Corporations which are required to report energy consumption, energy production and greenhouse gas emissions under the National Greenhouse and Energy Reporting System (NGERS) must apply to register before 31 August 2009 for the 2008-2009 financial year. The report containing the data on energy consumption and production; and greenhouse gas emissions must then be submitted to the regulator by 31 October 2009.
A corporation is required to register and report if it is a "controlling corporation" and meets a corporate reporting threshold, or a member of its corporate group has operational control over a facility that meets a facility reporting threshold.
A controlling corporation is a constitutional corporation that does not have a holding company incorporated in Australia. A constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies (namely, foreign corporations and trading or financial corporations formed within the limits of the Commonwealth).
For the 2008/2009 financial year, the thresholds are:
- Corporate group threshold: 125,000 tonnes of CO2-e emissions or 500 terrajoules of energy production or use
- Facility threshold: 25,000 tonnes of CO2-e emissions or 100 terrajoules of energy production or use.
To determine whether a controlling corporation is covered by the NGERS, it is necessary to consider:
- what corporate entities comprise the controlling corporation's group;
- whether the controlling corporation or any members of its group have "operational control" over a "facility";
- whether the facility exceeds the facility based threshold or the controlling corporation's group activities result in the corporate based threshold being triggered.
The National Greenhouse and Energy Reporting Act 1997, National Greenhouse and Energy Reporting Regulations 2008 and the National Greenhouse and Energy Reporting Guidelines set out the parameters of what constitutes "operational control" and what comprises a "facility" ( see our Legal Update – June 2008).
The registration process
In order to register, a corporation will need to:
- Identify the members of the corporate group and nominate an entity responsible for a joint venture or partnership, if applicable;
- Prepare a registration form using the NGER Registration Application tool and User Guide (available at the Department of Climate Change website: www.climatechange.gov.au/reporting/register.html);
- Print the completed form and have it signed by the Chief Executive Officer;
- Post it to the Greenhouse and Energy Data Officer (GEDO) before the due date of 31 August 2009.
Once the GEDO has received a signed registration application form, the application will be processed to ensure that all the necessary information is provided and the controlling corporation will be added to the National Greenhouse and Energy Register. As the registration process may take some time corporations are encouraged to apply for registration ahead of the due date.
Once a corporation has been registered, the primary contact person will receive a login and password for the Online System for Comprehensive Activity Reporting (OSCAR), a web–based data collection tool for recording of energy, waste and greenhouse data.
Reporting Transfer Certificates
Proposed amendments to the National Greenhouse and Energy Reporting Act 2007 were released by the Minister for Climate Change, Penny Wong on 23 June 2009. These amendments will allow a corporation with financial control of a facility to apply to the GEDO for a Reporting Transfer Certificate. The Reporting Transfer Certificate will enable the corporation with financial control of a facility to voluntarily take on responsibility for reporting under NGERS, in place of the corporation with operational control of a facility.
The amendment is aimed at ensuring consistency between the NGERS and the proposed CPRS, which will provide for liability to be transferred from an entity with operational control to an entity that has financial control, by mutual agreement and with scheme administrator consent ( see our Legal Update – 11 March 2009). It is intended that the Reporting Transfer Certificate concept will apply for an interim time period, until the CPRS commences on 1 July 2011.
Minister Wong commented that "this amendment ... is consistent with the Government's commitment to reduce, where possible, the reporting burden on industry through the streamlining of greenhouse and energy reporting through a single national reporting framework".
What you should do
As highlighted above, controlling corporations need to consider whether their activities or activities of their member group will exceed either the corporate or facility thresholds in order to determine whether it is necessary to register and report under the NGERS. This exercise will require consideration of the concepts of "operational control" and "facility".
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.