Safeguard Mechanism (Crediting) Amendment Act 2023 (14 of 2023)

Schedule 1   Safeguard mechanism

Part 1   Amendment of the National Greenhouse and Energy Reporting Act 2007

National Greenhouse and Energy Reporting Act 2007

46   After section 54A

Insert:

54B Regulator may declare facility - anti-avoidance

(1) If:

(a) one or more persons enter into, begin to carry out, or carry out, a scheme; and

(b) an activity or a series of activities (including ancillary activities) (the relevant activities ) that form a single undertaking or enterprise would, but for this section, be a facility for the purposes of this Act; and

(c) but for the scheme, some or all of the relevant activities would or might reasonably be expected to form all or part of a different single undertaking or enterprise (the expected undertaking or enterprise ) that meets the requirements of the regulations (if any) made for the purposes of paragraph (1)(a) of the definition of facility in section 9; and

(d) having regard to the matters specified in subsection (2) of this section, it could reasonably be concluded that the person, or any of the persons, who enter into, begin to carry out, or carry out, the scheme are doing so (or did so) solely or substantially for the purpose of:

(i) achieving the result that, for the purposes of this Act, the relevant activities are a facility that is not a designated large facility (whether or not the relevant activities are or have previously been a designated large facility); or

(ii) achieving the result that, for the purposes of this Act, the relevant activities are a facility with a higher baseline emissions number, or fewer covered emissions, than the baseline emissions number or covered emissions (as the case may be) of the expected undertaking or enterprise; or

(iii) achieving the result that, for the purposes of this Act, the relevant activities are a facility that is attributable to an industry sector other than the industry sector to which the expected undertaking or enterprise is attributable;

the Regulator may, on the Regulator's own initiative, declare that the expected undertaking or enterprise is a facility.

(2) The following matters are specified:

(a) the manner in which the scheme is entered into or carried out;

(b) the form and substance of the scheme;

(c) the time when the scheme is entered into and the length of the period during which the scheme is carried out;

(d) the result in relation to the operation of this Act (if any) that, but for this section, would or might reasonably be expected to be achieved by the scheme in addition to the results mentioned in paragraph (1)(d).

(3) If the Regulator makes a declaration under subsection (1), the Regulator must notify, in writing, the person that has, or that the Regulator reasonably believes has, operational control of the facility to which the declaration relates.