Clean Energy (Charges—Customs) Act 2011

No. 153, 2011

An Act to impose charges associated with the Clean Energy Act 2011, so far as those charges are duties of customs

[Assented to 4 December 2011]

The Parliament of Australia enacts:

This Act may be cited as the Clean Energy (Charges—Customs) Act 2011.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	4 December 2011
2. Sections 3 to 11	At the same time as section 3 of the Clean Energy Act 2011 commences.	2 April 2012

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Definitions

In this Act:

auction has the same meaning as in the Clean Energy Act 2011.

benchmark average auction charge has the same meaning as in the Clean Energy Act 2011.

carbon unit has the same meaning as in the Clean Energy Act 2011.

eligible international emissions unit has the same meaning as in the Australian National Registry of Emissions Units Act 2011.

fixed charge year has the same meaning as in the Clean Energy Act 2011.

flexible charge year has the same meaning as in the Clean Energy Act 2011.

issue, in relation to a carbon unit, has the same meaning as in the Clean Energy Act 2011.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

person has the same meaning as in the Clean Energy Act 2011.

Regulator means the Clean Energy Regulator.

unit shortfall has the same meaning as in the Clean Energy Act 2011.

vintage year has the same meaning as in the Clean Energy Act 2011.

4 Crown to be bound

This Act binds the Crown in right of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, it does not bind the Crown in right of the Commonwealth.

5 Extension to external Territories

This Act extends to every external Territory.

6 Extension to exclusive economic zone and continental shelf

This Act extends to Australia’s exclusive economic zone and continental shelf.

7 Extension to Joint Petroleum Development Area

This Act extends to the Joint Petroleum Development Area.

Part 2—Charge for the issue of a carbon unit

8 Imposition of charge

Auction

(1) If:

(a) a carbon unit is issued to a person; and

(b) the unit is issued as the result of an auction;

charge is imposed on the issue of the unit.

(2) Charge imposed by subsection (1) is payable by the person.

(3) The amount of charge imposed by subsection (1) on the issue of a carbon unit is the amount equal to the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit, so long as:

(a) in a case where:

(i) the unit has the vintage year beginning on 1 July 2015; and

(ii) regulations are in force for the purposes of section 8 of the Clean Energy (International Unit Surrender Charge) Act 2011 in relation to the surrender of an eligible international emissions unit in relation to the vintage year;

the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit is not less than:

(iii) $15; or

(iv) if a greater amount is prescribed for the purposes of this subparagraph—that greater amount; and

(b) in a case where:

(i) the unit has the vintage year beginning on 1 July 2016; and

the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit is not less than:

(iii) $16; or

(iv) if a greater amount is prescribed for the purposes of this subparagraph—that greater amount; and

(i) the unit has the vintage year beginning on 1 July 2017; and

the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit is not less than:

(iii) $17.05; or

(iv) if a greater amount is prescribed for the purposes of this subparagraph—that greater amount; and

(d) in a case where:

(i) none of the above paragraphs apply; and

(ii) under the regulations, an amount is taken to be the reserve charge amount in relation to the auction;

the amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit is not less than that reserve charge amount.

(4) Subsection (3) does not apply to an amount the person indicated or declared, in the course of the auction, that the person would be willing to pay by way of charge for the issue of the unit, unless the amount was accepted by the Regulator in the course of the auction.

(5) Subsection (1) imposes charge only so far as that charge is a duty of customs within the meaning of section 55 of the Constitution.

Fixed charge

(6) If:

(a) a carbon unit is issued to a person; and

(b) the unit is issued in accordance with section 100 of the Clean Energy Act 2011 (issue of units for a fixed charge);

charge is imposed on the issue of the unit.

(7) Charge imposed by subsection (6) is payable by the person.

(8) The amount of charge imposed by subsection (6) on the issue of a unit is the amount equal to the per unit charge set out in the application under subsection 100(1) of the Clean Energy Act 2011 for the issue of the unit.

(9) Subsection (6) imposes charge only so far as that charge is a duty of customs within the meaning of section 55 of the Constitution.

Part 3—Charge on a unit shortfall

9 Imposition of charge

(1) If a person has a unit shortfall for a financial year, charge is imposed on the unit shortfall.

(2) Charge imposed by subsection (1) is payable by the person.

Amount of charge

(3) The amount of charge imposed by subsection (1) on a unit shortfall is the amount worked out using the formula:

where:

prescribed amount for the financial year means:

(a) if the financial year is a fixed charge year—an amount equal to 130% of the per unit charge applicable under subsection 100(1) of the Clean Energy Act 2011 for the issue of a carbon unit with a vintage year of that fixed charge year; or

(b) if the financial year is a flexible charge year:

(i) if an amount is specified in the regulations for the financial year—that amount; or

(ii) otherwise—an amount equal to 200% of the benchmark average auction charge for the previous financial year.

(4) An amount specified in regulations made for the purposes of subparagraph (b)(i) of the definition of prescribed amount for the financial year in subsection (3) in relation to a financial year:

(a) must not be less than 130% of the benchmark average auction charge for the previous financial year; and

(b) must not exceed 200% of the benchmark average auction charge for the previous financial year.

General

(5) This section imposes charge only so far as that charge is a duty of customs within the meaning of section 55 of the Constitution.

Part 4—Miscellaneous

10 Act does not impose a tax on property of a State

(1) This Act has no effect to the extent (if any) to which it imposes a tax on property of any kind belonging to a State.

(2) In this section, property of any kind belonging to a State has the same meaning as in section 114 of the Constitution.

11 Regulations

The Governor‑General may make regulations prescribing matters required or permitted by this Act to be prescribed.

[Minister’s second reading speech made in—

House of Representatives on 13 September 2011

Senate on 12 October 2011]

(169/11)