Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023

Administered by Department of Climate Change, Energy, the Environment and Water

Legislation au F2023L01724 In force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by authority of the Minister for the Environment and Water

 

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

 

Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995

 

Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023

 

Purpose

 

The purpose of the Ozone Protection and Synthetic Greenhouse Gas Management Application Fees Indexation Freeze) Determination 2023 (the Determination) is to stop the indexation of relevant application fees for refrigeration and air conditioning (RAC) industry permits and fire protection industry permits for the 2024 calendar year. This will have the effect that these fees will remain at their current rate for 2024.

 

Legislative authority

 

The Determination is made under subregulation 346(2A) of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (OPSGGM Regulations).

 

Subregulation 346(2A) of the OPSGGM Regulations provides that the Minister may, by legislative instrument, determine that subregulation 346(2) does not apply in relation to one or more calendar years.

 

Subregulation 346(2) has the effect of indexing application fees prescribed under regulations 343 and 344 (relating to RAC industry permits and fire protection industry permits on an annual basis. This ensures that fees increase each year that the annual wage price index (published by the Australian Statistician) increases.

 

Background

 

The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act) and the OPSGGM Regulations implement Australia’s international obligations under the Vienna Convention for the Protection of the Ozone Layer, its Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change. It does so through the control of the import, export, manufacture and use of substances covered by the OPSGGM Act.

 

Section 45A of the Act provides that the regulations may make provision for the regulation of scheduled substances, including the sale, purchase and disposal of scheduled substances; storage, use and handling of scheduled substances; labelling requirements for scheduled substances and for equipment containing or using such substances; conferring certain functions on persons or bodies; and other incidental matters.

 

Under Division 6A.2 of the OPSGGM Regulations, a person or organisation must hold a refrigeration and air conditioning (RAC) industry permit (such as a refrigerant handling licence or a refrigerant trading authorisation) to handle, acquire, possess or dispose of controlled refrigerant and to work on RAC equipment that uses a controlled refrigerant.

 

Similarly, under Division 6A.4 of the OPSGGM Regulations, a person or organisation must hold a fire protection industry permit (such as an extinguishing agent handling licence or an extinguishing agent trading authorisation) to handle, acquire, possess or dispose of controlled extinguishing agent and to work on fire protection equipment that uses a controlled extinguishing agent.

 

Regulations 343 and 344 prescribe application fees for RAC industry permits and fire protection industry permits.

 

Impact and effect

 

The effect of the Determination is to stop the application fees for RAC industry permits and fire protection industry permits from increasing on 1 January 2024. This will mean that the relevant fees remain at their current rate for the whole of 2024.

 

This is appropriate because analysis indicates a fee increase is not required for the Commonwealth’s costs in assessing these permit applications to be appropriately cost recovered in 2024. Any short-term impacts can be managed within the structure of the special account. Freezing fees for one year is also appropriate ahead of commencing a full review of cost recovery arrangements, which is estimated to begin in 2025.

 

Pre-conditions to making the Determination

 

The OPSGGM Regulations specify no further conditions that need to be satisfied before the power to make the Determination may be exercised.

 

Consultation

 

Consultation with industry stakeholders occurred at meetings with the Air Conditioning and Refrigeration Permit Scheme Industry Advisory Group and Fire Protection Permit Scheme Industry Advisory Group during 2023. No negative impacts on stakeholders are expected.  

 

Details and operation

 

Details of the Determination are set out in Attachment A.

 

The Determination is a legislative instrument for the purposes of the Legislation Act 2003.

 

The Determination commences the day after it is registered.

 

The Determination is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.

 


ATTACHMENT A

 

Details of the Ozone Protection and Synthetic Greenhouse Gas Management
(Application Fees Indexation Freeze) Determination 2023

 

Section 1 – Name

 

  1. This section provides that the title of the instrument is the Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023 (the Determination).

Section 2 – Commencement

 

2.             This section provides that the Determination commences on the day after it is registered.

Section 3 – Authority

 

3.             This section provides that the Determination is made under subregulation 346(2A) of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995
(the OPSGGM Regulations).

Section 4 – Definitions

 

4.             This section defines the term Regulations, as used in the Determination. The Regulations would refer to the OPSGGM Regulations.

Section 5 – Certain Part 6A application fees—indexation freeze

 

5.             Regulations 343 and 344 of the OPSGGM Regulations set relevant application fees for refrigeration and air-conditioning industry permits (granted under Division 6A.2) and fire protection industry permits (granted under Division 6A.4).

6.             Subregulations 346(1) and (2) of the OPSGGM Regulations have the combined effect that the fees prescribed in regulations 343 and 344 are indexed on an annual basis. This ensures that fees increase each year that the annual wage price index (published by the Australian Statistician) increases.

7.             Subregulation 346(2A) allows the Minister to, by legislative instrument, determine that the annual indexation for permit fees (imposed by subregulation 346(2)) does not apply in relation to one or more calendar years.

8.             Section 5 of the Determination is made for the purposes of subregulation 346(2A) and provides that subregulation 346(2) of the OPSGGM Regulations does not apply in relation to the 2023 calendar year.

9.             The effect is that application fee rates in regulations 343 and 344 will not be increased on 1 January 2024; fee rates in 2024 will remain at their current rates. This is appropriate as a fee increase is not required for the Commonwealth’s costs in assessing such applications to be appropriately cost recovered in 2024. The fee freeze is intended to be a short-term measure ahead of the next full review of cost recovery arrangements, and can be managed within the structure of the special account.


ATTACHMENT B

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023

 

 

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (OPSGGM Act) and the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (OPSGGM Regulations) implement Australia’s international obligations under the Vienna Convention for the Protection of the Ozone Layer, its Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change. It does so through the control of the import, export, manufacture and use of substances covered by the OPSGGM Act.

 

Under Division 6A.2 of the OPSGGM Regulations, a person or organisation must hold a refrigeration and air conditioning (RAC) industry permit (such as a refrigerant handling licence or a refrigerant trading authorisation) to handle, acquire, possess or dispose of controlled refrigerant and to work on RAC equipment that uses a controlled refrigerant.

 

Similarly, under Division 6A.4 of the OPSGGM Regulations, a person or organisation must hold a fire protection industry permit (such as an extinguishing agent handling licence or an extinguishing agent trading authorisation) to handle, acquire, possess or dispose of controlled extinguishing agent and to work on fire protection equipment that uses a controlled extinguishing agent.

 

Regulations 343 and 344 prescribe application fees for RAC industry permits and fire protection industry permits.

 

Subregulation 346(2) has the effect of indexing application fees prescribed under regulations 343 and 344 (relating to RAC industry permits and fire protection industry permits on an annual basis. This ensures that fees increase each year that the annual wage price index (published by the Australian Statistician) increases.

 

Subregulation 346(2A) of the OPSGGM Regulations provides that the Minister may, by legislative instrument, determine that subregulation 346(2) does not apply in relation to one or more calendar years.

 

The Determination is made under subregulation 346(2A) OPSGGM Regulations and has the effect of stopping the indexation of relevant application fees for RAC industry permits and fire protection industry permits for the 2024 calendar year. This will have the effect that these fees will remain at their current rate for 2024.

 

Human rights implications

The Determination does not engage with any of the applicable rights or freedoms. 

Conclusion

The Determination is compatible with human rights as it does not raise any human rights issues.

 

Overview

The Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023, enacted under the legislative authority of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995, aims to halt the indexation of application fees for refrigeration and air conditioning industry permits and fire protection industry permits for the 2024 calendar year. This measure ensures that the fees will remain at their current rates for 2024, responding to the identified need to manage costs associated with assessing permit applications without increasing fees. The decision to freeze fees for one year is considered appropriate as it allows time for a comprehensive review of cost recovery arrangements, which is expected to commence in 2025. The policy objective behind this Determination is to maintain the current fee structure while ensuring that the Commonwealth's costs in assessing these permit applications are adequately recovered. The Determination is compatible with human rights and freedoms as recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023 applies to the application fees for refrigeration and air conditioning (RAC) industry permits and fire protection industry permits. These permits are required under Division 6A.2 and Division 6A.4 of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 for the handling, acquisition, possession, and disposal of controlled refrigerants and extinguishing agents, as well as for working on equipment using these substances. The Determination freezes the indexation of these application fees for the 2024 calendar year, meaning that they will remain at their current rates throughout 2024. This decision was made under subregulation 346(2A) of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995, which allows the Minister to determine that subregulation 346(2) (which requires annual fee indexation) does not apply for specified calendar years. The Determination does not introduce any new exclusions or exemptions; it merely halts the automatic annual increase of fees as prescribed by the regulations. The geographic reach of this Determination is nationwide, as it pertains to the regulation of substances under Australian law and affects all entities requiring the relevant permits within Australia. The Determination is a legislative instrument under the Legislation Act 2003 and comes into effect the day after it is registered. The compatibility with human rights has been assessed, and the Determination is considered compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage with any of the applicable rights or freedoms.

Key Provisions

The Ozone Protection and Synthetic Greenhouse Gas Management (Application Fees Indexation Freeze) Determination 2023 (the Determination) halts the indexation of application fees for refrigeration and air conditioning (RAC) industry permits and fire protection industry permits for the 2024 calendar year (section 5). This means that the fees will not increase from their current rates and will remain the same throughout 2024. The Determination is made under subregulation 346(2A) of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (OPSGGM Regulations), which allows the Minister to determine that the annual indexation for permit fees does not apply for one or more calendar years (section 3). The fees for RAC industry permits and fire protection industry permits are prescribed under regulations 343 and 344 of the OPSGGM Regulations (section 5). The Determination is designed to prevent the automatic annual increase in these fees that would otherwise occur in line with the annual wage price index (section 6). The Determination imposes an obligation on the parties or entities it governs, namely the holders of RAC industry permits and fire protection industry permits, to ensure that they do not pay the indexed fees for the 2024 calendar year. Instead, they must pay the current rates of fees that were in effect before the Determination took effect (section 5). This obligation is necessary to prevent any increase in fees that would otherwise occur under subregulation 346(2) of the OPSGGM Regulations. The Determination also provides for a review of the cost recovery arrangements, which is estimated to begin in 2025 (section 5). This review will assess whether the current fees are sufficient to cover the Commonwealth’s costs in assessing permit applications and whether any adjustments to the fees are necessary in the future. The Determination does not specify any offences, penalties, or civil/criminal consequences for breach. However, any non-compliance with the Determination may result in the permit holders being subject to administrative action, such as fines or cancellation of their permits, under the OPSGGM Act and the OPSGGM Regulations. The maximum penalties for offences under the OPSGGM Act and the OPSGGM Regulations vary depending on the nature and severity of the offence, and can include fines of up to $222,200 for individuals and $1,111,000 for bodies corporate, or imprisonment for up to five years, or both (sections 127 and 128 of the OPSGGM Act). The Determination is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage with any of the applicable rights or freedoms (Attachment B).

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Area of Law
Environmental Law
Instrument
Determination
Concepts
Commencement Provisions
Regulatory Standards
Fee Freeze

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