Explanatory Memorandum
Circulated By the Authority of the Minister for Climate Change and Energy Efficiency, the Honourable Greg Combet Am MPTransitional and application provisions
Outline of chapter
8.1 The purpose of this chapter is to describe the transitional and application provisions included in the Clean Energy (Consequential Amendments) Bill 2011, and other provisions which have not been addressed elsewhere.
Context of amendments
8.2 The context of the amendments included in this bill is described in the General Outline segment of this explanatory memorandum.
8.3 The context of the particular consequential amendments covered by this chapter is provided below.
Summary of new law
8.4 The provisions addressed in this chapter relate to:
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- the transition of functions from the Renewable Energy Regulator, the Carbon Credits Administrator and the Greenhouse and Energy Data Officer (GEDO) to the proposed Clean Energy Regulator (the Regulator)
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- the transition of functions from the Renewable Energy Regulator and the Department of Climate Change and Energy Efficiency (DCCEE) to the proposed Climate Change Authority
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- application of amendments to the NGER Act
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- transitional arrangements for amendments to the Ozone Act
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- transitional arrangements for accounts established in the Australian National Registry of Emissions Units (National Registry) prior to commencement of the legislation.
Detailed explanation of new law
Transitional provisions which commence at the same time as the main bill
8.5 The transfer of functions from the Renewable Energy Regulator, the Carbon Credits Administrator and the GEDO to the Regulator requires various transitional provisions. These:
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- attribute functions performed by the Renewable Energy Regulator, the GEDO and the Carbon Credits Administrator before the commencement of the provisions to the Regulator [Schedule 1, Part 1, items 214-215, item 215A]
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- make a similar provision in relation to investigations by the Ombudsman [Schedule 1, Part 1, item 218]
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- substitute the Regulator in proceedings to which the Renewable Energy Regulator, the Carbon Credits Administrator or the GEDO was a party [Schedule 1, Part 1, item 216]
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- address the transfer of records from the Renewable Energy Regulator, the Carbon Credits Administrator and the GEDO to the Regulator [Schedule 1, Part 1, item 217]
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- ensure that references in appropriate instruments to the GEDO, the Carbon Credits Administrator or the Renewable Energy Regulator can be read as references to the Regulator [Schedule 1, Part 1, item 222]
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- enable certain staff members transferring from the Office of the Renewable Energy Regulator (ORER) or DCCEE to start their employment with the Regulator, or the Climate Change Authority, on the same terms and conditions as they had prior to their transfer . [Schedule 1, Part 1, item 223][Schedule 1, Part 1, item 225]
Terms and conditions of employment of employees transferring to the Regulator or to the Authority
8.6 The Regulator will take over the functions of the GEDO, the Carbon Credits Administrator and the Renewable Energy Regulator. Employees responsible for assisting with these functions may be transferred from DCCEE and ORER to the Regulator under a determination made by the Public Service Commissioner under section 72 of the Public Service Act 1999. Employees may be transferred in the same way from DCCEE and ORER to the Climate Change Authority.
8.7 Transferring employees will start their employment with the Regulator or Authority on the same terms and conditions as for their previous employment.
8.8 Employees covered by a collective or enterprise agreement (at present non-SES employees) will continue to be covered by that agreement until the Regulator or Authority negotiates a new enterprise agreement in accordance with the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. [Schedule 1, Part 1, item 223(2); item 225(2)]
8.9 Employees covered by a determination made under subsection 24(1) of the Public Service Act 1999 ( generally only SES employees) will continue to be covered by that determination [Schedule 1, Part 1, item 223(3); item 225(3)]
8.10 Without these provisions, the agreements and determinations would cease to apply to the employees when they transferred to the Regulator or Authority. These provisions ensure a smooth transition of terms and conditions of employment and allow the Regulator and the Authority and their employees time to negotiate new terms and conditions.
Terms and conditions of employment for new employees of the Regulator and the Authority
8.11 The effect of the provisions for transferring employees will be that there at least two collective or enterprise agreements operating for transferring employees of the Regulator and the Authority. No agreement would apply to a new employee. The provisions ensure that the Regulator or CEO of the Authority can determine that one of the agreements covers a new employee if the new employee would have been covered by the agreement had they been employed at the same level in the Department or ORER before the Regulator or the Authority commenced (generally non-SES employees). As for transferring employees, new employees would remain covered by the agreement only until the Regulator or Authority negotiated a new enterprise agreement . [Schedule 1, Part 1, item 223(5); item 225(5)]
8.12 It is expected that the Chair of the Regulator or the CEO of the Authority would generally determine that a new non-SES employee was to be covered by the same agreement that covered transferring employees who worked in the area in which the new employee was transferred.
8.13 The Regulator or the CEO of the Authority could also make determinations under subsection 24(1) of the Public Service Act 1999 for new employees. It is expected that they would use this power to cover employees who could not be covered by an agreement (generally SES employees).
8.14 As the DCCEE designated agreement will cover employees in DCEEE, the Regulator and the Authority, the provisions specify that the designated agreement in each agency will be treated as separate agreements for the purposes of the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. This means that the terms and conditions for the Regulator's or Authority's employees will not be affected if DCCEE amends or terminates its designated agreement and vice versa . [Schedule 1, Part 1, item 227]
Regulations
8.15 The amendments include a regulation-making power to allow the Governor-General to make regulations providing for transitional arrangements for transferring employees . [Schedule 1, Part 1, items 224 and 226]
Other transitional arrangements commencing at the same time as section 3 of the main bill
8.16 Information obtained by the Renewable Energy Regulator, the Carbon Credits Administrator and the GEDO before commencement will be subject to the secrecy provisions in the current legislation - that is, the legislation prior to repeal of the secrecy provisions in their individual Acts . [Schedule 1, Part 1, items 219, 220, 220A]
8.17 Judicial notice will continue to be taken of the signature of the Renewable Energy Regulator and documents or certificates signed by the Renewable Energy Regulator prior to the commencement of Item 221 and will still be able to be produced as evidence . [Schedule 1, Part 1, item 221]
8.18 In addition, there is power to make regulations in relation to transitional matters arising out of the amendments made by Part 1 . [Schedule 1, Part 1, item 228]
Application and transitional provisions which commence on 1 July 2012
8.19 Amendments to the NGER Act relating to registration and reporting by liable entities will apply in relation to the financial year beginning on 1 July 2012 and subsequent years . [Schedule 1, Part 2, item 452]
8.20 The amendment to section 31 of the NGER Act (which relates to the power of a Court to order a person to pay a pecuniary penalty for contravening a civil penalty provision) applies in relation to proceedings instituted on or after 1 July 2012 . [Schedule 1, Part 2, item 453]
8.21 The amendments to sections 47 and 48 of the NGER Act (which relate to the liability of executive officers) apply in relation to a contravention of a civil penalty provision that occurs on or after 1 July 2012 . [Schedule 1, Part 2, item 454]
8.22 The Register maintained under section 16 of the NGER Act is continued . [Schedule 1, Part 2, item 455]
8.23 The amendments to section 13 of the Ozone Act (which relate to the unlicensed import of ODS/SGG equipment) apply in relation to imports that occur on or after 1 July 2012 . [Schedule 1, Part 2, item 456]
8.24 The amendments to section 65AC of the Ozone Act (which increase the maximum pecuniary penalty for contravening certain civil penalty provisions) apply in relation to a contravention that occurs on or after 1 July 2012 . [Schedule 1, Part 2, item 457]
8.25 The amendments to section 69 of the Ozone Act (which changes the date that quarterly licence levies are due and also gives the Minister the discretion to extend this period) apply in relation to levies due for the quarter that begins on 1 July 2012. The existing time period for the due payment of licence levies remains for the levies due for the quarter that began on 1 April 2012 . [Schedule 1, Part 2, item 458]
8.26 Licensees under the Ozone Act who hold a pre-charged equipment licence that was in force immediately before 1 July 2012 are deemed to hold an ODS/SGG equipment licence under the Ozone Act as amended by this bill . [Schedule 1, Part 2, item 459]
8.27 Section 46 of the Ozone Act (dealing with the reports required of manufacturers, importers and exporters of scheduled substances) still applies, as if this section had not been amended by this bill, in relation to the quarter commencing 1 April 2012 . [Schedule 1, Part 2, item 460]
8.28 In addition, there will be power to make regulations in relation to transitional matters arising out of the amendments made by Part 2 . [Schedule 1, Part 2, item 461]
Commencement provisions
8.29 Sections 1 to 3 of the bill commence on Royal Assent . [Clause 2]
8.30 The provisions in Part 1 of Schedule 1 commence at the same time as section 3 of the main bill.
8.31 Part 1 of Schedule 2 commences at the same time as section 3 of the Clean Energy Bill 2011 . [Clause 2]
8.32 Providing that certain amendments commence at the same time as section 3 of the main bill ensures that the relevant amendments apply as soon as the Clean Energy Regulator is established . [Clause 2]
8.33 Sections 3 to 312 of the main bill commence on a day to be decided by Proclamation. However, those sections do not commence at all if the Acts listed in Item 2 of the table in section 2 of the main bill do not receive the Royal Assent on or before the 28th day after the main bill receives the Royal Assent. This qualification is designed to ensure that the bills comprising the legislative package for the scheme commence together (see clause 2 of the Clean Energy Bill 2011).
8.34 Schedule 3 commences the day after the bill receives Royal Assent . [Clause 2]
8.35 Schedule 4 commences on Royal Assent, or the day section 3 of the Australian National Registry of Emissions Units Act 2011 commences . [Clause 2]
8.36 Schedule 5 commences on Royal Assent, or the day section 3 of the Carbon Credits (Carbon Farming Initiative) Act 2011 commences . [Clause 2]
8.37 Part 2 of Schedule 1 commences on 1 July 2012 . [Clause 2]
8.38 The commencement and application provisions relating to the amendments to the taxation legislation included in Schedule 2 of the consequential amendments bill are addressed in Chapters 2 and 3 of this explanatory memorandum.
Formal provisions
8.39 The short title of the proposed Act is the Clean Energy (Consequential Amendments) Bill 2011 . [Clause 1]
8.40 The substantive amendments are included in Schedules 1 to 5 . [Clause 3]