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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Protection of the Environment
Operations Amendment (Tradeable
Emission Schemes) Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Protection of the Environment Operations
Act 1997 No 156 2
Schedule 1 Amendments 3
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, , 2000
New South Wales
Protection of the Environment
Operations Amendment (Tradeable
Emission Schemes) Bill 2000
Act No , 2000
An Act to amend the Protection of the Environment Operations Act 1997 to make
further provision with respect to tradeable emission schemes and other schemes
involving economic measures.
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 Protection of the Environment Operations Amendment (Tradeable
Emission Schemes) Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Protection of the Environment Operations Amendment
(Tradeable Emission Schemes) Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Protection of the Environment Operations Act 1997
No 156
The Protection of the Environment Operations Act 1997 is amended
as set out in Schedule 1.
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Protection of the Environment Operations Amendment (Tradeable
Emission Schemes) Bill 2000
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 69 Conditions relating to tradeable emission schemes and
other schemes involving economic measures
Insert at the end of section 69:
Note. Conditions relating to tradeable emission schemes may be attached
to licences by the regulations (see Part 9.3A).
[2] Section 293 Schemes for economic measures
Omit "as referred to in section 294" from section 293 (4).
Insert instead "as referred to in Part 9.3A".
[3] Section 293 (5) and (6)
Omit the subsections.
[4] Section 293A
Insert after section 293:
293A Alteration, suspension or termination of a scheme
(1) The EPA may alter, suspend or terminate a scheme referred to
in section 293 or any part of such a scheme.
(2) Before taking any such action, the EPA must:
(a) cause notice of its intention to do so to be published in
the Gazette and in a newspaper circulating throughout
the State or in the locality in which the scheme operates,
and
(b) in that notice, invite the public to make submissions on
the proposed alteration, suspension or termination, and
(c) allow a period of not less than 21 days for the receipt of
those submissions.
(3) The EPA must take into account any submission received
within that period in deciding whether to proceed with the
alteration, suspension or termination.
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Protection of the Environment Operations Amendment (Tradeable
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Schedule 1 Amendments
(4) The EPA may alter the scheme or part of the scheme without
complying with subsections (2) and (3) if it considers that:
(a) the alteration is not significant, or
(b) the alteration is necessary because of an emergency.
(5) The EPA may suspend the scheme or part of the scheme
without complying with subsections (2) and (3) if it considers
that:
(a) the suspension is required urgently in order to protect
the environment, public health, property, or the integrity
of the scheme, or
(b) the suspension is necessary because of an emergency.
(6) The EPA may terminate the scheme or part of the scheme
without complying with subsections (2) and (3) if it considers
that the termination is necessary because of an emergency.
[5] Section 294
Omit the section. Insert instead:
294 Liability of Crown
(1) The Crown does not incur any liability (including liability for
compensation) for any loss (including a loss in entitlements or
in the value of entitlements) incurred as a consequence of any
of the following:
(a) the implementation, alteration, suspension or
termination of a scheme referred to in section 293 or of
any part of such a scheme,
(b) the alteration, suspension, cancellation or forfeiture of
any rights or entitlements under such a scheme.
(2) In this section:
compensation includes damages or any other form of monetary
compensation.
the Crown means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes any officer, employee or
agent of the Crown.
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Protection of the Environment Operations Amendment (Tradeable
Emission Schemes) Bill 2000
Amendments Schedule 1
[6] Section 294A
Insert after section 294:
294A Exercise of functions by Minister and EPA
In exercising their functions under this Part and Part 9.3A, the
Minister and the EPA are to have regard to the objects of this
Act, particularly section 3 (d).
[7] Section 295
Omit the section. Insert instead:
295 Regulations
The regulations may make provision for or with respect to any
of the following:
(a) the development or implementation of schemes
involving economic measures,
(b) the alteration, suspension or termination of such a
scheme or of any part of such a scheme.
Note. More specific regulation-making powers for tradeable emission
schemes are set out in Part 9.3A.
[8] Part 9.3A
Insert after Part 9.3:
Part 9.3A Tradeable emission schemes
295A Definitions
In this Part:
participant in a tradeable emission scheme means:
(a) a person who holds a tradeable emission permit or
credit created under the scheme, or
(b) a person who holds a licence that authorises the person
to carry out any activity that is regulated under the
scheme or a licence of a kind prescribed by the
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regulations as being a licence to which the scheme
applies (whether or not the person holds a tradeable
emission permit or credit).
tradeable emission scheme means a scheme referred to in
section 295B.
295B Tradeable emission schemes
(1) A tradeable emission scheme may include any or all of the
following elements:
(a) the creation of a market for entitlements to emit a
particular pollutant or pollutants,
(b) monitoring and reporting levels of pollution and
emission of pollutants,
(c) the creation of tradeable emission permits or credits,
(d) the initial sale or allocation and further sale or allocation
of tradeable emission permits or credits,
(e) provision for the holding of tradeable emission permits
or credits by members of the public,
(f) the rights and duties of participants in the scheme,
(g) the trading of tradeable emission permits or credits or of
any entitlement conferred by them (including
restrictions on trading and any other dealings),
(h) safeguards against anti-competitive behaviour by
participants in the scheme,
(i) the alteration, suspension, cancellation or forfeiture of
tradeable emission permits or credits, or other rights or
entitlements under the scheme.
(2) A tradeable emission scheme must include:
(a) a limit on total emissions of the pollutant or pollutants
to which the scheme applies, or
(b) a scheme to offset pollution, or
(c) a program for the surrender of tradeable emission
permits or credits over time, or
(d) a combination of any or all of the elements referred to
in paragraphs (a)(c).
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Amendments Schedule 1
(3) A tradeable emission scheme may include elements other than
those mentioned in this section.
295C Regulations relating to tradeable emission schemes
(1) The regulations may make provision for or with respect to
tradeable emission schemes, including provision for or with
respect to any of the elements referred to in section 295B.
(2) A tradeable emission scheme regulation is not repealed by the
operation of Part 3 of the Subordinate Legislation Act 1989.
(3) A tradeable emission scheme regulation may be periodically
reviewed by the Minister, in accordance with a timetable set
out in the regulation. Any such review must include a review
of the operation of the elements of the scheme referred to in
section 295B (2).
(4) The Minister is to ensure that the public is given an opportunity
to make submissions with respect to the review, and that any
submissions with respect to the review that are received within
the period allowed for the receipt of submissions are
appropriately considered.
(5) In order to give the public an opportunity to make submissions
with respect to the review, the Minister must:
(a) cause notice of the review to be published in the Gazette
and in a newspaper circulating throughout the State or
in the locality in which the scheme operates, and
(b) in that notice, invite the public to make submissions
with respect to the review, and
(c) allow a period of not less than 21 days for the receipt of
those submissions.
(6) For the purposes of this section, a tradeable emission scheme
regulation is a regulation that contains only the following
provisions:
(a) provisions that relate to a tradeable emission scheme
(including any ancillary, consequential, savings or
transitional provisions), and
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Schedule 1 Amendments
(b) provisions that deal with the citation and
commencement of the regulation, or other provisions of
a machinery nature.
(7) This section does not limit the generality of section 295.
295D Licence conditions
(1) The regulations may, for the purpose of giving effect to a
tradeable emission scheme, impose conditions on licences.
(2) Conditions of a licence that are imposed by the regulations for
the purposes of this Part cannot be substituted, omitted,
amended or revoked by a regulatory authority.
(3) To avoid doubt, there is no appeal under section 287 against a
condition that is imposed on a licence by the regulations.
(4) This section does not prevent conditions with respect to a
tradeable emission scheme from being attached to a licence by
an appropriate regulatory authority in the manner provided for
by Chapter 3.
295E Imposition of penalties for contravention of scheme
(1) If the EPA is satisfied that a participant in a tradeable emission
scheme has caused a pollutant to be emitted in contravention of
the scheme on one or more occasions, the EPA may, subject to
the regulations, require the participant to pay a penalty to
the EPA.
(2) The penalty is to be the amount prescribed by, or calculated in
accordance with, the regulations.
(3) Without limiting subsection (2), the regulations may provide for
the penalty to be calculated on the basis of the following (or a
combination of the following):
(a) the quantity of pollutant emitted by the participant in
contravention of the scheme, as estimated by the EPA,
(b) the amount of monetary, financial or other economic
benefits obtained by the participant as a result of
contravening the scheme, as estimated by the EPA.
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Protection of the Environment Operations Amendment (Tradeable
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Amendments Schedule 1
(4) The EPA is required to give written notice to a participant of:
(a) any penalty the participant is required to pay under this
section, and
(b) the time within which the penalty is to be paid.
(5) If the participant fails to pay the penalty, within the time
specified by the EPA in the notice, the EPA may:
(a) cancel, suspend, or order the forfeiture of, any tradeable
emission permits or credits held by the participant, in
accordance with the regulations, or
(b) take any other action against the person (such as
suspending the person from participating in the scheme)
that is authorised by the regulations.
(6) This section does not prevent proceedings being taken against
a participant for an offence against this Act or the regulations
arising as a result of a contravention of a tradeable emission
scheme.
(7) The EPA may take any other action authorised by the
regulations (as referred to in section 295F) in addition to or
instead of imposing a penalty under this section.
295F Other action that may be taken by EPA
(1) The regulations may authorise the EPA, or a person exercising
functions under a tradeable emission scheme on behalf of the
EPA, to do any or all of the following, in the circumstances set
out in the regulations:
(a) cancel or suspend tradeable emission permits or credits,
or any entitlement that they confer,
(b) order the forfeiture of tradeable emission permits or
credits to the EPA,
(c) cancel or suspend a person's right to participate in the
scheme, or impose conditions or other restrictions on
any such right.
(2) Without limiting subsection (1), the regulations may authorise
such action to be taken:
(a) for one or more contraventions of the scheme, or
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Emission Schemes) Bill 2000
Schedule 1 Amendments
(b) for a failure to pay any penalty, contribution or other
amount payable in connection with the scheme.
295G Participation in scheme by EPA
The EPA may participate in a tradeable emission scheme,
including by holding and trading in tradeable emission permits
and credits.
295H Cost recovery
(1) The regulations may require participants in a tradeable emission
scheme to pay to the EPA a contribution towards the following:
(a) the costs of management and administration of the
scheme (including payment for services provided by any
person or body exercising functions under the scheme),
(b) the costs of ensuring compliance with the scheme,
(c) any other costs relating to the scheme.
(2) The amount of the contribution (or the manner in which it is to
be calculated) and other matters concerning its payment are to
be set out in the regulations.
(3) The contribution is recoverable by the EPA as a debt in a court
of competent jurisdiction.
(4) The regulations may authorise the payment of the contribution
by instalments. If an instalment is not paid by the due date, the
balance then becomes due and payable (together with any
interest or other penalty for late payment prescribed by the
regulations).
(5) The regulations may:
(a) require a person to continue to make a contribution
referred to in this section in respect of a tradeable
emission permit or credit that has been forfeited until
the permit or credit is sold or re-allocated, and
(b) exempt any person or class of persons from payment of
a contribution referred to in this section.
(6) The EPA is not required to pay a contribution referred to in
this section.
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Protection of the Environment Operations Amendment (Tradeable
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Amendments Schedule 1
295I Tradeable Emission Schemes Fund
(1) There is to be established in the Special Deposits Account an
account called the Tradeable Emission Schemes Fund.
(2) Money in the Fund is under the control of the EPA and can be
expended by the EPA only for the purposes authorised by
this section.
(3) There is to be paid into the Fund:
(a) all contributions paid by participants in a tradeable
emission scheme under a regulation referred to in
section 295H (Cost recovery), and
(b) the proceeds of investment of money in the Fund, and
(c) any gift or bequest of money for the purposes of the
Fund, and
(d) any other money appropriated by Parliament for the
purposes of the Fund or required by law to be paid into
the Fund.
(4) There may be paid out of the Fund:
(a) the costs of management and administration of tradeable
emission schemes (including payment for services
provided by any person or body exercising functions
under the scheme), and
(b) the costs of ensuring compliance with tradeable
emission schemes, and
(c) such other costs relating to tradeable emission schemes
as the EPA directs to be paid out of the Fund.
(5) A separate account is to be established in the Fund for each
tradeable emission scheme.
(6) If more than one account in the Fund is established under this
Part, money in the accounts may be invested as a common
pool. The proceeds of investments are to be distributed rateably
among the accounts that contributed money to the common
pool according to the amount contributed.
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Schedule 1 Amendments
295J Exercise of scheme functions by other persons and bodies
(1) The EPA may enter into agreements and other arrangements
with a person or body in respect of the exercise of the functions
of the EPA under a tradeable emission scheme by the person or
body on behalf of the EPA.
(2) The regulations may provide for the constitution of committees
(as incorporated or unincorporated bodies):
(a) to provide advice on tradeable emission schemes, and
(b) to exercise any other functions conferred on them by the
EPA or by the regulations in connection with tradeable
emission schemes.
(3) A matter or thing done or omitted to be done by such a
committee, a member of the committee or a person acting
under the direction of the committee does not, if the matter or
thing was done or omitted to be done in good faith for the
purpose of executing this or any other Act or the regulations,
subject a member or a person so acting personally to any
action, liability, claim or demand.
295K Liability for operation of scheme
(1) The Crown does not incur any liability (including liability for
compensation) in respect of anything done or omitted to be
done in good faith by the EPA, or by a person exercising
functions under a tradeable emission scheme on behalf of the
EPA, in connection with the operation of a tradeable emission
scheme.
(2) Without limiting subsection (1), that subsection applies to
anything done or omitted to be done in connection with the
operation of any register or other system by which tradeable
emission permits or credits, or other entitlements, are traded
under a tradeable emission scheme.
(3) This section does not limit the generality of section 294.
(4) In this section:
compensation includes damages or any other form of monetary
compensation.
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Protection of the Environment Operations Amendment (Tradeable
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Amendments Schedule 1
the Crown means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes any officer, employee or
agent of the Crown.
295L Application of Duties Act 1997
A tradeable emission permit or credit, or any other entitlement,
created under a tradeable emission scheme is not dutiable
property for the purposes of the Duties Act 1997.
[9] Schedule 5 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Protection of the Environment Operations Amendment
(Tradeable Emission Schemes) Act 2000
[10] Schedule 5
Insert at the end of the Schedule (with appropriate Part and clause
numbering):
Part Provisions consequent on enactment of Protection of
the Environment Operations Amendment (Tradeable
Emission Schemes) Act 2000
Compensation provisions
Section 293 (6) continues to apply in respect of any loss
incurred before the repeal of that subsection by the Protection
of the Environment Operations Amendment (Tradeable
Emission Schemes) Act 2000, as if that subsection had not been
repealed by that Act.
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