OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATION 2015 (SLI NO 181 OF 2015) EXPLANATORY STATEMENT

OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATION 2015 (SLI NO 181 OF 2015)

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulation 2015

The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) controls the manufacture, import, export, use and destruction of ozone depleting substances (ODS) and synthetic greenhouse gases (SGGs). The Act implements Australia's obligations under the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol), the United Nations Framework Convention on Climate Change and its Kyoto Protocol.

Section 70 of the Act provides the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) contain controls relating to licensing, import, export, manufacture, and disposal of scheduled substances.

The purpose of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulation 2015 (the Regulation) is to:

(a) insert a reference to the exemption list for non-quarantine and pre-shipment (non-QPS) applications of methyl bromide for 2016 and the intermediate supplier list for non-QPS applications of methyl bromide for 2016. The exemption and intermediate supplier lists for non-QPS applications of methyl bromide specify the individual holders of critical use exemptions approved by the Montreal Protocol, their nominated suppliers (who they may only purchase their non-QPS stocks of methyl bromide from in the exemption year) and the maximum quantity of methyl bromide that they may purchase from that supplier for that year. The amendments allow the supply and use of methyl bromide for non-QPS category uses by critical use exemption holders during 2016.

(b) exempt pre-charged refrigeration equipment containing a hydrochlorofluorocarbon (HCFC) refrigerant from the ban in subclause 10(1) of Schedule 4 to the Act, in circumstances where the conditions mentioned in paragraph 13(6A)(c) of the Act have been satisfied.

Subclause 10(1) of Schedule 4 to the Act bans the import and manufacture of refrigeration and air conditioning equipment containing, or designed to operate by solely using, HCFCs or chlorofluorocarbons (CFCs) refrigerant, or foam manufactured with a HCFC or CFC. The equipment ban is a complementary measure to support the phase out of ODS under the Montreal Protocol.

The Regulation allows the import of HCFC pre-charged refrigeration equipment, if this is done in compliance with the conditions set out in paragraph 13(6A)(c) of the Act. The conditions relevant for paragraph 13(6A)(c) are prescribed in subregulations 3(5) and (6) of the Principal Regulations. An importer may import up to 5 units of equipment containing up to 10 kilograms of gas once in a two year period without a licence. Without the exemption, it would not be possible for certain importers to bring these low volumes of HCFC pre-charged refrigeration equipment into Australia.

In developing the measures, the Department of the Environment sought comment from industry stakeholders, including the Air Conditioning and Refrigeration Equipment Manufacturers' Association of Australia and their constituent members. The Department also consulted the Toolangi Certified Strawberry Runner Growers' Co Op Limited on the amendments relating to the methyl bromide import exemptions for approved critical uses.

The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LI Act).

Sections 1 to 4, and Part 1 of Schedule 1 to the Regulation commence on the day after registration on the Federal Register of Legislative Instruments. Part 2 of Schedule 1 to the Regulation is taken to have commenced on 1 July 2015.

Subsection 12(2) of the LI Act provides that a legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

(b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

The retrospective commencement of Part 2 of Schedule 1 to the Regulation does not contravene subsection 12(2) of the LI Act as no private liabilities are imposed and no rights are infringed by the Regulation. The retrospective commencement of Part 2 of Schedule 1 is required to ensure that there would be no gap between when the exemption of the HCFC pre-charged refrigeration equipment under regulation 70 expired and when the new exemption takes effect.

ATTACHMENT

Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulation 2015

Section 1- Name of regulation

This section provides that the title of the regulation is the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulation 2015 (the Regulation).

Section 2 - Commencement

This section provides that sections 1 to 4 and Part 1 of Schedule 1 commence on the day after the Regulation is registered. Part 2 of Schedule 2 is taken to have commenced on 1 July 2015.

Section 3 - Authority

This section provides that the Regulation is made under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act).

Section 4 - Schedules

This section provides that each instrument specified in a Schedule to the Regulation is amended or repealed as set out in the applicable terms in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Part 1 - Amendments commencing day after registration

Item 1 - Regulation 200 (after paragraph (k) of the definition of Non-QPS Exemption List)

Regulation 200 defines the term Non-QPS Exemption List by reference to a list that has been published by the Department of the Environment each year since 2005. The list sets out the details of all individuals and corporations who are granted the status of exempt persons for the non-quarantine and pre-shipment (non-QPS) use of methyl bromide after approval of the use by the Montreal Protocol.

Methyl bromide is a controlled substance listed in Part VII of Schedule 1 to the Act. Methyl bromide contributes to the depletion of the ozone layer when released into the atmosphere, and most uses are emissive by nature. The Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) regulate the supply and end use of non-QPS methyl bromide through record keeping and reporting systems.

Australia's obligations under the Montreal Protocol require that methyl bromide is used for authorised purposes. Under the Montreal Protocol, non-QPS uses of methyl bromide were phased out from 1 January 2005 except where critical use exemptions are granted by Parties to the Montreal Protocol or where an emergency use is granted by the Minister and subsequently reported to the Montreal Protocol.

This item amends the definition of Non-QPS Exemption List under regulation 200 to include the Exemption List for Non-QPS Applications of Methyl Bromide in 2016. This item comes into effect on 1 January 2016 and allows the supply and use of methyl bromide for non-QPS category uses by critical use exemption holders during 2016.

Item 2 - Subregulation 213(6) (after paragraph (k) of the definition of Non-QPS Intermediate Supplier List)

Regulation 213 defines the term Non-QPS Intermediate Supplier List by reference to a list that has been published by the Department each year since 2005. The list sets out the details of all individuals and corporations who are granted the status of intermediate supplier for the non-QPS use of methyl bromide.

This item amends the definition of Non-QPS Intermediate Supplier List under subregulation 213(6) to include the Intermediate Supplier List for Non-QPS Applications of Methyl Bromide in 2016. This item comes into effect on 1 January 2016 and allows the supply and use of methyl bromide for non-QPS category uses by critical use exemption holders during 2016.

Part 2 - Amendments commencing 1 July 2015

Item 3 - After paragraph 73(1)(aa)

This item inserts a new paragraph (ab) into subregulation 73(1) specifying HCFC pre-charged refrigeration equipment imported by a person for the purposes of subclause 10(1A) of Schedule 4 to the Act, so long as the importation of the equipment satisfies the conditions set out in paragraph 13(6A)(c) of the Act. This means that this type of equipment, provided the conditions are met, is exempt from the import ban set out in subclause 10(1) of Schedule 4 to the Act.

The exemption reflects the continuing need for an exemption for HCFC pre-charged refrigeration equipment. This exemption recognises that for low volume imports, such as a single refrigerator or a refrigerator on a boat, the regulatory burden is higher than the environmental cost. The Regulation aligns with the exemption for low volume imports of air conditioning equipment and eases the regulatory burden for individuals and small businesses.

The item is taken to have retrospective effect from 1 July 2015 to ensure there was no gap between when the exemption for refrigeration equipment under regulation 70 expired and when the new exemption takes effect. The retrospective effect of the proposed item does not disadvantage any person, but rather extends the period during which importers of refrigeration equipment may be covered by an exemption to the import ban.

The exemption applies to low volume importers who could import up to 5 units of equipment containing up to 10 kilograms of gas once in a two year period without a licence. Without the exemption, it would not be possible for certain importers (generally small businesses and individuals) to bring these low volumes of HCFC pre-charged refrigeration equipment into Australia.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Ozone Protection and Synthetic Greenhouse Management Amendment Regulation 2015

Overview of the Legislative Instrument

The Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulation 2015 (the Regulation) amends the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 to:

* insert a reference to the exemption list for non-quarantine and pre-shipment (non-QPS) applications of methyl bromide for 2016 and the intermediate supplier list for non-QPS applications of methyl bromide for 2016; and

* exempt pre-charged refrigeration equipment containing a hydrochlorofluorocarbon (HCFC) refrigerant from the ban in subclause 10(1) of Schedule 4 to the Ozone Protection and Synthetic Greenhouse Management Act 1989 (the Act), in circumstances where the conditions mentioned in paragraph 13(6A)(c) of the Act have been satisfied.

Human rights implications

The Regulation has been assessed against the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Regulation does not engage any of the applicable rights or freedoms.

Conclusion

The Regulation is compatible with Australia's human rights obligations.

The Hon Greg Hunt MP, Minister for the Environment

Commonwealth Numbered Regulations - Explanatory Statements