Government releases draft legislation to repeal the carbon price

The new Coalition Government took its first concrete steps yesterday to deliver on its promise to make the repeal of the Carbon Pricing Mechanism (CPM) (or the so-called “carbon tax”) its first item of business for the new Parliament. With Parliament unlikely to sit until about 11 November, the Government has released exposure drafts of eight carbon tax repeal bills (Repeal Bills) and an accompanying Repeal of the Carbon Tax Consultation Paper (Consultation Paper). 

Public consultation on the Repeal Bills has commenced and submissions can be made until 5pm on Monday 4 November 2013. This is likely to give the Government a very small window to make any amendments arising from the consultation before the Repeal Bills are tabled in Parliament.

Key features of the Repeal Bills and Consultation Paper include the following:

• an intention for the repeal to take effect from 1 July 2014
• the CPM would continue operating for the balance of the 2013-2014 compliance year and the compliance deadline of 2 February 2015 would still apply
• if Parliament does not pass the Repeal Bills until after 1 July 2014, the Government plans to make the repeal legislation retrospective so that it applies from 1 July 2014 (although this would require changes to the Repeal Bills as currently drafted)
• the National Greenhouse and Energy Reporting Scheme (NGERS) and the Carbon Farming Initiative (CFI) would continue to operate (although it appears that many local councils would no longer have obligations under NGERS)
• industry assistance provided under the Jobs and Competitiveness Program (JCP) and the Energy Security Fund would continue in 2013-2014, but there would be a “true up” process for any under or over allocation of free units issued under JCP
• planned 2015-2016 carbon price related tax cuts would be repealed
• any carbon units auctioned before the repeal takes effect would be cancelled and refunded, and the Clean Energy Regulator (Regulator) would be prohibited from conducting auctions after the repeal takes effect or after 30 June 2014 (whichever is earlier)
• it is envisaged that direct or indirect linking of the CPM with international emissions trading schemes (e.g. EU ETS) will no longer occur and amendments would be made to reflect this (e.g. deleting references to “prescribed international units”)
• the Climate Change Authority (CCA) would be abolished (and, although not covered by the Repeal Bills, it is expected that a subsequent bill will provide for the abolition of the Clean Energy Finance Corporation), and
• the Australian Competition and Consumer Commission (ACCC) would have new powers to monitor prices and take action against price exploitation.

Transitional arrangements

Assuming a repeal does take effect from 1 July 2014, the proposed sequencing outlined by the Repeal Bills would see the repeal happen in four main stages:

• 1 July 2013 – 30 June 2014: liable and other captured entities would continue to have compliance obligations up to 30 June 2014 under the CPM, the fuel tax credits system, excise or excise-equivalent customs duties, or synthetic greenhouse gas levies
• 1 July 2014 – 2 February 2015: liable entities would have to acquit their obligations for the 2013-2014 compliance year by 2 February 2015 to avoid a unit shortfall charge
• 9 February 2015: would be known as “designated carbon unit day” and be the cut-off date for the treatment of carbon units under related legislation (e.g. carbon units issued before 9 February 2015 would continue to be regulated as financial products)
• Beyond February 2015 (if required): the Regulator, the ATO, Customs and the Department of the Environment would be able to enforce any outstanding carbon liabilities for 2012-2013 and 2013-2014 for as long as is necessary.

Retrospectivity

In a scenario where Parliament does not pass the Repeal Bills until after 1 July 2014, the Consultation Paper states “The Government will not extend the carbon tax beyond 2013-2014, even if Parliament does not pass the carbon tax repeal bills until after 1 July 2014.” This suggests that the Government’s intent is that the repeal legislation would be retrospective. That is, it would remove the carbon price liability of liable entities (or the equivalent carbon price imposed on other sectors) retrospectively.

However in the interim, the CE Act and its supporting legislation (and associated compliance obligations) would remain in place until the Repeal Bills are passed and any retrospective application is triggered.

Under rules of statutory interpretation, legislation may specify that it comes into operation on a date earlier than it was made. There is precedent for Commonwealth legislation to apply retrospectively (e.g. Superannuation (Surcharge Rate Reduction) Amendment Act 2003) and the Courts have confirmed that Parliament can, in certain circumstances, pass retrospective legislation. A key qualification is that legislation which has the effect of acquiring property must comply with section 51 (xxxi) of the Constitution which provides that property can only be acquired on just terms. Therefore, if making legislation retrospective has the effect of removing from a person a property right, the provision is invalid.

Given that carbon units are personal property under the CE Act, the Main Repeal Bill seeks to address this by providing (at clause 341) that:

“If the operation of this Schedule would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms….. the Commonwealth is liable to pay a reasonable amount of compensation to the person…..”

Legislation

The main Repeal Bill is the Clean Energy Legislation (Carbon Tax Repeal) Bill 2013 (Main Repeal Bill), which would repeal the Clean Energy Act 2013 (CE Act) with effect from 1 July 2014. As outlined in previous legal updates, the CE Act is the main legislation establishing the CPM and outlines the rules for its operation in the fixed price period to 30 June 2015 and its transition to a market-based emissions trading scheme from 1 July 2015.

The Main Repeal Bill would also make consequential amendments to related legislation, including the National Greenhouse and Energy Reporting Act 2007 (NGER Act) and the Australian National Registry of Emissions Act 2011 (ANREU Act). However, both pieces of legislation would be retained to provide for the continuation of greenhouse gas and energy reporting and to support proposed initiatives under the Coalition’s Direct Action Plan, including the Emissions Reduction Fund. The Government has just released its Terms of Reference for the Emissions Reduction Fund White Paper, which can be found at environment.gov.au

The other Repeal Bills relate to associated Acts in the Clean Energy Legislative Package and would:

• amend provisions which impose an equivalent carbon price through tariff and excise duties on aviation fuels: Customs Tariff Amendment (Carbon Tax Repeal) Bill 2013; Excise Tariff Amendment (Carbon Tax Repeal) Bill 2013
• repeal provisions which impose an equivalent carbon price through levies imposed on the import and manufacture of synthetic greenhouse gases: Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment (Carbon Tax Repeal Bill; Ozone Protection and Synthetic Greenhouse (Manufacture Levy) Amendment (Carbon Tax Repeal) Bill 2013
• abolish the CCA and make alternative and transitional arrangements in relation to some of its responsibilities: Climate Change Authority (Abolition) Bill 2013
• repeal personal income tax cuts which were legislated to commence on 1 July 2015 and repeal associated amendments to the low-income tax offset: Clean Energy (Income Tax Rates and Other Amendments) Bill 2013, and
• introduce new provisions to recover the value of over-allocated free carbon units under the JCP: True-up Shortfall Levy (Carbon Tax Repeal) Bill 2013.

Institutions

The Repeal Bills provide for the abolition of the CCA. Until a repeal takes effect, the Minister for the Environment, the Honourable Greg Hunt MP, has indicated that the CCA is entitled to continue operating in accordance with its statutory mandate. It is anticipated that this will mean that the CCA proceeds with releasing its draft Caps and Targets Review report in October and its final report which is required under its legislation to be released no later than February 2014.

The Repeal Bills released yesterday do not provide for the abolition of the Clean Energy Finance Corporation, as has been widely foreshadowed by the Government. We understand that this is being progressed separately by the Department of Finance and that a separate repeal bill will be tabled in Parliament.  The precise timing of this has not yet been announced.

Importantly, the Government has confirmed its intention for the Regulator to remain in place and that it will play a key role in the implementation of the proposed Emissions Reduction Fund. 

Reporting

As with the CE Act, the NGER Act will remain in its current form until 1 July 2014 and will continue, subject to some amendments, under the transitional provisions for reporting in relation to the 2013-14 financial year. As a result, liable entities and controlling corporations registered under the NGER Act will need to prepare and submit reports for the 2012-13 financial year by 31 October 2013 and for the 2013-14 financial year by 31 October 2014.

After this, the Main Repeal Bill makes consequential amendments to the NGER Act which essentially returns the NGER Act to its pre-CE Act form.

Consequently, from the 2014-15 financial year onwards, only “controlling corporations” which meet the registration thresholds under the NGER Act would be required to submit reports on their greenhouse gas emissions, energy production and energy consumption to the Regulator. Most liable entities are likely to meet the registration threshold (for example, operational control of a facility with over 25,000 tonnes CO2-e emissions) and therefore even though they would have no liability under the CE Act, they would still be subject to reporting obligations under the NGER Act.

One exception to this, however, is those entities which do not fall within the definition of “controlling corporations” (for example, local governments). These entities would no longer have reporting obligations under the CE Act and would also not be covered by the NGER Act.

Industry Assistance

The three primary forms of industry assistance under the Clean Energy legislative package will be removed as follows:

• JCP – free carbon units will not be issued beyond the current (2013-14) compliance year
• Energy Security Fund – free carbon units will be issued to eligible electricity generators for the current compliance year and no further units will be issued after 1 July 2014
• Steel Transformation Plan – no further financial assistance will be provided, however the assistance provided to date ($164 million) will not be impacted

There will be a true-up arrangement prior to the final compliance date of 2 February 2015, which will require JCP participants to submit their actual production data towards the end of 2014. Further detail of the arrangements for this true-up mechanism, including the reporting requirements, will be set out in a legislative instrument, which is intended to be made prior to 1 July 2014.

The JCP provisions highlight one of the issues that may be faced by the Coalition in the event that it is not able to secure passage of the repeal legislation prior to 1 July 2014. If the CE Act remains in force post 1 July 2014 it is conceivable that JCP participants could lodge applications for free carbon units for the 2014-15 compliance year. Such applications could be lodged anytime up to 31 October 2014. Unless the Regulator required further information in relation to the application, it is required to make a decision on the application within 60 days, and if all of the relevant requirements are met (as listed in regulation 804 of the Clean Energy Regulations 2011) it is required to issue the free units.

Of course, if it is evident that the repeal legislation will be passed by the new Senate post 1 July 2014, it is possible that any such applications would not be made, given that there will be no liability against which to utilise the free units.

On the other hand, JCP participants may proceed with applications in order to utilise the buy-back provisions which allow them to sell their free units back to the Regulator after 1 September 2014.  We believe that further consideration will need to be given to these arrangements in the final form of the repeal legislation, depending upon the actual date of royal assent.

Auctions

The Main Repeal Bill provides that the Regulator must not hold an auction of carbon units after 30 June 2014 (or the day the Main Repeal Bill receives royal assent if it is passed earlier). Additionally, the Clean Energy (Auction of Carbon Units) Determination 2013 (Auction Determination) ceases to have effect after 30 June 2014 (or the day the Main Repeal Bill receives royal assent if it is passed earlier).

The Regulator, however, is still likely to be required to hold two auctions during the 2013/14 financial year (as required by the Auction Determination). So far, the Government has not indicated any intention to amend or repeal the Auction Determination prior to 30 June 2014 and the Consultation Paper specifically notes that “auctions … may have to occur before the carbon tax is repealed”.

Nevertheless, if an entity does purchase carbon units from one of these two auctions held during the 2013/14 financial year, the Main Repeal Bill provides that from the fifth business day after the Main Repeal Bill receives royal assent (ie, is passed by both houses and receives approval from the Governor General), the Regulator must cancel those carbon units and pay the person an amount equal to the charge they paid for the units.

Liable entities and other possible participants (ie. banks, traders) will need to give consideration to whether they participate in either of these auctions. That decision will probably depend upon the view they hold of the likelihood of the Repeal Bills being passed.  

We note that in order to ensure compliance by 2 February 2015 for the 2013-14 financial year, the Main Repeal Bill does still allow the Regulator to issue carbon units until 9 February 2015 under the purchase and automatic surrender mechanisms in the CE Act (ie not by way of auction).

International Linking

The Consultation Paper notes that “direct or indirect linking of Australia’s carbon tax with international emissions trading schemes… will no longer occur as a result of the carbon tax being repealed”.

As a result, provisions that would have facilitated the link with the European Union emissions trading system and any other international linking will be removed from the ANREU Act from 1 July 2014.

No regulation of carbon contracts

Contractual arrangements for the pass through of the carbon price and the transfer and trading of carbon units as financial products have been entered into by both Government and the private sector and these costs have washed through the economy since the CE Act came into force. The unwinding of the CPM will remove the legislative basis for these contractual arrangements and is likely to trigger the relevant change of law clauses.

As expected, the Main Repeal Bill is silent as to the impact on contractual arrangements and the Consultation Paper expressly provides that any “renegotiation of commercial arrangements is a matter for the parties involved”. While such renegotiations for the unwinding of carbon clauses or contracts may be easier where the parties involved are large entities with significant resources, all takers of the carbon price under the CPM will be concerned to ensure an appropriate price review.

Business should note that the availability, process and outcome of price reviews will be determined by the terms of the contract and may not lead to refunds, or at least complete refunds, in all circumstances, particularly where the entity imposing the carbon price has been put to significant cost in establishing its compliance framework.

Increased regulation of pricing by ACCC

The Main Repeal Bill foreshadows business and household concern regarding the impact of the CPM repeal on prices and, in particular, that price reductions resulting from the removal of the CPM and carbon price equivalents will be passed on to consumers.

The Government proposes 4 main initiatives with the ACCC to address this concern. These are:

Priority of CPM repeal investigations: The Government proposes to direct the ACCC to prioritise its investigation of carbon price related misrepresentations and to facilitate business and consumer awareness regarding the impact of the CPM repeal on prices;

Prohibition on price exploitation of key goods for limited time: The Competition and Consumer Act 2010 (CC Act) is to be amended to prohibit corporations from engaging in CPM-related price exploitation in respect of defined key goods for one year from repeal. These key goods are to be electricity, natural gas, synthetic greenhouse gases and synthetic greenhouse gas equipment and the threshold for exploitation will be where the price for the supply of the key goods is unreasonably high. Additional key goods may be included in subordinate legislation;

Prohibition on CPM misrepresentations for limited time: A further amendment to the CC Act is proposed to prohibit a corporation making a false or misleading representation about the impact of the CPM or the CPM repeal on the price for the supply of goods or services for one year from repeal; and

Price monitoring power: The Main Repeal Bill grants the ACCC new powers to monitor prices of the defined key goods and goods which are supplied by liable entities. These powers will be in place from the commencement of the Main Repeal Bill (where it commences prior to 1 July 2014) and will continue for one year after the repeal.

The ACCC is to be given an additional $10 million of funding over 3 years to facilitate the performance of these additional functions and to enforce what Minister Hunt has described as the “reasonably expected price reductions”.¹ 

The time limitation on these new powers is based on the assumption that the commercial unwinding of the CPM can be completed within one year from repeal (the “carbon tax repeal transition period”). Many of these arrangements are complex, have taken many months to conclude and provide for the payment of a carbon price for many years’ worth of accrued liability. The resetting of these types of arrangements will be complex and an efficient renegotiation within the carbon tax repeal transition period will rely heavily on the good will and resources of the entities involved.

Continued regulation of carbon units as financial products 

The preservation of the CE Act obligations for the 2013-2014 compliance year means that the status of the carbon units will also need to be preserved until the designated carbon unit day. Accordingly, the Main Repeal Bill will insert transitional provisions into both the Australian Securities and Investments Commission Act 2001 and the Corporations Law 2001 to provide that carbon units issued before the designated carbon unit day will continue to be regulated as financial products. This is intended to ensure that ASIC retains its broad powers regarding fraudulent activities with respect to dealings in carbon units as well as facilitate the completion of existing carbon contracts that have been entered into in reliance on this characterisation.

Norton Rose Fulbright will be heavily involved in the consultation process on the Repeal Bills and has been invited by the Department of Environment to participate in a technical workshop of legal experts. If you would like assistance in understanding the implication of the Repeal Bills on your operations or existing contractual arrangements, or would like help to prepare a submission to the Consultation Paper, please contact a member of our Climate Change team.

Given some of the issues identified above, we consider it is very likely that the draft Repeal Bills may be amended as they progress through Parliament (both before and after the Senate changes) and we will endeavour to keep you advised of any significant changes that take place.