Commonwealth Numbered Regulations - Explanatory Statements

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OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 136 OF 2008)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 136

 

(Issued by the authority of the Minister for the Environment, Heritage and the Arts)

 

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

 

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2008 (No. 1)

 

Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (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.

 

The Act provides measures to meet Australia’s obligations under the Vienna Convention, the Montreal Protocol and the United Nations Framework Convention on Climate Change. Practically the Act provides measures to protect the ozone layer from ozone depleting substances and to minimise the emissions of synthetic greenhouse gases. Under the Act, ozone depleting substances and synthetic greenhouse gases are listed as scheduled substances.

 

The Regulations have been prepared in response to changes in industry and government procedures and will improve the operation of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations). The Principal Regulations control the acquisition, use, storage and disposal of ozone depleting substances and synthetic greenhouse gases.

 

The Regulation amendments will streamline the existing operational provisions of the Principal Regulations through minor administrative amendments to existing regulatory arrangements for methyl bromide supply, the refrigeration and air conditioning, and fire protection sectors.

 

Subsection 45A(1) of the Act enables regulations to be made regulating certain matters including the sale or purchase, or any other acquisition or disposal of, scheduled substances (paragraph 45A(1)(a)), the storage, use or handling of scheduled substances (paragraph 45A(1)(b)), and labelling requirements for scheduled substances and for products that contain scheduled substances (paragraph 45A(1)(c)). Regulations may also be made under this subsection which confer functions on persons or bodies (including non-government bodies) in relation to the matters specified in paragraphs 45A(1)(a), 45A(1)(b) and 45A(1)(c). Subsection 45A(2) clarifies that regulations may make provision for regulating something by providing that it must not be done unless specified conditions are met.


 

The Regulations:

§         include a new offence of strict liability for a person who holds a refrigerant handling licence and carries out refrigerant handling work other than the type of work specified on the person’s licence;

§         enable the Minister to delegate powers under section 123 for the suspension or cancellation of industry permits within the air conditioning industry;

§         update the reference to the automotive industry listed code of practice under table 135;

§         add a new condition to the existing licence conditions under regulation 135 to ensure that a person only carries out refrigerant handling work that the person is entitled to undertake as specified in their licence;

§         amend the level for approving feedstock permits, from the Secretary level to the Minister under regulations 200, 241, 242, 243, 244 and 245;

§         enable the Minister to delegate powers under section 315 which allows for the suspension or cancellation of industry permits within the fire industry; and

§         include a reference to the approved exemption and intermediate supplier lists for the year 2009 which permit the supply and use of methyl bromide, outside the quarantine and pre-shipment category.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations will commence on the day after they are registered (Schedule 1), and on 1 January 2009 (Schedule 2).


Attachment

 

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2008 (No. 1)

Details of the Regulations are as follows:

 

Regulation 1 provides that the name of the Regulations is the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence as follows:

(a) on the day after they are registered – regulations 1 to 3 and Schedule 1;

(b) on 1 January 2009 – Schedule 2.

Regulation 3 – Amendment of the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995

 

This regulation provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) are amended as set out in Schedules 1 and 2.

 

 

Schedule 1 – Amendments

 

Item [1] – After subregulation 111(1)

This item inserts a new subregulation (1A) into the Principal Regulations which makes it an offence for a person who holds a refrigerant handling licence to carry out refrigerant handling work other than the type of work that is specified on the licence. The purpose of this new offence is to ensure that persons who hold refrigerant handling licences only carry out the work for which they have been assessed as meeting the requirements. Otherwise, persons may carry out refrigerant handling work for which they have not been trained. The maximum penalty for this offence is 10 penalty units (equivalent to $1,100 for a natural person and $5,500 for a body corporate).

 

Item [2] – Subregulation 111(3)

This item is required as a consequence of item [1] (above) and clarifies that an offence against subregulation (1A) (in addition to an offence against subregulation (1)) is an offence of strict liability.

 

The new offence inserted by item 1 (above) is similar to the offence in existing subregulation 111(1) of the Principal Regulations. Subsection 111(1) makes it an offence for a person to handle a refrigerant unless the person holds a licence to do so or the person is engaged in a phase of the manufacture of RAC equipment, and is supervised by the holder of an appropriate restricted refrigeration and air conditioning licence. The new offence takes it a step further to make it an offence for a person to carry out work other than the type of work specified in the licence.

Making the new offence inserted by item 1 (above) an offence of strict liability ensures that it is consistent with other similar offences in the Principal Regulations (see for example, subregulation 112(2)).

 

Item [3] – After subregulation 123(2)

This item inserts new subregulations 123(3) and (4) into the Principal Regulations.

 

New subregulation 123(3) enables the Minister to delegate his or her powers under regulation 123 (including the power to cancel or suspend a refrigeration and air conditioning industry permit) to SES officers in the Department of the Environment, Water, Heritage and the Arts on the basis of administrative ease. Refrigeration and air conditioning industry permits allow for the acquisition, use, storage and disposal of fluorocarbon refrigerants. Suspension or cancellation of such permits may be required where a person is no longer deemed to be a fit and proper person, contravenes a condition of their licence, or no longer has the necessary competency to carry out the work listed under the licence.

 

New subregulation 123(4) clarifies that when exercising any of the Minister’s powers under regulation 123, the delegate must comply with any directions given by the Minister.

 

Item [4] – Subparagraph 135(1)(c)(ii)

This item contains a consequential amendment to subparagraph 135(1)(c)(ii) and is required as a consequence of item [5] (below).

 

Item [5] – After paragraph 135(1)(c)

This item amends subregulation 135(1) by imposing an additional condition on the grant of a refrigeration and air conditioning licence. The additional condition is that a person only carries out refrigerant handling work that the person is entitled to undertake as specified in their licence. Otherwise, persons may carry out refrigerant handling work for which they have not been trained.

 

Item [6] – Table 135, item 34

This item replaces the title of the standard listed at item 34 in Table 135 to the new standard title, “The Australian Automotive Code of Practice for the Control of Refrigerant Gases during Manufacture, Installation, Servicing or Decommissioning of Motor Vehicle Air Conditioners”. As a condition of their licence, a licensee must carry out the work to which the licence relates in accordance with appropriate standards. The current standard listed at table 135 has been replaced by an updated unified code.

 

Item [7] – Regulation 200, definition of approved form, Item [8] – Regulations 241, 242, 243, 244 and 245

These items all omit the references to Secretary in the specified provisions and replace them with references to Minister. The effect of these amendments is to then enable the Minister to delegate his or her powers under these provisions to all relevant SES officers in relation to feedstock permits. Feedstock permits are required in order to use the scheduled substance, methyl bromide, as a feedstock. Currently, the application for, granting of, cancellation and suspension, and review of decisions for feedstock permits are approved only by the Secretary.

 

Changing these references to Minister, to enable the Minister to delegate these powers will ultimately increase the administrative efficiency of these processes under the Principal Regulations.

 

Item [9] – Regulation 245, note

This item omits the current Note to make way for regulation 246 below.

 

Item [10] – After regulation 245

This item inserts a new regulation 246 into the Principal Regulations. New regulation 246 enables the Minister to delegate his or her powers and functions under Division 6A.3 of the Regulations (Disposal and use of scheduled substances) to an SES employee or acting SES employee in the Department of the Environment, Water, Heritage and the Arts. New regulation 246 also clarifies that when exercising any of the Minister’s powers or functions under Division 6A.3, the delegate must comply with any directions given by the Minister.

 

Changing the delegation from the Minister to SES level allows for greater administrative efficiency.

 

Item [11] – After subregulation 315(2)

This item inserts new subregulations 315(3) and (4) into the Principal Regulations. New subregulation 315(3) enables the Minister to delegate his or her powers under regulation 315 (including the power to cancel or suspend a fire protection industry permit) to SES officers in the Department. Fire protection industry permits allow appropriately licensed people to acquire, possess, dispose of or handle fire extinguishants. Suspension or cancellation of these permits may be required where a person is no longer deemed to be a fit and proper person, or contravenes a condition to which the permit is subject.

 

New subregulation 315(4) clarifies that when exercising any of the Minister’s powers under regulation 315, the delegate must comply with any directions given by the Minister.

 


Schedule 2 – Amendments

 

Item [1] – Regulation 200, definition of Non-QPS Exemption List, paragraph (d), Item [2] - Regulation 200, definition of Non-QPS Exemption List, after paragraph (d), Item [3] - Subregulation 213(6) – definition of Non-QPS Intermediate Supplier List, paragraph (d), Item [4] - Subregulation 213(6), definition of Non-QPS Intermediate Supplier List, after paragraph (d)

The purpose of these items is to ensure that there is a definition for and provision is made for an Exemption List for Non-QPS Applications of Methyl Bromide (the List) for 2009 and an Intermediate Supplier List for 2009. The List will detail, for 2009, the exempt use, the individual holders of critical use exemptions, their nominated suppliers and the maximum quantity of methyl bromide that they may purchase from that supplier.

Methyl bromide is a scheduled substance and is controlled under Schedule 1 to the Act. Methyl bromide contributes to the depletion of the ozone layer when released into the atmosphere, and most uses of it are emissive by nature. The Principal Regulations currently regulate the supply and end use of non-quarantine and pre-shipment methyl bromide through record keeping and reporting systems.

 

Australia has an obligation under the Montreal Protocol on Substances That Deplete the Ozone Layer (the Protocol) to ensure that stocks of methyl bromide are only sold and used for authorised purposes. Under the Protocol, non-quarantine and pre-shipment uses of methyl bromide were phased out from 1 January 2005 except where critical use exemptions are granted by Parties to the Protocol or an emergency use is authorised by a party. In 2009 Australia has exemptions approved for the strawberry runner and rice industries.

 

The 2009 Non-QPS Exemption List, and the 2009 Non-QPS Intermediate Supplier List may both be viewed at the Department’s website which is detailed in the Principal Regulations.

 

 



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