Commonwealth Numbered Regulations - Explanatory Statements

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RENEWABLE ENERGY (ELECTRICITY) AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 120 OF 2006)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 120

 

ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND HERITAGE

Renewable Energy (Electricity) Act 2000

Renewable Energy (Electricity) Amendment Regulations 2006 (No. 1)

 

Subsection 161(1) of the Renewable Energy (Electricity) Act 2000 (the Act) provides, in part, that the Governor-General may make regulations prescribing all 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 the legislative framework for the implementation of the Government's mandatory renewable energy target, announced by the Prime Minister on 20 November 1997. The mandatory renewable energy target (the target) is designed to increase the amount of electricity in Australia that is being generated from renewable energy sources. By 2010, an additional 9,500 Giga Watt hours (GWh) of electricity will be required to be supplied from renewable energy sources, raising the contribution that renewable energy sources make to Australia's electricity supply.

 

The Act requires wholesale purchasers of electricity (liable parties) to surrender 'renewable energy certificates' to the Renewable Energy Regulator, or pay a penalty. Liable parties meet a share of the target, in proportion to their share of the national wholesale electricity market. The Act also establishes the framework for renewable energy generators (eligible parties) to create renewable energy certificates that can then be sold to liable parties to meet their requirements under the Act.

 

The Renewable Energy (Electricity) Regulations 2001 (the Principal Regulations) provide the administrative framework to implement the Act in relation to power station accreditation, eligibility requirements for fuel sources, and calculation methods for determining the number of renewable energy certificates that can be claimed.

 

The purpose of the Regulations is to amend the Principal Regulations to update the existing list of prescribed solar water heaters, and their corresponding eligibility for renewable energy certificates, for the purposes of the Act.

 

Details of the Regulations are set out in Attachment A.

 

Subsection 161(2) of the Act provides that draft regulations must be available for public comment for a period of not less than 30 days before the regulations are made. In accordance with subsection 161(2) of the Act, the Regulations have been available for public comment for a period of no less than 30 days. 

 

Details of the public submissions received are set out in Attachment B.

 

It is intended that eligibility for renewable energy certificates for the new solar water heater models be backdated to the date on which certification to Australian Standard 2712:2002 was obtained.  This would prevent manufacturers being disadvantaged by the time required to update the list of eligible solar water heater models in the Principal Regulations. The benefits that the manufacturers gain from the new models being listed in the Principal Regulations would be able to be accessed for past sales, back to the date of certification against Australian Standard 2712:2002. Although the eligibility for renewable energy certificates would be backdated, the Australian Government Solicitor has advised that the proposed amendment would not have a retrospective effect and that subsection 12(2) of the Legislative Instruments Act 2003 would not have any application in respect of the Regulations (this advice is detailed in Attachment C).

 

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

 

The Regulations commenced on the day after they are registered on the Federal Register of Legislative Instruments.

 

 

 

 


Attachment A

 

Details of the Renewable Energy (Electricity) Amendment Regulations 2006 (No. 1)

 

Regulation 1 - Name of Regulations

 

This provides that the name of the Regulations is the Renewable Energy (Electricity) Amendment Regulations 2006 (No. 1).

 

Regulation 2 - Commencement

 

Regulations 1 to 3 and Schedule 1 commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 - Amendment of the Renewable Energy (Electricity) Regulations 2001

 

This Regulation provides for Schedule 1 to amend the Renewable Energy (Electricity) Regulations 2001 (the Principal Regulations).

Schedule 1 Amendments commencing on the day after registration

 

Item 1 -- Schedule 7, Part 2A

This item amends Part 2A of Schedule 7 which relates to solar water heaters with capacities of 700 litres or less, by:

*        inserting additional solar water heater models that have become eligible for renewable energy certificates under the regulations since Part 2A of Schedule 7 was last revised on 15 November 2005;

*        revising renewable energy certificate calculations for existing eligible solar water heater models that have changed since last revised on 15 November 2005; and

*        deleting those solar water heater models for which eligibility has lapsed.

 

Item 2 -- Schedule 7, Part 2B

This item amends Part 2B of Schedule 7 which relates to solar water heaters with capacities of over 700 litres, by:

*        inserting additional solar water heater models that have become eligible for renewable energy certificates under the regulations since Part 2B of Schedule 7 was last revised on 15 November 2005;

*        revising renewable energy certificate calculations for existing eligible solar water heater models that have changed since last revised on 15 November 2005; and

*        deleting those solar water heater models for which eligibility has lapsed.


Attachment B

 

Public Submissions received for the Renewable Energy (Electricity) Amendment Regulations 2006 (No. 1)

 

Submission

From

Date Received

Comment

Date Replied

Agreed or Disagreed

Change made in Amendment Regulations

Rheem/Solahart/

Edwards

17/02/2006

Rheem/Solahart/Edwards requested minor changes to eligibility dates and deletion of duplicated entries.

17/02/2006

Agreed

Yes

 

 

 


 

Our ref. 06025329

24 March 2006

Mr Jon Sibley

Officer of the Renewable Energy Regulator

GPO Box 621

CANBERRA  ACT  2601

Dear Mr Sibley

Proposed amendments to the Renewable Energy (Electricity) Regulations 2001

1.         Thank you for requesting advice about proposed amendments to the Renewable Energy (Electricity) Regulations 2001.

2.         We provided advice on 21 June 2004 about whether subsection 48(2) of the Acts Interpretation Act 1901 would have any application in respect of amendments proposed at that time to the Renewable Energy (Electricity) Regulations.  You have now asked us to review this advice in light of amendments proposed by the Renewable Energy (Electricity) Amendment Regulations 2006 (No. 1) ('the Amendment Regulations').

Short advice

3.         In our view, subsection 12(2) of the Legislative Instruments Act 2003 will not have any application in respect of the proposed amendments to the Renewable Energy (Electricity) Regulations.  Accordingly, those amendments can be validly made.

Background

4.         Section 21 of the Renewable Energy (Electricity) Act 2000 provides that if a solar water heater is installed on or after 1 April 2001 and the solar water heater displaces non-renewable electricity, certificates may be created after the heater is installed.  Section 22 provides that the number of certificates that may be created for a particular installation of a solar water heater is to be determined in accordance with the Regulations.

5.         Regulation 19(4)(b) of the Renewable Energy (Electricity) Regulations provides that the number of certificates that may be created for a particular installation of a solar water heater in a zone, during a period mentioned in an item in Part 2A or 2B of Schedule 7 that applies to the model, is the number specified for the zone in the item.


6.         Parts 2A and 2B of Schedule 7 contain a list of solar water heater models, 'eligible from' and 'eligible to' dates, and for each of four geographical zones, the number of certificates that may be created on the installation of the solar water heater.  The solar water heater must be installed during the period listed in order for the certificates to be created.

7.         In practice, all solar water heaters that are certified under the relevant Australian Standard are ultimately added to the list in Schedule 7.  However, due to the time taken to have the regulations made, a period may elapse between the certification and the making of the regulations.  However, you have adopted the practice of inserting into Schedule 7 the date of the certification under the Australian Standard.  This means that where a certified solar water heater has been installed after certification, but before the regulations have been amended, the person installing the system gains, on the making of the regulations, the right to create certificates with respect to the installation that has already been made.

8.         You have provided us with a copy of the draft Amendment Regulations that went to public comment.  The amendments proposed will add a number of new solar water heaters to the list in Schedule 7, and will include dates from which certificates may be created (in the 'Eligible from' column).  Those dates will pre-date the registration of the regulations.  As a result, it will be possible, once the regulations are registered, to create certificates in relation to solar water heaters which were installed prior to the registration of the regulations.

Subsection 12(2) of the Legislative Instruments Act 2003

9.         Subsection 48(2) of the Acts Interpretation Act 1901 was repealed by the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 with effect from 1 January 2005.  Subsection 12(2) of the Legislative Instruments Act 2003 replaces it.

10.     Subsection 12(2) of the Legislative Instruments Act is very similar to subsection 48(2) of the Acts Interpretation Act and provides as follows:

(2)   A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

(a)      the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

(b)      liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.


 

Advice

11.     In our view, subsection 12(2) of the Legislative Instruments Act does not apply to the proposed amendments, because they do not 'take effect before the date it is registered'.  The amendments will not commence prior to registration, and they will not purport to confer any rights or impose any obligations on any date prior to registration.  In this respect we note that regulation 2 of the Amendment Regulations provides that these regulations will commence on the day after they are registered.

12.     What the amendments will do, instead, is to (prospectively) confer a right on a person to create certificates after the date of registration of the amendments.  They will not purport to confer any right on any person to create certificates prior to the date of registration of the amendments.  Rather, they will confer this right by reference to an event which in some cases may have taken place prior to the registration of the amendments.

13.     Even if the proposed amendments were read as having retrospective effect, they would not, as a result:

--           affect the rights of a person, as at the date of registration of the regulations, so as to disadvantage that person; or

--           impose on a person any liability in respect of anything done or omitted to be done before the date of registration.

14.     Accordingly, we confirm that subsection 12(2) of the Legislative Instruments Act will not have any application in respect of the proposed amendments to Parts 2A and 2B of Schedule 7 of the Renewable Energy (Electricity) Regulations.

15.     This advice has been settled by Mr Guy Aitken, Senior General Counsel.  Please contact us if you would like to discuss any aspect of this advice or if you require any further assistance with this matter.

Yours sincerely

 

 

 

 

Donna Allen

Counsel

T 02 6253 7465   F 02 6253 7304

donna.allen@ags.gov.au


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