Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011
No. 161, 2011
An Act to impose fixed charges on the issue of carbon units under the Clean Energy Act 2011, so far as those charges are neither duties of customs nor duties of excise
Contents
1 Short title
2 Commencement
3 Definitions
4 Crown to be bound
5 Extension to external Territories
6 Extension to exclusive economic zone and continental shelf
7 Extension to Joint Petroleum Development Area
8 Imposition of charge
9 Act does not impose a tax on property of a State
Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011
No. 161, 2011
An Act to impose fixed charges on the issue of carbon units under the Clean Energy Act 2011, so far as those charges are neither duties of customs nor duties of excise
[Assented to 4 December 2011]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 4 December 2011 |
2. Sections 3 to 9 | At the same time as section 3 of the Clean Energy Act 2011 commences. | 2 April 2012 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Definitions
In this Act:
carbon unit has the same meaning as in the Clean Energy Act 2011.
issue, in relation to a carbon unit, has the same meaning as in the Clean Energy Act 2011.
Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.
person has the same meaning as in the Clean Energy Act 2011.
4 Crown to be bound
This Act binds the Crown in right of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, it does not bind the Crown in right of the Commonwealth.
5 Extension to external Territories
This Act extends to every external Territory.
6 Extension to exclusive economic zone and continental shelf
This Act extends to Australia’s exclusive economic zone and continental shelf.
7 Extension to Joint Petroleum Development Area
This Act extends to the Joint Petroleum Development Area.
8 Imposition of charge
(1) If:
(a) a carbon unit is issued to a person; and
(b) the unit is issued in accordance with section 100 of the Clean Energy Act 2011 (issue of units for a fixed charge);
charge is imposed on the issue of the unit.
(2) Charge imposed by subsection (1) is payable by the person.
(3) The amount of charge imposed by subsection (1) on the issue of a unit is the amount equal to the per unit charge set out in the application under subsection 100(1) of the Clean Energy Act 2011 for the issue of the unit.
(4) Subsection (1) imposes charge only so far as that charge is:
(a) taxation within the meaning of section 55 of the Constitution; and
(b) neither a duty of customs nor a duty of excise within the meaning of that section.
9 Act does not impose a tax on property of a State
(1) This Act has no effect to the extent (if any) to which it imposes a tax on property of any kind belonging to a State.
(2) In this section, property of any kind belonging to a State has the same meaning as in section 114 of the Constitution.
[Minister’s second reading speech made in—
House of Representatives on 13 September 2011
Senate on 12 October 2011]
Overview
The Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011 was enacted by the Parliament of Australia on 4 December 2011 to address the need for imposing fixed charges on the issue of carbon units under the Clean Energy Act 2011. This legislation was introduced to ensure that such charges are classified correctly as taxation within the meaning of section 55 of the Constitution, and not as duties of customs or excise. The Act binds the Crown in right of each of the States, the Australian Capital Territory, the Northern Territory, and Norfolk Island, and extends to Australia’s external Territories, exclusive economic zone, continental shelf, and the Joint Petroleum Development Area. The primary objective of the Act is to impose a charge on the issue of carbon units, payable by the person to whom the units are issued, calculated according to the per unit charge specified in the Clean Energy Act 2011. Importantly, the Act clarifies that it does not impose a tax on property belonging to any State, thereby avoiding any potential constitutional conflicts.
Scope and Application
The Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011 applies to the issuance of carbon units under the Clean Energy Act 2011, imposing fixed charges on such issuances. This Act applies to any person who issues a carbon unit in accordance with section 100 of the Clean Energy Act 2011. The Act extends to every external Territory, Australia’s exclusive economic zone, and continental shelf, as well as the Joint Petroleum Development Area, thereby encompassing a broad geographic and jurisdictional reach. It binds the Crown in right of each of the States, the Australian Capital Territory, the Northern Territory, and Norfolk Island but does not bind the Crown in right of the Commonwealth. The Act specifically excludes any charge that would amount to a duty of customs or excise and does not impose a tax on property belonging to a State. The application of the Act can be further extended or modified through subordinate instruments, although the primary text itself does not explicitly detail these mechanisms.
Key Provisions
The Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011 (sections 1-9) imposes fixed charges on the issue of carbon units under the Clean Energy Act 2011, provided that such charges are not considered duties of customs or excise. This Act binds the Crown in right of each of the States, the Australian Capital Territory, the Northern Territory, and Norfolk Island, but not the Crown in right of the Commonwealth (section 4). It also extends to external Territories (section 5), Australia’s exclusive economic zone and continental shelf (section 6), and the Joint Petroleum Development Area (section 7). The charge is imposed when a carbon unit is issued to a person in accordance with section 100 of the Clean Energy Act 2011, with the amount of the charge being equal to the per unit charge specified in the application for the issue of the unit (section 8(1)-(3)). Importantly, the Act does not impose a tax on property belonging to any State (section 9).
The Act imposes specific obligations on entities and individuals involved in the issuance of carbon units. These obligations include ensuring that the charge is calculated and paid accurately, as determined by the per unit charge set out in the application under section 100 of the Clean Energy Act 2011 (section 8(3)). The Act also mandates that the charge is levied only insofar as it constitutes taxation under section 55 of the Constitution and does not qualify as a duty of customs or excise (section 8(4)). Furthermore, entities and individuals must ensure compliance with the territorial scope of the Act, applying the charge within the defined areas such as external Territories, the exclusive economic zone, continental shelf, and the Joint Petroleum Development Area (sections 5-7).
Breach of the provisions of the Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011 can result in significant civil and criminal consequences. While the Act itself does not explicitly outline penalties for non-compliance, the Clean Energy Act 2011, under which the charge is imposed, includes provisions for penalties. For instance, failure to comply with the Clean Energy Act 2011 could lead to penalties including fines and imprisonment. The Clean Energy Act 2011 provides for penalties such as fines of up to $66,000 for individuals and up to $330,000 for corporations, as well as imprisonment terms that can extend up to five years for serious offences. These penalties underscore the importance of adhering to the charge imposition requirements set forth in the Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011.