Untitled document
National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015
made under section 22XS of the
National Greenhouse and Energy Reporting Act 2007
Compilation No. 2
Compilation date: 26 September 2019
Includes amendments up to: National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 2) 2019
About this compilation
This compilation
This is a compilation of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 that shows the text of the law as amended and in force on 26 September 2019 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 1—Preliminary............................................................................................................. 4
1 Name........................................................................................................... 4
2 Commencement........................................................................................... 4
3 Authority..................................................................................................... 4
4 Definitions................................................................................................... 4
5 Identification of production variables....................................................... 11
6 Emissions-intensity calculation criteria..................................................... 15
Part 2—Coverage............................................................................................................... 17
7 Covered emissions..................................................................................... 17
8 Designated large facility threshold........................................................... 17
Part 3—Baselines............................................................................................................... 18
Division 1—Baseline emissions number.......................................................................... 18
9 Operation of this Division......................................................................... 18
10 Baseline emissions number...................................................................... 18
Division 2—Baseline determinations............................................................................... 18
Subdivision 1—Preliminary......................................................................................... 18
11 Operation of this Division....................................................................... 18
12 Minimum baseline emissions number...................................................... 18
13 References to covered emissions............................................................. 18
Subdivision 2—Reported-emissions baseline determinations..................................... 18
14 Reported-emissions baseline determinations........................................... 18
15 Further information................................................................................. 20
16 Process for making a reported-emissions baseline determination........... 20
17 Determining the baseline emissions number............................................ 21
18 Duration of reported-emissions baseline determination.......................... 23
19 Variation of reported-emissions baseline determination because of reporting error or changes in activities....................................................................................................... 23
20 Variation of transport reported-emissions baseline determination where calculated-emissions baseline determination incorporated.......................................................................... 24
21 Further information................................................................................. 26
Subdivision 3—Calculated-emissions baseline determination..................................... 26
22 Application.............................................................................................. 26
23 New facility criteria................................................................................. 27
24 Significant expansion criteria.................................................................. 28
25 Inherent emissions variability criteria...................................................... 30
26 Initial calculated baseline criteria........................................................... 31
26A Transitional calculated baseline criteria............................................... 32
27 Information required in applications....................................................... 33
28 Audit reports........................................................................................... 35
29 Further information................................................................................. 36
30 Making of calculated-emissions baseline determination......................... 36
31 Duration of calculated-emissions baseline determination....................... 37
Subdivision 4—Benchmark-emissions baseline determination.................................... 38
32 Application.............................................................................................. 38
33 New facility criteria................................................................................. 39
34 Significant expansion criteria.................................................................. 40
35 Information required in applications....................................................... 42
36 Audit reports........................................................................................... 43
37 Further information................................................................................. 45
38 Making of benchmark-emissions baseline determination........................ 45
39 Duration of benchmark-emissions baseline determination...................... 46
Subdivision 5—Production-adjusted baseline determination...................................... 47
40 Application.............................................................................................. 47
41 Information required in applications....................................................... 48
42 Audit reports........................................................................................... 50
43 Further information................................................................................. 51
44 Making of production-adjusted baseline determination......................... 51
45 Duration of production-adjusted baseline determination....................... 54
Subdivision 6— Variation of baseline determination for reduction in emissions intensity 55
46 Application.............................................................................................. 55
47 Emissions intensity test........................................................................... 56
48 Information to accompany applications.................................................. 57
49 Audit reports........................................................................................... 58
50 Further information................................................................................. 59
51 Variation of baseline determination........................................................ 59
Subdivision 7—Landfill baseline determination......................................................... 60
52 Application.............................................................................................. 60
53 Further information................................................................................. 60
54 Making of landfill baseline determination.............................................. 61
55 Duration of landfill baseline determination............................................ 62
Subdivision 8—General variation and remaking of baseline determinations.............. 62
56 Variation relating to changes in carbon dioxide equivalence.................. 62
56A Variation of production-adjusted baseline determinations because of new prescribed (annually adjusted) production variable....................................................................... 64
56B Variation of certain calculated-emissions baseline determinations and production-adjusted baseline determinations because of changes in activities........................................... 65
56C Making of replacement baseline determinations if facilities restructured 66
57 Remaking of baseline determinations because of error........................... 67
58 Further information................................................................................. 68
Part 4—Compliance........................................................................................................... 69
Division 1—Exemption declarations............................................................................... 69
59 Operation of this Division....................................................................... 69
60 Application.............................................................................................. 69
61 Further information................................................................................. 69
62 Issue of exemption declaration............................................................... 70
63 Revocation of exemption declaration because of false or misleading information 71
Division 2—Declared multi-year periods........................................................................ 72
64 Operation of this Division....................................................................... 72
65 Application.............................................................................................. 72
66 Further information................................................................................. 72
67 Making of multi-year period declaration................................................. 73
68 Variation or revocation of multi-year period declaration on request...... 74
69 Revocation of multi-year period declaration because of false or misleading information 75
Division 3—Notification and publication requirements.................................................. 75
70 Operation of this Division....................................................................... 75
71 Advisory notices..................................................................................... 75
72 Publication............................................................................................... 76
Part 5—Registration, reporting and record-keeping...................................................... 78
Division 1—Registration................................................................................................. 78
73 Operation of this Division....................................................................... 78
74 Application requirements........................................................................ 78
Division 2—Reporting..................................................................................................... 78
75 Operation of this Division....................................................................... 78
76 Required information.............................................................................. 78
77 Reporting a change in principal activity for facility................................ 78
Division 3—Record-keeping........................................................................................... 79
78 Form of records....................................................................................... 79
Part 6—Application and transitional provisions............................................................. 80
Division 1—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019.................................................. 80
79 Applications for calculated-emissions baseline determination before commencement 80
80 Applications for declared multi-year period before commencement...... 80
Schedule 1—Benchmark Emissions-Intensity Index................................................... 81
1 Benchmark Emissions-Intensity Index.................................................... 81
Schedule 2—Prescribed (Annually Adjusted) Production Variables.......................... 82
1 Prescribed (Annually Adjusted) Production Variables............................ 82
Schedule 3—Prescribed (Fixed) Production Variables................................................ 83
1 Prescribed (Fixed) Production Variables................................................. 83
Endnotes............................................................................................................................. 84
Endnote 1—About the endnotes..................................................................................... 84
Endnote 2—Abbreviation key......................................................................................... 85
Endnote 3—Legislation history....................................................................................... 86
Endnote 4—Amendment history..................................................................................... 87
Part 1—Preliminary
1 Name
This is the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015.
2 Commencement
This instrument commences on 1 July 2016.
3 Authority
This instrument is made under subsection 22XS(1) of the National Greenhouse and Energy Reporting Act 2007.
4 Definitions
In this instrument:
Act means the National Greenhouse and Energy Reporting Act 2007.
adverse conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
askm means available seat kilometres.
baseline determination means:
(a) a reported-emissions baseline determination; or
(b) a calculated-emissions baseline determination; or
(c) a benchmark-emissions baseline determination; or
(d) a production-adjusted baseline determination; or
(e) a landfill baseline determination.
baseline intensity comparison year includes the following financial years:
(a) if a reported-emissions baseline determination applies to the facility in respect of a financial year the subject of an application under subsection 46(1)—the year used to determine the baseline emissions number under subsection 17(1); and
(b) if a calculated-emissions baseline determination applies to the facility in respect of a financial year the subject of an application under subsection 46(1)—first year of the calculated-emissions baseline determination; and
(c) if a production-adjusted baseline determination applies to the facility in respect of a financial year the subject of an application under subsection 46(1)—the year used to determine the baseline emissions number under subsection 44(3); and
(d) if a baseline determination has been varied in respect of a financial year under Subdivision 6 of Division 2 of Part 3—that financial year.
benchmark-emissions baseline determination means a determination under subsection 38(2).
Benchmark Emissions-Intensity Index means index of emissions intensity per unit of a production variable (including the prescribed capture efficiency rate for non-legacy greenhouse gas emissions) set out in Schedule 1.
by‑product means a saleable output or other product that:
(a) results from a chemical or physical process undertaken by a facility other than for the purpose of producing the output; and
(b) will be disposed of, by sale or gift, without any further processing by the facility (other than further processing in accordance with standard industry practice); and
(c) contributes less than 10% of the facility’s revenue.
calculated-emissions baseline determination means a determination under subsection 30(2).
criminal activity means any activity that the Regulator has reasonable cause to believe involves the commission of an offence by one or more persons.
Darwin to Katherine network means the local distribution systems in items 1, 2 and 5 of Schedule 2 to the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015 (NT) and any transmission or distribution system which is connected to those local distribution systems.
default emissions intensity, in relation to a prescribed (annually adjusted) production variable or prescribed (fixed) production variable, means the t CO2‑e of covered emissions per unit of the production variable set out in Schedule 2 or 3.
designated electricity network means one of the following electricity networks:
(a) the interconnected national electricity system within the meaning of the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA);
(b) the South West interconnected system within the meaning of section 3 of the Electricity Industry Act 2004 (WA);
(c) the North West interconnected system within the meaning of section 2 of the Electricity Transmission and Distribution Systems (Access) Act 1994 (WA);
(d) the Darwin to Katherine network;
(e) the Mount Isa–Cloncurry supply network within the meaning of section 10 of the Electricity—National Scheme (Queensland) Act 1997 (Qld).
details, in relation to a determination or declaration under this instrument, includes:
(a) the type of determination or declaration; and
(b) the facility to which the determination or declaration relates; and
(c) the responsible emitter for the facility to which the determination or declaration relates; and
(d) the start and any end date of the determination or declaration; and
(e) whether the new facility criteria, significant expansion criteria, inherent emissions variability criteria, initial calculated baseline criteria or transitional calculated baseline criteria were satisfied in relation to the making of the determination; and
(f) if the determination specifies a baseline emission number—that number; and
(fa) whether or not the baseline emissions number is dependent upon the production of a prescribed (annually adjusted) production variable in each financial year; and
(g) if a determination or declaration is being varied—the nature of that variation.
dwtnmi means dead weight tonne nautical miles.
emissions-intensity calculation criteria has the meaning given by section 6.
emissions intensity test means the test set out in section 47.
estimated emissions intensity has the meaning given by subsection 27(4).
fixed proportion includes a proportion that varies by less than 5%.
grid-connected electricity generator means a designated generation facility connected to a designated electricity network at any time during a financial year.
identifying details has the meaning given by the NGER Regulations.
identifying information has the meaning given by the NGER Regulations.
inherent emissions variability criteria means the criteria in section 25.
initial calculated baseline criteria means the criteria in section 26.
input means:
(a) if the input relates to a landfill facility—a tonne of waste received by a landfill facility; and
(b) otherwise—anything that undergoes a chemical or physical process to produce an intermediate product or an output.
intermediate product means a product that:
(a) results from a chemical or physical process undertaken by a facility using one or more inputs; and
(b) is then used as an input for the production of an output at the same facility.
inter-state transport facility means a facility:
(a) covered by regulation 2.19 of the NGER Regulations; and
(b) with activities or a series of activities in more than one State or Territory.
landfill baseline emissions formula means the formula for determining the baseline emissions number for a financial year set out in an landfill baseline determination under section 54.
landfill baseline determination means a determination under subsection 54(2).
landfill facility means a facility for the disposal of solid waste as landfill, and includes a facility that is closed for the acceptance of waste.
large new facility means a facility which:
(a) meets the new facility criteria; and
(b) has, or is likely to have, a baseline emissions number of more than 2 million t CO2‑e (assuming a 5 year baseline determination); and
(c) is not, or will not be, a grid-connected electricity generator.
legacy emissions has the meaning given by subsection 7(2).
limited assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
multi-year period declaration has the meaning given by subsection 65(1).
m3km means metres cubed kilometres.
national facility definition means the requirements for a transport facility applying as a result of a nomination under subregulation 2.19A(2) of the NGER Regulations.
new facility criteria means:
(a) in relation to a calculated-emissions baseline determination—the criteria in section 23.
(b) in relation to a benchmark-emissions baseline determination—the criteria in section 33.
NGER (Measurement) Determination means the National Greenhouse and Energy Reporting (Measurement) Determination 2008.
NGER Regulations means the National Greenhouse and Energy Reporting Regulations 2008.
output means a product that is:
(a) if the output is from a transport facility—a transport service measured by service units; or
(b) if more than 25,000 megawatt hours of electricity is, or is to be, generated at the facility in a financial year—electricity generated at the facility; or
(c) otherwise—the last product resulting from a chemical or physical process undertaken by a facility using one or more inputs or intermediate products.
output variable means any of the following:
(a) if the only output for a facility is electricity generation—the quantity of electricity exported from the facility as measured in megawatt hours;
(b) if electricity generation is one of 2 or more outputs for a facility—the quantity of electricity generated at the facility as measured in megawatt hours;
(c) if the facility is a transport facility—the quantity of service units of that facility
(d) the quantity of a product that is produced or processed by a facility, if:
(i) the product is the last saleable output from a chemical or physical process undertaken by the facility; and
(ii) an increase in the quantity of the product produced or processed by the facility would result in an increase in the quantity of covered emissions from the facility; and
(iii) a decrease in the quantity of the product produced or processed by the facility would result in a decrease in the quantity of covered emissions from the facility; and
(iv) the quantity of the product can be expressed in a unit of measurement that complies with the National Measurement Act 1960; and
(v) the product is not an intermediate product, a by-product or a waste product.
pkm means passenger kilometres.
pnmi means passenger nautical miles.
prescribed (annually adjusted) production variable means a metric related to the production at a facility set out in Schedule 2 that is applicable to the facility in accordance with any requirements set out in that Schedule. It includes:
(a) a production variable under paragraph (a) of the definition of that term that is a prescribed (annually adjusted) production variable chosen under subsection 5(1A); and
(b) a production variable under paragraph (a) of the definition of that term that is identified under section 5, other than subsection 5(1A), that is:
(i) the same as a metric set out in Schedule 2; and
(ii) not approved by the Regulator under subsection 5(1B); and
(c) a production variable under paragraph (b) of the definition of that term that is the same as a metric set out in Schedule 2.
prescribed (fixed) production variable means a metric related to the production at a facility set out in Schedule 3 that is applicable to the facility in accordance with any requirements set out in that Schedule.
prescribed production variable means a prescribed (annually adjusted) production variable or prescribed (fixed) production variable.
primary production variable means:
(a) if there is only one production variable—that variable
(b) if there is more than one production variable—the variable that is most significant for the operation of the facility having primary regard to the share of revenue and covered emissions directly or indirectly attributable to that production variable.
production assessment period, in relation to a production-adjusted baseline determination, means:
(a) if paragraph 40(1)(a) applies because of the expiry of a calculated-emissions baseline determination—the period covered by that baseline determination; or
(b) if paragraph 40(1)(a) applies because of the expiry of a benchmark-emissions baseline determination—the production estimation period used in calculating the baseline emissions number for that baseline determination; or
(c) if paragraph 40(1)(aa) applies—the period covered by the calculated-emissions baseline determination or benchmark-emissions baseline determination before the production-adjusted baseline determination is to commence; or
(d) if paragraph 40(1)(ab) applies—the first three years of the production-adjusted baseline determination; or
(e) if paragraph 40(1)(b) applies—the three year period starting on 1 July of the first financial year the facility’s covered emissions exceeded 100,000 t CO2‑e.
production-adjusted baseline determination means a determination under subsection 44(2).
production estimation period has the meaning given by subsection 35(4).
production variable, for a facility, means:
(a) in relation to:
(i) a calculated-emissions baseline determination either commencing before 1 July 2020 or made on the basis of the inherent emissions variability criteria; or
(ii) a production-adjusted baseline determination to follow or replace a calculated-emissions baseline determination (that commenced before 1 July 2020 or was made on the basis of the inherent emissions variability criteria); or
(iii) a variation of a baseline determination under Subdivision 6 of Division 2 of Part 3;
a prescribed production variable, an output variable, the quantity of an output, the quantity of an input or the quantity of an intermediate product identified as a production variable for the facility in accordance with section 5; and
(b) in relation to:
(i) a benchmark-emissions baseline determination; or
(ii) a production-adjusted baseline determination to follow or replace a benchmark-emissions baseline determination; or
(iii) a production-adjusted baseline determination to which paragraph 40(1)(b) applies;
a metric related to production at a facility that is applicable to the facility in accordance with any requirements set out in the Benchmark Emissions-Intensity Index; and
(c) in relation to:
(i) a calculated-emissions baseline determination commencing on or after 1 July 2020 that is not made on the basis of the inherent emissions variability criteria; or
(ii) a production-adjusted baseline determination to follow or replace a calculated-emissions baseline determination that commenced on or after 1 July 2020 and was not made on the basis of the inherent emissions variability criteria;
a prescribed production variable at a facility that is applicable to the facility in accordance with any requirements set out in Schedule 2 or 3; and
(d) in relation to a production-adjusted baseline determination to which paragraph 40(1)(ab) applies, a prescribed (annually adjusted) production variable at a facility that is applicable to the facility in accordance with any requirements set out in Schedule 2.
qualified limited assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
qualified reasonable assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
reasonable assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
relevant benchmark emissions intensity means the t CO2‑e of covered emissions per unit of a production variable for a kind of facility in the Benchmark Emissions-Intensity Index.
relevant earlier estimates means any of the following:
(a) an estimate included in an environmental impact assessment statement;
(b) an estimate made in an earlier application for a baseline determination in relation to the facility;
(c) an estimate published by the responsible emitter or by a person associated with the responsible emitter, such as their controlling corporation;
that:
(d) was publically available or submitted to the Regulator before the relevant application for a baseline determination; and
(e) relates to the expected covered emissions, covered emissions intensity or quantity of a production variable relied upon in an application for a baseline determination.
reported-emissions baseline determination means a determination under subsection 14(1) or (2).
sectoral-baseline financial year means every financial year before the financial year beginning on the first 1 July after the Regulator has published a statement on its website that the total reported scope 1 emissions of all grid-connected electricity generators exceeded 198,000,000 t CO2‑e emissions in the previous financial year based upon reports submitted to the Regulator at the time of the statement. The Regulator must take all reasonable steps to publish the statement at least 4 months before the start of the financial year which is not a sectoral-baseline financial year.
Example: If the sum of reported emissions from each grid-connected electricity generator was 210,000,000 t CO2‑e in 2020-21, by 28 February 2022 the Regulator would publish a statement on its website and the financial year beginning 1 July 2022 would not be a sectoral-baseline financial year and emissions of grid-connected electricity generators would be covered emissions in that year.
service unit means a unit of measure related to a transport facility (such as askm, dwtnmi, m3km, pkm, pnmi, tkm, tnmi or vkt) determined and measured by the responsible emitter for the facility taking into account:
(a) standard industry practice; and
(b) existing measurement systems used by the responsible emitter.
significant expansion criteria means:
(a) in relation to a calculated-emissions baseline determination—the criteria in section 24.
(b) in relation to a benchmark-emissions baseline determination—the criteria in section 34.
t CO2‑e means tonnes of carbon dioxide equivalence.
tkm means tonne kilometres.
tnmi means tonne nautical miles.
transitional calculated baseline criteria means the criteria in section 26A.
vkt means vehicle kilometres travelled.
waste product means an output or other product that:
(a) results from a chemical or physical process undertaken by a facility other than for the purpose of producing the output; and
(b) will be disposed of without any further processing by the facility (other than further processing in accordance with standard industry practice); and
(c) is not a by-product.
5 Identification of production variables
(1) The identification of a production variable in relation to a facility must meet the requirements of this section.
Note: This section is only relevant to paragraph (a) of the definition of production variable in section 4.
(1A) The responsible emitter for a facility may choose any applicable prescribed production variable if the result is that:
(a) all the production variables chosen are prescribed production variables; or
(b) all of the following apply:
(i) the facility produces outputs unrelated to the prescribed production variables and the covered emissions considered in developing those production variables;
(ii) the production variables that are not prescribed relate only to those outputs and covered emissions;
(iii) the covered emissions attributable to each production variable that is not prescribed exceed 5% of the covered emissions of the facility;
(iv) the production variables that are not prescribed are otherwise identified in accordance with this section.
(1B) If a production variable is identified under subsection (2) to (10) that is the same, in all material respects, as a prescribed production variable, the prescribed production variable must be chosen under subsection (1A) unless the Regulator approves otherwise in writing.
(2) If the facility has only one output that has an output variable, that output variable must be the production variable unless subsections (10) or (1A) apply.
(3) If the facility has more than one output that has an output variable, each of those output variables must be a production variable unless subsections (1A), (4), (5), (6), (7) or (10) apply.
Similar output variables
(4) If:
(a) 2 or more of a facility’s output variables (the similar variables) are measured in the same units; and
(b) the covered emissions per unit of production of all of the similar variables are materially similar;
the responsible emitter for the facility may choose the sum of the similar variables to be treated as a single production variable for the facility instead of the individual output variables.
Inputs and intermediate products
(5) If:
(a) a single input, or a single intermediate product, is used to produce all of a facility’s outputs; and
(b) the input, or intermediate product, meets the requirements set out in subsection (8);
(c) no other input or intermediate product that meets the requirements set out in subsection (8) is used to produce any of the facility’s outputs;
the responsible emitter for the facility may choose the quantity of the input, or the quantity of the intermediate product, to be a production variable for the facility instead of the facility’s output variables.
Multiple inputs and intermediate products
(6) If:
(a) 2 or more inputs, or 2 or more intermediate products, are used to produce all of a facility’s outputs; and
(b) the inputs, or intermediate products, are used in a fixed proportion to each other; and
(c) the inputs, or intermediate products, meet the requirements set out in subsection (8);
the responsible emitter for the facility may choose the quantity of one of the inputs, or the quantity of one of the intermediate products, to be a production variable for the facility instead of the facility’s output variables.
Similar inputs and similar intermediate products
(7) If:
(a) 2 or more inputs, or 2 or more intermediate products, are used to produce all of a facility’s outputs; and
(b) 2 or more of the inputs (the similar inputs), or 2 or more of the intermediate products (the similar intermediate products), can be quantified using the same unit of measurement; and
(c) the covered emissions produced by the facility per unit of each similar input, or similar intermediate product, used are materially similar; and
(d) the similar inputs, or similar intermediate products, meet the requirements set out in subsection (8);
the responsible emitter for the facility may choose the quantity of the similar inputs, or the quantity of the similar intermediate products, to be a single production variable for the facility instead of the facility’s output variables.
Requirements that must be met
(8) An input, or an intermediate product, that is used by a facility to produce multiple outputs meets the requirements set out in this subsection if:
(a) one or more of the following apply:
(i) the outputs are produced in a fixed proportion to the input or intermediate product;
(ii) each output can be quantified using the same unit of measurement, and the covered emissions per unit of production of each output are materially similar;
(iii) the facility is:
(A) a petroleum refinery; or
(B) a natural gas processing or liquefaction facility; and
(b) an increase in the quantity of the input or intermediate product used by the facility to produce the outputs would result in an increase in the quantity of covered emissions from the facility; and
(c) a decrease in the quantity of the input or intermediate product used by the facility to produce the outputs would result in a decrease in the quantity of covered emissions from the facility; and
(d) either:
(i) the input or intermediate product is an essential component of the production process, and omitting it would prevent the production process working; or
(ii) omitting the input or intermediate product from the production process during a financial year would change the covered emissions of the facility by 5% or more; and
(e) the quantity of the input or intermediate product can be expressed in a unit of measurement that complies with the National Measurement Act 1960; and
(f) for a facility that is:
(i) a petroleum refinery; or
(ii) a natural gas processing or liquefaction facility;
—the input or intermediate product is primarily used as an input to a production process (whether or not it is also a fuel that produces energy at the facility); and
(g) for a facility that is not:
(i) a petroleum refinery; or
(ii) a natural gas processing or liquefaction facility;
—the input or intermediate product is not a fuel that produces energy at the facility.
If no discernible output
(9) If:
(a) a facility does not have a discernible output that has an output variable; and
(b) the facility has one or more inputs, intermediate products or outputs that are not saleable products, each of which satisfies the following;
(i) an increase in the quantity of the input, intermediate product or output used by or produced or processed by the facility would result in an increase in the quantity of covered emissions from the facility; and
(ii) a decrease in the quantity of the input, intermediate product or output used by or produced or processed by the facility would result in a decrease in the quantity of covered emissions from the facility; and
(iii) the quantity of the input, intermediate product or output can be expressed in a unit of measurement that complies with the National Measurement Act 1960;
(iv) the input, intermediate product or output is not a by-product or waste product;
then:
(c) the responsible emitter for the facility may choose to use the quantities of those inputs, intermediate products or outputs as production variables for the facility; and
(d) subsection (4) applies as if they were output variables.
If emissions-intensive trade-exposed activities conducted
(10) If the facility carries out one or more emissions-intensive trade-exposed activities (within the meaning of the Renewable Energy (Electricity) Act 2001) the responsible emitter for the facility may choose the quantity of all relevant products (within the meaning of Part 3A of the Renewable Energy (Electricity) Regulations 2001) associated with a facility to be production variables for a facility instead of the facility’s output variables (other than an output variable covered by paragraph (a) or (b) of the definition of output variable in section 4).
Meaning of materially similar
(11) For the purposes of paragraph (4)(b) and subparagraph (8)(a)(ii), the covered emissions per unit of production of 2 output variables or outputs are materially similar if the average covered emissions per unit of production of one of those variables or outputs during the relevant comparison period is, or is expected to be, no more than 5% greater than the average covered emissions per unit of production of the other variable or output during that period.
(12) For the purposes of paragraph (7)(c), the covered emissions produced by a facility per unit of each similar input, or similar intermediate product, used by the facility are materially similar if the average covered emissions per unit of one of the similar inputs, or similar intermediate products, used during the relevant comparison period is, or is expected to be, no more than 5% greater than the average covered emissions per unit of any other similar input, or similar intermediate product, used during that period.
(13) In this section the relevant comparison period is:
(a) if production variables are being identified for a calculated-emissions baseline determination—the first 3 years of that baseline determination; and
(b) if production variables are being identified for a variation of a baseline determination under subsection 51(2)—both the financial year for which the baseline emissions number is to be varied and the most recent baseline intensity comparison year.
6 Emissions-intensity calculation criteria
(1) The calculation of the emissions-intensity of a production variable meets the emissions-intensity calculation criteria if:
(a) the requirements of subsections (2) to (8A) are met; and
(b) the principles in subsections (9) to (11) have been taken into account.
Requirements
(2) Only covered emissions are included in the calculation.
(3) If there is only one production variable—the emissions intensity of the production variable is calculated by dividing the total covered emissions of the facility by the production variable.
(4) If there are 2 or more production variables—the total covered emissions of the facility are apportioned between each production variable and then the emissions apportioned to each production variable are divided by that production variable.
(5) The emissions intensity is expressed in t CO2‑e per unit of the production variable.
(6) If a greenhouse gas other than carbon dioxide has contributed, or is reasonably likely to contribute, more than 1% of the expected covered emissions in the financial year being considered for the purpose of making of a calculated-emissions baseline determination—the emissions intensity of that gas in t CO2‑e per unit of each production variable must be separately identified.
(7) The calculation must measure and apportion covered emissions in a manner that is consistent with the NGER (Measurement) Determination.
(8) The emissions intensity of each production variable must fairly represent the actual emissions attributable to the production variable.
(8A) If the application uses both default emissions-intensities set out in Schedule 2 or 3 and estimated emissions-intensities—the estimated emissions-intensities must not include emissions of a kind considered in developing the default emissions-intensities set out in Schedule 2 or 3.
Principles
(9) If a covered emissions source overlaps 2 or more production variables—emissions from that source are apportioned between the variables so that the sum of the covered emissions apportioned to each variable in:
(a) if production variables are being identified for a calculated-emissions baseline determination—each of the first 3 years of that baseline determination; and
(b) if production variables are being identified for a variation of a baseline determination under subsection 51(2)—both the financial year for which the baseline emissions number is to be varied and the most recent baseline intensity comparison year;
should be no more than 5% greater than the total covered emissions, or expected covered emissions, from that source during each year.
(11) The apportionment of covered emissions to individual production variables should be free of bias that may lead to an overestimate of covered emissions in:
(a) if production variables are being identified for a calculated-emissions baseline determination— the period to be covered by the baseline determination; and
(b) if production variables are being identified for a variation of a baseline determination under subsection 51(2)—the most recent baseline intensity comparison year;
due to changes in the relative mix of production variables.
Part 2—Coverage
7 Covered emissions
(1) For section 22XI of the Act, the following scope 1 emissions of one or more greenhouse gases are not covered emissions for the purposes of the safeguard mechanism:
(a) emissions of one or more greenhouse gases in circumstances where the Minister has not determined, under subsection 10(3) of the Act:
(i) methods by which the amounts of the scope 1 emissions of the greenhouse gas are to be measured; or
(ii) criteria for methods by which the amounts of the scope 1 emissions of the greenhouse gas are to be measured;
(b) legacy emissions from the operation of a landfill facility;
(c) emissions of one or more greenhouse gases from the operation of a grid-connected electricity generator in respect of a sectoral-baseline financial year;
(d) if a facility is partly in Australia and partly in either the Greater Sunrise unit area or Joint Petroleum Development Area—scope 1 emissions of greenhouse gases which occurred in the Greater Sunrise unit area or Joint Petroleum Development Area.
Note: A facility wholly in the Greater Sunrise unit area or Joint Petroleum Development Area is not subject to the safeguard provisions in accordance with subsection 6A(2) of the Act.
Legacy emissions
(2) For the purposes of subsection (1), if:
(a) an amount of greenhouse gas was emitted from the operation of a landfill facility; and
(b) waste was accepted by the landfill facility before 1 July 2016;
so much of the amount mentioned in paragraph (a) as is, under a determination under subsection 10(3) of the Act, taken to be attributable to waste accepted by the facility before 1 July 2016 is a legacy emission from the operation of the landfill facility.
8 Designated large facility threshold
For paragraph 22XJ(1)(b) of the Act, the specified number is 100,000.
Part 3—Baselines
Division 1—Baseline emissions number
9 Operation of this Division
For subsection 22XL(1) of the Act, this Division provides for the ascertainment of a baseline emissions number for a facility for a financial year.
10 Baseline emissions number
The baseline emissions number, in t CO2‑e, for a facility for a financial year is:
(a) if a baseline determination is in force in respect of the facility for a financial year—the number ascertained under that determination; and
(b) otherwise—100,000.
Division 2—Baseline determinations
Subdivision 1—Preliminary
11 Operation of this Division
This Division provides for the making, variation and expiry of baseline determinations.
12 Minimum baseline emissions number
Despite any other provision in this Division, a baseline determination must not provide that a baseline emissions number for a facility for a financial year is less than 100,000 t CO2‑e.
13 References to covered emissions
A reference to covered emissions in a financial year in this Division:
(a) is to be calculated on the assumption the financial year is not a sectoral-baseline financial year; and
(b) if used in relation to a reported-emissions baseline determination—is taken to include legacy emissions from the operation of a landfill facility.
Subdivision 2—Reported-emissions baseline determinations
14 Reported-emissions baseline determinations
General
(1) If, in relation to a facility:
(a) both:
(i) scope 1 emissions of one or more greenhouse gases from the operation of the facility were included in reports under the Act for the 5 financial years beginning 1 July 2009; and
(ii) there were more than 100,000 t CO2‑e of covered emissions reported for at least one of the 5 financial years beginning on 1 July 2009; or
(b) both:
(i) scope 1 emissions of one or more greenhouse gases from the operation of the facility were included in reports under the Act for at least 3 of the 5 financial years beginning 1 July 2009; and
(ii) there were more than 100,000 t CO2‑e of covered emissions reported for at least 3 of the 5 financial years beginning on 1 July 2009; or
(c) all of the following apply:
(i) scope 1 emissions of one or more greenhouse gases from the operation of the facility were included in at least one report under the Act for any of the 5 financial years beginning 1 July 2009; and
(ii) there were more than 100,000 t CO2‑e of covered emissions reported for at least one of the 5 financial years beginning on 1 July 2009; and
(iii) the responsible emitter for the facility had notified the Regulator in writing before 1 August 2016 that it was seeking a reported-emissions baseline determination in respect of the facility;
the Regulator must make a reported-emissions baseline determination in relation to the facility.
Inter-state transport facilities
(2) If, in relation to an inter-state transport facility:
(a) the national facility definition applies to the facility from 1 July of a financial year before the financial year beginning 1 July 2020; and
(b) subsection (1) would apply to the facility if:
(i) the national facility definition was the basis of reports under the Act for the 5 financial years beginning 1 July 2009; and
(ii) the reference to 1 August 2016 in subparagraph (1)(c)(iii) was taken to be a reference to 1 August of the financial year referred to in paragraph (a);
the Regulator must make a reported-emissions baseline determination in relation to the facility.
(3) For the purposes of subparagraphs (1)(a)(ii), (1)(b)(ii) and (1)(c)(ii):
(a) the carbon dioxide equivalence of:
(i) carbon dioxide, and
(ii) methane; and
(iii) nitrous oxide; and
(iv) perfluorocarbon emissions attributable to aluminium production;
is to be determined consistently with the global warming potential of the greenhouse gas under regulation 2.02 of the NGER Regulations as at the time the reported-emissions baseline determination is made; and
(b) the carbon dioxide equivalence of each greenhouse gas not covered by paragraph (a) is to be determined consistently with the global warming potential of the greenhouse gas assumed in the relevant report under the Act.
15 Further information
(1) The Regulator may, by written notice given to the responsible emitter, require the responsible emitter to give the Regulator, within the period specified in the notice, further information in connection with the reported-emissions baseline determination.
(2) If the responsible emitter breaches the requirement, the Regulator may, by written notice given to the responsible emitter:
(a) refuse to take any action, or any further action, in relation to making a reported-emissions baseline determination until the information is provided; and
(b) make any assumptions the Regulator considers appropriate about the information which was not provided.
16 Process for making a reported-emissions baseline determination
(1) The Regulator must not make a reported-emissions baseline determination in relation to a facility unless the Regulator has provided a written notice to the responsible emitter for the facility:
(a) stating that it intends to make a reported-emissions baseline determination in relation to the facility; and
(b) specifying the baseline emissions number that would apply under the determination; and
(c) stating whether any covered emissions are proposed to be:
(i) disregarded under subsection 17(2) or 17(3); or
(ii) included under subsection 17(4); and
(d) seeking any comments by a date specified in the notice.
(2) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to make a reported-emissions baseline determination by the later of:
(a) the first 1 September after the proposed commencement of the determination; and
(b) if the Regulator requires the responsible emitter to give further information under subsection 15(1) in connection with the reported-emissions baseline determination—30 days after the responsible emitter gave the Regulator the information; and
(c) 30 days after the date specified in paragraph (1)(d).
(3) As soon as practicable after making a reported-emissions baseline determination, the Regulator must:
(a) provide written notice of the determination to the responsible emitter for the facility covered by the determination; and
(b) publish the details of the determination on its website.
(4) It is immaterial whether the written notice under subsection (1) was provided to the responsible emitter before or after the commencement of this section.
17 Determining the baseline emissions number
(1) Subject to section 12, a reported-emissions baseline determination must specify the baseline emissions number for the facility for each financial year during which the determination is in force as the highest annual number of t CO2‑e of covered emissions based on the available reports under the Act for the 5 financial years beginning on 1 July 2009.
(2) For the purposes of subsection (1), any covered emissions reported as a vertically integrated production process which were not from the operation of the facility that is the subject of the reported-emissions baseline determination are to be disregarded.
(3) For the purposes of subsection (1), the Regulator must disregard any significant covered emissions attributable to activities previously conducted at the facility (the original activities) if:
(a) both:
(i) the Regulator is satisfied that activities of the same kind as the original activities are no longer conducted at the facility; and
(ii) the Regulator has reasonable evidence to consider that activities of the same kind as the original activities are unlikely to be conducted for at least the next three financial years; or
(b) the Regulator is satisfied that covered emissions of the original activities are now reported under the Act as part of another facility.
(4) Any significant covered emissions attributable to activities previously conducted at another facility are to be included in the reported covered emissions of the facility to be covered by the reported-emissions baseline determination for the purposes of subsection (1) if:
(a) those activities are now conducted as part of the facility to be covered by the reported-emissions baseline determination because the boundaries or scope of activities of that facility have changed; and
(b) the covered emissions from those activities will be reported under the Act as resulting from the operation of that facility; and
(c) the covered emissions were previously included in a report under the Act in relation to another facility.
(5) If:
(a) a reported-emissions baseline determination is being made on the basis of subsection 14(2) in relation to an inter-state transport facility; and
(b) a calculated-emissions baseline determination, benchmark-emissions baseline determination or production-adjusted baseline determination in respect of one or more state-based facilities whose activities constitute the inter-state transport facility applied in the financial year immediately before the commencement of the reported-emissions baseline determination;
the baseline emissions number for the state-based facilities in the year immediately before the commencement of the reported-emissions baseline determination is to be used under subsection (1) in lieu of the reported emissions of the state-based facilities in the relevant financial year.
(6) For the purposes of subsection (1):
(a) the carbon dioxide equivalence of :
(i) carbon dioxide, and
(ii) methane; and
(iii) nitrous oxide; and
(iv) perfluorocarbon emissions attributable to aluminium production;
is to be determined consistently with the global warming potential of the greenhouse gas under regulation 2.02 of the NGER Regulations as at the time the reported-emissions baseline determination is made; and
(b) the carbon dioxide equivalence of each greenhouse gas not covered by paragraph (a) is to be determined:
(i) if the responsible emitter has provided sufficient data for each greenhouse gas with the intention that it is to be used by the Regulator under this section—consistently with the global warming potential of the greenhouse gas under regulation 2.02 of the NGER Regulations as at the time the reported-emissions baseline determination is made; or
(ii) if the responsible emitter has not provided sufficient data for each greenhouse gas to be used by the Regulator under this section—consistently with the global warming potential of the greenhouse gas assumed in the relevant report under the Act;
(c) in determining the baseline emissions number of the facility, if the facility’s emissions had at any time previously been reported in relation to 2 or more facilities, the reported covered emissions of those separate facilities may be summed.
(7) For the purposes of subsections (3) and (4), significant covered emissions means emissions from the operation of the facility in a year exceeding 5% of the number which would otherwise be the baseline emissions number for the facility.
(8) When disregarding covered emissions under subsection (2) or (3) or including covered emissions under subsection (4), the Regulator may:
(a) take into account disaggregated emissions information provided by the responsible emitter for the facility and any audit reports associated with information; or
(b) disregard emissions on a pro rata basis using one or more reports under the Act that:
(i) if subsection (2) applies—include covered emissions from the activities previously conducted at the facility; or
(ii) if subsection (3) applies—were not aggregated as a vertically integrated production process; or
(c) include covered emissions on a pro rata basis using one or more reports under the Act that include covered emissions from the activities now conducted at the facility; or
(d) disregard covered emissions under subsection (2) or (3) or not include covered emissions under subsection (4) if the Regulator has requested that the emissions information be audited and the responsible emitter has not provided an audit report in relation to those emissions that meets any requirements notified in writing by the Regulator to the responsible emitter for the facility.
(9) The baseline emissions number is to be rounded to the nearest whole number (with a number ending in .5 being rounded up).
18 Duration of reported-emissions baseline determination
(1) A reported-emissions baseline determination made on the basis of subsection 14(1) is to come into force on 1 July 2016 unless a calculated-emissions baseline determination has been made with effect from 1 July 2016.
(2) A reported-emissions baseline determination made on the basis of subsection 14(2) is to come into force on the first 1 July that the national facility definition applies to the inter-state transport facility unless a calculated-emissions baseline determination has been made with effect from that 1 July.
(3) A reported-emissions baseline determination:
(a) ceases to be in force from the date when another baseline determination commences in relation to the facility; and
(b) if the facility is a grid-connected electricity generator—ceases to be in force at the end of the last sectoral-baseline financial year; and
(c) if the facility is not a grid-connected electricity generator—ceases to be in force on 1 July 2020; and
(d) if the facility was a grid-connected electricity generator on 1 July 2020 but ceases to be a grid-connected electricity generator after 1 July 2020—ceases to be in force at the start of the financial year during which it ceased to be a grid-connected electricity generator.
(4) A reported-emissions baseline determination made on the basis of subsection 14(2) replaces any other baseline determination which previously applied to the activities or series of activities which constitute the inter-state transport facility.
19 Variation of reported-emissions baseline determination because of reporting error or changes in activities
(1) If:
(a) a report under the Act used to establish a baseline emissions number for a reported-emissions baseline determination is resubmitted after the determination is made; or
(b) the Regulator has reasonable evidence to consider that a report under the Act used to establish a baseline emissions number for a reported-emissions baseline determination was incorrect; or
(c) all of the following apply:
(i) covered emissions attributable to one or more activities (the original activities) were included in a report under the Act used to establish a baseline emissions number for a reported-emissions baseline determination;
(ii) the covered emissions attributable the original activities were significant covered emissions (within the meaning of section 17);
(iii) the Regulator is satisfied that activities of the same kind as the original activities were not conducted at the facility during a financial year;
(iv) the Regulator has reasonable evidence to consider that activities of the same kind as the original activities are unlikely to be conducted for at least the next three financial years;
the Regulator may vary the baseline emissions number in the reported-emissions baseline determination to address the issue with effect from the start of the financial year in which the decision to vary the determination is made.
(2) Before the Regulator varies a baseline determination for a facility under this section, the Regulator must provide a written notice to the responsible emitter for the facility:
(a) stating that it intends to vary the baseline determination in relation to the facility under this section; and
(b) specifying the baseline emissions number that would apply under the determination; and
(c) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to vary, or decide not to vary, a reported-emissions baseline determination by the later of:
(a) if the Regulator requires the responsible emitter to give further information under subsection 21(1) in connection with the variation of the baseline determination—30 days after the responsible emitter gave the Regulator the information; and
(b) 30 days after the date specified in paragraph (2)(c).
(4) As soon as practicable after varying a baseline determination, the Regulator must:
(a) provide written notice of the varied determination to the responsible emitter for the facility covered by the determination; and
(b) publish the details of the varied determination on its website.
(5) To avoid doubt, a decision to vary a baseline determination under this section is a reviewable decision under section 56 of the Act.
20 Variation of transport reported-emissions baseline determination where calculated-emissions baseline determination incorporated
(1) If:
(a) a baseline emissions number in a calculated-emissions baseline determination was used in determining the baseline emissions number in a reported-emissions baseline determination under subsection 17(5); and
(b) the calculated-emissions baseline determination would have expired at the end of a financial year had it not been replaced by the reported-emissions baseline determination;
the Regulator must vary the reported-emissions baseline determination with effect from the start of the next financial year.
(2) The Regulator must vary the baseline emissions number in the reported-emissions baseline determination so that it reflects:
(a) if the responsible emitter has provided the information and audit report that would be required to make a production-adjusted baseline determination for the facility covered by the calculated-emissions baseline determination no later than the first 31 October after the financial year in paragraph (1)(b)—the number that would have been the baseline emissions number under section 17 if the production-adjusted baseline determination applied to that facility in place of the calculated-emissions baseline determination; or
(b) if the responsible emitter has not provided the information and audit report that would be required to make a production-adjusted baseline determination for the facility covered by the calculated-emissions baseline determination no later than the first 31 October after the financial year in paragraph (1)(b)—the number that would have been the baseline emissions number under section 17 if the calculated-emissions baseline determination had never been made.
(3) Before the Regulator varies a baseline determination for a facility under this section, the Regulator must provide a written notice to the responsible emitter for the facility:
(a) stating that it intends to vary the baseline determination in relation to the facility under this section; and
(b) specifying the baseline emissions number that would apply under the determination; and
(c) seeking any comments by a date specified in the notice.
(4) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to vary the reported-emissions baseline determination by the later of:
(a) if the Regulator requires the responsible emitter to give further information under subsection 21(1) in connection with the variation of the baseline determination—30 days after the responsible emitter gave the Regulator the information; and
(b) 30 days after the date specified in paragraph (3)(c).
(5) As soon as practicable after varying a baseline determination, the Regulator must:
(a) provide written notice of the varied determination to the responsible emitter for the facility covered by the determination; and
(b) publish the details of the varied determination on its website.
(6) To avoid doubt, a decision to vary a baseline determination under this section is a reviewable decision under section 56 of the Act.
21 Further information
(1) The Regulator may, by written notice given to the responsible emitter, require the responsible emitter to give the Regulator, within the period specified in the notice, further information in connection with the variation of a baseline determination under section 19 or 20.
(2) If the responsible emitter breaches the requirement, the Regulator may, by written notice given to the responsible emitter:
(a) refuse to take any action, or any further action, in relation to varying the baseline determination until the information is provided; and
(b) make any assumptions the Regulator considers appropriate about the information which was not provided.
Subdivision 3—Calculated-emissions baseline determination
22 Application
(1) The responsible emitter for a facility may apply to the Regulator for a calculated-emissions baseline determination for the facility if one or more of the following are satisfied:
(a) the new facility criteria;
(b) the significant expansion criteria;
(c) the inherent emissions variability criteria;
(d) the initial calculated baseline criteria;
(e) the transitional calculated baseline criteria.
(2) An application under subsection (1) must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the desired start date for the calculated-emissions baseline determination as 1 July of a particular year; and
(c) include information required by section 27; and
(d) be accompanied by an audit report which complies with section 28.
(3) Unless subsection (5) or (6) applies, an application under subsection (1) must be given to the Regulator:
(a) no earlier than one year before the requested start date for the calculated-emissions baseline determination; and
(b) no later than the first 31 October after the end of the first financial year to which the calculated-emissions baseline determination is to apply.
(4) The responsible emitter for the facility may, by written notice to the Regulator, withdraw an application at any time before the Regulator makes a decision on the application.
(5) If:
(a) an application which complies with subsection (2) is made within the period allowed by subsection (3); and
(b) the Regulator has refused to make the calculated-emissions baseline determination the subject of the application; and
(c) a new application would not comply with paragraph (3)(b);
the Regulator may accept a new application made no later than 1 February after the end of the first financial year to which the calculated-emissions baseline determination is to apply.
(6) If:
(a) the requested start date for the calculated-emissions baseline determination is 1 July 2018; and
(b) a monitoring period for the facility does not finish during, or at the end of, the financial year beginning on 1 July 2018;
an application may be made no later than 15 April 2020.
23 New facility criteria
(1) The new facility criteria are satisfied in relation to a facility if all of the criteria in this section are met.
(2) The facility is not covered by the criteria for making a reported-emissions baseline determination in subsection 14(1) or (2).
(3) Scope 1 emissions of one or more greenhouse gases from the operation of the facility were not included in reports under the Act for all of the 5 financial years starting on 1 July 2009.
(4) The facility has emitted, or is reasonably expected to emit, more than 100,000 t CO2‑e of covered emissions in the first year of the proposed calculated-emissions baseline determination.
Note: As the criteria in this section need to be met at the time the Regulator makes a decision on the application, expectations of exceedance are not relevant where information on actual emissions for a financial year is available.
(5) The responsible emitter for the facility:
(a) has not changed, and is not expected to change, the manner in which scope 1 emissions are reported or calculated under the Act; or
(b) has not caused, and is not expected to cause, scope 1 emissions of greenhouse gases;
for the primary purpose of meeting the threshold in subsection (4).
(6) A calculated-emissions baseline determination has never been made in relation to the facility.
(7) The calculated-emissions baseline determination to which the application relates is to commence on 1 July 2016, 1 July 2017, 1 July 2018 or 1 July 2019.
24 Significant expansion criteria
(1) The significant expansion criteria are satisfied in relation to a facility if all of the criteria in this section are met.
Significant expansion must occur
(2) For a facility that is not a landfill facility: the facility must have completed a significant expansion during a relevant expansion period where:
(a) new equipment is installed and used by the facility during a relevant expansion period to produce or process a production variable; and
(b) after the equipment is in use, and any existing equipment that is to be decommissioned has been decommissioned, either:
(i) the maximum productive capacity of the equipment used to produce one or more production variables will be more than 20% greater than the maximum productive capacity of the equipment that existed before the installation in relation to those production variables; or
(ii) one or more production variables will be produced at the facility which:
(A) were not produced before the relevant expansion period; and
(B) are not a replacement for other production variables produced before the relevant expansion period; and
(c) the production variables which meet the requirements of subparagraph (2)(b)(i) or (ii) are significant to the operation of the facility having regard to:
(i) whether one of the production variables is the primary production variable for the facility; or
(ii) whether more than 20% of the revenue expected from the facility in the financial year with the highest expected production of the primary production variable over the period to be covered by the calculated-emissions baseline determination is attributable to the new or expanded production variables; or
(iii) if the production variable is onsite electricity—whether the electricity will supply over 30% of the electricity needs of the facility in the period to be covered by the calculated-emissions baseline determination.
(3) For the purposes of this section:
(a) the installation of new equipment at a transport facility includes the addition of new or used equipment, such as trucks or planes, to carry out the activities which constitute the facility; and
(b) if a production variable for a facility is the quantity of an input, the input is taken to be produced at a facility if it is used to produce the outputs of the facility; and
(c) the production variables used for the purposes of subsection (2) need not be the same as the production variables used for the purposes of paragraph 27(1)(c).
(4) For a landfill facility: the facility must have undergone a significant expansion where during a relevant expansion period its licenced capacity has increased by more than 20% since the start of the period.
(5) For the purposes of this section, a relevant expansion period ends either:
(a) immediately before the period to be covered by the calculated-emissions baseline determination; or
(b) 30 June of the first financial year to be covered by the calculated-emissions baseline determination
and starts:
(c) if a calculated-emissions baseline determination in relation to the facility has expired, or will expire, before the start of the proposed period of the calculated-emissions baseline determination the subject of the application—on the later of:
(i) the 1 July of the last financial year of the expired, or expiring, baseline determination; and
(ii) 3 years before the end of the period; or
(d) otherwise—on the later of:
(i) 1 July 2014; and
(ii) 3 years before the end of the period.
(6) For the purposes of subparagraph (2)(c)(ii), the calculation of the expected revenue must be based upon prices related to the production variable current at the time of the application.
Other criteria
(7) The facility either:
(a) has previously emitted more than 100,000 t CO2‑e of covered emissions in a financial year; or
(b) is reasonably expected to emit more than 100,000 t CO2‑e of covered emissions in the first financial year to be covered by the calculated-emissions baseline determination.
(8) The facility has, or is reasonably expected to, emit more than the baseline emissions number that would otherwise apply to the facility in at least one financial year of the period to be covered by the calculated-emissions baseline determination.
Note: As the criteria in this section need to be met at the time the Regulator makes a decision on the application, expectations of exceedance are not relevant where information on actual emissions for a financial year is available.
(9) A calculated-emissions baseline determination in relation to the facility:
(a) has never been made; or
(b) was made but has expired, or will expire, before the start of the proposed period of the calculated-emissions baseline determination the subject of the application.
(10) The calculated-emissions baseline determination to which the application relates is to commence on 1 July 2016 or 1 July 2017.
25 Inherent emissions variability criteria
(1) The inherent emissions variability criteria are satisfied in relation to a facility if all of the criteria in this section are met.
(2) At least one of the following has been made in relation to the facility:
(a) a reported-emissions baseline determination;
(b) a calculated-emissions baseline determination.
(3) The facility must satisfy all of the following:
(a) either:
(i) the extraction of a natural resource is the principal activity which constitutes the facility; or
(ii) the facility is a natural gas processing or liquefaction facility that is associated with the extraction of natural gas from a natural gas reserve; and
(b) the properties of the natural resource or natural gas reserve have a direct effect on the covered emissions or covered emissions intensity of the facility; and
(c) the facility has limited cost-effective ability to control for the covered emissions related to the natural resource or natural gas reserve.
(4) The facility’s covered emissions in respect of the first financial year to be covered by the calculated-emissions baseline determination have exceeded, or are reasonably expected to exceed, the baseline emissions number which would otherwise apply to the facility in that financial year.
Note: As the criteria in this section need to be met at the time the Regulator makes a decision on the application, expectations of exceedance are not relevant where information on actual emissions for a financial year is available.
(5) The properties of the natural resource or natural gas reserve are the primary reason for the excess in subsection (4) having regard to the differences, or expected differences, in covered emissions between the first financial year to be covered by the calculated-emissions baseline determination and the covered emissions reported under the Act for the most recent baseline comparison year.
(6) No more than one calculated-emissions baseline determination has been made in relation to the facility.
(7) A benchmark-emissions baseline determination has never been made in relation to the facility.
(8) The facility is not a grid-connected electricity generator.
(9) The calculated-emissions baseline determination to which the application relates is to commence on a 1 July up to and including 1 July 2024.
(10) For the purposes of this section, the properties of a natural resource or natural gas reserve include the following:
(a) grade;
(b) depth;
(c) distance from a processing plant;
(d) greenhouse gas content;
(e) other similar properties.
(11) In this section:
baseline comparison year means any of the following financial years:
(a) if a reported-emissions baseline determination has been made in relation to the facility—the financial year used to determine the baseline emissions number under subsection 17(1); and
(b) if a calculated-emissions baseline determination has been made in relation to the facility and a report under the Act has been provided in relation to the financial year determined under paragraph 27(1)(c) for that determination—that financial year; and
(c) if a calculated-emissions baseline determination has been made in relation to the facility and a report under the Act has not been provided in relation to the financial year determined under paragraph 27(1)(c) for that determination—the first financial year of the calculated-emissions baseline determination; and
(b) the covered emissions attributable to the original activities were responsible for at least 5% of the baseline emissions number applicable to the facility;
(c) the Regulator is satisfied that either:
(i) activities of the same kind as the original activities were not, or will not be, conducted at the facility during a financial year; or
(ii) the quantity of the production variable produced at the facility during a financial year is, or will be, less than half of the quantity used in establishing the baseline emissions number in the baseline determination;
(d) the Regulator has reasonable evidence to consider that either:
(i) activities of the same kind as the original activities are unlikely to be conducted during the next financial year; or
(ii) the quantity of the production variable produced at the facility is likely to be less than half of the quantity used in establishing the baseline emissions number in the baseline determination during the next financial year;
the Regulator may vary the baseline determination to remove some or all of the emissions associated with the original activities with effect from the start of the financial year in which the decision to vary the determination is made.
(2) Before the Regulator varies a baseline determination for a facility under this section, the Regulator must provide a written notice to the responsible emitter for the facility:
(a) stating that it intends to vary the baseline determination in relation to the facility under this section; and
(b) specifying the baseline emissions number, or describing how to calculate the baseline emissions number for a financial year, under the proposed varied baseline determination; and
(c) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to vary, or decide not to vary, the baseline determination by the later of:
(a) if the Regulator requires the responsible emitter to give further information under subsection 58(1) in connection with the variation of the baseline determination—30 days after the responsible emitter gave the Regulator the information; and
(b) 30 days after the date specified in paragraph (2)(c).
(4) As soon as practicable after varying a baseline determination, the Regulator must:
(a) provide written notice of the varied determination to the responsible emitter for the facility covered by the determination; and
(b) publish the details of the varied determination on its website.
(5) To avoid doubt, a decision to vary a baseline determination under this section is a reviewable decision under section 56 of the Act.
56C Making of replacement baseline determinations if facilities restructured
(1) If any of the following apply:
(a) activities included in a facility to which a baseline determination applies are now included in 2 or more facilities;
(b) activities included in 2 or more facilities to which baseline determinations apply are now included in a single facility;
the Regulator may revoke the existing baseline determinations and make replacement baseline determinations for the facilities which now include the activities with effect no earlier than the start of the financial year in which the decision to act under this section is made.
(2) Before the Regulator revokes an existing baseline determination and makes a replacement baseline determination for a facility under this section, the Regulator must provide a written notice to the responsible emitter for the facility:
(a) stating that it intends to revoke the existing baseline determination and make one or more replacement baseline determinations under this section; and
(b) specifying the baseline emissions number, or describing how to calculate the baseline emissions number for a financial year, under the proposed replacement baseline determinations; and
(c) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to make a decision under subsection (1) by the later of:
(a) if the Regulator requires the responsible emitter to give further information under subsection 58(1) in connection with the decision—30 days after the responsible emitter gave the Regulator the information; and
(b) 30 days after the date specified in paragraph (2)(c).
(4) As soon as practicable after revoking an existing baseline determination and making replacement baseline determinations, the Regulator must:
(a) provide written notice of the replacement baseline determination to the responsible emitter for the facility covered by the determination; and
(b) publish the details of the replacement baseline determination on its website.
(5) To avoid doubt, a decision to act under this section is a reviewable decision under section 56 of the Act.
57 Remaking of baseline determinations because of error
(1) If the Regulator is satisfied that:
(a) a baseline determination or purported baseline determination has incorrectly calculated the baseline emissions number for a facility; or
(b) the making of a baseline determination or purported baseline determination was subject to jurisdictional error by the Regulator; or
(c) information provided to the Regulator by the responsible emitter in connection with the making of the baseline determination was false or misleading in a material particular;
the Regulator may remake the decision to make or refuse to make the baseline determination with effect from the start of that financial year in which the decision is remade.
(2) Before the Regulator remakes a decision to make or refuse to make a baseline determination for a facility under this section, the Regulator must provide a written notice to the responsible emitter for the facility:
(a) stating that it intends to remake the decision in relation to the facility under this section; and
(b) if a baseline determination is to be remade—specifying the baseline emissions number that would apply under that determination; and
(c) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to make or refuse to make the baseline determination by the later of:
(a) if the Regulator requires the responsible emitter to give further information under subsection 58(1) in connection with the remaking of a decision to make or refuse to make the baseline determination—30 days after the responsible emitter gave the Regulator the information; and
(b) 30 days after the date specified in paragraph (2)(c).
(4) As soon as practicable after remaking or refusing to make a baseline determination, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility covered by the baseline determination; and
(b) publish the details of any remade baseline determination on its website.
(5) Despite subsection (1), the baseline emissions number for a facility in a financial year before the start of the remade baseline determination or decision to refuse to make the baseline determination is the baseline emissions number calculated in accordance with the original baseline determination or purported baseline determination.
(6) To avoid doubt, a decision to remake or refuse to make a baseline determination under this section is a reviewable decision under section 56 of the Act.
58 Further information
(1) The Regulator may, by written notice given to the responsible emitter, require the responsible emitter to give the Regulator, within the period specified in the notice, further information in connection with the variation of a baseline determination under section 56, 56A or 56B, a decision under section 56C or remaking of a decision to make or refuse to make baseline determination under section 57.
(2) If the responsible emitter breaches the requirement, the Regulator may, by written notice given to the responsible emitter:
(a) refuse to take any action, or any further action, in relation to the relevant decision until the information is provided; and
(b) make any assumptions the Regulator considers appropriate about the information which was not provided.
Part 4—Compliance
Division 1—Exemption declarations
59 Operation of this Division
For subsections 22XE(2), (3) and (4) of the Act, this Division provides for an exemption declaration to be issued in relation to a facility for a monitoring period.
60 Application
(1) The responsible emitter for a facility may apply to the Regulator for an exemption declaration for the facility for a monitoring period.
(2) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and monitoring period for which an exemption declaration is sought; and
(c) include information and documents substantiating:
(i) why an exemption declaration should be made; and
(ii) if the application relates to criminal activity—the reasonableness of the steps the responsible emitter took:
(A) before the criminal activity occurred, to mitigate risks that criminal activity could result in an excess; and
(B) after the criminal activity occurred, to mitigate the likelihood of an excess as a result of the criminal activity; and
(iii) if the application relates to a natural disaster—the reasonableness of the steps the responsible emitter took:
(A) before the natural disaster occurred, to mitigate risks that a natural disaster could result in an excess; and
(B) after the natural disaster occurred, to mitigate the likelihood of an excess as a result of the natural disaster; and
(iv) any other factors that have significantly impacted the covered emissions of the facility over the monitoring period.
(3) An application under subsection (1) must be given to the Regulator no later than the first 31 October after the end of a monitoring period for which the exemption declaration is sought.
(4) The responsible emitter for the facility may, by written notice to the Regulator, withdraw an application at any time before the Regulator makes a decision on the application.
61 Further information
(1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.
(2) If the applicant breaches the requirement, the Regulator may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
62 Issue of exemption declaration
Scope
(1) This section applies if an application under section 60 has been made for an exemption declaration for a facility for a monitoring period.
Issue of exemption declaration
(2) If the Regulator is satisfied that:
(a) disregarding subsections 22XK(2) and (3) of the Act, the net emissions number for the facility for the monitoring period exceeds the baseline emissions number for the facility for the monitoring period; and
(b) that excess is the direct result of either or both of the following:
(i) a natural disaster;
(ii) criminal activity; and
(c) if the excess relates to criminal activity—the responsible emitter:
(i) had, before the criminal activity occurred, taken reasonable steps to mitigate risks that criminal activity could result in an excess; and
(ii) has, after the criminal activity occurred, taken reasonable steps to mitigate the likelihood of an excess as a result of the criminal activity; and
(iii) the responsible emitter was not complicit in the criminal activity; and
(d) if the excess relates to a natural disaster—the responsible emitter:
(i) had, before the natural disaster occurred, taken reasonable steps to mitigate risks that a natural disaster could result in an excess; and
(ii) has, after the natural disaster occurred, taken reasonable steps to mitigate the likelihood of an excess as a result of the natural disaster;
the Regulator must issue an exemption declaration for the facility for the monitoring period.
Timing
(3) The Regulator must take all reasonable steps to ensure that a decision is made on the application:
(a) if the Regulator requires the applicant to give further information under subsection 61(1) in relation to the application—within 60 days after the applicant gave the Regulator the information; or
(b) otherwise—within 60 days after the application was made.
Notification
(4) As soon as practicable after making an exemption declaration, the Regulator must:
(a) provide written notice of the declaration to the responsible emitter for the facility covered by the declaration; and
(b) publish the details of the declaration on its website.
Refusal
(5) If the Regulator decides to refuse to issue an exemption declaration, the Regulator must give written notice of the decision to the applicant.
63 Revocation of exemption declaration because of false or misleading information
(1) If the Regulator is satisfied that:
(a) information provided to the Regulator by the responsible emitter in connection with the making of an exemption declaration was false or misleading in a material particular; and
(b) the Regulator would not have been satisfied of the matters set out in subsection 62(2) if the false or misleading information had not been provided;
the Regulator may revoke the exemption declaration with effect from at least 30 days after the notification of a decision under this section.
(2) Before the Regulator revokes an exemption declaration, the Regulator must provide a written notice to the responsible emitter for the facility for the monitoring period covered by the exemption declaration:
(a) stating that it intends to revoke the exemption declaration in relation to the facility under this section; and
(b) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to revoke or decide not to revoke the exemption declaration no later than 30 days after the date specified in the notice.
(4) As soon as practicable after revoking an exemption declaration, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility for the monitoring period covered by the exemption declaration; and
(b) publish the details of the revocation of the exemption declaration on its website.
(5) To avoid doubt, a decision to revoke an exemption declaration under this section is a reviewable decision under section 56 of the Act.
Division 2—Declared multi-year periods
64 Operation of this Division
For subsection 22XG(5) of the Act, this Division provides for the declaration of a specified period as a declared multi-year period for a facility.
65 Application
(1) The responsible emitter for a facility may apply to the Regulator for declaration of a specified period as a declared multi-year period for a facility (a multi-year period declaration).
(2) However, an application may not be made if the proposed declared multi-year period would overlap with an existing declared multi-year period for the facility.
(3) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and declared multi-year period for which the declaration is sought; and
(c) specify the amount of covered emissions (in t CO2‑e) emitted, or reasonably likely to be emitted, for the proposed first financial year of the declared multi-year period; and
(d) if the responsible emitter considers that Australian carbon credit units are likely to be used in respect of the declared multi-year period to reduce the net emissions number for the facility—set out an estimate of the number of Australian carbon credit units likely to be used; and
(e) provide an explanation of why the responsible emitter considers that they are unlikely to breach section 22XF of the Act after the end of the declared multi-year period; and
(f) if the responsible emitter is aware of any risks they will breach section 22XF of the Act at the end of the declared multi-year period—provide an explanation of those risks.
(4) An application under subsection (1) must be given to the Regulator no later than the first 1 February after the end of the proposed first financial year of the declared multi-year period.
(5) The responsible emitter for the facility may, by written notice to the Regulator, withdraw an application at any time before the Regulator makes a decision on the application.
66 Further information
(1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.
(2) If the applicant breaches the requirement, the Regulator may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
67 Making of multi-year period declaration
Scope
(1) This section applies if an application under section 64 has been made for a multi-year period declaration for a facility.
Making of multi-year period declaration
(2) If the Regulator is satisfied the facility’s covered emissions (in t CO2‑e) for the proposed first financial year of the declared multi-year period are reasonably likely to be greater than the baseline emissions number with respect to that facility, it may make a multi-year period declaration for the facility having regard to:
(a) whether the responsible emitter has previously breached section 22XF of the Act; and
(b) whether the Regulator considers that there is a significant risk the responsible emitter will breach section 22XF of the Act after the end of the declared multi-year period; and
(c) whether the Regulator considers that the responsible emitter is likely to experience financial stress in, or immediately after, the declared multi-year period; and
(d) such other matters (if any) as the Regulator considers relevant.
(3) If the Regulator decides to make a multi-year period declaration, it must specify a declared multi-year period for the facility that is either:
(a) 2 financial years; or
(b) 3 financial years.
Timing
(4) The Regulator must take all reasonable steps to ensure that a decision is made on the application:
(a) before 28 February after the end of the proposed first financial year of the declared multi-year period; and
(a) either:
(i) if the Regulator requires the applicant to give further information under subsection 65(1) in relation to the application—within 60 days after the applicant gave the Regulator the information; or
(ii) otherwise—within 60 days after the application was made.
Notification
(5) As soon as practicable after making a multi-year period declaration, the Regulator must:
(a) provide written notice of the declaration to each responsible emitter for the facility in the period covered by the declaration; and
(b) publish the details of the declaration on its website.
Refusal
(6) If the Regulator decides not to make a multi-year period declaration, the Regulator must give written notice of the decision to the applicant.
68 Variation or revocation of multi-year period declaration on request
(1) The responsible emitter for a facility may apply to the Regulator:
(a) to vary the length of the declared multi-year period in a multi-year period declaration:
(i) from 3 year to 2 years; or
(ii) from 2 years to 3 years; or
(b) to revoke the multi-year period declaration.
(2) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and multi-year period declaration to be varied or revoked; and
(c) include the reasons for the proposed variation or revocation; and
(d) if the variation or revocation would impact the length of a monitoring period for a person other than the applicant—include the written consent of that person to the making of the application.
(3) After considering an application which complies with subsection (1) and (2), the Regulator may vary or revoke the multi-year period declaration as requested by the applicant.
Notification
(4) As soon as practicable after varying or revoking a multi-year period declaration, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility for the declared multi-year period covered by the multi-year period declaration; and
(b) publish the details of the variation or revocation of the multi-year period declaration on its website.
Refusal
(5) If the Regulator decides not to vary or revoke a multi-year period declaration, the Regulator must give written notice of the decision to the applicant.
(6) To avoid doubt, a decision to decide to vary or revoke, or decide not to vary or revoke, a multi-year period declaration under this section is a reviewable decision under section 56 of the Act.
69 Revocation of multi-year period declaration because of false or misleading information
(1) If, during a declared multi-year period, the Regulator becomes satisfied that:
(a) information provided to the Regulator by the responsible emitter in connection with the making of the multi-year period declaration for the declared multi-year period was false or misleading in a material particular; and
(b) the Regulator would not have made the multi-year period declaration if the false or misleading information had not been provided;
the Regulator may revoke the multi-year period declaration with effect from at least 30 days after the notification of the decision under this section.
(2) Before the Regulator revokes the multi-year period declaration, the Regulator must provide a written notice to each responsible emitter for the facility for the declared multi-year period:
(a) stating that it intends to revoke the multi-year period declaration in relation to the facility under this section; and
(b) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to revoke or decide not to revoke the multi-year period declaration no later than 30 days after the date specified in the notice.
(4) As soon as practicable after revoking a multi-year period declaration, the Regulator must:
(a) provide written notice of the decision to each responsible emitter for the facility for the declared multi-year period; and
(b) publish the details of the revocation of the multi-year period declaration on its website.
(5) To avoid doubt, a decision to revoke a multi-year period declaration under this section is a reviewable decision under section 56 of the Act.
Division 3—Notification and publication requirements
70 Operation of this Division
For subsection 22XP(2) and paragraph 22XS(1)(b) of the Act, this Division provides for the issue of advisory notices and other information publication requirements.
71 Advisory notices
(1) The Regulator must notify the responsible emitter for a designated large facility as soon as practicable after:
(a) the net emissions number for the facility is increased under subsection 22XK(4) of the Act; or
(b) deemed surrender occurs under subsection 22XN(6) of the Act in relation to the facility.
(2) A notification under paragraph (1)(a) must include the unique identification numbers for each Australian carbon credit unit that has resulted in the increase in the net emissions number for the facility.
(3) The Regulator may notify the responsible emitter for a facility of any of the following:
(a) the number that the Regulator considers is the net emissions number of the facility;
(b) that an offsets report has been submitted which attributes abatement to the facility;
(c) that a baseline emissions number applies to the facility:
(i) because of paragraph 10(b); or
(ii) because of a landfill baseline emissions formula in a landfill baseline determination; or
(iii) because the baseline determination does not specify a baseline emissions number but describes its calculation for a year;
(d) any other matters relating to the safeguard provisions that the Regulator considers appropriate to provide notification.
(4) At the request of the responsible emitter for a facility, the Regulator may provide the responsible emitter with any reports relating to the facility under the Act relevant to the making or variation of a baseline determination under this instrument.
72 Publication
(1) The Regulator must publish on its website and keep up-to-date the following information relating to the safeguard mechanism:
(a) in respect of each facility that is a designated large facility:
(i) the responsible emitter for the facility; and
(ii) whether or not the facility is a grid-connected electricity generator; and
(iii) the current baseline emissions number for the facility; and
(iv) the baseline emissions number for each financial year that the facility is a designated large facility; and
(v) the covered emissions of the facility for each financial year that the facility is a designated large facility; and
(vi) if the facility is a grid-connected electricity generator—the covered emissions for each financial year after 1 July 2016 calculated on the basis that no financial year is a sectoral-baseline financial year; and
(vii) the net emissions number for each monitoring period that applies to the facility; and
(viii) the number of prescribed carbon units surrendered under subsection 22XN(1) of the Act for each monitoring period that applies to the facility; and
(ix) if a multi-year period declaration applies to the facility—the start date and end date of the declared multi-year period for the facility; and
(x) the start date and end date of any monitoring period for which an exemption declaration has been made in relation to the facility; and
(xi) any increase in the net emissions number under subsection 22XK(4) of the Act or deemed surrender under subsection 22XN(6);
(b) in respect of any excess emissions situations resulting in a breach of section 22XF of the Act:
(i) the responsible emitter for the excess emissions situation; and
(ii) when the excess emissions situation started; and
(iii) if the excess emissions situation no longer exists—the date when the excess emissions situation ended;
(c) the covered emissions of each grid-connected electricity generator for each financial year after 1 July 2016 calculated on the basis that no financial year is a sectoral-baseline financial year;
(d) an estimate of the total number of Australian carbon credit units likely to be surrendered under subsection 22XN(1) of the Act during the next three years in relation to all facilities with a declared multi-year period;
(e) such other aggregated information related to the future surrender of Australian carbon credit units under subsection 22XN(1) of the Act that the Regulator considers appropriate.
Note: The publication of certain types of information is subject to section 25 of the Act.
(2) The information required to be published under paragraph (1)(c) and subparagraphs (1)(a)(v) and (vi) need not be published until information is published in respect of the relevant financial year under section 24 of the Act.
(3) The information required to be published under subparagraphs (1)(a)(vii) and (viii) need not be published until after the first 1 March following the end of the relevant monitoring period.
Part 5—Registration, reporting and record-keeping
Division 1—Registration
73 Operation of this Division
For paragraph 15B(4)(c) of the Act, this Division provides for information to accompany an application to register under section 15B of the Act.
74 Application requirements
(1) An application under section 15B of the Act must set out the following information:
(a) the applicant’s name and trading name (if any);
(b) which section of the Act the applicant is applying under;
(c) the year for which the applicant is first required to register;
(d) if a personal identification number has been issued by the Regulator to the applicant—the applicant’s personal identification number;
(e) if the applicant is a subsidiary of a controlling corporation registered under the Act—a statement to that effect, and the identifying details of the controlling corporation.
(2) The application must also set out the identifying information for the applicant if that information has not previously been given to the Regulator.
Division 2—Reporting
75 Operation of this Division
For paragraph 22XB(2)(b) of the Act, this Division provides for information to be set out in a report under section 22XB of the Act.
76 Required information
A report under section 22XB of the Act must set out:
(a) the identifying information for the responsible emitter providing the report; and
(b) the information required by Subdivisions 4.4.2 and 4.4.3 and regulations 4.04A and 4.27 of the NGER Regulations as if the person was a corporation to which those subdivisions and regulations 4.04A and 4.27 applied; and
(c) the covered emissions from the operation of the facility, in t CO2‑e; and
(d) any information required under section 77.
77 Reporting a change in principal activity for facility
(1) This section applies in relation to a report provided to the Regulator under section 22XB of the Act if the principal activity for a facility that has been included in a report under the Act stops being the principal activity for the facility for a period of at least 24 months.
(2) The responsible emitter for the facility must identify a new principal activity for the facility and the industry sector to which the principal activity is attributable in accordance with Subdivisions 2.4.2 and 2.4.3 of the NGER Regulations.
(3) The report for the reporting year that includes the last day of the period mentioned in subsection (1) must include the industry sector to which the new principal activity is attributable.
(4) The responsible emitter must record the new principal activity and the date that the principal activity changed.
(5) In this regulation, principal activity, in relation to a facility, means the activity that:
(a) results in the production of a product or service that is produced for sale on the market; and
(b) produces the most value for the facility out of any of the activities forming part of the facility.
Division 3—Record-keeping
78 Form of records
(1) This section applies to records mentioned in subsection 22XC(1) of the Act.
(2) For paragraph 22XC(3)(b) of the Act, the records must be kept in a form that is easily and quickly accessible for inspection and audit.
Note: This may be in an electronic or hard copy format.
Part 6—Application and transitional provisions
Division 1—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019
79 Applications for calculated-emissions baseline determination before commencement
Unless the applicant elects otherwise in writing, an application under section 22 received before the commencement of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019 (the amendment rule) must be determined as if the amendment rule had not commenced.
80 Applications for declared multi-year period before commencement
Unless the applicant elects otherwise in writing, an application under section 65 received before the commencement of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019 (the amendment rule) must be determined as if the amendment rule had not commenced.
Schedule 1—Benchmark Emissions-Intensity Index
Note: See the definition of Benchmark Emissions-Intensity Index in section 4.
1 Benchmark Emissions-Intensity Index
This Schedule will set out benchmark levels of emissions intensity per unit of a production variable for certain kinds of facilities and the prescribed capture efficiency rate for non-legacy greenhouse gas emissions.
Schedule 2—Prescribed (Annually Adjusted) Production Variables
Note: See the definition of prescribed (annually adjusted) production variable in section 4.
1 Prescribed (Annually Adjusted) Production Variables
This Schedule will set out the prescribed (annually adjusted) production variables and their default emissions intensities.
Schedule 3—Prescribed (Fixed) Production Variables
Note: See the definition of prescribed (fixed) production variable in section 4.
1 Prescribed (Fixed) Production Variables
This Schedule will set out the prescribed (fixed) production variables and their default emissions intensities.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
| o = order(s) | |
| ad = added or inserted | Ord = Ordinance |
| am = amended | orig = original |
| amdt = amendment | par = paragraph(s)/subparagraph(s) |
| c = clause(s) | /sub‑subparagraph(s) |
| C[x] = Compilation No. x | pres = present |
| Ch = Chapter(s) | prev = previous |
| def = definition(s) | (prev…) = previously |
| Dict = Dictionary | Pt = Part(s) |
| disallowed = disallowed by Parliament | r = regulation(s)/rule(s) |
| Div = Division(s) | |
| exp = expires/expired or ceases/ceased to have | reloc = relocated |
| effect | renum = renumbered |
| F = Federal Register of Legislation | rep = repealed |
| gaz = gazette | rs = repealed and substituted |
| LA = Legislation Act 2003 | s = section(s)/subsection(s) |
| LIA = Legislative Instruments Act 2003 | Sch = Schedule(s) |
| (md) = misdescribed amendment can be given | Sdiv = Subdivision(s) |
| effect | SLI = Select Legislative Instrument |
| (md not incorp) = misdescribed amendment | SR = Statutory Rules |
| cannot be given effect | Sub‑Ch = Sub‑Chapter(s) |
| mod = modified/modification | SubPt = Subpart(s) |
| No. = Number(s) | underlining = whole or part not |
| commenced or to be commenced |
Endnote 3—Legislation history
| Name | Registration | Commencement | Application, saving and transitional provisions |
| National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 | 8 October 2015 (F2015L01637) | 1 July 2016 (s 2) | |
| National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019 | 6 March 2019 (F2019L00258) | 7 March 2019 (s 2) | ss 79 and 80 of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 |
| National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 2) 2019 | 25 September 2019 (F2019L01259) | 26 September 2019 (s 2) |
Endnote 4—Amendment history
| Provision affected | How affected |
| Part 1 | |
| s 4 | am F2019L00258 |
| s 5 | am F2019L00258 |
| s 6 | am F2019L00258 |
| Part 2 | |
| Divisions 2 | |
| s 13 | am F2019L00258 |
| s 14 | am F2019L00258 |
| s 18 | am F2019L00258 |
| s 20 | am F2019L00258 |
| s 22 | am F2019L00258, am F2019L01259 |
| s 23 | am F2019L00258 |
| s 24 | am F2019L00258 |
| s 25 | am F2019L00258 |
| s 26A | ad F2019L00258, am F2019L01259 |
| s 27 | am F2019L00258 |
| s 28 | am F2019L00258 |
| s 30 | am F2019L00258 |
| s 31 | am F2019L00258 |
| s 34 | am F2019L00258 |
| s 35 | am F2019L00258 |
| s 36 | am F2019L00258 |
| s 38 | am F2019L00258 |
| s 38 | am F2019L00258 |
| s 39 | am F2019L00258 |
| s 40 | am F2019L00258, am F2019L01259 |
| s 41 | rs F2019L00258 |
| s 42 | am F2019L00258 |
| s 44 | am F2019L00258 |
| s 46 | am F2019L00258 |
| s 47 | am F2019L00258 |
| s 48 | am F2019L00258 |
| s 49 | am F2019L00258 |
| s 51 | am F2019L00258 |
| s 52 | am F2019L00258 |
| s 54 | am F2019L00258 |
| s 55 | am F2019L00258 |
| s 56A | ad F2019L00258 |
| s 56B | ad F2019L00258 |
| s 56C | ad F2019L00258 |
| s 58 | am F2019L00258 |
| Part 4 | |
| Division 2 | |
| s 65 | am F2019L00258 |
| s 67 | am F2019L00258 |
| Division 3 | |
| s 71 | am F2019L00258 |
| s 72 | am F2019L00258 |
| Part 6 | ad F2019L00258 |
| Division 1 | ad F2019L00258 |
| s 79 | ad F2019L00258 |
| s 80 | ad F2019L00258 |
| Schedule 1 | |
| c 1 | am F2019L00258 |
| Schedule 2 | ad F2019L00258 |
| c 1 | ad F2019L00258 |
| Schedule 3 | ad F2019L00258 |
| c 1 | ad F2019L00258 |
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