Division 3 Enforcement of greenhouse gas benchmarks

97C   Licence conditions applying to retail suppliers

(1)  It is a condition of each retail supplier’s licence that the retail supplier comply with its greenhouse gas benchmark as determined under this Part.

(2)  Nothing in this section limits or affects any power of the Minister to impose conditions on the licence of a retail supplier under this Act, including conditions (not inconsistent with this Part) relating to greenhouse gas emissions, the provision of information to the Tribunal or Scheme Administrator about matters related to this Part and related matters.

(3)  A monetary penalty may not be imposed on a retail supplier under clause 8 or 8A of Schedule 2, or any other action taken against the licence of a retail supplier under Schedule 2, in respect of a greenhouse shortfall for which a greenhouse penalty is payable under this Part.

Note. Under clauses 8 and 8A of Schedule 2, the Minister and the Tribunal may impose monetary penalties for breaches of the requirements of this Act, the regulations and the greenhouse gas benchmark rules, as well as breaches of licence conditions. Other penalties may also be imposed under Schedule 2.

97CA   Greenhouse penalties

(1)  A benchmark participant who fails to comply with the participant’s greenhouse gas benchmark for reduction of greenhouse gas emissions for a compliance period is liable to pay the greenhouse penalty in respect of the excess emissions.

(2)  The amount of the greenhouse penalty per tonne of carbon dioxide equivalent of greenhouse shortfall determined under this Part is the following amount, as adjusted in accordance with any regulations made under subsection (3):

(a)  for the compliance period concerned before the compliance period commencing 1 January 2010—$11.50,

(b)  for the compliance period commencing 1 January 2010—$12.50,

(c)  for the compliance period commencing 1 January 2011—$13.50,

(d)  for the compliance period commencing 1 January 2012—$14.50,

(e)  for the compliance period commencing 1 January 2013 and each subsequent compliance period—$15.50.

(3)  The regulations may provide for the adjustment of the amount of greenhouse penalty in accordance with movements in the consumer price index.

(4)  A greenhouse penalty payable for a compliance period (other than the final compliance period) by a benchmark participant is payable on 1 March in the following year or on any later date determined by the Tribunal for a benchmark participant.

(4A)  A greenhouse penalty payable for the final compliance period by a benchmark participant is payable within 3 months after the termination day or on any later day determined by the Tribunal for a benchmark participant.

(5)  A greenhouse penalty imposed under this Part may be recovered in any court of competent jurisdiction as a debt due to the Crown.

(6)  It is the wish of the Parliament that any greenhouse penalties payable to the Crown under this Part be used for the promotion of greenhouse gas reduction activities and programs nominated from time to time by the Minister.

(7)  In this section:

consumer price index means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.

Note. Section 97BE sets out when a greenhouse penalty is payable for a greenhouse shortfall that is carried forward.

97CB   Annual greenhouse gas benchmark statements

(1)  A benchmark participant must lodge with the Tribunal a greenhouse gas benchmark statement:

(a)  in respect of a compliance period (other than the final compliance period), not later than 1 March in the year immediately following the end of that compliance period, or

(b)  in respect of the final compliance period, not later than 3 months after the termination day.

(1A)  The Tribunal may permit a benchmark participant to lodge a greenhouse gas benchmark statement on a later day.

(2)  A greenhouse gas benchmark statement is to contain the following:

(a)  an assessment of the benchmark participant’s greenhouse gas benchmark for the previous compliance period,

(b)  an assessment of the participant’s liability (if any) for the greenhouse penalty for the previous compliance period,

(c)  an assessment of the participant’s liability (if any) for a greenhouse penalty payable in respect of a greenhouse shortfall carried forward from the compliance period before the previous compliance period,

(d)  any other matters required by the Tribunal.

(3)  A greenhouse gas benchmark statement must be in the form approved by the Tribunal.

(4)  A greenhouse gas benchmark statement must be accompanied by details of all abatement certificates sought to be surrendered for that compliance period and all renewable energy certificates sought to be counted for that compliance period or sought to be surrendered or counted to abate a greenhouse shortfall carried forward from the previous compliance period.

(5)  A benchmark participant that fails to lodge a greenhouse gas benchmark statement in accordance with this section is guilty of an offence.

Maximum penalty:

(a)  in the case of a corporation—250 penalty units,

(b)  in the case of an individual—100 penalty units.

97CC   Restrictions on surrender of abatement certificates for benchmark purposes

(1)  An abatement certificate cannot be surrendered by a benchmark participant for the purposes of compliance with the participant’s greenhouse gas benchmark unless:

(a)  the certificate is registered under this Part and the registration is in force, and

(b)  the certificate was created in relation to an activity that took place before the end of the compliance period to which the greenhouse gas benchmark statement relates, and

(c)  the participant is recorded in the register of abatement certificates as the owner of the certificate.

(2)  The Tribunal may, by notice in writing to a benchmark participant, refuse to accept the surrender of an abatement certificate by the benchmark participant:

(a)  if, in the opinion of the Tribunal, the certificate cannot be surrendered under this section, or

(b)  if, in the opinion of the Tribunal, the certificate is surplus to the number required to be surrendered for compliance with the participant’s greenhouse gas benchmark or to abate a greenhouse shortfall.

(3)  If the Tribunal accepts the surrender of an abatement certificate, and the Tribunal is not the Scheme Administrator, the Tribunal must give the Scheme Administrator notice in writing of the decision, including details of the abatement certificate surrendered.

97CD   Assessment of compliance with greenhouse gas benchmarks

(1)  Regulations may be made for or with respect to the following matters:

(a)  the circumstances in which a renewable energy certificate may or may not be counted by a benchmark participant towards a greenhouse gas benchmark or to abate a greenhouse shortfall that has been carried forward,

(b)  the number of renewable energy certificates that may be counted for a compliance period (including for a greenhouse shortfall that was carried forward),

(c)  the assessment of the greenhouse shortfall (if any) and of liability for greenhouse penalty of a benchmark participant, including self-assessment and assessment by the Tribunal,

(d)  the date on which an assessment is taken to have been made and the date on which an assessment takes effect,

(e)  default assessments where a greenhouse gas benchmark statement is not lodged by a benchmark participant,

(f)  amendment of assessments, at the request of a benchmark participant or on the Tribunal’s own motion,

(g)  revocation of the cancellation of abatement certificates in connection with amended assessments and the revival of the certificates,

(h)  payments resulting from amended assessments,

(i)  notice of assessments.

(2)  The regulations are to include provisions that limit the number of renewable energy certificates that may be counted towards a greenhouse gas benchmark by reference to relevant acquisitions that are attributable to sales of electricity in New South Wales.

(3)  In this section:

relevant acquisition has the meaning given by the Renewable Energy (Electricity) Act 2000 of the Commonwealth.

97CE   Validity of assessment

The validity of an assessment of a liability to pay a greenhouse penalty is not affected because any provision of this Act, the regulations or the greenhouse gas benchmark rules has not been complied with.

97CF   Waiver or suspension of obligations in emergencies

(1)  The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a benchmark participant to comply with the participant’s greenhouse gas benchmark, but only if it appears to the Minister that a benchmark participant is or will be unable to comply with the benchmark because of:

(a)  a systems or other failure of the register of abatement certificates, or

(b)  any other emergency affecting the integrity of the register or the abatement certificate scheme established under this Part.

(2)  An order may:

(a)  be made subject to conditions, and

(b)  apply to all benchmark participants or to a specified class of participants, and

(c)  specify the effect of the waiver or suspension on any other rights conferred or obligations imposed under this Part.

(3)  An order takes effect on the day on which it is published in the Gazette or, if a later day is specified in the order, on that day.

(4)  An order may be amended or revoked by a later order.