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Renewable Energy (Electricity) Bill 2000

Part 7 Collection, recovery and refunding of charge

Division 1 General rules about collection and recovery

67   When renewable energy shortfall charge becomes due and payable

                   Renewable energy shortfall charge for a year is payable:

                     (a)  if, on or before 14 February in the following year, the liable entity lodges a renewable energy shortfall statement for that year—on that day; or

                     (b)  if, after that day, the liable entity lodges a renewable energy shortfall statement for that year—on the day on which the statement is lodged.

68   When additional renewable energy shortfall charge becomes due and payable

                   Additional renewable energy shortfall charge under Part 9 becomes payable on the day specified for the purpose in the notice of assessment of the additional charge.

69   Extension of time for payment

                   The Regulator may, in such circumstances as the Regulator thinks fit, extend the time for payment of an amount of a renewable energy shortfall charge related liability for such period as the Regulator determines, and, if the Regulator does so, the charge is payable accordingly.

70   Penalty for unpaid renewable energy shortfall charge related liability

             (1)  If any amount of a renewable energy shortfall charge related liability which a liable entity is liable to pay remains unpaid after the time by which it is due to be paid, the liable entity is liable to pay additional renewable energy shortfall charge on the unpaid amount.

             (2)  The liable entity is liable to pay the additional renewable energy shortfall charge for each day in the period that:

                     (a)  started at the beginning of the day by which the renewable energy shortfall charge was due to be paid; and

                     (b)  finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

                              (i)  the renewable energy shortfall charge;

                             (ii)  additional renewable energy shortfall charge on any of the renewable energy shortfall charge.

             (3)  The amount of the additional renewable energy shortfall interest charge for each day is worked out by multiplying the unpaid amount by the general interest charge rate for the day.

71   Recovery of renewable energy shortfall charge related liability

             (1)  A renewable energy shortfall charge related liability that is payable:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  payable to the Regulator in the manner and at the place prescribed.

             (2)  The Regulator may sue in his or her official name in a court of competent jurisdiction to recover an amount of a renewable energy shortfall charge related liability that remains unpaid after it has become due and payable.

72   Service of documents if a person is absent from Australia or cannot be found

             (1)  This section applies if a document needs to be served on a person in respect of a proceeding to recover an amount of a renewable energy shortfall related liability, and the Regulator, after making reasonable inquiries, is satisfied that:

                     (a)  the person is absent from Australia and does not have any agent in Australia on whom the document can be served; or

                     (b)  the person cannot be found.

             (2)  The Regulator may, without the court’s leave, serve the document by posting it, or a sealed copy of it, in a letter addressed to the person at any Australian address of the person (including the person’s Australian place of business or residence) that is last known to the Regulator.



 

Division 2 Special rules about collection and recovery

Subdivision A Recovery from a third party

73   Regulator may collect amounts from third party

Amount recoverable under this Subdivision

             (1)  This Subdivision applies if any of the following amounts (the debt ) is payable to the Commonwealth by a person (the debtor ) (whether or not the debt has become due and payable):

                     (a)  an amount of a renewable energy shortfall charge related liability;

                     (b)  a judgment debt for a renewable energy shortfall charge related liability;

                     (c)  costs for such a judgment debt;

                     (d)  an amount that a court has ordered the debtor to pay to the Regulator following the debtor’s conviction for an offence against this Act.

Regulator may give notice to a person

             (2)  The Regulator may give a written notice to a person (the third party ) under this section if the third party owes or may later owe money to the debtor.

Third party regarded as owing money in these circumstances

             (3)  The third party is taken to owe money (the available money ) to the debtor if the third party:

                     (a)  is a person by whom the money is due or accruing to the debtor; or

                     (b)  holds the money for, or on account of, the debtor; or

                     (c)  holds the money on account of some other person for payment to the debtor; or

                     (d)  has authority from some other person to pay the money to the debtor.

The third party is so taken to owe the money to the debtor even if:

                     (e)  the money is not due, or is not so held, or payable under the authority, unless a condition is fulfilled; and

                      (f)  the condition has not been fulfilled.

How much is payable under the notice

             (4)  A notice under this section must:

                     (a)  require the third party to pay to the Regulator the lesser of, or a specified amount not exceeding the lesser of:

                              (i)  the debt; or

                             (ii)  the available money; or

                     (b)  if there will be amounts of the available money from time to time—require the third party to pay to the Regulator a specified amount, or a specified percentage, of each amount of the available money, until the debt is satisfied.

When amount must be paid

             (5)  The notice must require the third party to pay an amount under paragraph (4)(a), or each amount under paragraph (4)(b):

                     (a)  immediately after; or

                     (b)  at or within a specified time after;

the amount of the available money concerned becomes an amount owing to the debtor.

Debtor must be notified

             (6)  The Regulator must send a copy of the notice to the debtor.

Setting-off amounts

             (7)  If a person other than the third party has paid an amount to the Regulator that satisfies all or part of the debt:

                     (a)  the Regulator must notify the third party of that fact; and

                     (b)  any amount that the third party is required to pay under the notice is reduced by the amount so paid.

74   Notice to Commonwealth, State or Territory

                   If the third party is the Commonwealth, a State or a Territory, the Regulator may give the notice to a person who:

                     (a)  is employed by the Commonwealth, or by the State or Territory (as appropriate); and

                     (b)  has the duty of disbursing public money under a law of the Commonwealth, or of the State or Territory (as appropriate).

75   Indemnity

                   An amount that the third party pays to the Regulator under this Subdivision is taken to have been authorised by:

                     (a)  the debtor; and

                     (b)  any other person who is entitled to all or a part of the amount;

and the third party is indemnified for the payment.

76   Offence

             (1)  The third party must not fail to comply with the Regulator’s notice.

Penalty:  30 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

             (2)  The court may, in addition to imposing a penalty on a person convicted of an offence against subsection (1) in relation to failing to pay an amount under the notice, order the person to pay to the Regulator an amount not exceeding that amount.

Subdivision B Recovery from liquidator

77   Liquidator’s obligation

             (1)  This Subdivision applies to a person who becomes a liquidator of a company that is, or has been, a liable entity.

             (2)  Within 14 days after becoming liquidator, the liquidator must give written notice of that fact to the Regulator.

             (3)  The Regulator must, as soon as practicable, notify the liquidator of the amount (the notified amount ) that the Regulator considers is enough to discharge any outstanding renewable energy shortfall charge related liabilities that the company has when the notice is given.

             (4)  The liquidator must not, without the Regulator’s permission, part with any of the company’s assets before receiving the Regulator’s notice.

             (5)  However, subsection (4) does not prevent the liquidator from parting with the company’s assets to pay debts of the company not covered by either of the following paragraphs:

                     (a)  the outstanding renewable energy shortfall charge related liabilities;

                     (b)  any debts of the company which:

                              (i)  are unsecured; and

                             (ii)  are not required, by an Australian law, to be paid in priority to some or all of the other debts of the company.

             (6)  After receiving the Regulator’s notice, the liquidator must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the formula:

where:

amount of remaining ordinary debts means the sum of the company’s ordinary debts other than the outstanding renewable energy shortfall charge related liabilities.

             (7)  The liquidator must, in his or her capacity as liquidator, discharge the outstanding renewable energy shortfall charge related liabilities, to the extent of the value of the assets that the liquidator is required to set aside.

             (8)  The liquidator is personally liable to discharge the liabilities, to the extent of that value, if the liquidator contravenes this section.

78   Offence

                   The liquidator must not fail to comply with subsection 77(2), (4), (6) or (7).

Penalty:  30 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

79   Joint liability of 2 or more liquidators

                   If there are 2 or more persons who become liquidators of the company, the obligations and liabilities under this Subdivision:

                     (a)  apply to all the liquidators; but

                     (b)  may be discharged by any of them.

80   Liquidator’s other obligation or liability

                   This Subdivision does not reduce any obligation or liability of a liquidator arising elsewhere.

Subdivision C Recovery from receiver

81   Receiver’s obligation

             (1)  This Subdivision applies to a person (the receiver ) who, in the capacity of receiver, or of receiver and manager, takes possession of a company’s assets for the company’s debenture holders.

             (2)  Within 14 days after taking possession of the assets, the receiver must give written notice of that fact to the Regulator.

             (3)  The Regulator must, as soon as practicable, notify the receiver of the amount (the notified amount ) that the Regulator considers is enough to discharge any outstanding renewable energy shortfall charge related liabilities that the company has when the notice is given.

             (4)  The receiver must not, without the Regulator’s permission, part with any of the company’s assets before receiving the Regulator’s notice.

             (5)  However, subsection (4) does not prevent the receiver from parting with the company’s assets to pay debts of the company not covered by either of the following paragraphs:

                     (a)  the outstanding renewable energy shortfall charge related liabilities;

                     (b)  any debts of the company which:

                              (i)  are unsecured; and

                             (ii)  are not required, by an Australian law, to be paid in priority to some or all of the other debts of the company.

             (6)  After receiving the Regulator’s notice, the receiver must set aside, out of the assets available for paying amounts covered by paragraph (5)(a) or (b) (the ordinary debts ), assets with a value calculated using the formula:

where:

amount of remaining ordinary debts means the sum of the company’s ordinary debts other than the outstanding renewable energy shortfall charge related liabilities.

             (7)  The receiver must, in his or her capacity as receiver, or as receiver and manager, discharge the outstanding renewable energy shortfall charge related liabilities, to the extent of the value of the assets that the receiver is required to set aside.

             (8)  The receiver is personally liable to discharge the liabilities, to the extent of that value, if the receiver contravenes this section.

82   Offence

                   The receiver must not fail to comply with subsection 81(2), (4), (6) or (7).

Maximum penalty: 30 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

83   Joint liability of 2 or more receivers

                   If 2 or more persons (the receivers ) take possession of a company’s assets, for the company’s debenture holders, in the capacity of receiver, or of receiver and manager, the obligations and liabilities under this Subdivision apply to:

                     (a)  all the receivers; but

                     (b)  may be discharged by any of them.

84   Receiver’s other obligation or liability

                   This Subdivision does not reduce any obligation or liability of the receiver or receivers arising elsewhere.

Subdivision D Recovery from agent winding up business for non-resident principal

85   Obligation of agent winding up business for non-resident principal

             (1)  This Subdivision applies to an agent whose principal:

                     (a)  is not an Australian resident; and

                     (b)  has instructed the agent to wind up so much of the principal’s business as is carried on in Australia.

             (2)  Within 14 days after receiving the instructions, the agent must give written notice of that fact to the Regulator.

             (3)  The Regulator must, as soon as practicable after receiving the notice, notify the agent of the amount (the notified amount ) that the Regulator considers is enough to discharge any outstanding renewable energy shortfall charge related liabilities that the principal has when the notice is given.

             (4)  Before receiving the Regulator’s notice, the agent must not, without the Regulator’s permission, part with any of the principal’s assets that are available for discharging the outstanding renewable energy shortfall charge related liabilities.

             (5)  After receiving the notice, the agent must set aside:

                     (a)  out of the assets available for discharging the outstanding renewable energy shortfall charge related liabilities, assets to the value of the notified amount; or

                     (b)  all of the assets so available, if their value is less than the notified amount.

             (6)  The agent must, in that capacity, discharge the outstanding renewable energy shortfall charge related liabilities, to the extent of the value of the assets that the agent is required to set aside.

             (7)  The agent is personally liable to discharge the liabilities, to the extent of that value, if the agent contravenes this section.

86   Offence

                   A person must not fail to comply with subsection 85(2), (4), (5) or (6).

Maximum penalty: 30 penalty units.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       See section 4AA of the Crimes Act 1914 for the current value of penalty units.

87   Joint liability of 2 or more agents

                   If 2 or more agents are jointly instructed by the principal to wind up the business, the obligations and liabilities under this Subdivision:

                     (a)  apply to all the agents; but

                     (b)  may be discharged by any of them.

88   Agent’s other obligation or liability

                   This Subdivision does not reduce any obligation or liability of the agent or agents arising elsewhere.

Subdivision E Recovery from deceased person’s estate

89   Administered estate

             (1)  This section applies if:

                     (a)  a person has an outstanding renewable energy shortfall charge related liability when the person dies; and

                     (b)  either of the following is granted after the death:

                              (i)  probate of the person’s will;

                             (ii)  letters of administration of the person’s estate.

             (2)  The Regulator may, in respect of the liability, deal with the trustee of the deceased person’s estate as if:

                     (a)  the deceased person were still alive; and

                     (b)  the trustee were the deceased person.

             (3)  Without limiting subsection (2), the trustee must:

                     (a)  provide any returns and other information that the deceased person was liable to provide, or would have been liable to provide if he or she were still alive; and

                     (b)  provide any additional returns or other information relating to the liability that the Regulator requires; and

                     (c)  in the trustee’s representative capacity, discharge the liability and any penalty imposed in respect of the liability under this Act for which the deceased person would be liable if he or she were still alive.

             (4)  If:

                     (a)  the amount of the liability requires an assessment under this Act but the assessment has not been made; and

                     (b)  the trustee fails to provide a return or other information in relation to assessing that amount as required by the Regulator;

the Regulator may assess that amount. If the Regulator does so, the assessment has the same effect as if it were made under this Act.

             (5)  A trustee who is dissatisfied with an assessment under subsection (4) may object in the manner set out in Division 1 of Part 6.

             (6)  Division 1 of Part 6 applies in relation to the objection as if the trustee were the deceased person.

90   Unadministered estate

             (1)  This section applies if neither of the following is granted within 6 months after a person’s death:

                     (a)  probate of the person’s will;

                     (b)  letters of administration of the person’s estate.

             (2)  The Regulator may determine the total amount of outstanding renewable energy shortfall charge related liabilities that the person had at the time of death.

             (3)  The Regulator must publish notice of the determination twice in a daily newspaper circulating in the State or Territory in which the person resided at the time of death.

             (4)  A notice of the determination is conclusive evidence of the outstanding renewable energy shortfall charge related liabilities, unless the determination is amended.

             (5)  A person who is dissatisfied with the determination may object in the manner set out in Division 1 of Part 6 if the person:

                     (a)  claims an interest in the estate; or

                     (b)  is granted probate of the deceased person’s will or letters of administration of the estate.

             (6)  Division 1 of Part 6 applies in relation to the objection as if the person making it were the deceased person.



 

Division 3 Other matters

91   What this Division is about

This Division deals with a person’s right to recover from another person an amount paid in discharge of a renewable energy shortfall charge related liability if:

•      the person has paid the amount for or on behalf of the other person; or

•      the persons are jointly liable to pay the amount.

92   Right of recovery if another person is liable

                   A person who has paid an amount of a renewable energy shortfall charge related liability for or on behalf of another person may:

                     (a)  recover that amount from the other person as a debt (together with the costs of recovery) in a court of competent jurisdiction; or

                     (b)  retain or deduct the amount out of money held by the person that belongs to, or is payable to, the other person.

93   Right of contribution if persons are jointly liable

             (1)  If 2 or more persons are jointly liable to pay an amount of a renewable energy shortfall charge related liability, they are each liable for the whole of the amount.

             (2)  If one of the persons has paid an amount of the liability, the person may recover in a court of competent jurisdiction, as a debt, from another of those persons:

                     (a)  an amount equal to so much of the amount paid; and

                     (b)  an amount equal to so much of the costs of recovery under this section;

as the court considers just and equitable.

94   Regulator may authorise amount to be recovered

             (1)  The Regulator may, in writing, authorise a person (the authorised person ) to recover:

                     (a)  the total amount of the outstanding renewable energy shortfall charge related liabilities of a deceased person as determined under section 90 (about unadministered estates); and

                     (b)  any reasonable costs incurred by the authorised person in recovering that amount;

by seizing and disposing of any property of the deceased person.

             (2)  The authorised person may seize and dispose of the property as prescribed by the regulations.