Carbon Credits (Carbon Farming Initiative—Interim Measures) Rule 2014
I, Greg Hunt, Minister for the Environment, make the following rule.
Dated 1 December 2014
Greg Hunt
Minister for the Environment
Contents
Part 1—Preliminary 1
1............ Name............................................................................................................................. 1
2............ Commencement............................................................................................................. 1
3............ Authority....................................................................................................................... 1
4............ Definitions..................................................................................................................... 1
Part 2—Issue of Australian carbon credit units in respect of offsets projects 4
5............ Form of application for certificate of entitlement—audit requirements.......................... 4
6............ Issue of certificate of entitlement—eligibility requirements........................................... 4
Part 3—Eligible offsets projects 5
7............ Operation of this Part.................................................................................................... 5
8............ Application for declaration of eligible offsets project—information required to establish applicant’s identity 5
9............ Application for declaration of eligible offsets project—documents required to establish applicant’s identity 7
10.......... Form etc. of documents................................................................................................. 9
11.......... Aboriginal persons or Torres Strait Islanders................................................................ 9
Part 4—Fit and proper person test 11
12.......... Operation of this Part.................................................................................................. 11
13.......... Events for individuals, bodies corporate and executive officers of bodies corporate... 11
14.......... Events for individuals.................................................................................................. 11
15.......... Events for bodies corporate......................................................................................... 12
16.......... Events for executive officers of bodies corporate........................................................ 12
Part 6—Reporting and notification requirements 13
17.......... Operation of this Part.................................................................................................. 13
18.......... Audit reports to accompany offsets reports................................................................. 13
19.......... Conduct of audits........................................................................................................ 14
Part 28—Repeals 15
20.......... Repeal of this instrument............................................................................................. 15
Schedule 1—Documents required to establish applicant’s identity 16
Part 1—Documents for identifying individuals who are Australian citizens or residents 16
1............ Category A documents................................................................................................ 16
2............ Category B documents................................................................................................ 16
Part 2—Documents for identifying individuals who are not residents 18
3............ Category A documents................................................................................................ 18
4............ Category B documents................................................................................................ 18
Part 1—Preliminary
1 Name
This is the Carbon Credits (Carbon Farming Initiative—Interim Measures) Rule 2014.
2 Commencement
This instrument commences at the same time as Schedule 1 to the Carbon Farming Initiative Amendment Act 2014 commences.
3 Authority
This instrument is made under the Carbon Credits (Carbon Farming Initiative) Act 2011.
4 Definitions
(1) In this instrument:
Act means the Carbon Credits (Carbon Farming Initiative) Act 2011.
authorised referee has the meaning given by subsection 11(4).
category A document has the meaning given by:
(a) for an individual who is an Australian citizen or ordinarily resident in Australia—clause 1 of Schedule 1; and
(b) for an individual who is not ordinarily resident in Australia—clause 3 of Schedule 1.
category B document has the meaning given by:
(a) for an individual who is an Australian citizen or ordinarily resident in Australia—clause 2 of Schedule 1; and
(b) for an individual who is not ordinarily resident in Australia—clause 4 of Schedule 1.
certified copy, of a document, means a copy of the document that has been certified as a true copy by:
(a) if the document is provided under section 9 and paragraph (c) of this definition does not apply—one of the following persons who is in Australia:
(i) an officer of an authorised deposit‑taking institution (within the meaning of the Banking Act 1959) with 5 or more continuous years of service;
(ii) a commissioner for declarations;
(iii) a judge of a court;
(iv) a justice of the peace;
(v) a legal practitioner;
(vi) a medical practitioner;
(vii) a minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961;
(viii) a police officer;
(ix) a sheriff or a sheriff’s officer; or
(b) if the document is not provided under section 9 and paragraph (c) of this definition does not apply—a person mentioned in Schedule 2 to the Statutory Declarations Regulations 1993; or
(c) if the person who is required to provide the document is not in Australia at the time the document must be provided—one of the following:
(i) an Australian embassy, Australian High Commission or Australian consulate (other than a consulate headed by an honorary consul);
(ii) a competent authority under the Convention abolishing the Requirement of Legalisation for Foreign Public Documents, done at The Hague on 5 October 1961.
Note 1: Information about competent authorities under the Convention can be found on the Hague Conference on Private International Law’s website (http://www.hcch.net).
Note 2: The Convention is in Australian Treaty Series 1995 No. 11 ([1995] ATS 11) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
child: without limiting who is a child of a person for the purposes of this instrument, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
commencement day means the day this instrument commences.
entity‑related project has the meaning given by subsection 18(4).
foreign person means any of the following:
(a) an individual who is not ordinarily resident in Australia;
(b) a body corporate or a corporation sole that:
(i) is incorporated outside Australia; or
(ii) is an authority of a foreign country;
(c) a body politic or a local governing body of a foreign country;
(d) if paragraph (a), (b) or (c) applies to the trustee, or a majority of the trustees, of a trust—the trust.
NGER Act means the National Greenhouse and Energy Reporting Act 2007.
ordinarily resident in Australia: an individual is ordinarily resident in Australia if, at a particular time:
(a) one of the following applies to the individual:
(i) the individual is in Australia and has permission to remain in Australia indefinitely;
(ii) the individual is not in Australia but has a right to re‑enter Australia and, on re‑entry, to be granted permission to remain in Australia indefinitely;
(iii) the individual is in Australia and has a special category visa under section 32 of the Migration Act 1958;
(iv) the individual is not in Australia, is a New Zealand citizen, holds a New Zealand passport and, on re‑entry to Australia, would have the right to be granted a special category visa under section 32 of the Migration Act 1958; and
(b) the individual was in Australia for 200 or more days in the 12 months immediately preceding that time.
parent: without limiting who is a parent of a person for the purposes of this instrument, someone is the parent of a person if the person is his or her child because of the definition of child in this subsection.
qualified reasonable assurance conclusion has the same meaning as in the National Greenhouse and Energy Reporting (Audit) Determination 2009.
reasonable assurance conclusion has the same meaning as in the National Greenhouse and Energy Reporting (Audit) Determination 2009.
registered cooperative means a body that, under a law of the Commonwealth, a State, a Territory or a foreign country, is registered as a cooperative.
Registry account has the same meaning as in the Registry Act.
Registry Act means the Australian National Registry of Emissions Units Act 2011.
Registry Regulations means the Australian National Registry of Emissions Units Regulations 2011.
section 27 declaration means a declaration under section 27 of the Act in relation to an offsets project.
(2) For the purposes of this instrument, if one person is the child of another person because of the definition of child in subsection (1), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
Part 2—Issue of Australian carbon credit units in respect of offsets projects
5 Form of application for certificate of entitlement—audit requirements
For paragraph 13(1)(e) of the Act:
(a) an application for a certificate of entitlement in respect of an eligible offsets project for a reporting period is subject to audit under the Act if the offsets report for the project for the reporting period is subject to audit under the Act; and
(b) the audit report that must accompany the application is the audit report that must accompany the offsets report.
Note: For audit requirements in relation to offsets reports, see Part 6.
6 Issue of certificate of entitlement—eligibility requirements
(1) For paragraph 15(2)(h) of the Act, this section specifies eligibility requirements that must be met in order for a certificate of entitlement to be issued in respect of an eligible offsets project for a reporting period.
(2) It is an eligibility requirement that an audit report accompanying an application for a certificate of entitlement must set out, for each of the matters audited, one of the following results:
(a) a reasonable assurance conclusion;
(b) a qualified reasonable assurance conclusion.
Part 3—Eligible offsets projects
7 Operation of this Part
For paragraphs 23(1)(c) and (h) of the Act, this Part specifies information and documents that must accompany an application for the declaration of an offsets project as an eligible offsets project.
8 Application for declaration of eligible offsets project—information required to establish applicant’s identity
An application for the declaration of an offsets project as an eligible offsets project must be accompanied by the information set out in each item of the following table that applies to the applicant.
Information required to establish applicant’s identity
Item
Applicant
Information
1
All applicants
The following:
(a) the applicant’s full name, address and contact details;
(b) the applicant’s status as:
(i) an individual, including an individual who is a sole trader; or
(ii) a body corporate; or
(iii) a corporation sole; or
(iv) a body politic; or
(v) a local governing body; or
(vi) a trust;
(c) the applicant’s ABN, ACN, ARBN, GST registration number or other unique number;
(d) the applicant’s business name and, if different, trading name;
(e) the address of the applicant’s principal place of business.
2
An applicant who is an individual, including an individual who is a sole trader
The following:
(a) the applicant’s date of birth and residential address;
(b) any other name by which the applicant is known;
(c) the applicant’s gender;
(d) for an applicant who is a sole trader—each jurisdiction in which the applicant operates as a sole trader.
3
An applicant that is a body corporate
The following:
(a) the full name and date of birth of each executive officer;
(b) a description of the form in which the body has been incorporated;
(c) each jurisdiction in which the body operates;
(d) if the body is a foreign person—the name of any Australian agent through which the body conducts business.
4
An applicant that is an Aboriginal and Torres Strait Islander corporation (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006)
The corporation’s ICN (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006).
5
An applicant that is a trust
The following:
(a) the full name and address of each trustee;
(b) a description of the kind of trust;
(c) each jurisdiction in which the trust operates;
(d) for each trustee who is an individual—the information mentioned in item 2;
(e) for each trustee that is a body corporate—the information mentioned in items 3 and 4 (as applicable).
6
An applicant that is a trust other than a trust that is:
(a) a government superannuation fund established by legislation; or
(b) registered and subject to the regulatory oversight of a Commonwealth statutory regulator in relation to its activities as a trust
Either:
(a) if the terms of the trust identify the beneficiaries by reference to membership of a class—details of the class; or
(b) otherwise—the following:
(i) for each beneficiary who is an individual, the full name and date of birth of the beneficiary;
(ii) for each beneficiary that is not an individual, the business name and, if different, trading name of the beneficiary.
7
An applicant that is a corporation sole
The full name, date of birth and address of the individual constituting the corporation sole.
8
An applicant that is an incorporated association, or a registered cooperative, that does not have a registered address or principal place of business
The full name and address of:
(a) the public officer of the body; or
(b) if there is no public officer—the secretary of the body; or
(c) if there is no public officer or secretary—the president or treasurer of the body.
9
An applicant that is a proprietary or private company other than a company that is:
(a) a publicly listed company in Australia or a wholly owned subsidiary of such a company; or
(b) a company that is licensed and subject to the regulatory oversight of a Commonwealth statutory regulator in relation to its activities as a company
The name and address of any individual who owns, through one or more share holdings, over 25% of the issued capital in the company.
9 Application for declaration of eligible offsets project—documents required to establish applicant’s identity
(1) Subject to subsections (2), (3) and (4), an application for the declaration of an offsets project as an eligible offsets project must be accompanied by a certified copy of the documents set out in each item of the following table that applies to the applicant.
Documents required to establish applicant’s identity
Item
Applicant
Documents
1
An applicant who is:
(a) an Australian citizen; or
(b) an individual ordinarily resident in Australia
Three documents, of a kind set out in Part 1 of Schedule 1, that identify the individual. At least one of the documents must be a category A document for the individual.
2
An applicant who is an individual not ordinarily resident in Australia
Three documents, of a kind set out in Part 2 of Schedule 1, that identify the individual. At least one of the documents must be a category A document for the individual.
3
An applicant who is an individual who has changed his or her name
A document that shows the change of name (for example, a marriage certificate, deed poll or certificate issued by a government authority that recognises the change of name).
4
An applicant that is a body corporate
The following:
(a) the certificate of the body’s incorporation (if any);
(b) the certificate of the body’s registration (if any) with the Australian Securities Investment Commission;
(c) if the body is not registered in Australia—the certificate of the body’s registration (if any) with a registry established under a law of a foreign country;
(d) if there is no certificate of the body’s incorporation—a document with similar effect;
(e) if there is no certificate of the body’s registration—a document with similar effect.
5
An applicant that is an incorporated association or a registered cooperative
Other documentary evidence that the body exists (for example, an annual report or the body’s constitution).
6
An applicant that is a local governing body
Documentary evidence that the body is a local governing body.
7
An applicant that is a body corporate that does not have an ABN
The documents mentioned in items 1 to 3 (as applicable) for the following executive officers:
(a) if the body is a private company, an incorporated association or a registered cooperative (whether or not a foreign person) that has 3 or more executive officers—3 of the body’s executive officers;
(b) if the body is a private company, an incorporated association or a registered cooperative (whether or not a foreign person) that has less than 3 executive officers—each of the body’s executive officers;
(c) if the body is a foreign person that is a public company—an executive officer who is not the same person the body nominates to be an authorised representative (within the meaning of the Registry Regulations).
8
An applicant that is a trust
The following:
(a) if there is a trust deed—the deed, or an extract of the deed that identifies the trustees and beneficiaries (or classes of beneficiary);
(b) if there is no trust deed—either:
(i) a document with similar effect to a trust deed; or
(ii) the certificate of registration as a trust (if any);
(c) for each trustee who is an individual—the documents mentioned in items 1 to 3 (as applicable);
(d) for each trustee that is a body corporate—the documents mentioned in items 4 to 7 (as applicable).
(2) An application is not required to be accompanied by a certified copy of a document under subsection (1) if, immediately before the commencement day, the applicant was a recognised offsets entity (within the meaning of the Act as in force at that time).
(3) An application is also not required to be accompanied by a certified copy of a document under subsection (1) if:
(a) the applicant is a registered person under:
(i) the NGER Act; or
(ii) the Renewable Energy (Electricity) Act 2000; and
(b) the applicant provided the document (or a certified copy of the document) to the Regulator in order to become a registered person under that Act; and
(c) the document remains current.
(4) An application is also not required to be accompanied by a certified copy of a document under subsection (1) if:
(a) the applicant:
(i) has a Registry account; or
(ii) at the same time the applicant makes the application for the declaration of an offsets project as an eligible offsets project, the applicant also makes a request under the Registry Regulations to open a Registry account; and
(b) the applicant provided, or provides, the document (or a certified copy of the document) to the Regulator with the request to open the Registry account.
10 Form etc. of documents
(1) If a certified copy of a document must, under section 9, accompany an application for the declaration of an offsets project as an eligible offsets project, the certified copy must be of an original document that is current at the time the application is made.
(2) If the original document is not written in English, the application must be accompanied by:
(a) a certified copy of the original document; and
(b) an English translation that has been prepared and certified as a true copy of the original document by a translation service accredited by the National Accreditation Authority for Translators and Interpreters Ltd.
11 Aboriginal persons or Torres Strait Islanders
(1) This section applies if:
(a) an application for the declaration of an offsets project as an eligible offsets project must be accompanied by documents mentioned in item 1 or 2 of the table in subsection 9(1) in respect of an individual; and
(b) the individual is an Aboriginal person or a Torres Strait Islander who does not have the required number of documents mentioned in those items.
(2) The application must be accompanied by a reference by an authorised referee that verifies the individual’s identity.
(3) The authorised referee may confirm the individual’s identity from any records within the referee’s keeping or control.
(4) In this section:
authorised referee, for an individual, means a person who:
(a) is not the individual’s parent, grandparent, sibling, child or grandchild; and
(b) has known the individual for at least 12 months; and
(c) is one of the following:
(i) the chair, Secretary or chief executive officer of an incorporated Indigenous organisation, including a land council, community council or housing organisation;
(ii) the individual’s employer;
(iii) a school principal or a school counsellor;
(iv) a minister of religion;
(v) a medical practitioner;
(vi) a treating health professional (within the meaning of subsection 197(1) of the Social Security Act 1991) or a manager in an Aboriginal Medical Service;
(vii) a person who has been an officer in a Department of State of the Commonwealth or a State or Territory for at least 5 years.
Part 4—Fit and proper person test
12 Operation of this Part
For subparagraphs 60(1)(a)(i), (2)(a)(i) and (2)(a)(ii) of the Act, this Part specifies events to which regard must be had for the purposes of the fit and proper person test for individuals and bodies corporate.
Note: Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
13 Events for individuals, bodies corporate and executive officers of bodies corporate
For individuals, bodies corporate and executive officers of bodies corporate (a relevant person), the following events are specified:
(a) the relevant person has been convicted of an offence against a law of the Commonwealth, a State or a Territory, where the offence relates to dishonest conduct;
(b) the relevant person has been convicted of an offence against a law of the Commonwealth, a State or a Territory, where the offence relates to the conduct of a business;
(c) the relevant person has been convicted of an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;
(d) an order has been made against the relevant person under section 76 of the Competition and Consumer Act 2010;
(e) an order has been made against the relevant person under section 224 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth, a State or a Territory;
(f) the relevant person has breached the Act or the associated provisions;
(g) the relevant person has breached the Registry Act or regulations under that Act;
(h) the relevant person has breached the NGER Act or regulations under that Act.
(i) any other events that the Regulator considers relevant.
14 Events for individuals
For individuals, the following events are also specified:
(a) the individual has been convicted, under a law of a foreign country, of an offence that corresponds to an offence mentioned in any of paragraphs 13(a) to (c);
(b) an order that corresponds to an order mentioned in paragraph 13(d) or (e) has been made against the individual under a law of a foreign country;
(c) the individual has been convicted of an offence against a law of a foreign country in respect of a matter that corresponds to a matter in relation to which an order mentioned in paragraph 13(d) or (e) may be made;
(d) the individual has breached a law of a foreign country that corresponds to a law mentioned in any of paragraphs 13(f) to (h).
15 Events for bodies corporate
For bodies corporate, the following events, if they occur overseas or under a law of a foreign country, are also specified:
(a) the body corporate is, or is being, wound up;
(b) a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting in respect of any property of the body corporate;
(c) the body corporate is under administration;
(d) the body corporate has executed a deed of company arrangement that has not yet terminated;
(e) the body corporate has entered into a compromise or arrangement with a person the administration of which has not yet concluded.
16 Events for executive officers of bodies corporate
For executive officers of bodies corporate, the following events are also specified:
(a) the officer has been convicted, under a law of a foreign country, of an offence that corresponds to an offence mentioned in any of paragraphs 13(a) to (c);
(b) an order that corresponds to an order mentioned in paragraph 13(d) or (e) has been made against the officer under a law of a foreign country;
(c) the officer has been convicted of an offence against a law of a foreign country in respect of a matter that corresponds to a matter in relation to which an order mentioned in paragraph 13(d) or (e) may be made;
(d) the officer has breached a law of a foreign country that corresponds to a law mentioned in any of paragraphs 13(f) to (h);
(e) the officer has been disqualified from being a director of a body corporate under an order made by a court of a foreign country;
(f) the officer has been disqualified from being concerned in the management of a body corporate under an order made by a court of a foreign country.
Part 6—Reporting and notification requirements
17 Operation of this Part
For paragraph 76(4)(c) of the Act, this Part sets out requirements in relation to audit reports that must accompany offsets reports.
18 Audit reports to accompany offsets reports
(1) An offsets report about an eligible offsets project for a reporting period must be accompanied by an audit report that covers whether, for the reporting period:
(a) the project is in accordance with:
(i) the section 27 declaration that is in operation for the project; and
(ii) the applicable methodology determination; and
(iii) the requirements of the Act; and
(b) the project proponent meets the requirements specified in the applicable methodology determination under subsection 106(3) of the Act.
When audit report not required
(2) Subsection (1) does not apply to an offsets report about an eligible offsets project for a reporting period if:
(a) the Regulator is satisfied that, under the applicable methodology determination, the total abatement for the project and any entity‑related project is likely to be, on average for the reporting period, less than 2 500 tonnes of carbon dioxide equivalent abatement annually; and
(b) immediately before the commencement day, the project was an eligible non‑Kyoto project (within the meaning of the Act as in force at that time); and
(c) an audit report mentioned in subsection (1) has been given to the Regulator for the project for a previous reporting period.
(3) Subsection (1) also does not apply to an offsets report about an eligible offsets project for a reporting period if:
(a) the project is of a kind specified in paragraph 3.28(1)(l) or (2)(b) of the Carbon Credits (Carbon Farming Initiative) Regulations 2011; and
(b) an audit report mentioned in subsection (1), that covers a period of 12 months or more after the diversion of waste by the project, has been given to the Regulator.
Meaning of entity‑related project
(4) For the purposes of paragraph (2)(a), if:
(a) a project proponent for an offsets project (the first offsets project) is also a project proponent for another offsets project (the second offsets project); and
(b) the second offsets project is covered by the same methodology determination that is the applicable methodology determination for the first offsets project;
the second offsets project is an entity‑related project of the first offsets project.
19 Conduct of audits
An audit under this Part:
(a) must be conducted in accordance with the relevant requirements for reasonable assurance engagements under the National Greenhouse and Energy Reporting (Audit) Determination 2009; and
(b) must have an audit team leader who is registered as a Category 2 auditor or a Category 3 auditor under subregulation 6.25(3) of the National Greenhouse and Energy Reporting Regulations 2008; and
(c) must be otherwise in accordance with subsection 75(1) of the NGER Act.
Note: The term audit team leader is defined in the Act.
Part 28—Repeals
20 Repeal of this instrument
This instrument is repealed at the same time as the Carbon Credits (Carbon Farming Initiative) Rule 2015 commences.
Schedule 1—Documents required to establish applicant’s identity
Note: See items 1 and 2 of the table in subsection 9(1).
Part 1—Documents for identifying individuals who are Australian citizens or residents
1 Category A documents
The following are category A documents for an individual who is an Australian citizen or ordinarily resident in Australia:
(a) a birth certificate issued by a State or Territory;
(b) a current passport issued by the Commonwealth;
(c) a citizenship certificate issued by the Commonwealth, or documentary evidence that the individual has been registered by the Commonwealth as an Australian citizen by descent;
(d) a passport, or similar document issued for the purpose of international travel, that:
(i) contains a photograph and the signature of the individual; and
(ii) is issued by a foreign government, the United Nations or an agency of the United Nations; and
(iii) contains evidence of the individual’s immigration status in Australia.
2 Category B documents
The following are category B documents for an individual who is an Australian citizen or ordinarily resident in Australia:
(a) a driver’s licence or a learner’s permit that:
(i) is issued under a law of a State or Territory; and
(ii) includes a photograph of the individual and the individual’s signature; and
(iii) includes a street address that is the same as the address stated for the individual in the application which the document is accompanying;
(b) a Medicare card;
(c) a notice that:
(i) is issued by a local government body or utilities provider in the 3 months before the application which the document is accompanying is made; and
(ii) contains the individual’s name; and
(iii) contains the individual’s street address; and
(iv) records the provision of services by the local government body or utilities provider to that address or the individual;
(d) an Australian firearms licence issued under a law of a State or Territory that includes:
(i) the individual’s signature; and
(ii) a photograph of the individual; and
(iii) a street address that is the same as the address stated for the individual in the application which the document is accompanying;
(e) a secondary school or tertiary education student identification card that:
(i) includes a photograph of the individual; and
(ii) was issued by an education authority that has been accredited by the Commonwealth, a State or a Territory government.
Part 2—Documents for identifying individuals who are not residents
3 Category A documents
The following are category A documents for an individual who is not ordinarily resident in Australia:
(a) a passport, or similar document issued for the purpose of international travel, that:
(i) contains a photograph and the signature of the individual in whose name the document is issued; and
(ii) is issued by a foreign government, the United Nations or an agency of the United Nations;
(b) a birth certificate issued by a foreign government, the United Nations or an agency of the United Nations;
(c) a national identity card issued for the purpose of identification that:
(i) contains a photograph and the signature of the individual in whose name the document is issued; and
(ii) is issued by a foreign government, the United Nations or an agency of the United Nations.
4 Category B documents
The following are category B documents for an individual who is not ordinarily resident in Australia:
(a) a document issued by a foreign government that identifies the individual;
(b) a marriage certificate issued by a foreign government;
(c) a driver’s licence issued by a foreign government for the purpose of driving a vehicle that contains:
(i) a photograph of the individual in whose name the licence is issued; and
(ii) a street address that is the same as the address stated for the individual in the application which the document is accompanying.
