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Carbon Credits (Carbon Farming Initiative) Bill 2011

Part 3 Eligible offsets projects

Division 1 Introduction

21   Simplified outline

                   The following is a simplified outline of this Part:

•      The Administrator may declare an offsets project to be an eligible offsets project.

•      The Administrator may vary or revoke a declaration of an eligible offsets project.



 

Division 2 Declaration of eligible offsets project

22   Application for declaration of eligible offsets project

             (1)  A person may apply to the Administrator for the declaration of an offsets project as an eligible offsets project.

Note:          The Administrator has a function of providing advice and assistance in relation to the making of applications: see section 286.

             (2)  A person is not entitled to make an application before the 28th day after the commencement of this section.

23   Form of application

             (1)  An application must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Administrator; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  if the project is of a kind specified in the regulations—be accompanied by a prescribed audit report prepared by a registered greenhouse and energy auditor who has been appointed as an audit team leader for the purpose; and

                     (e)  if:

                              (i)  the project area for the project was, or the project areas for the project were, wholly or partly covered by a prescribed non-CFI offsets scheme; and

                             (ii)  the applicant is entitled to make a request under section 92 in relation to the project;

                            be accompanied by such a request; and

                      (f)  if an indigenous land use agreement is relevant to the Administrator’s decision on the application—be accompanied by a copy of the agreement; and

                     (g)  if the project area, or any of the project areas, for the project is covered by a regional natural resource management plan—be accompanied by a statement about whether the project is consistent with the plan; and

                     (h)  be accompanied by such other documents (if any) as are specified in the regulations; and

                      (i)  be accompanied by the fee (if any) specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (3)  A fee specified under paragraph (1)(i) must not be such as to amount to taxation.

             (4)  An application may include a statement to the effect that the project should be subject to the voluntary automatic unit cancellation regime.

             (5)  Paragraph (1)(d) of this section does not, by implication, affect the application of subsection 13(3) of the Legislative Instruments Act 2003 to:

                     (a)  another paragraph of subsection (1) of this section; or

                     (b)  another instrument under this Act.

24   Further information

             (1)  The Administrator may, by written notice given to an applicant, require the applicant to give the Administrator, within the period specified in the notice, further information in connection with the application.

             (2)  If the applicant breaches the requirement, the Administrator 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.

25   Withdrawal of application

             (1)  An applicant may withdraw the application at any time before the Administrator makes a decision on the application.

             (2)  This Act does not prevent the applicant from making a fresh application.

             (3)  If:

                     (a)  the applicant withdraws the application; and

                     (b)  the applicant has paid a fee in relation to the application;

the Administrator must, on behalf of the Commonwealth, refund the application fee.

26   Application may be split

Scope

             (1)  This section applies if:

                     (a)  an application under section 22 has been made, or purportedly made, for a declaration of an offsets project as an eligible offsets project; and

                     (b)  the Administrator is satisfied that the application relates to 2 or more offsets projects.

Note:          See also subsection 55(6).

Application may be split

             (2)  The Administrator may, by written notice given to the applicant, determine that this Act has effect as if the applicant had made a separate application under section 22 in relation to each of the offsets projects referred to in paragraph (1)(b) of this section.

27   Declaration of eligible offsets project

Scope

             (1)  This section applies if an application under section 22 has been made for a declaration of an offsets project as an eligible offsets project.

Declaration

             (2)  After considering the application, the Administrator may, by writing:

                     (a)  declare that the offsets project is:

                              (i)  an eligible offsets project for the purposes of this Act; and

                             (ii)  an eligible Kyoto project for the purposes of this Act; or

                     (b)  declare that the offsets project is:

                              (i)  an eligible offsets project for the purposes of this Act; and

                             (ii)  an eligible non-Kyoto project for the purposes of this Act.

             (3)  A declaration under subsection (2) must:

                     (a)  identify the name of the project; and

                     (b)  identify, in accordance with the regulations, the project area or project areas; and

                     (c)  identify the project proponent for the project; and

                     (d)  identify such attributes of the project as are specified in the regulations; and

                     (e)  if the application included a statement to the effect that the project should be subject to the voluntary automatic unit cancellation regime—declare that the project is subject to the voluntary automatic unit cancellation regime.

Criteria for declaration

             (4)  The Administrator must not declare that the offsets project is an eligible offsets project unless the Administrator is satisfied that:

                     (a)  the project is, or is to be, carried on in Australia; and

                     (b)  the project is covered by a methodology determination; and

                     (c)  the project meets such requirements as are set out in the methodology determination in accordance with paragraph 106(1)(b); and

                     (d)  the project passes the additionality test; and

                     (e)  the applicant is the project proponent for the project; and

                      (f)  the applicant is a recognised offsets entity; and

                     (g)  if the project is a sequestration offsets project—the project area, or each project area, meets the requirements set out in subsection (5) of this section; and

                     (h)  if:

                              (i)  the project is a sequestration offsets project; and

                             (ii)  the project area is, or any of the project areas are, Crown land in a State or Territory; and

                            (iii)  the project area is not, or the project areas are not, Torrens system land; and

                            (iv)  the project area is not, or the project areas are not, the property of the Commonwealth; and

                             (v)  the project area is not, or the project areas are not, freehold land rights land; and

                            (vi)  the applicant is not the State or Territory;

                            the Crown lands Minister of the State or Territory has certified in writing that:

                           (vii)  the applicant holds the applicable carbon sequestration right in relation to the project area or project areas; and

                          (viii)  the State or Territory will not deal with the project area or project areas in a way that is inconsistent with the applicable carbon sequestration right; and

                            (ix)  if another person is required to obtain the consent of the State or Territory to a dealing with the project area or project areas—the State or Territory will not give that consent in a way that is inconsistent with the applicable carbon sequestration right; and

                      (i)  if:

                              (i)  the project is a sequestration offsets project; and

                             (ii)  the project area is, or any of the project areas are, Crown land; and

                            (iii)  the project area is, or the project areas are, the property of the Commonwealth;

                            (iv)  the project area is not, or the project areas are not, freehold land rights land; and

                            the Minister has certified in writing that:

                             (v)  the applicant holds the applicable carbon sequestration right in relation to the project area or project areas; and

                            (vi)  the Commonwealth will not deal with the project area or project areas in a way that is inconsistent with the applicable carbon sequestration right; and

                           (vii)  if another person is required to obtain the consent of the Commonwealth to a dealing with the project area or project areas—the Commonwealth will not give that consent in a way that is inconsistent with the applicable carbon sequestration right; and

                      (j)  the project does not involve:

                              (i)  the clearing of native forest; or

                             (ii)  using material obtained as a result of the clearing or harvesting of native forest; and

                     (k)  if the project is a sequestration offsets project—each person (other than the applicant) who holds an eligible interest in the project area or any of the project areas has consented, in writing, to the making of the application; and

                      (l)  the project meets the eligibility requirements (if any) specified in the regulations; and

                    (m)  the project is not an excluded offsets project; and

                     (n)  the project area is not, or the project areas are not, wholly or partly covered by a prescribed non-CFI offsets scheme.

Note 1:       Methodology determinations are made under section 106.

Note 2:       For the additionality test, see section 41.

Note 3:       For excluded offsets project , see section 56.

             (5)  The requirements mentioned in paragraph (4)(g) are:

                     (a)  the project area is Torrens system land or Crown land; and

                     (b)  the project area is not specified in the regulations.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .

             (6)  Subparagraph (4)(j)(ii) does not apply to a use specified in the regulations.

             (7)  A consent under paragraph (4)(k) must be in a form approved, in writing, by the Administrator.

             (8)  A consent under paragraph (4)(k) may be set out in a registered indigenous land use agreement.

             (9)  Subsection (7) does not apply to a consent under paragraph (4)(k) if the consent is set out in a registered indigenous land use agreement.

           (10)  The Administrator must not make a declaration under subsection (2) if the project area is, or any of the project areas are, subject to a carbon maintenance obligation.

           (11)  The Administrator must not make a declaration under subsection (2) in relation to a project (the new project ) if:

                     (a)  a notice was given under section 88, 89, 90 or 91 in relation to a project (the prior project ) that is or was:

                              (i)  an eligible offsets project; and

                             (ii)  a sequestration offsets project; and

                     (b)  the project area, or any of the project areas, for the new project was or were identified in the relevant section 27 declaration as the project area or project areas for the prior project; and

                     (c)  the notice required a person to relinquish a particular number of Australian carbon credit units; and

                     (d)  the person did not comply with the requirement within 90 days after the notice was given; and

                     (e)  the penalty payable under section 179 in respect of the non-compliance with the requirement (including any late payment penalty payable under section 180 in relation to the section 179 penalty) has not been paid in full.

           (12)  The Administrator must not declare that the offsets project is an eligible Kyoto project unless the Administrator is satisfied that the project is a Kyoto offsets project.

           (13)  The Administrator must not declare that the offsets project is an eligible non-Kyoto project unless the Administrator is satisfied that the project is a non-Kyoto offsets project.

Timing

           (14)  The Administrator must take all reasonable steps to ensure that a decision is made on the application:

                     (a)  if the Administrator requires the applicant to give further information under subsection 24(1) in relation to the application—within 90 days after the applicant gave the Administrator the information; or

                     (b)  if the Administrator requires the applicant to give further information under subsection 94(1) in relation to the offsets project—within 90 days after the applicant gave the Administrator the information; or

                     (c)  otherwise—within 90 days after the application was made.

When a declaration takes effect

           (15)  A declaration under subsection (2) takes effect:

                     (a)  when it is made; or

                     (b)  if:

                              (i)  an earlier day is specified in the declaration; and

                             (ii)  the applicant has consented to the specification of the earlier day;

                            on the day specified.

           (16)  The specified day must not be a day that is earlier than 1 July 2010.

Notification of declaration

           (17)  As soon as practicable after making a declaration under subsection (2), the Administrator must give a copy of the declaration to:

                     (a)  the applicant; and

                     (b)  the relevant land registration official.

Refusal

           (18)  If the Administrator decides to refuse to declare the offsets project as an eligible offsets project, the Administrator must give written notice of the decision to the applicant.

Registered indigenous land use agreements

           (19)  If:

                     (a)  a declaration under subsection (2) is in force; and

                     (b)  a relevant consent under paragraph (4)(k) was set out in a registered indigenous land use agreement;

details of the agreement must not be removed from the Register of Indigenous Land Use Agreements under subparagraph 199C(1)(c)(ii) of the Native Title Act 1993 without the written consent of the Administrator.

Declaration is not legislative instrument

           (20)  A declaration made under subsection (2) is not a legislative instrument.

28   Declaration may be subject to condition about obtaining regulatory approvals

Scope

             (1)  This section applies if:

                     (a)  an application under section 22 has been made for a declaration of an offsets project as an eligible offsets project; and

                     (b)  the Administrator makes a declaration under section 27 in relation to the project; and

                     (c)  the Administrator is not satisfied that all regulatory approvals have been obtained for the project.

Condition

             (2)  The Administrator must specify in the declaration that the declaration is subject to the condition that all regulatory approvals must be obtained for the project before the end of the first crediting period for the project.



 

Division 3 Variation of declaration of eligible offsets project

29   Voluntary variation of declaration of eligible offsets project in relation to the project area or project areas

Regulations

             (1)  The regulations may make provision for and in relation to empowering the Administrator to vary a declaration under section 27 in relation to an offsets project so far as the declaration identifies the project area or project areas.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to vary a declaration unless the project proponent for the project applies to the Administrator for the variation of the declaration.

             (3)  Regulations made for the purposes of subsection (1) may make provision for or in relation to any or all of the following matters:

                     (a)  applications for variations under those regulations;

                     (b)  the approval by the Administrator of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  verification by statutory declaration of statements in such an application;

                      (f)  consents that must be obtained for the making of such an application;

                     (g)  authorising a person to issue a certificate in relation to such an application;

                     (h)  requiring such an application to be accompanied by a statement about consistency with a regional natural resource management plan (if any) that covers the project area or any of the project areas;

                      (i)  the fee (if any) that must accompany such an application;

                      (j)  the withdrawal of such an application;

                     (k)  empowering the Administrator:

                              (i)  to require an applicant to give the Administrator further information in connection with such an application; and

                             (ii)  if the applicant breaches the requirement—to refuse to consider the application, or to refuse to take any action, or any further action, in relation to the application.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  A fee mentioned in paragraph (3)(i) must not be such as to amount to taxation.

             (6)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is varied in accordance with those regulations, the Administrator must give a copy of the variation to:

                     (a)  the applicant for the variation; and

                     (b)  the relevant land registration official.

             (7)  Regulations made for the purposes of subsection (1) must provide that, if the Administrator decides to refuse to vary a declaration of an eligible offsets project in accordance with an application for variation under those regulations, the Administrator must give written notice of the decision to the applicant for the variation.

Registered indigenous land use agreements

             (8)  If:

                     (a)  a declaration of an eligible offsets project is varied in accordance with regulations made for the purposes of subsection (1); and

                     (b)  a consent to the making of the application for the variation was set out in a registered indigenous land use agreement;

details of the agreement must not be removed from the Register of Indigenous Land Use Agreements under subparagraph 199C(1)(c)(ii) of the Native Title Act 1993 without the written consent of the Administrator.

References to eligible offsets project

             (9)  If a declaration of an eligible offsets project is varied in accordance with regulations made for the purposes of subsection (1), a reference in this Act or the regulations to the eligible offsets project is a reference to the eligible offsets project as varied.

30   Voluntary variation of declaration of eligible offsets project in relation to the project proponent

Regulations

             (1)  The regulations may make provision for and in relation to empowering the Administrator to vary a declaration under section 27 in relation to an offsets project so far as the declaration identifies the project proponent for the project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to vary a declaration unless the project proponent for the project applies to the Administrator for the variation of the declaration.

             (3)  Regulations made for the purposes of subsection (1) may make provision for or in relation to any or all of the following matters:

                     (a)  applications for variations under those regulations;

                     (b)  the approval by the Administrator of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  verification by statutory declaration of statements in such an application;

                      (f)  the fee (if any) that must accompany such an application;

                     (g)  the withdrawal of such an application;

                     (h)  empowering the Administrator:

                              (i)  to require an applicant to give the Administrator further information in connection with such an application; and

                             (ii)  if the applicant breaches the requirement—to refuse to consider the application, or to refuse to take any action, or any further action, in relation to the application;

                      (i)  empowering the Administrator to require the applicant to give security to the Commonwealth in relation to the fulfilment by the applicant of any requirements to relinquish Australian carbon credit units that may be imposed on the applicant under this Part in relation to the project.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  A fee mentioned in paragraph (3)(f) must not be such as to amount to taxation.

             (6)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is varied in accordance with those regulations, the Administrator must give a copy of the variation to:

                     (a)  the applicant for the variation; and

                     (b)  the relevant land registration official.

             (7)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is varied in accordance with those regulations, the variation takes effect:

                     (a)  when it is made; or

                     (b)  if:

                              (i)  the Administrator makes a written determination specifying an earlier day; and

                             (ii)  the applicant for the variation has consented to the determination of the earlier day;

                            on the day so determined.

             (8)  A determination made under subparagraph (7)(b)(i) is not a legislative instrument.

             (9)  Regulations made for the purposes of subsection (1) must provide that, if the Administrator decides to refuse to vary a declaration of an eligible offsets project in accordance with an application for variation under those regulations, the Administrator must give written notice of the decision to the applicant for the variation.

References to eligible offsets project

           (10)  If a declaration of an eligible offsets project is varied in accordance with regulations made for the purposes of subsection (1), a reference in this Act or the regulations to the eligible offsets project is a reference to the eligible offsets project as varied.

31   Voluntary variation of conditional declaration of eligible offsets project—regulatory approvals obtained

Scope

             (1)  This section applies to a declaration under section 27 in relation to an offsets project if the declaration is subject to a condition that all regulatory approvals must be obtained for the project before the end of the first crediting period for the project.

Regulations

             (2)  The regulations may make provision for and in relation to empowering the Administrator to vary such a declaration by removing such a condition.

             (3)  Regulations made for the purposes of subsection (2) must not empower the Administrator to vary a declaration unless:

                     (a)  the project proponent for the project applies to the Administrator for the variation of the declaration; and

                     (b)  the Administrator is satisfied that the condition has been met.

             (4)  Regulations made for the purposes of subsection (2) may make provision for or in relation to any or all of the following matters:

                     (a)  applications for variations under those regulations;

                     (b)  the approval by the Administrator of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  verification by statutory declaration of statements in such an application;

                      (f)  the fee (if any) that must accompany such an application;

                     (g)  the withdrawal of such an application;

                     (h)  empowering the Administrator:

                              (i)  to require an applicant to give the Administrator further information in connection with such an application; and

                             (ii)  if the applicant breaches the requirement—to refuse to consider the application, or to refuse to take any action, or any further action, in relation to the application.

             (5)  Subsection (4) does not limit subsection (2).

             (6)  A fee mentioned in paragraph (4)(f) must not be such as to amount to taxation.

             (7)  Regulations made for the purposes of subsection (2) must provide that, if a declaration of an eligible offsets project is varied in accordance with those regulations, the Administrator must give a copy of the variation to:

                     (a)  the applicant for the variation; and

                     (b)  the relevant land registration official.

             (8)  Regulations made for the purposes of subsection (2) must provide that, if the Administrator decides to refuse to vary a declaration of an eligible offsets project in accordance with an application for variation under those regulations, the Administrator must give written notice of the decision to the applicant for the variation.

References to eligible offsets project

             (9)  If a declaration of an eligible offsets project is varied in accordance with regulations made for the purposes of subsection (2), a reference in this Act or the regulations to the eligible offsets project is a reference to the eligible offsets project as varied.



 

Division 4 Revocation of declaration of eligible offsets project

Subdivision A Voluntary revocation of declaration of eligible offsets project

32   Voluntary revocation of declaration of eligible offsets project—units issued

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  one or more Australian carbon credit units have been issued in relation to the project in accordance with Part 2; and

                     (b)  the project proponent for the project applies to the Administrator for the revocation of the declaration; and

                     (c)  if the project is a sequestration offsets project—before the application was made, the applicant voluntarily relinquished:

                              (i)  a number of Kyoto Australian carbon credit units in order to satisfy a condition for revocation of the declaration; or

                             (ii)  a number of non-Kyoto Australian carbon credit units in order to satisfy a condition for revocation of the declaration; and

                     (d)  if the project is a sequestration offsets project—the number of relinquished units equals the net total number of Australian carbon credit units issued in relation to the project in accordance with Part 2.

Note 1:       See also section 177 (transfer of certain units instead of relinquishment of Kyoto Australian carbon credit units).

Note 2:       See also section 178 (transfer of certain units instead of relinquishment of non-Kyoto Australian carbon credit units).

             (3)  Regulations made for the purposes of subsection (1) may make provision for or in relation to either or both of the following matters:

                     (a)  applications for revocations under those regulations;

                     (b)  the approval by the Administrator of a form for such an application.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the applicant for the revocation; and

                     (b)  the relevant land registration official.

33   Voluntary revocation of declaration of eligible offsets project—no units issued

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  no Australian carbon credit units have been issued in relation to the project in accordance with Part 2; and

                     (b)  the project proponent for the project applies to the Administrator for the revocation of the declaration.

             (3)  Regulations made for the purposes of subsection (1) may make provision for or in relation to either or both of the following matters:

                     (a)  applications for revocations under those regulations;

                     (b)  the approval by the Administrator of a form for such an application.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the applicant for the revocation; and

                     (b)  the relevant land registration official.

Subdivision B Unilateral revocation of declaration of eligible offsets project

34   Unilateral revocation of declaration of eligible offsets project—regulatory approvals not obtained

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  the declaration is subject to the condition that all regulatory approvals for the project must be obtained before the end of the first crediting period for the project; and

                     (b)  the Administrator is satisfied that the condition has not been met.

             (3)  Regulations made for the purposes of subsection (1) must require the Administrator to consult the project proponent for the project before deciding to revoke a declaration.

             (4)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the project proponent; and

                     (b)  the relevant land registration official.

35   Unilateral revocation of declaration of eligible offsets project—eligibility requirements not met etc.

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless the Administrator is satisfied that the project does not meet a requirement that is:

                     (a)  set out in subsection 27(5); and

                     (b)  specified in regulations made for the purposes of this paragraph.

             (3)  Regulations made for the purposes of subsection (1) must require the Administrator to consult the project proponent for the project before deciding to revoke a declaration.

             (4)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the project proponent; and

                     (b)  the relevant land registration official.

36   Unilateral revocation of declaration of eligible offsets project—project proponent ceases to be a recognised offsets entity

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  the project proponent for the project ceases to be a recognised offsets entity; and

                     (b)  90 days pass after the cessation, and the person who, at the end of that 90-day period, is the project proponent for the project is not a recognised offsets entity.

             (3)  Regulations made for the purposes of subsection (1) must require the Administrator to consult the project proponent for the project before deciding to revoke a declaration.

             (4)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the project proponent; and

                     (b)  the relevant land registration official.

37   Unilateral revocation of declaration of eligible offsets project—person responsible for carrying out project ceases to be the project proponent

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  the person who is responsible for carrying out the project ceases to be the project proponent for the project; and

                     (b)  90 days pass after the cessation, and the person who, at the end of that 90-day period, is responsible for carrying out the project is not:

                              (i)  the project proponent for the project; and

                             (ii)  a recognised offsets entity.

             (3)  Regulations made for the purposes of subsection (1) must require the Administrator to consult the project proponent for the project before deciding to revoke a declaration.

             (4)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the person who is responsible for carrying out the project; and

                     (b)  the relevant land registration official.

38   Unilateral revocation of declaration of eligible offsets project—false or misleading information

             (1)  The regulations may make provision for and in relation to empowering the Administrator to revoke a declaration under section 27 in relation to an offsets project.

             (2)  Regulations made for the purposes of subsection (1) must not empower the Administrator to revoke a declaration unless:

                     (a)  information was given by a person to the Administrator in connection with the project; and

                     (b)  the information was:

                              (i)  contained in an application under this Act or the regulations; or

                             (ii)  given in connection with an application under this Act or the regulations; or

                            (iii)  contained in an offsets report; or

                            (iv)  contained in a notification under Part 6; and

                     (c)  the information was false or misleading in a material particular.

             (3)  Regulations made for the purposes of subsection (1) must require the Administrator to consult the project proponent for the project before deciding to revoke a declaration.

             (4)  Regulations made for the purposes of subsection (1) must provide that, if a declaration of an eligible offsets project is revoked in accordance with those regulations, the Administrator must give a copy of the revocation to:

                     (a)  the project proponent; and

                     (b)  the relevant land registration official.



 

Division 5 Entries in title registers

39   Entries in title registers—general

Scope

             (1)  This section applies to an eligible offsets project.

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to:

                     (a)  the existence of the eligible offsets project; and

                     (b)  the fact that requirements may arise under this Act in relation to the project; and

                     (c)  such other matters (if any) relating to this Act as the official considers appropriate.

40   Entries in title registers—land subject to carbon maintenance obligation

Scope

             (1)  This section applies to one or more areas of land if those areas of land are subject to a carbon maintenance obligation.

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to the obligation.



 

Division 6 Additionality test

41   Additionality test

             (1)  For the purposes of this Act, an offsets project passes the additionality test if:

                     (a)  the project is of a kind specified in the regulations; and

                     (b)  the project is not required to be carried out by or under a law of the Commonwealth, a State or a Territory.

             (2)  Before recommending to the Governor-General that regulations should be made for the purposes of paragraph (1)(a) specifying a particular kind of project, the Minister must request the Domestic Offsets Integrity Committee to advise the Minister about whether such a project should, or should not, be specified in those regulations.

             (3)  In deciding whether to recommend to the Governor-General that regulations should be made for the purposes of paragraph (1)(a) specifying a particular kind of project, the Minister must have regard to:

                     (a)  whether carrying out such a project is not common practice in:

                              (i)  the relevant industry or the relevant part of the relevant industry; or

                             (ii)  the kind of environment in which such a project is to be carried out; and

                     (b)  whether, apart from Part 2, carrying out such a project would not be common practice in:

                              (i)  the relevant industry or the relevant part of the relevant industry; or

                             (ii)  the kind of environment in which such a project is to be carried out; and

                     (c)  any advice given by the Domestic Offsets Integrity Committee under subsection (2); and

                     (d)  such other matters (if any) as the Minister considers relevant.

             (4)  Paragraph (1)(a) of this section does not, by implication, limit the application of subsection 13(3) of the Legislative Instruments Act 2003 to another instrument under this Act.

             (5)  If:

                     (a)  the Domestic Offsets Integrity Committee gives advice to the Minister under subsection (2) in relation to a particular kind of project; and

                     (b)  the Minister decides:

                              (i)  to recommend to the Governor-General that regulations should be made for the purposes of paragraph (1)(a) specifying that kind of project; or

                             (ii)  not to recommend to the Governor-General that regulations should be made for the purposes of paragraph (1)(a) specifying that kind of project;

the Minister must, as soon as practicable after making the decision, cause a copy of the Domestic Offset Integrity Committee’s advice under subsection (2) to be published on the Department’s website.



 

Division 7 Net total number of Australian carbon credit units issued in relation to an eligible offsets project

42   Net total number of Australian carbon credit units issued in relation to an eligible offsets project

                   For the purposes of this Act, the net total number of Australian carbon credit units issued in relation to an eligible offsets project in accordance with Part 2 is the number worked out using the following formula:



 

Division 8 Applicable carbon sequestration right

43   Applicable carbon sequestration right

Torrens system land

             (1)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Torrens system land; and

                     (c)  a person holds a legal estate or interest in the area of land; and

                     (d)  the estate or interest is registered under a Torrens system of registration; and

                     (e)  as a result of holding the estate or interest, the person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land;

the estate or interest is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (2)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Torrens system land; and

                     (c)  a person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land; and

                     (d)  the right is registered under a Torrens system of registration; and

                     (e)  under a law of a State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (3)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Torrens system land; and

                     (c)  a person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land; and

                     (d)  either:

                              (i)  the right is registered under a Torrens system of registration; or

                             (ii)  the area of land is Torrens system land, and the right is noted on the relevant certificate of title; and

                     (e)  under a law of a State or Territory, the right runs with the relevant land;

the exclusive right is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

Crown land that is not Torrens system land

             (4)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Crown land in a State or Territory; and

                     (c)  the area of land is not Torrens system land; and

                     (d)  a person (other than the Commonwealth, the State, the Territory or a statutory authority of the Commonwealth, the State or the Territory) holds a legal estate or interest in the area of land; and

                     (e)  as a result of holding the estate or interest, the person has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land;

the estate or interest is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (5)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Crown land in a State or Territory; and

                     (c)  the area of land is not Torrens system land; and

                     (d)  a person (other than the Commonwealth, the State, the Territory or a statutory authority of the Commonwealth, the State or the Territory) has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land; and

                     (e)  under a law of the State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (6)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Crown land in a State or Territory; and

                     (c)  the area of land is not Torrens system land; and

                     (d)  a person (other than the Commonwealth, the State, the Territory or a statutory authority of the Commonwealth, the State or the Territory) has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land; and

                     (e)  under a law of the State or Territory, the right runs with the relevant land; and

                      (f)  it is not the case that under a law of the State or Territory, the right is, or is taken to be, an estate or interest in land;

the exclusive right is the applicable carbon sequestration right held by the person in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (7)  For the purposes of this Act, if:

                     (a)  an area of land is Crown land; and

                     (b)  the area of land is not Torrens system land; and

                     (c)  as a result of the area being Crown land:

                              (i)  the Commonwealth; or

                             (ii)  a statutory authority of the Commonwealth;

                            has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide by trees on the area of land;

the exclusive right is the carbon sequestration right held by the Commonwealth or statutory authority, as the case may be, in relation to the land.

Note:          See subsections (9) and (10), which deal with certain native title land.

             (8)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is Crown land in a State or Territory; and

                     (c)  the area of land is not Torrens system land; and

                     (d)  as a result of the area of land being Crown land:

                              (i)  the State or Territory; or

                             (ii)  a statutory authority of the State or Territory;

                            has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon in the relevant carbon pool on the area of land;

the exclusive right is the applicable carbon sequestration right held by the State, Territory or statutory authority, as the case may be, in relation to the project area.

Note:          See subsections (9) and (10), which deal with certain native title land.

Native title land

             (9)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is native title land; and

                     (c)  there is a registered native title body corporate for the area of land; and

                     (d)  as a result of holding the native title, the native title holder has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide in the relevant carbon pool on the area of land;

then:

                     (e)  subsections (1), (2), (3), (4), (5), (6), (7) and (8) do not apply in relation to the area of land; and

                      (f)  the native title is the applicable carbon sequestration right held by the native title holder in relation to the project area.

           (10)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  the area of land is native title land; and

                     (c)  as a result of holding the native title, the native title holder has the exclusive legal right to obtain the benefit (whether present or future) of sequestration of carbon dioxide in the relevant carbon pool on the area of land; and

                     (d)  the exclusive right can be exercised by another person under a registered indigenous land use agreement that is:

                              (i)  with the registered native title body corporate in relation to the area of land; and

                             (ii)  covered by section 24BA of the Native Title Act 1993 ;

then:

                     (e)  subsections (1), (2), (3), (4), (5), (6), (7) and (8) do not apply in relation to the area of land; and

                      (f)  the exclusive right is the applicable carbon sequestration right held by the other person in relation to the project area.

Regulations

           (11)  For the purposes of the application of this Act to a sequestration offsets project, if:

                     (a)  an area of land is a project area for the project; and

                     (b)  a person has:

                              (i)  a prescribed right in relation to the area of land; or

                             (ii)  a prescribed estate in the area of land; or

                            (iii)  a prescribed interest in the area of land;

the prescribed right, prescribed estate or prescribed interest, as the case may be, is the applicable carbon sequestration right held by the person in relation to the project area.



 

Division 9 Eligible interest in an area of land

44   Eligible interest in an area of land—Torrens system land

Scope

             (1)  This section applies to an area of land if the area is Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, if:

                     (a)  a person holds an estate in fee simple, or any other legal estate or interest, in the whole or a part of the area of land; and

                     (b)  the estate or interest is registered under a Torrens system of registration;

the estate or interest is an eligible interest held by the person in the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  under subsection (2), a person holds an eligible interest in the area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest, where the mortgage is registered under a Torrens system of registration; or

                             (ii)  a chargee of the eligible interest, where the charge is registered under a Torrens system of registration;

the mortgage or charge is an eligible interest held by the other person in the area of land.

             (4)  For the purposes of this Act, if the area of land is Crown land, the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

             (5)  The regulations may provide that, for the purposes of this Act, a person specified in, or ascertained in accordance with, the regulations holds an eligible interest in the area of land.

             (6)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land; and

                     (b)  any of the following subparagraphs applies to the area of land:

                              (i)  a lease is in force over the land, and the grant of the lease took place under a law of the Commonwealth that makes provision for the grant of such things only to, or for the benefit of, Aboriginal peoples or Torres Strait Islanders;

                             (ii)  subparagraph (i) does not apply, and the land is held by the Commonwealth;

                            (iii)  subparagraph (i) does not apply, and the land is held by a statutory authority of the Commonwealth;

then:

                     (c)  if subparagraph (b)(i) applies—the Minister who administers the law mentioned in that subparagraph holds an eligible interest in the area of land; or

                     (d)  if subparagraph (b)(ii) applies—the Minister who administers the Aboriginal Land Rights (Northern Territory) Act 1976 holds an eligible interest in the area of land; or

                     (e)  if subparagraph (b)(iii) applies—the Minister who administers the Act that establishes the statutory authority holds an eligible interest in the area of land.

             (7)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land in a State or Territory; and

                     (b)  the area of land is not covered by subsection (6); and

                     (c)  the area of land is not freehold land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

45   Eligible interest in an area of land—Crown land that is not Torrens system land

Scope

             (1)  This section applies to an area of land in a State or Territory if the area of land:

                     (a)  is Crown land; and

                     (b)  is not Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, if the area of land is neither:

                     (a)  exclusive possession native title land; nor

                     (b)  land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  a person (other than the State or Territory) holds a legal estate or interest (the relevant estate or interest ) in the whole or a part of the area of land; and

                     (b)  any of the following conditions are satisfied:

                              (i)  the relevant estate or interest came into existence as a result of a grant by the Crown in any capacity;

                             (ii)  the relevant estate or interest was derived from an estate or interest that came into existence as a result of a grant by the Crown in any capacity;

                            (iii)  the relevant estate or interest was created by or under a law of the Commonwealth, a State or a Territory;

                            (iv)  the relevant estate or interest was derived from an estate or interest that was created by or under a law of the Commonwealth, a State or a Territory;

the relevant estate or interest is an eligible interest held by the person in the area of land.

             (4)  For the purposes of this Act, if:

                     (a)  under subsection (3), a person holds an eligible interest in the area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest; or

                             (ii)  is a chargee of the eligible interest;

the mortgage or charge is an eligible interest held by the other person in the area of land.

             (5)  The regulations may provide that, for the purposes of this Act, a person specified in, or ascertained in accordance with, the regulations holds an eligible interest in the area of land.

             (6)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land; and

                     (b)  any of the following subparagraphs applies to the area of land:

                              (i)  a lease is in force over the land, and the grant of the lease took place under a law of the Commonwealth that makes provision for the grant of such things only to, or for the benefit of, Aboriginal peoples or Torres Strait Islanders;

                             (ii)  subparagraph (i) does not apply, and the land is held by the Commonwealth;

                            (iii)  subparagraph (i) does not apply, and the land is held by a statutory authority of the Commonwealth;

then:

                     (c)  if subparagraph (b)(i) applies—the Minister who administers the law mentioned in that subparagraph holds an eligible interest in the area of land; or

                     (d)  if subparagraph (b)(ii) applies—the Minister who administers the Aboriginal Land Rights (Northern Territory) Act 1976 holds an eligible interest in the area of land; or

                     (e)  if subparagraph (b)(iii) applies—the Minister who administers the Act that establishes the statutory authority holds an eligible interest in the area of land.

             (7)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land in a State or Territory; and

                     (b)  the area of land is not covered by subsection (6); and

                     (c)  the area of land is not freehold land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.



 

Division 10 Native title land

46   Registered native title bodies corporate—deemed project proponent

Exclusive possession native title land

             (1)  For the purposes of the application of this Act to an offsets project, if the following conditions are satisfied in relation to the project area, or each of the project areas, for the offsets project:

                     (a)  the project area is exclusive possession native title land;

                     (b)  there is a registered native title body corporate for the project area;

                     (c)  no person (other than a body politic, the common law holders or the registered native title body corporate) has the legal right to carry out the project;

                     (d)  no person (other than a body politic, the common law holders or the registered native title body corporate) holds the applicable carbon sequestration right in relation to the project area;

then:

                     (e)  the registered native title body corporate for the project area is taken to be the project proponent for the offsets project; and

                      (f)  no other person is taken to be the project proponent for the project; and

                     (g)  paragraphs 27(4)(h) and (i) do not apply to the offsets project.

Note:          Paragraphs 27(4)(h) and (i) deal with the issue of certificates in relation to Crown land.

Native title holder has the legal right to carry out the project and holds the applicable carbon sequestration right

             (2)  For the purposes of the application of this Act to an offsets project, if the following conditions are satisfied in relation to the project area, or each of the project areas, for the offsets project:

                     (a)  the project area is native title land;

                     (b)  there is a registered native title body corporate for the project area;

                     (c)  the native title holder has the legal right to carry out the project;

                     (d)  the native title holder holds the applicable carbon sequestration right in relation to the project area;

                     (e)  subsection (1) does not apply to the project;

then:

                      (f)  the registered native title body corporate for the project area is taken to be the project proponent for the offsets project; and

                     (g)  no other person is taken to be the project proponent for the project; and

                     (h)  subparagraphs 27(4)(h)(vii) and (i)(v) have effect, in relation to the project, as if a reference in those subparagraphs to the applicant were a reference to the native title holder.

Note:          Paragraphs 27(4)(h) and (i) deal with the issue of certificates in relation to Crown land.

47   Administrator to notify Crown lands Minister of declaration of eligible offsets project

Scope

             (1)  This section applies if:

                     (a)  a registered native title body corporate is taken, under subsection 46(1), to be the project proponent for an offsets project; and

                     (b)  the project area is, or any of the project areas are, in a particular State or Territory; and

                     (c)  the project area is, or any of the project areas are, Crown land; and

                     (d)  the project area is not, or the project areas are not, Torrens system land; and

                     (e)  the Administrator makes a declaration under section 27 in relation to the project.

Notification

             (2)  As soon as practicable after making the declaration, the Administrator must notify the Crown lands Minister of the State or Territory, in writing, of the making of the declaration.

48   Designation of special native title account

Scope

             (1)  This section applies if a registered native title body corporate is taken, under section 46, to be the project proponent for an eligible offsets project.

Request for special native title account

             (2)  The registered native title body corporate may:

                     (a)  request the Administrator, under regulations made for the purposes of subsection 10(1) of the Australian National Registry of Emissions Units Act 2011 , to open a Registry account in the name of the registered native title body corporate; and

                     (b)  request the Administrator to designate that account as the special native title account for the eligible offsets project.

             (3)  A request under paragraph (2)(b) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Administrator; and

                     (c)  be accompanied by such information as is specified in the regulations; and

                     (d)  be accompanied by such other documents (if any) as are specified in the regulations; and

                     (e)  be accompanied by the fee (if any) specified in the regulations.

             (4)  The approved form of request may provide for verification by statutory declaration of statements in requests.

             (5)  A fee specified under paragraph (3)(e) must not be such as to amount to taxation.

Designation of special native title account

             (6)  After considering a request under paragraph (2)(b), the Administrator may designate the Registry account as the special native title account for the eligible offsets project.

49   Issue of Australian carbon credit units to special native title account

Scope

             (1)  This section applies if a registered native title body corporate is taken, under section 46, to be the project proponent for an eligible offsets project.

Application for issue of Australian carbon credit units

             (2)  If the registered native title body corporate makes an application under section 12 for the issue of a certificate of entitlement in respect of the project for a reporting period, paragraph 13(1)(c) does not apply to the application.

Note:          Paragraph 13(1)(c) requires the application to set out the account number of a Registry account.

Issue of Australian carbon credit units

             (3)  If:

                     (a)  a special native title account for the project is kept in the name of the registered native title body corporate; and

                     (b)  apart from this subsection, the Administrator is required under section 11 to issue one or more Australian carbon credit units to the registered native title body corporate in relation to the eligible offsets project;

then:

                     (c)  the Administrator must comply with the requirement by issuing the units to the registered native title body corporate and making an entry for the units in the special native title account; and

                     (d)  subsections 11(5) and (6) do not apply to the issue of the units.

             (4)  If:

                     (a)  there is not a special native title account for the project; and

                     (b)  apart from this subsection, the Administrator is required under section 11 to issue one or more Australian carbon credit units to the registered native title body corporate in relation to the eligible offsets project;

the Administrator must not issue the units.

50   Units held in special native title account

Scope

             (1)  This section applies to a Registry account that has been designated as the special native title account for an eligible offsets project.

Units held in account

             (2)  Australian carbon credit units held in the special native title account are held in trust for the persons who are, for the time being, the common law holders of the native title in relation to the project area, or each of the project areas, for the project.

51   Regulations about consulting common law holders etc.

             (1)  The regulations may make provision for a registered native title body corporate to consult, and act in accordance with the directions of, the common law holders in relation to anything done by the registered native title body corporate under, or in connection with:

                     (a)  this Act or the regulations; or

                     (b)  the Australian National Registry of Emissions Units Act 2011 or regulations under that Act.

             (2)  The regulations may make provision for a registered native title body corporate to be the agent of the common law holders for the purposes of giving a consent under this Act or the regulations.



 

Division 11 Freehold land rights land

52   Administrator to notify Crown lands Minister of declaration of eligible offsets project

Scope

             (1)  This section applies if:

                     (a)  the Administrator makes a declaration under section 27 in relation to an offsets project; and

                     (b)  the project area is, or any of the project areas are, freehold land rights land in a particular State or Territory; and

                     (c)  the project area is, or any of the project areas are, Crown land; and

                     (d)  the project area is not, or the project areas are not, Torrens system land.

Notification

             (2)  As soon as practicable after making the declaration, the Administrator must notify the Crown lands Minister of the State or Territory, in writing, of the making of the declaration.



 

Division 12 Types of projects

53   Emissions avoidance offsets projects

             (1)  For the purposes of this Act, a project is an emissions avoidance offsets project if it is:

                     (a)  an agricultural emissions avoidance project; or

                     (b)  a landfill legacy emissions avoidance project; or

                     (c)  an introduced animal emissions avoidance project; or

                     (d)  a project of a kind specified in the regulations.

             (2)  Paragraph (1)(d) does not, by implication, affect the application of subsection 13(3) of the Legislative Instruments Act 2003 to another instrument under this Act.

             (3)  For the purposes of this Act, a project is not an emissions avoidance offsets project if the project is a sequestration offsets project.

54   Sequestration offsets projects

                   For the purposes of this Act, a project is a sequestration offsets project if it is a project:

                     (a)  to remove carbon dioxide from the atmosphere by sequestering carbon in one or more of the following:

                              (i)  living biomass;

                             (ii)  dead organic matter;

                            (iii)  soil; or

                     (b)  to remove carbon dioxide from the atmosphere by sequestering carbon in, and to avoid emissions of greenhouses gases from, one or more of the following:

                              (i)  living biomass;

                             (ii)  dead organic matter;

                            (iii)  soil.

55   Kyoto offsets projects and non-Kyoto offsets projects etc.

Kyoto offsets projects

             (1)  For the purposes of this Act, an offsets project is a Kyoto offsets project if it is:

                     (a)  an agricultural emissions avoidance project; or

                     (b)  a landfill legacy emissions avoidance project; or

                     (c)  an offsets project of a kind specified in the regulations.

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  For the purposes of this Act, an offsets project is not a Kyoto offsets project unless:

                     (a)  if the project is a sequestration offsets project:

                              (i)  to the extent to which the project is a project to remove carbon dioxide from the atmosphere—the removal can be used to meet Australia’s climate change targets under the Kyoto Protocol or an international agreement (if any) that is the successor (whether immediate or otherwise) to the Kyoto Protocol; and

                             (ii)  to the extent (if any) to which the project is a project to avoid emissions of greenhouse gases—the avoidance can be used to meet Australia’s climate change targets under the Kyoto Protocol or an international agreement (if any) that is the successor (whether immediate or otherwise) to the Kyoto Protocol; or

                     (b)  if the project is an emissions avoidance offsets project to avoid emissions of one or more greenhouse gases—the avoidance can be used to meet Australia’s climate change targets under:

                              (i)  the Kyoto Protocol; or

                             (ii)  an international agreement (if any) that is the successor (whether immediate or otherwise) to the Kyoto Protocol.

             (4)  Paragraph (1)(c) does not, by implication, affect the application of subsection 13(3) of the Legislative Instruments Act 2003 to another instrument under this Act.

Non-Kyoto offsets projects

             (5)  For the purposes of this Act, an offsets project is a non-Kyoto offsets project if it is an offsets project other than a Kyoto offsets project.

Dissection of project

             (6)  For the purposes of this Act, if, apart from this subsection, an offsets project (the overall project ):

                     (a)  is partly a Kyoto offsets project; and

                     (b)  is partly a non-Kyoto offsets project;

then:

                     (c)  the overall project, to the extent to which it is a Kyoto offsets project, is taken to be an offsets project in its own right; and

                     (d)  the overall project, to the extent to which it is a non-Kyoto offsets project, is taken to be an offsets project in its own right.

It is immaterial whether the Kyoto offsets project and the non-Kyoto offsets project have the same project area or areas.

56   Excluded offsets projects

             (1)  For the purposes of this Act, an offsets project is an excluded offsets project if it is a project of a kind specified in the regulations.

             (2)  In deciding whether to recommend to the Governor-General that regulations should be made for the purposes of subsection (1) specifying a particular kind of project, the Minister must have regard to whether there is a significant risk that that kind of project will have a significant adverse impact on one or more of the following:

                     (a)  the availability of water;

                     (b)  the conservation of biodiversity;

                     (c)  employment;

                     (d)  the local community;

in, or in the vicinity of, the project area, or any of the project areas, for that kind of project.

             (3)  Subsection (1) of this section does not, by implication, limit the application of subsection 13(3) of the Legislative Instruments Act 2003 to another instrument under this Act.



 

Division 13 Restructure of eligible offsets projects

57   Restructure of eligible offsets projects

             (1)  For the purposes of this section, if:

                     (a)  as the result of the variation or revocation of a section 27 declaration, an area of land (the relevant area ) ceases to be, or ceases to be part of, the project area, or any of the project areas, for an eligible offsets project that:

                              (i)  is a sequestration offsets project; and

                             (ii)  is not a native forest protection project; and

                     (b)  as a result of the making or variation of another section 27 declaration, the relevant area becomes, or becomes part of, the project area, or any of the project areas, for another eligible offsets project that:

                              (i)  is a sequestration offsets project; and

                             (ii)  is not a native forest protection project;

then:

                     (c)  the project mentioned in paragraph (a) is the transferor offsets project ; and

                     (d)  the project mentioned in paragraph (b) is the transferee offsets project .

Regulations

             (2)  The regulations may make provision for or in relation to the adjustment of any or all of the following:

                     (a)  the calculation of a unit entitlement in relation to the transferee offsets project using the formula in subsection 16(2);

                     (b)  the calculation of a unit entitlement in relation to the transferor offsets project using the formula in subsection 16(2);

                     (c)  the calculation of the net total number of Australian carbon credit units issued in relation to the transferee offsets project in accordance with Part 2;

                     (d)  the calculation of the net total number of Australian carbon credit units issued in relation to the transferor offsets project in accordance with Part 2;

                     (e)  the duration of a crediting period for the transferee offsets project;

                      (f)  the duration of a reporting period for the transferee offsets project.

Determinations

             (3)  Regulations made for the purposes of subsection (2) may empower the Administrator to determine that, whenever it is necessary to calculate a unit entitlement in relation to the transferor offsets project using the formula in subsection 16(2), that subsection has effect, in relation to the transferor offsets project, as if the net abatement number were decreased by the number specified in the determination.

             (4)  Regulations made for the purposes of subsection (2) may empower the Administrator to determine that, whenever it is necessary to calculate a unit entitlement in relation to the transferee offsets project using the formula in subsection 16(2), that subsection has effect, in relation to the transferee offsets project, as if the net abatement number were increased by the number specified in the determination.

             (5)  Regulations made for the purposes of subsection (2) may empower the Administrator to determine that, whenever it is necessary to work out the net total number of Australian carbon credit units issued in relation to the transferor offsets project, this Act has effect, in relation to the transferor offsets project, as if the net total number of Australian carbon credit units issued in relation to the project in accordance with Part 2 were decreased by the number specified in the determination.

             (6)  Regulations made for the purposes of subsection (2) may empower the Administrator to determine that, whenever it is necessary to work out the net total number of Australian carbon credit units issued in relation to the transferee offsets project, this Act has effect, in relation to the transferee offsets project, as if the net total number of Australian carbon credit units issued in relation to the project in accordance with Part 2 were increased by the number specified in the determination.

             (7)  Subsections (3) to (6) do not limit subsection (2).

Determination is not a legislative instrument

             (8)  A determination made under regulations made for the purposes subsection (2) is not a legislative instrument.

58   Restructure of an eligible offsets project that is subject to the voluntary automatic unit cancellation regime

Scope

             (1)  This section applies if, as the result of the variation or revocation of a section 27 declaration, an area of land (the relevant area ) ceases to be, or ceases to be part of, the project area, or any of the project areas, for an eligible offsets project that is or was subject to the voluntary automatic unit cancellation regime.

Note:          For when an eligible offsets project is subject to the voluntary automatic unit cancellation regime, see paragraph 27(3)(e).

Restriction

             (2)  The Administrator must not make or vary another section 27 declaration if doing so would result in the relevant area becoming, or becoming part of, the project area, or any of the project areas, for another eligible offsets project that is not subject to the voluntary automatic unit cancellation regime.