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10 Jul 2009

Transferring reporting obligations under the NGER Act made easier

by Brendan Bateman

The additional amendments to the National Greenhouse and Energy Reporting Amendment Bill 2009 create a regime for a new type of certificate, called the Reporting Transfer Certificate.

The Federal Government has fixed an anomaly in transferring reporting obligations to a non-corporate group member under the National Greenhouse and Energy Reporting Amendment Bill 2009.

The Carbon Pollution Reduction Scheme Bill 2009 currently contemplates circumstances in which a controlling corporation of a corporate group may transfer liability under the Scheme to either a member of that controlling corporation's corporate group (the category A transfer test), or to a non-group member that has financial control over a facility (category B transfer test).

While the Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2009 contained amendments to the NGER Act to facilitate reporting under that Act where liability under the CPRS had been transferred to a member within a corporate group, it had to date failed to facilitate the transfer of reporting obligations under the NGER Act where liability under the CPRS had been transferred to a company with financial control of a facility.

The additional amendments to the National Greenhouse and Energy Reporting Amendment Bill 2009 create a regime for a new type of certificate, called the Reporting Transfer Certificate. Corporations with financial control of a facility that is under the operational control of another member of a different controlling corporation, and meets specified criteria, will be able to apply to the Greenhouse and Energy Data Officer for a Reporting Transfer Certificate. Once a Certificate is issued, all reporting, record-keeping obligations and compliance measures under the NGER Act in relation to the facility for which the Certificate is issued are transferred to the holder of the Certificate.

If you require advice in relation to the implications of the proposed amendment, including the implications of the transfer of liability under the CPRS and reporting obligations under the NGER Act to a corporation which has financial control of a facility, please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.