision if the decision was not made by a
14
delegate of the Administrator.
15
245 Stay of proceedings for the recovery of an administrative
16
penalty
17
Scope
18
(1) This section applies if:
19
(a) a notice was given under section 88, 89, 90 or 91 in relation
20
to a project that is or was an eligible offsets project; and
21
(b) the notice required a person to relinquish a particular number
22
of Australian carbon credit units; and
23
(c) the person did not comply with the requirement within 90
24
days after the notice was given; and
25
(d) proceedings for the recovery of the penalty payable under
26
section 179 in respect of the non-compliance with the
27
requirement (including any late payment penalty payable
28
under section 180 in relation to the section 179 penalty) are
29
before a court; and
30
(e) any of the following subparagraphs applies:
31
Part 24 Review of decisions
Division 2 Decisions of the Administrator
Section 245
266 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(i) the decision to require the person to relinquish a
1
specified number of Australian carbon credit units is
2
being reconsidered by the Administrator under
3
section 242;
4
(ii) the decision to require the person to relinquish a
5
specified number of Australian carbon credit units has
6
been affirmed or varied by the Administrator under
7
section 242, and the decision as so affirmed or varied is
8
the subject of an application for review by the
9
Administrative Appeals Tribunal;
10
(iii) the decision to require the person to relinquish a
11
specified number of Australian carbon credit units is the
12
subject of an application for review by the
13
Administrative Appeals Tribunal.
14
Stay of proceedings
15
(2) The court may stay the proceedings until:
16
(a) if subparagraph (1)(e)(i) applies--the Administrator notifies
17
the applicant for reconsideration of the Administrator's
18
decision on the reconsideration; or
19
(b) if subparagraph (1)(e)(ii) or (iii) applies--the review by the
20
Administrative Appeals Tribunal (including any court
21
proceedings arising out of the review) has been finalised.
22
(3) This section does not limit the power of:
23
(a) a court; or
24
(b) a Judge; or
25
(c)
a
magistrate;
26
under any other law to order a stay of proceedings.
27
28
Review of decisions Part 24
Decisions of the Domestic Offsets Integrity Committee Division 3
Section 245A
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 267
Division 3--Decisions of the Domestic Offsets Integrity
1
Committee
2
245A Review by the Administrative Appeals Tribunal
3
Applications may be made to the Administrative Appeals Tribunal
4
for review of any of the following decisions of the Domestic
5
Offsets Integrity Committee:
6
(a) a decision under section 112 to refuse to endorse a proposal
7
for a methodology determination;
8
(b) a decision under section 120 to refuse to endorse a proposal
9
for the variation of a methodology determination.
10
11
Part 25 Carbon Credits Administrator
Section 246
268 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 25--Carbon Credits Administrator
1
2
246 Carbon Credits Administrator
3
(1) There is to be a Carbon Credits Administrator.
4
Note: In
this
Act,
Administrator means the Carbon Credits Administrator--
5
see section 5.
6
(2) The Administrator is to be a person who is:
7
(a) an SES employee in the Department; and
8
(b) specified in a written instrument made by the Secretary.
9
(3) An instrument under paragraph (2)(b) is not a legislative
10
instrument.
11
247 Functions of the Administrator
12
The Administrator has the following functions:
13
(a) such functions as are conferred on the Administrator by this
14
Act or the regulations;
15
(b) such functions as are conferred on the Administrator by the
16
Australian National Registry of Emissions Units Act 2011 or
17
regulations under that Act;
18
(c) such functions as are conferred on the Administrator by any
19
other law of the Commonwealth;
20
(d) to do anything incidental to or conducive to the performance
21
of any of the above functions.
22
248 Acting Administrator
23
(1) The Secretary may, by written instrument, appoint a person to act
24
as the Administrator:
25
(a) during a vacancy in the office of the Administrator (whether
26
or not an appointment has previously been made to the
27
office); or
28
(b) during any period, or during all periods, when the
29
Administrator:
30
(i) is absent from duty or Australia; or
31
Carbon Credits Administrator Part 25
Section 249
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 269
(ii) is, for any reason, unable to perform the duties of the
1
office.
2
(2) A person is not eligible for appointment to act as the Administrator
3
unless the person is eligible for appointment as the Administrator.
4
(3) Anything done by or in relation to a person purporting to act under
5
an appointment is not invalid merely because:
6
(a) the occasion for the appointment had not arisen; or
7
(b) there was a defect or irregularity in connection with the
8
appointment; or
9
(c) the appointment had ceased to have effect; or
10
(d) the occasion to act had not arisen or had ceased.
11
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
12
249 Delegation by the Administrator
13
(1) The Administrator may, by writing, delegate any or all of the
14
Administrator's functions or powers to:
15
(a) an SES employee, or acting SES employee, in the
16
Department; or
17
(b) an APS employee who holds or performs the duties of an
18
Executive Level 2 position, or an equivalent position, in the
19
Department.
20
(2) A delegate must comply with any written directions of the
21
Administrator.
22
(3) Subsection (1) does not apply to a power to make, vary or revoke a
23
legislative instrument.
24
250 Administrator to be assisted by APS employees in the
25
Department
26
The Administrator is to be assisted by APS employees in the
27
Department who are made available for the purpose by the
28
Secretary.
29
Part 25 Carbon Credits Administrator
Section 251
270 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
251 Other persons assisting the Administrator
1
The Administrator may also be assisted:
2
(a) by officers and employees of Agencies (within the meaning
3
of the Public Service Act 1999) other than the Department; or
4
(b) by officers and employees of authorities of the
5
Commonwealth; or
6
(c) by officers and employees of a State or Territory; or
7
(d) by officers and employees of authorities of a State or
8
Territory;
9
whose services are made available to the Administrator in
10
connection with the performance of any of his or her functions.
11
252 Consultants
12
(1) The Administrator may, on behalf of the Commonwealth, engage
13
persons having suitable qualifications and experience as
14
consultants to the Administrator.
15
(2) The consultants are to be engaged on the terms and conditions that
16
the Administrator determines in writing.
17
253 Minister may give directions to the Administrator
18
(1) The Minister may, by legislative instrument, give directions to the
19
Administrator in relation to the performance of his or her
20
functions.
21
Note 1:
For variation and revocation, see subsection 33(3) of the Acts
22
Interpretation Act 1901.
23
Note 2:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
24
Instruments Act 2003 do not apply to the direction (see sections 44
25
and 54 of that Act).
26
(2) A direction under subsection (1) must be of a general nature only.
27
(3) The Administrator must comply with a direction under
28
subsection (1).
29
30
Domestic Offsets Integrity Committee Part 26
Establishment and functions of the Domestic Offsets Integrity Committee Division 1
Section 254
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 271
Part 26--Domestic Offsets Integrity Committee
1
Division 1--Establishment and functions of the Domestic
2
Offsets Integrity Committee
3
254 Establishment of the Domestic Offsets Integrity Committee
4
The Domestic Offsets Integrity Committee is established.
5
255 Functions of the Domestic Offsets Integrity Committee
6
The Domestic Offsets Integrity Committee has the following
7
functions:
8
(a) the functions that are conferred on it by this Act and the
9
regulations;
10
(b) to advise the Minister about matters that:
11
(i) relate to offsets projects; and
12
(ii) are referred to the Committee by the Minister;
13
(c) to advise the Secretary about matters that:
14
(i) relate to offsets projects; and
15
(ii) are referred to the Committee by the Secretary;
16
(d) to do anything incidental to or conducive to the performance
17
of the above functions.
18
19
Part 26 Domestic Offsets Integrity Committee
Division 2 Membership of the Domestic Offsets Integrity Committee
Section 256
272 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Division 2--Membership of the Domestic Offsets Integrity
1
Committee
2
256 Membership of the Domestic Offsets Integrity Committee
3
The Domestic Offsets Integrity Committee consists of the
4
following members:
5
(a)
a
Chair;
6
(b) at least 4, and not more than 5, other members.
7
257 Appointment of Domestic Offsets Integrity Committee members
8
(1) Each Domestic Offsets Integrity Committee member is to be
9
appointed by the Minister by written instrument.
10
Note:
A Domestic Offsets Integrity Committee member is eligible for
11
reappointment: see the Acts Interpretation Act 1901.
12
(2) A person is not eligible for appointment as a Domestic Offsets
13
Integrity Committee member unless the Minister is satisfied that
14
the person has:
15
(a) substantial experience or knowledge; and
16
(b)
significant
standing;
17
in at least one field of expertise that is relevant to the functions of
18
the Domestic Offsets Integrity Committee.
19
(3) The Minister must ensure that:
20
(a) the Chair of the Domestic Offsets Integrity Committee is not
21
a person covered by subsection (4); and
22
(b) a majority of the other Domestic Offsets Integrity Committee
23
members are not persons covered by subsection (4).
24
(4) This subsection applies to the following persons:
25
(a) an employee of the Commonwealth;
26
(b) an employee of an authority of the Commonwealth;
27
(c) a person who holds a full-time office under a law of the
28
Commonwealth.
29
(5) The Minister must ensure that one Domestic Offsets Integrity
30
Committee member:
31
Domestic Offsets Integrity Committee Part 26
Membership of the Domestic Offsets Integrity Committee Division 2
Section 258
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 273
(a) is an SES employee in the Department; or
1
(b) holds or performs the duties of an Executive Level 2 position,
2
or an equivalent position, in the Department.
3
(6) The Minister must ensure that one Domestic Offsets Integrity
4
Committee member is an officer of the Commonwealth Scientific
5
and Industrial Research Organisation nominated by the Chief
6
Executive of the Commonwealth Scientific and Industrial Research
7
Organisation.
8
(7) A Domestic Offsets Integrity Committee member holds office on a
9
part-time basis.
10
258 Period for appointment for Domestic Offsets Integrity
11
Committee members
12
A Domestic Offsets Integrity Committee member holds office for
13
the period specified in the instrument of appointment. The period
14
must not exceed 5 years.
15
Note:
For re-appointment, see the Acts Interpretation Act 1901.
16
259 Acting Domestic Offsets Integrity Committee members
17
Acting Chair of Domestic Offsets Integrity Committee
18
(1) The Minister may appoint a Domestic Offsets Integrity Committee
19
member to act as the Chair of the Domestic Offsets Integrity
20
Committee:
21
(a) during a vacancy in the office of the Domestic Offsets
22
Integrity Committee Chair (whether or not an appointment
23
has previously been made to the office); or
24
(b) during any period, or during all periods, when the Chair of
25
the Domestic Offsets Integrity Committee:
26
(i) is absent from duty or from Australia; or
27
(ii) is, for any reason, unable to perform the duties of the
28
office.
29
Part 26 Domestic Offsets Integrity Committee
Division 2 Membership of the Domestic Offsets Integrity Committee
Section 259
274 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Acting Domestic Offsets Integrity Committee member (other than
1
the Chair)
2
(2) The Minister may appoint a person to act as a Domestic Offsets
3
Integrity Committee member (other than the Chair of the Domestic
4
Offsets Integrity Committee):
5
(a) during a vacancy in the office of a Domestic Offsets Integrity
6
Committee member (other than the Chair of the Domestic
7
Offsets Integrity Committee), whether or not an appointment
8
has previously been made to the office; or
9
(b) during any period, or during all periods, when a Domestic
10
Offsets Integrity Committee member (other than the Chair of
11
the Domestic Offsets Integrity Committee):
12
(i) is absent from duty or Australia; or
13
(ii) is, for any reason, unable to perform the duties of the
14
office.
15
Eligibility
16
(3) A person is not eligible for appointment to act as:
17
(a) the Chair of the Domestic Offsets Integrity Committee; or
18
(b) a Domestic Offsets Integrity Committee member (other than
19
the Chair of the Domestic Offsets Integrity Committee);
20
unless the person is eligible for appointment as a Domestic Offsets
21
Integrity Committee member.
22
Note:
See subsection 257(2).
23
Validation
24
(4) Anything done by or in relation to a person purporting to act under
25
an appointment is not invalid merely because:
26
(a) the occasion for the appointment had not arisen; or
27
(b) there was a defect or irregularity in connection with the
28
appointment; or
29
(c) the appointment ceased to have effect; or
30
(d) the occasion to act had not arisen or had ceased.
31
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
32
Domestic Offsets Integrity Committee Part 26
Membership of the Domestic Offsets Integrity Committee Division 2
Section 260
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 275
260 Procedures
1
(1) The regulations may prescribe the procedures to be followed at or
2
in relation to meetings of the Domestic Offsets Integrity
3
Committee, including matters relating to the following:
4
(a) the convening of meetings of the Domestic Offsets Integrity
5
Committee;
6
(b) the number of Domestic Offsets Integrity Committee
7
members who are to constitute a quorum;
8
(c) the selection of a Domestic Offsets Integrity Committee
9
member to preside at meetings of the Domestic Offsets
10
Integrity Committee in the absence of the Chair of the
11
Domestic Offsets Integrity Committee;
12
(d) the manner in which questions arising at a meeting of the
13
Domestic Offsets Integrity Committee are to be decided.
14
(2) A resolution is taken to have been passed at a meeting of the
15
Domestic Offsets Integrity Committee if:
16
(a) without meeting, a majority of Domestic Offsets Integrity
17
Committee members indicate agreement with the resolution
18
in accordance with the method determined by the Domestic
19
Offsets Integrity Committee under subsection (3); and
20
(b) all Domestic Offsets Integrity Committee members were
21
informed of the proposed resolution, or reasonable efforts
22
had been made to inform all Domestic Offsets Integrity
23
Committee members of the proposed resolution.
24
(3) Subsection (2) applies only if the Domestic Offsets Integrity
25
Committee:
26
(a) determines that it applies; and
27
(b) determines the method by which Domestic Offsets Integrity
28
Committee members are to indicate agreement with
29
resolutions.
30
(4) If a Domestic Offsets Integrity Committee member is an APS
31
employee in the Department, the member:
32
(a) is not entitled to vote for a resolution at a meeting of the
33
Domestic Offsets Integrity Committee; and
34
Part 26 Domestic Offsets Integrity Committee
Division 2 Membership of the Domestic Offsets Integrity Committee
Section 261
276 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) is not entitled to indicate agreement with a resolution as
1
mentioned in paragraph (2)(a); and
2
(c) is not to be counted for the purposes of determining whether
3
a majority of Domestic Offsets Integrity Committee
4
members:
5
(i) have voted for a resolution at a meeting of the Domestic
6
Offsets Integrity Committee; or
7
(ii) have indicated agreement with a resolution as
8
mentioned in paragraph (2)(a).
9
261 Disclosure of interests to the Minister
10
A Domestic Offsets Integrity Committee member must give
11
written notice to the Minister of all interests, pecuniary or
12
otherwise, that the member has or acquires and that conflict or
13
could conflict with the proper performance of the member's
14
functions.
15
262 Disclosure of interests to Domestic Offsets Integrity Committee
16
(1) A Domestic Offsets Integrity Committee member who has an
17
interest, pecuniary or otherwise, in a matter being considered or
18
about to be considered by the Domestic Offsets Integrity
19
Committee must disclose the nature of the interest to a meeting of
20
the Domestic Offsets Integrity Committee.
21
(2) The disclosure must be made as soon as possible after the relevant
22
facts have come to the Domestic Offsets Integrity Committee
23
member's knowledge.
24
(3) The disclosure must be recorded in the minutes of the meeting of
25
the Domestic Offsets Integrity Committee.
26
(4) Unless the Domestic Offsets Integrity Committee otherwise
27
determines, the Domestic Offsets Integrity Committee member:
28
(a) must not be present during any deliberation by the Domestic
29
Offsets Integrity Committee on the matter; and
30
(b) must not take part in any decision of the Domestic Offsets
31
Integrity Committee with respect to the matter.
32
Domestic Offsets Integrity Committee Part 26
Membership of the Domestic Offsets Integrity Committee Division 2
Section 263
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 277
(5) For the purposes of making a determination under subsection (4),
1
the Domestic Offsets Integrity Committee member:
2
(a) must not be present during any deliberation of the Domestic
3
Offsets Integrity Committee for the purpose of making the
4
determination; and
5
(b) must not take part in making the determination.
6
(6) A determination under subsection (4) must be recorded in the
7
minutes of the meeting of the Domestic Offsets Integrity
8
Committee.
9
263 Outside employment
10
A Domestic Offsets Integrity Committee member must not engage
11
in any paid employment that conflicts or may conflict with the
12
proper performance of his or her duties.
13
264 Remuneration and allowances
14
(1) A Domestic Offsets Integrity Committee member is to be paid the
15
remuneration that is determined by the Remuneration Tribunal. If
16
no determination of that remuneration by the Tribunal is in
17
operation, the member is to be paid the remuneration that is
18
prescribed.
19
(2) A Domestic Offsets Integrity Committee member is to be paid the
20
allowances that are prescribed.
21
(3) This section has effect subject to the Remuneration Tribunal Act
22
1973.
23
265 Leave of absence
24
(1) The Minister may grant leave of absence to the Chair of the
25
Domestic Offsets Integrity Committee on the terms and conditions
26
that the Minister determines.
27
(2) The Chair of the Domestic Offsets Integrity Committee may grant
28
leave of absence to a Domestic Offsets Integrity Committee
29
member on the terms and conditions that the Chair determines.
30
Part 26 Domestic Offsets Integrity Committee
Division 2 Membership of the Domestic Offsets Integrity Committee
Section 266
278 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
266 Resignation
1
(1) A Domestic Offsets Integrity Committee member may resign his or
2
her appointment by giving the Minister a written resignation.
3
(2) The resignation takes effect on the day it is received by the
4
Minister or, if a later day is specified in the resignation, on that
5
later day.
6
267 Termination of appointment
7
(1) The Minister may terminate the appointment of a Domestic Offsets
8
Integrity Committee member for misbehaviour or physical or
9
mental incapacity.
10
(2) The Minister may terminate the appointment of a Domestic Offsets
11
Integrity Committee member if:
12
(a)
the
member:
13
(i) becomes bankrupt; or
14
(ii) applies to take the benefit of any law for the relief of
15
bankrupt or insolvent debtors; or
16
(iii) compounds with his or her creditors; or
17
(iv) makes an assignment of remuneration for the benefit of
18
his or her creditors; or
19
(b) the member is absent, except on leave of absence, for 3
20
consecutive meetings of the Domestic Offsets Integrity
21
Committee; or
22
(c) the member engages in paid employment that conflicts or
23
may conflict with the proper performance of his or her duties
24
(see section 263); or
25
(d) the member fails, without reasonable excuse, to comply with
26
section 261 or 262.
27
(3) The Minister may terminate the appointment of the Chair of the
28
Domestic Offsets Integrity Committee if the Chair is:
29
(a) an employee of the Commonwealth; or
30
(b) an employee of an authority of the Commonwealth; or
31
(c) a person who holds a full-time office under a law of the
32
Commonwealth.
33
Domestic Offsets Integrity Committee Part 26
Membership of the Domestic Offsets Integrity Committee Division 2
Section 268
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 279
(4) The Minister may terminate the appointment of a Domestic Offsets
1
Integrity Committee member if the Minister is of the opinion that
2
the performance of the member has been unsatisfactory.
3
268 Other terms and conditions
4
A Domestic Offsets Integrity Committee member holds office on
5
the terms and conditions (if any) in relation to matters not covered
6
by this Act that are determined by the Minister.
7
269 Assistance to Domestic Offsets Integrity Committee
8
(1) Any or all of the following bodies:
9
(a)
the
Administrator;
10
(b)
the
Department;
11
(c) any other Department, agency or authority of the
12
Commonwealth;
13
may assist the Domestic Offsets Integrity Committee in the
14
performance of its functions.
15
(2) The assistance may include the following:
16
(a) the provision of information;
17
(b) the provision of advice;
18
(c) the making available of resources and facilities (including
19
secretariat services and clerical assistance).
20
(3) If an officer or employee of a body mentioned in subsection (1)
21
assists the Domestic Offsets Integrity Committee, the officer or
22
employee is taken, for the purposes of this Act, to be a person
23
assisting the Domestic Offsets Integrity Committee under this
24
section.
25
26
Part 27 Secrecy
Section 270
280 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 27--Secrecy
1
2
270 Secrecy
3
(1) A person commits an offence if:
4
(a) the person is, or has been, an entrusted public official; and
5
(b) the person has obtained protected information in his or her
6
capacity as an entrusted public official; and
7
(c)
the
person:
8
(i) discloses the information to another person; or
9
(ii) uses the information.
10
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
11
Exceptions
12
(2) Each of the following is an exception to the prohibition in
13
subsection (1):
14
(a) the disclosure or use is authorised by a provision of this Part;
15
(b) the disclosure or use is in compliance with a requirement
16
under:
17
(i) a law of the Commonwealth; or
18
(ii) a prescribed law of a State or a Territory.
19
Note:
A defendant bears an evidential burden in relation to a matter in
20
subsection (2) (see subsection 13.3(3) of the Criminal Code).
21
(3) Except where it is necessary to do so for the purposes of giving
22
effect to this Act or a legislative instrument under this Act, an
23
entrusted public official is not to be required:
24
(a) to produce to a court or tribunal a document containing
25
protected information; or
26
(b) to disclose protected information to a court or tribunal.
27
271 Disclosure or use for the purposes of this Act or a legislative
28
instrument under this Act
29
An entrusted public official may disclose or use protected
30
information if:
31
Secrecy Part 27
Section 272
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 281
(a) the disclosure or use is for the purposes of this Act or a
1
legislative instrument under this Act; or
2
(b) the disclosure or use is for the purposes of the Australian
3
National Registry of Emissions Units Act 2011 or a
4
legislative instrument under that Act;
5
(c) the disclosure or use is for the purposes of the performance of
6
the functions of the Administrator or the Domestic Offsets
7
Integrity Committee under this Act or a legislative instrument
8
under this Act; or
9
(d) the disclosure or use is in the course of the entrusted public
10
official's employment or service as an entrusted public
11
official.
12
272 Disclosure to the Minister
13
An entrusted public official may disclose protected information to
14
the Minister.
15
273 Disclosure to the Secretary etc.
16
An entrusted public official may disclose protected information to:
17
(a) the Secretary; or
18
(b) an officer of the Department who is authorised by the
19
Secretary, in writing, for the purposes of this section;
20
if the disclosure is for the purposes of:
21
(c) advising the Minister; or
22
(d) facilitating Australia's compliance with its international
23
obligations under:
24
(i) the Climate Change Convention; or
25
(ii) the Kyoto Protocol; or
26
(ii) an international agreement (if any) that is the successor
27
(whether immediate or otherwise) to the Kyoto
28
Protocol; or
29
(e) facilitating the development of an international agreement (if
30
any) that is to be the successor (whether immediate or
31
otherwise) to the Kyoto Protocol.
32
Part 27 Secrecy
Section 274
282 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
274 Disclosure or use for purposes of development of methodology
1
determinations etc.
2
(1) The Administrator may disclose or use protected information that
3
relates to a particular offsets project if:
4
(a) under section 27, the Administrator has declared the offsets
5
project to be an eligible offsets project; and
6
(b) more than 7 years have passed since the application under
7
section 22 was made for the declaration; and
8
(c) the information was:
9
(i) contained in the application; or
10
(ii) given in connection with the application; or
11
(iii) contained in an offsets report about the project; and
12
(d) the disclosure or use is for the purposes of facilitating the
13
development of either or both of the following:
14
(i) one or more methodology determinations;
15
(ii) one or more proposals for methodology determinations.
16
(2) The Administrator may disclose or use protected information if:
17
(a) the information was:
18
(i) contained in an application under section 108 for
19
endorsement of a specified proposal for a methodology
20
determination; or
21
(ii) contained in an application under section 116 for
22
endorsement of a specified proposal for the variation of
23
a methodology determination; or
24
(iii) given in connection with an application covered by
25
subparagraph (i) or (ii); and
26
(b) more than 7 years have passed since the application was
27
made; and
28
(c) the disclosure or use is for the purposes of facilitating the
29
development of either or both of the following:
30
(i) one or more methodology determinations;
31
(ii) one or more proposals for methodology determinations.
32
(3) Subsections (1) and (2) do not apply to personal information
33
(within the meaning of the Privacy Act 1988).
34
Secrecy Part 27
Section 275
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 283
275 Disclosure to a Royal Commission
1
(1) An entrusted public official may disclose protected information to
2
a Royal Commission.
3
(2) The Administrator may, by writing, impose conditions to be
4
complied with in relation to protected Administrator information
5
disclosed under subsection (1) by:
6
(a) the Administrator; or
7
(b) a delegate of the Administrator; or
8
(c) a person assisting the Administrator under section 250; or
9
(d) a person whose services are made available to the
10
Administrator under section 251; or
11
(e) a person engaged as a consultant under section 252; or
12
(f) an audit team leader; or
13
(g) a person assisting an audit team leader.
14
(3) The Chair of the Domestic Offsets Integrity Committee may, by
15
writing, impose conditions to be complied with in relation to
16
protected DOIC information disclosed under subsection (1) by:
17
(a) the Chair; or
18
(b) a Domestic Offsets Integrity Committee member; or
19
(c) a person assisting the Domestic Offsets Integrity Committee
20
under section 269.
21
(4) An instrument under subsection (2) or (3) is not a legislative
22
instrument.
23
276 Disclosure to certain persons and bodies
24
Scope
25
(1) This section applies if the Administrator is satisfied that particular
26
protected Administrator information will enable or assist any of the
27
following persons or bodies:
28
(a) the Greenhouse and Energy Data Officer;
29
(b) Australian Carbon Trust Limited (ACN 141 478 748);
30
(c) a prescribed professional disciplinary body;
31
Part 27 Secrecy
Section 276
284 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(d) a person or body responsible for the administration of a
1
scheme that involves the issue of prescribed eligible carbon
2
units;
3
to perform or exercise any of the functions or powers of the person
4
or body.
5
Disclosure
6
(2) The Administrator may disclose that protected Administrator
7
information to the person or body concerned.
8
(3) If any of the following individuals:
9
(a) a delegate of the Administrator;
10
(b) an individual assisting the Administrator under section 250;
11
(c) an individual whose services are made available to the
12
Administrator under section 251;
13
(d) an individual engaged as a consultant under section 252;
14
(e) an individual who is an audit team leader;
15
(f) an individual assisting an audit team leader;
16
is authorised by the Administrator, in writing, for the purposes of
17
this section, the individual may disclose that protected
18
Administrator information to the person or body concerned.
19
Secondary disclosure and use
20
(4) A person commits an offence if:
21
(a) the person is:
22
(i) a prescribed professional disciplinary body; or
23
(ii) a member of a prescribed professional disciplinary
24
body; and
25
(b) protected Administrator information has been disclosed
26
under subsection (2) or (3) to the body; and
27
(c)
the
person:
28
(i) discloses the information to another person; or
29
(ii) uses the information.
30
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
31
(5) Subsection (4) does not apply if:
32
Secrecy Part 27
Section 277
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 285
(a) the disclosure or use is with the consent of the Administrator;
1
and
2
(a) the disclosure or use is for the purpose of:
3
(i) deciding whether or not to take disciplinary or other
4
action; or
5
(ii) taking that action.
6
Note:
A defendant bears an evidential burden in relation to a matter in
7
subsection (5) (see subsection 13.3(3) of the Criminal Code).
8
Conditions
9
(6) The Administrator may, by writing, impose conditions to be
10
complied with in relation to protected Administrator information
11
disclosed under subsection (2) or (3).
12
(7) A person commits an offence if:
13
(a) the person is subject to a condition under subsection (6); and
14
(b) the person engages in conduct; and
15
(c) the person's conduct breaches the condition.
16
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
17
(8) An instrument under subsection (6) is not a legislative instrument.
18
277 Disclosure to certain financial bodies
19
Scope
20
(1) This section applies if the Administrator is satisfied that particular
21
protected Administrator information will enable or assist a body
22
corporate that:
23
(a)
either:
24
(i) conducts, or is involved in the supervision of, a
25
financial market; or
26
(ii) is a body corporate that holds an Australian CS facility
27
licence; and
28
(b) is specified in the regulations;
29
to monitor compliance with, enforce, or perform functions or
30
exercise powers under:
31
Part 27 Secrecy
Section 277
286 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(c)
the
Corporations Act 2001; or
1
(d) the business law of a State or Territory; or
2
(e) the business law of a foreign country; or
3
(f) the operating rules (if any) of the body corporate.
4
Disclosure
5
(2) The Administrator may disclose that protected Administrator
6
information to the body corporate.
7
(3) If any of the following individuals:
8
(a) a delegate of the Administrator;
9
(b) an individual assisting the Administrator under section 250;
10
(c) an individual whose services are made available to the
11
Administrator under section 251;
12
(d) an individual engaged as a consultant under section 252;
13
(e) an individual who is an audit team leader;
14
(f) an individual assisting an audit team leader;
15
is authorised by the Administrator, in writing, for the purposes of
16
this section, the individual may disclose that protected
17
Administrator information to the body corporate.
18
Secondary disclosure and use
19
(4) A person commits an offence if:
20
(a) the person is:
21
(i) a body corporate; or
22
(ii) an officer, employee or agent of a body corporate; and
23
(b) protected Administrator information has been disclosed
24
under subsection (2) or (3) to the body corporate; and
25
(c)
the
person:
26
(i) discloses the information to another person; or
27
(ii) uses the information.
28
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
29
(5) Subsection (4) does not apply if:
30
(a) the disclosure or use is with the consent of the Administrator;
31
and
32
Secrecy Part 27
Section 278
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 287
(b) the disclosure or use is for the purpose of monitoring
1
compliance with, enforcing, or performing functions or
2
exercising powers under:
3
(i)
the
Corporations Act 2001; or
4
(ii) the business law of a State or Territory; or
5
(iii) the business law of a foreign country; or
6
(iv) the operating rules (if any) of the body corporate.
7
Note:
A defendant bears an evidential burden in relation to a matter in
8
subsection (5) (see subsection 13.3(3) of the Criminal Code).
9
Conditions
10
(6) The Administrator may, by writing, impose conditions to be
11
complied with by the body corporate and its officers, employees
12
and agents in relation to protected Administrator information
13
disclosed to the body corporate under subsection (2) or (3).
14
(7) A person commits an offence if:
15
(a) the person is subject to a condition under subsection (6); and
16
(b) the person engages in conduct; and
17
(c) the person's conduct breaches the condition.
18
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
19
(8) An instrument under subsection (6) is not a legislative instrument.
20
Meaning of expressions
21
(9) In this section, the following expressions have the same meanings
22
as in the Corporations Act 2001:
23
(a)
Australian CS facility licence;
24
(b)
financial market;
25
(c)
officer;
26
(d)
operating rules.
27
278 Disclosure with consent
28
An entrusted public official may disclose protected information
29
that relates to the affairs of a person if:
30
(a) the person has consented to the disclosure; and
31
Part 27 Secrecy
Section 279
288 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(b) the disclosure is in accordance with that consent.
1
279 Disclosure to reduce threat to life or health
2
An entrusted public official may disclose protected information if:
3
(a) the entrusted public official believes on reasonable grounds
4
that the disclosure is necessary to prevent or lessen a serious
5
and imminent threat to the life or health of an individual; and
6
(b) the disclosure is for the purposes of preventing or lessening
7
that threat.
8
280 Disclosure of publicly available information
9
An entrusted public official may disclose protected information if
10
it is already publicly available.
11
281 Disclosure of summaries or statistics
12
Any of the following persons:
13
(a)
the
Administrator;
14
(b) a delegate of the Administrator;
15
(c) a person assisting the Administrator under section 250;
16
(d) a person whose services are made available to the
17
Administrator under section 251;
18
(e) a person engaged as a consultant under section 252;
19
(f) an audit team leader;
20
(g) a person assisting an audit team leader;
21
may disclose:
22
(h) summaries of protected Administrator information; or
23
(i) statistics derived from protected Administrator information;
24
if those summaries or statistics, as the case may be, are not likely
25
to enable the identification of a person.
26
Secrecy Part 27
Section 282
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 289
282 Disclosure for purposes of law enforcement--protected
1
Administrator information
2
Scope
3
(1) This section applies if the Administrator is satisfied that disclosure
4
of particular protected Administrator information is reasonably
5
necessary for:
6
(a) the enforcement of the criminal law; or
7
(b) the enforcement of a law imposing a pecuniary penalty; or
8
(c) the protection of the public revenue.
9
Disclosure
10
(2) The Administrator may disclose that protected Administrator
11
information to:
12
(a) a Department, agency or authority of the Commonwealth, a
13
State or a Territory; or
14
(b) an Australian police force;
15
whose functions include that enforcement or protection, for the
16
purposes of that enforcement or protection.
17
(3) If any of the following individuals:
18
(a) a delegate of the Administrator;
19
(b) an individual assisting the Administrator under section 250;
20
(c) an individual whose services are made available to the
21
Administrator under section 251;
22
(d) an individual engaged as a consultant under section 252;
23
(e) an individual who is an audit team leader;
24
(f) an individual assisting an audit team leader;
25
is authorised by the Administrator, in writing, for the purposes of
26
this section, the individual may disclose that protected
27
Administrator information to:
28
(g) a Department, agency or authority of the Commonwealth, a
29
State or a Territory; or
30
(h) an Australian police force;
31
whose functions include that enforcement or protection, for the
32
purposes of that enforcement or protection.
33
Part 27 Secrecy
Section 282
290 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Secondary disclosure and use
1
(4) A person commits an offence if:
2
(a) the person is, or has been, an employee or officer of:
3
(i) a Department, agency or authority of the
4
Commonwealth, a State or a Territory; or
5
(ii) an Australian police force; and
6
(b) protected Administrator information has been disclosed
7
under subsection (2) or (3) to the Department, agency,
8
authority or police force, as the case may be; and
9
(c) the person has obtained the information in the person's
10
capacity as an employee or officer of the Department,
11
agency, authority or police force, as the case may be; and
12
(d)
the
person:
13
(i) discloses the information to another person; or
14
(ii) uses the information.
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
(5) Subsection (4) does not apply if:
17
(a) the disclosure or use is with the consent of the Administrator;
18
and
19
(b) the disclosure or use is for the purpose of:
20
(i) enforcing the criminal law; or
21
(ii) enforcing a law imposing a pecuniary penalty; or
22
(iii) protecting the public revenue.
23
Note:
A defendant bears an evidential burden in relation to a matter in
24
subsection (5) (see subsection 13.3(3) of the Criminal Code).
25
Conditions
26
(6) The Administrator may, by writing, impose conditions to be
27
complied with in relation to protected Administrator information
28
disclosed under subsection (2) or (3).
29
(7) A person commits an offence if:
30
(a) the person is subject to a condition under subsection (6); and
31
(b) the person engages in conduct; and
32
(c) the person's conduct breaches the condition.
33
Secrecy Part 27
Section 283
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 291
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
1
(8) An instrument under subsection (6) is not a legislative instrument.
2
283 Disclosure for purposes of law enforcement--protected DOIC
3
information
4
Scope
5
(1) This section applies if the Chair of the Domestic Offsets Integrity
6
Committee is satisfied that disclosure of particular protected DOIC
7
information is reasonably necessary for:
8
(a) the enforcement of the criminal law; or
9
(b) the enforcement of a law imposing a pecuniary penalty; or
10
(c) the protection of the public revenue.
11
Disclosure
12
(2) The Chair of the Domestic Offsets Integrity Committee may
13
disclose that protected DOIC information to:
14
(a) a Department, agency or authority of the Commonwealth, a
15
State or a Territory; or
16
(b) an Australian police force;
17
whose functions include that enforcement or protection, for the
18
purposes of that enforcement or protection.
19
(3) If any of the following individuals:
20
(a) a Domestic Offsets Integrity Committee member;
21
(b) an individual assisting the Domestic Offsets Integrity
22
Committee under section 269;
23
is authorised by the Chair of the Domestic Offsets Integrity
24
Committee, in writing, for the purposes of this section, the
25
individual may disclose that protected DOIC information to:
26
(c) a Department, agency or authority of the Commonwealth, a
27
State or a Territory; or
28
(d) an Australian police force;
29
whose functions include that enforcement or protection, for the
30
purposes of that enforcement or protection.
31
Part 27 Secrecy
Section 283
292 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Secondary disclosure and use
1
(4) A person commits an offence if:
2
(a) the person is, or has been, an employee or officer of:
3
(i) a Department, agency or authority of the
4
Commonwealth, a State or a Territory; or
5
(ii) an Australian police force; and
6
(b) protected DOIC information has been disclosed under
7
subsection (2) or (3) to the Department, agency, authority or
8
police force, as the case may be; and
9
(c) the person has obtained the information in the person's
10
capacity as an employee or officer of the Department,
11
agency, authority or police force, as the case may be; and
12
(d)
the
person:
13
(i) discloses the information to another person; or
14
(ii) uses the information.
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
(5) Subsection (4) does not apply if:
17
(a) the disclosure or use is with the consent of the Chair of the
18
Domestic Offsets Integrity Committee; and
19
(b) the disclosure or use is for the purpose of:
20
(i) enforcing the criminal law; or
21
(ii) enforcing a law imposing a pecuniary penalty; or
22
(iii) protecting the public revenue.
23
Note:
A defendant bears an evidential burden in relation to a matter in
24
subsection (5) (see subsection 13.3(3) of the Criminal Code).
25
Conditions
26
(6) The Chair of the Domestic Offsets Integrity Committee may, by
27
writing, impose conditions to be complied with in relation to
28
protected DOIC information disclosed under subsection (2) or (3).
29
(7) A person commits an offence if:
30
(a) the person is subject to a condition under subsection (6); and
31
(b) the person engages in conduct; and
32
(c) the person's conduct breaches the condition.
33
Secrecy Part 27
Section 284
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 293
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
1
(8) An instrument under subsection (6) is not a legislative instrument.
2
284 Disclosure for purposes of review of Act
3
An entrusted public official may disclose protected information to
4
a person if:
5
(a) the person is conducting a review under section 306; and
6
(b) the disclosure is for the purposes of that review.
7
285 Disclosure for purposes of review of compliance with Australia's
8
international obligations
9
(1) The Administrator may disclose protected Administrator
10
information to another person for the purpose of facilitating a
11
review of Australia's compliance with its international obligations
12
relating to reporting of greenhouse gas emissions.
13
(2) In this section:
14
emission of greenhouse gas has the same meaning as in the
15
National Greenhouse and Energy Reporting Act 2007.
16
17
Part 28 Miscellaneous
Section 286
294 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
Part 28--Miscellaneous
1
2
286 Miscellaneous functions of the Administrator
3
The Administrator has the following functions:
4
(a) to monitor compliance with this Act and the associated
5
provisions;
6
(b) to promote compliance with this Act and the associated
7
provisions;
8
(c) to conduct and/or co-ordinate education programs about this
9
Act and the associated provisions;
10
(d) to advise the Minister on matters relating to this Act and the
11
associated provisions;
12
(e) to advise and assist persons in relation to their obligations
13
under this Act and the associated provisions;
14
(f) to advise and assist prospective applicants in connection with
15
ensuring that applications are in accordance with this Act;
16
(g) to advise and assist the representatives of persons in relation
17
to compliance by persons with this Act and the associated
18
provisions;
19
(h) to liaise with regulatory and other relevant bodies, whether in
20
Australia or elsewhere, about co-operative arrangements for
21
matters relating to this Act and the associated provisions;
22
(i) to collect, analyse, interpret and disseminate statistical
23
information relating to the operation of this Act and the
24
associated provisions.
25
287 Computerised decision-making
26
(1) The Administrator may, by legislative instrument, arrange for the
27
use, under the Administrator's control, of computer programs for
28
any purposes for which the Administrator may, or must, under this
29
Act or the regulations:
30
(a) make a decision; or
31
(b) exercise any power or comply with any obligation; or
32
(c) do anything else related to making a decision or exercising a
33
power or complying with an obligation.
34
Miscellaneous Part 28
Section 288
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 295
(2) For the purposes of this Act and the regulations, the Administrator
1
is taken to have:
2
(a) made a decision; or
3
(b) exercised a power or complied with an obligation; or
4
(c) done something else related to the making of a decision or
5
the exercise of a power or the compliance with an obligation;
6
that was made, exercised, complied with or done by the operation
7
of a computer program under such an arrangement.
8
288 Administrator's power to require further information
9
Applications
10
(1)
If:
11
(a) a person makes an application to the Administrator under this
12
Act or the regulations; and
13
(b) the Administrator exercises a power, under another provision
14
of this Act or the regulations, to require the applicant to give
15
the Administrator further information in connection with the
16
application;
17
the Administrator:
18
(c) must ensure that the further information is relevant to the
19
matter to which the application relates; and
20
(d) must ensure that the power is exercised in a reasonable way.
21
Requests
22
(2)
If:
23
(a) a person makes a request to the Administrator under this Act;
24
and
25
(b) the Administrator exercises a power, under another provision
26
of this Act, to require the person to give the Administrator
27
further information in connection with the request;
28
the Administrator:
29
(c) must ensure that the further information is relevant to the
30
matter to which the request relates; and
31
(d) must ensure that the power is exercised in a reasonable way.
32
Part 28 Miscellaneous
Section 289
296 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
289 Domestic Offsets Integrity Committee's power to require
1
further information
2
If:
3
(a) a person makes an application to the Domestic Offsets
4
Integrity Committee under this Act or the regulations; and
5
(b) the Domestic Offsets Integrity Committee exercises a power,
6
under another provision of this Act or the regulations, to
7
require the applicant to give the Domestic Offsets Integrity
8
Committee further information in connection with the
9
application;
10
the Domestic Offsets Integrity Committee:
11
(c) must ensure that the further information is relevant to the
12
matter to which the application relates; and
13
(d) must ensure that the power is exercised in a reasonable way.
14
290 Actions may be taken by an agent of a project proponent
15
(1) The principles of agency apply in relation to the taking, by a
16
project proponent for an eligible offsets project, of any of the
17
following actions under this Act or the regulations:
18
(a) making an application;
19
(b) giving information in connection with an application;
20
(c) withdrawing an application;
21
(d) giving a report;
22
(e) giving a notice (including an electronic notice);
23
(f) making a submission;
24
(g) making a request;
25
(h) giving information in connection with a request.
26
(2) For example, the project proponent may authorise another person
27
to be the project proponent's agent for the purposes of making an
28
application under this Act or the regulations on the project
29
proponent's behalf.
30
(3) To avoid doubt, this section does not, by implication, limit the
31
application of the principles of agency to other matters arising
32
under this Act or the regulations.
33
Miscellaneous Part 28
Section 291
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 297
291 Delegation by the Minister
1
(1) The Minister may, by writing, delegate any or all of his or her
2
functions or powers under this Act or the regulations to:
3
(a) the Secretary; or
4
(b) an SES employee, or acting SES employee, in the
5
Department.
6
Note: The
expressions
SES employee and acting SES employee are defined
7
in the Acts Interpretation Act 1901.
8
(2) In exercising powers under a delegation, the delegate must comply
9
with any directions of the Minister.
10
(3) Subsection (1) does not apply to a power to make, vary or revoke a
11
legislative instrument.
12
292 Delegation by a State Minister or a Territory Minister
13
(1) A Minister of a State or Territory may, by writing, delegate any or
14
all of his or her functions or powers under this Act to a person
15
who:
16
(a) is an officer or employee of the State or Territory, as the case
17
may be; and
18
(b) holds or performs the duties of an office or position that is
19
equivalent to a position occupied by an SES employee in the
20
Australian Public Service.
21
(2) In exercising powers under a delegation, the delegate must comply
22
with any directions of the Minister of the State or the Minister of
23
the Territory, as the case may be.
24
293 Delegation by the Secretary
25
(1) The Secretary may, by writing, delegate any or all of his or her
26
functions or powers under this Act to an SES employee, or acting
27
SES employee, in the Department.
28
Note: The
expressions
SES employee and acting SES employee are defined
29
in the Acts Interpretation Act 1901.
30
(2) In exercising powers under a delegation, the delegate must comply
31
with any directions of the Secretary.
32
Part 28 Miscellaneous
Section 294
298 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
294 Concurrent operation of State and Territory laws
1
This Act is not intended to exclude or limit the operation of a law
2
of a State or Territory that is capable of operating concurrently
3
with this Act.
4
295 Law relating to legal professional privilege not affected
5
This Act does not affect the law relating to legal professional
6
privilege.
7
296 Arrangements with States and Territories
8
States
9
(1) The Minister may make arrangements with a Minister of a State
10
with respect to the administration of this Act, including:
11
(a) arrangements for the performance of the functions of a
12
magistrate under this Act by a magistrate of that State; and
13
(b) arrangements for the exercise of the powers conferred by
14
section 39 on relevant land registration officials of that State;
15
and
16
(c) arrangements for the exercise of the powers conferred by
17
section 40 on relevant land registration officials of that State.
18
(2) The Minister may arrange with a Minister of a State with whom an
19
arrangement is in force under subsection (1) for the variation or
20
revocation of the arrangement.
21
Australian Capital Territory
22
(3) The Minister may make arrangements with a Minister of the
23
Australian Capital Territory with respect to the administration of
24
this Act, including:
25
(a) arrangements for the performance of the functions of a
26
magistrate under this Act by a magistrate of the Australian
27
Capital Territory; and
28
(b) arrangements for the exercise of the powers conferred by
29
section 39 on relevant land registration officials of the
30
Australian Capital Territory; and
31
Miscellaneous Part 28
Section 296
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 299
(c) arrangements for the exercise of the powers conferred by
1
section 40 on relevant land registration officials of the
2
Australian Capital Territory.
3
(4) The Minister may arrange with a Minister of the Australian Capital
4
Territory for the variation or revocation of an arrangement in force
5
under subsection (3).
6
Northern Territory
7
(5) The Minister may make arrangements with a Minister of the
8
Northern Territory with respect to the administration of this Act,
9
including:
10
(a) arrangements for the performance of the functions of a
11
magistrate under this Act by a magistrate of the Northern
12
Territory; and
13
(b) arrangements for the exercise of the powers conferred by
14
section 39 on relevant land registration officials of the
15
Northern Territory; and
16
(c) arrangements for the exercise of the powers conferred by
17
section 40 on relevant land registration officials of the
18
Northern Territory.
19
(6) The Minister may arrange with a Minister of the Northern Territory
20
for the variation or revocation of an arrangement in force under
21
subsection (5).
22
Norfolk Island
23
(7) The Minister may make arrangements with a Minister of Norfolk
24
Island with respect to the administration of this Act, including:
25
(a) arrangements for the performance of the functions of a
26
magistrate under this Act by a magistrate of Norfolk Island;
27
and
28
(b) arrangements for the exercise of the powers conferred by
29
section 39 on relevant land registration officials of Norfolk
30
Island; and
31
(c) arrangements for the exercise of the powers conferred by
32
section 40 on relevant land registration officials of Norfolk
33
Island.
34
Part 28 Miscellaneous
Section 297
300 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
(8) The Minister may arrange with a Minister of Norfolk Island for the
1
variation or revocation of an arrangement in force under
2
subsection (7).
3
Gazettal
4
(9) A copy of each instrument by which an arrangement under this
5
section is made, varied or revoked is to be published in the Gazette.
6
Instrument is not a legislative instrument
7
(10) An instrument by which an arrangement under this section is made,
8
varied or revoked is not a legislative instrument.
9
297 Liability for damages
10
None of the following:
11
(a)
the
Minister;
12
(b) a delegate of the Minister;
13
(c)
the
Secretary;
14
(d) a delegate of the Secretary;
15
(e)
the
Administrator;
16
(f) a delegate of the Administrator;
17
(g) an audit team leader;
18
(h) a Domestic Offsets Integrity Committee member;
19
is liable to an action or other proceeding for damages for, or in
20
relation to, an act or matter in good faith done or omitted to be
21
done:
22
(i) in the performance or purported performance of any function;
23
or
24
(j) in the exercise or purported exercise of any power;
25
conferred by this Act or the associated provisions.
26
298 Executive power of the Commonwealth
27
This Act does not, by implication, limit the executive power of the
28
Commonwealth.
29
Miscellaneous Part 28
Section 299
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 301
299 Notional payments by the Commonwealth
1
(1) The purpose of this section is to ensure that amounts payable under
2
this Act or the regulations are notionally payable by the
3
Commonwealth (or parts of the Commonwealth).
4
(2) The Minister responsible for administering the Financial
5
Management and Accountability Act 1997 may give written
6
directions for the purposes of this section, including directions
7
relating to the transfer of amounts within, or between, accounts
8
operated by the Commonwealth.
9
300 Compensation for acquisition of property
10
(1) If the operation of this Act or the regulations would result in an
11
acquisition of property from a person otherwise than on just terms,
12
the Commonwealth is liable to pay a reasonable amount of
13
compensation to the person.
14
(2) If the Commonwealth and the person do not agree on the amount
15
of the compensation, the person may institute proceedings in a
16
court of competent jurisdiction for the recovery from the
17
Commonwealth of such reasonable amount of compensation as the
18
court determines.
19
(3) In this section:
20
acquisition of property has the same meaning as in paragraph
21
51(xxxi) of the Constitution.
22
just terms has the same meaning as in paragraph 51(xxxi) of the
23
Constitution.
24
301 Native title rights not affected
25
This Act does not affect the operation of the Native Title Act 1993.
26
302 Racial Discrimination Act not affected
27
This Act does not affect the operation of the Racial Discrimination
28
Act 1975.
29
Part 28 Miscellaneous
Section 303
302 Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011
303 Additional effect of this Act and the regulations--introduced
1
animal emissions avoidance projects
2
(1) Without limiting their effect apart from this section, this Act and
3
the regulations also have effect as provided by this section.
4
(2) This Act and the regulations also have the effect they would have if
5
each reference in this Act and the regulations to an introduced
6
animal emissions avoidance project were, by express provision,
7
confined to an introduced animal emissions avoidance project that:
8
(a)
contributes;
or
9
(b) is likely to contribute;
10
to the fulfilment of Australia's obligations under paragraph (h) of
11
Article 8 of the Biodiversity Convention.
12
304 Prescribing matters by reference to other instruments
13
(1) The regulations may make provision in relation to a matter by
14
applying, adopting or incorporating, with or without modification,
15
a matter contained in an instrument or writing:
16
(a) as in force or existing at a particular time; or
17
(b) as in force or existing from time to time.
18
(2) Subsection (1) has effect despite anything in subsection 14(2) of
19
the Legislative Instruments Act 2003.
20
(3) If the regulations make provision in relation to a matter by
21
applying, adopting or incorporating, with or without modification,
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a matter contained in an instrument or writing, the Administrator
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must ensure that the text of the matter applied, adopted or
24
incorporated is published on the Administrator's website.
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(4) Subsection (3) does not apply if the publication would infringe
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copyright.
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305 Administrative decisions under the regulations
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The regulations may make provision in relation to a matter by
29
conferring a power to make a decision of an administrative
30
character on the Administrator.
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Miscellaneous Part 28
Section 306
Carbon Credits (Carbon Farming Initiative) Bill 2011 No. , 2011 303
306 Reviews of operation of this Act etc.
1
(1) The Minister must cause to be conducted reviews of the operation
2
of:
3
(a) this Act; and
4
(b) the regulations; and
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(c) other instruments made under this Act.
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Public consultation
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(2) A review under subsection (1) must make provision for public
8
consultation.
9
Report
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(3) The Minister must cause to be prepared a report of a review under
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subsection (1).
12
(4) The Minister must cause copies of a report under subsection (3) to
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be tabled in each House of the Parliament within 15 sitting days of
14
that House after the completion of the preparation of the report.
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First review
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(5) The report of the first review under subsection (1) must be tabled
17
under subsection (4) before the end of 31 December 2014.
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Subsequent reviews
19
(6) The report of each subsequent review under subsection (1) must be
20
tabled under subsection (4) within 3 years after the report of the
21
previous review was tabled under subsection (4).
22
307 Regulations
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The Governor-General may make regulations prescribing matters:
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(a) required or permitted by this Act to be prescribed; or
25
(b) necessary or convenient to be prescribed for carrying out or
26
giving effect to this Act.
27