29Anti‑avoidance

#### 29 Anti‑avoidance Scope (1) This section applies if: (a) at any time after 15 December 2008, one or more persons entered into, commenced to carry out, or carried out, a scheme; and (b) having regard to the following: (i) the manner in which the scheme was entered into or carried out; (ii) the form and substance of the scheme; (iii) the time when the scheme was entered into and the length of the period during which the scheme was carried out; (iv) the result in relation to the operation of this Act that, but for this section, would be achieved by the scheme; (v) whether the scheme involves increasing the number of facilities without achieving any significant reductions in the total amount of covered emissions from the operation of the facilities; (vi) whether the scheme involves establishing a particular number of facilities (instead of a lesser number of facilities) without achieving any significant reductions in the total amount of covered emissions from the operation of the facilities; it would be concluded that the person, or any of the persons, who entered into, commenced to carry out, or carried out, the scheme did so for the sole or dominant purpose of enabling a person to obtain the benefit of one or more threshold provisions in relation to a facility (the relevant facility) for an eligible financial year. (2) For the purposes of subsection (1), it is immaterial whether the person last mentioned in paragraph (1)(b) is the person, or one of the persons, mentioned in paragraph (1)(a). Cancellation of benefit of threshold provision (3) The Regulator may, by writing, determine that this Act has, and is taken always to have had, effect, as if the person last mentioned in paragraph (1)(b) were not entitled to obtain the benefit of the relevant threshold provision or provisions in relation to the relevant facility for that eligible financial year. (4) If the Regulator makes a determination under subsection (3), the Regulator must publish a copy of the determination on the Regulator’s website. (5) A determination under subsection (3) is not a legislative instrument. Threshold provision (6) For the purposes of this section, each of the following is a threshold provision: (a) subsection 20(4); (b) subsection 20(5); (c) subsection 21(4); (d) subsection 21(5); (e) subsection 22(4); (f) subsection 22(5); (g) subsection 23(4); (h) subsection 23(5); (i) subsection 24(4); (j) subsection 24(5); (k) subsection 25(4); (l) subsection 25(5).