The National Greenhouse and Energy Reporting Act 2007 (Cth)
(NGER Act) came into force on 1 July 2008. In this Update we
look at the implications for Councils and their
The NGER Act requires 'controlling
corporations' (constitutional corporations that do not
have a holding corporation incorporated in Australia) that emit
greenhouse gases or produce or consume energy to register with
and report annually on their emissions or energy use.
A controlling corporation is required to meet the
obligations under the NGER Act if its greenhouse gas emissions
or energy use and production is in excess of set thresholds in
a given financial year. While the thresholds are large for the
first stage (2008-09 financial year), more organisations are
likely to be affected down the track as the thresholds are due
to be reduced in following financial years.
Organisations should make an assessment now of whether their
activities will see them meeting the thresholds. The 2008-09
financial year thresholds are 125kt or more of CO2-e emissions
for a corporate group and 500TJ or more of energy use or
production. The thresholds may also be met by facilities
controlled by an organisation where the facility emits more
than 25kt or more of CO2-e emissions or uses or produces more
than 100TJ of energy.
Corporations that meet these thresholds have until 31 August
2009 to register with the Greenhouse and Energy Data Officer
(GEDO), a government body set up to administer
the NGER Act. These corporations will then have until 31
October 2009 to report on their emissions and energy production
Will the NGER Act apply to local governments?
A key issue is whether local governments are
'constitutional corporations', and therefore
subject to registration and reporting duties under the NGER
A 'constitutional corporation' is defined
under the NGER Act as a corporation to which paragraph 51(xx)
of the Constitution applies, that is a 'trading or
financial corporation formed within the limits of the
Whether or not a local government is considered to be a
trading or financial corporation will depend on the particular
profile of the individual local government and will require
consideration of whether any of its activities are
Any local governments that are unsure whether their activities
will see them categorised as a trading corporation should seek
Relevance to local government
The registration and reporting frameworks established under
the NGER Act will form the basis for determining liability to
purchase and surrender permits under the Australian Carbon
Pollution Reduction Scheme (Scheme) when it
commences in 2010.
The Federal Government's Green Paper indicates that
waste is likely to be a 'covered sector' under
the Scheme. Therefore the measurement and reporting of carbon
emissions under the NGER Act and otherwise, may become
increasingly relevant to local governments as operators of
landfills and other waste processing facilities. Road and other
infrastructure contracting works which a Council may be
involved in could also be energy and carbon emission
Whether or not your Council is subject to the NGER Act,
undertaking an assessment of the level of energy use and carbon
emissions of your operations is important for preparing for the
impacts of climate change and the proposed Scheme.
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This publication is intended as a first point of
reference and should not be relied on as a substitute for
professional advice. Specialist legal advice should always be
sought in relation to any particular circumstances and no
liability will be accepted for any losses incurred by those
relying solely on this publication.
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