Subdivision Subdivision F - National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 - Variation by Regulator of emissions intensity determination | Zoe
This is the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015.
3 Authority
This instrument is made under subsection 22XS(1) of the National Greenhouse and Energy Reporting Act 2007.
4 Definitions
In this instrument:
accelerated depreciation factor has the meaning given by subsection 37(6).
Act means the National Greenhouse and Energy Reporting Act 2007.
adverse conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
amount includes a nil amount.
askm means available seat kilometres.
assessed cost impact, for a facility for a financial year, has the meaning given by section 36.
Australian accounting standards means the accounting standards in force under section 334 of the Corporations Act 2001.
Note: In 2023, the Australian accounting standards were accessible at http://www.aasb.gov.au.
best practice emissions intensity, for a production variable for a financial year, means the best practice emissions intensity (if any) specified, in t CO2‑e per unit of the production variable, in relation to the production variable in Schedule 1 as in force at:
(a) if the financial year is the financial year beginning on 1 July 2023—the end of the financial year; or
(b) otherwise—the start of the financial year.
best practice emissions intensity number, for a production variable for a financial year, means the number that is equal to the best practice emissions intensity for the production variable for that financial year.
Note: Example: If the best practice emissions intensity for a tonne of glass in the financial year beginning on 1 July 2024 is 0.6 t CO2‑e per tonne of glass, the best practice emissions intensity number for a tonne of glass in that financial year is 0.6.
borrowing adjustment, for a facility for a financial year, has the meaning given by section 47.
borrowing adjustment determination means a determination made under section 50.
borrowing adjustment number, for a facility for a financial year: see subsection 50(3).
by‑product means a saleable output or other product that:
(a) results from a chemical or physical process undertaken by a facility other than for the purpose of producing the output; and
(b) will be disposed of, by sale or gift, without any further processing by the facility (other than further processing in accordance with standard industry practice); and
(c) contributes less than 10% of the facility’s revenue.
comparative production variable, for a related production variable, has the meaning given by paragraph 19(4)(b).
criminal activity means any activity that the Regulator has reasonable cause to believe involves the commission of an offence by one or more persons.
Darwin to Katherine network means the local distribution systems in items 1, 2 and 5 of Schedule 2 to the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015 (NT) and any transmission or distribution system which is connected to those local distribution systems.
decision date, for an application under Part 3, has the meaning given by subsection 52(2).
default decline rate, for a financial year, has the meaning given by section 32.
default emissions intensity, for a production variable for a financial year, means the default emissions intensity specified, in t CO2‑e per unit of the production variable, in relation to the production variable in Schedule 1 as in force at the start of that financial year.
default emissions intensity number, for a production variable for a financial year, means the number that is equal to the default emissions intensity of the production variable.
Note: Example: If the default emissions intensity for a tonne of glass in the financial year beginning on 1 July 2024 is 0.8 t CO2‑e per tonne of glass, the default emissions intensity number for a tonne of glass in that financial year is 0.8.
default emissions reduction contribution, for a financial year, has the meaning given by section 31.
designated electricity network means one of the following electricity networks:
(a) the interconnected national electricity system within the meaning of the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA);
(b) the South West interconnected system within the meaning of section 3 of the Electricity Industry Act 2004 (WA);
(c) the North West interconnected system within the meaning of section 2 of the Electricity Transmission and Distribution Systems (Access) Act 1994 (WA);
(d) the Darwin to Katherine network;
(e) the Mount Isa–Cloncurry supply network within the meaning of section 10 of the Electricity—National Scheme (Queensland) Act 1997 (Qld).
designated historical information, about a historical production variable for a facility, has the meaning given by subsection 14(5).
details, in relation to a declaration under this instrument, includes:
(a) the type of declaration; and
(b) the facility to which the declaration relates; and
(c) the responsible emitter for the facility to which the declaration relates; and
(d) the start and any end date of the declaration; and
(e) if the declaration is being varied—the nature of that variation.
due date, for an application under Part 3, has the meaning given by subsection 52(1).
dwtnmi means dead weight tonne nautical miles.
EBIT Guidelines has the meaning given by subsection 37(7).
eligible facility, for a financial year, has the meaning given by section 58B.
emissions intensity determination means:
(a) a determination made under section 19; or
(b) a successor determination.
emissions reduction contribution:
(a) for a regular facility for a financial year—has the meaning given by section 33; or
(b) for a trade‑exposed baseline‑adjusted facility for a financial year—has the meaning given by section 34.
existing facility has the meaning given by subsection 12(1).
facility‑specific emissions intensity number:
(a) of a historical production variable for a facility—has the meaning given by subsection 20(1); or
(b) of a related production variable for a facility—has the meaning given by subsection 20(5); or
(c) of a transitional production variable for a facility—has the meaning given by subsection 20(6).
first adjusted financial year, for a facility, has the meaning given by subsection 36(6).
grid‑connected electricity generator means a designated generation facility connected to a designated electricity network at any time during a financial year.
historical financial year has the meaning given by subsection 12(3).
historical production variable, for a facility, has the meaning given by subsection 12(2).
hypothetical baseline, of a facility for a financial year, has the meaning given by subsection 36(7).
identifying details has the meaning given by the NGER Regulations.
identifying information has the meaning given by the NGER Regulations.
input means:
(a) if the input relates to a landfill facility—a tonne of waste received by a landfill facility; and
(b) otherwise—anything that undergoes a chemical or physical process to produce an intermediate product or an output.
intermediate product means a product that:
(a) results from a chemical or physical process undertaken by a facility using one or more inputs; and
(b) is then used as an input for the production of an output at the same facility.
landfill facility means a facility for the disposal of solid waste as landfill, and includes a facility that is closed for the acceptance of waste.
legacy emissions has the meaning given by subsection 7(2).
limited assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
manufacturing facility: a facility is a manufacturing facility in a financial year if the primary production variable for the facility in the financial year is a manufacturing production variable.
manufacturing production variable means a production variable that is listed in the table in section 1 of Schedule 2.
multi‑year period declaration has the meaning given by subsection 65(1).
m3km means metres cubed kilometres.
national facility definition means the requirements for a transport facility applying as a result of a nomination under subregulation 2.19A(2) of the NGER Regulations.
new facility has the meaning given by subsection 29(2).
NGER (Measurement) Determination means the National Greenhouse and Energy Reporting (Measurement) Determination 2008.
NGER Regulations means the National Greenhouse and Energy Reporting Regulations 2008.
non‑commercial production variable, for a facility for a financial year, has the meaning given by subsection 12(5).
output means a product that is:
(a) if the output is from a transport facility—a transport service measured by service units; or
(b) if more than 25,000 megawatt hours of electricity is, or is to be, generated at the facility in a financial year—electricity generated at the facility; or
(c) otherwise—the last product resulting from a chemical or physical process undertaken by a facility using one or more inputs or intermediate products.
pkm means passenger kilometres.
pnmi means passenger nautical miles.
primary production variable, for a facility, means:
(a) if there is only one production variable for the facility—that production variable; or
(b) if there are 2 or more production variables for the facility—the production variable that is most significant for the operation of the facility, having primary regard to the share of revenue and covered emissions directly or indirectly attributable to that production variable.
production variable, for a facility, means a production variable that is applicable to the facility in accordance with Schedule 1.
production variable means a metric that is set out in a Part of Schedule 1.
qualified limited assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
qualified reasonable assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
quantity, of a production variable for a facility for a financial year, means the number of units of the production variable for the facility for that financial year.
Note: Example: If a facility produces 500 tonnes of glass in a financial year, the quantity of tonnes of glass for that financial year is 500.
ratio of cost impacts, for a facility for a financial year, has the meaning given by section 35.
reasonable assurance conclusion has the meaning given by the National Greenhouse and Energy Reporting (Audit) Determination 2009.
regular facility: a facility that is not a trade‑exposed baseline‑adjusted facility in a financial year is a regular facility in that financial year.
related production variable, for a facility, has the meaning given by paragraph 19(4)(a).
relevant historical financial year, for a production variable, has the meaning given by subsection 20(3).
relevantly associated with has the meaning given by section 16.
responsible financial officer, of a responsible emitter for a facility, means any of the following:
(a) if the person with operational control of the facility is an individual—that person;
(b) a person who holds or performs the duties of the position of the chief executive officer, chief financial officer or chief operating officer for the person with operational control of the facility;
(c) a person who holds or performs the duties of a position with equivalent or similar responsibilities to a person with a position in paragraph (b);
(d) an individual employed by the person with operational control of the facility who:
(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or affairs of the person; or
(ii) has the capacity to significantly affect the person’s financial standing.
Safeguard Mechanism default prescribed unit price, for a financial year, has the meaning given by section 38.
Safeguard Mechanism document means the document of that name published on the Department’s website, as in force from time to time.
sectoral‑baseline financial year means every financial year before the financial year beginning on the first 1 July after the Regulator has published a statement on its website that the total reported scope 1 emissions of all grid‑connected electricity generators exceeded 198,000,000 t CO2‑e emissions in the previous financial year based upon reports submitted to the Regulator at the time of the statement. The Regulator must take all reasonable steps to publish the statement at least 4 months before the start of the financial year which is not a sectoral‑baseline financial year.
Example: If the sum of reported emissions from each grid‑connected electricity generator was 210,000,000 t CO2‑e in 2020‑21, by 28 February 2022 the Regulator would publish a statement on its website and the financial year beginning 1 July 2022 would not be a sectoral‑baseline financial year and emissions of grid‑connected electricity generators would be covered emissions in that year.
service unit means a unit of measure related to a transport facility (such as askm, dwtnmi, m3km, pkm, pnmi, tkm, tnmi or vkt) determined and measured by the responsible emitter for the facility taking into account:
(a) standard industry practice; and
(b) existing measurement systems used by the responsible emitter.
shale gas extraction facility has the meaning given by section 54.
significant cost impact threshold, for a facility, has the meaning given by subsection 35(4).
successor determination means a determination made under section 24.
t CO2‑e means tonnes of carbon dioxide equivalence.
tkm means tonne kilometres.
tnmi means tonne nautical miles.
trade‑exposed baseline‑adjusted facility: a facility is a trade‑exposed baseline‑adjusted facility in a financial year if it is determined to be a trade‑exposed baseline‑adjusted facility in that financial year under section 42.
trade‑exposed production variable means a production variable that is listed in a table in Schedule 2.
transitional production variable, for a facility, has the meaning given by subsection 12(4).
transition proportion, for a financial year, has the meaning given by section 13.
vkt means vehicle kilometres travelled.
waste product means an output or other product that:
(a) results from a chemical or physical process undertaken by a facility other than for the purpose of producing the output; and
(b) will be disposed of without any further processing by the facility (other than further processing in accordance with standard industry practice); and
(c) is not a by‑product.
Part 2—Coverage
7 Covered emissions
(1) For section 22XI of the Act, the following scope 1 emissions of one or more greenhouse gases are not covered emissions for the purposes of the safeguard mechanism:
(a) emissions of one or more greenhouse gases in circumstances where the Minister has not determined, under subsection 10(3) of the Act:
(i) methods by which the amounts of the scope 1 emissions of the greenhouse gas are to be measured; or
(ii) criteria for methods by which the amounts of the scope 1 emissions of the greenhouse gas are to be measured;
(b) legacy emissions from the operation of a landfill facility;
(c) emissions of one or more greenhouse gases from the operation of a grid‑connected electricity generator in respect of a sectoral‑baseline financial year;
(d) if a facility is partly in Australia and partly in the Greater Sunrise special regime area—scope 1 emissions of greenhouse gases which occurred in the Greater Sunrise special regime area.
Note: A facility wholly in the Greater Sunrise special regime area is not subject to the safeguard provisions in accordance with subsection 6A(4) of the Act.
Legacy emissions
(2) For the purposes of subsection (1), if:
(a) an amount of greenhouse gas was emitted from the operation of a landfill facility; and
(b) waste was accepted by the landfill facility before 1 July 2016;
so much of the amount mentioned in paragraph (a) as is, under a determination under subsection 10(3) of the Act, taken to be attributable to waste accepted by the facility before 1 July 2016 is a legacy emission from the operation of the landfill facility.
Emissions not included as emissions from grid‑connected electricity generators
(3) For the purposes of paragraph (1)(c), emissions of one or more greenhouse gases from the operation of a grid‑connected electricity generator in respect of a sectoral‑baseline financial year do not include:
(a) fugitive emissions from coal mining (within the meaning of the NGER (Measurement) Determination); or
(b) emissions from fuel combustion for the purposes of coal mining; or
(c) emissions covered by Chapter 2 (fuel combustion) of the NGER (Measurement) Determination that are not for electricity generation or cogeneration.
8 Designated large facility threshold
For paragraph 22XJ(1)(b) of the Act, the specified number is 100,000.
Part 3—Baseline emissions number
Division 1—General
9 Baseline emissions number—main rule
(1) Unless otherwise provided, the provisions of this Part are made for the purposes of subsection 22XL(1) of the Act.
(2) The baseline emissions number for a facility for a financial year is ascertained in relation to the facility in accordance with Divisions 2 to 7 of this Part.
(3) Subsection (2) has effect subject to section 10.
10 Baseline emissions number—special rules
Minimum baseline
(1) The baseline emissions number for a facility for a financial year is 100,000 if:
(a) the baseline emissions number for the facility for the financial year that is ascertained in accordance with Divisions 2 to 7 of this Part is a number less than 100,000; and
(b) that number is not less than 100,000 merely because of a borrowing adjustment for the facility for the financial year.
Note: This means that the baseline emissions number for a facility for a financial year can be less than 100,000 if there is a sufficiently large borrowing adjustment for the facility for that financial year.
Zero baseline for shale gas extraction facilities
(2) The baseline emissions number for a facility for a financial year is zero if the facility is a shale gas extraction facility.
Zero baseline from 2050
(3) The baseline emissions number for a facility for a financial year that begins after 30 June 2049 is zero.
Division 2—Existing facilities
Subdivision A—Baseline emissions number for existing facility
11 Baseline emissions number for existing facility
(1) The baseline emissions number for an existing facility (other than a landfill facility) for a financial year is the number worked out using the following formula:
A formula to work out the baseline emissions number for an existing facility (other than a landfill facility) for a financial year
where:
ERC is the emissions reduction contribution for the facility for the financial year.
p is a production variable for the facility for the financial year.
h is the transition proportion for the financial year.
EI, in relation to a production variable for the facility for the financial year, is the default emissions intensity number of the production variable for the financial year.
Note: The default emissions intensity number of tonnes of reservoir carbon dioxide from new gas fields is zero (see section 35A of Schedule 1).
EIF, in relation to a production variable for the facility for the financial year, is:
(a) if an emissions intensity determination that applies in relation to the facility for the financial year specifies a facility‑specific emissions intensity number of the production variable—that number; or
(b) otherwise—0.
Q, in relation to a production variable for the facility for the financial year, is:
(a) if an emissions intensity determination that applies in relation to the facility for the financial year specifies a facility‑specific emissions intensity number of the production variable—the quantity of the production variable for the facility for the financial year; or
(b) otherwise—0.
EIB, in relation to a production variable for the facility for the financial year, is:
(a) if there is a best practice emissions intensity number for the production variable for the financial year—that number; or
(b) if there is no best practice emissions intensity number for the production variable for the financial year, and the production variable is a historical production variable for the facility—zero; or
(c) otherwise—the default emissions intensity number for the production variable for the financial year.
Note: The best practice emissions intensity number of tonnes of reservoir carbon dioxide from new gas fields is zero (see section 35A of Schedule 1).
QB, in relation to a production variable for the facility for the financial year, is:
(a) if an emissions intensity determination that applies in relation to the facility for the financial year specifies a facility‑specific emissions intensity number of the production variable—0; or
(b) otherwise—the quantity of the production variable for the facility for the financial year.
BA is the borrowing adjustment for the facility for the financial year.
(2) The number worked out using the formula in subsection (1) is to be rounded to the nearest whole number (rounding up if the first decimal place is 5 or more).
12 Meaning of existing facility
(1) A facility is an existing facility if there are one or more historical production variables or transitional production variables for the facility.
(2) A historical production variable, for a facility, is a production variable that:
(a) was applicable to the facility, in accordance with Schedule 1, at any time during a historical financial year; and
(b) was not a non‑commercial production variable for the facility for the historical financial year.
(3) A historical financial year is:
(a) the financial year beginning on 1 July 2017; or
(b) the financial year beginning on 1 July 2018; or
(c) the financial year beginning on 1 July 2019; or
(d) the financial year beginning on 1 July 2020; or
(e) the financial year beginning on 1 July 2021.
(4) A transitional production variable, for a facility, is a production variable that:
(a) was not applicable to the facility, in accordance with Schedule 1, at any time during a historical financial year; and
(b) was applicable to the facility, in accordance with Schedule 1, at a time during the financial year beginning on 1 July 2022; and
(c) was not a non‑commercial production variable for the facility for the financial year beginning on 1 July 2022.
(5) A non‑commercial production variable, for a facility for a financial year, is a production variable that, at a time during the financial year, was applicable to the facility, in accordance with Schedule 1, merely because of testing or piloting activities undertaken at the facility.
Subdivision B—Transition proportion
13 Transition proportion
The transition proportion for a financial year beginning on a day specified in column 1 of an item of the following table is the number specified in column 2 of that item.
14 Application for emissions intensity determination
(1) The responsible emitter for an existing facility may apply to the Regulator for an emissions intensity determination.
(2) The application must be made:
(a) in a manner and form approved, in writing, by the Regulator; and
(b) before the end of the due date for the application, unless the Regulator agrees to accept the application after that date.
Note 1: For the due date for the application, see section 52.
Note 2: For withdrawal of the application, see section 53.
(3) The application must specify:
(a) the first financial year in relation to which the determination would apply; and
(b) the historical production variables (if any) for the facility; and
(c) for each historical financial year—a calculation, in accordance with section 15, of the amount of covered emissions of greenhouse gases (in t CO2‑e) from the operation of the facility during the historical financial year; and
(d) the estimates and assumptions (if any) made in accordance with subsection 15(3); and
(e) the transitional production variables (if any) for the facility.
(4) For each historical production variable for the facility, the application must, to the extent reasonably practicable, include the designated historical information about the production variable.
(5) The following information is the designated historical information about a historical production variable for a facility:
(a) the quantity of the production variable in each historical financial year that is measured in accordance with any measurement requirements or procedures specified in Schedule 1 in relation to the production variable;
(b) the amount of covered emissions of greenhouse gases (in t CO2‑e) relevantly associated with the production variable in each historical financial year.
Note: See the definition of relevantly associated with in section 16.
(6) If the application does not include the designated historical information about a historical production variable for the facility, the application must include an explanation of why such information has not been included.
(7) If a greenhouse gas other than carbon dioxide comprises more than 1% of the covered emissions relevantly associated with a production variable for the facility in a particular historical financial year, the application must specify the amount of that gas (in t CO2‑e).
(8) The application may include a request for the determination to include a statement that:
(a) a particular production variable for the facility is a related production variable for the facility; and
(b) another specified production variable for the facility is the comparative production variable for that related production variable.
14A Application specifying primary steel as production variable may specify steelmaking production variables as historical production variables
(1) An application under section 14 for an emissions intensity determination that specifies primary steel as a production variable may also specify the following production variables (the steelmaking production variables) as historical production variables for the facility:
(a) the primary iron (steelmaking) production variable; and
(b) the ferrous feed (steelmaking) production variable.
Note: Section 19A applies to an application which specifies the steelmaking production variables as historical production variables.
(2) Despite paragraph 12(2)(b), the steelmaking production variables may be specified as historical production variables for a facility even if one or both of them was a non‑commercial production variable for the facility for a historical financial year.
(3) Despite paragraph 16(2)(b), covered emissions of greenhouse gases from the operation of a facility during a particular historical financial year that are of a particular kind may be attributed to both a steelmaking production variable and to the primary steel production variable.
(4) Despite paragraph 16(3)(d), covered emissions of greenhouse gases from the operation of a facility during a particular historical financial year may be attributed to both a steelmaking production variable and to the primary steel production variable.
Note: Emissions associated with the production of primary iron and continuously cast carbon steel products and ingots of carbon steel would also be relevantly associated with primary steel.
(5) In this Part:
continuously cast carbon steel products and ingots of carbon steel (manufacture of carbon steel from cold ferrous feed) production variable means the production variable in section 44 of Schedule 1.
ferrous feed (steelmaking) production variable means the production variable in section 44A of Schedule 1.
primary iron (steelmaking) production variable means the production variable in section 39A of Schedule 1.
primary iron production variable means the production variable in section 39 of Schedule 1.
primary steel production variable means the production variable in section 41 of Schedule 1.
steelmaking production variables has the meaning given by subsection (1).
15 Calculating an amount of covered emissions
(1) This section specifies requirements for the purposes of calculating an amount of covered emissions of greenhouse gases from the operation of a facility during a historical financial year.
(2) The amount must be calculated:
(a) in accordance with the NGER (Measurement) Determination; and
(b) using the Global Warming Potentials specified for the relevant greenhouse gas in regulation 2.02 of the NGER Regulations; and
(c) using the same method as the method (the most recent method) that was used in the most recent report provided to the Regulator relating to the greenhouse gas emissions from the operation of the facility.
(3) For the purposes of paragraph (2)(c), if:
(a) a report was provided to the Regulator relating to the greenhouse gas emissions from the operation of the facility during the historical financial year; and
(b) the report used a method other than the most recent method;
estimates and assumptions may be made for the purposes of using the most recent method to calculate the amount.
(4) In this section:
method has the same meaning as in the NGER (Measurement) Determination.
16 Covered emissions relevantly associated with a historical production variable
(1) Covered emissions of greenhouse gases from the operation of a facility during a particular historical financial year are relevantly associated with a historical production variable for the facility in that financial year if those emissions are attributed to the production variable for the financial year in accordance with subsection (2) or (3).
Emissions relevant to default emissions intensity
(2) Covered emissions of greenhouse gases from the operation of a facility during a particular historical financial year that are of a particular kind are attributed to a production variable for the facility for that financial year if:
(a) having regard to the Safeguard Mechanism document, covered emissions of that kind are relevant to the default emissions intensity of that production variable for that financial year; and
(b) those emissions are not attributed to another production variable in accordance with this section.
(2A) To avoid doubt, the Safeguard Mechanism document may specify that a particular kind of covered emissions is relevant to the default emissions intensity of a production variable notwithstanding that the specified kind of covered emissions was not taken into account when the default emissions intensity was calculated.
Emissions from minor emissions sources
(3) Covered emissions of greenhouse gases from the operation of a facility during a particular historical financial year are attributed to a production variable for the facility for that financial year if:
(a) the emissions come from a minor emissions source for the facility for the historical financial year; and
(b) the emissions fairly represent the actual emissions from the production of the production variable; and
(c) the emissions are apportioned to the production variable consistently with the NGER (Measurement) Determination; and
(d) the emissions are not apportioned to another production variable for the facility for that financial year.
(4) In this section, a source of emissions is a minor emissions source for a facility in a historical financial year if the sum of the emissions from that source, and every other minor emissions source for the facility in that historical financial year, is less than 10% of the facility’s total covered emissions in that financial year.
17 Application must be accompanied by safeguard audit report
(1) This section is made for the purposes of subsection 22XQ(3) of the Act.
(2) An application for an emissions intensity determination by the responsible emitter for an existing facility must be accompanied by an audit report that meets the requirements of this section.
Note: Under subsection 75(1) of the Act, the Minister may determine requirements to be met by registered greenhouse and energy auditors in preparing for and carrying out safeguard audits.
Reasonable assurance matters
(3) The audit report must include a conclusion in relation to each of the following matters:
(a) whether, in all material respects, the application correctly specifies the historical production variables (if any) for the facility;
(b) if the application includes the designated historical information about a historical production variable for the facility for a historical financial year—whether, in all material respects, the application correctly specifies the quantity of the historical production variable in the historical financial year;
(c) whether, in all material respects, the application correctly specifies the amount of covered emissions for the facility in each historical financial year;
(d) whether, in all material respects, the application correctly specifies the transitional production variables (if any) for the facility.
Limited assurance matters
(4) The audit report must include a conclusion in relation to each of the following matters:
(a) if the application specifies one or more historical production variables for the facility—whether, in all material respects, the application correctly specifies the amount of covered emissions of greenhouse gases from the operation of the facility that are relevantly associated with each of those production variables;
(b) whether, in all material respects, calculations of amounts of covered emissions of greenhouse gases from the operation of the facility that are included in the application meet the requirements specified in section 15;
(c) if the application includes estimates and assumptions made in accordance with subsection 15(3)—whether, in all material respects, those estimates and assumptions are reasonable.
Previously audited matters
(5) Despite subsections (3) and (4), the audit report does not need to include a conclusion:
(a) about a matter in subsection (3) if the responsible emitter has previously given the Regulator an audit report that includes a reasonable assurance conclusion in relation to the matter; or
(b) about a matter in subsection (4) if the responsible emitter has previously given the Regulator an audit report that includes a limited assurance conclusion in relation to the matter.
(6) An audit report under this section must be the result of an audit which:
(a) was conducted in accordance with the relevant requirements for reasonable assurance engagements under the National Greenhouse and Energy Reporting (Audit) Determination 2009; and
(b) had an audit team leader who is registered as a Category 2 auditor under subregulation 6.25(3) of the NGER Regulations.
18 Consideration of application
(1) This section applies if the responsible emitter for an existing facility applies for an emissions intensity determination in accordance with this Subdivision.
(2) Subject to subsection (4), the Regulator must take all reasonable steps to decide the application under section 19 before the end of the decision date for the application.
Note: For the decision date for the application, see section 52.
(3) The Regulator may, by notice in writing, require the applicant to give the Regulator, within the period specified in the notice, such further information in relation to the application as the Regulator requires.
(4) The Regulator is not required to decide the application, and may cease considering whether to decide the application, if the applicant does not provide the required information within the period specified in the notice.
19 Emissions intensity determination
(1) If the responsible emitter for an existing facility applies for an emissions intensity determination in accordance with this Subdivision, the Regulator must decide to:
(a) make the determination; or
(b) refuse to make the determination.
(2) The Regulator must not make the determination unless:
(a) the audit report that accompanies the application includes:
(i) a reasonable assurance conclusion, or a qualified reasonable assurance conclusion, in relation to each of the matters specified in subsection 17(3); and
(ii) a limited assurance conclusion, or a qualified limited assurance conclusion, in relation to each of the matters specified in subsection 17(4); and
(b) the Regulator is reasonably satisfied, having regard to any matter the Regulator considers relevant, that:
(i) the information included in the application is correct; and
(ii) any explanation in the application of why the designated historical information about a historical production variable for the facility has not been included in the application is reasonable; and
(iii) calculations of amounts of covered emissions of greenhouse gases from the operation of the facility that are included in the application meet the requirements specified in section 15; and
(iv) any estimates and assumptions made in accordance with subsection 15(3) and included in the application are reasonable.
(3) The determination must be in writing and must specify:
(a) the facility‑specific emissions intensity number of:
(i) any historical production variable for the facility; and
(ii) any transitional production variable for the facility; and
(iii) any related production variable for the facility; and
(b) the first financial year in relation to which the determination applies.
(4) The determination may state that:
(a) a particular production variable for the facility is a related production variable for the facility; and
(b) another specified production variable for the facility is the comparative production variable for that related production variable.
Note: See Subdivision D (related production variables).
(5) The determination:
(a) comes into force on the first day of the financial year specified for the purposes of paragraph (3)(b); and
(b) applies in relation to the facility for that financial year and each subsequent financial year.
Note: See subsection 22XQ(2) of the Act (commencement of determination).
(6) If the Regulator makes the determination, the Regulator must:
(a) notify the applicant for the determination that the Regulator has made the determination; and
(b) publish the determination on the Regulator’s website.
(7) If the Regulator decides to refuse to make the determination, the Regulator must give the applicant for the determination a written notice of the decision that includes the Regulator’s reasons for the decision.
19A Emissions intensity determination in relation to application specifying steelmaking production variables as historical production variables
(1) This section applies if an application under section 14 for an emissions intensity determination specifies the steelmaking production variables as historical production variables, and the Regulator decides under subsection 19(1) to make the determination.
(2) The following production variables are taken to be historical production variables for the facility:
(a) the primary iron production variable; and
(b) the continuously cast carbon steel products and ingots of carbon steel (manufacture of carbon steel from cold ferrous feed) production variable.
(3) Subparagraph 19(3)(a)(i) applies to the production variables mentioned in subsection (2) instead of the steelmaking production variables.
Note: Subparagraph 19(3)(a)(i) requires a determination to specify the facility‑specific emissions intensity number of any historical production variable for the facility.
(4) For the purpose of subsection 19(3)(a)(i), the Regulator must consider the designated historical information included in the application:
(a) in relation to the primary iron (steelmaking) production variable—as if that information was instead in relation to the primary iron production variable; and
(b) in relation to the ferrous feed (steelmaking) production variable—as if that information was instead in relation to the continuously cast carbon steel products and ingots of carbon steel (manufacture of carbon steel from cold ferrous feed) production variable.
20 Facility‑specific emissions intensity number
Historical production variables
(1) The facility‑specific emissions intensity number, of a historical production variable for a facility, is the number that is ascertained by dividing the total number of tonnes of carbon dioxide equivalence of covered emissions relevantly associated with the production variable in the relevant historical financial years for the production variable by the total quantity of the production variable in those financial years.
(2) The Regulator may round the facility‑specific emissions intensity number of a historical production variable for a facility to 4 or more significant figures if the Regulator considers it appropriate to do so.
(3) If the condition specified in column 1 of an item of the following table is satisfied in relation to a historical production variable specified in an application for an emissions intensity determination, each of the historical financial years specified in column 2 of that item is a relevant historical financial year for that production variable.
<table cellspacing="0" cellpadding="0" style="margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:404.8pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Relevant historical financial year</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span></span></p><p class="TableHeading"><span>Item</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="TableHeading"><span>Condition</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Relevant historical financial year</span></p></td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:179.15pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The application includes the designated historical information about all 5 historical financial years for the historical production variable</span></p></td><td style="width:179.15pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Each of the 3 historical financial years that is not:</span></p><p class="Tablea"><span>(a) the historical financial year with the highest emissions intensity for the historical production variable; or</span></p><p class="Tablea"><span>(b) the historical financial year with the lowest emissions intensity for the historical production variable</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The application includes the designated historical information about only 4 historical financial years for the historical production variable</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Each of the 2 historical financial years that is not:</span></p><p class="Tablea"><span>(a) the historical financial year with the highest emissions intensity for the historical production variable; or</span></p><p class="Tablea"><span>(b) the historical financial year with the lowest emissions intensity for the historical production variable</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The application includes the designated historical information about only 3 historical financial years for the historical production variable</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Each of the 2 historical financial years that is not the historical financial year with the highest emissions intensity for the historical production variable</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The application includes the designated historical information about only 2 historical financial years for the historical production variable</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The historical financial year with the lowest emissions intensity for the historical production variable</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The application includes the designated historical information about only 1 historical financial year for the historical production variable</span></p></td><td style="width:179.15pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>That historical financial year</span></p></td></tr></tbody></table>
(4) For the purposes of items 1, 2, 3 and 4 of the table in subsection (3), the emissions intensity of a historical production variable for a historical financial year is ascertained by dividing the emissions relevantly associated with the production variable in the historical financial year by the quantity of the production variable in that financial year.
Related production variables
(5) The facility‑specific emissions intensity number, of a related production variable for a facility, is:
(a) if the related production variable is tonnes of reservoir carbon dioxide from new gas fields—zero; or
(b) otherwise—the same as the facility‑specific emissions intensity number of the comparative production variable for the related production variable.
Transitional production variables
(6) The facility‑specific emissions intensity number, of a transitional production variable for a facility, is the number that is equal to the default emissions intensity number of the production variable:
(a) if the production variable was applicable to the facility at any time during a historical financial year—for that financial year; or
(b) otherwise—for the financial year beginning on 1 July 2022.
Note: Subsections 91(2) and 92(2) modify the operation of this provision where the transitional production variable for the facility is run‑of‑mine coal, reservoir carbon dioxide from existing gas fields, natural gas throughput, or lithium hydroxide.
Subdivision D—Related production variables
21 Statement about related production variable when emissions intensity determination is made
(1) This section applies if:
(a) the Regulator decides to make an emissions intensity determination in relation to a facility; and
(b) the application for the determination includes a request for the determination to state that:
(i) a particular production variable for the facility is a related production variable for the facility; and
(ii) another specified production variable for the facility is the comparative production variable for that related production variable.
(2) The Regulator must decide to:
(a) include the statement in the determination; or
(b) refuse to include the statement in the determination.
(3) The Regulator must not include the statement in the determination unless satisfied that the particular production variable and the other production variable meet the requirements of section 23.
22 Statement about related production variable when emissions intensity determination is already in force
(1) If an emissions intensity determination is in force in relation to a facility, the responsible emitter for the facility may apply, in writing, to the Regulator to vary the determination to include a statement that:
(a) a particular production variable for the facility is a related production variable for the facility; and
(b) another specified production variable for the facility is the comparative production variable for that related production variable.
(2) The Regulator must decide to:
(a) make the variation; or
(b) refuse to make the variation.
(3) The Regulator must not make the variation unless satisfied that the particular production variable and the other production variable meet the requirements of section 23.
Notification of decision etc.
(4) If the Regulator makes the variation, the Regulator must notify the applicant of the variation and publish the emissions intensity determination, as varied, on the Regulator’s website.
(5) If the Regulator decides not to make the variation, the Regulator must give the applicant a written notice of the decision that includes the Regulator’s reasons for the decision.
When variation applies
(6) A variation under this section applies in relation to the financial year in which the application for the variation was made and each subsequent financial year.
23 Requirements for statement about related production variable
(1) A particular production variable for a facility and another production variable for the facility meet the requirements of this section if any of subsections (2), (3) or (4) apply.
(2) This subsection applies if:
(a) the particular production variable:
(i) is not a historical production variable for the facility; or
(ii) is a historical production variable for the facility but it was not reasonably practicable for the application for the determination to include the designated historical information about that production variable; and
(b) the particular production variable is substantially similar to the other production variable; and
(c) the particular production variable and the other production variable are measured using the same units or mutually convertible units; and
(d) the facility’s production of the particular production variable does not involve the installation of new equipment that is likely to increase the facility’s capacity to increase the total quantity of the particular production variable and the other production variable by more than 20% (relative to that quantity in the last financial year before the equipment is installed) in any of the years to which the determination is to apply.
(3) This subsection applies if:
(a) the particular production variable:
(i) is not a historical production variable for the facility; or
(ii) is a historical production variable for the facility but it was not reasonably practicable for the application for the determination to include the designated historical information about that production variable; and
(b) the particular production variable is the hot‑rolled long products (cold ferrous feed) production variable and the other production variable is the hot‑rolled long products produced at primary steel manufacturing facilities production variable.
(4) This subsection applies if:
(a) the particular production variable:
(i) is not a historical production variable for the facility; or
(ii) is a historical production variable for the facility but it was not reasonably practicable for the application for the determination to include the designated historical information about that production variable; and
(b) the particular production variable is the hot‑rolled flat products (cold ferrous feed) production variable and the other production variable is the hot‑rolled flat products produced at primary steel manufacturing facilities production variable.
(5) In this section:
hot‑rolled flat products (cold ferrous feed) production variable means the production variable in section 46 of Schedule 1.
hot‑rolled flat products produced at primary steel manufacturing facilities production variable means the production variable in section 43 of Schedule 1.
hot‑rolled long products (cold ferrous feed) production variable means the production variable in section 45 of Schedule 1.
hot‑rolled long products produced at primary steel manufacturing facilities production variable means the production variable in section 42 of Schedule 1.
Subdivision E—Successor determination
24 Successor determination for restructured facility
(1) This section applies if an activity, or a series of activities, that constitutes a facility (the original facility) in relation to which an emissions intensity determination is in force:
(a) ceases to constitute the original facility; and
(b) either:
(i) begins to constitute one or more other facilities; or
(ii) becomes included in the activity, or series of activities, that constitutes another facility.
Note: See the definition of facility in section 9 of the Act.
(2) The Regulator may make a determination in relation to a facility covered by paragraph (1)(b) (a successor facility) in accordance with the process set out in section 25.
(3) The determination must be in writing and must specify:
(a) the facility‑specific emissions intensity number of:
(i) any historical production variable for the successor facility that was also a historical production variable for the original facility; and
(ii) any related production variable for the successor facility that was also a related production variable for the original facility; and
(iii) any transitional production variable for the successor facility that was also a transitional production variable for the original facility; and
(b) the first financial year in relation to which the determination applies.
(4) In making the determination, the Regulator may have regard to any matter the Regulator considers relevant.
(5) The determination:
(a) comes into force on the first day of the financial year specified for the purposes of paragraph (3)(b); and
(b) applies in relation to the successor facility for that financial year and each subsequent financial year.
Note: See subsection 22XQ(2) of the Act (commencement of determination).
25 Process for making successor determination
(1) If the Regulator proposes to make a successor determination in relation to a facility, the Regulator must notify the responsible emitter for the facility in writing that the Regulator proposes to do so.
(2) The notice must:
(a) specify:
(i) the facility‑specific emissions intensity number of any production variable for the facility that would be specified in the determination; and
(ii) the first financial year in relation to which the determination would apply; and
(b) invite the responsible emitter to provide a written response to the proposed determination within the period specified in the notice.
(3) The notice may request that the responsible emitter provide the Regulator with specified information that the Regulator considers relevant to the proposed determination.
(4) Within 30 days after the end of the period specified in the notice, the Regulator must consider the responsible emitter’s response (if any) to the proposed determination and decide to:
(a) make the determination; or
(b) not make the determination.
(5) If the Regulator makes the determination, the Regulator must:
(a) notify the responsible emitter that the Regulator has made the determination; and
(b) publish the determination on the Regulator’s website.
Subdivision F—Variation by Regulator of emissions intensity determination
26 Variation by Regulator of emissions intensity determination
(1) Subject to subsection (4), if an emissions intensity determination is in force in relation to a facility, the Regulator may vary, in accordance with the process set out in section 28, a facility‑specific emissions intensity number specified in the determination if satisfied that:
(a) the amount of covered emissions of greenhouse gases from the operation of the facility during a historical financial year differs by at least 1% from the amount specified in the application for the determination; and
(b) the difference is due to:
(i) a relevant regulatory change that came into force after the determination was made; or
(ii) a different method being used, after the determination was made, to report the facility’s emissions in accordance with the Act; or
(iii) a change of activities at the facility after the determination was made.
(2) The variation:
(a) comes into force on the first day of the first financial year in which:
(i) the relevant regulatory change came into force; or
(ii) the different method was used; or
(iii) the change of activities occurred; and
(b) applies in relation to the facility for that financial year and each subsequent financial year.
Note: See subsection 22XQ(2) of the Act (commencement of determination).
(3) If, under this section, the Regulator varies an emissions intensity determination that is in force in relation to a facility, the Regulator must:
(a) notify the responsible emitter for the facility of the variation; and
(b) publish the determination, as varied, on the Regulator’s website.
(4) The Regulator must not vary the determination if the difference referred to in paragraph (1)(a) is due to an increase in the emissions intensity of a production variable for the facility resulting from a lower method being used instead of a higher method, after the determination was made, to report the facility’s emissions in accordance with the Act.
(5) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
(6) In this section:
higher method has the same meaning as in the NGER (Measurement) Determination.
lower method has the same meaning as in the NGER (Measurement) Determination.
method has the same meaning as in the NGER (Measurement) Determination.
relevant regulatory change means:
(a) an amendment to the NGER Regulations, including a change to the Global Warming Potentials specified for a greenhouse gas in regulation 2.02 of the NGER Regulations; or
(b) an amendment to the NGER (Measurement) Determination; or
(c) an amendment to a fuel standard, within the meaning of the Fuel Quality Standards Act 2000, in force under that Act.
27 Request for information relevant to possible variation
If the Regulator is considering whether to vary a facility‑specific emissions intensity number specified in an emissions intensity determination that is in force in relation to a facility, the Regulator may, by written notice given to the responsible emitter for the facility, request that the responsible emitter provide the Regulator with specified information that the Regulator considers relevant to the variation.
28 Process for making variation
(1) If the Regulator proposes to vary a facility‑specific emissions intensity number specified in an emissions intensity determination that is in force in relation to a facility, the Regulator must notify the responsible emitter for the facility in writing that the Regulator proposes to do so.
(2) The notice must:
(a) specify the facility‑specific emissions intensity number of any production variable for the facility that would be specified in the determination as varied; and
(b) invite the responsible emitter to provide a written response to the proposed variation within the period specified in the notice.
(3) The notice may request that the responsible emitter provide the Regulator with specified information that the Regulator considers relevant to the proposed variation.
(4) Within 30 days after the end of the period specified in the notice, the Regulator must consider the responsible emitter’s response (if any) to the proposed variation, and any information obtained under section 27 that the Regulator considers relevant to the proposed variation, and decide to:
(a) make the variation; or
(b) not make the variation.
(5) The variation must be made before the end of the first 31 January after the first financial year in relation to which the variation is to apply.
(6) If the Regulator makes the variation, the Regulator must:
(a) notify the responsible emitter that the Regulator has made the variation; and
(b) publish the determination, as varied, on the Regulator’s website.
Division 3—New facilities
29 Baseline emissions number for new facility
(1) The baseline emissions number for a new facility (other than a landfill facility) for a financial year is the number worked out using the following formula:
A formula to work out the baseline emissions number for a new facility (other than a landfill facility) for a financial year
where:
ERC is the emissions reduction contribution for the facility for the financial year.
p is a production variable for the facility for the financial year.
EIB, in relation to a production variable for the facility for the financial year, is:
(a) if there is a best practice emissions intensity number for the production variable for the financial year—that number; or
(b) otherwise—the default emissions intensity number for the production variable for the financial year.
Q, in relation to a production variable for the facility for the financial year, is the quantity of the production variable for the facility for the financial year.
BA is the borrowing adjustment for the facility for the financial year.
Note: The baseline emissions number for a new facility for a financial year would be the same if it were worked out using the formula in section 11.
(2) A facility is a new facility if there are no historical production variables or transitional production variables for the facility.
(3) The number worked out using the formula in subsection (1) is to be rounded to the nearest whole number (rounding up if the first decimal place is 5 or more).
Division 4—Landfill facilities
30 Baseline emissions number for landfill facility
(1) The baseline emissions number for a landfill facility for a financial year is the number worked out using the following formula:
A formula to work out the baseline emissions number for a landfill facility for a financial year
where:
ERC is the emissions reduction contribution for the facility for the financial year.
NLCH4 is the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases that would be emitted by the facility if emissions were not captured, and oxidation did not occur, at the facility during the financial year.
CER (known as the capture efficiency rate) is 0.372.
OF is the oxidation factor specified in section 5.4 of the NGER (Measurement) Determination (as in force at the start of the financial year) for near surface methane in landfill.
BA is the borrowing adjustment for the facility for the financial year.
(2) The number worked out using the formula in subsection (1) is to be rounded to the nearest whole number (rounding up if the first decimal place is 5 or more).
Division 5—Emissions reduction contribution
Subdivision A—Default values
31 Default emissions reduction contribution
The default emissions reduction contribution for a financial year beginning on a day specified in column 1 of an item of the following table is the number specified in column 2 of that item.
Note: Until the financial year beginning on 1 July 2030, the default emissions reduction contribution in column 2 declines by 0.049 (the default decline rate).
32 Default decline rate
The default decline rate for a financial year beginning on a day specified in column 1 of an item of the following table is the number specified in column 2 of that item.
33 Emissions reduction contribution for regular facility
(1) If:
(a) a facility is a regular facility in a financial year; and
(b) the facility was not a trade‑exposed baseline‑adjusted facility in any previous financial year;
the emissions reduction contribution for the facility for the financial year is the default emissions reduction contribution for that financial year.
(2) If:
(a) a facility is a regular facility in a financial year (the relevant financial year); and
(b) the facility was a trade‑exposed baseline‑adjusted facility in a previous financial year;
the emissions reduction contribution for the facility for the relevant financial year is the number worked out using the following formula:
Start formula ERC subscript y minus DR end formula
where:
ERCy is the emissions reduction contribution for the facility for the financial year ending immediately before the relevant financial year.
DR is the default decline rate for the relevant financial year.
(3) The number worked out using the formula in subsection (2) is to be rounded to 5 decimal places (rounding up if the sixth decimal place is 5 or more).
34 Emissions reduction contribution for trade‑exposed baseline‑adjusted facility
(1) If a facility is a trade‑exposed baseline‑adjusted facility in a financial year, the emissions reduction contribution for the facility for the financial year is the number worked out using the following formula:
Start formula ERC subscript y minus DR plus RCI times open bracket DR minus DR subscript m close bracket end formula
where:
ERCy is:
(a) if the table in section 31 does not specify a default emissions reduction contribution for the previous financial year—1;
(b) otherwise—the emissions reduction contribution for the facility for the previous financial year.
DR is the default decline rate for the financial year.
RCI is the ratio of cost impacts for the facility for the financial year.
DRm (known as the minimum decline rate) is:
(a) if the facility is a manufacturing facility—0.01; or
(b) otherwise—0.02.
(2) The number worked out using the formula in subsection (1) is to be rounded to 5 decimal places (rounding up if the sixth decimal place is 5 or more).
35 Ratio of cost impacts
(1) If a facility is a trade‑exposed baseline‑adjusted facility in a financial year, the ratio of cost impacts for the facility for the financial year is worked out in accordance with this section.
(2) If the assessed cost impact for the facility for the financial year is equal to or greater than the significant cost impact threshold for the facility, the ratio of cost impacts for the facility for the financial year is 1.
(3) If the assessed cost impact for the facility for the financial year is less than the significant cost impact threshold for the facility, the ratio of cost impacts for the facility for the financial year is the number worked out using the following formula:
Start formula start fraction CI subscript A minus CI subscript M over CI subscript S minus CI subscript M end fraction end formula
where:
CIA is the assessed cost impact for the facility for the financial year.
CIM (known as the material cost impact threshold) is 0.03.
CIS is the significant cost impact threshold for the facility.
(4) The significant cost impact threshold for a facility is:
(a) if the facility is a manufacturing facility—0.10; or
(b) otherwise—0.08.
36 Assessed cost impact
Facilities that are not manufacturing facilities
(1) If a facility is not a manufacturing facility in a financial year, the assessed cost impact for the facility for the financial year is the number worked out using the following formula:
Start formula start fraction P subscript SM times PE over RF end fraction end formula
where:
PSM is the number of dollars in the Safeguard Mechanism default prescribed unit price for the first adjusted financial year for the facility.
PE is the number equal to the difference between:
(a) the amount of covered emissions of greenhouse gases (in t CO2‑e) from the operation of the facility during the first adjusted financial year for the facility; and
(b) the hypothetical baseline of the facility for the first adjusted financial year for the facility.
RF is the number of dollars in the revenue of the facility in the first adjusted financial year for the facility.
(2) For the purposes of calculating the revenue of the facility in the first adjusted financial year for the facility, any funding provided to the facility for that financial year under the Powering the Regions Fund must be excluded from that revenue.
(3) However, if the number of dollars in the revenue of the facility in the first adjusted financial year for the facility is less than or equal to zero, the assessed cost impact for the facility for the financial year is the significant cost impact threshold for the facility.
Manufacturing facilities
(4) If a facility is a manufacturing facility in a financial year, the assessed cost impact for the facility for the financial year is the number worked out using the following formula:
Start formula start fraction P subscript SM times PE over EBIT end fraction end formula
where:
PSM is the number of dollars in the Safeguard Mechanism default prescribed unit price for the first adjusted financial year for the facility.
PE is the number equal to the difference between:
(a) the amount of covered emissions of greenhouse gases (in t CO2‑e) from the operation of the facility during the first adjusted financial year for the facility; and
(b) the hypothetical baseline of the facility for the first adjusted financial year for the facility.
EBIT is the number of dollars that is equal to the earnings before interest and tax of the facility in the first adjusted financial year for the facility.
Note: See section 37 (earnings before interest and tax).
(5) However, if the number of dollars that is equal to the earnings before interest and tax of the facility in the first adjusted financial year for the facility is less than or equal to zero, the assessed cost impact for the facility for the financial year is the significant cost impact threshold for the facility.
First adjusted financial year
(6) The first adjusted financial year, for a facility, is:
(a) if the assessed cost impact for the facility is being worked out for the purposes of making or considering an application under section 39 for a determination that the facility is a trade‑exposed baseline‑adjusted facility in a particular financial year and the next 2 financial years—that particular financial year; or
(b) if:
(i) the facility is a trade‑exposed baseline‑adjusted facility in a financial year because of a determination in force under section 42; and
(ii) the assessed cost impact for the facility is being worked out for the purposes of working out the emissions reduction contribution for the facility for the financial year;
the first financial year in which the facility is a trade‑exposed baseline‑adjusted facility because of that determination.
Hypothetical baseline
(7) The hypothetical baseline of a facility for a financial year is:
(a) in the case where an application under section 39 for a determination that the facility is a trade‑exposed baseline‑adjusted facility in that financial year and the next 2 financial years is being made or considered—the number that is equal to what the baseline emissions number for the facility for that financial year would be if that determination were not to be made; or
(b) in the case where:
(i) the facility is a trade‑exposed baseline‑adjusted facility in a financial year because of a determination in force under section 42; and
(ii) the assessed cost impact for the facility is being worked out for the purposes of working out the emissions reduction contribution for the facility for the financial year;
the number that is equal to what the baseline emissions number for the facility for that financial year would be if that determination had not been made.
37 Earnings before interest and tax
(1) The earnings before interest and tax (the EBIT) of a facility for a financial year are to be worked out in accordance with this section.
(2) Subject to subsections (4) and (5), the EBIT of the facility for the financial year is to be calculated in accordance with:
(a) the Australian accounting standards as in force at the end of the financial year; and
(b) any EBIT Guidelines that are in force at that time.
(3) For the purposes of subsection (2), EBIT Guidelines prevail over the Australian accounting standards to the extent of any inconsistency.
Revenue to exclude PRF funding
(4) For the purposes of calculating the EBIT of the facility for the financial year, any funding provided to the facility for the financial year under the Powering the Regions Fund must be excluded from the facility’s revenue for the financial year.
Accelerated depreciation
(5) The EBIT of the facility for the financial year must be calculated using a depreciation schedule that specifies one of the following depreciation factors for each capital expense of the facility:
(a) 1.0;
(b) 1.1;
(c) 1.2.
(6) The factors in paragraphs (5)(b) and (c) are accelerated depreciation factors.
EBIT Guidelines
(7) The Secretary may make written guidelines that relate to working out the earnings before interest and tax of a facility for a financial year. Guidelines made under this subsection are to be known as EBIT Guidelines.
(8) The EBIT Guidelines are to be published on the Department’s website.
38 Safeguard Mechanism default prescribed unit price
Before the end of each financial year beginning after 30 June 2023, the Secretary must publish on the Department’s website an estimate of the average price of a prescribed carbon unit during that financial year. The estimate is to be known as the Safeguard Mechanism default prescribed unit price for the financial year.
Subdivision D—Determination that a facility is a trade‑exposed baseline‑adjusted facility
39 Application for determination that a facility is a trade‑exposed baseline‑adjusted facility
(1) The responsible emitter for a facility may apply to the Regulator for a determination that the facility is a trade‑exposed baseline‑adjusted facility in a particular financial year (the first financial year) and the next 2 financial years.
(2) The application must be made:
(a) in a manner and form approved, in writing, by the Regulator; and
(b) before the end of the due date for the application, unless the Regulator agrees to accept the application after that date.
Note 1: For the due date for the application, see section 52.
Note 2: For withdrawal of the application, see section 53.
(3) The application must include the following information:
(a) if the facility was not a manufacturing facility in the first financial year—all of the following:
(i) subject to subsection 36(2), the revenue of the facility in the first financial year, calculated in accordance with:
(A) the Australian accounting standards as in force at the end of the first financial year; and
(B) any EBIT Guidelines that are in force at that time;
(ii) information about the assumptions made when working out that revenue;
(b) if the facility was a manufacturing facility in the first financial year—all of the following:
(i) the earnings before interest and tax (the EBIT) of the facility in the first financial year, calculated in accordance with section 37;
(ii) information about the assumptions made when working out the EBIT under that section;
(iii) each depreciation factor used in the depreciation schedule used for calculating the EBIT;
(iv) if the depreciation schedule used for calculating the EBIT uses an accelerated depreciation factor—an explanation for why the accelerated depreciation factor is used;
(c) both of the following:
(i) the assessed cost impact for the facility for the first financial year;
(ii) information about the assumptions made when working out that assessed cost impact;
(d) the amount of covered emissions of greenhouse gases from the operation of the facility in the first financial year;
(e) the hypothetical baseline for the facility for the first financial year;
(f) the emissions reduction contribution, and the baseline emissions number, for the facility for the first financial year if:
(i) the determination were made; and
(ii) those numbers were worked out using the assessed cost impact for the facility for the first financial year;
(g) an estimate of the emissions reduction contribution for the facility for each of the next 2 financial years after the first financial year if the determination were made.
(3A) For the purposes of subsection (3)(a)(i), EBIT Guidelines prevail over the Australian accounting standards to the extent of any inconsistency.
(4) The application must include a declaration that the amount of covered emissions of greenhouse gases from the operation of the facility in the first financial year was not increased for the sole or substantial purpose of:
(a) achieving the result that the Regulator makes the determination; or
(b) achieving the result that the emissions reduction contribution for the facility for the first financial year and the next 2 financial years is higher than it would have been but for that increase.
(5) The application, and the declaration under subsection (4), must be signed by:
(a) if the responsible emitter is a body corporate—the chief financial officer (however described) of the responsible emitter; or
(b) otherwise—a person whose duties in relation to the responsible emitter are equivalent to those of the chief financial officer of a body corporate.
(6) The responsible emitter for a facility may make an application under this section even if the facility is already a trade‑exposed baseline‑adjusted facility in the first financial year.
40 Application must be accompanied by safeguard audit report
(1) This section is made for the purposes of subsection 22XQ(3) of the Act.
(2) An application for a determination that a facility is a trade‑exposed baseline‑adjusted facility must be accompanied by an audit report that meets the requirements of this section.
Note: Under subsection 75(1) of the Act, the Minister may determine requirements to be met by registered greenhouse and energy auditors in preparing for and carrying out safeguard audits.
Reasonable assurance matters
(3) The audit report must include a conclusion in relation to each of the following matters:
(a) whether, in all material respects, the information included in the application is correct;
(b) whether, in all material respects, the facility satisfies the criteria specified in subparagraphs 42(2)(a)(vi) and (vii).
(4) An audit report under this section must be the result of an audit which:
(a) was conducted in accordance with the relevant requirements for reasonable assurance engagements under the National Greenhouse and Energy Reporting (Audit) Determination 2009; and
(b) had an audit team leader who is registered as a Category 2 auditor under subregulation 6.25(3) of the NGER Regulations.
41 Consideration of application
(1) This section applies if the responsible emitter for a facility applies for a determination, in accordance with this Subdivision, that the facility is a trade‑exposed baseline‑adjusted facility.
(2) Subject to subsection (4), the Regulator must take all reasonable steps to decide the application before the end of the decision date for the application.
Note: For the decision date for the application, see section 52.
(3) The Regulator may, by notice in writing, require the applicant to give the Regulator, within the period specified in the notice, such further information in relation to the application as the Regulator requires.
(4) The Regulator is not required to decide the application, and may cease considering whether to decide the application, if the applicant does not provide the required information within the period specified in the notice.
42 Determination that a facility is a trade‑exposed baseline‑adjusted facility
(1) If the responsible emitter for a facility applies for a determination, in accordance with this Subdivision, that the facility is a trade‑exposed baseline‑adjusted facility in a particular financial year (the first financial year) and the next 2 financial years, the Regulator must:
(a) make the determination; or
(b) refuse to make the determination.
(2) The Regulator must not make the determination unless:
(a) the Regulator is reasonably satisfied, having regard to any EBIT Guidelines in force at the end of the first financial year and any other matter the Regulator considers relevant, that:
(i) the information included in the application is correct; and
(ii) the borrowing adjustment for the facility for the first financial year is zero; and
(iii) the first financial year is not included in a multi‑year period declaration that is in force in relation to the facility; and
(iv) the number that is equal to the total number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the first financial year is greater than the hypothetical baseline of the facility for that year; and
(v) the amount of covered emissions of greenhouse gases from the operation of the facility in the first financial year was not increased for the sole or substantial purpose of achieving a result mentioned in subsection 39(4); and
(vi) the primary production variable for the facility in the first financial year is a trade‑exposed production variable; and
(vii) the assessed cost impact for the facility for the first financial year is greater than 0.03 (known as the material cost impact threshold); and
(b) the audit report accompanying the application includes a reasonable assurance conclusion, or a qualified reasonable assurance conclusion, in relation to each of the matters specified in subsection 40(3).
(3) The determination must be in writing and comes into force on the first day of the first financial year.
Note: See subsection 22XQ(2) of the Act (commencement of determination).
(4) The determination must specify the emissions reduction contribution for the facility for the first financial year and the next 2 financial years.
Notification of decision etc.
(5) If the Regulator makes a determination under this section, the Regulator must:
(a) notify the applicant for the determination that the Regulator has made the determination; and
(b) publish the determination on the Regulator’s website.
(6) If the Regulator decides to refuse to make a determination under this section, the Regulator must give the applicant for the determination a written notice of the decision that includes the Regulator’s reasons for the decision.
Where previous determination has been revoked at request of responsible emitter
(7) This section has effect subject to section 46 (consequence of revocation at request of responsible emitter).
43 Determination where another determination is already in force
(1) The Regulator may make a determination under section 42 (the new determination) that a facility is a trade‑exposed baseline‑adjusted facility in a particular financial year and the next 2 financial years even if the facility is already a trade‑exposed baseline‑adjusted facility in that particular financial year because of another determination in force under that section.
(2) If the Regulator makes the new determination, the Regulator must revoke the other determination.
(3) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
Subdivision E—Variation and revocation of determination that a facility is a trade‑exposed baseline‑adjusted facility
44 Variation on Regulator’s initiative
(1) This section applies if a facility is a trade‑exposed baseline‑adjusted facility in a particular financial year (the first financial year) and the next 2 financial years because of a determination in force under section 42.
(2) The Regulator may vary the determination in accordance with this section if the Regulator is satisfied that:
(a) the assessed cost impact for the facility for the first financial year was incorrectly calculated; or
(b) information provided to the Regulator in connection with the application for the determination was false or misleading in a material particular.
(3) If the Regulator proposes to vary the determination, the Regulator must notify the responsible emitter for the facility in writing that the Regulator proposes to do so.
(4) The notice must:
(a) specify what the emissions reduction contribution for the facility would be in the first financial year and the next 2 financial years if the variation were made; and
(b) invite the responsible emitter to provide a written response to the proposed variation within the period specified in the notice.
(5) Within 30 days after the end of the period specified in the notice, the Regulator must consider the responsible emitter’s response (if any) to the proposed variation and decide to:
(a) vary the determination; or
(b) not vary the determination.
(6) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
Notification of decision etc.
(7) If the Regulator decides to vary the determination, the Regulator must:
(a) give the responsible emitter a written notice of the decision that includes the Regulator’s reasons for the decision; and
(b) publish the determination, as varied, on the Regulator’s website.
(8) If the Regulator decides not to vary the determination, the Regulator must notify the responsible emitter of that decision in writing.
45 Revocation at request of responsible emitter
(1) This section applies if a facility is a trade‑exposed baseline‑adjusted facility in a particular financial year and the next 2 financial years because of a determination in force under section 42.
(2) The responsible emitter for the facility may request that the Regulator revoke the determination.
(3) The request must be made, in writing, before the end of the first 31 October after one of the financial years mentioned in subsection (1).
(4) If the responsible emitter makes the request in accordance with subsection (3), the Regulator must:
(a) revoke the determination; and
(b) notify the responsible emitter, in writing, that the Regulator has done so.
(5) The revocation takes effect at the start of the financial year in which the request was made.
(6) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
46 Consequence of revocation at request of responsible emitter
If:
(a) a facility is a trade‑exposed baseline‑adjusted facility in 3 financial years (the TEBA years) because of a determination in force under section 42; and
(b) the Regulator revokes that determination under section 45; and
(c) the responsible emitter for the facility applies under section 39 for another determination that the facility is a trade‑exposed baseline‑adjusted facility in a particular financial year (the first financial year) and the next 2 financial years;
the Regulator must not make the other determination unless the facility has been a regular facility for at least one financial year during the period:
(d) beginning at the start of the first of the TEBA years; and
(e) ending immediately before the start of the first financial year.
Division 6—Borrowing adjustment
47 Borrowing adjustment
Financial years ending before 1 July 2026
(1) The borrowing adjustment, for a facility for a financial year that ends before 1 July 2026, is the number worked out using the following formula:
Start formula BD minus 1.02 times BDP end formula
where:
BD is:
(a) if a borrowing adjustment determination specifies a borrowing adjustment number for the facility for the financial year—that number; or
(b) otherwise—0.
BDP is:
(a) if a borrowing adjustment determination specified a borrowing adjustment number for the facility for the previous financial year—that number; or
(b) otherwise—0.
Financial years beginning on or after 1 July 2026
(2) The borrowing adjustment, for a facility for a financial year that begins on or after 1 July 2026, is the number worked out using the following formula:
Start formula BD minus 1.1 times BDP end formula
where:
BD is:
(a) if a borrowing adjustment determination specifies a borrowing adjustment number for the facility for the financial year—that number; or
(b) otherwise—0.
BDP is:
(a) if a borrowing adjustment determination specified a borrowing adjustment number for the facility for the previous financial year—that number; or
(b) otherwise—0.
48 Application for borrowing adjustment determination
(1) The responsible emitter for a facility may apply to the Regulator for a borrowing adjustment determination for the facility for a financial year.
(2) The application must be made:
(a) in a manner and form approved, in writing, by the Regulator; and
(b) before the end of the due date for the application, unless the Regulator agrees to accept the application after that date.
Note 1: For the due date for the application, see section 52.
Note 2: For withdrawal of the application, see section 53.
(3) The application must specify a number as the proposed borrowing adjustment number for the facility for the financial year.
49 Consideration of application
(1) This section applies if the responsible emitter for an existing facility applies for a borrowing adjustment determination in accordance with section 48.
(2) Subject to subsection (4), the Regulator must take all reasonable steps to decide the application before the end of the decision date for the application.
Note: For the decision date for the application, see section 52.
(3) The Regulator may, by notice in writing, require the applicant to give the Regulator, within the period specified in the notice, such further information in relation to the application as the Regulator requires.
(4) The Regulator is not required to decide the application, and may cease considering whether to decide the application, if the applicant does not provide the required information within the period specified in the notice.
50 Borrowing adjustment determination
(1) If the responsible emitter for a facility applies in accordance with section 48 for a borrowing adjustment determination for the facility for a financial year, the Regulator must decide to:
(a) make the determination; or
(b) refuse to make the determination.
(2) The Regulator must not make the determination unless the Regulator is satisfied that:
(a) the number proposed as the borrowing adjustment number in the application is not greater than 10% of the unadjusted baseline for the facility for the financial year; and
(b) no safeguard mechanism credit units have been issued in relation to the facility for the financial year; and
(c) the financial year is not included in a declared multi‑year period for the facility; and
(d) the facility is likely to be a designated large facility in the financial year immediately following the financial year mentioned in subsection (1).
(3) A borrowing adjustment determination for a facility for a financial year must be in writing and must specify the borrowing adjustment number for the facility for the financial year.
(4) In this section, the unadjusted baseline for a facility for a financial year (the relevant financial year) is:
(a) if a borrowing adjustment determination specified a borrowing adjustment number for the facility for the previous financial year—the baseline emissions number for the facility for the relevant financial year worked out using that borrowing adjustment number; or
(b) otherwise—the baseline emissions number for the facility for the relevant financial year if the borrowing adjustment number for the facility for the relevant financial year were 0.
Notification of decision etc.
(5) If the Regulator makes a determination under this section, the Regulator must:
(a) notify the applicant for the determination that the Regulator has made the determination; and
(b) publish the determination on the Regulator’s website.
(6) If the Regulator decides to refuse to make a determination under this section, the Regulator must give the applicant for the determination a written notice of the decision that includes the Regulator’s reasons for the decision.
51 No borrowing adjustment for year included in multi‑year period declaration
(1) The Regulator must revoke a borrowing adjustment determination if:
(a) the determination specifies a borrowing adjustment number for a facility for a financial year; and
(b) the Regulator declares that, for the purposes of section 22XG of the Act, a specified period is a declared multi‑year period for the facility; and
(c) the financial year is included in that period.
(2) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
Division 7—Miscellaneous
Subdivision A—Applications under this Part
52 Due date and decision date for applications
(1) The due date for an application under this Part that is specified in column 1 of an item of the following table is the day specified in column 2 of that item.
(2) The decision date for an application under this Part that is specified in column 1 of an item of the following table is the day specified in column 3 of that item.
<table cellspacing="0" cellpadding="0" style="margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="4" style="width:404.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Due date and decision date for applications</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span></span></p><p class="TableHeading"><span>Item</span></p></td><td style="width:115.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 1</span></p><p class="Tabletext"><span style="font-weight:bold">Application</span></p></td><td style="width:88.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="Tabletext"><span style="font-weight:bold">Due date</span></p></td><td style="width:142.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p><p class="Tabletext"><span style="font-weight:bold">Decision date</span></p></td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:115.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Application under section</span><span> </span><span>14 for an emissions intensity determination that specifies the financial year beginning on 1</span><span> </span><span>July 2023 as the first financial year to which the determination would apply</span></p></td><td style="width:88.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>30</span><span> </span><span>April 2024</span></p></td><td style="width:142.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The later of:</span></p><p class="Tablea"><span>(a) 31</span><span> </span><span>January 2025; and</span></p><p class="Tablea"><span>(b) the day that is 60 days after the end of a period specified in any notice under subsection</span><span> </span><span>18(3) in relation to the application</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:115.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Application under section</span><span> </span><span>14 for an emissions intensity determination that specifies a financial year beginning on 1</span><span> </span><span>July 2024 or a later 1</span><span> </span><span>July as the first financial year to which the determination would apply</span></p></td><td style="width:88.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The first 31</span><span> </span><span>October after the end of the financial year</span></p></td><td style="width:142.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The day that is:</span></p><p class="Tablea"><span>(a) 60 days after the application is made; or</span></p><p class="Tablea"><span>(b) if a notice is given under subsection</span><span> </span><span>18(3) in relation to the application—60 days after the end of the period specified in the notice</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:115.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Application under section</span><span> </span><span>39 for a determination that a facility is a trade</span><span>‑</span><span>exposed baseline</span><span>‑</span><span>adjusted facility in a particular financial year (the </span><span style="font-weight:bold; font-style:italic">first financial year</span><span>) and the next 2 financial years</span></p></td><td style="width:88.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The first 31</span><span> </span><span>October after the end of the first financial year</span></p></td><td style="width:142.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The day that is:</span></p><p class="Tablea"><span>(a) 60 days after the application is made; or</span></p><p class="Tablea"><span>(b) if a notice is given under subsection</span><span> </span><span>41(3) in relation to the application—60 days after the end of the period specified in the notice</span></p></td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:115.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Application under section</span><span> </span><span>48 for a borrowing adjustment determination for a facility for a financial year</span></p></td><td style="width:88.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The first 28</span><span> </span><span>February after the end of the financial year</span></p></td><td style="width:142.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The day that is:</span></p><p class="Tablea"><span>(a) 30 days after the application is made; or</span></p><p class="Tablea"><span>(b) if a notice is given under subsection</span><span> </span><span>49(3) in relation to the application—30 days after the end of the period specified in the notice</span></p></td></tr></tbody></table>
53 Withdrawal of applications
At any time before the Regulator decides an application mentioned in column 1 of the table in section 52, the applicant may withdraw, in writing, the application.
Subdivision B—Shale gas extraction facilities
54 Meaning of shale gas extraction facility
(1) A facility is a shale gas extraction facility if:
(a) the activity, or the series of activities, that constitutes the facility is or includes the extraction of gas from a geological formation by means of processes that include hydraulic fracturing; and
(b) more than 90% of the gas extracted from the geological formation is shale gas; and
(c) emissions from the extraction and use of gas from the geological formation would likely exceed 100 million tonnes of carbon dioxide equivalence in total if the formation were fully exploited.
(2) A facility is also a shale gas extraction facility if:
(a) the activity, or the series of activities, that constitutes the facility is the exploration of a geological formation that contains shale gas; and
(b) processes that include hydraulic fracturing would be needed to extract gas from the formation; and
(c) emissions from the extraction and use of gas from the geological formation would likely exceed 100 million tonnes of carbon dioxide equivalence in total if the formation were fully exploited.
Part 3A—Safeguard mechanism credit units
Division 1—General
55 Purpose and application of Part
(1) Unless otherwise provided, the provisions of this Part are made for the purposes of subsection 22XNA(2) of the Act.
(2) This Part applies in relation to financial years, and declared multi‑year periods, that begin after 30 June 2023.
Division 2—Issuing safeguard mechanism credit units
56 Issuing safeguard mechanism credit units for a financial year
Application for safeguard mechanism credit units
(1) The responsible emitter for a facility may apply to the Regulator to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for a particular financial year.
Issue of safeguard mechanism credit units
(2) The Regulator must consider the application as soon as reasonably practicable after receiving it, and if the Regulator:
(a) is satisfied of the matters specified in subsection (3); and
(b) has no evidence to suggest that the quantity of a production variable for the facility for the financial year, or the covered emissions of greenhouse gases from the operation of the facility in the financial year, have been inaccurately reported to the Regulator;
the Regulator must:
(c) determine, in accordance with:
(i) subsection (4); or
(ii) if the responsible emitter was the responsible emitter for the facility on a number of days in the financial year that is less than 365—subsections (4) and (5);
the number of units to be issued; and
(d) decide to issue that number of units to the responsible emitter.
Note: See also section 58A (identifying safeguard mechanism credit units with a financial year etc.).
Matters of which the Regulator must be satisfied
(3) The following matters are specified:
(a) the baseline emissions number for the facility for the financial year is greater than the sum of:
(i) the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the financial year; and
(ii) the number of Australian carbon credit units (if any) by which the net emissions number for the facility for the financial year is increased under subsection 22XK(4) of the Act;
(b) the facility is not a landfill facility;
(c) the facility is a designated large facility, or an eligible facility, for the financial year;
(d) no borrowing adjustment determination specifies a borrowing adjustment number for the facility for the financial year;
(e) the financial year is not included in a declared multi‑year period for the facility.
Number of safeguard mechanism credit units to be issued
(4) The number of units to be issued is worked out using the following formula:
Start formula BEN minus E minus Increase end formula
where:
BEN is the baseline emissions number for the facility for the financial year that would be ascertained in accordance with Part 3 if subsection 10(1) had not been enacted.
Note: Subsection 10(1) provides for a minimum baseline emissions number of 100,000.
E is the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the financial year.
Increase is the number of Australian carbon credit units (if any) by which the net emissions number for the facility for the financial year is increased under subsection 22XK(4) of the Act.
(5) If the responsible emitter was the responsible emitter for the facility on a number of days (the relevant number) in the financial year that is less than 365, the number of units to be issued is worked out using the following formula:
Start formula SMC times start fraction RN over 365 end fraction end formula
where:
SMC means the number worked out using the formula in subsection (4).
RN means the relevant number.
57 Issuing safeguard mechanism credit units for a declared multi‑year period
Application for safeguard mechanism credit units
(1) The responsible emitter for a facility may apply to the Regulator to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for a particular declared multi‑year period for the facility.
Issue of safeguard mechanism credit units
(2) The Regulator must consider the application as soon as reasonably practicable after receiving it, and if the Regulator:
(a) is satisfied of the matters specified in subsection (3); and
(b) has no evidence to suggest that the quantity of a production variable for the facility for a financial year included in the declared multi‑year period, or the covered emissions of greenhouse gases from the operation of the facility in the declared multi‑year period, have been inaccurately reported to the Regulator;
the Regulator must:
(c) determine, in accordance with subsection (4), the number of units to be issued; and
(d) decide to issue that number of units to the responsible emitter.
Note: See also section 58A (identifying safeguard mechanism credit units with a financial year etc.).
Matters of which the Regulator must be satisfied
(3) The following matters are specified:
(a) the baseline emissions number for the facility for the declared multi‑year period is greater than the sum of:
(i) the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during each financial year included in the declared multi‑year period; and
(ii) the number of Australian carbon credit units (if any) by which the net emissions number for the facility for the declared multi‑year period is increased under subsection 22XK(4) of the Act;
(b) the facility is not a landfill facility;
(c) the facility is a designated large facility, or an eligible facility, for each of the financial years included in the declared multi‑year period;
(d) no borrowing adjustment determination specifies a borrowing adjustment number for the facility for a financial year included in the declared multi‑year period.
Number of safeguard mechanism credit units to be issued
(4) The number of units to be issued is worked out using the following formula:
Start formula sigma above subscript t BEN subscript t minus E subscript t minus Increase subscript t end formula
where:
t is a financial year included in the declared multi‑year period.
BEN, in relation to a financial year included in the declared multi‑year period, is the baseline emissions number for the facility for the financial year that would be ascertained in accordance with Part 3 if subsection 10(1) had not been enacted.
Note: Subsection 10(1) provides for a minimum baseline emissions number of 100,000.
E, in relation to a financial year included in the declared multi‑year period, is the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the financial year.
Increase, in relation to a financial year included in the declared multi‑year period, is the number of Australian carbon credit units (if any) by which the net emissions number for the facility for the financial year is increased under subsection 22XK(4) of the Act.
58 Application requirements
(1) An application for safeguard mechanism credit units by a responsible emitter under subsection 56(1) or 57(1) must be in writing and must:
(a) specify the Registry account kept by the responsible emitter in which, if the Regulator decides to issue the units, the Regulator must make an entry for the units; and
(b) include an acknowledgement that the Regulator may require the relinquishment of safeguard mechanism credit units issued on false or misleading information or as a result of fraudulent conduct.
Note: For the requirement to relinquish safeguard mechanism credit units in certain circumstances, see sections 22XNE and 22XNF of the Act.
(2) At any time before the Regulator decides the application, the responsible emitter may, in writing, withdraw the application.
Division 3—Timing etc. of issue of safeguard mechanism credit units
58A Identifying safeguard mechanism credit units with a financial year etc.
Identifying safeguard mechanism credit units with a financial year
(1) For the purposes of subsection 22XNC(2) of the Act:
(a) if the Regulator decides to issue a safeguard mechanism credit unit to a person in relation to a facility for a financial year—the Regulator must identify the unit with that financial year; or
(b) if the Regulator decides to issue a safeguard mechanism credit unit to a person in relation to a facility for a declared multi‑year period for the facility—the Regulator must identify the unit with the most recent financial year included in that declared multi‑year period.
When safeguard mechanism credit units are to be issued for financial years
(2) If:
(a) the responsible emitter for a facility applies under subsection 56(1) to the Regulator to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for a particular financial year; and
(b) the application is made before the first 31 January after the end of the financial year; and
(c) the Regulator decides to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for the financial year;
the Regulator must issue those units on a day that is as close to that 31 January as is reasonably practicable.
When safeguard mechanism credit units are to be issued for declared multi‑year periods
(3) If:
(a) the responsible emitter for a facility applies under subsection 57(1) to the Regulator to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for a particular declared multi‑year period for the facility; and
(b) the application is made before the first 31 January after the end of the declared multi‑year period; and
(c) the Regulator decides to issue safeguard mechanism credit units to the responsible emitter in relation to the facility for the declared multi‑year period;
the Regulator must issue those units on a day that is as close to that 31 January as is reasonably practicable.
Division 4—Eligible facilities
58B Meaning of eligible facility
(1) A facility is an eligible facility, for a financial year (the current financial year), if:
(a) the facility was a designated large facility for another financial year (the last covered financial year); and
(b) the facility has not been a designated large facility for any of the financial years beginning after the last covered financial year; and
(c) the current financial year is one of the 10 financial years following the last covered financial year; and
(d) the facility was a designated large facility in at least:
(i) 3 historical financial years; or
(ii) 2 of the financial years in the period of 4 financial years immediately preceding the last covered financial year; and
(e) subsection (3) applies to the facility for the current financial year.
(2) A facility is also an eligible facility, for the current financial year, if:
(a) the current financial year begins after 30 June 2028; and
(b) the facility was a designated large facility for at least 3 of the financial years in the period of 5 financial years immediately preceding the current financial year; and
(c) subsection (3) applies to the facility for the current financial year.
(3) This subsection applies to a facility for the current financial year if:
(a) either:
(i) an emissions intensity determination applies in relation to the facility for the current financial year; or
(ii) the facility is a new facility; and
(b) no Australian carbon credit units attributable to the avoidance of covered emissions of greenhouse gases from the operation of the facility were issued under the Carbon Credits (Carbon Farming Initiative) Act 2011 in the current financial year or the previous financial year, in respect of an eligible offsets project that reduced covered emissions of greenhouse gases from the operation of the facility.
(4) A facility is also an eligible facility, for the current financial year, if:
(a) the facility was a designated large facility for another financial year (the last covered financial year); and
(b) the facility has not been a designated large facility for any of the financial years beginning after the last covered financial year; and
(c) the current financial year is one of the 10 financial years following the earlier of:
(i) the last year for which safeguard mechanism credits were not issued to a person in relation to the facility; and
(ii) the financial year 3 years after the last covered financial year; and
(d) the facility was a designated large facility in at least:
(i) 3 historical financial years; or
(ii) 2 of the financial years in the period of 4 financial years immediately preceding the last covered financial year; and
(e) subsection (3) applies to the facility for the current financial year; and
(f) no safeguard mechanism credits have been issued to a person in relation to the facility for the financial year after the last covered financial year.
Part 4—Compliance
Division 1—Exemption declarations
59 Operation of this Division
For subsections 22XE(2), (3) and (4) of the Act, this Division provides for an exemption declaration to be issued in relation to a facility for a monitoring period.
60 Application
(1) The responsible emitter for a facility may apply to the Regulator for an exemption declaration for the facility for a monitoring period.
(2) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and monitoring period for which an exemption declaration is sought; and
(c) include information and documents substantiating:
(i) why an exemption declaration should be made; and
(ii) if the application relates to criminal activity—the reasonableness of the steps the responsible emitter took:
(A) before the criminal activity occurred, to mitigate risks that criminal activity could result in an excess; and
(B) after the criminal activity occurred, to mitigate the likelihood of an excess as a result of the criminal activity; and
(iii) if the application relates to a natural disaster—the reasonableness of the steps the responsible emitter took:
(A) before the natural disaster occurred, to mitigate risks that a natural disaster could result in an excess; and
(B) after the natural disaster occurred, to mitigate the likelihood of an excess as a result of the natural disaster; and
(iv) any other factors that have significantly impacted the covered emissions of the facility over the monitoring period.
(3) An application under subsection (1) must be given to the Regulator no later than the first 31 October after the end of a monitoring period for which the exemption declaration is sought.
(4) The responsible emitter for the facility may, by written notice to the Regulator, withdraw an application at any time before the Regulator makes a decision on the application.
61 Further information
(1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.
(2) If the applicant breaches the requirement, the Regulator may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
62 Issue of exemption declaration
Scope
(1) This section applies if an application under section 60 has been made for an exemption declaration for a facility for a monitoring period.
Issue of exemption declaration
(2) If the Regulator is satisfied that:
(a) disregarding subsections 22XK(2) and (3) of the Act, the net emissions number for the facility for the monitoring period exceeds the baseline emissions number for the facility for the monitoring period; and
(b) that excess is the direct result of either or both of the following:
(i) a natural disaster;
(ii) criminal activity; and
(c) if the excess relates to criminal activity—the responsible emitter:
(i) had, before the criminal activity occurred, taken reasonable steps to mitigate risks that criminal activity could result in an excess; and
(ii) has, after the criminal activity occurred, taken reasonable steps to mitigate the likelihood of an excess as a result of the criminal activity; and
(iii) the responsible emitter was not complicit in the criminal activity; and
(d) if the excess relates to a natural disaster—the responsible emitter:
(i) had, before the natural disaster occurred, taken reasonable steps to mitigate risks that a natural disaster could result in an excess; and
(ii) has, after the natural disaster occurred, taken reasonable steps to mitigate the likelihood of an excess as a result of the natural disaster;
the Regulator must issue an exemption declaration for the facility for the monitoring period.
Timing
(3) The Regulator must take all reasonable steps to ensure that a decision is made on the application:
(a) if the Regulator requires the applicant to give further information under subsection 61(1) in relation to the application—within 60 days after the applicant gave the Regulator the information; or
(b) otherwise—within 60 days after the application was made.
Notification
(4) As soon as practicable after making an exemption declaration, the Regulator must:
(a) provide written notice of the declaration to the responsible emitter for the facility covered by the declaration; and
(b) publish the details of the declaration on its website.
Refusal
(5) If the Regulator decides to refuse to issue an exemption declaration, the Regulator must give written notice of the decision to the applicant.
63 Revocation of exemption declaration because of false or misleading information
(1) If the Regulator is satisfied that:
(a) information provided to the Regulator by the responsible emitter in connection with the making of an exemption declaration was false or misleading in a material particular; and
(b) the Regulator would not have been satisfied of the matters set out in subsection 62(2) if the false or misleading information had not been provided;
the Regulator may revoke the exemption declaration with effect from at least 30 days after the notification of a decision under this section.
(2) Before the Regulator revokes an exemption declaration, the Regulator must provide a written notice to the responsible emitter for the facility for the monitoring period covered by the exemption declaration:
(a) stating that it intends to revoke the exemption declaration in relation to the facility under this section; and
(b) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to revoke or decide not to revoke the exemption declaration no later than 30 days after the date specified in the notice.
(4) As soon as practicable after revoking an exemption declaration, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility for the monitoring period covered by the exemption declaration; and
(b) publish the details of the revocation of the exemption declaration on its website.
(5) To avoid doubt, a decision to revoke an exemption declaration under this section is a reviewable decision under section 56 of the Act.
Division 2—Declared multi‑year periods
64 Operation of this Division
For subsection 22XG(5) of the Act, this Division provides for the declaration of a specified period as a declared multi‑year period for a facility.
65 Application
(1) The responsible emitter for a facility may apply to the Regulator for declaration of a specified period as a declared multi‑year period for a facility (a multi‑year period declaration).
(2) However, an application may not be made if the proposed declared multi‑year period would overlap with an existing declared multi‑year period for the facility.
(3) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and declared multi‑year period for which the declaration is sought; and
(c) specify the amount of covered emissions (in t CO2‑e) emitted, or reasonably likely to be emitted, for the proposed first financial year of the declared multi‑year period; and
(d) include a declaration that the responsible emitter will:
(i) during the multi‑year period, conduct one or more activities to reduce the emissions intensity of the production variables for the facility; and
(ii) as a result of conducting that activity or those activities, be reasonably likely to prevent an excess emissions situation from existing in relation to the facility for the multi‑year period; and
(e) include a plan setting out how conducting that activity or those activities is reasonably likely to enable the responsible emitter to reduce the net emissions number for the facility for the multi‑year period; and
(f) include a summary of the plan; and
(g) if the responsible emitter is aware of any risks they will breach section 22XF of the Act at the end of the declared multi‑year period—provide an explanation of those risks; and
(h) be signed by a responsible financial officer for the responsible emitter or a person authorised by a responsible financial officer for the responsible emitter.
Note: The Regulator is required to publish a summary included in an application for the purpose of paragraph (3)(f): see paragraph 72(1)(d).
(4) An application under subsection (1) must be given to the Regulator no later than the first 15 November after the end of the proposed first financial year of the declared multi‑year period.
(5) The responsible emitter for the facility may, by written notice to the Regulator, withdraw an application at any time before the Regulator makes a decision on the application.
66 Further information
(1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.
(2) If the applicant breaches the requirement, the Regulator may, by written notice given to the applicant:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
67 Making of multi‑year period declaration
Scope
(1) This section applies if an application under section 65 has been made for a multi‑year period declaration for a facility.
Making of multi‑year period declaration
(2) If the Regulator is satisfied the facility’s covered emissions (in t CO2‑e) for the proposed first financial year of the declared multi‑year period are greater than the baseline emissions number with respect to that facility, it may make a multi‑year period declaration for the facility having regard to:
(a) whether the responsible emitter has previously breached section 22XF of the Act; and
(b) whether the Regulator considers that there is a significant risk the responsible emitter will breach section 22XF of the Act after the end of the declared multi‑year period; and
(c) whether the Regulator considers that the responsible emitter is likely to experience financial stress in, or immediately after, the declared multi‑year period; and
(ca) whether the Regulator considers that the plan mentioned in paragraph 65(3)(e) is likely to reduce the facility’s covered emissions below the facility’s baseline emissions number for the declared multi‑year period; and
(d) such other matters (if any) as the Regulator considers relevant.
(3) If the Regulator decides to make a multi‑year period declaration, it must specify a declared multi‑year period for the facility that is:
(a) 2 financial years; or
(b) 3 financial years; or
(c) 4 financial years; or
(d) 5 financial years.
(3A) The Regulator must not make a multi‑year period declaration with an end date later than 30 June 2030.
Timing
(4) The Regulator must take all reasonable steps to ensure that a decision is made on the application by the later of:
(a) 31 January after the end of the proposed first financial year of the declared multi‑year period; and
(b) if the Regulator requires the applicant to give further information under subsection 66(1) in relation to the application—60 days after the applicant gives the Regulator the information.
Notification
(5) As soon as practicable after making a multi‑year period declaration, the Regulator must:
(a) provide written notice of the declaration to each responsible emitter for the facility in the period covered by the declaration; and
(b) publish the details of the declaration on its website.
Refusal
(6) If the Regulator decides not to make a multi‑year period declaration, the Regulator must give written notice of the decision to the applicant.
68 Variation or revocation of multi‑year period declaration on request
(1) The responsible emitter for a facility may apply to the Regulator to:
(a) reduce the length of the declared multi‑year period in a multi‑year period declaration by 1 or more years, down to a minimum of 2 years; or
(b) extend the length of a declared multi‑year period in a multi‑year period declaration by 1 or more years, up to a maximum of 5 years; or
(c) revoke the multi‑year period declaration.
(2) The application must:
(a) be given in a manner and form approved, in writing, by the Regulator; and
(b) specify the facility and multi‑year period declaration to be varied or revoked; and
(c) include the reasons for the proposed variation or revocation; and
(d) if the variation or revocation would impact the length of a monitoring period for a person other than the applicant—include the written consent of that person to the making of the application.
(3) After considering an application which complies with subsection (1) and (2), the Regulator may vary or revoke the multi‑year period declaration as requested by the applicant.
Note: See also section 90 (Regulator must not extend multi‑year period declaration in force before 1 July 2023).
Notification
(4) As soon as practicable after varying or revoking a multi‑year period declaration, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility for the declared multi‑year period covered by the multi‑year period declaration; and
(b) publish the details of the variation or revocation of the multi‑year period declaration on its website.
Refusal
(5) If the Regulator decides not to vary or revoke a multi‑year period declaration, the Regulator must give written notice of the decision to the applicant.
(6) To avoid doubt, a decision to decide to vary or revoke, or decide not to vary or revoke, a multi‑year period declaration under this section is a reviewable decision under section 56 of the Act.
69 Revocation of multi‑year period declaration because of false or misleading information
(1) If, during a declared multi‑year period, the Regulator becomes satisfied that:
(a) information provided to the Regulator by the responsible emitter in connection with the making of the multi‑year period declaration for the declared multi‑year period was false or misleading in a material particular; and
(b) the Regulator would not have made the multi‑year period declaration if the false or misleading information had not been provided;
the Regulator may revoke the multi‑year period declaration with effect from at least 30 days after the notification of the decision under this section.
(2) Before the Regulator revokes the multi‑year period declaration, the Regulator must provide a written notice to each responsible emitter for the facility for the declared multi‑year period:
(a) stating that it intends to revoke the multi‑year period declaration in relation to the facility under this section; and
(b) seeking any comments by a date specified in the notice.
(3) The Regulator must consider any comments received by the date specified in the notice and use all reasonable endeavours to revoke or decide not to revoke the multi‑year period declaration no later than 30 days after the date specified in the notice.
(4) As soon as practicable after revoking a multi‑year period declaration, the Regulator must:
(a) provide written notice of the decision to each responsible emitter for the facility for the declared multi‑year period; and
(b) publish the details of the revocation of the multi‑year period declaration on its website.
(5) To avoid doubt, a decision to revoke a multi‑year period declaration under this section is a reviewable decision under section 56 of the Act.
69A Explanation of performance against plan for avoiding an excess emissions situation at end of declared multi‑year period
(1) This section applies if:
(a) under subsection 65(1), a responsible emitter for a facility applied for a multi‑year period declaration on or after the day this section commences; and
(b) under section 67, the Regulator made a multi‑year declaration for the facility.
(2) By the first 31 October after the end of the last financial year of the declared multi‑year period, the responsible emitter must submit to the Regulator a written explanation describing how the facility performed against its plan provided for the purposes of paragraph 65(3)(e).
Note: The Regulator is required to publish an explanation given under this section: see paragraph 72(1)(e).
69B Variation of multi‑year period declaration where emissions are not being reduced
(1) The Regulator may vary a multi‑year period declaration that is in force in relation to a facility to reduce the number of financial years included in the declaration if the Regulator is satisfied that:
(a) the responsible emitter for the facility is not implementing, or is unable to implement, the plan given to the Regulator in accordance with paragraph 65(3)(e); and
(b) the number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the multi‑year period is likely to exceed the baseline emissions number for the facility for the period.
(2) If the Regulator decides to vary the declaration, the Regulator must vary the declaration so that it ceases to be in force at the end of the financial year in which the Regulator becomes satisfied of the matters in subsection (1).
(3) If the Regulator is considering whether to vary, under this section, a multi‑year period declaration that is in force in relation to a facility, the Regulator may, by written notice given to the responsible emitter for the facility, request that the responsible emitter provide, within the period specified in the notice, the Regulator with specified information that the Regulator considers relevant to the potential variation.
(4) This section does not limit subsection 33(3) of the Acts Interpretation Act 1901.
Division 3—Notification and publication requirements
70 Operation of this Division
For subsection 22XP(2) and paragraph 22XS(1)(b) of the Act, this Division provides for the issue of advisory notices and other information publication requirements.
71 Advisory notices
(1) The Regulator must notify the responsible emitter for a designated large facility as soon as practicable after:
(a) the net emissions number for the facility is increased under subsection 22XK(4) of the Act; or
(b) deemed surrender occurs under subsection 22XN(6) of the Act in relation to the facility.
(2) A notification under paragraph (1)(a) must include the unique identification numbers for each Australian carbon credit unit that has resulted in the increase in the net emissions number for the facility.
(3) The Regulator may notify the responsible emitter for a facility of any of the following:
(a) the number that the Regulator considers is the net emissions number of the facility;
(b) that an offsets report has been submitted which attributes abatement to the facility;
(c) any other matters relating to the safeguard provisions that the Regulator considers appropriate to provide notification.
(4) At the request of the responsible emitter for a facility, the Regulator may provide the responsible emitter with any reports relating to the facility under the Act relevant to the making or variation of an emissions intensity determination under this instrument.
72 Publication
(1) The Regulator must publish on its website and keep up‑to‑date the following information relating to the safeguard mechanism:
(a) in respect of each facility that is a designated large facility, or an eligible facility, for a financial year:
(i) the responsible emitter for the facility; and
(ii) whether or not the facility is a grid‑connected electricity generator; and
(iii) the current baseline emissions number for the facility; and
(iv) the baseline emissions number for each financial year that the facility is a designated large facility or an eligible facility (as the case may be); and
(v) the covered emissions of the facility for each financial year that the facility is a designated large facility or an eligible facility (as the case may be); and
(vi) if the facility is a grid‑connected electricity generator—the covered emissions for each financial year after 1 July 2016 calculated on the basis that no financial year is a sectoral‑baseline financial year; and
(vii) the net emissions number for each monitoring period that applies to the facility; and
(viii) the number of prescribed carbon units surrendered under subsection 22XN(1) of the Act for each monitoring period that applies to the facility; and
(ix) if a multi‑year period declaration applies to the facility—the start date and end date of the declared multi‑year period for the facility; and
(x) the start date and end date of any monitoring period for which an exemption declaration has been made in relation to the facility; and
(xi) any increase in the net emissions number under subsection 22XK(4) of the Act or deemed surrender under subsection 22XN(6); and
(xii) if there is an emissions reduction contribution for the facility for a financial year (the facility‑specific ERC) that is different from the default emissions reduction contribution for that financial year—the facility‑specific ERC; and
(xiii) if there is a borrowing adjustment number for the facility for a financial year—that borrowing adjustment number; and
(xiv) if a number of safeguard mechanism credit units is issued to the responsible emitter for the facility for a financial year—the number of safeguard mechanism credit units issued to the responsible emitter for that financial year;
(b) in respect of any excess emissions situations resulting in a breach of section 22XF of the Act:
(i) the responsible emitter for the excess emissions situation; and
(ii) when the excess emissions situation started; and
(iii) if the excess emissions situation no longer exists—the date when the excess emissions situation ended;
(c) the covered emissions of each grid‑connected electricity generator for each financial year after 1 July 2016 calculated on the basis that no financial year is a sectoral‑baseline financial year;
(d) in respect of each application for a declaration of a specified period as a declared multi‑year period for a facility, the summary mentioned in paragraph 65(3)(f);
(e) each explanation submitted to the Regulator under subsection 69A(2).
Note: The publication of certain types of information is subject to section 25 of the Act.
(2) The information required to be published under paragraph (1)(c) and subparagraphs (1)(a)(v) and (vi) need not be published until information is published in respect of the relevant financial year under section 24 of the Act.
(3) The information required to be published under subparagraphs (1)(a)(vii) and (viii) need not be published until after the first 1 April following the end of the relevant monitoring period.
(4) If the total amount of covered emissions of greenhouse gases from the operation of a designated large facility during a financial year is set out in a report under this Act for the financial year, the Regulator must publish on its website by the first 15 April after the end of the financial year, the methods used by the facility to estimate each source of fugitive methane emissions from the following for the financial year:
(a) coal mining activities; and
(b) oil and natural gas activities.
Division 4—Net emissions number
72A Excess surrender situation
(1) This section applies if a person surrendered a number of prescribed carbon units for the purpose of reducing the net emissions number for a facility for a period (the relevant period).
(2) There is taken to be an excess surrender situation of the person in relation to the facility for the relevant period if:
(a) the person surrendered some or all of those units because of an error on the part of the Regulator; or
(b) all of the following apply:
(i) the person surrendered some or all of those units because of an error on the part of the person or another person;
(ii) the error concerned the amount of covered emissions of greenhouse gases from the operation of the facility, or the quantity of a production variable for the facility, during the relevant period;
(iii) the Regulator required a report under the Act to be resubmitted because of the error;
(iv) the Regulator is satisfied that the error was made in good faith.
(3) Units are taken to be covered by the excess surrender situation if:
(a) they were surrendered by the person because of an error mentioned in subsection (2); and
(b) the person, by written notice given to the Regulator, requests that those units be surrendered for the purpose of reducing the net emissions number for the facility for the financial year (the next financial year) starting immediately after the relevant period; and
(c) the next financial year ends before 1 July 2030.
(4) For the purposes of subsection 22XK(3) of the Act, section 22XK of the Act has effect as if:
(a) the person had not surrendered the units covered by the excess surrender situation for the purpose of reducing the net emissions number for the facility for the relevant period; and
(b) the person:
(i) had surrendered those units for the purpose of reducing the net emissions number for the facility for the next financial year; and
(ii) had done so on the later of the first day of the next financial year and the day the notice was given to the Regulator.
72B Circumstances in which subsection 22XK(4) of the Act does not apply
For the purposes of subsection 22XK(5) of the Act, if a facility is a designated large facility, the net emissions number for the facility for a period is not increased under subsection 22XK(4) of the Act by a number of Australian carbon credit units if those units are not attributable to the avoidance of covered emissions of greenhouse gases from the operation of the facility during the period.
Division 5—Surrender of prescribed carbon units
72C Requirements for surrender of prescribed carbon units
(1) For the purposes of paragraph 22XN(1)(b) of the Act, this section creates requirements for a surrender by a person of prescribed carbon units for the purposes of reducing the net emissions number for a facility for a period.
No ACCUs surrendered
(2) The surrender meets the requirements of this section if none of the prescribed carbon units are Australian carbon credit units.
Total number of ACCUs surrendered less than 30% of baseline emissions number
(3) The surrender also meets the requirements of this section if:
(a) some or all of the prescribed carbon units are Australian carbon credit units; and
(b) the total number of:
(i) those Australian carbon credit units; and
(ii) any Australian carbon credit units that were previously surrendered for the purposes of reducing the net emissions number for the facility for the period;
is less than 30% of the baseline emissions number for the facility for the period.
Total number of ACCUs surrendered equal to or greater than 30% of baseline emissions number (with explanation)
(4) The surrender also meets the requirements of this section if:
(a) some or all of the prescribed carbon units are Australian carbon credit units; and
(b) the surrender causes the total number of:
(i) those Australian carbon credit units; and
(ii) any Australian carbon credit units that were previously surrendered for the purposes of reducing the net emissions number for the facility for the period;
to be equal to or greater than 30% of the baseline emissions number for the facility for the period; and
(c) the responsible emitter for the facility gives the Regulator, in accordance with subsection (5), a written explanation of why more carbon abatement was not undertaken at the facility during the period.
Explanation requirements
(5) A written explanation of why more carbon abatement was not undertaken at a facility during a period must:
(a) be given to the Regulator in the form approved, in writing, by the Regulator; and
(b) address the following matters:
(i) whether limitations in available technologies affected the level of carbon abatement undertaken at the facility during the period;
(ii) whether there are barriers, including regulatory barriers, to undertaking carbon abatement at the facility; and
(c) include information about future opportunities for undertaking carbon abatement at the facility; and
(d) identify any information included in the explanation that is commercially sensitive.
Publication of explanation
(6) The Regulator must publish an explanation given to the Regulator in accordance with paragraph (5)(a) on the Regulator’s website as soon as practicable after receiving it. The published explanation must not include any commercially sensitive information identified in accordance with paragraph (5)(d).
72D Requirements for period for which net emissions number is reduced by surrendering units
For the purposes of paragraph 22XN(1)(c) of the Act, the registered holder of one or more prescribed carbon units may surrender any or all of those units for the purposes of reducing the net emissions number for a facility for a period if the period meets the following requirements:
(a) the period is a monitoring period for the facility in relation to the responsible emitter for the facility;
(b) the period commenced before the surrender is made.
72E Circumstances in which subsection 22XN(6) of the Act does not apply
(1) This section is made for the purposes of subsection 22XN(7) of the Act.
Contracts entered into after 30 March 2023
(2) Subsection 22XN(6) of the Act does not apply in relation to a carbon abatement contract entered into after 30 March 2023 (otherwise than by way of novation).
Units not attributable to the avoidance of covered emissions
(3) Australian carbon credit units are not taken under subsection 22XN(6) of the Act to have been surrendered for the purpose of reducing the net emissions number for a facility for a period if those units are not attributable to the avoidance of covered emissions of greenhouse gases from the operation of the facility during the period.
Carbon abatement contract does not refer to a particular eligible offsets project
(4) Subsection 22XN(6) of the Act does not apply in circumstances where units that:
(a) were issued in respect of a particular eligible offsets project; and
(b) are covered by paragraph 22XN(6)(c) of the Act;
are purchased by the Commonwealth under a carbon abatement contract that does not refer to that particular project.
Part 5—Registration, reporting and record‑keeping
Division 1A—Voluntary registration
72F Registration of eligible facilities
For the purposes of paragraph 15B(3A)(a) of the Act, a person who has operational control of an eligible facility for a financial year may apply, in accordance with section 15B of the Act, to be registered under the Act.
Division 1—Registration applications
73 Operation of this Division
For paragraph 15B(4)(c) of the Act, this Division provides for information to accompany an application to register under section 15B of the Act.
74 Application requirements
(1) An application under section 15B of the Act must set out the following information:
(a) the applicant’s name and trading name (if any);
(b) which section of the Act the applicant is applying under;
(c) the year for which the applicant is first required to register;
(d) if a personal identification number has been issued by the Regulator to the applicant—the applicant’s personal identification number;
(e) if the applicant is a subsidiary of a controlling corporation registered under the Act—a statement to that effect, and the identifying details of the controlling corporation.
(2) The application must also set out the identifying information for the applicant if that information has not previously been given to the Regulator.
Division 2—Reporting
75 Operation of this Division
For paragraph 22XB(2)(b) of the Act, this Division provides for information to be set out in a report under section 22XB of the Act.
76 Required information
(1) A report under section 22XB of the Act must set out:
(a) the identifying information for the responsible emitter providing the report; and
(b) the information required by Subdivisions 4.4.2 and 4.4.3 and regulations 4.04A and 4.27 of the NGER Regulations as if the person was a corporation to which those subdivisions and regulations 4.04A and 4.27 applied; and
(c) the covered emissions from the operation of the facility, in t CO2‑e; and
(d) any information required under section 77.
Reporting quantities of production variables used to calculate baseline emissions number
(2) A report provided under section 22XB of the Act by a person who is the responsible emitter for a facility during the whole or a part of a financial year must also set out the information that would be required to be provided by the person under regulation 4.23C of the NGER Regulations if the person were a corporation to whom Division 4.4A of those regulations applied in relation to the facility for the financial year.
77 Reporting a change in principal activity for facility
(1) This section applies in relation to a report provided to the Regulator under section 22XB of the Act if the principal activity for a facility that has been included in a report under the Act stops being the principal activity for the facility for a period of at least 24 months.
(2) The responsible emitter for the facility must identify a new principal activity for the facility and the industry sector to which the principal activity is attributable in accordance with Subdivisions 2.4.2 and 2.4.3 of the NGER Regulations.
(3) The report for the reporting year that includes the last day of the period mentioned in subsection (1) must include the industry sector to which the new principal activity is attributable.
(4) The responsible emitter must record the new principal activity and the date that the principal activity changed.
(5) In this regulation, principal activity, in relation to a facility, means the activity that:
(a) results in the production of a product or service that is produced for sale on the market; and
(b) produces the most value for the facility out of any of the activities forming part of the facility.
Division 3—Record‑keeping
78 Form of records
(1) This section applies to records mentioned in subsection 22XC(1) of the Act.
(2) For paragraph 22XC(3)(b) of the Act, the records must be kept in a form that is easily and quickly accessible for inspection and audit.
Note: This may be in an electronic or hard copy format.
Division 4—Other information about the safeguard mechanism
78A Audit of regulatory reports for facilities with high emissions
Audit required under section 74AA of the Act if emissions exceed 1 Mt CO2‑e
(1) For the purposes of paragraph 74AA(1)(c) of the Act, the condition, in relation to a report that a person is required to provide under section 19, 22G, 22X or 22XB of the Act for a financial year in relation to one or more facilities, is that the amount of covered emissions of greenhouse gases from the operation of any of those facilities during the financial year exceeds 1 million tonnes of carbon dioxide equivalence.
Reasonable assurance conclusion for amounts exceeding 1 Mt CO2‑e
(2) For the purposes of subsection 74AA(3) of the Act, the report for an audit, under subsection 74AA(2) of the Act, of a report (the regulatory report) in relation to one or more facilities must include:
(a) a reasonable assurance conclusion; or
(b) a qualified reasonable assurance conclusion;
as to whether, in all material respects, the quantities specified in the regulatory report that relate to the following are correct:
(c) covered emissions of greenhouse gases from the operation of those facilities;
(d) production variables for those facilities.
Part 6—Application and transitional provisions
Division 1—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019
79 Applications for calculated‑emissions baseline determination before commencement
Unless the applicant elects otherwise in writing, an application under section 22 received before the commencement of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019 (the amendment rule) must be determined as if the amendment rule had not commenced.
80 Applications for declared multi‑year period before commencement
Unless the applicant elects otherwise in writing, an application under section 65 received before the commencement of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment Rule (No. 1) 2019 (the amendment rule) must be determined as if the amendment rule had not commenced.
Division 2—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Extended Transition) Rule 2020
81 Baseline emissions number if calculated‑emissions baseline determination expired on 30 June 2019
If a calculated‑emissions baseline determination for a facility expired on 30 June 2019 and no other baseline determination applies to the financial year beginning on 1 July 2019, the baseline emissions number for the facility for the financial year beginning on 1 July 2019 is taken to be the baseline emissions number of the calculated‑emissions baseline determination.
Division 3—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Additional Prescribed Production Variables) Rule 2020
82 Default emissions intensities for financial year beginning on 1 July 2019
If a default emissions intensity is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2019, the default emissions intensity is to be determined as the value in force immediately before the commencement of Schedule 2 of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Additional Prescribed Production Variables) Rule 2020.
83 Default emissions intensities and calculated‑emissions baseline determinations for financial year beginning on 1 July 2020
(1) If a default emissions intensity is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2020, the default emissions intensity is to be determined as the value in force immediately after the commencement of Schedule 2 of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Additional Prescribed Production Variables) Rule 2020.
Note: This applies instead of subsection 44(3B) for the financial year beginning on 1 July 2020.
(2) If a calculated‑emissions baseline determination is in force for the financial year beginning 1 July 2020 and was not updated under section 56 to reflect the change in carbon dioxide equivalence, the Regulator must update that determination under section 56 based on the values of any relevant default emissions intensities in force immediately after the commencement of Schedule 2 of the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Additional Prescribed Production Variables) Rule 2020.
84 Calculated‑emissions baseline determinations applying from 1 July 2019
(1) If a calculated‑emissions baseline determination for a facility is made commencing from 1 July 2019 using the carbon dioxide equivalence of greenhouse gases in force on 1 July 2020 for an estimated emissions intensity, the responsible emitter for the facility may apply to the Regulator to adjust the baseline emissions number for the financial year beginning on 1 July 2019 to apply the carbon dioxide equivalence of the relevant greenhouse gases as in force on 1 July 2019.
(2) After considering an application under subsection (1), the Regulator may amend the determination in respect of the financial year beginning on 1 July 2019.
(3) An application under subsection (1) must be given in a manner and form approved, in writing, by the Regulator and can be made before the making of the determination.
Division 4—Application and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Prescribed Production Variables Update) Rule 2021
85 Determination of estimated emission intensity and production variable
(1) If a calculated‑emissions baseline determination for a facility is made using one or more estimated emissions intensities for one or more production variables, the responsible emitter for the facility may apply to the Regulator to determine the equivalent estimated emissions‑intensities and prescribed (annually adjusted) production variables from Schedule 2 for the facility.
(2) After considering an application under subsection (1), the Regulator may make a determination of the equivalent estimated emissions‑intensities and prescribed (annually adjusted) production variables from Schedule 2 for the facility if it is practicable to do so.
(3) If the Regulator makes a determination under subsection (2):
(a) that estimated emissions‑intensity and prescribed (annually adjusted) production variable must be used in place of the original estimated emissions‑intensity and production variable in making a production‑adjusted baseline determination;
(b) if a production‑adjusted baseline determination has already been made at the time of the determination under subsection (2), update that determination to reflect the new estimated emissions‑intensity and prescribed (annually adjusted) production variable with effect from the start of the financial year during which the determination under subsection (2) is made.
(4) An application under subsection (1) must be:
(a) given in a manner and form approved, in writing, by the Regulator; and
(b) made before 1 July 2024.
(5) As soon as practicable after making a determination or amending a determination under paragraph (3)(b), the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility of the determination; and
(b) publish the details of the determination on its website.
(6) If the Regulator decides not to make a determination under subsection (2), the Regulator must give written notice of the decision to the applicant.
(7) A decision to make, or refuse to make, a determination under this section is a reviewable decision under section 56 of the Act.
86 Updated emissions intensity for certain changes to NGER (Measurement) Determination
(1) This section applies to a calculated‑emissions baseline determination or production‑adjusted baseline determination for a facility that:
(a) is made using one or more estimated emissions intensities for one or more production variables; and
(b) the estimated emissions‑intensities take into account emissions reported, or to be reported, under Division 3.3 of the NGER (Measurement) Determination as in force before 1 July 2021; and
(c) the Regulator considers that amendments made by the National Greenhouse and Energy Reporting (2021 Update) Determination 2021 impact the estimated emissions intensity by more than 1%.
(2) After consulting with the responsible emitter for the facility to which a determination covered by this section applies, the Regulator must amend the determination to take account of the National Greenhouse and Energy Reporting (2021 Update) Determination 2021 (with effect from no earlier than 1 July 2021).
(3) For subsection (2), the Regulator must take into account the use of method 2 under subsection 2.27 if satisfied that method will be used on an ongoing basis to report emissions from the facility.
(4) As soon as practicable after amending a determination, the Regulator must:
(a) provide written notice of the decision to the responsible emitter for the facility of the determination; and
(b) publish the details of the determination on its website.
Division 5—Application, saving and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023
87 Application provisions
(1) The amendment of section 7 made by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023 applies in relation to emissions of one or more greenhouse gases from the operation of a grid‑connected electricity generator in respect of a sectoral‑baseline financial year that begins after 30 June 2023.
(2) Part 3, as substituted by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023, applies in relation to the ascertainment of the baseline emissions number for a facility for a financial year that begins after 30 June 2023.
(3) Sections 72B and 72D, and subsection 72E(3), as inserted by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023, apply in relation to a period beginning after 30 June 2022.
(4) Section 72C, as inserted by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023, applies, on and after 1 July 2023, in relation to a period beginning before, on or after that day.
88 Saving provisions
(1) Despite the repeal of Part 3 of this instrument by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023, that Part, as in force immediately before 1 July 2023, continues to apply, on and after that day, in relation to the ascertainment of the baseline emissions number for a facility for a financial year that ends on or before 30 June 2023.
(2) However, for the ascertainment of the baseline emissions number for a facility for the financial year beginning on 1 July 2022, Part 3, as continued in force under subsection (1), applies as if the following were omitted:
(a) subsection 26A(6) (criteria for a transitional calculated baseline);
(b) subparagraphs 40(1)(ab)(i) and (ii) (criteria for a production‑adjusted baseline determination);
(c) paragraph 40(1)(b) (criteria for a production‑adjusted baseline determination).
(3) Despite the repeal of Part 3 of this instrument by the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Reforms) Rules 2023, a determination made under that Part that is in force immediately before 1 July 2023 continues to apply, on and after that day, in relation to the ascertainment of the baseline emissions number for a facility for a financial year that ends on or before 30 June 2023.
89 Updated end date for declared multi‑year periods ending after 30 June 2024
(1) This section applies to a declared multi‑year period in a multi‑year period declaration in force immediately before this section commences.
(2) If the end date of the declared multi‑year period is a date later than 30 June 2024, the end date is taken to be 30 June 2024.
90 Regulator must not extend multi‑year period declaration in force before 1 July 2023
(1) This section applies in relation to a declared multi‑year period in a multi‑year period declaration in force immediately before this section commences.
(2) Despite subsection 68(3), the Regulator must not extend the length of the declared multi‑year period.
Division 6—Application, saving and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Production Variables Update) Rules 2023
91 Application and transitional provisions
(2) For subsection 20(6), if the transitional production variable for the facility is specified in column 1 of an item of the following table, the facility‑specific emissions intensity number is taken to be the number specified in column 2 of that item.
Item
Column 1Transitional production variable
Column 2Facility‑specific emissions intensity number
1
Run‑of‑mine coal
0.0653 t CO2‑e per tonne of run‑of‑mine coal
2
Reservoir carbon dioxide from existing gas fields
0.928 t CO2‑e per tonne of reservoir carbon dioxide
3
Natural gas throughput
0.000518 t CO2‑e per gigajoule of natural gas
Note: The number applies regardless of whether the production variable was applicable to the facility at any time during a historical financial year, or otherwise.
Division 7—Application, saving and transitional provisions relating to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Production Variables Update) Rules 2024
92 Application and transitional provisions
(1) If a default emissions intensity is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2023, the default emissions intensity is to be determined as the value in force immediately after the commencement of Schedule 1 to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Amendment (Production Variables Update) Rules 2024.
(2) For subsection 20(6), if the transitional production variable for the facility is lithium hydroxide, the facility‑specific emissions intensity number is taken to be 3.26 CO2‑e per tonne of lithium hydroxide monohydrate.
Division 8—Application, saving and transitional provisions relating to the National Greenhouse and Energy Reporting Legislation Amendment (Best Practice Emissions Intensities Update) Instrument 2024
93 Application and transitional provisions
(1) If a best practice emissions intensity is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2023 or 1 July 2024, the best practice emissions intensity is to be determined as the value in force immediately after the commencement of Schedule 1 to the National Greenhouse and Energy Reporting Legislation Amendment (Best Practice Emissions Intensities Update) Instrument 2024.
(2) If a default emissions intensity is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2024, the default emissions intensity is to be determined as the value in force immediately after the commencement of Schedule 1 to the National Greenhouse and Energy Reporting Legislation Amendment (Best Practice Emissions Intensities Update) Instrument 2024.
(3) Despite subsection 92(1), if a default emissions intensity for the gaseous hydrogen production variable in section 99 of Schedule 1 is being used in relation to a baseline emissions number for the financial year beginning on 1 July 2023, the default emissions intensity is to be determined as the value in force immediately after the commencement of Schedule 1 to the National Greenhouse and Energy Reporting Legislation Amendment (Best Practice Emissions Intensities Update) Instrument 2024.