OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT (TRIAL DESTRUCTION FACILITIES AND OTHER MEASURES) REGULATION 2013 (SLI NO 123 OF 2013) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT (TRIAL DESTRUCTION FACILITIES AND OTHER MEASURES) REGULATION 2013 (SLI NO 123 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 123

Issued by Authority of the Parliamentary Secretary for Sustainability and Urban Water

Subject - Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

Ozone Protection and Synthetic Greenhouse Gas Management Amendment
(Trial Destruction Facilities and Other Measures) Regulation 2013

The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) controls the manufacture, import, export, use and destruction of ozone depleting substances (ODSs) and synthetic greenhouse gases (SGGs). The Act implements Australia's obligations under the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol) and the Kyoto Protocol to the United Nations Framework Convention on Climate Change.

Section 70 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition, section 45A of the Act provides that regulations may make provision for a range of activities in relation to scheduled substances, including their disposal, storage, use or handling.

Section 13 of the Act contains provisions which prohibit a person from manufacturing, importing or exporting SGGs or importing equipment containing SGGs unless the person holds a controlled substances licence which allows the manufacture, import or export of SGGs (subsection 13(1A) of the Act) or an SGG/ODS equipment licence which allows the import of SGG equipment and ODS equipment. SGG equipment is defined in section 8D of the Act, but does not include equipment, or a product, prescribed by the regulations (see paragraph 8D(1)(c) of the Act). ODS equipment is defined in section 8C of the Act as air-conditioning equipment, or refrigeration equipment, that contains a substance that is a hydrochlorofluorocarbon (HCFC) or, but for section 9, would be an HCFC.

A controlled substances licence is not required if the import or manufacture of the SGGs is in the circumstances prescribed by the regulations (see paragraph 13(1A)(b) of the Act). In addition, an ODS/SGG equipment licence is not required if equipment has been prescribed for the purposes of paragraph 8D(1)(c) of the Act.

The Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) contain provisions relating to refrigerant destruction facilities (regulation 114), extinguishing agent destruction facilities (regulation 306) and the discharge of scheduled substances (regulation 400). The Minister may approve a refrigerant destruction facility or an extinguishing agent destruction facility if the Minister is satisfied that a facility can operate in a way that is consistent with Australia's obligations under the Montreal Protocol (subregulations 114(3) and 306(4)).

The Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Trial Destruction Facilities and Other Measures) Regulation 2013 (the Regulation) amends the Principal Regulations to:

(a) prescribe, for the purposes of paragraph 8D(1)(c) and subsection 13(1A) of the Act, a medical device or medicine, and a veterinary device or veterinary medicine. The effect of this amendment is that a medical device or medicine, and a veterinary device or veterinary medicine, are not captured within the definition of SGG equipment (and therefore a person importing these devices or medicines does not require an ODS/SGG equipment licence), and a controlled substances licence is not required for the manufacture or import of SGGs to be wholly used in medical devices, medicine, veterinary devices or veterinary medicine. As a result, the importer or the manufacturer of SGGs or SGG equipment is not liable to pay the relevant levies imposed under the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 and the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995.

(b) allow for trials of refrigerant destruction facilities and extinguishing agent destruction facilities. The purpose of the trials is to determine whether a facility is able to meet the destruction standards specified in the Montreal Protocol, namely a destruction and removal efficiency (DRE) of 99.99 per cent. If a trial is successful, a person may subsequently apply for approval to operate a refrigerant destruction facility or an extinguishing agent destruction facility under subregulations 114(2) or 306(2) of the Principal Regulations, respectively.

The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

Details of the Regulation are set out in the Attachment.

The amendments which prescribe the circumstances for the purposes of paragraph 8D(1)(c) and subsection 13(1A) of the Act arose following requests from importers of SGGs for exemptions for this purpose. Following consultation with these importers in relation to their requests, the Department of Sustainability, Environment, Water, Population and Communities took into consideration the impact that the existing licensing and levy requirements have on these stakeholders in preparing the Regulation. Broader consultation was not considered necessary as the Regulation would only impact a small group of importers of SGGs and would positively benefit all affected stakeholders.

In addition, consultation was not undertaken with respect to the amendments to allow for trial destruction facilities because they would not substantially alter existing arrangements for destruction facilities approved under the Principal Regulations. Currently, one refrigerant destruction facility is approved. Consultation was also deemed unnecessary because successful trials will help promote Australian destruction technologies at Montreal Protocol meetings.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on 1 July 2013.

ATTACHMENT

Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Trial Destruction Facilities and Other Measures) Regulation 2013

Section 1 - Name of Regulation

This section provides that the title of the regulation is the Ozone Protection and Synthetic Greenhouse Gas Management Amendment (Trial Destruction Facilities and Other Measures) Regulation 2013 (the Regulation).

Section 2 - Commencement

This section provides for the Regulation to commence on 1 July 2013.

Section 3 - Authority

This section provides that the Regulation is made under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act).

Section 4 - Schedule(s)

This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.

Schedule 1 - Amendments

Item 1 -At the end of regulation 2

This item amends regulation 2 of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) by adding definitions of medical device, medicine, veterinary device and veterinary medicine.

Medical device and medicine has the same meaning as given by the Therapeutic Goods
Act 1989 (the TG Act) (medical device is defined in section 41BD of the TG Act and medicine is defined in section 3 of the TG Act).

These definitions are for adoption as they are commonly accepted within the industry. In addition, before a medical device can be lawfully imported, manufactured, exported or supplied in Australia, it must be included in the Australian Register of Therapeutic Goods (the Register), unless the device is covered by an exemption from inclusion in the Register, or an approval or an authorisation under the TG Act. Adopting this definition of medical device for the purposes of the Principal Regulations will ensure that there is a common understanding of types of devices that fall within the scope of this term.

The definition of medical device in section 41BD of the TG Act includes a reference to any 'instrument, apparatus, appliance, material, or other article'. The reference to 'appliance' in this definition does not, for example, include a reference to refrigerators or air conditioners used in laboratories or hospitals.

The definition of veterinary device is based on the definition of medical device, with the following differences:

(a) a veterinary device is used for animals;

(b) a reference to a veterinary device being used "to diagnose, prevent, monitor, treat or alleviate a condition or an infestation of the animal by a pest" is included.

The definition of veterinary medicine has the same meaning as veterinary chemical product in the Agricultural and Veterinary Chemicals Code Act 1994.

Item 2 - At the end of regulation 2A

Subsection 8D(1) of the Act defines SGG equipment as:

(a) equipment, or a product, that contains a substance that is an HCFC or a PFC; or

(b) equipment, or a product, that contains a substance that is sulphur hexafluoride;

but does not include:

(d) equipment, or a product, specified in a legislative instrument made by the Minister.

Currently regulation 2A of the Principal Regulations prescribes equipment and products for the purposes of paragraph 8D(1)(c) of the Act. The effect of this regulation is that equipment and products prescribed for the purposes of paragraph 8D(1)(c) of the Act are not taken to be SGG equipment for the purposes of the Act. Equipment that is not taken to be SGG equipment for the purposes of the Act is consequently not subject to the licensing regime under the Act and therefore not subject to the import levy imposed under subsection 4A(1) of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 (the Import Levy Act). This is because the obligation to pay the levy is only imposed on the holders of an ODS/SGG equipment licence.

This item inserts new paragraphs (c) and (d) into regulation 2A of the Principal Regulations. These new paragraphs prescribe a medical device or medicine and a veterinary device or veterinary medicine for the purposes of paragraph 8D(1)(c) of the Act. The amendment has the effect of exempting importers of a medical device, medicine, a veterinary device or veterinary medicine that contain synthetic greenhouses gases (SGG) from the requirement to hold an ODS/SGG equipment licence under subsection 13(6A) of the Act and the requirement to pay the import levy imposed under subsection 4A(1) of the Import Levy Act.

Item 3 - Paragraph 3(1)(a)

Subsection 13(1A) of the Act provides that a person must not manufacture, import or export an SGG unless:

(a) the person holds a controlled substances licence that allows the person to do so; or

(b) the manufacture, import or export is in circumstances that are prescribed by the regulations.

A controlled substances licence enables a person to manufacture, import or export SGGs (see subsection 13A(2) of the Act). Currently subregulation 3(1) of the Principal Regulations prescribes the circumstances for the purposes of subsection 13(1A) of the Act, with the effect that a controlled substances licence is not required for the manufacture or import of SGGs occurs in the prescribed circumstances. In addition, subsections 3A(2) of the Import Levy Act and 3A(2) of the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy)
Act 1995 (the Manufacture Levy Act) exempt the holder of a controlled substances licence from the requirement to pay the import levy and the manufacture levy where the import or the manufacture of the SGG is in circumstances that are prescribed for the purposes of paragraph 13(1A)(b) of the Act.

This item repeals current paragraph 3(1)(a) of the Principal Regulations and replace it with new subparagraphs (3)(1)(a)(i) and 3(1)(a)(ii). Subparagraph (3)(1)(a)(i) replicates the existing paragraph 3(1)(a) of the Principal Regulations.

Subparagraph 3(1)(a)(ii) prescribes the manufacture or import of an SGG by a person in circumstances where the whole amount of the SGG is used in a medical device, medicine, a veterinary device or veterinary medicine. This amendment has the effect of exempting the manufacturers or importers of SGGs from the requirement to hold a controlled substances licence under subsection 13A(2)(c) of the Act, but only where the whole amount of the SGG is to be used for the prescribed circumstances. A consequence of this amendment is that importers or manufacturers of SGGs that are wholly used for the purposes of the prescribed circumstances are not required to pay the import levy imposed under subsection 3A(1) of the Import Levy Act or the manufacture levy imposed under subsection 3A(1) of the Manufacture Levy Act.

Item 4 - Regulation 110 (definition of refrigerant destruction facility)

Currently, regulation 110 of the Principal Regulations defines refrigerant destruction facility as a facility approved under regulation 114. There is no reference to the person approved to operate the facility.

This item repeals the current definition of refrigerant destruction facility in
regulation 110 of the Principal Regulations and replaces it with a revised definition to clarify that a refrigerant destruction facility means a facility that a person is approved to operate under regulation 114. This revised definition acknowledges that a person approved to operate a refrigerant destruction facility plays a crucial role in ensuring the requirements of the Act and the Principal Regulations are met.

Item 5 - At the end of subregulation 112(2) (before the penalty)

Currently subregulation 112(2) of the Principal Regulations provides that on or after
1 July 2005, a person must not acquire, possess or dispose of bulk refrigerant unless the person is:

* the holder of a refrigerant trading authorisation or a refrigeration and air conditioning equipment manufacturing authorisation (paragraph 112(2)(a)); or

* the operator of a refrigerant destruction facility (paragraph 112(2)(b)).

Bulk refrigerant is relevantly defined in subregulation 112(1) to mean refrigerant other than halon, but not including refrigerant contained in refrigeration and air conditioning equipment.

This item inserts a new paragraph 112(2)(c) into the Principal Regulations to enable a person approved to conduct a trial of a refrigerant destruction facility under regulation 115 to acquire, possess or dispose of bulk refrigerant. The effect of this amendment is that a person approved to conduct a trial of a refrigerant destruction facility under regulation 115 does not commit an offence under the Principal Regulations if they acquire, possess or dispose of bulk refrigerant.

Item 6 - Subregulation 112(3) (note)

This item repeals the note to subregulation 112(3) and replaces it with a new note which updates the URL reference for locating holders of refrigerant trading authorisations.

Item 7 - At the end of subregulation 113(1) (before the penalty)

Currently subregulation 113(1) of the Principal Regulations provides that on or after

1 July 2005, a person must not possess halon unless the person is:

* the holder of a special halon permit (paragraph 113(1)(a)); or

* the operator of a refrigerant destruction facility (paragraph 113(1)(b)).

Halon is relevantly defined in section 7 of the Act to mean any substance referred to in Part II of Schedule 1 to the Act, whether existing alone or in a mixture.

This item inserts a new paragraph 113(1)(c) into the Principal Regulations which allows a person approved to conduct a trial of a refrigerant destruction facility under regulation 115 to possess halon. The effect of this amendment is that a person approved to conduct a trial of a refrigerant destruction facility under regulation 115 does not commit an offence under the Principal Regulations if they possess halon.

Item 8 - At the end of subregulation 114(2)

Currently subregulation 114(2) specifies the information that must be included in an application for a refrigerant destruction facility that is submitted to the Minister for approval.

This item inserts a new paragraph 114(2)(d) into the Principal Regulations. The new paragraph requires an application to the Minister to operate a refrigerant destruction facility under regulation 114 to include information about the results of the trial once the trial is successfully completed (in circumstances where the facility was the subject of a trial under regulation 115). This will allow the Minister to better ascertain whether the facility can meet Australia's obligations under the Montreal Protocol.

Item 9 - Subregulation 114(3)

This item amends subregulation 114(3) by removing the reference to the Minister approving "a facility only if he or she" is satisfied that the facility can operate in a way that is consistent with Australia's obligations under the Montreal Protocol and it replaces it with a reference to the Minister approving "a person to operate a facility only if the Minister" is satisfied that the facility can operate in a way that is consistent with Australia's obligations under the Montreal Protocol.

This is a consequential amendment arising from the amendment to the definition of refrigerant destruction facility in item 4 above.

Item 10 - At the end of regulation 114

This item inserts new subregulation 114(4) in the Principal Regulations to enable the Minister, when approving a refrigerant destruction facility or at any time afterwards, to impose, or vary conditions in writing on the approval.

Item 11 - At the end of Subdivision 6A.2.1

This item inserts new regulation 115 in the Principal Regulations to allow the Minister to approve a person to conduct a trial of a refrigerant destruction facility. The purpose of the trial is to determine whether the facility can meet Australia's obligations under the Montreal Protocol, namely whether it can achieve a DRE of 99.99 per cent. The outcome of the refrigerant destruction facility trial determines whether the Minister may approve the ongoing operation of a refrigerant destruction facility under regulation 114.

Regulation 115 is modelled on regulation 114 of the Principal Regulations.
Subregulation 115(1) allows the Minister to approve an application for a person to conduct a trial of a refrigerant destruction facility to determine whether the facility is able to operate in a manner that is consistent with Australia's obligations under the Montreal Protocol when destroying refrigerant.

Subregulation 115(2) specifies the information that must be included in a written application for a trial of a refrigerant destruction facility. Subregulation 115(3) allows the Minister, at any time, to impose or vary conditions on the approval of a person to conduct a trial. Any imposition or variation of conditions on an approval must be in writing.

Subregulation 115(3) also specifies the types of conditions that may be imposed on the approval. The types of conditions specified in subregulation 115(3) are not intended to be exhaustive and the Minister can impose other conditions that the Minister considers appropriate in the circumstances.

Subregulation 115(4) inserts a definition of ODS for the purposes of regulation 115. ODS is defined as having the same meaning as given by section 65A of the Act. Section 65A relevantly defines ODS as a substance referred to in any of Parts I to VII of Schedule 1 of the Act, whether existing alone or in a mixture. The substances listed in these Parts of Schedule 1 of the Act are those covered in the Montreal Protocol.

Item 12 - Subdivision 6A.2.1A (note after heading)

This amendment makes a consequential amendment to the note under the heading to Subdivision 6A.2.1A to reflect the fact that item 11 inserts new regulation 115 into the Principal Regulations.

Item 13 - Regulation 301 (definition of approved extinguishing agent destruction facility)

Currently regulation 301 of the Principal Regulations defines an approved extinguishing agent destruction facility as a facility of a kind mentioned in regulation 306, operated by a person who holds a current approval under that regulation.

This item repeals this definition and replaces it with a definition to clarify that an approved extinguishing agent destruction facility means a facility that a person is approved to operate under regulation 306. This revised definition acknowledges that a person approved to operate an extinguishing agent destruction facility plays a crucial role in ensuring the requirements of the Act and the Principal Regulations are met. Further, the revised definition ensures consistency between the definitions of approved extinguishing agent destruction facility and refrigerant destruction facility in regulation 110 (see item 4 above).

Item 14 - Regulation 301

This item inserts a new definition of destruction equipment into the Principal Regulations. This term is currently used in paragraph 306(5)(a) and is used in subregulation 307(3). The definition provides that destruction equipment is equipment used for the destruction of extinguishing agents.

Item 15 - At the end of subregulation 303(2) (before the penalty)

Currently subregulation 303(2) of the Principal Regulations provides that on or after

1 July 2005, a person must not acquire, possess or dispose of bulk extinguishing agent unless the person is:

* the operator of an approved extinguishing agent destruction facility

(paragraph 303(2)(a)); or

* the holder of an extinguishing agent trading authorisation (paragraph 303(2)(b)); or

* the holder of a special circumstances exemption for the acquisition, possession or disposition of bulk extinguishing agent (paragraph 303(2)(c)); or

* the officer in charge of a fire station (paragraph 303(2)(d)).

Bulk extinguishing agent is relevantly defined in subregulation 303(1) of the Principal Regulations to mean extinguishing agent, other than halon, that is, or has been, for use in fire protection equipment, but does not include an agent that is contained in fire protection equipment.

This item inserts new paragraph 303(2)(e) into the Principal Regulations which allows a person approved to conduct a trial of an extinguishing agent destruction facility under regulation 307 to acquire, possess or dispose of bulk extinguishing agent. The effect of this amendment is that a person approved to conduct a trial of an extinguishing agent destruction facility under regulation 307 does not commit an offence under the Principal Regulations if they acquire, possess or dispose of bulk extinguishing agent.

Item 16 - At the end of subregulation 304(1) (before the penalty)

Currently subregulation 304(1) of the Principal Regulations provides that on or after

1 November 2005, a person must not possess halon that is, or has been, for use in fire protection equipment unless:

* subregulation 304(1) applies the equipment (i.e. the equipment is used by the Defence Force, is installed in, or carried in, an aircraft, installed in an enclosed space containing machinery of a vessel) (paragraph 304(1)(a)); or

* the halon is for use in fire protection equipment and the person is the holder of a special halon permit (paragraph 304(1)(b)); or

* the person is the holder of a special circumstances exemption that covers the possession of the halon (paragraph 304(1)(c)); or

* the person is the operator of an approved extinguishing agent destruction facility (paragraph 304(1)(d)).

This item inserts new paragraph 304(1)(e) into the Principal Regulations which allows a person approved to conduct a trial of an extinguishing agent destruction facility under regulation 307 to possess halon that is, or has been, for use in fire protection equipment. The effect of this amendment is that a person approved to conduct a trial of an extinguishing agent destruction facility under regulation 307 does not commit an offence under the Principal Regulations if the person possesses halon that is, or has been, for use in fire protection equipment.

Item 17 - Paragraph 306(2)(d)

Currently paragraph 306(2)(d) of the Principal Regulations specifies that applications to operate an extinguishing agent destruction facility must include evidence that equipment to be used for the destruction of extinguishing agents was, no more that 2 years before the date of the application, tested and approved by a person accredited by the National Association of Testing Authorities (NATA), Australia to conduct the testing.

This item repeals paragraph 306(2)(d) of the Principal Regulations and substitutes it with a revised paragraph 306(2)(d). Revised paragraph 306(2)(d) requires an application to operate an extinguishing agent destruction facility to include information about the results of the trial in circumstances where the facility was the subject of a trial under regulation 307.

The revised paragraph 306(2)(d) does not contain a requirement that the equipment used for destruction be tested and approved by NATA Australia. This requirement is being removed as the process for destruction facility equipment to be tested by the NATA Australia is a lengthy one. Facility procedures need to be well established and well documented with consistent and repeat results (measured against specific standards) over the testing period. Further, there is currently no existing NATA process to test destruction facility equipment. Instead a requirement to provide results of a trial is considered more appropriate to demonstrate the operational capacity of a destruction facility.

In the event that a trial has not taken place and a person applies to operate an extinguishing agent destruction facility the requirements of subregulation 306(5) continue to apply. This ensures that equipment to be used to destroy extinguishing agents is fit for purpose (paragraph 306(5)(a)) and the 99.99 per cent DRE rate is met (paragraph 306(5)(b)).

Item 18 - Subregulation 306(4)

This item amends subregulation 306(4) by removing the reference to the Minister approving "a facility only if he or she" is satisfied that the facility can operate in a way that is consistent with Australia's obligations under the Montreal Protocol and replacing it with a reference to the Minister approving "a person to operate a facility only if the Minister is satisfied that the facility can operate in a way that is consistent with Australia's obligations under the Montreal Protocol.

This item is a consequential amendment arising from the amendment to the definition of extinguishing agent destruction facility in item 13 above.

Item 19 - At the end of Subdivision 6A.4.1

This item inserts new regulation 307 in the Principal Regulations to allow the Minister to consider an application for a trial of an extinguishing agent destruction facility. The purpose of the trial is to determine whether an extinguishing agent destruction facility can meet Australia's obligations under the Montreal Protocol, namely whether it can achieve a DRE of 99.99 per cent. The outcome of the extinguishing agent destruction facility trial determines whether the Minister may approve the ongoing operation of an extinguishing agent destruction facility under regulation 306.

Regulation 307 is modelled on regulation 306 of the Principal Regulations.
Subregulation 307(1) allows the Minister to give approval for a person to conduct a trial of an extinguishing agent destruction facility to determine whether the facility is able to operate in a manner that is consistent with Australia's obligations under the Montreal Protocol when destroying extinguishing agent.

Subregulation 307(2) specifies the information that must be included in a written application to conduct a trial of an extinguishing agent destruction facility.

Subregulation 307(3) specifies that the Minister's approval of a trial extinguishing agent destruction facility is subject to the condition that the destruction equipment is fit for the purpose for which it is to be used. This ensures that the equipment utilised in the destruction process is safe and appropriate.

Subregulation 307(4) allows the Minister, at any time, to impose or vary, other conditions on the approval of a person to conduct a trial. Any imposition of conditions on an approval must be in writing. Subregulation 307(4) also specifies the types of conditions that may be imposed on the approval. The types of conditions specified in subregulation 307(4) are not intended to be exhaustive and the Minister could impose other conditions that the Minister considers appropriate in the circumstances.

Subregulation 307(5) inserts a definition of ODS for the purpose of regulation 307. ODS is defined as having the same meaning as given by section 65A of the Act. Section 65A relevantly defines ODS as a substance referred to in any of Parts I to VII of Schedule 1 of the Act, whether existing alone or in a mixture. The substances listed in these Parts of Schedule 1 of the Act are those covered in the Montreal Protocol.

Item 20 - Subdivision 6A.4.2 (note after heading)

This amendment makes a consequential amendment to the note under the heading to Subdivision 6A.4.2 to reflect the fact that item 19 inserts new regulation 307 into the Principal Regulations.

Item 21 - Regulation 400

This item is required as a consequence of item 22 below.

Item 22 - At the end of regulation 400 (before the note)

This item inserts new paragraph 400(1)(g) and new subregulations 400(2) and 400(3) into the Principal Regulations.

Regulation 400 of the Principal Regulations specifies the circumstances whereby the discharge of a scheduled substance will not constitute an offence under subsection 45B(1) of the Act.

Paragraph 400(1)(g) allows for the discharge of a substance where the substance is being tested to determine what the substance is, or to determine the composition of the substance or the physical and chemical properties of a substance. Examples of testing may include an importer of bulk refrigerant or scheduled substances taking a gas sample to determine its composition, or a domestic refrigerant handler conducting an identification test when repairing refrigeration and air conditioning equipment.

However, paragraph 400(1)(g) is not intended to capture the discharge of scheduled substances from equipment where a person decides to 'test' whether the substance is present in equipment. For example, releasing refrigerant from a cylinder or equipment merely to determine if the refrigerant is present in the cylinder or equipment is not captured by this paragraph.

Subregulation 400(2) sets out further circumstances whereby a person may discharge a scheduled substance without committing an offence under subsection 45B(1) of the Act. In particular, paragraph 400(2) allows a person to discharge a scheduled substance without committing an offence under subsection 45B(1) of the Act in circumstances where the person is approved to operate a refrigerant destruction facility or an approved extinguishing agent destruction facility, or approved to conduct a trial of those facilities and the discharge occurs as a result of either:

(a) the facility operating, or the trial of the facility being conducted, in accordance with the approval relating to the facility or the trial; or, or a trial of the facility being conducted, in accordance with the approval relating to the facility or trial; or

(b) an accidental discharge that occurs during the operation of a facility, or a trial of the facility being conducted, in accordance with the approval relating to the facility or trial.

The references in paragraph 400(2)(b) to the 'approval relating to the facility or trial' are references to the approval granted under either regulations 114 or 306 or regulations 115 or 307 to a person referred to in paragraph 400(2)(a) to operate the facility where the discharge occurs.

Subregulation 400(2) is intended to cover any discharge that occurs during the operation of an approved facility, including discharge of 0.01 per cent which is not captured by a facility's DRE of 99.99 per cent or accidental discharges due to unforeseen circumstances, such as unexpected equipment failure, power failure or fire damage. The paragraph would not cover circumstances where a person, for example, deliberately releases refrigerant or extinguishing agent outside of the approval conditions for the facility.

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