Australia: Carbon price start date getting closer - further regulations released

Last Updated: 28 March 2012
Article by Elisa de Wit and Nikolina Babic


On 16 March 2012 the Department of Climate Change and Energy Efficiency (Department) released an exposure draft of the proposed Clean Energy Amendment Regulation 2012 (draft Clean Energy Amendment Regulation) and the proposed National Greenhouse and Energy Reporting Amendment Regulation 2012 (draft NGER Amendment Regulation). These regulations are necessary to support various provisions of the Clean Energy Act 2011 (CE Act).

The draft Amendment Regulations will, when made, amend the Clean Energy Regulations 2011 and the National Greenhouse and Energy Reporting Regulations 2008. The Clean Energy Regulations 2011, made in November last year, established the assistance arrangements for coal-fired electricity generators and dealt with the prescribed distance rule for landfills. More recently, the Clean Energy Amendment Regulation 2012 (No 1) established the Jobs and Competitiveness Program.

The draft Clean Energy Amendment Regulation addresses administrative and compliance issues associated with the carbon pricing mechanism.

The draft NGER Amendment Regulation covers changes which reflect the way in which the NGERS will interact with the carbon pricing mechanism. Most of the amendments in the draft NGER Amendment Regulation are consequential in nature.

The Department is seeking submissions on the draft Amendment Regulations and has specifically asked that stakeholder submissions address the practical operation of the procedural requirements set out in the draft Amendment Regulations.

The submission period for the Exposure Drafts is very short and will end on 2 April 2012. The Department is intending to make the amendments later in April 2012, in preparation for the commencement of the carbon pricing mechanism on 1 July 2012.

Draft Clean Energy Amendment Regulation 2012

The draft Clean Energy Amendment Regulation addresses administrative and compliance issues associated with the carbon pricing mechanism introduced under the CE Act.

The new procedural requirements and definitions contained in the draft Clean Energy Amendment Regulation are particularly relevant to stakeholders in the liquid gas industry and also corporate entities wishing to be declared as 'designated joint ventures' or obtain a liability transfer certificate.

The draft Clean Energy Amendment Regulation contains:

  • a number of definitions dealing with the supply of natural gas (such as what comprises a natural gas supply pipeline, and the point at which supply of natural gas occurs), which are relevant to the natural gas liability provisions in Part 3, Division 3 of CE Act
  • requirements for the provision of documents to the Clean Energy Regulator
  • procedural and information requirements relevant to the making of an application for an Obligation Transfer Number (OTN) for the transfer of liquefied natural gas, liquefied petroleum gas or compressed natural gas
  • conditions for ceasing to be a 'large gas consuming facility' (LGCF), such as when a facility has a "one-off" year which triggers the threshold (25,000 tonnes CO2e) or when a facility falls below the threshold and it is likely that its emissions will remain below the threshold in future years
  • information requirements in respect of applications for 'declared designated joint ventures', participating percentage determinations, corporate group liability transfer certificates and financial control liability transfer certificates
  • the interaction of the liability transfer certificate and designated joint venture provisions, in particular, specifying that a declared designated joint venture and a liability transfer certificate (LTC) cannot co-exist for the same facility and that precedence will be based on which application is granted first
  • procedures for notifying the Regulator of transfers of carbon units by operation of law, such as through probate or under a Family Court order, and
  • requirements to keep copies of relevant documents (such as application documents for LTCs) for a 5 year period

The Department is seeking specific stakeholder feedback on whether the proposed application and information requirements in the draft Clean Energy Amendment Regulation strike an appropriate balance between flexibility in the provision of supporting information and certainty for applicants.

Draft National Greenhouse and Energy Reporting Amendment Regulation 2012

The draft NGER Amendment Regulation will amend the NGER Regulations 2008 to support amendments that have already been made to the NGER Act by the Clean Energy (Consequential Amendments) Act 2011.

The draft NGER Amendment Act also proposes to extend the existing NGER reporting, monitoring and compliance framework so that it incorporates entities liable under the carbon pricing mechanism.

Other notable provisions in the draft Amendment Regulation include:

  • inclusion of new definitions to clarify the meaning of 'scope 1 emissions', 'scope 2 emissions' and 'production' of energy for the purposes of the NGER Act reporting requirements
  • new requirements in relation to the information that needs to be set out in the National Greenhouse and Energy Register, including a requirement that information pertaining to greenhouse and energy audits be included in the Register
  • the application requirements when a nomination of operational control is made to the Regulator
  • new requirements in relation to the information that needs to be provided in support of an application for a declaration of who has operational control (including a requirement to provide evidence showing that the applicant has substantial authority to introduce and implement either or both of the operating policies and environmental policies for the facility), and
  • specification of 125,000 tonnes CO2e as the trigger for the requirement to undertake a mandatory 'reasonable assurance' audit.

What next?

Further regulations still to be released will cover:

  • the liquid fuels Opt-in Scheme, which commences on 1 July 2013 (this option was included within the CE Act to provide airlines, or other large fuel users with the ability to opt into the carbon pricing mechanism)
  • the international unit surrender charge. This is the charge that will apply for the first three years of the flexible price period (ie 2015-2018). The charge will require purchasers of international units used for compliance purposes to pay a "top up" amount, if the amount they have paid for the international unit is less than the current floor price of the carbon units. A number of options for dealing with this surrender charge were identified in the Department's discussion paper released last December.

It is intended that these regulations will be finalised in May.

After the carbon pricing mechanism has commenced, it is intended that a Ministerial Determination will be made on auction policies, procedures and rules and additional regulations will be made to cover restrictions on the surrender of eligible international emissions units.

If you require further information on any aspect of the Draft Regulations or the Carbon Pricing Mechanism, please contact a member of our Climate Change team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elisa de Wit
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.