CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 5 Definitions
CLEAN ENERGY ACT 2011 (NO. 131, 2011) - SECT 5
DefinitionsIn this Act:
"ABN" has the same meaning as in the A New Tax System (Australian Business Number) Act 1999 .
"accept" the quotation of an OTN has the meaning given by section 59 or 60.
"account number" , in relation to a Registry account, has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"acquire" , in relation to a carbon unit, includes acquire by way of the issue of the unit.
"applicable identification procedure" has the meaning ascertained in accordance with the regulations.
"appropriate energy market operator" , in relation to a generation complex, means:
(a) if Australian Energy Market Operator Limited (ACN 072 010 327) performs the functions of the energy market operator in the place where the generation complex is located--Australian Energy Market Operator Limited; and
(b) if the Independent Market Operator established under the Electricity Industry (Independent Market Operator) Regulations 2004 of Western Australia performs the functions of the energy market operator in the place where the generation complex is located--the Independent Market Operator.
"associated provisions" means the following provisions:
(a) the provisions of the regulations;
(b) the provisions of the Clean Energy (Charges--Excise) Act 2011 ;
(c) the provisions of the Clean Energy (Charges--Customs) Act 2011 ;
(d) the provisions of the Clean Energy (Unit Issue Charge--Auctions) Act 2011 ;
(e) the provisions of the Clean Energy (Unit Issue Charge--Fixed Charge) Act 2011 ;
(f) the provisions of the Clean Energy (Unit Shortfall Charge--General) Act 2011 ;
(g) the provisions of the Clean Energy (International Unit Surrender Charge) Act 2011 ;
(h) sections 15A, 15AA, 18A, 22A, 22AA, 22B, 22C, 22E and 22F of the National Greenhouse and Energy Reporting Act 2007 ;
(i) the remaining provisions of the National Greenhouse and Energy Reporting Act 2007 , in so far as those provisions relate to:
(i) this Act; or
(ii) the regulations; or
(iii) the provisions covered by paragraph (h);
(j) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and 137.2 of the Criminal Code , in so far as those sections relate to:
(i) this Act; or
(ii) the regulations; or
(iii) the provisions of the National Greenhouse and Energy Reporting Act 2007 covered by paragraph (h) or (i).
Note: The provisions covered by paragraph (h) commence on 1 July 2012.
"auction" , when used in relation to a carbon unit:
(a) in the case of an auction under section 111--means a process that involves inviting persons to indicate or declare what they would be willing to pay by way of charge for the issue of the unit; or
(b) in the case of an auction under section 112--means a process that involves inviting persons to indicate or declare what price they would be willing to pay for the acquisition of the unit.
"Australia" , when used in a geographical sense, includes:
(a) in any case--the external Territories; and
(b) for the purposes of Part 3 (liable entities) and Part 7 (Jobs and Competitiveness Program)--the exclusive economic zone, the continental shelf and the Joint Petroleum Development Area.
"Australian carbon credit unit" has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011 .
"benchmark average auction charge" has the meaning given by section 114.
"biofuel" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"biogas" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"biomass" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"business day" means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory.
"carbon budget" means the total amount of net Australian emissions of greenhouse gases during a specified period.
"carbon dioxide equivalence" :
(a) of an amount of greenhouse gas--has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 ; or
(b) of an amount of potential greenhouse gas emissions embodied in an amount of natural gas--has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 ; or
(c) of an amount of potential greenhouse gas emissions embodied in an amount of taxable fuel of a kind specified in the regulations--has the meaning given by the regulations.
Note: See also section 311 (transitional).
"carbon pollution cap" has the meaning given by section 14, 17 or 18.
"carbon pollution cap number" has the meaning given by section 14, 17 or 18.
"carbon unit" means a unit issued under section 94.
"certificate of eligibility for coal-fired generation assistance" means a certificate issued under section 165.
"charge" , in relation to the issue of a carbon unit, means whichever of the following is applicable:
(a) charge payable under subsection 100(10);
(b) charge payable under subsection 111(3);
(c) charge imposed by whichever of the following is applicable:
(i) Part 2 of the Clean Energy (Charges--Excise) Act 2011 ;
(ii) Part 2 of the Clean Energy (Charges--Customs) Act 2011 ;
(iii) the Clean Energy (Unit Issue Charge--Auctions) Act 2011 ;
(iv) the Clean Energy (Unit Issue Charge--Fixed Charge) Act 2011 .
"civil penalty order" means an order under subsection 252(1).
"civil penalty provision" means:
(a) a provision of this Act that is declared by this Act to be a civil penalty provision; or
(b) a provision of a determination under subsection 113(1) that is declared by the determination to be a civil penalty provision.
"Climate Change Convention" means the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 2 ([1994] ATS 2). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .
"Commonwealth Registry account" has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"Commonwealth relinquished units account " means the Commonwealth Registry account designated as the Commonwealth relinquished units account.
"compressed natural gas " has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.
"controlling corporation" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"corporate group transfer test" has the meaning given by section 80.
"covered emission" from the operation of a facility has the meaning given by section 30.
"dead organic matter" does not include a fossil fuel.
"declared designated joint venture" has the meaning given by section 70.
"decommissioned underground mine " has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"designated" , in relation to a Commonwealth Registry account, has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"designated joint venture" , in relation to a facility, means:
(a) a joint venture that is a mandatory designated joint venture for the purposes of the application of this Act to the facility; or
(b) a joint venture that is a declared designated joint venture for the purposes of the application of this Act to the facility.
"designated large landfill facility" : a landfill facility is a designated large landfill facility in relation to an eligible financial year if the number of tonnes of the carbon dioxide equivalence of the total amount of covered emissions, legacy emissions and exempt landfill emissions from the operation of the landfill facility during the eligible financial year is 25,000 or more. For this purpose, assume that the financial year beginning on 1 July 2011 is an eligible financial year.
"designated opt-in person" has the meaning given by the Opt-in Scheme.
"director" includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
"electronic communication" means a communication by means of guided and/or unguided electromagnetic energy.
"electronic notice transmitted to the Regulator" has the meaning given by section 7.
"eligible Australian carbon credit unit" means:
(a) a Kyoto Australian carbon credit unit (within the meaning of the Carbon Credits (Carbon Farming Initiative) Act 2011 ); or
(b) a non-Kyoto Australian carbon credit unit (within the meaning of that Act) issued in relation to an eligible offsets project (within the meaning of that Act) for a reporting period (within the meaning of that Act), where:
(i) if it were assumed that the reporting period had ended before the Kyoto abatement deadline (within the meaning of that Act), a Kyoto Australian carbon credit unit would have been issued in relation to the project for the reporting period instead of the non-Kyoto Australian carbon credit unit; and
(ii) the non-Kyoto Australian carbon credit unit is not of a kind specified in the regulations; or
(c) an Australian carbon credit unit of a kind specified in the regulations.
Subparagraph (b)(ii) and paragraph (c) do not, by implication, limit the application of subsection 13(3) of the Legislative Instruments Act 2003 to other instruments under this Act.
"eligible emissions unit" means:
(a) a carbon unit; or
(b) an eligible international emissions unit; or
(c) an eligible Australian carbon credit unit.
"eligible financial year" means:
(a) the financial year beginning on 1 July 2012; or
(b) a later financial year.
"eligible international emissions unit" has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"emissions intensity" , in relation to a generation complex, has the meaning given by whichever of subsection 168(1) or (2) is applicable.
"emissions number" has the meaning given by section 118.
"emissions number publication time" of a person for an eligible financial year, means the time when the person's emissions number for the eligible financial year is entered on the Information Database in accordance with subsection 185(2).
(a) do an act; or
(b) omit to perform an act.
"evidential burden" , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
"excise duty" has the same meaning as in the Excise Act 1901 .
"executive officer" of a body corporate means:
(a) a director of the body corporate; or
(b) the chief executive officer (however described) of the body corporate; or
(c) the chief financial officer (however described) of the body corporate; or
(d) the secretary of the body corporate.
"exempt landfill emissions" , in relation to a landfill facility, has the meaning given by section 32A.
"externally-administered body corporate" has the same meaning as in the Corporations Act 2001 .
"facility" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"Federal Court" means the Federal Court of Australia.
"feedstock" means a substance that is converted by a chemical process into another substance that is not a greenhouse gas.
"financial control" has the meaning given by section 92.
"financial control transfer test" has the meaning given by section 84.
(a) the eligible financial year beginning on 1 July 2012; or
(b) the eligible financial year beginning on 1 July 2013; or
(c) the eligible financial year beginning on 1 July 2014.
(a) the eligible financial year beginning on 1 July 2015; or
(b) a later eligible financial year.
"foreign account" , when used in relation to a carbon unit, means an account kept within a foreign registry.
"foreign country" includes a region where:
(a) the region is a colony, territory or protectorate of a foreign country; or
(b) the region is part of a foreign country; or
(c) the region is under the protection of a foreign country; or
(d) a foreign country exercises jurisdiction or control over the region; or
(e) a foreign country is responsible for the region's international relations.
"foreign person" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
"foreign registry" has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"free carbon unit" means a carbon unit issued free of charge.
"fuel tax credit" has the same meaning as in the Fuel Tax Act 2006 .
"fugitive emissions" has the meaning given by the regulations.
(a) a generation unit; or
(b) a set of 2 or more generation units at the same location.
"generation unit" means a generator of electricity, and includes:
(a) the boiler (if any); and
(b) any other related equipment essential to the generator's functioning as a generator.
"Greater Sunrise unit area" has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .
"greenhouse gas" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"group" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"GST group" has the same meaning as in the Fuel Tax Act 2006 .
"GST joint venture" has the same meaning as in the Fuel Tax Act 2006 .
"hold" an eligible emissions unit: a person holds an eligible emissions unit if the person is the registered holder of the unit.
"identification number" , in relation to a carbon unit, has the meaning given by section 95.
"Information Database" means the Liable Entities Public Information Database kept under section 183.
"inspector" means a person appointed as an inspector under section 230.
"interim emissions number" has the meaning given by section 126.
"international agreement" means an agreement whose parties are:
(a) Australia and a foreign country; or
(b) Australia and 2 or more foreign countries.
"international climate change agreement" means:
(a) the Climate Change Convention; or
(b) any other international agreement, signed on behalf of Australia, that:
(i) relates to climate change; and
(ii) imposes obligations on Australia to take action to reduce greenhouse gas emissions; or
(c) an international agreement, signed on behalf of Australia, that:
(i) relates to climate change; and
(ii) is specified in a legislative instrument made by the Minister for the purposes of this definition.
"issue" , in relation to a carbon unit, means issue under section 94.
"Jobs and Competitiveness Program" means the program under subsection 145(1).
"Joint Petroleum Development Area" has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003 .
"joint venture" means an unincorporated enterprise carried on by 2 or more persons in common otherwise than in partnership.
"Kyoto Protocol" means the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997, as amended and in force for Australia from time to time.
Note: The text of the Kyoto Protocol is set out in Australian Treaty Series 2008 No. 2 ([2008] ATS 2). In 2011, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
"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 gas consuming facility" has the meaning given by section 55A.
"legacy emissions" , in relation to a landfill facility, has the meaning given by section 32.
"liability transfer certificate" means a certificate issued under section 83 or 87.
(a) a person who, under a provision of this Act, is a liable entity; or
(b) a person who, under the Opt-in Scheme, is a liable entity.
"liquefied natural gas" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"liquid petroleum fuel" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"liquid petroleum gas" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"local governing body" means a local governing body established by or under a law of a State or Territory.
"mandatory designated joint venture" has the meaning given by section 65.
"member" , in relation to a group, has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"monitoring powers" has the meaning given by section 233.
"monitoring warrant" means a warrant issued under section 245.
"nameplate rating" of a generation complex means:
(a) if the appropriate energy market operator is Australian Energy Market Operator Limited (ACN 072 010 327)--the maximum generation capacity in megawatts of the generation complex, most recently published by Australian Energy Market Operator Limited; and
(b) if the appropriate energy market operator is the Independent Market Operator established under the Electricity Industry (Independent Market Operator) Regulations 2004 of Western Australia--the maximum generation capacity in megawatts of the generation complex specified in a written determination made by the Regulator for the purposes of this paragraph.
In making a determination under paragraph (b), the Regulator may have regard to any information provided to the Regulator by the Independent Market Operator.
"natural gas" has the same meaning as in the National Greenhouse and Energy Reporting Regulations 2008 .
"natural gas supplier" means a person who supplies natural gas.
"natural gas supply pipeline" does not include a pipeline of a kind specified in the regulations.
"non-group entity" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"obligation transfer number or OTN" means an OTN issued under section 40 or 41.
"official of the Regulator" has the same meaning as in the Clean Energy Regulator Act 2011 .
"open" , in relation to a Registry account, has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"operation" , in relation to a facility, has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"operational control" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"Opt-in Scheme" means the scheme under subsection 92A(1).
"OTN" : see obligation transfer number .
"OTN Register" means the register kept under section 45.
"participant" , in relation to a joint venture, means any of the persons who carry on the joint venture.
"participating percentage" has the meaning given by section 76 or 77.
"participating percentage determination" means a determination under section 76 or 77.
"person" means any of the following:
(a) an individual;
(b) a body corporate;
(c) a trust;
(d) a corporation sole;
(e) a body politic;
(f) a local governing body.
"person assisting" an inspector has the meaning given by section 234.
"potential greenhouse gas emissions" has the same meaning as in the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"power system reliability test" has the meaning given by section 170.
"premises" includes the following:
(a) a structure, building, vehicle, vessel or aircraft;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
"Productivity Minister" means the Minister administering the Productivity Commission Act 1998 .
"provisional emissions number" :
(a) has the meaning given by Part 3 or the Opt-in Scheme; and
(b) has a meaning affected by sections 11AA, 11AB, 11B and 11C of the National Greenhouse and Energy Reporting Act 2007 .
"quarter" means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.
"quote" , in relation to an OTN, has the meaning given by section 48.
"registered holder" , in relation to an eligible emissions unit, means the person in whose Registry account there is an entry for the unit.
"Registry" means the Australian National Registry of Emissions Units continued in existence under the Australian National Registry of Emissions Units Act 2011 .
"Registry account" has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"Regulator" means the Clean Energy Regulator.
"relevant operator" , when used in Division 5 of Part 3, has the meaning given by section 67A.
"relinquish" , in relation to a carbon unit, means relinquish under section 210.
"Resources and Energy Minister" means the Minister administering the Energy Efficiency Opportunities Act 2006 .
"reviewable decision" has the meaning given by section 281.
"scheme" , when used in section 29 or Part 19, means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.
scope 1 emission of greenhouse gas has the meaning given by the National Greenhouse and Energy Reporting Act 2007 .
Note: See also section 311 (transitional).
"Secretary" means the Secretary of the Department.
"staff of the Regulator" has the same meaning as in the Clean Energy Regulator Act 2011 .
"supply" means supply (including re-supply) by way of sale, exchange or gift.
Note: See also section 6 (timing of supply).
"surrender" , in relation to an eligible emissions unit, means surrender under section 122.
"taxable fuel" has the same meaning as in the Fuel Tax Act 2006 .
"transfer" , in relation to a carbon unit, has the meaning given by section 104.
"trust" means a person in the capacity of trustee or, as the case requires, a trust estate.
"trustee" has the same meaning as in the Income Tax Assessment Act 1997 .
"trust estate" has the same meaning as in the Income Tax Assessment Act 1997 .
"United Nations Convention on the Law of the Sea" means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31 ([1994] ATS 31). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
"unit shortfall" has the meaning given by section 125, 128, 129 or 133.
"unit shortfall charge" means charge imposed by whichever of the following is applicable:
(a) Part 3 of the Clean Energy (Charges--Excise) Act 2011 ;
(b) Part 3 of the Clean Energy (Charges--Customs) Act 2011 ;
(c) the Clean Energy (Unit Shortfall Charge--General) Act 2011 .
"vintage year" , in relation to a carbon unit, means the eligible financial year that, in accordance with section 96, is the vintage year of the unit.
"withdrawal" , in relation to natural gas, has the meaning given by the regulations.