Clean Energy (Charges—Excise) Act 2011 (Cth)

Clean Energy (Charges—Excise) Act 2011

Act No. 154 of 2011 as amended

This compilation was prepared on 18 December 2012

taking into account amendments up to Act No. 199 of 2012

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Parliamentary Counsel, Canberra

Contents

An Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are duties of excise

Part 1Preliminary 1Short title [see Note 1]

This Act may be cited as the Clean Energy (Charges—Excise) Act 2011.

2Commencement

1. (1)

   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

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.	4 December 2011
2. Sections 3 to 11	At the same time as section 3 of the Clean Energy Act 2011 commences.	2 April 2012

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2)

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Definitions

In this Act:

auction has the same meaning as in the Clean Energy Act 2011.

benchmark average auction charge has the same meaning as in the Clean Energy Act 2011.

carbon unit has the same meaning as in the Clean Energy Act 2011.

fixed charge year has the same meaning as in the Clean Energy Act 2011.

flexible charge year has the same meaning as in the Clean Energy Act 2011.

issue, in relation to a carbon unit, has the same meaning as in the Clean Energy Act 2011.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

person has the same meaning as in the Clean Energy Act 2011.

Regulator means the Clean Energy Regulator.

unit shortfall has the same meaning as in the Clean Energy Act 2011.

vintage year has the same meaning as in the Clean Energy Act 2011.

4Crown to be bound

This Act binds the Crown in right of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, it does not bind the Crown in right of the Commonwealth.

5Extension to external Territories

This Act extends to every external Territory.

6Extension to exclusive economic zone and continental shelf

This Act extends to Australia’s exclusive economic zone and continental shelf.

7Extension to Joint Petroleum Development Area

This Act extends to the Joint Petroleum Development Area.

Part 2Charge for the issue of a carbon unit 8Imposition of charge

Auction

(1)

If:

1. (a)

   a carbon unit is issued to a person; and

2. (b)

   the unit is issued as the result of an auction;

charge is imposed on the issue of the unit.

(2)

Charge imposed by subsection (1) is payable by the person.

(3)

The amount of charge imposed by subsection (1) on the issue of a carbon unit is the amount equal to the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit, so long as, in a case where there is a reserve charge amount in relation to the auction (see subsection (4A)), the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit is not less than that reserve charge amount.

(4)

Subsection (3) does not apply to an amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit, unless the amount was accepted by the Regulator in the course of the auction.

(4A)

The Minister may, by legislative instrument, determine that, for the purposes of subsection (3), the reserve charge amount in relation to a specified auction is the amount ascertained in accordance with the determination.

(5)

Subsection (1) imposes charge only so far as that charge is a duty of excise within the meaning of section 55 of the Constitution.

Fixed charge

(6)

If:

1. (a)

   a carbon unit is issued to a person; and

2. (b)

   the unit is issued in accordance with section 100 of the Clean Energy Act 2011 (issue of units for a fixed charge);

charge is imposed on the issue of the unit.

(7)

Charge imposed by subsection (6) is payable by the person.

(8)

The amount of charge imposed by subsection (6) on the issue of a unit is the amount equal to the per unit charge set out in the application under subsection 100(1) of the Clean Energy Act 2011 for the issue of the unit.

(9)

Subsection (6) imposes charge only so far as that charge is a duty of excise within the meaning of section 55 of the Constitution.

Part 3Charge on a unit shortfall 9Imposition of charge

1. (1)

   If a person has a unit shortfall for a financial year, charge is imposed on the unit shortfall.

2. (2)

   Charge imposed by subsection (1) is payable by the person.

   Amount of charge

3. (3)

   The amount of charge imposed by subsection (1) on a unit shortfall is the amount worked out using the formula:

   where:

   prescribed amount for the financial year means:

   1. (a)

      if the financial year is a fixed charge year—an amount equal to 130% of the per unit charge applicable under subsection 100(1) of the Clean Energy Act 2011 for the issue of a carbon unit with a vintage year of that fixed charge year; or

   2. (b)

      if the financial year is a flexible charge year:

      1. (i)

         if an amount is specified in the regulations for the financial year—that amount; or

      2. (ii)

         otherwise—an amount equal to 200% of the benchmark average auction charge for the previous financial year.

4. (4)

   An amount specified in regulations made for the purposes of subparagraph (b)(i) of the definition of prescribed amount for the financial year in subsection (3) in relation to a financial year:

   1. (a)

      must not be less than 130% of the benchmark average auction charge for the previous financial year; and

   2. (b)

      must not exceed 200% of the benchmark average auction charge for the previous financial year.

   General

5. (5)

   This section imposes charge only so far as that charge is a duty of excise within the meaning of section 55 of the Constitution.

Part 4Miscellaneous 10Act does not impose a tax on property of a State

1. (1)

   This Act has no effect to the extent (if any) to which it imposes a tax on property of any kind belonging to a State.

2. (2)

   In this section, property of any kind belonging to a State has the same meaning as in section 114 of the Constitution.

11Regulations

The Governor‑General may make regulations prescribing matters required or permitted by this Act to be prescribed.

Notes to the Clean Energy (ChargesExcise) Act 2011

Note 1

The Clean Energy (Charges—Excise) Act 2011 as shown in this compilation comprises Act No. 154, 2011 amended as indicated in the Tables below.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Clean Energy (Charges—Excise) Act 2011	154, 2011	4 Dec 2011	Ss. 3–11: 2 Apr 2012 (see s. 2(1)) Remainder: Royal Assent
Clean Energy (Charges—Excise) Amendment Act 2012	199, 2012	12 Dec 2012	Schedule 1: 14 Dec 2012 (see s. 2(1)) Remainder: Royal Assent	—

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
S. 3.........................................	am. No. 199, 2012
Part 2
S. 8.........................................	am. No. 199, 2012