Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995

The Act is built around a small set of recurring concepts which determine liability and calculation of levy. First, licence coverage and reporting periods: liability is imposed on licensees who hold controlled substances licences or equipment licences that allow import, and who import during a reporting period in which their licence is in force (s 3A(1); s 4(1); s 4A(1)). For the purposes of the Act, a licence in force for part of a reporting period is treated as being in force for that reporting period (s 3A(6); s 4(4); s 4A(4)). Second, the scope of taxable items: the Act distinguishes bulk scheduled SGGs, scheduled substances other than SGGs, and SGG equipment, and ties those classes to the Management Act’s scheduling and equipment definitions (s 3(1)-(2); note to s 3A). Third, quantity rules: the quantity charged is the actual amount imported reduced by a heel allowance percentage, specified for SGGs and for other substances and equipment (s 3A(6B); s 4A(4); s 4(4A)). Fourth, the prescribed rate and calculation method: for SGGs the levy amount is calculated as number of tonnes times a prescribed rate (s 3A(7)); for SGG equipment the same structure applies against the tonnes of SGG contained in the equipment (s 4A(5)); for non‑SGG scheduled substances the levy is either the prescribed amount or calculated in accordance with a prescribed method (s 4(5)). Fifth, exemptions and exceptions: the Act carves out exemptions that are statutory (for purposes or circumstances prescribed under the Management Act or by the regulations) and allows the Minister to grant written exemptions for specified uses such as medical equipment and manufacture of medical equipment (s 3A(2)-(4); s 3A(9)-(11); s 4A(2)-(3); s 4(4)). Sixth, the role of regulations and ministerial satisfaction: key elements such as prescribed rates, which purposes are exempted, heel allowances, and other technical matters are to be set by regulation, and in many cases those regulations may only be made once the Minister is satisfied of specified matters, including that the levy regime and the Manufacture Levy Act together will recover no more than the Commonwealth’s likely costs of specified kinds under the Management Act (s 3A(14) (table), s 4(6), s 4A(8)). Finally, delegation and directions: the Minister’s power to exempt may be delegated to the Secretary or named senior officers, and delegates must comply with any written directions of the Minister (s 3A(12)-(13); note re Acts Interpretation Act 1901).

The Act directly affects holders of controlled substances licences and equipment licences that permit importation, and therefore the entities or individuals that import scheduled substances, SGGs, and SGG‑containing equipment (ss 3A(1), 4(1), 4A(1)). Those licensees are the parties on whom levy is imposed when the licence permits import and an import occurs in the reporting period during which the licence is in force (s 3A(1); s 4(1); s 4A(1)). Because the Act defines key terms by reference to the Management Act, entities that are subject to the Management Act’s scheduling, licensing and equipment definitions are within scope (s 3(1)-(2); note to s 3A). The Act also affects the Commonwealth executive, principally the Minister and the Department that supports the Minister, through delegated administrative functions: the Minister may determine exemptions and may delegate that power to the Secretary, an SES employee or an APS employee at Executive Level 2 or equivalent, with delegates required to comply with written directions (s 3A(9), (12)-(13)). Regulators preparing regulations are affected by the statutory preconditions to regulation making, which require ministerial satisfaction on specified factual matters before regulations may be made for particular provisions (s 3A(14); s 4(6); s 4A(8)). The regulations will in turn affect importers and their customs and compliance advisers because the regulations will prescribe the prescribed rate, heel allowance percentage, excluded purposes, and other methods for determining levy (s 3A(7); s 4(5); s 4A(5)). The Manufacture Levy Act is given explicit role and interaction in the regulatory preconditions; therefore producers and manufacturers that fall under the Manufacture Levy Act may be affected indirectly by the combined effect of the two Acts, which the Minister must consider when making rates (s 2A; tables in s 3A(14) and s 4A(8); s 4(6)). Finally, entities importing low‑volume equipment or imports covered by specific exceptions under the Management Act will be affected insofar as those exceptions remove levy liability for equipment entries (s 4A(3); s 3A(2)-(3)).

Duties. The primary statutory duty created by the Act is the obligation on a licensee to pay levy where the licence authorises import and an import occurs during a reporting period in which the licence is in force (s 3A(1); s 4(1); s 4A(1)). Licensees must account for the actual quantity imported and apply the heel allowance percentage when determining the quantity on which levy is calculated (s 3A(6B); s 4A(4); s 4(4A)). Licensees must use the calculation method specified in the Act and the regulations: for SGGs and SGG equipment the levy is the number of tonnes (or tonnes contained in equipment) multiplied by the prescribed rate set in the regulations (s 3A(7); s 4A(5)); for other scheduled substances the levy is the prescribed amount or an amount worked out in accordance with a prescribed method (s 4(5)). Licensees also have a duty to follow any procedural or reporting requirements that the regulations prescribe, because the Governor‑General may make regulations necessary or convenient for carrying out the Act (s 5).

Rights and administrative mechanisms. The Act gives licensees a potential route to relief by way of ministerial exemption: the Minister may, by written notice, determine that a licensee is exempt from levy in specific circumstances, for example where the SGG is to be used in medical or certain prescribed equipment or purposes (s 3A(9)). The Minister’s decision‑making is framed by the regulations, which specify the matters to which the Minister must have regard in making an exemption determination (s 3A(11)). The Minister may delegate this power to named departmental officers and must ensure delegates comply with any written directions (s 3A(12)-(13)). Procedurally, the Act places condition precedents on the making of regulations by requiring the Minister to be satisfied of certain matters before regulations may be made for specific provisions (s 3A(14); s 4(6); s 4A(8)). The Act also contains definitional protections: the definition of amount includes a nil amount, which means the prescribed rate can, in principle, be zero (s 2A). The Act cross‑references the Management Act for interpretation and supply of certain definitions and exceptions, which gives licensees rights or relief under the Management Act where applicable (s 3(1)-(2); notes in s 3A and s 4A referencing s 13AA of the Management Act).

Administrative discretion and constraints. The Minister has discretion to exempt licensees and to frame regulations, but the Act constrains that discretion by statutory preconditions for regulation making and by the requirement to have regard to matters specified in the regulations when granting exemptions (s 3A(11); s 3A(14); s 4(6); s 4A(8)). Delegation is permitted, but delegates are bound by Ministerial directions (s 3A(12)-(13)). The Act does not set out detailed procedural steps for applying for or challenging an exemption; it only prescribes that the Minister may make written determinations and that regulations will identify matters to be considered (s 3A(9)-(11)).

The supplied text of the Act establishes levy liability and the regulatory framework to set rates and exceptions but does not itself contain express offence provisions, penalties, or detailed enforcement mechanisms. The Act imposes levy obligations on licensees where import activity falls within its coverage (s 3A(1); s 4(1); s 4A(1)) and prescribes calculation methods (s 3A(7); s 4(5); s 4A(5)), but it does not, in the text provided, set out particular criminal or civil sanctions for non‑payment, nor does it provide explicit recovery procedures, interest charges, or enforcement powers such as garnishee or seizure powers. The Act therefore relies on delegated legislation and inter‑linked provisions in the Management Act and possibly in the regulations to provide the operational enforcement architecture.

Two inferences flow directly from the text. First, enforcement activity and any penalties are likely to be implemented through regulations made under the Act or through the Management Act, given the numerous cross‑references to the Management Act and the broad regulation‑making power (s 5; s 3(1)-(2); note references to s 13AA and s 65D of the Management Act). Second, administrative consequences under the Management Act (for example licence suspension and prohibitions) remain relevant: the Act instructs that in determining whether a licence allows the licensee to carry out an activity for purposes of levy, any suspension of the licence is to be disregarded (s 3(3)), while a separate note points to subsection 19D(4) of the Management Act for the effect of a licence suspension. This creates a point of interaction where the Management Act’s enforcement measures may affect import activity and hence levy exposure, even though the levy provision itself treats a licence as operative for levy purposes despite suspension (s 3(3); note). The Act also provides ministerial exemption powers and delegation which establish administrative discretion for relief (s 3A(9), (12)-(13)), but it does not specify appeals or review routes against levy assessments in the text supplied. Practitioners should therefore look to the Management Act and the regulations for the full compliance and enforcement regime; the import levy Act, as supplied, is primarily an enabling and calculative statute.

The Act is explicitly cross‑referential to two principal instruments. First, it imports definitions and scheduling from the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Management Act). Section 3(1) states that an expression used in this Act has the same meaning as in the Management Act and subsection (2) draws in section 9 of the Management Act on references to scheduled substances and equipment. The levies imposed under this Act apply only to scheduled substances that are bulk scheduled substances as defined in the Management Act, as indicated in the notes to s 3A and s 4. The Act also expressly relies on the Management Act for certain exceptions and low volume import exemptions: subsections 13AA(4) and 13AA(6) to (9) of the Management Act are referenced to exclude certain equipment imports from levy liability (s 4A(3); s 3A(2)-(3)). The Act further points to specific provisions of the Management Act, such as s 65D referenced in the regulatory‑satisfaction tables, and notes the effect of licence suspension under subsection 19D(4) of the Management Act (s 3(3) note). These cross‑references mean that the substantive reach of levy liability depends on how the Management Act schedules substances, how it defines permitted and prohibited imports, and what exceptions it creates.

Second, the Act is designed to work alongside the Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995 (the Manufacture Levy Act). The definition of Management Act and the Manufacture Levy Act in s 2A together with the preconditions for regulation in s 3A(14), s 4(6) and s 4A(8) require the Minister to be satisfied that the combined effect of the import levy Act and the Manufacture Levy Act will recover no more than the Commonwealth’s likely costs of specified kinds under paragraph 65D of the Management Act. Those costs are described in the legislation as the costs the Commonwealth will incur that are unlikely to be offset by fees charged under the Management Act or regulations made under it (s 3A(14) item 2; s 4(6); s 4A(8)). This places a statutory interactional constraint between import levies and manufacture levies and directs that regulation making should take into account aggregated cost recovery across the two Acts.

Third, the Act refers to general administrative law instruments. It permits delegation of the Minister’s power to make exemptions to the Secretary and specified senior departmental positions and notes that sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations (s 3A(12) note). The duty of delegates to comply with written directions (s 3A(13)) also creates an administrative link to the Acts Interpretation Act framework.

Finally, the Act leaves operational and enforcement detail to regulations and to the Management Act. Because many critical elements such as prescribed rates, heel allowance percentages, and regulated exemption criteria are to be provided by regulation (s 3A(7); s 4(5); s 4A(5); s 5), the Act’s practical interaction with customs law, taxation and collection regimes, and administrative penalties will depend on those subordinate instruments and on the Management Act. The Act therefore functions as a statutory shell that determines parties liable and the formulaic basis for levy, but relies on the Management Act and regulations for definitional, procedural and enforcement detail.

The text provided contains only the original provisions of the Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 as set out in the supplied instrument. The Act’s commencement date is recorded as 1 January 1996 (s 2). The supplied text does not include any subsequent amendment provisions, schedules of amendments, notes on commencement of amending provisions, or historical annotations. No repeal, replacement or consequential amendment entries are contained in the material provided.

Where the Act establishes that regulations must be made or that other Acts control detail, it anticipates subordinate instruments or interacting statutes may be updated over time. For example, prescribed rates, heel allowance percentages, and matters to be specified in regulations are left to the Governor‑General by regulation (s 3A(7); s 4(5); s 4A(5); s 5), and the Minister must be satisfied of certain matters before regulations are made (s 3A(14); s 4(6); s 4A(8)). Any changes to levy practice therefore occur in regulations and in the Management Act or Manufacture Levy Act rather than in this Act’s primary text. The supplied Act does not set out any transitional or savings provisions for amendatory changes.

Practitioners relying on the present legal position should therefore verify the current text of the Act and of the related regulations and the Management Act and Manufacture Levy Act, as the substantive operation of the levy regime,rates, allowances, exemptions, reporting periods and enforcement,depends heavily on subordinate instruments and on the state of those interacting Acts. The Act as supplied gives the statutory framework and constraints but contains no register of amendments in the material provided.

The supplied text of the Act contains no reference to judicial or administrative decisions, no statement of litigation history, and no citations of cases. It does not mention any proceedings, determinations of law by courts or tribunals, or recorded disputes about the operation or interpretation of the import levy provisions. The Act does refer to provisions in the Management Act that have their own operation and that may have associated case law, but no such authorities are cited in this text.

Given that the operative details for levy amounts, methods, enforcement and exemptions are largely delegated to regulations and rest on interaction with the Management Act and the Manufacture Levy Act (s 3A(7); s 4(5); s 4A(5); s 5; s 3(1)-(2)), any litigation about levy liabilities, collection or exemptions would logically involve those regulations and the Management Act as well as this Act. The text supplied, however, does not include or refer to cases or litigation. Legal advisers should therefore search current case law and tribunal determinations on the Management Act, manufacture levies, and any regulations made under this Act to identify any authoritative judicial interpretation or precedential rulings.

Several provisions in the Act create specific, potentially non‑intuitive consequences that practitioners and compliance officers should note.

• Licence suspension is disregarded for the purpose of determining whether the licence authorises the activity that attracts levy liability. Section 3(3) directs that when determining whether a licence allows the licensee to carry out an activity, any suspension of the licence must be disregarded. The Act separately notes the effect of suspension in the Management Act (note to s 3), which means that, for levy calculation, a licence is treated as operative even when, in another statutory context, it may be suspended. That will affect entities subject to administrative action where levy liability may nevertheless remain.

• Partial reporting periods count as whole reporting periods. Sections 3A(6), 4(4) and 4A(4) state that if a licence is in force for only part of a reporting period, that part is taken to be a reporting period. Practically, obtaining or losing a licence for part of a reporting period does not insulate an importer from levy for that reporting period.

• The heel allowance percentage reduces the chargeable quantity. The Act requires that the quantity of an SGG or other substance that is taken to be imported is the quantity actually imported reduced by the heel allowance percentage for the SGG or substance (s 3A(6B); s 4(4A); s 4A(4)). The size of the heel allowance is a regulatory matter; until the regulations specify it, the precise quantity for levy purposes is uncertain (s 3A(6B); s 4A(4); s 4(4A)).

• Prescribed rate and calculation methods are set by regulation and subject to preconditions. The rate per tonne, and for non‑SGG substances the method or prescribed amount, are matters for the regulations (s 3A(7); s 4(5); s 4A(5)). The Minister must be satisfied, before regulations are made, that the combined effect of the import levy Act and the Manufacture Levy Act will recover no more than the Commonwealth’s likely costs of specified kinds under paragraph 65D of the Management Act (s 3A(14) table item 2; s 4(6); s 4A(8) table item 1). This requires an administrative cost allocation judgment to be made prior to regulation making.

• Exemptions depend on ministerial determination and regulations. The Minister may exempt by written notice where the SGG is to be used for medical equipment or other prescribed purposes (s 3A(9)), but in doing so must have regard to matters specified in the regulations (s 3A(11)). The Minister may delegate, but delegates must follow written directions (s 3A(12)-(13)). The Act does not set out the process or criteria in detail, leaving procedural uncertainty until regulations are in place.

• Interplay with Management Act exceptions. The Act excludes levy for imports covered by the Management Act’s prescribed exceptions, including low volume imports and other specified circumstances (s 3A(2)-(3); s 4A(3)). Whether a particular import falls within those exceptions depends on how the Management Act and its regulations are applied.

• Amount may be nil. The definition in s 2A that amount includes a nil amount means a prescribed rate of zero is legally possible. Practically, regulators could prescribe zero rates for certain substances or periods, which would materially affect compliance strategies.

• The Act’s operative details are largely in subordinate instruments. Many practical obligations,reporting procedures, exact rates, allowances, exemptions, and enforcement,depend on regulations (s 5). Until those regulations are made and inspected, parties cannot fully determine levy exposure. The Act sets constraints and principles, but leaves the implementation to regulations.

Each of these points follows directly from the statutory text. The common theme is that crucial operational detail is delegated to regulations, and several statutory rules produce results that may be counter‑intuitive if read without attention to the references to the Management Act and to the regulatory preconditions.

Based on the statutory text, compliance requires a three‑stream approach: licence management, record and quantity control, and engagement with regulatory processes and exemptions.

1. Licence management

• Ensure the entity holds the appropriate controlled substances licence or equipment licence that authorises import of the specific scheduled substance, SGG or SGG equipment (s 3A(1); s 4(1); s 4A(1)). The Act treats licences as operative for reporting periods even if held for part of a period, so be mindful of timing when obtaining, varying or surrendering licences (s 3A(6); s 4(4); s 4A(4)).
• Recognise that for levy purposes licences are treated as authorising activity even if suspended, because suspension is to be disregarded when determining whether a licence allows an activity (s 3(3)). Check the Management Act for the practical effect of any suspension (note to s 3).

2. Record keeping and quantity calculations

• Maintain accurate import records showing the actual quantity imported and the composition of SGGs contained in equipment. The levy base for SGGs and SGG equipment is the number of tonnes (or tonnes contained) reduced by the heel allowance percentage (s 3A(6B); s 4A(4); s 4(4A)).
• Apply the prescribed calculation: for SGGs the statutory formula is number of tonnes times the prescribed rate (s 3A(7)); for SGG equipment multiply the tonnes of SGG contained in the equipment by the prescribed rate (s 4A(5)); for other scheduled substances follow the prescribed amount or method in regulations (s 4(5)). Until regulations are issued, the exact rates and methods are unknown, so prepare systems that can apply a per‑tonne rate as well as alternate calculation methods.

3. Regulatory and administrative engagement

• Monitor the regulations and the Management Act closely. The Governor‑General may make regulations prescribing rates, heel allowances, exemptions and other technical matters (s 5). Many provisions are subject to preconditions which require the Minister be satisfied of particular matters before regulations may be made, particularly that the combined effect of import and manufacture levies will recover no more than specified Commonwealth costs (s 3A(14); s 4(6); s 4A(8)).
• If your imports fall within the listed potentially exempt categories, prepare to substantiate claims for exemption. The Minister may exempt licensees by written notice where SGGs are to be used for medical equipment, manufacture of medical equipment, or other prescribed purposes (s 3A(9)). In making such determinations the Minister must have regard to matters in the regulations (s 3A(11)). There is no statutory application form in this Act; follow whatever application processes the regulations prescribe, and consider engaging with the delegated officer or the Minister’s office where permitted (s 3A(12)-(13)).

4. Cross‑checking Management Act exceptions and Manufacture Levy Act interactions

• Determine whether the Management Act’s low volume import exemptions or other import exceptions apply to your shipments (s 4A(3); s 3A(2)-(3)). If an import is covered by subsections 13AA(6) to (9) of the Management Act, levy under this Act will not apply for that import.
• Be aware that the regulations must be made so as to recover no more than the Commonwealth’s likely costs together with the Manufacture Levy Act. That administrative cap may affect the prescribed rate and should be considered when forecasting levy exposure (s 3A(14) table item 2; s 4(6); s 4A(8) table item 1).

5. Practical compliance infrastructure

• Configure accounting and customs systems to: identify scheduled substances and SGGs in imports; record tonnes and composition; apply heel allowance percentage; calculate levy at a prescribed per‑tonne rate or by the prescribed method; and flag entries that may be eligible for exemptions under the regulations or the Management Act.
• Retain documentary support for quantity computations, heel allowances applied and any correspondence with regulators about exemptions. The Act anticipates ministerial discretion and regulation‑based criteria; documentary evidence will be needed where determinations or audits occur.

6. Prepare for regulatory change and uncertainty

• Because key details are in regulations and the Minister must be satisfied of specified matters before making certain regulations, expect regulatory change and potential delays. Build contingency and forecasting models that can accommodate a range of prescribed rates and heel allowances, including a nil amount (s 2A).

This compliance roadmap follows directly from the Act’s obligations for licensees to pay levy when imports occur during reporting periods in which licences are in force, from the statutory calculation mechanisms for quantity and rates, and from the Act’s delegation of technical detail to regulations and the Management Act (ss 3A(1), 3A(6B), 3A(7); s 4(1), s 4(5); s 4A(1), s 4A(5); s 5).