Carbon pricing legislation released: a legal analysis

by Elisa de Wit, Noni Shannon, Damon Jones, Florence Riviere and Dominic Adams

The Australian Federal Government has released the exposure draft legislation designed to underpin the policy set out in the Climate Change Plan released on 10 July 2011.

The implications of this vast legislative package for business are far reaching and business should now start considering the range of both commercial and compliance issues raised by the legislation. In this legal update we:

• Provide an outline of the various Bills that comprise the legislative package.
• Examine whether sufficient detail has been set out in the primary legislation as opposed to being left to regulations.
• Detail the primary differences from the previous CPRS legislation.
• Cover any changes made or additional details provided since the policy announcement.

We note that the due date for submissions in relation to the carbon pricing legislation is 22 August 2011.  The Government will introduce the legislation in the Spring session of Parliament with the intention of ensuring passage of the legislation by the end of parliamentary sessions in 2011.  Assuming the legislation is passed within this timeframe, the carbon pricing mechanism is set to begin on 1 July 2012.

The exposure draft legislation is made up of fourteen separate legislative instruments with the Clean Energy Bill 2011 (Clean Energy Bill) as the primary instrument implementing the carbon pricing mechanism (Mechanism).

There are a number of legislative instruments that have not been released today, including primary legislation in relation to the Clean Energy Finance Corporation, the Australian Renewable Energy Agency and the Steel Transformation Plan. Other funding measures including the Clean Technology Programs, coal sector assistance, household and community sector energy efficiency programs and land sector programs, will be implemented through the budget process.

Principal legislative instruments

The Clean Energy Bill establishes the carbon pricing mechanism which is expected to apply to around 500 of Australia’s largest greenhouse gas (GHG) emitters. The Bill sets out:

• Who is covered by the Mechanism (liable entities) and what sources of carbon pollution are included.
• The obligations placed upon liable entities to surrender emissions units corresponding to their covered GHG emissions.
• How the Mechanism will transition from obliging liable entities to purchase carbon units at a fixed price, into a mechanism that auctions carbon units for the market in general.
• The legal and proprietary nature of carbon units.
• How the caps will be formed in regulations and the setting of default cap positions from 1 July 2015.
• The mechanisms to put a “price collar” around costs in the early stages of the flexible price period, including setting price floors and ceilings.
• The arrangements concerning linking to the Carbon Farming Initiative (CFI), by making carbon credits created under the CFI (Australian carbon credit units or ACCUs) eligible for surrender.
• The arrangements concerning linking to other emissions trading schemes and markets in the flexible price period.
• The assistance measures for emissions-intensive trade-exposed activities and coal-fired electricity generators.
• The arrangements surrounding monitoring, enforcement, appeal and review of decisions made under the Clean Energy Bill.

Accompanying legislation supporting the creation of the Mechanism

A number of other Bills have also been released that support the creation and implementation of the Mechanism, including:

• The Clean Energy Regulator Bill 2011 which creates a new statutory authority called the Clean Energy Regulator (Regulator) that will administer the Mechanism and ensure compliance with the legislation.
• The Climate Change Authority Bill 2011 which creates the Climate Change Authority, an independent body that will provide the Government with expert advice on key aspects of the Mechanism and mitigation goals.  
• The Clean Energy (Consequential Amendments) Bill 2011 (Consequential Amendments Bill) which introduces amendments to several pieces of legislation to ensure that they coherently and consistently address how the Mechanism is to be implemented. This includes amendments to existing regulations including:
• Entrusting the operation of the National Greenhouse and Energy Reporting (NGER) Act 2007 and the Carbon Credits (Carbon Farming Initiative (CFI)) Act 2011 to the Regulator.
• Entrusting the Regulator with the operation of the Renewable Energy Target scheme.
• Extending existing regulations concerning financial services and products to dealings with carbon units under the Mechanism.
• Extending existing regulatory requirements relating to money laundering, fraud and terrorism to the Mechanism.

The Consequential Amendments Bill also sets out the taxation position of carbon units under the Mechanism, including:

• Confirming the tax deductibility of the cost of carbon units (subject to the rolling balance method).
• Confirming the accessibility of income from the sale of carbon permits.
• Confirming the GST free nature of the supply of a permit.
• Providing that the unit shortfall charge (the penalty for non-compliance) will not be tax deductible.
• Attributing an Australian source to income from the sale of carbon units by a foreign resident. This means that foreign residents will be taxed on income from the sale of units subject to an exemption under a double tax agreement.

The legislative package also contains four charges Bills relating to charges under the primary legislation that effectively operate as taxes and are required to be introduced in separate legislative instruments in order to comply with the Constitution. These include:

• The Clean Energy (Unit Shortfall Charge – General) Bill 2011 which imposes a charge on unit shortfall as a tax so far as it is not a duty of excise and sets out the procedure by which a charge on unit shortfall is imposed, on whom it is imposed and how its amount is to be calculated.   It will encourage liable entities to surrender units instead of paying the charge.
• The Clean Energy (Unit Issue Charge – General) Bill 2011 which imposes as a tax the charges on the issue of carbon units so far as the charges are taxation.
• The Clean Energy (Charges-Excise) Bill 2011 which imposes the unit shortfall charge and the issue charge and sets out how to calculate the amount due.
• The Clean Energy (International Unit Surrender Charge) Bill 2011 which imposes as a tax the charge for surrender of an eligible international emissions unit during the eligible financial years beginning on 1 July 2015, 2016 and 2017.

Complementary legislation

A number of legislative instruments have also been released that introduce carbon pricing and other measures which are designed to complement yet exist outside of the Mechanism. These include:

• The Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment Bill 2011 and the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment Bill 2011 which amend the existing Ozone Protection and Synthetic Greenhouse Gas legislation to allow the existing levy structure to be used to subject importers and manufacturers of Kyoto Protocol synthetic greenhouse gases to an equivalent carbon price.
• The Excise Tariff Legislation Amendment (Clean Energy) Bill 2011 which imposes an effective carbon price on aviation and non-transport gaseous fuels through customs tariffs.
• The Custom Tariff Amendment (Clean Energy) Bill 2011 which imposes an effective carbon price on aviation and non-transport gaseous fuels through excise.
• The Fuel Tax Legislation Amendment (Clean Energy) Bill 2011 which reduces the business fuel tax credit entitlement of non-exempted industries for their use of liquid and gaseous transport fuels, in order to provide an effective carbon price on business through the fuel tax system.
• The Clean Energy Amendment (Household Assistance) Bill 2011 which amends relevant legislation to increase pension and allowances and family payments and provide income tax cuts for some households in line with the household assistance measures announced by the Government on 10 July 2011.  No draft of this Bill will be exposed, hence this Bill was not released today.

The policy announcement made on Sunday 10 July 2011 was a detailed exposition of government policy. How that policy position translates into the legislative detail of the scheme will be important for both business in its review of the implications of the package, and for the political mechanics of getting the deal through Parliament. Parliamentarians will wish to be assured that the agreement reached in the Multi-Party Climate Change Committee (MPCCC) is sufficiently reflected in the legislation to justify their continuing support. Business on the other hand will be keen to consider whether their expectations of future carbon liabilities and frameworks as set out in the policy documentation have been materially satisfied and whether particular areas of uncertainty have been dealt with.

The legislative framework broadly implements the policies outlined under the “Securing a Clean Energy Future” policy announcement on 10 July 2011. This of course is subject to the further release of legislation not released today, as noted above.

The key areas in which there have been changes in policy, new detail released or detail deferred until release in regulations, include:

• The setting of rolling five year caps in regulations.
• The setting of default caps.
• The operation of the “price collar” in the first three years of the fixed price period.
• The auctioning of carbon units.
• The Jobs and Competitiveness Program.
• Further regulations under the Mechanism.
• The imposition of an “equivalent carbon cost” on transportation fuels.

Carbon pollution caps

Pollution caps for flexible charge years will be set in regulations.  These regulations need to be prepared having regard to a range of international and domestic considerations and will specify a pollution cap number for each financial year as a total quantity of GHG emissions.  They will also be informed by the recommendations of the Climate Change Authority. The Minister must take all reasonable steps to ensure that regulations specifying the pollution cap numbers for the first five flexible years of the Mechanism are tabled in Parliament no later than 31 May 2014 (that is, for the financial years from 1 July 2015 through 2019).  The regulations cannot be made or tabled if the May deadline for each year is not met.

As expected, the regulations for pollution caps will be subject to Parliamentary scrutiny and either House of the Parliament may disallow the regulations.  This adds an additional political layer on top of the usual regulation making process which requires only that the government consult with “affected persons and organisations likely to be affected”.

If regulations setting pollution caps are not tabled in time or are disallowed, default pollution caps will take effect.

Default cap setting

Under the Securing a Clean Energy Future policy announcement, the default cap setting arrangements to be set out in primary legislation were to “ensure a five per cent reduction in emissions below 2000 levels by 2020”, and thereafter a reduction “consistent with the annual reduction in emissions implied by the five per cent emissions reduction target”. Sections 17 and 18 of the Clean Energy Bill implement this policy by setting out the default caps according to the following formulae:

• If no cap regulations are in place for the flexible charge year beginning 1 July 2015:

The total emissions numbers for the eligible financial year beginning on 1 July 2012 minus 38,000,000 (which will provide the “carbon pollution cap number”)

• If no cap regulations are in place for any subsequent flexible charge year:

The carbon pollution cap number for the previous flexible charge year minus 12,000,000

This legislative detail adds significant certainty to the policy position, which did not provide a clear framework for default cap setting, but rather provided the broad policy parameters under which the default caps would be set. It is important to note that if there has been a period of cap tightening under regulations, the default position will pick up from the previous year’s cap, and will not revert to some less onerous cap that is consistent with the five per cent by 2020 target. This will provide critical certainty for investors reviewing market parameters and noting that, without fail, caps will reduce by at least twelve million carbon units per year.

The price collar

The policy announcement on 10 July 2011 noted that from 1 July 2015 a price ceiling and price floor would be imposed for three years, in order to manage costs and create market certainty. The price ceiling would be set out in regulations by 31 May 2014 at AUD$20 above the expected international price for 2015-16, rising by five per cent in real terms per year, with a price floor starting at AUD$15 and rising by four per cent in real terms per year.

Section 111 of the Clean Energy Bill sets out the price floor arrangements for the auctioning of carbon units (supported in the Clean Energy (Charges—Excise) Bill 2011), and it remains expected that the procedure for setting the price ceiling will be set out in later regulations. The key area of uncertainty that remains however is in relation to how the price floor will operate upon the surrender of international carbon offsets for compliance. These provisions are to be regulated under the Clean Energy (International Unit Surrender Charge) Bill, which sets out in section 8(1) that a charge is to be applied to the surrender of international units in relation to compliance between 1 July 2015 and 30 June 2018. The amount of that charge however is to be “ascertained in accordance with the regulations in relation to the eligible financial year”.

Effectively this means that uncertainty surrounding the investments and arrangements to be made in relation to international offsetting projects and credits is likely to continue until further details are released in the regulations. Commercially this is not likely to be a significant issue because international offsetting investments in relation to compliance in the flexible price period are unlikely to be made in significant numbers until after the legislation is passed through Parliament and regulations tabled.

Auctioning carbon units

The Clean Energy Bill empowers the Regulator to issue carbon units through auctions and outlines some matters relevant for the design of an auctioning system for carbon credits.  The detailed policies, procedures and rules for the conduct of auctions are left to be determined by the Minister through a subsequent legislative instrument.  This will be a disallowable instrument for the purposes of the Legislative Instruments Act 2003 and will be finalised following consultation.

Given that the Government has announced its intention to have limited advance auctions of future vintage carbon units in the fixed price period (to assist the development of forward price signals), it is expected that the legislative instrument required for an auctioning system will be in introduced in the short term.

Jobs and Competitiveness Program

Under the Jobs and Competitiveness Program (Program) (the ‘rebadged’ Emissions-Intensive Trade-Exposed sector assistance program from the CPRS), assistance will be provided to entities that conduct emissions-intensive trade-exposed activities through the issuance of free carbon units by the Regulator early in each compliance period.

The Clean Energy Bill outlines in broad terms what the Program may cover and includes a range of reporting and compliance provisions as well as details of inquiries by the Productivity Commission into the Program.  It also includes provisions relating to the cancellation or buyback of certain unused free-carbon units.  However, the Bill leaves it to regulations to formulate the details of the Program, including what is to be considered an emissions-intensive trade-exposed activity (except that extraction of coal is explicitly excluded in the Bill) and the processes for allocating free carbon units.  The Bill requires the Minister to take all reasonable steps to ensure that regulations are made before 1 March 2012.

Further regulations

The Clean Energy Bill leaves a number of specific issues to be defined or detailed in regulations.  This is likely to create some uncertainty in the interim.  For example, some of the details on attributing GHG emissions to waste accepted prior to 1 July 2012 for the purposes of calculating legacy emissions are to be detailed in regulations.

The majority of other regulation-making powers under the Clean Energy Bill relate to matters that one would ordinarily expect to be developed through regulations.  These include a number of administrative matters and requirements relating to the Regulator, and a range of other operational and compliance aspects of the legislation such as forms, fees, application information and timeframes.  These include, for example, regulations to outline record keeping requirements and to make further provisions in relation to infringement notices.

The Bill also contains a broad overarching regulation-making power allowing regulations to be made for matters “necessary or convenient” for giving effect to the legislation.

The treatment of transport and other fuels

The Fuel Tax Legislation Amendments (Clean Energy) Bill 2011 (FTLA Bill) confirms that the Mechanism will extend to most emissions from business transport and the non-transport use of liquid fuels.  The only exclusions will be light vehicles, households and, in some circumstances, the agriculture, forestry and fishery industries.

The FTLA Bill amends the Fuel Tax Act 2006 so that a fuel tax credit entitlement under that Act is reduced by an amount equivalent to what the carbon price on the fuel emissions would be, if those emissions were subject to a carbon price. The “amount of carbon reduction” is worked out through the following equation:

Quantity of fuel x Carbon price x Carbon emission rate.

The carbon price will be the annual fixed price under the Clean Energy Bill until 30 June 2015 and then a flexible price from 1 July 2015 calculated every six months based on the average carbon unit auction price under the Clean Energy Bill.

The carbon emission rate of all fuels has been specified. The FTLA Bill confirms that ethanol, biodiesel or renewable diesel will not incur fuel tax credit reductions or changes to excise (these fuels are zero rated under international accounting rules).

The amount of the carbon reduction will be nil, however, to the extent that the fuel is acquired, manufactured or imported for use:

• In agriculture, fishing operations or forestry.
• In a vehicle with a gross vehicle mass of more than 4.5 tonnes and travelling on a public road.
• Otherwise than for combustion.

It should be noted that the inclusion of the words “to the extent that” will require operators to make an assessment of the actual use of the fuel that they acquire, manufacture or import in order to accurately claim an exemption. It is not clear at this stage what parameters may be applied to such an assessment.

The Government had previously signalled that it intended to pursue extending the Mechanism to heavy on-road transport from 1 July 2014 to ensure consistent treatment across the whole of the freight sector. The aim of this would be to maintain competition neutrality between the various forms of transport. The FTLA Bill does not, however, envisage this inclusion. It remains to be seen if it will be included and will presumably be dependent upon the MPCCC approving this change.

In relation to aviation fuels, combined together the Customs Tariff Amendment (Clean Energy) Bill and the Excise Tariff Legislation Amendment (Clean Energy) Bill provide for changed rates of duty for aircraft fuel and for compressed natural gas for certain uses, being generally (at least at this stage) compressed natural gas for non-motor vehicle use. The increase is effected by imposing a ”carbon component rate” on each litre of fuel or kilogram of natural gas. That rate is fixed until 30 June 2014 and is then a flexible rate from 1 July 2015 calculated every six months based on the average carbon unit auction price under the Clean Energy Bill.

The Commentary on Provisions for the Clean Energy Bill maintains that the Productivity Commission will be commissioned under the Productivity Act to undertake a review of fuel excise and taxation, with any changes to be implemented after three years, that is 2015-2016. It is expected that this review will include an examination of the merits of a regime based explicitly and precisely on the carbon and energy content of fuels. No provisions have been released, however, for this commissioning at this stage.  This is to be compared with the detailed provisions set out in the Clean Energy Bill for the ongoing Productivity Commission inquiries into the Jobs and Competitiveness Program.

Overall, there is much that is identical between the Carbon Pollution Reduction Scheme Bill (CPRS Bill) and the Clean Energy Bill.  We extensively covered the formulation and various iterations of the CPRS Bill in our previous legal updates, and we would recommend a review of these updates for an overview of the previous scheme, and how it was intended to operate (see Related links). The significant differences between the CPRS Bill and the Clean Energy Bill are:

• A higher 2050 target of 80 per cent based on 2000 emission levels, which has replaced the previous 60 per cent target.
• Exclusion of any reference to a 2020 target; previously the range of five to 25 per cent had been identified, with the higher level of 25 per cent being dependent upon the level of action taken at the international level.  We understand that this deletion was a concession made to the Greens, and reflects the possibility that it may be necessary (either under any post Kyoto Protocol agreement or to provide a smoother transition out to 2050) for a higher target than the current policy approach of five per cent to be adopted.  In reality, however, the regulations will set out five years worth of caps (see above) and will therefore cover the period up to 2019, hence any decision that a tighter 2020 target is required will probably need to be made prior to 31 May 2014.  (As noted above, this decision will be ultimately be made by the government of the day, but on advice from the Climate Change Authority.)
• Caps will only apply once the flexible price period commences.  If regulations are not made or are disallowed (or are repealed upon a change in government), there is a default position set out in the Clean Energy Bill which reflects the five per cent by 2020 target.  Unlike the CPRS, there is no gateway mechanism.  The gateway mechanism was intended to give a range of possible caps for a 10 year period following the five year fixed cap period, which ultimately would have given some indication of forward price curves for carbon units.  Forward price curves will now be restricted to actual knowledge of the caps proposed for a five year period, with estimates going forward based on the 2020 and 2050 targets, and assumptions that these will not change.
• Under the CPRS Bill, the liable entity was the controlling corporation (i.e. the parent company of the corporate group member which had control over the facility).  The Clean Energy Bill now places liability directly on the operator of the facility, although there is still the ability to transfer liability between members of a corporate group through the Liability Transfer Certificate mechanism. A threshold of 25,000 tonnes of direct (i.e. Scope 1) emissions still applies, with a lower threshold of 10,000 tonnes applicable to certain landfills.
• The Clean Energy Bill introduces new arrangements for joint ventures, such that each participant in the joint venture becomes a liable entity if no individual participant could be said to have “operational control” over the facility.  Joint venture participants will be required to notify the Regulator of their involvement in the joint venture and the particular facility to which the joint venture relates by 31 July 2012 (or within 30 days of the joint venture coming into existence), with penalties applicable for non-compliance.  It will also be necessary for the participants in the joint venture to apply to the Regulator for a “participating percentage determination”, which will determine the applicable percentage of liability for each participant in the joint venture.
• The “make-good” requirement included in the CPRS Bill has not found its way into the Clean Energy Bill.  Previously, under the CPRS Bill if a liable entity did not surrender sufficient emissions units as well as paying a unit shortfall penalty, there was a requirement for the liable entity to purchase and surrender sufficient units to cover the shortfall.  Instead of this requirement, the penalty that can be imposed for surrendering insufficient units is higher under the Clean Energy Bill.  The CPRS Bill imposed a penalty of AUD$11 for the initial fixed price one year period (when units were to be sold at AUD$10), followed by a penalty which was to be specified in regulations or, if not so specified, was an amount equal to 110 per cent of the benchmark average auction price for the previous financial year.  Under the Clean Energy Bill, the penalty during the fixed price period will set at 130 per cent of the fixed charge for the relevant financial year.  Once the flexible price period commences, the penalty will be between 130 per cent and 200 per cent of the benchmark average auction charge for the previous financial year.  As with the CPRS Bill, a late payment penalty of 20 per cent will also apply if the unit shortfall charge is not paid by the due date.
• A further difference arising in the flexible price period is the imposition of a carbon unit floor price, as well as a price ceiling. The price floor of AUD$15 (rising annually by four per cent per annum) and price ceiling of AUD$20 above the expected international price (rising annually by five per cent per annum) will be in place for at least the first three years of the flexible price period.  Under the CPRS Bill only a price cap was proposed, which was set at AUD$40 (rising annually by five per cent) for the four years following the initial AUD$10 fixed price one year period.  The Regulator will publish details of the price ceiling in advance of each compliance year to provide liable entities with certainty, and allow them to consider the maximum cost of compliance.
• In terms of the compliance and enforcement provisions, there is little difference between the two Bills, with the exception of the addition of the ability for the Regulator to issue infringement notices.  This is intended to allow the Regulator to deal more efficiently with minor contraventions of the legislation, rather than having to pursue court action under the civil penalty provisions.  The fine which can be imposed by an infringement notice will be one fifth of the maximum civil penalty amount.  The penalties under the Clean Energy Bill remain the same as those under the CPRS Bill, with the maximum level of penalty being AUD$1,100,000.
• The package of draft Bills supporting the Clean Energy Bill establishes a number of new institutions and governance arrangements for the Mechanism, including the Climate Change Authority and the Regulator.  The Productivity Commission is also given new powers to input into policy decisions under the Mechanism. These new governance mechanisms seek to provide more independent institutional structures than under the CPRS Bill and aim to ensure that expert advice on the Government's mitigation activities, as well as the administration and enforcement of the Mechanism are at arms length from Parliamentary decision making processes. Among other things, this is likely to create more market transparency and certainty in the setting of future market parameters.

The implications of this vast legislative package for business are far reaching and business should now start considering a range of both commercial and compliance issues, including consideration of:

• The commercial impact of the legislative package on the business, including the position in relation to coverage under the Mechanism, the flow of liability through various corporate and transactional structures and the availability of EITE or industry specific assistance
  • whether there are any pressing matters that should be alerted to government by submission during the brief consultation period (which closes at 5 pm on Monday 22 August 2011)
  • for publicly listed corporations, the extent to which these impacts should be disclosed to the market in compliance with ASX Listing Rule 3.1.
• Whether carbon costs may be passed through to the business, or whether carbon costs may be passed through to customers, under existing contractual relationships.
• Whether, apart from contractual considerations, there are any commercial restrictions on the ability pass through the cost of carbon to customers (such as international competition or domestic market sensitivity).
• The opportunities for managing forward carbon liabilities; including:
  • opportunities to invest in more efficient technologies or plant
  • opportunities to invest in offsetting projects or purchase offsets in spot market or forward contracts
  • opportunities for the transport and other sectors to reduce liability through the use of biofuels.
• The extent to which any of the complementary measures announced in the package impact upon the position of the business going forward, including:
  • payments for closure of brown coal fired power generation
  • the availability of funding under the various renewable energy and clean technology funding schemes
  • the impact of the government’s proposed national energy efficiency scheme.

• The due date for submissions in relation to the carbon pricing legislation is 22 August 2011.
• The government will introduce the legislation in the Spring session of Parliament in 2011.
• The government intends to ensure the passage of the legislation by the end of Parliamentary sittings in 2011.
• The Mechanism is set to begin on 1 July 2012.

Further information

If you would like further information about any aspect of the legislative package, or assistance with formulating submissions to Government, please contact a member of our Climate Change team