On 15 June 2013, Australia's top 370 emitters were required
to pay 75 percent of the 'carbon tax' to the Government.
That is, those companies needed to surrender to the Clean Energy
Regulator (CER), sufficient Australian Carbon
Credit Units (ACCUs) to acquit themselves of
liability for 75 percent of their Co2-e (Carbon Dioxide equivalent)
emissions for the 2012/2013 financial year.
Liability for the remaining 25 percent will not fall due until 1
February 2014. The Federal election has finally been called for 7
September. The Abbott Coalition has vowed to scrap the carbon tax
This creates an intriguing question: If an Abbott-led Coalition
is elected into Government next month and holds true to their
promise to revoke the carbon tax, will those companies still have
to pay their 25 percent liability come 3 February 2014?
Partner Michele Muscillo and associate Ben Ricketts explore the
possible outcomes flowing from the election, and why the short
answer is, in all likelihood, yes.
The carbon tax revisited
If a company emitted more than 25,000 tonnes of CO2-e (carbon
dioxide equivalent, which includes methane, nitrous oxide and
perfluorocarbon - from aluminium production) during the 2012/2013
financial year, it was required to pay the carbon tax, effectively
$23.00 per tonne for each tonne above the 25,000 tonne threshold
(increasing to $24.15 per tonne for this financial year).
A company pays the carbon tax by "surrendering" to the
CER, ACCUs, with each unit being equivalent to one tonne of
ACCUs can be either:
purchased directly from and then surrendered to the CER;
provided for free to trade exposed industries under the
Government's Jobs & Competitiveness Programme; or
bought on the secondary market under the Carbon Farming
By 15 June 2013, liable entities were required to surrender
sufficient units to acquit themselves of liability for 75 percent
of those emissions above the 25,000 tonne per year threshold. A
failure to do so resulted in a late payment penalty equivalent to
130 percent of the carbon tax, ie $29.90 per tonne. A further
failure to pay a late payment penalty resulted in an additional 20
percent being added to that figure. So far, four companies have not
met that deadline. In all likelihood, come 3 February 2014, those
companies will still have to pay their remaining 25 percent
liability, regardless of the outcome of the next election, as:
in the absence of a definitive statement on the matter from the
opposition, the general view is that the Government is unlikely to
give up the amount of revenue the carbon tax will generate,
particularly in a budget deficit year and in the face of the mining
super profits tax failing to yield the anticipated millions of
dollars revenue expected;
should the Abbott-led Coalition win power, any repeal of the
carbon tax will likely take some time. Opposition Climate Change
spokesman Greg Hunt indicated his party's aim is to repeal the
carbon tax within six months. The remaining 25 percent liability
will fall due under five months. Any legislation to repeal the
carbon tax will need to be drafted, debated before Parliament and
supported by the Senate before being passed; and
if the Rudd Labour Government remains in power, the current
carbon tax which originally was set to be fixed for a three year
period, will be reduced to a two year period, before converting to
an emissions trading scheme from 1 July 2014. Liability for the
carbon tax will remain in place until then.
Unless there is a successful High Court challenge to the carbon
tax (and currently there is one such challenge before the High
Court) whereby the High Court grants an injunction to the
successful applicant suspending the operation of the carbon tax, it
is unlikely that companies will be able to escape liability for the
remaining 25 percent due on 3 February 2014.
We will keep you up to date with how this scenario
In September 2009 the NSW Government announced that by way of an amendment to the Trees (Disputes Between Neighbours) Act 2006 the Land and Environment Court would be given the power to resolve disputes between neighbours over high, dense hedges that severely affected views and sunlight.
The lapsing provisions within the SPA, both for development applications and approvals, are a necessary evil.
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