New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Electricity Supply Amendment
(Greenhouse Gas Emission Reduction)
Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Electricity Supply Act 1995 No 94 2
4 Amendment of other Acts 2
Schedules
1 Amendment of Electricity Supply Act 1995 3
2 Amendment of other Acts 46
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Electricity Supply Amendment
(Greenhouse Gas Emission Reduction)
Bill 2002
Act No , 2002
An Act to amend the Electricity Supply Act 1995 to establish greenhouse gas
benchmarks for the electricity industry and to encourage activities relating to the
reduction of greenhouse gas emissions; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Electricity Supply Amendment (Greenhouse Gas
Emission Reduction) Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Electricity Supply Act 1995 No 94
The Electricity Supply Act 1995 is amended as set out in Schedule 1.
4 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that
Schedule.
Page 2
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
Schedule 1 Amendment of Electricity Supply Act 1995
(Section 3)
[1] Section 95 Appeals against decisions concerning licences
Insert "or the holder of a licence" after "An applicant under Schedule 2" in
section 95 (1).
[2] Part 8A
Insert after Part 8:
Part 8A Reduction of greenhouse gas emissions
Division 1 Preliminary
97A Objects of Part
(1) The objects of this Part are to reduce greenhouse gas emissions
associated with the production and use of electricity and to
encourage participation in activities to offset the production of
greenhouse gas emissions.
(2) For those objects, this Part:
(a) establishes State greenhouse gas benchmarks and
individual greenhouse gas benchmarks for the reduction
of greenhouse gas emissions that are to be met by retail
suppliers, market customers and certain other persons
who supply or consume electricity, and
(b) provides for greenhouse gas benchmarks to be complied
with by acquiring certificates relating to the carrying out
of activities that promote the reduction of greenhouse
gas emissions, and
(c) provides an economic incentive to undertake activities
resulting in the reduction of greenhouse gas emissions
by imposing a penalty on greenhouse gas emissions
above the specified benchmark.
Page 3
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97AB Definitions
In this Part:
abatement certificate means an abatement certificate created
under this Part, being a transferable abatement certificate or a
non-transferable abatement certificate.
accredited abatement certificate provider means a person
accredited as an abatement certificate provider under this Part
and whose accreditation is in force.
benchmark participant means a person referred to in section
97BB (1) who is subject to a greenhouse gas benchmark.
carbon dioxide equivalent of greenhouse gas emissions means
the mass of carbon dioxide measured in tonnes that has the
same global warming potential as the gas emissions.
elective participant means a benchmark participant referred to
in section 97BB (1) (d) or (e).
electricity sector benchmark means the electricity sector
benchmark referred to in section 97BC (a).
greenhouse gas means carbon dioxide, methane, nitrous oxide,
a perfluorocarbon gas or any other gas prescribed by the
regulations for the purposes of this definition.
greenhouse gas benchmark for a benchmark participant means
the benchmark for a year, in tonnes of carbon dioxide
equivalent of greenhouse gas emissions, determined for the
participant under this Part.
greenhouse gas benchmark rule means a rule approved under
section 97K.
greenhouse penalty means the penalty payable under this Part
by a benchmark participant who fails to comply with the
participant's greenhouse gas benchmark for reduction of
greenhouse gas emissions.
greenhouse shortfall means the amount, in tonnes of carbon
dioxide equivalent, by which a benchmark participant fails to
comply with the participant's greenhouse gas benchmark for a
year, as determined under this Part.
Page 4
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
large customer means a customer (other than a retail supplier)
who:
(a) uses 100 gigawatt hours or more of electricity at a single
site in this State in any year, or
(b) uses 100 gigawatt hours or more of electricity at more
than one site in this State in any year, at least one of
which uses 50 gigawatt hours or more of electricity in
that year.
market customer means a customer that has classified any of
its electricity loads as a market load and that is registered with
NEMMCO as a market customer under the National
Electricity Code.
NEMMCO means the National Electricity Market
Management Company Limited ACN 072 010 327.
NSW pool coefficient means the average greenhouse gas
emissions intensity of electricity sent out to customers in the
State, expressed in tonnes of carbon dioxide equivalent per
megawatt hour, as determined by the Tribunal under this Part.
register means a register required to be kept by the Scheme
Administrator under this Part.
register of abatement certificates means the register of
abatement certificates required to be kept by the Scheme
Administrator under this Part.
register of accredited abatement certificate providers means
the register of accredited abatement certificate providers
required to be kept by the Scheme Administrator under this
Part.
renewable energy certificate means a certificate created under
the Renewable Energy (Electricity) Act 2000 of the
Commonwealth.
Scheme Administrator means the person or body on whom the
functions of Scheme Administrator are conferred by or under
this Part.
State greenhouse gas benchmark for a year means a State
greenhouse gas benchmark specified for that year in
section 97B (1).
Page 5
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
State population for a year means the population of the State
for the year, as determined by the Tribunal under this Part.
State significant development has the same meaning as it has
in the Environmental Planning and Assessment Act 1979.
Division 2 Greenhouse gas benchmarks
97B State greenhouse gas benchmarks
(1) The State greenhouse gas benchmarks are as follows:
(a) for the year commencing 1 January 2003, 8.65 tonnes of
carbon dioxide equivalent of greenhouse gas emissions
per head of State population,
(b) for the year commencing 1 January 2004, 8.31 tonnes of
carbon dioxide equivalent of greenhouse gas emissions
per head of State population,
(c) for the year commencing 1 January 2005, 7.96 tonnes of
carbon dioxide equivalent of greenhouse gas emissions
per head of State population,
(d) for the year commencing 1 January 2006, 7.62 tonnes of
carbon dioxide equivalent of greenhouse gas emissions
per head of State population,
(e) for each of the years commencing 1 January 2007 and
ending on 31 December 2012, 7.27 tonnes of carbon
dioxide equivalent of greenhouse gas emissions per
head of State population.
(2) The State greenhouse gas benchmarks are to be the basis for the
calculation of the greenhouse gas benchmark for each
benchmark participant.
97BA Greenhouse gas benchmarks to apply to benchmark participants
(1) A greenhouse gas benchmark for the reduction of greenhouse
gas emissions applies, in accordance with this Part, the
regulations and the greenhouse gas benchmark rules, to each
benchmark participant.
Page 6
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(2) The greenhouse gas benchmark for a benchmark participant is
to be calculated in accordance with this Part, the regulations
and the greenhouse gas benchmark rules.
Note. Failure to comply with a greenhouse gas benchmark will result in
a greenhouse penalty being payable (see Division 3).
97BB Benchmark participants
(1) The following persons are benchmark participants for the
purposes of this Part:
(a) a retail supplier,
(b) an electricity generator prescribed by the regulations or
any other person prescribed by the regulations, being an
electricity generator or other person that supplies
electricity directly to a customer under an electricity
supply arrangement and that is, in respect of that supply,
exempted from the operation of section 98 or to which
section 98 does not apply,
(c) a market customer (other than a retail supplier), but only
in respect of an electricity load it has classified as a
market load and that is electricity supplied for use in
this State,
(d) a large customer who has made an election, that is in
force, to be subject to a greenhouse gas benchmark,
(e) a person who is engaged in carrying out State significant
development and who has made an election, that is in
force, to be subject to a greenhouse gas benchmark.
(2) Regulations may be made for or with respect to the following
matters:
(a) the making of elections to be subject to greenhouse gas
benchmarks,
(b) the circumstances in which an election to be subject to
a greenhouse gas benchmark takes effect or ceases to be
in force,
(c) the greenhouse penalty payable by a customer or person
whose election to be subject to a greenhouse gas
benchmark ceases to be in force,
Page 7
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(d) the circumstances when a person is taken to be a large
customer or a large customer who uses electricity at
more than one site.
97BC Principles for determining greenhouse gas benchmarks for
benchmark participants
The greenhouse gas benchmark for a benchmark participant for
a year is to be determined as follows:
(a) by multiplying the State population for the year by the
State greenhouse gas benchmark per head of population
for the year to determine the electricity sector
benchmark,
(b) by determining the proportion of the total electricity
demand in the State (as determined by the Tribunal)
applicable to the participant for the year,
(c) by applying that proportion to the electricity sector
benchmark for the year to calculate the number of
tonnes of carbon dioxide equivalent of greenhouse gas
emissions comprising the benchmark for that
participant.
Note. The methodology for determining the matters set out in this section
is set out in the greenhouse gas benchmark rules.
97BD Principles for determining compliance with greenhouse gas
benchmarks
(1) General principle
The compliance of a benchmark participant with the
participant's greenhouse gas benchmark in any year is
determined by subtracting the participant's greenhouse gas
benchmark from the number of tonnes of carbon dioxide
equivalent of greenhouse gas emissions in that year for which
the participant is responsible.
(2) Number of tonnes of emissions for which participant responsible
The number of tonnes of carbon dioxide equivalent of
greenhouse gas emissions in that year for which a benchmark
participant is responsible is determined:
Page 8
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(a) by multiplying the total number of megawatt hours of
electricity supplied or purchased by the participant in
that year by the NSW pool coefficient for greenhouse
gas emissions arising out of that electricity for that year,
and
(b) by subtracting from that number the number of tonnes
of carbon dioxide equivalent of greenhouse gas
emissions abated by the participant in that year.
Note. The methodology provided by the greenhouse gas benchmark rules
for determining electricity supplied or purchased by a benchmark
participant may take into account electricity lost in transmission or
distribution (see section 97K (1) (c)).
(3) Number of tonnes of emissions abated by participant
The number of tonnes of carbon dioxide equivalent of
greenhouse gas emissions abated by a benchmark participant in
a year is the total number of tonnes attributable to any
abatement certificates surrendered by the participant for that
year and any renewable energy certificates of the participant
counted for that year.
(4) If the result obtained under subsection (1) is more than zero
(a greenhouse shortfall), the benchmark participant has failed
to comply with the participant's greenhouse gas benchmark.
(5) If the result obtained under subsection (1) is zero or less than
zero, the benchmark participant has complied with the
participant's greenhouse gas benchmark.
(6) In determining the total megawatt hours of electricity supplied
by a retail supplier or an electricity generator in each year for
the purposes of subsection (2), electricity supplied by the
supplier or generator to another benchmark participant is not to
be taken into account.
Note. The methodology for applying the principles in this section is set out
in the greenhouse gas benchmark rules.
97BE Greenhouse shortfalls may be carried forward
(1) Despite any other provision of this Part, an amount of tonnes
of carbon dioxide equivalent of greenhouse gas emissions of
greenhouse shortfall in any year (other than the year
commencing 1 January 2007) may, subject to the greenhouse
gas benchmark rules, be carried forward to the next year.
Page 9
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(2) If an amount of greenhouse shortfall is carried forward, the
amount of that shortfall is, to the extent to which it is not
abated by the benchmark participant, subject to the greenhouse
penalty at the end of the next year and greenhouse penalty is
not payable for the shortfall amount at the end of the year from
which it was carried forward.
(3) Any such penalty is payable at the same time as any greenhouse
penalty for the next year is payable (or would be payable, if
owed).
(4) A greenhouse shortfall that is carried forward may be abated at
the end of the next year by surrendering abatement certificates
or counting renewable energy certificates.
(5) For that purpose, the greenhouse shortfall after abatement is
calculated by subtracting from the amount of the shortfall the
total number of tonnes of carbon dioxide equivalent of
greenhouse gas emissions attributable to any certificates
surrendered or counted for the purpose of abating the
greenhouse shortfall.
(6) The amount of greenhouse shortfall carried forward in respect
of a year may not exceed 10% of the benchmark participant's
greenhouse gas benchmark for that year.
(7) An amount of greenhouse shortfall may be carried forward
whether or not a shortfall was carried forward in the previous
year.
97BF Factors to be determined and published before commencement
of each year
(1) The Tribunal must, not later than 30 November in each year,
determine and publish by notice in the Gazette the following
matters for the purpose of determining greenhouse gas
benchmarks for benchmark participants for the next year:
(a) the NSW pool coefficient for greenhouse gas emissions,
(b) the total State electricity demand,
(c) the total State population,
(d) the electricity sector benchmark.
Page 10
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(2) A determination under this section is to be made in accordance
with any requirements of the greenhouse gas benchmark rules.
(3) The matters determined under subsection (1) are to apply to the
calculation of greenhouse gas benchmarks and the assessment
of compliance with those benchmarks for the next year.
97BG Evidentiary provisions relating to benchmarks
A certificate of the Tribunal certifying that, on a date or during
a period specified in the certificate:
(a) a person was or was not a benchmark participant, or
(b) the NSW pool coefficient, State electricity demand or
State population for a year or electricity sector
benchmark was the value or amount specified in the
certificate, or
(c) the greenhouse gas benchmark for a benchmark
participant was the amount specified in the certificate,
or
(d) the greenhouse shortfall for a benchmark participant for
a year, or an amount of greenhouse shortfall carried
forward by a benchmark participant for a year, was the
amount specified in the certificate, or
(e) the greenhouse penalty payable by a benchmark
participant was the amount specified in the certificate,
is admissible in evidence in proceedings before any court or
tribunal and is prima facie evidence of the matters stated in the
certificate.
Division 3 Enforcement of greenhouse gas benchmarks
97C Licence conditions applying to retail suppliers
(1) It is a condition of each retail supplier's licence that the retail
supplier comply with its greenhouse gas benchmark as
determined under this Part.
(2) Nothing in this section limits or affects any power of the
Minister to impose conditions on the licence of a retail supplier
Page 11
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
under this Act, including conditions (not inconsistent with
this Part) relating to greenhouse gas emissions, the provision of
information to the Tribunal or Scheme Administrator about
matters related to this Part and related matters.
(3) A monetary penalty may not be imposed on a retail supplier
under clause 8 or 8A of Schedule 2, or any other action taken
against the licence of a retail supplier under Schedule 2, in
respect of a greenhouse shortfall for which a greenhouse
penalty is payable under this Part.
Note. Under clauses 8 and 8A of Schedule 2, the Minister and the
Tribunal may impose monetary penalties for breaches of the requirements
of this Act, the regulations and the greenhouse gas benchmark rules, as
well as breaches of licence conditions. Other penalties may also be
imposed under Schedule 2.
97CA Greenhouse penalties
(1) A benchmark participant who fails to comply with the
participant's greenhouse gas benchmark for reduction of
greenhouse gas emissions for a year is liable to pay the
greenhouse penalty in respect of the excess emissions.
(2) The amount of the greenhouse penalty is $10.50 per tonne of
carbon dioxide equivalent of greenhouse shortfall determined
under this Part for the year concerned, as adjusted in
accordance with any regulations made under subsection (3).
(3) The regulations may provide for the adjustment of the amount
of greenhouse penalty in accordance with movements in the
consumer price index.
(4) A greenhouse penalty payable for a year by a benchmark
participant is payable on 1 March in the following year or on
any later date determined by the Tribunal for a benchmark
participant.
(5) A greenhouse penalty imposed under this Part may be
recovered in any court of competent jurisdiction as a debt due
to the Crown.
(6) It is the wish of the Parliament that any greenhouse penalties
payable to the Crown under this Part be used for the promotion
of greenhouse gas reduction activities and programs nominated
from time to time by the Minister.
Page 12
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(7) In this section:
consumer price index means the Consumer Price Index
(All Groups Index) for Sydney issued by the Australian
Statistician.
Note. Section 97BE sets out when a greenhouse penalty is payable for
a greenhouse shortfall that is carried forward.
97CB Annual greenhouse gas benchmark statements
(1) A benchmark participant must lodge with the Tribunal a
greenhouse gas benchmark statement not later than 1 March in
each year or any later day permitted by the Tribunal.
(2) A greenhouse gas benchmark statement is to contain the
following:
(a) an assessment of the benchmark participant's
greenhouse gas benchmark for the previous year,
(b) an assessment of the participant's liability (if any) for
the greenhouse penalty for the previous year,
(c) an assessment of the participant's liability (if any) for a
greenhouse penalty payable in respect of a greenhouse
shortfall carried forward from the year before the
previous year,
(d) any other matters required by the Tribunal.
(3) A greenhouse gas benchmark statement must be in the form
approved by the Tribunal.
(4) A greenhouse gas benchmark statement must be accompanied
by details of all abatement certificates sought to be surrendered
for that year and all renewable energy certificates sought to be
counted for that year or sought to be surrendered or counted to
abate a greenhouse shortfall carried forward from the previous
year.
(5) A benchmark participant that fails to lodge a greenhouse gas
benchmark statement in accordance with this section is guilty
of an offence.
Maximum penalty:
(a) in the case of a corporation--250 penalty units,
(b) in the case of an individual--100 penalty units.
Page 13
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97CC Restrictions on surrender of abatement certificates
(1) An abatement certificate cannot be surrendered by a benchmark
participant unless:
(a) the certificate is registered under this Part and the
registration is in force, and
(b) the certificate was created in relation to an activity that
took place before the end of the year to which the
greenhouse gas benchmark statement relates, and
(c) the participant is recorded in the register of abatement
certificates as the owner of the certificate.
(2) The Tribunal may, by notice in writing to a benchmark
participant, refuse to accept the surrender of an abatement
certificate by the benchmark participant:
(a) if, in the opinion of the Tribunal, the certificate cannot
be surrendered under this section, or
(b) if, in the opinion of the Tribunal, the certificate is
surplus to the number required to be surrendered for
compliance with the participant's greenhouse gas
benchmark or to abate a greenhouse shortfall.
(3) If the Tribunal accepts the surrender of an abatement certificate,
and the Tribunal is not the Scheme Administrator, the Tribunal
must give the Scheme Administrator notice in writing of the
decision, including details of the abatement certificate
surrendered.
97CD Assessment of compliance with greenhouse gas benchmarks
(1) Regulations may be made for or with respect to the following
matters:
(a) the circumstances in which a renewable energy
certificate may or may not be counted by a benchmark
participant towards a greenhouse gas benchmark or to
abate a greenhouse shortfall that has been carried
forward,
(b) the number of renewable energy certificates that may be
counted for a year (including for a greenhouse shortfall
that was carried forward),
Page 14
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(c) the assessment of the greenhouse shortfall (if any) and
of liability for greenhouse penalty of a benchmark
participant, including self-assessment and assessment by
the Tribunal,
(d) the date on which an assessment is taken to have been
made and the date on which an assessment takes effect,
(e) default assessments where a greenhouse gas benchmark
statement is not lodged by a benchmark participant,
(f) amendment of assessments, at the request of a
benchmark participant or on the Tribunal's own motion,
(g) revocation of the cancellation of abatement certificates
in connection with amended assessments and the
revival of the certificates,
(h) payments resulting from amended assessments,
(i) notice of assessments.
(2) The regulations are to include provisions that limit the number
of renewable energy certificates that may be counted towards
a greenhouse gas benchmark by reference to relevant
acquisitions that are attributable to sales of electricity in New
South Wales.
(3) In this section:
relevant acquisition has the meaning given by the Renewable
Energy (Electricity) Act 2000 of the Commonwealth.
97CE Validity of assessment
The validity of an assessment of a liability to pay a greenhouse
penalty is not affected because any provision of this Act, the
regulations or the greenhouse gas benchmark rules has not been
complied with.
97CF Waiver or suspension of obligations in emergencies
(1) The Minister may, by order published in the Gazette, waive, or
suspend for a specified period, the obligation of a benchmark
participant to comply with the participant's greenhouse gas
benchmark, but only if it appears to the Minister that a
benchmark participant is or will be unable to comply with the
benchmark because of:
Page 15
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(a) a systems or other failure of the register of abatement
certificates, or
(b) any other emergency affecting the integrity of the
register or the abatement certificate scheme established
under this Part.
(2) An order may:
(a) be made subject to conditions, and
(b) apply to all benchmark participants or to a specified
class of participants, and
(c) specify the effect of the waiver or suspension on any
other rights conferred or obligations imposed under this
Part.
(3) An order takes effect on the day on which it is published in the
Gazette or, if a later day is specified in the order, on that day.
(4) An order may be amended or revoked by a later order.
Division 4 Accreditation of abatement certificate
providers
97D Accredited persons may create abatement certificates
(1) A person may create an abatement certificate under this Part
only if the person is an accredited abatement certificate
provider.
(2) A person who is an accredited abatement certificate provider
may create abatement certificates only in relation to those
activities in relation to which the person has been accredited as
an abatement certificate provider.
97DA Eligibility for accreditation
(1) The regulations and greenhouse gas benchmark rules may make
provision for or with respect to the eligibility of a person for
accreditation as an abatement certificate provider.
(2) The regulations and greenhouse gas benchmark rules may make
provision for accreditation as an abatement certificate provider
in respect of any activities or class of activities that promote the
reduction of greenhouse gas emissions.
Page 16
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(3) Without limiting subsection (2), the regulations and the
greenhouse gas benchmark rules may make provision for or
with respect to eligibility for accreditation in respect of the
following activities:
(a) the generation of electricity in a manner that results in
reduced emissions of greenhouse gases,
(b) activities that result in reduced consumption of
electricity,
(c) activities of elective participants, associated with
production processes that use electricity in this State,
that result in reduced emissions of greenhouse gases.
(4) The regulations and greenhouse gas benchmark rules may make
provision for or with respect to eligibility for accreditation in
respect of carbon sequestration by the planting of forests or
other means, but only if:
(a) the activity occurs in this State, or
(b) the activity occurs in another jurisdiction in which a
mandatory scheme intended to promote the reduction of
greenhouse gas emissions, approved by the Minister for
the purposes of this subsection, is in operation.
(5) The Minister may approve a scheme for the purposes of
subsection (4) only if the Minister is satisfied that:
(a) the reduction of greenhouse gas emissions proposed to
be achieved by the scheme is not less than the reduction
proposed to be achieved by the scheme established
under this Part, and
(b) the monitoring and enforcement of compliance with the
scheme to be approved is no less stringent than that
applicable to the scheme established under this Part.
(6) The regulations and greenhouse gas benchmark rules are to
include provision for the recognition of the arrangements in
place before the commencement of this Part relating to
category A generation, as referred to in the Emissions
Workbook, under which energy in certain circumstances is
deemed to be assigned to a retail supplier, so as to ensure that
Page 17
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
the retail supplier is entitled (subject to accreditation as an
abatement certificate provider under this Part) to create
abatement certificates in respect of any abatement of
greenhouse gas emissions associated with that energy.
(7) In this section:
Emissions Workbook means the document entitled
Greenhouse Gas Emissions from Electricity Supplied in NSW:
Emissions Workbook published by the Ministry of Energy and
Utilities in October 2000.
97DB Application for accreditation
(1) Any person who is eligible for accreditation as an abatement
certificate provider in relation to any activity may apply to the
Scheme Administrator for accreditation.
(2) The Scheme Administrator is to determine an application for
accreditation as an abatement certificate provider:
(a) by accrediting the applicant as an abatement certificate
provider in relation to specified activities, or
(b) by refusing the application.
(3) The Scheme Administrator may refuse an application for
accreditation as an abatement certificate provider on such
grounds as may be specified in the regulations.
(4) The regulations may make provision for or with respect to
applications for accreditation, including by requiring an
application fee to be paid to the Scheme Administrator.
(5) The Scheme Administrator may charge a fee (in addition to any
application fee) in respect of the investigation and
determination of an application for accreditation. The fee is to
be determined by the Scheme Administrator on a cost recovery
basis.
97DC Duration of accreditation
(1) Accreditation of a person as an abatement certificate provider
in relation to an activity remains in force until suspended or
cancelled by the Scheme Administrator.
Page 18
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(2) The Scheme Administrator may suspend or cancel the
accreditation of a person as an abatement certificate provider on
such grounds as may be specified in the regulations.
(3) The cancellation or suspension of the accreditation of a person
as an abatement certificate provider is subject to such
conditions as the Scheme Administrator imposes. Any such
conditions may include (but are not limited to) any condition to
which the accreditation was subject immediately before it was
suspended or cancelled.
(4) The regulations may provide for the variation or revocation of
any conditions that are imposed by the Scheme Administrator
on the suspension or cancellation of accreditation as an
abatement certificate provider.
97DD Conditions of accreditation
(1) Accreditation as an abatement certificate provider is subject to
the following conditions:
(a) such conditions as may be imposed from time to time
by the regulations,
(b) such conditions as may be imposed by the Scheme
Administrator at the time of accreditation, or during the
period in which the accreditation remains in force, in
accordance with the regulations.
(2) The regulations may provide for the variation or revocation of
any conditions of accreditation that are imposed by the Scheme
Administrator.
(3) The following are examples of the types of conditions that may
be imposed on the accreditation of a person as an abatement
certificate provider:
(a) a condition that requires the person not to create an
abatement certificate in respect of the greenhouse gas
emissions abated by an activity if an abatement
certificate or a renewable energy certificate has already
been created in respect of that abatement or if that
Page 19
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
abatement has already been used for the purposes of
compliance with another mandatory scheme (whether of
this State or another jurisdiction) intended to promote
the reduction of greenhouse gas emissions,
(b) a condition that requires the person not to create a
renewable energy certificate in respect of the greenhouse
gas emissions abated by an activity, or to use that
abatement for the purposes of compliance with another
mandatory scheme (whether of this State or another
jurisdiction) intended to promote the reduction of
greenhouse gas emissions, if an abatement certificate
has already been created in respect of that abatement,
(c) a condition that requires the person to provide financial
assurances to secure or guarantee the person's
compliance with this Part,
(d) a condition that requires the person to take out and
maintain a policy of insurance in connection with the
person's functions as an accredited abatement certificate
provider,
(e) a condition that requires the person to maintain the
greenhouse gas abatement secured by carbon
sequestration activities for 100 years,
(f) a condition that requires the person to enter into or
arrange for a restriction or public positive covenant
under section 88E of the Conveyancing Act 1919, and
to arrange for its registration, for the purpose of ensuring
that specified requirements of a condition run with the
land concerned,
(g) a condition that requires the person to provide
information, assistance and access to the Scheme
Administrator (or persons appointed by the Scheme
Administrator) for the purposes of monitoring and
auditing compliance by the person with this Part.
(4) Subsection (3) does not prevent other conditions being imposed
on the accreditation of a person as an abatement certificate
provider.
Page 20
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(5) A person must not contravene any of the conditions of the
person's accreditation as an abatement certificate provider.
Maximum penalty: 2,000 penalty units.
(6) Subsection (5) extends to any conditions to which the
suspension or cancellation of the accreditation of a person is
subject under section 97DC.
97DE Accreditation not transferable
Accreditation as an abatement certificate provider is not
transferable.
Division 5 Creation of abatement certificates
97E Accredited abatement certificate provider may create certificates
(1) A person who is an accredited abatement certificate provider
may create abatement certificates in accordance with this Part,
the regulations, the greenhouse gas benchmark rules and the
conditions (if any) of the person's accreditation as an abatement
certificate provider.
(2) The regulations may make provision for or with respect to the
form in which abatement certificates are to be created.
97EA Value of certificate
Each abatement certificate represents 1 tonne of carbon dioxide
equivalent of greenhouse gas emissions abated by the activity
in respect of which it was created.
97EB Entitlement to create abatement certificates
(1) The regulations and greenhouse gas benchmark rules may make
provision for or with respect to the entitlement of accredited
abatement certificate providers to create abatement certificates
in respect of the activities, or classes of activities, for which
they are accredited as abatement certificate providers.
(2) Without limiting subsection (1), the regulations and greenhouse
gas benchmark rules may provide for the following:
Page 21
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(a) the number of abatement certificates that may be created
in respect of any activity, or class of activities, on the
basis of the carbon dioxide equivalent of greenhouse gas
emissions abated or to be abated by the activity,
(b) the establishment of a point or level from which
electricity generating activities give rise to an
entitlement to create abatement certificates under this
Part.
(3) A regulation or rule made for the purposes of subsection (2) (b)
is to establish the point or level from which electricity
generating activities relating to a generator having a nameplate
rating exceeding 30 megawatts that was commissioned before
1 January 2002 give rise to an entitlement to create abatement
certificates in one or more of the following ways:
(a) the point or level may be the point or level that is
equivalent to the usual level of output of the generator,
as determined in accordance with the regulation or rule,
(b) the point or level may be the point or level which
reflects the usual greenhouse gas emissions intensity,
expressed in tonnes of carbon dioxide equivalent per
megawatt hour, of the output of the generator, as
determined in accordance with the regulation or rule.
97EC When certificates may be created
(1) An abatement certificate may be created by an accredited
abatement certificate provider immediately after the activity in
respect of which it was created takes place.
(2) An abatement certificate may be created no later than 6 months
after the end of the year in which the activity in respect of
which it was created takes place.
(3) The regulations or greenhouse gas benchmark rules may
specify when an activity is considered to have taken place for
the purposes of this Part.
(4) Without limiting subsection (3), the regulations or greenhouse
gas benchmark rules may provide that an activity resulting in
reduced consumption of electricity that gives rise to an
entitlement to create an abatement certificate is taken to have
Page 22
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
occurred on the date on which the activity is first commenced.
Accordingly, abatement certificates may be created in respect
of the abatement of greenhouse gas emissions caused or to be
caused by the activity immediately after the activity is first
commenced.
Note. Subsection (4) makes it clear that the regulations or greenhouse gas
benchmark rules may allow abatement certificates to be created in respect
of an activity that has ongoing abatement effects as soon as the activity is
commenced. It will not be necessary to wait until the abatement actually
occurs before creating an abatement certificate in respect of that
abatement. Such provisions may apply, for example, if the regulations or
rules allow for the creation of abatement certificates in respect of the
installation of energy efficient lighting, which has ongoing abatement
effects.
97ED Creation of certificate must be registered
(1) An abatement certificate has no force or effect until the creation
of the certificate is registered by the Scheme Administrator
under this Part.
(2) An application for registration of the creation of an abatement
certificate may be made to the Scheme Administrator by an
accredited abatement certificate provider.
(3) The Scheme Administrator is to determine an application for
registration of the creation of an abatement certificate by:
(a) accepting the application and registering the creation of
the certificate in the register of abatement certificates in
accordance with this Part, or
(b) refusing the application.
(4) The Scheme Administrator registers the creation of a certificate
by creating an entry for the certificate in the register of
abatement certificates and recording the name of the person
who created the certificate as the owner of the certificate.
(5) The Scheme Administrator may refuse an application for
registration of the creation of an abatement certificate on such
grounds as may be specified in the regulations.
(6) The regulations may make provision for or with respect to
applications for registration of the creation of an abatement
certificate, including by requiring an application fee to be paid
to the Scheme Administrator.
Page 23
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97EE Duration of certificate
(1) An abatement certificate, when registered by the Scheme
Administrator, remains in force until it is cancelled by the
Scheme Administrator.
(2) An abatement certificate may be cancelled by the Scheme
Administrator in the following circumstances:
(a) if the person registered as the owner of the abatement
certificate surrenders the certificate to the Tribunal, by
indicating in the person's greenhouse gas benchmark
statement that the certificate is sought to be surrendered,
and the Tribunal accepts the surrender of the certificate,
(b) in the circumstances set out in section 97EF.
(3) The Scheme Administrator cancels an abatement certificate by
altering the entry relating to the abatement certificate in the
register of abatement certificates to show that the certificate is
cancelled.
97EF Scheme Administrator may require surrender of certificates
(1) The Scheme Administrator may, by order in writing to a
person, require the person to surrender to the Scheme
Administrator, within a period specified in the order, a number
of abatement certificates specified in the order.
(2) An order may be made against a person under this section only
if the person is found guilty of:
(a) an offence against section 97DD (5), or
(b) an offence against section 97J (1).
(3) In the case of an order made against a person found guilty of an
offence against section 97J (1), the Scheme Administrator is to
require the surrender of a number of certificates that is
equivalent to the number of abatement certificates that, in the
opinion of the Scheme Administrator, were created by the
person in contravention of section 97J and registered under this
Part.
Note. The purpose of the order is to remove from circulation a number of
abatement certificates that is equivalent to the number of certificates
improperly created by a person, so that the improper creation of those
certificates does not result in the State greenhouse gas benchmarks being
exceeded.
Page 24
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(4) In any other case where an order is made under this section, the
Scheme Administrator is to determine the number of
certificates to be surrendered in accordance with the
regulations.
(5) Abatement certificates surrendered by the person for the
purpose of compliance with an order under this section are to
be cancelled by the Scheme Administrator.
(6) A certificate surrendered under an order under this section is
not to be counted toward compliance with a person's
greenhouse gas benchmark or greenhouse shortfall.
Accordingly, sections 97BD and 97BE do not apply in respect
of certificates surrendered for the purpose of compliance with
an order under this section.
(7) A person must not fail to comply with an order under this
section.
Maximum penalty: 1,000 penalty units, and an additional 1
penalty unit for each certificate the person fails to surrender in
accordance with the order.
(8) If a person fails to comply with an order under this section, the
Scheme Administrator may cancel any abatement certificates in
respect of which the person is registered under this Part as the
owner.
(9) For avoidance of doubt, it is not an excuse for a failure to
comply with an order under this section that the person who is
the subject of the order does not, at the time the order is made,
hold a sufficient number of abatement certificates to comply
with the order.
Note. If the person who is the subject of the order does not hold a
sufficient number of certificates to comply with the order, the person may
obtain the required number by purchasing them.
(10) The regulations may make provision for or with respect to
orders under this section.
Page 25
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97EG Records to be kept by accredited abatement certificate providers
The regulations may make provision for or with respect to the
records to be kept by accredited abatement certificate providers
and the information required to be provided to the Scheme
Administrator in connection with the creation of abatement
certificates.
Division 6 Transfers and other dealings in abatement
certificates
97F Types of abatement certificate
(1) Two types of abatement certificate may be created:
(a) transferable abatement certificates, and
(b) non-transferable abatement certificates.
(2) The regulations and greenhouse gas benchmark rules may make
provision for or with respect to the entitlement of accredited
abatement certificate providers to create transferable or non-
transferable abatement certificates.
(3) Subject to the regulations and greenhouse gas benchmark rules,
an elective participant is entitled to create non-transferable
abatement certificates only in respect of any activities of the
elective participant, associated with production processes that
use electricity in this State, that give rise to an entitlement to
accreditation as an abatement certificate provider.
97FA Transferability of certificates
(1) A transferable abatement certificate may be transferred to any
person.
(2) A non-transferable abatement certificate is not transferable,
except as provided by this Division.
97FB Application for registration of transfer
(1) The transfer of an abatement certificate does not have effect
until the transfer is registered by the Scheme Administrator
under this Part.
Page 26
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(2) An application for registration of a transfer of an abatement
certificate is to be made to the Scheme Administrator by the
parties to the transfer.
(3) The Scheme Administrator must:
(a) accept the application by registering the transfer of the
certificate in the register of abatement certificates, or
(b) refuse the application.
(4) The Scheme Administrator registers the transfer of an
abatement certificate by altering the entry relating to that
certificate in the register of abatement certificates so as to
record the new owner of the certificate.
(5) The Scheme Administrator may refuse an application for
registration of a transfer of an abatement certificate on such
grounds as may be specified in the regulations.
(6) The Scheme Administrator must refuse an application for
registration of a transfer of a non-transferable abatement
certificate unless:
(a) the Scheme Administrator is satisfied that the transfer is
associated with the sale of the business, or part of the
business, in connection with which the abatement
certificate was created to the person to whom the
certificate is to be transferred, or
(b) the Scheme Administrator is authorised by the
regulations to register the transfer.
(7) The regulations may make provision for or with respect to
applications for the registration of transfers of abatement
certificates, including by requiring an application fee to be paid
to the Scheme Administrator.
97FC Other dealings in certificates
The regulations may make provision for or with respect to the
registration of any mortgage, assignment, transmission or other
dealing in an abatement certificate.
Page 27
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97FD Holder of certificate may deal with certificate
(1) The person registered as the owner of an abatement certificate
may, subject to this Part, deal with the certificate as its absolute
owner and give good discharges for any consideration for any
such dealing.
(2) Subsection (1):
(a) is subject to any rights appearing in the register of
abatement certificates to belong to another person, being
rights that are registered in accordance with any
regulations made under section 97FC, and
(b) only protects a person who deals with the person
registered as the owner of the abatement certificate as a
purchaser in good faith for value and without notice of
any fraud on the part of the registered owner.
(3) Despite subsection (2) (b), a person who purchases an
abatement certificate in good faith for value does not lose the
protection provided by subsection (1) because the person has
notice that a person has been found guilty of an offence against
section 97J in respect of the abatement certificate.
Note. Section 97J makes it an offence to improperly create an abatement
certificate. Section 97EF allows the Scheme Administrator to require a
person who has been convicted of an offence against section 97J to
"make good" the improper creation of the abatement certificates by
surrendering an equivalent number of abatement certificates to those
improperly created to the Scheme Administrator. It is not necessary for
those certificates to be the actual certificates improperly created (as those
certificates may already have been sold).
97FE Scheme Administrator not concerned as to legal effect of
transaction
The Scheme Administrator is not concerned with the effect in
law of any transaction registered under this Part or the
regulations and the registration of the transaction does not give
to the transaction any effect that it would not have if this
Division had not been enacted.
Page 28
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
Division 7 Registers
97G Establishment and keeping of registers
(1) The Scheme Administrator is required to establish and keep the
following registers for the purposes of this Part:
(a) a register of accredited abatement certificate providers,
(b) a register of abatement certificates.
(2) A register may be kept wholly or partly by electronic means.
97GA Register of accredited abatement certificate providers
(1) The register of accredited abatement certificate providers is to
contain the following information in relation to each accredited
abatement certificate provider:
(a) the name of the accredited abatement certificate
provider,
(b) the type of certificates the accredited abatement
certificate provider is entitled to create under this Part,
(c) any other information required to be included in the
register by this Part or the regulations.
(2) The register of accredited abatement certificate providers may
also contain such information as the regulations may prescribe
in relation to a person whose accreditation as an abatement
certificate provider is suspended or cancelled.
(3) Copies of the register of accredited abatement certificate
providers are to be made available for public inspection (free
of charge) at the principal office of the Scheme Administrator
during ordinary business hours.
(4) Only the following information in the register of accredited
abatement certificate providers is to be made available for
public inspection under subsection (3):
(a) the information referred to in subsection (1) (a) and (b),
and
(b) any other information in the register that is required by
the regulations to be made available for public
inspection.
Page 29
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97GB Register of abatement certificates
(1) The register of abatement certificates is to contain the following
information in relation to each abatement certificate that is
created under this Part:
(a) the name of the person who created the abatement
certificate,
(b) the name of the current registered owner, and any
previous registered owners, of the abatement certificate,
(c) whether the certificate is a transferable certificate or a
non-transferable certificate,
(d) any other information required to be included in the
register by this Part or the regulations.
(2) Copies of the register of abatement certificates are to be made
available for public inspection (free of charge) at the principal
office of the Scheme Administrator during ordinary business
hours.
(3) Only the following information in the register of abatement
certificates is to be made available to the public under
subsection (2):
(a) the information referred to in subsection (1) (a), (b) and
(c), and
(b) any other information in the register that is required by
the regulations to be made available for public
inspection.
97GC Evidentiary provisions
(1) A register kept under this Division is evidence of any
particulars registered in it.
(2) If a register is wholly or partly kept by electronic means, a
document issued by the Scheme Administrator producing in
writing particulars included in the register, or the part kept by
electronic means, is admissible in legal proceedings as evidence
of those particulars.
Page 30
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
97GD Correction of register
The Scheme Administrator may correct any error in or
omission from a register.
Division 8 Functions of Tribunal and Scheme
Administrator
97H Functions of Tribunal
(1) The Tribunal has the following functions:
(a) to determine, in accordance with the greenhouse gas
benchmark rules, the NSW pool coefficient for
greenhouse gas emissions, the State population, the
estimated total electricity demand in each year for the
State and the electricity sector benchmark,
(b) to assess and determine, in accordance with this Act, the
regulations and the greenhouse gas benchmark rules, the
greenhouse gas benchmark for a benchmark participant
and whether or not the benchmark has been complied
with,
(c) if appropriate, to assess and determine, in accordance
with this Act, the regulations and the greenhouse gas
benchmark rules, the greenhouse shortfall and any
liability for greenhouse penalty payable by a benchmark
participant,
(d) to conduct audits, or require the conduct of audits, for
the purposes of this Part,
(e) to monitor, and report to the Minister on, the extent to
which retail suppliers comply, or fail to comply, with
conditions imposed under this Part on licences held by
them,
(f) such other functions as are conferred or imposed on it
by or under this Act.
(2) For the purpose of enabling the Tribunal to exercise its
functions, the Minister must furnish the Tribunal with such
information in the possession of the Minister as the Tribunal
may request in relation to the compliance by retail suppliers
and other benchmark participants with this Part.
Page 31
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(3) The Tribunal may, with the approval of the Minister, delegate
the exercise of its functions under this Part, other than this
power of delegation, to any other person or body.
(4) Section 10 of the Independent Pricing and Regulatory
Tribunal Act 1992 does not apply to the Tribunal's functions
under this Part.
97HA Scheme Administrator
(1) The functions of the Scheme Administrator under this Part are
to be exercised by a person or body appointed by the Minister
to exercise those functions or, in the absence of such an
appointment, the Tribunal.
(2) In determining whether to appoint a person or body to exercise
the functions of Scheme Administrator, the Minister must
consider the following matters:
(a) the efficient costs of any such appointment,
(b) the efficiency of administrative arrangements relating to
the abatement certificate scheme,
(c) ability to meet greenhouse objectives,
(d) proposed governance arrangements,
(e) arrangements proposed to manage liabilities associated
with carrying out the Scheme Administrator's functions.
(3) The Scheme Administrator has the following functions:
(a) the functions conferred by this Act relating to the
abatement certificate scheme established by this Part,
(b) to monitor, and to report to the Minister on, the extent
to which accredited abatement certificate providers
comply with this Act, the regulations, the greenhouse
gas benchmark rules and any conditions of
accreditation,
(c) to conduct audits, or require the conduct of audits, for
the purposes of this Part,
(d) such other functions as are conferred or imposed on it
by or under this Act or any other Act or law.
Page 32
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(4) If the Scheme Administrator is appointed by the Minister, the
Scheme Administrator also has such other functions as are
conferred or imposed on it by the Minister under the terms of
its appointment as Scheme Administrator.
(5) For the purpose of enabling the Scheme Administrator to
exercise its functions, the Minister must furnish the
Scheme Administrator with such information in the possession
of the Minister as the Scheme Administrator may request in
relation to the compliance by accredited abatement certificate
providers with this Part.
(6) The Scheme Administrator may, with the approval of the
Minister, delegate the exercise of its functions under this Part,
other than this power of delegation, to any other person or
body.
(7) The Scheme Administrator, and any person acting under the
direction of the Scheme Administrator, is not liable in any civil
proceedings for anything done or omitted to be done in good
faith in the exercise or purported exercise of any function
conferred or imposed by or under this Act.
(8) The regulations may make provision for or with respect to the
appointment of a Scheme Administrator by the Minister.
(9) The Minister may appoint more than one person or body to
exercise the functions of the Scheme Administrator and may
appoint different persons or bodies to exercise particular
functions of the Scheme Administrator. In such a case, a
reference in this Act to the Scheme Administrator, in relation
to any functions of the Scheme Administrator, is a reference to
the person or body appointed to exercise those functions (or, in
the absence of such an appointment, the Tribunal).
97HB Conduct of audits
(1) The regulations may make provision for or with respect to the
conduct of audits by the Tribunal, the Scheme Administrator or
other persons for the purposes of this Part.
(2) Without limiting subsection (1), the regulations may provide for
the following matters:
(a) the matters that may be the subject of an audit,
Page 33
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(b) the persons who may conduct an audit,
(c) the functions that may be exercised by persons who
conduct an audit,
(d) offences relating to obstructing or hindering persons, or
refusing or failing to comply with requirements made by
persons, who conduct audits.
(3) Each benchmark participant or accredited abatement certificate
provider is liable to pay to the Treasurer the cost (as certified by
the Tribunal or Scheme Administrator) involved in and in
connection with carrying out the Tribunal's or Scheme
Administrator's audit functions in relation to the participant or
provider.
(4) Without limitation, a licence or accreditation may include terms
and conditions relating to the determination of the cost of
carrying out those functions.
97HC Provision of information, documents and evidence
(1) For the purposes of exercising the Tribunal's functions under
this Part (whether as the Tribunal or the Scheme
Administrator), the Chairperson of the Tribunal may, by notice
in writing served on an officer of a benchmark participant, an
accredited abatement certificate provider or any other person,
require the officer or person to do any one or more of the
following:
(a) to send to the Tribunal, on or before a day specified in
the notice, a statement setting out the information
specified in the notice,
(b) to send to the Tribunal, on or before a day specified in
the notice, the documents specified in the notice,
(c) to attend a meeting of the Tribunal to give evidence.
(2) For the purposes of exercising the Scheme Administrator's
functions under this Part, the Scheme Administrator (not being
the Tribunal) may, by notice in writing served on an officer of
a benchmark participant or an accredited abatement certificate
provider, require the officer to do any one or more of the
following:
Page 34
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(a) to send to the Scheme Administrator, on or before a day
specified in the notice, a statement setting out the
information specified in the notice,
(b) to send to the Scheme Administrator, on or before a day
specified in the notice, the documents specified in the
notice.
(3) If documents are given to the Tribunal or
Scheme Administrator under this section, the Tribunal or
Scheme Administrator:
(a) may take possession of, and make copies of or take
extracts from, the documents, and
(b) may keep possession of the documents for the period
necessary for those purposes, and
(c) during that period must permit them to be inspected at
all reasonable times by persons who would be entitled
to inspect them if they were not in the possession of the
Tribunal or Scheme Administrator.
97HD Cabinet documents and proceedings
(1) This Part does not enable the Tribunal or
Scheme Administrator:
(a) to require any person to give any statement of
information or answer any question that relates to
confidential proceedings of Cabinet, or
(b) to require any person to produce a Cabinet document, or
(c) to inspect a Cabinet document.
(2) For the purposes of this section, a certificate of the head of
The Cabinet Office that any information or question relates to
confidential proceedings of Cabinet or that a document is a
Cabinet document is conclusive of the matter certified.
(3) In this section:
Cabinet includes a committee of Cabinet or a subcommittee of
such a committee.
Cabinet document means a document that is a restricted
document by virtue of clause 1 of Part 1 of Schedule 1 to the
Freedom of Information Act 1989.
Page 35
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
97HE Confidential information
(1) If a person provides information to the Tribunal or
Scheme Administrator in connection with the Tribunal's or
Scheme Administrator's functions under this Part on the
understanding that the information is confidential and will not
be divulged, the Tribunal or Scheme Administrator is required
to ensure that the information is not divulged by it to any
person, except:
(a) with the consent of the person who provided the
information, or
(b) in the case of information provided to the Tribunal
(whether or not acting as Scheme Administrator), to the
extent that the Tribunal is satisfied that the information
is not confidential in nature, or
(c) to a member or officer of the Tribunal or to an officer of
the Scheme Administrator, as the case requires.
(2) If the Tribunal or Scheme Administrator is satisfied that it is
desirable to do so because of the confidential nature of any
information provided to the Tribunal or Scheme Administrator
in connection with its functions under this Part, it may give
directions prohibiting or restricting the divulging of the
information.
(3) A person must not contravene a direction given under
subsection (2).
Maximum penalty: 100 penalty units or imprisonment for
6 months, or both.
(4) A reference in this section to information includes information
given at a meeting of the Tribunal and information contained
in any documents given to the Tribunal or Scheme
Administrator.
97HF Annual report by Tribunal
(1) As soon as practicable after 1 March (but on or before 30 June)
in each year, the Tribunal must prepare and forward to the
Minister a report on the extent to which benchmark participants
Page 36
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
have complied, or failed to comply, with greenhouse gas
benchmarks during the 12 months ending on 31 December in
the previous year.
(2) Without limiting subsection (1), the report is to contain the
following:
(a) the identity of each benchmark participant and the
performance of the participant in relation to the
participant's greenhouse gas benchmark,
(b) the total number of abatement certificates surrendered in
each category of certificate.
(3) The report must also set out the functions delegated by the
Tribunal under section 97H (3) and the person or body to
whom they were delegated.
(4) The Minister must lay the report or cause it to be laid before
both Houses of Parliament as soon as practicable after receiving
the report.
Division 9 Reviews
97I Appeals to Administrative Decisions Tribunal about certificates
and related matters
(1) A benchmark participant or former benchmark participant who
is aggrieved by any of the following decisions of the Tribunal
may apply to the Administrative Decisions Tribunal for a
review of the decision:
(a) a determination as to the greenhouse gas benchmark for
the participant or former participant for a year,
(b) a decision to refuse to accept the surrender of an
abatement certificate for the purposes of complying with
the participant's or former participant's greenhouse gas
benchmark or abating a greenhouse shortfall,
(c) a decision to refuse to count a renewable energy
certificate for the purposes of complying with the
participant's or former participant's greenhouse gas
benchmark or abating a greenhouse shortfall,
Page 37
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(d) an assessment of the amount of greenhouse penalty
payable by the participant or former participant for a
year,
(e) any other decision of the Tribunal of a kind prescribed
by the regulations.
(2) A person who is or was accredited, or who has applied to be
accredited, under this Part as an abatement certificate provider
and who is aggrieved by any of the following decisions of the
Scheme Administrator may apply to the Administrative
Decisions Tribunal for a review of the decision:
(a) a decision to refuse accreditation of the person as an
abatement certificate provider,
(b) a decision to cancel or suspend the accreditation of the
person as an abatement certificate provider,
(c) a decision to refuse registration of the creation of an
abatement certificate,
(d) any other decision of the Scheme Administrator of a
kind prescribed by the regulations.
(3) A person who has applied for the registration of a transfer of an
abatement certificate under this Part and who is aggrieved by
a decision of the Scheme Administrator to refuse registration of
the transfer may apply to the Administrative Decisions Tribunal
for a review of the decision.
(4) A person who is the subject of an order by the Scheme
Administrator under this Part requiring the person to surrender
abatement certificates to the Scheme Administrator and who is
aggrieved by a decision of the Scheme Administrator to impose
that order may apply to the Administrative Decisions Tribunal
for a review of the decision.
Page 38
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
Division 10 Offences
Note. Under section 101 directors and managers of corporations that
commit offences may be proceeded against if they knowingly authorise or
permit the commission of the offence.
97J Improper creation of certificates
(1) A person must not create or purport to create an abatement
certificate in contravention of this Act, the regulations or the
greenhouse gas benchmark rules, or the conditions (if any) of
the person's accreditation as an abatement certificate provider.
Maximum penalty: 100 penalty units, and an additional 1
penalty unit in respect of each certificate created.
(2) For avoidance of doubt, a person may be found guilty of an
offence against subsection (1) whether or not the abatement
certificate concerned is registered in the register of abatement
certificates.
97JA Obstruction of Tribunal or Scheme Administrator
(1) A person must not, without reasonable excuse:
(a) refuse or fail to comply with a notice served under
section 97HC, or
(b) refuse or fail to answer a question that the person is
required to answer by the Chairperson at any meeting of
the Tribunal under section 97HC.
(2) A person must not hinder, obstruct or interfere with the
Chairperson or any other member of the Tribunal in the
exercise of functions for the purposes of this Part as
Chairperson or other member.
(3) A person must not hinder, obstruct or interfere with the Scheme
Administrator in the exercise of functions for the purposes of
this Part.
Page 39
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(4) It is a reasonable excuse for the purposes of subsection (1) that
to comply with the notice or to answer the question might tend
to incriminate a natural person or make the person liable to any
forfeiture or penalty.
Maximum penalty:
(a) in the case of a corporation--250 penalty units,
(b) in the case of an individual--100 penalty units or 6
months imprisonment, or both.
97JB False or misleading information
A person must not, for the purposes of this Part:
(a) give to the Tribunal or Scheme Administrator, whether
orally or in writing, information or a document that the
person knows to be false or misleading in a material
particular (unless the person informs the Tribunal or
Scheme Administrator of that fact), or
(b) at a meeting of the Tribunal, give evidence that the
person knows to be false or misleading in a material
particular.
Maximum penalty: 2,000 penalty units or 6 months
imprisonment, or both.
97JC Licence condition relating to offences
It is a condition of a retail supplier's licence that the retail
supplier must comply with this Part.
Division 11 Greenhouse gas benchmark rules
97K Greenhouse gas benchmark rules
(1) The Minister may approve rules for or with respect to the
following matters:
(a) the methodology for calculating the number of tonnes of
carbon dioxide equivalent of greenhouse gas emissions
abated or to be abated by an activity, including activities
the subject of renewable energy certificates,
Page 40
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(b) the methodology for determining the greenhouse gas
benchmark for a benchmark participant,
(c) the methodology for determining the total number of
megawatt hours of electricity supplied or purchased by
a benchmark participant in a year, including allowances
for electricity losses from transmission or distribution to
the point of use and allowances where a participant is
responsible for a specified electricity load,
(d) the methodology for determining the NSW pool
coefficient for greenhouse gas emissions,
(e) the methodology for determining the estimated State
demand for electricity for a year and the proportion of
that demand applicable to a benchmark participant,
(f) the methodology for determining the State population
for a year,
(g) the methodology for determining whether a benchmark
participant has complied with the participant's
greenhouse gas benchmark in any year,
(h) any other matter for which a greenhouse gas benchmark
rule may be made under this Part,
(i) any other matter prescribed by the regulations.
(2) A rule may make provision for or with respect to a matter by
applying, adopting or incorporating, with or without
modification, the provisions of any Act or statutory rule or any
other publication, whether of the same or of a different kind.
(3) A rule may:
(a) apply generally or be limited in its application by
reference to specified exceptions or factors, or
(b) apply differently according to different factors of a
specified kind, or
(c) authorise any matter or thing to be from time to time
agreed, determined, applied or regulated by any
specified person or body.
(4) The Minister may from time to time approve amendments to
the rules or a revocation of rules.
Page 41
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(5) If a rule, or a rule amending or revoking a rule, is approved by
the Minister:
(a) written notice of the approval of the rule must be
published in the Gazette, and
(b) the rule takes effect on the day on which notice is so
published or, if a later day is specified in the rule for
commencement, on the later day so specified, and
(c) the Minister must make available a copy of the rule to
each benchmark participant and make copies available
to the public.
(6) A rule must be consistent with this Act and the regulations.
97KA Obligations under greenhouse gas benchmark rules
(1) A benchmark participant or an accredited abatement certificate
provider must not contravene a greenhouse gas benchmark rule.
Maximum penalty:
(a) in the case of a corporation--250 penalty units,
(b) in the case of an individual--100 penalty units.
(2) It is a condition of a retail supplier's licence that the retail
supplier must comply with the greenhouse gas benchmark
rules.
[3] Section 103 Recovery of fees and penalties
Insert "or payable under Part 8A" after "licence" where firstly occurring.
[4] Section 103A
Insert after section 103:
103A Penalty notices for certain offences
(1) An authorised officer or a police officer may serve a penalty
notice on a person if it appears to the officer that the person has
committed an offence against this Act or the regulations, being
an offence prescribed by the regulations as a penalty notice
offence.
Page 42
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
(2) A penalty notice is a notice to the effect that, if the person
served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified
in the notice, the amount of penalty prescribed by the
regulations for the offence if dealt with under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of penalty prescribed for an alleged offence is
paid under this section, no person is liable to any further
proceedings for the alleged offence.
(5) Payment under this section is not to be regarded as an
admission of liability for the purpose of, and does not in any
way affect or prejudice, any civil claim, action or proceeding
arising out of the same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision
creating the offence, and
(b) prescribe the amount of penalty payable for the offence
if dealt with under this section, and
(c) prescribe different amounts of penalties for different
offences or classes of offences.
(7) The amount of a penalty prescribed under this section for an
offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(8) This section does not limit the operation of any other provision
of, or made under, this or any other Act relating to proceedings
that may be taken in respect of offences.
[5] Section 106 Regulations
Insert after section 106 (1) (h):
(h1) information and returns to be provided to the Tribunal
or the Minister by benchmark participants under Part
8A,
Page 43
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 1 Amendment of Electricity Supply Act 1995
(h2) fees for audits and other monitoring or accreditation
activities or services provided by the Tribunal or
Scheme Administrator under Part 8A,
[6] Section 106 (3)
Omit "100". Insert instead "250".
[7] Section 106 (3)
Omit "25". Insert instead "100".
[8] Schedule 2 Licences
Insert "or by or under any other Act" after "regulations" in clause 6 (1) (a).
[9] Schedule 2, clause 6 (4)
Omit the subclause. Insert instead:
(4) Without limitation, the Minister must impose a condition on
each retail supplier's licence requiring the holder of the licence
to prepare and publish annual reports in relation to its
performance in meeting the minimum standards of service
required under its standard form customer supply contracts.
[10] Schedule 2, clause 6 (6)(8)
Omit the subclauses.
[11] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Electricity Supply Amendment (Greenhouse Gas Emission
Reduction) Act 2002
Page 44
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of Electricity Supply Act 1995 Schedule 1
[12] Schedule 6, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Electricity Supply Amendment (Greenhouse
Gas Emission Reduction) Act 2002
40 First benchmark figures
Despite section 97BF, the Tribunal may, for the year
commencing 1 January 2003, determine the matters specified
in section 97BF (1) before, on or after 1 January 2003.
41 Abatement certificates
(1) For the purposes of accrediting persons as abatement certificate
providers and enabling the creation, registration and transfer of
abatement certificates, the Scheme Administrator may
determine any matter for or with respect to which regulations
may be made under Division 4, 5 or 6 of Part 8A in accordance
with such guidelines (if any) as may be approved by the
Minister.
(2) This clause ceases to have effect when regulations are made for
the purposes of Division 4 of Part 8A, or 6 months after the
date of commencement of this clause, whichever is the earlier.
Page 45
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices
issued
Insert in alphabetical order:
Electricity Supply Act 1995, section 103A
2.2 Independent Pricing and Regulatory Tribunal Act 1992 No 39
[1] Section 9 Arrangements with other entities
Insert "(whether under this or any other Act)" after "Tribunal" where
secondly occurring in section 9 (1) (a).
[2] Schedule 4 Savings and transitional provisions
Insert at the end of clause 1 (1):
Electricity Supply Amendment (Greenhouse Gas Emission
Reduction) Act 2002
Page 46
Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Bill
2002
Amendment of other Acts Schedule 2
2.3 Industrial Relations Act 1996 No 17
Section 210 Freedom from victimisation
Insert at the end of section 210 (1) (j):
(k) assists the Independent Pricing and Regulatory Tribunal
or Scheme Administrator in the exercise of its functions
under the Electricity Supply Act 1995.
Page 47
[Index] [Search] [Download] [Related Items] [Help]