1. Introduction

Debate on national climate change legislative policy has been under way in Australia for well over two decades, but it is still unclear when a decisive conclusion will occur.

Two overarching factors are influencing the current debate.

One is the government’s continuing lack of control of the Senate. This factor has been in the limelight since November 2007 when the current Federal Government was first elected, and remains very strongly influential on the government’s policy directions.

The second factor is the tension within the Opposition Liberal/National Party Coalition over the issue of a carbon price. This factor has waned since Tony Abbott’s ascension to the leadership of the Federal Opposition on 1 December 2009, but it may revive when, as a result of the August 2010 Federal election, the Green Party assumes the balance of power in the Senate on 1 July 2010.

The August 2010 election result prompted a resumption of debate in a variety of official forums. The new Federal Government recommitted itself early to the introduction of a carbon price into the Australian economy, having been much criticized for its lack of resolve on this issue in the months before the election, and it committed itself to public processes of parliamentary inquiry on legislative policy which will continue until December 2011. These processes have been given a new flavour by the US mid-term election in early November 2010 which has prompted renewal of calls from several extra-parliamentary sources for deferral of any legislative action in Australia without similar moves at the federal level in the US.

This briefing note supplies a short summary of the current state of Australian climate change legislative policy.

  1. Structure of this Briefing Note

The structure of this note is as follows:

Until 27 April 2010, the Federal Government had active plans for a carbon pollution reduction scheme (CPRS). Those plans revived after, and as a result of, the August 2010 Federal election. Section 3 below summarises these plans and gives a brief history of them. Section 4 below briefly summarises the important policy developments which have occurred since the August 2010 election. These indicate that a key objective for the current Federal Government is to get agreement on a framework that will deliver a carbon price in the Australian economy.

Sections 5, 6 and 7 below briefly summarise the legislation which has existed in Australia for some time for:

  1. a Renewable Energy Target (since April 2001)
  2. an Energy Efficiency Opportunities Program (since April 2006), and
  3. a National Greenhouse and Energy Reporting System (since September 2007).

As well, a legislated building energy efficiency scheme has recently been introduced. This is briefly considered in section 8 below.

  1. Carbon Pollution Reduction Scheme

3.1 Introduction

Prior to the August 2010 Federal election, the development of Australian climate change legislative policy fell into the following three broad phases.

3.2 First Phase

December 1992

The first phase begins in December 1992 when, following Australia’s ratification of the United Nations Framework Convention for Climate Change, the Federal Government released its National Greenhouse Response Strategy (NGRS).1 The NGRS relied on voluntary measures and 'no regrets' strategies, namely: measures that have net benefits (or no net cost). Also in December 1992, the Federal Parliament’s Standing Committee on Industry, Science and Technology released its report Gas and Electricity Combining Efficiency and Greenhouse2 which recommended increase in the use of natural gas in power generation.

February 1997

In February 1997, the Inter-Governmental Committee on Ecologically Sustainable Development released a discussion paper3 on directions for a national greenhouse response strategy. The Productivity Commission (then known as the Industry Commission) made a submission4 criticising ‘no regrets’ policies as insufficient and recommending greater use of market-based instruments to achieve favourable economic and greenhouse outcomes in the long term at least cost.

March to December 1999

In March to December 1999, the then Australian Greenhouse Office (AGO) published a series of four discussion papers on emissions trading (AGO Discussion Papers) for public comment.5 These documents describe the essential features of a cap-and-trade emissions trading scheme, the differences between such a scheme and a carbon tax, and some reasons for preferring the former.

December 2002

In December 2002, the Independent Review of Energy Market Directions set up by the Council of Australian Governments (COAG) released its report. Its ‘major recommendation’ was the replacement of existing state and Commonwealth measures aimed at reducing greenhouse gas emissions in the electricity sector with an economy-wide emissions trading scheme.

3.3 Second Phase

December 2002 to July 2007

On 1 January 2003, what is believed to be the world’s first mandatory emissions trading scheme (ETS) for greenhouse gases (GHGs) came into effect in New South Wales.6 In January 2004, the Australian states and territories collaborated to form the National Emissions Trading Task Force which, over the next two years, developed detailed policy frameworks for a national cap-and-trade ETS. Its detailed report was published in December 2007.7

However, there were no corresponding federal developments until November 2006 when Prime Minister Howard announced that the Federal Government would establish a joint government-business taskforce to examine the form that ‘an emissions trading system…might take in the years ahead’. In consequence, on 10 December 2006 the Prime Ministerial Task Group on Emissions Trading (ET Task Group) was formally established. On 31 May 2007, the ET Task Group released its Report of the Task Group on Emissions Trading (ET Task Group Report).8 On 3 June 2007, Prime Minister Howard announced that the Federal Government would introduce emissions trading.9 On 17 July 2007 the then Federal Government released Australia’s Climate Change Policy.10 In it, the Federal Government accepted, and proposed policies for implementing, the major recommendations of the ET Task Group Report. The Policy committed the Federal Government to the introduction of an emissions trading scheme.

September 2007 to November 2007

On 24 September 2007, the Federal Government released its discussion paper Abatement Incentives Prior to the Commencement of the Australian Emissions Trading Scheme11 for discussion. On 28 September 2007, the National Greenhouse and Energy Reporting Act 2007 (Cth) (NGER Act) received assent. The Act came fully into force on 29 September 2007. The Act put in place a framework for the reporting and dissemination of information related to greenhouse gas emissions (and other matters) in order ‘to underpin the introduction of an emissions trading scheme in the future’.12

3.4 Third Phase

November 2007 to December 2007

On 24 November 2007, the Labor Party was elected to Federal Government, and the third phase began.

Very shortly after its election, the new government confirmed positions which had first been mooted at a one-day National Climate Change Summit convened by the Party on 31 March 2007, and which were reiterated in An Action Agenda for Climate Change, issued on 30 May 2007,13 that the new government would: ratify the Kyoto Protocol; set up a national emissions trading scheme (ETS); and cut Australia’s GHG emissions by 60% on 2000 levels by 2050. It also announced that it had accepted an invitation to attend the December 2007 Conference of the Parties to the Kyoto Protocol in Bali (Bali Conference).

On 3 December 2007, the day on which the new government was officially formed, as its first official act it ratified the Kyoto Protocol. The ratification became effective in March 2008. Prime Minister Rudd address the Bali Conference on 12 December 2007. In his speech,14 he described climate change as ‘the defining challenge of our generation’ and as a ‘top priority of the new Australian Government’.

July 2008 to December 2008

On 15 December 2008, the government released a white paper entitled Carbon Pollution Reduction Scheme: Australia’s Low-Pollution Future (White Paper), which proposed the introduction on 1 July 2010 of a cap-and-trade greenhouse-gas emissions trading scheme to be known as the CPRS, and which set out detailed ‘policy positions’ on most aspects of the design of the CPRS. The White Paper had been preceded in July 2008 by a green paper entitled Carbon Pollution Reduction Scheme: Green Paper (Green Paper) which outlined the government’s ‘preferred positions’ in relation to the design of the CPRS and which called for submissions prior to the publication of the White Paper. The White Paper had also been preceded by the publication on 30 September 2008 of The Garnaut Climate Change Review: Final Report (2008 Garnaut Final Report), which also dealt in detail with the proposed design of an Australia-wide cap-and-trade emissions trading scheme.

March 2009 to February 2010

On 10 March 2009, the government published its exposure draft legislation for the CPRS and, in May 2009, it introduced into the House of Representatives eleven Bills connected with the proposed CPRS. These eleven Bills (together, the First 2009 CPRS Bills) were passed by the House of Representatives (with certain government-moved amendments to some of the Bills) on 4 June 2009, and were introduced into the Senate on 15 June 2009. The Senate considered the First 2009 CPRS Bills (without voting on them) on 22 and 23 June 2009 before the Senate was adjourned for the winter recess on 25 June 2009. The Senate voted down each of the First 2009 CPRS Bills on 13 August 2009.

On 22 October 2009, each of the First 2009 CPRS Bills (including where relevant the government-moved amendments referred to above) was reintroduced into the House of Representatives. The ‘new’ Bills were known as the Carbon Pollution Reduction Scheme Bill 2009 [No 2], etc. The CPRS Bills [No 2] (Second 2009 CPRS Bills) were passed by the House on 16 November 2009. On 17 November 2009, the Second 2009 CPRS Bills were reintroduced into the Senate. On 24 November 2009, the government publicly released a series of proposed amendments to the legislation which had been negotiated over the preceding weeks between the government (Senator Penny Wong) and the Opposition (Senator Ian Macfarlane). The proposed amendments included the legislated exclusion of agriculture, the inclusion of a general mechanism for recognising offsets, increased assistance for EITE industries, and a greatly expanded compensation regime for coal-fired power generators, among other matters. Then-Opposition Leader Malcolm Turnbull supported the passage of the legislation with the agreed amendments. However, on 1 December 2009 he lost the leadership of the Liberal Party to Tony Abbott, who immediately announced that the Opposition in the Senate would seek to have consideration of the Second 2009 CPRS Bills deferred, but if that proved impossible, would oppose the Bills outright. On 1 December 2009, Greg Combet for the government announced that the CPRS including the amendments negotiated by Senators Wong and Macfarlane (Amended CPRS) would be the government’s future policy. On 2 December 2009, the Senate rejected the Second 2009 CPRS Bills outright. This action provided the government with a trigger for a ‘double-dissolution election’ under the Australian Constitution, but only in relation to the Second 2009 CPRS Bills as introduced into the Senate on 17 November 2009, and not in relation to the Amended CPRS which had since become Federal Government policy.

On 2 December 2009, shortly after the Senate’s rejection of the Second 2009 CPRS Bills, Acting Prime Minister Julia Gillard announced that legislation for the Amended CPRS would be introduced on the first sitting day of the parliament after the summer recess, namely: 2 February 2010. On that day, the government introduced a third set of eleven CPRS bills, in a form reflecting the Amended CPRS (2010 CPRS Bills). The 2010 CPRS Bills were passed by the House of Representatives on 11 February 2010. No vote in the Senate was ever taken on the 2010 CPRS Bills other than one in which the Senate determined to delay any vote on them until its sittings in May 2010.

Overview of Second 2009 CPRS Bills

The CPRS, as set out in the Second 2009 CPRS Bills, covered virtually all corporations which are involved in the emission of greenhouse gases within Australia, with the exception of agriculture and deforestation. The greenhouse gases covered by the scheme were carbon dioxide, methane, sulphur hexafluoride, nitrous oxide, hydroflurocarbons and perfluorocarbons.

A corporation covered by the CPRS was to be required to purchase enough emissions permits for its group’s greenhouse gas emissions from Australian territory where controlled facilities emit more than 25,000t (= 25 Kt) carbon dioxide equivalent (CO2e) per year, or where the corporation is designated by the CPRS as a ‘proxy’ for downstream emitters.

The number of permits in circulation were to be equivalent to the government-determined ‘cap’ on emissions, plus any permits issued to Kyoto-compliant forestry. As a matter of policy, the short and medium term caps had been set at between 5% and 25% of 2000 levels by the end of 2020. The long term cap was at least a 60% reduction against 2000 greenhouse gas emissions levels by 2050.

Permits, which were to be personal property, were to be purchased at auction directly from the government or on the secondary trading market (including from Kyoto-compliant forestry) or were to be allocated freely under compensation arrangements proposed as part of the scheme. At the end of each year, a corporation covered by the CPRS was to be liable to surrender to the government a permit for every tonne of its covered CO2e emitted that year.

The purchase and surrender of emissions permits was designed to impose direct costs at certain points in the economy. Most commonly, this imposition was to occur at the point of greenhouse gas emission: for example, in electricity generation and in industrial processes. In other cases, this imposition was to occur at a different point in the supply chain: for example, upstream fuel suppliers were to have direct costs imposed on them as ‘proxies’ for the emissions of the users of their products, and no direct liability was to be imposed on those down-stream users.

The legislation contemplated an administrative mechanism (known as the Obligation Transfer Number (OTN)) to enable, and in some cases require, permiting obligations to be transferred as regards certain fuels, and another administrative mechanism (known as the Liability Transfer Certificate (LTC) mechanism) which, in other cases, enabled permiting obligations to be transferred to subsidiaries or to financial controllers of relevant facilities.

While the direct liability was to rest at these set points, corporations were left to ‘pass through’ their greenhouse gas emissions costs wherever they could. A corporation’s ability to do so was to be a matter of contractual negotiation as there was no proposal for legal assistance or a legal framework to pass through emissions costs. Consequently, an emissions cost as a result of the CPRS was to be a component of the price of all goods and services with a greenhouse gas emissions ‘footprint’.

An entity covered by the scheme which did not surrender sufficient emissions permits to cover its emissions was to be liable to a penalty and a ‘make good’ obligation.

There was to be compensation for emissions-intensive, trade-exposed (EITE) activities (for example, aluminium smelting) and coal-fired generators, as well as a range of other compensatory measures to be delivered through the taxation system and grant programs.

The CPRS did not rely on carbon offsets. However, special treatment was to be given to Kyoto-compliant forestry (which, on an ‘opt-in’ basis, were to be issued with free permits equal to the CO2e it sequesters) and ‘Carbon Capture and Storage’. Emitters were also to be able to purchase emissions credits generated by offset projects accredited under the Kyoto Protocol in other countries, but domestic Australian offsets were not to be effective.

Overview of 2010 CPRS Bills

As mentioned, the 2010 CPRS Bills reflected amendments to the Second 2009 CPRS Bills which were negotiated between the Federal Government and the Opposition in late November 2009.15

In summary:

  • The government increased compensation to EITE industries, but not to the level requested by the Opposition or some industry groups such as the Minerals Council of Australia. LNG was to receive special treatment ensuring that it would be given compensation cover for 50% of its emissions. Food processing was also to have access to $150 million of dedicated assistance.
  • The government indefinitely exempted agriculture from the CPRS. This meant that a large part of Australian emissions were not covered by the CPRS. But it also removed a large part of the opposition to the CPRS. Agriculture interests had been vocal opponents of the proposed CPRS.
  • The government opened the way for significant agricultural and other offsets to be recognised. Relatedly, on 20 January 2010, it released its National Carbon Offset Standard (NCOS).16
  • There was to be substantially increased financial support for the coal mining sector.
  • There was also to be increased support for the coal-fired power sector, significantly increasing the amount of free permits which would be given to coal-fired power stations and doubling the time over which they will receive them. The government proposed other mechanisms targeted to address loan default and energy supply risks.
  • There was to be substantially increased support for mining and manufacturing sectors affected by electricity price rises.
  • There were to be measures to recognise voluntary action and energy efficiency.
  1. Recent Policy Developments

4.1 1 September 2010 Agreement

At the August 2010 election, climate change policy was a central issue.17 The composition of the parliament which was returned at the election means that issues of climate change policy will remain central for some time. At the election, Prime Minister Gillard’s party, the Australian Labor Party (ALP), became a ‘minority government’. In the Lower House of Federal Parliament it has a ‘notional majority’ of 76 (supported by three Independents and a Green). In the Upper House, from 1 July 2011 the Green Party will hold the balance of power and the ALP will need their support to pass any legislation which is opposed by the Liberal/National Party Coalition.18 These circumstances have made crucial the agreement which the ALP reached with the Greens on 1 September 2010.19 Under it, the Greens agree to ensure supply to the ALP in government, and to oppose any motion of no confidence in the ALP in government, in return for the ALP’s agreement to pursue (among other things) ‘policies which address climate change’. In the agreement, the two parties acknowledge that ‘Australia must tackle climate change and that reducing carbon pollution by 2020 will require a price on carbon’. They agree to form and resource a multi-party climate change committee (Multi-Party Committee) ‘which encompasses experts and representative ALP, Greens, independent and Coalition parliamentarians who are committed to tackling climate change and who acknowledge that reducing carbon pollution by 2020 will require a carbon price’.

4.2 Implementation of 1 September 2010 Agreement

Significant steps have now been taken in implementation of the 1 September agreement.

On 27 September 2010, Prime Minister Gillard announced the membership and terms of reference of the Multi-Party Committee.20 Its central brief is to ‘consult, negotiate, and report to the Cabinet, through the Minister for Climate Change and Energy Efficiency, on agreed options for the implementation of a carbon price in Australia’. The Committee held its first meeting on 7 October 2010, resolving to meet monthly until the end of 2011 and to release a communiqué after each meeting. In its first communiqué21 on 7 October 2010, the Committee ‘affirmed the intention to advise agreement on an option for a carbon price’ but noted that, ‘where differences remain after good faith discussions, it would make every effort to produce workable options for Cabinet consideration’. In its second communiqué22 on 10 November 2010, the Committee noted its consideration of papers presented to it on that day on: the status of carbon mitigation actions in other countries;23 the energy market outlook; and the scope of works for an update to the 2008 Garnaut Final Report. The Committee agreed to the public release of these papers.24

Also on 27 September 2010, the ALP announced its intention to establish a Business Roundtable on Climate Change (Business Roundtable), and an Environment and Non-Government Organisation Roundtable on Climate Change (NGO Roundtable).25 On 18 October 2010, the ALP announced the membership of the Business Roundtable26 and the NGO Roundtable.27

On 11 October 2010, It was confirmed that the Gillard government will introduce legislation to implement its pre-election promise for a voluntary scheme, known as the Carbon Farming Initiative (CFI) to create ‘credits’ from land-based actions that reduce or store carbon pollution. On 27 October 2010, as a ‘first step’ in the CFI, the government announced the establishment and membership of a committee—the Domestic Offsets Integrity Committee (DOIC)—to assess and adopt methodologies for calculating credits.28 Priority will be given to establishing methodologies relating to carbon sink forests and soil carbon. Legislation will be introduced to parliament in the first half of 2011. A consultation paper on the proposed legislation will be released in mid-November 2010. On 9 November 2010, the Gillard Government announced funding of $45.6 million over four years for the CFI.29

On 12 October 2010, The newly appointed Climate Change Minister Greg Combet made his first public speech.30 He announced that the ‘introduction of a carbon price’ was a key element of the ALP’s domestic climate change mitigation policy. He stated that the Australian economy ‘[had] evolved without regard to the costs of carbon pollution’, that Australian industry must become less carbon-intensive ‘if [it is] to remain internationally competitive over the long term’, and that ‘[the] best and most responsible way of doing this is by establishing a carbon price in the economy’. He said that the Multi-Party Committee was ‘unlikely to agree on every point of detail’ but that its ‘key objective’ is ‘to get agreement on a framework that will deliver a carbon price’. On 4 November 2010, in a joint press release with the New Zealand Minister for Climate Change, Minister Combet reiterated that ‘The Australian Government is…working towards the introduction of a carbon price into [the Australian] economy’.31 Prime Minister Gillard made the same point in a public speech on 9 November 2010.32

4.3 Other Developments

On 30 September 2010, the Senate Select Committee on the Scrutiny of New Taxes was established33 to enquire and report into, ‘ new taxes proposed for Australia, including…a carbon tax, or any other mechanism to put a price on carbon’.34 It is due to report by 30 November 2011.

  1. Renewable Energy Target

5.1 Introduction

In his speech on 12 October 2010, Minister Combet announced that ‘strong support for clean energy’ was also a key element of the ALP’s domestic climate change mitigation policy.

On clean energy, he reiterated the ALP’s commitment to ‘the 20 per cent Renewable Energy Target’ (RET)—more about which is said below—suggesting that it will drive around $16 billion of investment in renewable energy generation by 2020 and $19 billion by 2030. He also reiterated support for the $5.1 billion Clean Energy Initiative for the research, development and demonstration of low emission clean energy technologies.35

5.2 Primary legislation

The Mandatory Renewable Energy Target (MRET) was established by the Renewable Energy (Electricity) Act 2000 and commenced operation on 1 April 2001. The MRET required liable parties to source an additional 9500 gigawatt-hours of electricity per year from renewable sources by 2010, and was due to extend until 2020.

On 7 September 2009, the following Acts were passed to create the expanded RET: the Renewable Energy (Electricity) Amendment Act 2009; and the Renewable Energy (Electricity) (Charge) Amendment Act 2009.

The Renewable Energy (Electricity) (Charge) Amendment Act 2009 came into effect on 8 September 2009.

All the substantive provisions of the Renewable Energy (Electricity) Amendment Act 2009 have come into effect.

The effect of the amendments is to:

  1. extend the RET (as successor to the MRET) to 2030
  2. require liable entities to source an increasing quantity of electricity from eligible sources, commencing in 2010 and peaking at 45,850 gigawatt-hours in 2020 and continuing at 45,000 gigawatt hours from 2021 to 2030
  3. allow a limited amount of electricity produced from waste coal mine gas at existing power stations until 2020 to qualify for assistance
  4. provide for regulations to formulate a program of partial exemptions for emissions-intensive trade-exposed industries (EITEs), and
  5. increase the shortfall charge (for failure to source the required quantity of electricity from renewable sources) from $40 to $65 per megawatt-hour, with effect from 1 January 2010.

Further information on the expanded RET is available in our articles ‘Revised Federal Renewable Energy Target’36 and ‘Renewable Energy Target (RET) update’.37

On 24 June 1010, the following Acts were passed to split the RET into a Large-scale Renewable Energy Target (LRET) and a separate Small-scale Renewable Energy Scheme (SRES): the Renewable Energy (Electricity) Amendment Act 2010; and the Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010.

The split is designed to:

  1. provide greater certainty for both large-scale and small-scale renewable power generation
  2. support a higher Renewable Energy Certificate (REC) price for large-scale projects, and
  3. guarantee uncapped support for small-scale technologies with an available fixed $40 REC price (excluding GST), but with two-yearly reviews and increased government flexibility to manage the SRES as well as minor changes from the current treatment of small-scale renewable power generation.

The split will take effect from 1 January 2011. Further information on the split is available in our article ‘Renewable Energy Target split’.38

5.3 Delegated legislation

In 2009 and 2010 a number of amending regulations were made to amend the primary Renewable Energy (Electricity) Regulations 2001 (Cth), on a variety of matters including in relation to small generation units and the Solar Credits multiplier mechanism and EITE assistance.

  1. Energy Efficiency

6.1 Introduction

In his speech on 12 October 2010, Minister Combet announced that ‘greater energy efficiency in industry and households’ was also a key element of the ALP’s domestic climate change mitigation policy. He restated support for the $100 million Energy Efficiency Trust, managed by the Australian Carbon Trust, which promotes energy efficiency in the business sector. He also referred to the release on 9 October 2010 of the report of the Prime Minister’s Task Group on Energy Efficiency.39 That report recommends ‘[setting] an aspirational national energy efficiency target of improving [Australia’s] primary energy intensity by 30% between now and 2020. It also recommends a ‘national energy savings initiative that would replace existing and planned state energy efficiency schemes’ and ‘[resetting] the governance framework of energy efficiency so that responsibility for its delivery, coordination and implementation is clear’.

6.2 Primary legislation

The Energy Efficiency Opportunities Act 2006 came into effect on 6 April 2006. The Act was amended by the Energy Efficiency Opportunities Amendment Act 2007, most provisions of which were backdated to come into effect on the same date as the principal Act. The Act provides for companies which exceed energy consumption thresholds to prepare, implement and work on an energy efficiency opportunities plan.

6.3 Delegated legislation

The Energy Efficiency Opportunities Regulations 2006 came into effect on 27 June 2006. They have been amended a number of times, most recently by the Energy Efficiency Opportunities Amendment Regulations 2009 (No 2), which came into effect on 17 November 2009 and introduced provisions allowing liable entities to shift obligations under the Program to an entity holding a Reporting Transfer Certificate under Australia’s National Greenhouse and Energy Reporting System. (See 7.2(c) below).

  1. National Greenhouse and Energy Reporting System

7.1 Introduction

Australia’s National Greenhouse and Energy Reporting System (NGERS) has been in effect since late 2007.

7.2 Principal Legislation

The National Greenhouse and Energy Reporting Act 2007 (NGER Act) came fully into effect on 29 September 2007. The NGER Act imposes upon corporations a conditional obligation to report on greenhouse gas emissions, consumption of energy, and production of energy (collectively, Reportable Data), for each financial year. In summary the conditions of the obligation are that ‘controlling corporations’ must report Reportable Data from the operation of ‘facilities’ under the ‘operational control’ of the all entities that are members of their ‘corporate group’ where certain facility or corporate group thresholds are met. The key elements are:

  • the facilities – this can be a complex issue, especially for electricity networks and where there are construction works
  • the entity with operational control of each facility, and
  • who are the members of the controlling corporation’s corporate group.

An entity has operational control over a facility if it has authority to introduce and implement operating, health and safety, and environmental policies. If there is uncertainty about which entity has operational control over a facility, the entity with the greatest authority to introduce and implement operating and environmental policies, but not health and safety policies, is deemed to have operational control.

The NGER Act has since been amended by the National Greenhouse and Energy Reporting Amendment Act 2008, which came fully into effect on 15 March 2009, and by the National Greenhouse and Energy Reporting Amendment Act 2009. This latter Act :

  1. introduces detailed provisions for auditing of reports and reporting entities
  2. removes the requirement for the regulator to publish totals of a corporate group’s energy production, and
  3. introduces the concept of a Reporting Transfer Certificate to allow the obligation to report on a facility to be transferred from the controlling corporation of the entity having operational control of the facility to a member of a different group having financial control of the facility.

The amendments in (a) and (b) commenced on 16 October 2009.

The amendments in (c) commenced on 19 September 2009.

7.3 Delegated legislation

The National Greenhouse and Energy Reporting Regulations 2008 came into effect on 1 July 2008. They were amended with effect from 15 March 2009 by the National Greenhouse and Energy Reporting Amendment Regulations 2009 (No 1).

The National Greenhouse and Energy Reporting (Measurement) Determination 2008 came into effect on 1 July 2008. It was amended with formal effect from 27 June 2009 by the National Greenhouse and Energy Reporting (Measurement) Amendment Determination 2009 (No 1). However, the amendments made by that instrument apply only in relation to the 2009–2010 reporting year and later years.

On 17 December 2009, the National Greenhouse and Energy Reporting Amendment Regulations 2009 (No 2) came into effect. The amendments principally prescribe matters related to greenhouse and energy audits.

An exposure draft of the National Greenhouse and Energy Reporting (Audit) Determination 2009 was made available for comment during August 2009. The Determination was finalised and published on 21 December 2009.

The Department of Climate Change also invited submissions during August 2009 on a proposed NGER Auditor Registration Instrument.

  1. Building Energy Efficiency Disclosure

8.1 Introduction

The Building Energy Efficiency Disclosure Act (Cth) (BEED Act) was proclaimed on 13 July 2010 and commenced operation on 1 November 2010.

8.2 Disclosure Obligations

The BEED Act requires the disclosure of information about the energy efficiency of large commercial office buildings at the point of their sale, lease and sublease. The information to be disclosed will be in the form of a building energy efficiency certificate having three components: an energy efficiency rating for the building; information about the energy efficiency of the lighting; and generic guidance on how the energy efficiency of the building may be improved. Also, the building’s energy efficiency rating must be disclosed in any advertisement for the sale, lease or sublease of the building. The BEED Act will not invalidate any sale, lease or sublease which occurs in breach of these requirements, but substantial civil penalties can be imposed in those circumstances.

More information is available in our article ‘Energy Efficiency in Buildings – Recent developments’.40