Clean Energy Amendment (International Emissions Trading and Other Measures) Act2012 (204 of 2012)
Schedule 1
Part 1 General amendments
Australian National Registry of Emissions Units Act 2011
23 After Part 6
Insert:
Part 6A - Cancellation of Australian-issued international units
66A Cancellation of Australian-issued international units
Scope
(1) This section applies to an Australian-issued international unit if:
(a) there is an entry for the unit in a person’s Registry account; and
(b) the conditions set out in the regulations are satisfied.
Cancellation of unit
(2) The Regulator must cancel the unit.
(3) The Regulator must remove the entry for the unit from the person’s Registry account.
(4) The Registry must set out a record of each cancellation under subsection (2).
Part 6B - Relinquishment of Australian-issued international units
Division 1 - Introduction
66B Simplified outline
The following is a simplified outline of this Part:
• If a person is convicted of an offence relating to fraudulent conduct, and the issue of Australian-issued international units is attributable to the commission of the offence, a court may order the person to relinquish a specified number of Australian-issued international units.
• If a person is the registered holder of one or more Australian-issued international units, the person may, by electronic notice transmitted to the Regulator, relinquish any or all of those units.
• An administrative penalty is payable for non-compliance with a relinquishment requirement under this Act.
Division 2 - Court-ordered relinquishment
66C Units issued as a result of fraudulent conduct - court may order relinquishment
Scope
(1) This section applies if:
(a) one or more Australian-issued international units were issued:
(i) to a person; or
(ii) at the direction or request of a person;
on a particular occasion; and
(b) the person has been convicted of:
(i) an offence against section 134.1, 134.2, 135.1, 135.2,135.4, 136.1, 137.1 or 137.2 of the Criminal Code; or
(ii) an offence against a law of, or of a part of, a foreign country that corresponds to an offence covered by subparagraph (i); and
(c) an appropriate court is satisfied that the issue of any or all of the units was directly or indirectly attributable to the commission of the offence.
Note: For appropriate court , see subsection (8).
Relinquishment
(2) The court may, on application made by the Director of Public Prosecutions or the Regulator, order the person:
(a) to relinquish a specified number of Australian-issued international units not exceeding the number of Australian-issued international units issued as mentioned in paragraph (1)(a); and
(b) to do so by a specified time.
Compliance
(3) The person must comply with an order under subsection (2).
Note: An administrative penalty is payable under section 66F for non-compliance with a relinquishment requirement.
(4) The person does not comply with an order under subsection (2) unless the notice of relinquishment specifies the order.
(5) To avoid doubt, the person is required to comply with an order under subsection (2) even if:
(a) the person is not the registered holder of any Australian-issued international units; or
(b) the person is not the registered holder of the number of Australian-issued international units required to be relinquished.
Conviction
(6) It is immaterial whether the conviction occurred before, at or after the commencement of this section.
Copy of order
(7) A copy of an order under subsection (2) is to be given to the Regulator.
Appropriate court
(8) For the purposes of this section, each of the following courts is an appropriate court :
(a) if the offence is covered by subparagraph (1)(b)(i) - the court that convicted the person of the offence;
(b) in any case - the Federal Court;
(c) in any case - the Supreme Court of a State or Territory.
Spent convictions
(9) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
Division 3 - How Australian-issued international units are relinquished
66D How Australian-issued international units are relinquished
(1) If a person is the registered holder of one or more Australian-issued international units, the person may, by electronic notice transmitted to the Regulator, relinquish any or all of those units.
(2) A notice under subsection (1) must:
(a) specify the Australian-issued international unit or units that are being relinquished; and
(b) if the Australian-issued international unit or units are being relinquished in order to comply with a particular order under subsection 66C(2) - specify the order; and
(c) set out such other information (if any) as is specified in the regulations.
(3) If an Australian-issued international unit is relinquished by a person:
(a) the unit is cancelled; and
(b) the Regulator must remove the entry for the unit from the person’s Registry account in which there is an entry for the unit; and
(c) the Regulator must take such other steps (if any) as are required by the regulations.
(4) The Registry must set out a record of each notice under subsection (1).
66E Transfer of certain units instead of relinquishment of Australian-issued international units
Scope
(1) This section applies if, under this Act, a person is required to relinquish a particular number of Australian-issued international units.
Transfer of certain units instead of relinquishment
(2) The person may:
(a) transfer to the Commonwealth an equal number of substitute units; and
(b) by electronic notice transmitted to the Regulator, inform the Regulator that the transfer is instead of the relinquishment of the Australian-issued international units.
Note: For substitute unit , see subsection (6).
(3) A notice under subsection (2) must:
(a) specify the substitute units that are being transferred; and
(b) specify the requirement concerned.
(4) A transfer under subsection (2) must be in accordance with the regulations.
Consequences of transfer
(5) If the person transfers the substitute units specified in the notice under subsection (2), this Act (other than sections 63D and 63G and subsection 66D(3)) has effect as if the person had relinquished the Australian-issued international units in order to comply with the requirement concerned.
(6) If the person transfers the substitute units specified in the notice under subsection (2):
(a) the units are cancelled; and
(b) the Regulator must remove the entries for the units fromthe person’s Registry account or accounts in which there are entries for the units; and
(c) the Regulator must take such other steps (if any) as are required by the regulations.
Substitute unit
(7) For the purposes of this section, each of the following is a substitute unit :
(a) a carbon unit;
(b) an eligible Australian carbon credit unit (within the meaning of the Clean Energy Act 2011).
Division 4 - Compliance with relinquishment requirements
66F Compliance with relinquishment requirements
Scope
(1) This section applies if, under this Act:
(a) a person is required to relinquish a particular number of Australian-issued international units; and
(b) the person is required to do so by a particular time (the compliance deadline ).
No units relinquished
(2) If, by the compliance deadline, the person has not relinquished any Australian-issued international units in order to comply with the requirement, the person is liable to pay to the Commonwealth, by way of penalty, an amount worked out using the formula:
where:
prescribed amount for the financial year in which the compliance deadline occurs means:
(a) if the requirement arose before the end of 31 July 2013 - $46; or
(b) if the requirement arose during the period beginning at the start of 1 August 2013 and ending at the end of 31 July 2014 - $48.30; or
(c) if the requirement arose during the period beginning at the start of 1 August 2014 and ending at the end of 31 July 2015 - $50.80; or
(d) in any other case:
(i) if an amount is specified in the corresponding regulations for the financial year in which the compliance deadline occurs - that amount; or
(ii) otherwise - an amount equal to 200% of the benchmark average auction charge for the previous financial year.
(3) In subsection (2), corresponding regulations means regulations made for the purposes of subparagraph (d)(i) of the definition of prescribed amount for the financial year in which the compliance deadline occurs in subsection 212(2) of the Clean Energy Act 2011.
Relinquishment of insufficient units
(4) If, by the compliance deadline:
(a) the person has relinquished one or more Australian-issued international units in order to comply with the requirement; and
(b) the number of relinquished units is less than the number of units required to be relinquished;
the person is liable to pay to the Commonwealth, by way of penalty, an amount worked out using the formula:
where:
prescribed amount for the financial year in which the compliance deadline occurs means:
(a) if the requirement arose before the end of 31 July 2013 - $46; or
(b) if the requirement arose during the period beginning at the start of 1 August 2013 and ending at the end of 31 July 2014 - $48.30; or
(c) if the requirement arose during the period beginning at the start of 1 August 2014 and ending at the end of 31 July 2015 - $50.80; or
(d) in any other case:
(i) if an amount is specified in the corresponding regulations for the financial year in which the compliance deadline occurs - that amount; or
(ii) otherwise - an amount equal to 200% of the benchmark average auction charge for the previous financial year.
(5) In subsection (4), corresponding regulations means regulations made for the purposes of subparagraph (d)(i) of the definition of prescribed amount for the financial year in which the compliance deadline occurs in subsection 212(3) of the Clean Energy Act 2011.
When penalty becomes due and payable
(6) An amount payable under this section is due and payable at the end of 30 days after the compliance deadline.
Compliance
(7) For the purposes of this section, a person relinquishes Australian-issued international units in order to comply with a particular requirement under this Act if, and only if, the notice of relinquishment specifies the requirement.
(8) To avoid doubt, a person may be liable to pay a penalty under this section even if:
(a) the person is not the registered holder of any Australian-issued international units; or
(b) the person is not the registered holder of the number of Australian-issued international units required to be relinquished.
66G Late payment penalty
Penalty
(1) If an amount payable by a person under section 66F remains unpaid after the time when it became due for payment, the person is liable to pay, by way of penalty, an amount calculated at the rate of:
(a) 20% per annum; or
(b) if a lower rate per annum is specified in regulations made for the purposes of paragraph 213(1)(b) of the Clean Energy Act 2011 - that lower rate per annum;
on the amount unpaid, computed from that time.
Power to remit
(2) The Regulator may remit the whole or a part of an amount payable under subsection (1) if:
(a) the Regulator is satisfied that the person did not contribute to the delay in payment and has taken reasonable steps to mitigate the causes of the delay; or
(b) the Regulator is satisfied:
(i) that the person contributed to the delay but has taken reasonable steps to mitigate the causes of the delay; and
(ii) having regard to the nature of the reasons that caused the delay, that it would be fair and reasonable to remit some or all of the amount; or
(c) the Regulator is satisfied that there are special circumstances that make it reasonable to remit some or all of the amount.
(3) The Regulator may exercise the power conferred by subsection (2):
(a) on written application being made to the Regulator by a person; or
(b) on the Regulator’s own initiative.
Refusal
(4) If:
(a) the Regulator decides to refuse to remit the whole or a part of an amount payable under subsection (1); and
(b) the Regulator made the decision in response to an application;
the Regulator must give written notice of the decision to the applicant.
66H Recovery of penalties
An amount payable under section 66F or 66G:
(a) is a debt due to the Commonwealth; and
(b) may be recovered by the Regulator, on behalf of the Commonwealth, by action in a court of competent jurisdiction.
66J Set-off
If:
(a) an amount (the first amount ) is payable under section 66F or 66G by a person; and
(b) the following conditions are satisfied in relation to another amount (the second amount ):
(i) the amount is payable by the Commonwealth to the person;
(ii) the amount is of a kind specified in the regulations;
the Regulator may, on behalf of the Commonwealth, set off the whole or a part of the first amount against the whole or a part of the second amount.
66K Refund of overpayments
If either of the following amounts has been overpaid by a person, the amount overpaid must be refunded by the Commonwealth:
(a) an amount payable under section 66F;
(b) an amount payable under section 66G.
Note: For appropriation, see section 28 of the Financial Management and Accountability Act 1997.
Division 5 - Offences relating to administrative penalties
66L Scheme to avoid existing liability to pay administrative penalty
Intention
(1) A person commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) at or after the time when the penalty became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the intention of securing or achieving the result, either generally or for a limited period, that the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the penalty.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) For the purposes of subsection (1), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (1); or
(b) a party to the scheme.
Knowledge or belief
(3) A person commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) at or after the time when the penalty became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the knowledge or belief that the scheme will, or will be likely to, secure or achieve the result, either generally or for a limited period, that the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the penalty.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(4) For the purposes of subsection (3), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (3); or
(b) a party to the scheme.
Objective purpose
(5) A person (the first person ) commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) at or after the time when the penalty became due and payable, the first person entered into a scheme; and
(c) having regard to:
(i) the manner in which the scheme was entered into; and
(ii) the form and substance of the scheme, including any legal rights and obligations involved in the scheme and the economic and commercial substance of the scheme; and
(iii) the timing of the scheme;
it would be reasonable to conclude that the first person entered into the scheme for the sole or dominant purpose of securing or achieving the result, either generally or for a limited period, that the body corporate or trust:
(iv) will be unable; or
(v) will be likely to be unable; or
(vi) will continue to be unable; or
(vii) will be likely to continue to be unable;
to pay the penalty.
Penalty: Imprisonment for 3 years or 850 penalty units, or both.
(6) For the purposes of subsection (5), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the first person; or
(b) a party to the scheme.
66M Scheme to avoid future liability to pay administrative penalty
Intention
(1) A person commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) before the penalty became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the intention of securing or achieving the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the penalty, the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the penalty.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(2) For the purposes of subsection (1), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (1); or
(b) a party to the scheme.
Knowledge or belief
(3) A person commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) before the penalty became due and payable, the person entered into a scheme; and
(c) the person entered into the scheme with the knowledge or belief that the scheme will, or will be likely to, secure or achieve the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the penalty, the body corporate or trust:
(i) will be unable; or
(ii) will be likely to be unable; or
(iii) will continue to be unable; or
(iv) will be likely to continue to be unable;
having regard to the other debts of the body corporate or trust, to pay the penalty.
Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.
(4) For the purposes of subsection (3), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the person mentioned in subsection (3); or
(b) a party to the scheme.
Objective purpose
(5) A person (the first person ) commits an offence if:
(a) a penalty is due and payable by a body corporate or trust under section 66F; and
(b) before the penalty became due and payable, the first person entered into a scheme; and
(c) having regard to:
(i) the manner in which the scheme was entered into; and
(ii) the form and substance of the scheme, including any legal rights and obligations involved in the scheme and the economic and commercial substance of the scheme; and
(iii) the timing of the scheme;
it would be reasonable to conclude that the first person entered into the scheme for the sole or dominant purpose of securing or achieving the result, either generally or for a limited period, that, in the event that the body corporate or trust were to become liable to pay the penalty, the body corporate or trust:
(iv) will be unable; or
(v) will be likely to be unable; or
(vi) will continue to be unable; or
(vii) will be likely to continue to be unable;
to pay the penalty.
Penalty: Imprisonment for 3 years or 850 penalty units, or both.
(6) For the purposes of subsection (5), it is immaterial whether the body corporate or the trustee of the trust is:
(a) the first person; or
(b) a party to the scheme.
66N Meaning of scheme and trust
For the purposes of this Division, scheme and trust have the same respective meanings as in Part 19 of the Clean Energy Act 2011.