Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

12A Simplified outline of this Part

A person must not carry out any of the following activities unless the person holds a licence that allows the activity (subject to certain exceptions):

manufacturing, importing or exporting a scheduled substance;

manufacturing, importing or exporting equipment that contains a scheduled substance, or uses a scheduled substance in its operation.

In certain cases, the manufacture, import or export of equipment that contains a scheduled substance, or uses a scheduled substance in its operation, is prohibited only if the equipment or substance (or both) is prescribed by regulations made under this Act.

There are 5 kinds of licence, as follows:

controlled substances licences, that allow the manufacture, import or export of HCFCs, methyl bromide or SGGs;

essential uses licences, that allow the manufacture, import or export of scheduled substances (other than methyl bromide and SGGs other than HFCs) for essential uses;

used substances licences, that allow the import or export of used substances;

feedstock licences, that allow the manufacture or import of scheduled substances exclusively for use as a feedstock;

equipment licences, that allow the manufacture, import or export of equipment that contains a scheduled substance, or that uses a scheduled substance in its operation.

There are certain mandatory licence conditions, including conditions relating to quotas for manufacturing or importing HCFCs or HFCs under controlled substances licences (see Parts IV and IVA). The CEO may also impose licence conditions.

The CEO may renew a licence, subject to certain conditions. The CEO may also:

terminate a licence if necessary for the purposes of giving effect to relevant international agreements; or

transfer a licence, on application; or

amend a licence at the request of the licensee; or

suspend or cancel a licence if the licensee contravenes a licence condition, is no longer a fit and proper person to hold a licence or, for a suspension, is uncontactable.

The regulations may provide for certain details relating to licences to be published.

12B Import or export of CFCs, halons, HCFCs, HFCs and PFCs for use on board ships or aircraft

This Part and Parts IV and IVA do not apply to the import or export of a CFC, halon, HCFC, HFC or PFC if all of the following conditions are satisfied:

the CFC, halon, HCFC, HFC or PFC is on board a ship or aircraft;

the ship or aircraft has either or both of the following:

refrigeration and air conditioning equipment;

fire protection equipment;

the CFC, halon, HCFC, HFC or PFC is exclusively for use in meeting the reasonable servicing requirements of that equipment during, or in connection with, one or more periods when the ship or aircraft is or will be engaged in a journey between:

a place in Australia and a place outside Australia; or

2 places outside Australia.

(2) Refrigeration and air conditioning equipment means equipment, used for the cooling or heating of anything, that uses one or more of the following:

a CFC;

a halon;

an HCFC;

an HFC;

a PFC.

13 Prohibition—unlicensed manufacture of scheduled substance or equipment

Unlicensed manufacture of a scheduled substance

A person contravenes this subsection if:

the person manufactures a substance; and

the substance is a scheduled substance; and

the person does not hold a licence that allows the manufacture.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (1) does not apply to a person manufacturing an SGG in circumstances, or for a purpose, prescribed by the regulations for the purposes of this subsection. Any such regulations must be consistent with Australia’s international obligations.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Unlicensed manufacture of equipment containing a scheduled substance

A person contravenes this subsection if:

the person manufactures equipment; and

the equipment contains a substance; and

the substance is a scheduled substance; and

if the equipment is SGG equipment—the equipment or the substance (or both) is prescribed by the regulations for the purposes of this paragraph; and

the person does not hold a licence that allows the manufacture.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (3) does not apply to a person manufacturing equipment:

of a kind prescribed by the regulations for the purposes of this paragraph; or

in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Unlicensed manufacture of equipment that uses a scheduled substance in its operation

A person contravenes this subsection if:

the person manufactures equipment; and

the equipment uses a substance in its operation; and

the substance is a scheduled substance; and

the equipment or the substance (or both) is prescribed by the regulations for the purposes of this paragraph; and

the person does not hold a licence that allows the manufacture.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (5) does not apply to a person manufacturing equipment:

of a kind prescribed by the regulations for the purposes of this paragraph; or

in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

13AA Prohibition—unlicensed import of scheduled substance or equipment

Unlicensed import of a scheduled substance

A person contravenes this subsection if:

the person imports a substance; and

the substance is a scheduled substance; and

the person does not hold a licence that allows the importation.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (1) does not apply to a person importing an SGG (other than an SGG that is a used substance) in circumstances, or for a purpose, prescribed by the regulations for the purposes of this subsection. Any such regulations must be consistent with Australia’s international obligations.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Unlicensed import of equipment containing a scheduled substance

A person contravenes this subsection if:

the person imports equipment; and

the equipment contains a substance; and

the substance is a scheduled substance; and

the person does not hold a licence that allows the importation; and

if the equipment contains an SGG—the person’s importation of the equipment is not covered by the low volume imports exemption under subsection (4).

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Note 3: For exceptions to this subsection, see subsections (6) to (9).

For the purposes of paragraph (3)(e), a person’s importation of equipment is covered by the low volume imports exemption under this subsection if:

the total amount of SGGs contained in the equipment is not greater than an amount prescribed by the regulations for the purposes of this paragraph; and

any other conditions prescribed by the regulations for the purposes of this paragraph in relation to the person, the equipment or the importation are satisfied.

Unlicensed import of equipment that uses a scheduled substance in its operation

A person contravenes this subsection if:

the person imports equipment; and

the equipment uses a substance in its operation; and

the substance is a scheduled substance; and

the equipment or the substance (or both) is prescribed by the regulations for the purposes of this paragraph; and

the person does not hold a licence that allows the importation.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Note 3: For exceptions to this subsection, see subsections (6) to (9).

Equipment exceptions—prescribed equipment, circumstances or purposes

Subsection (3) or (5) does not apply to a person importing equipment:

of a kind prescribed by the regulations for the purposes of this paragraph; or

in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Equipment exceptions—private or domestic use

Subsection (3) or (5) does not apply to a person importing equipment if:

the equipment is kept by the person, or by a member of the person’s household, wholly or principally for private or domestic use; and

the equipment is prescribed by the regulations for the purposes of this paragraph; and

any other conditions prescribed by the regulations for the purposes of this paragraph are satisfied.

Equipment exceptions—temporary imports

Subsection (3) or (5) does not apply to a person importing equipment if:

the equipment is imported:

for a purpose, or in circumstances, (if any) prescribed by the regulations for the purposes of this subparagraph; and

with the intention of later exporting the equipment within a period not exceeding 12 months, or a longer period prescribed by the regulations for the purposes of this subparagraph; and

any other conditions prescribed by the regulations for the purposes of this paragraph in relation to the person, the equipment or the importation are satisfied.

Equipment exceptions—returning Australian equipment

Subsection (3) or (5) does not apply to a person importing equipment if:

the equipment is of a kind prescribed by the regulations for the purposes of this paragraph; and

the person had previously exported the equipment for a purpose, or in circumstances, (if any) prescribed by the regulations for the purposes of this paragraph; and

while the equipment was outside Australia, no change was made to the type and quantity of scheduled substances contained in or used in the operation of the equipment, except in circumstances, or for purposes, (if any) prescribed by the regulations for the purposes of this paragraph; and

title to the equipment remains unchanged between the time of export and time of import of the equipment.

Note: A person who wishes to rely on subsection (6), (7), (8) or (9) bears an evidential burden in relation to the matter in that subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

13AB Prohibition—unlicensed export of scheduled substance or equipment

Unlicensed export of a scheduled substance

A person contravenes this subsection if:

the person exports a substance; and

the substance is a scheduled substance; and

the person does not hold a licence that allows the export.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (1) does not apply to a person exporting a substance if:

the substance is an HCFC and the substance is exported in accordance with a direction given to the person by the CEO under section 35A; or

the substance is an HFC and the substance is exported in accordance with a direction given to the person by the CEO under section 36H; or

the substance is an SGG (other than an SGG that is a used substance) and the substance is exported in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Any regulations made for the purposes of paragraph (c) must be consistent with Australia’s international obligations.

Unlicensed export of equipment containing a scheduled substance

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

A person contravenes this subsection if:

the person exports equipment; and

the equipment contains a substance; and

the substance is a scheduled substance; and

the equipment or the substance (or both) is prescribed by the regulations for the purposes of this paragraph; and

the person does not hold a licence that allows the export.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (3) does not apply to a person exporting equipment:

of a kind prescribed by the regulations for the purposes of this paragraph; or

in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Unlicensed export of equipment that uses a scheduled substance in its operation

A person contravenes this subsection if:

the person exports equipment; and

the equipment uses a substance in its operation; and

the substance is a scheduled substance; and

the equipment or the substance (or both) is prescribed by the regulations for the purposes of this paragraph; and

the person does not hold a licence that allows the export.

Note 1: See section 13A for the activities allowed by each type of licence.

Note 2: While suspended, a licence does not allow the licensee to carry out any activity that the licence would otherwise allow: see subsection 19D(4).

Subsection (5) does not apply to a person exporting equipment:

of a kind prescribed by the regulations for the purposes of this paragraph; or

in circumstances, or for a purpose, prescribed by the regulations for the purposes of this paragraph.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

13AC Penalties for unlicensed manufacture, import or export of scheduled substances or equipment

Fault-based offence

A person commits an offence if the person contravenes subsection 13(1), (3) or (5), 13AA(1), (3) or (5) or 13AB(1), (3) or (5).

Note: The physical elements of an offence against this subsection are set out in the subsection contravened (see subsection 6B(3)).

Penalty: 500 penalty units.

Strict liability offence

A person commits an offence of strict liability if the person contravenes subsection 13(1), (3) or (5), 13AA(1), (3) or (5) or 13AB(1), (3) or (5).

Penalty: 60 penalty units.

Civil penalty provision

A person is liable to a civil penalty if the person contravenes subsection 13(1), (3) or (5), 13AA(1), (3) or (5) or 13AB(1), (3) or (5).

Civil penalty: 600 penalty units.

13A Licences and what they allow

Controlled substances licence

A controlled substances licence allows (subject to subsection (2A)) the licensee to do one of the following:

to carry out whichever one or more of the following activities is specified in it:

manufacture HCFCs;

import HCFCs;

export HCFCs;

to carry out whichever one or more of the following activities is specified in it:

manufacture methyl bromide;

import methyl bromide;

export methyl bromide;

to carry out whichever one or more of the following activities is specified in it:

manufacture SGGs;

import SGGs;

export SGGs.

A controlled substances licence does not apply to:

scheduled substances that are used substances; or

the import or manufacture of scheduled substances that are used exclusively as a feedstock.

Essential uses licence

An essential uses licence allows (subject to subsection (3A)) the licensee to carry out whichever one or more of the following activities is specified in it:

manufacture specified scheduled substances for essential uses;

import specified scheduled substances for essential uses;

export specified scheduled substances for essential uses.

An essential uses licence does not apply to:

scheduled substances that are used substances; or

scheduled substances that are used exclusively as a feedstock; or

methyl bromide; or

SGGs other than HFCs.

Note: For paragraph (a), see subsection (4) (about used substances licences). For paragraph (b), see subsection (5) (about feedstock licences).

(3B) An essential use of a scheduled substance is an essential use identified in relation to the substance by a decision made by the parties to the Montreal Protocol that applies to Australia.

Used substances licence

A used substances licence allows (subject to subsection (4A)) the licensee to carry out whichever of the following activities is specified in it:

import specified substances that are used substances;

export specified substances that are used substances.

A used substances licence does not apply to the import of used substances that are used exclusively as a feedstock.

Feedstock licence

A feedstock licence allows the licensee to carry out whichever one or more of the following activities is specified in it:

manufacture specified scheduled substances exclusively for use as a feedstock;

import specified scheduled substances exclusively for use as a feedstock.

Equipment licence

An equipment licence allows the licensee to carry out whichever one or more of the following activities is specified in it:

manufacture specified ODS equipment;

import specified ODS equipment;

export specified ODS equipment;

manufacture specified SGG equipment;

import specified SGG equipment;

export specified SGG equipment.

13B Fit and proper person considerations

Mandatory considerations

Without limiting the matters that the CEO may take into account in determining whether a person is a fit and proper person for the purposes of this Part, in the exercise of a power listed in column 1 of an item of the following table, the CEO must have regard to the considerations in column 2 of the item.

Mandatory considerations—bodies corporate

If the person is a body corporate, the CEO:

must also have regard to each consideration in column 2 of the table in subsection (1) in relation to each person who is an executive officer of the body (whether or not the person was an executive officer of the body corporate at the time a matter occurs that relates to the consideration); and

(b) may also have regard to whether the body is a Chapter 5 body corporate within the meaning of the Corporations Act 2001.

Spent conviction scheme not affected

(3) This section does not affect the operation of 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).Part VIIC of the

14 Application for licence

A person may apply to the CEO for all or any of the following licences:

a controlled substances licence;

an essential uses licence;

a used substances licence;

an equipment licence;

a feedstock licence.

An application for a licence must:

be in the approved form; and

be accompanied by the fee prescribed by the regulations (if any), unless the fee has been waived in accordance with the regulations; and

be given to the CEO.

15 Request for further information

The CEO may, within 60 days after an application for a licence is made, give an applicant for a licence written notice requiring the applicant to give the CEO such further information relating to the application as is specified in the notice.

16 Grant of licence

CEO may grant licence

Subject to subsections (3A) to (6A), the CEO may grant a licence to a person who has applied for it in accordance with section 14.

Content and form of licence

A licence (other than an HCFC licence, an SGG licence or an equipment licence):

must specify:

the substance or substances to which it relates; and

the activities it allows; and

may specify the maximum quantities of any or all of those substances allowed for any or all of those activities.

(3AA) An SGG licence must state that it relates to SGGs, and must specify the activities it allows.

(3AB) An equipment licence must specify whichever one or more of the following activities that the licence allows:

manufacture specified ODS equipment;

import specified ODS equipment;

export specified ODS equipment;

manufacture specified SGG equipment;

import specified SGG equipment;

export specified SGG equipment.

(3AC) Two or more licences granted to the same person may be set out in the same document.

Criteria for granting licence

In deciding whether or not to grant a licence, the CEO:

must have regard to Australia’s international obligations, and the policies of the Commonwealth Government, in relation to the manufacture, importation or consumption of scheduled substances; and

may have regard to any other matters he or she thinks relevant.

The CEO must not grant a licence to a person unless the CEO is satisfied that the person is a fit and proper person to be granted a licence.

Note: The mandatory fit and proper person considerations are set out in section 13B.

The CEO must not grant a controlled substances licence, or a used substances licence, that allows the manufacture, import or export of a scheduled substance unless the requirements (if any) prescribed by the regulations for the purposes of this subsection in relation to the kind of licence, the activity and the relevant type of scheduled substance are satisfied.

The CEO must not grant an equipment licence that allows the manufacture, import or export of SGG equipment unless the requirements (if any) prescribed by the regulations for the purposes of this subsection in relation to the activity, the equipment and the relevant type of scheduled substance are satisfied.

The CEO must not grant an equipment licence that allows the manufacture, import or export of ODS equipment unless:

for equipment that contains a scheduled substance—subsection (6A) applies in relation to the equipment; and

in any case—the requirements (if any) prescribed by the regulations for the purposes of this paragraph in relation to the activity, the equipment and the relevant type of scheduled substance are satisfied.

For the purposes of paragraph (6)(a), this subsection applies if the CEO is satisfied that:

both:

the equipment is essential for medical, veterinary, defence, industrial safety, public safety, scientific, testing or monitoring purposes or laboratory and analytical uses; and

no practical alternative exists to the use of scheduled substances in the operation or manufacture, as the case requires, of the equipment if it is to continue to be effective for such a purpose; or

because of the requirements of a law concerning the manufacture or use of the equipment, there is no practical alternative to the use of scheduled substances in the operation or manufacture, as the case requires, of the equipment; or

(c) in the case of the import or export of equipment—it would be impracticable to remove or retrofit the equipment because it is incidental to other equipment that is being imported or exported; or

in any case—the equipment is for use in conjunction with the calibration of scientific, measuring or safety equipment; or

in any case—both:

exceptional circumstances justify granting the licence; and

granting the licence would not be inconsistent with Australia’s international obligations under the Montreal Protocol; or

in any case—the manufacture, import or export would occur in circumstances prescribed by the regulations for the purposes of this paragraph.

Refusal of application

An application is refused by giving the applicant written notice of the refusal and of the reasons for the refusal.

17 Deemed refusal of licence

If, at the end of 60 days after an application for a licence is made, the CEO has not:

granted a licence; or

refused the application; or

made a request under section 15;

the CEO is taken, subject to subsection (4), to have refused the application on the last of the 60 days.

If:

the CEO gives an applicant notice under section 15 requiring the applicant to give the CEO further information relating to the application; and

at the end of 60 days after the information is given to the CEO, the CEO has not:

granted a licence; or

refused the application; or

made a further request under section 15;

the CEO is taken, subject to subsection (4), to have refused the application on the last of those 60 days.

If:

(a) Subdivision A of Environment Protection and Biodiversity Conservation Act 1999 applies in relation to the granting of a licence; andDivision 4 of Part 11 of the

the CEO has not granted the licence at the end of 30 days after he or she received advice under that Subdivision on the proposed grant;

he or she is taken to have refused the application for the licence on the last of those days.

Note: Under Subdivision A of Environment Protection and Biodiversity Conservation Act 1999, persons considering whether to authorise certain actions must get advice on environmental matters from the Minister administering that Subdivision.Division 4 of Part 11 of the

(4) Subsections (1) and (2) do not apply in relation to an application for a licence if Subdivision A of Environment Protection and Biodiversity Conservation Act 1999 applies in relation to the granting of the licence.Division 4 of Part 11 of the

18 Conditions of licences

A licence is subject to the conditions specified in the applicable item or items (if any) of the following table:

Note 1: For the quantity of HCFCs that is taken to be involved in regulated HCFC activities, see subsection 25A(2).

Note 2: For the quantity of HFCs that is taken to be involved in regulated HFC activities, see subsection 36B(2).

The conditions mentioned in items 5 and 6 of the table in subsection (1) do not apply to importing or exporting SGGs before the day the changes to Article 4 of the Montreal Protocol set out in Article I of the Kigali Amendment enter into force for Australia.

The Minister must announce, by notifiable instrument, the day the changes come into force for Australia.

Note: The changes cannot come into force before 1 January 2033.

Other conditions

The CEO may, when granting a licence or at any time afterwards, impose other conditions on the licence.

A condition imposed under subsection (4) has no effect unless it is set out in the licence, or in a written notice given to the licensee.

The following are examples of the kinds of conditions the CEO may impose under subsection (4):

conditions about the quantity of particular scheduled substances that the licensee may manufacture, import or export, as the case may be, during any period while the licence is in force;

conditions prohibiting the licensee from doing anything otherwise covered by the licence unless the licensee also holds another type of licence;

conditions about the purpose or purposes for which particular scheduled substances may be manufactured, imported or exported, as the case may be, under the licence;

conditions requiring the licensee to enter into an arrangement for the recovery, recycling or destruction of scheduled substances with a person approved by the CEO under regulations made for the purposes of paragraph 45A(1)(ba);

conditions requiring the licensee to give written reports to the CEO.

Fault-based offence

A licensee commits an offence if:

the licensee engages in conduct; and

the conduct contravenes a condition of the licensee’s licence.

Penalty: 500 penalty units.

Strict liability offence

A licensee commits an offence of strict liability if the licensee contravenes a condition of the licensee’s licence.

Penalty: 60 penalty units.

Civil penalty provision

A licensee is liable to a civil penalty if the licensee contravenes a condition of the licensee’s licence.

Civil penalty: 600 penalty units.

Varying or revoking conditions

The CEO may, on his or her own initiative or on written application by the licensee, vary or revoke a condition imposed under subsection (4).

A variation or revocation of a condition must be by written notice given to the licensee.

Methyl bromide definitions

For the purposes of this Act, methyl bromide is used:

(a) for critical uses; or

(b) for an emergency use; or

(c) for laboratory and analytical uses;

if the use is:

exempt from a provision of the Montreal Protocol, under any decision made by the parties to the Montreal Protocol that applies to Australia, on account of being critical uses, an emergency use or laboratory and analytical uses (as the case requires); and

in compliance with the conditions of any such decision.

Note: Under the Montreal Protocol, critical uses includes laboratory and analytical uses.

(11) For the purposes of this Act, methyl bromide is used for a QPS use if:

it is applied by, or with the authorisation of, a Commonwealth, State or Territory authority to prevent the introduction, establishment or spread of a pest or disease in Australia, a State or a Territory; or

it is applied to a commodity, before it is exported, to meet the requirements of the importing country or a law of the Commonwealth.

Note: QPS is short for quarantine and pre-shipment.

19 Duration of licences

When a licence comes into force

A licence comes into force on the day specified in it.

When a licence stops being in force

A licence, other than an equipment licence, stays in force until the earlier of:

the end of:

if the licence is not renewed under section 19AC—the licence period in which the licence comes into force under subsection (1) of this section; or

if the licence is renewed one or more times under section 19AC—the licence period starting immediately after the time the licence would have ended apart from the last renewal; and

if the licence is an essential uses licence, or a used substances licence, that specifies a period that ends before the time that applies under paragraph (a)—the end of that specified period;

unless the licence is cancelled, or stops being in force for any other reason, before then.

Note: An essential uses licence, or a used substances licence, that specifies a period under paragraph (b) cannot be renewed: see subsection 19AC(4).

An equipment licence stays in force until the earlier of:

the end of:

if the licence is not renewed under section 19AC—2 years starting on the day the licence comes into force under subsection (1) of this section; or

if the licence is renewed one or more times under section 19AC—2 years starting immediately after the time the licence would have ended apart from the last renewal; and

if the licence specifies a period, or a method for ascertaining a period, that ends before the time that applies under paragraph (a)—the end of that period;

unless the licence is cancelled, or stops being in force for any other reason, before then.

Note: A licence does not stop being in force only because it is suspended: see subsection 19D(4).

19AA Application for renewal of licence

The holder of a licence may apply to the CEO for a renewal of the licence, subject to subsection (4).

The application must be made no later than 60 days before the licence ceases to be in force.

The application must:

be in the approved form; and

be accompanied by the fee prescribed by the regulations (if any), unless the fee has been waived in accordance with the regulations; and

be given to the CEO.

The holder of a suspended licence may not apply to the CEO for a renewal of any licence held by the person until the period of suspension ends or the suspension is revoked by the CEO.

19AB Request for further information

The CEO may, within 60 days after an application for a renewal of a licence is made under section 19AA, give the applicant written notice requiring the applicant to give to the CEO such further information relating to the application as is specified in the notice.

19AC Decision on application

If a person applies under the CEO must:section 19AA for a renewal of a licence,

subject to subsections (2) and (4), renew the licence by:

giving the applicant written notice of the renewal; and

amending the licence as mentioned in subsection (5), if applicable; or

refuse to renew the licence, by giving the applicant written notice of:

the refusal; and

the reasons for the refusal.

Note: The effect of a renewal of a licence is to extend the period for which the licence is in force: see subparagraphs 19(2)(a)(ii) and (3)(a)(ii).

Subsections 16(3A) to (6A) (about criteria) apply in relation to renewing the licence in the same way as those subsections apply in relation to granting a licence.

In applying subsection (2), the CEO may take into account the CEO’s previous consideration of the matters mentioned in subsections 16(3A) to (6A) in relation to granting or renewing the licence.

Licences in force for a specified period

The CEO must not renew an essential uses licence, or a used substances licence, that specifies a period for the purposes of paragraph 19(2)(b).

Note 1: Paragraph 19(2)(b) allows a licence to specify a period, shorter than a licence period, during which the licence stays in force.

Note 2: The CEO may amend the specified period under section 19C at the request of the licensee.

If the CEO renews an equipment licence that specifies a period or method for the purposes of paragraph 19(3)(b), the CEO must amend the licence to:

remove the specification; or

specify a period, or a method for ascertaining a period, that ends within 2 years after the time the licence would have ended apart from the renewal.

Note: Paragraph 19(3)(b) allows a licence to specify a period, or a method for ascertaining a period, shorter than 2 years, during which the licence stays in force.

19AD Deemed refusal of renewal

If, at the end of 60 days after an application for a renewal of a licence is made under the CEO has not:section 19AA,

renewed the licence under section 19AC; or

refused the application under section 19AC; or

made a request under section 19AB;

the CEO is taken to have refused the application under section 19AC on the last of the 60 days.

If:

the CEO gives an applicant notice under section 19AB requiring the applicant to give to the CEO further information relating to the application; and

at the end of 60 days after the information is given to the CEO, the CEO has not:

renewed the licence under section 19AC; or

refused the application under section 19AC; or

made a further request under section 19AB;

the CEO is taken to have refused the application under section 19AC on the last of the 60 days.

19AE Deemed application for new licence

If:

a person applies under section 19AA for a renewal of a licence; and

the licence ceases to be in force (other than because it is cancelled or terminated) before the CEO:

renews the licence under section 19AC; or

refuses the application under section 19AC;

the person is taken to have applied in accordance with section 14 for a licence of the same type on the day after the licence ceased to be in force.

19A Termination of licences

The Minister may, by written notice given to a licensee, terminate all licences (including suspended licences) of the kind specified in the notice that are held by the licensee.

The Minister must not terminate a licence unless satisfied that it is necessary to do so for the purpose of giving effect to an adjustment or amendment of:

the Montreal Protocol; or

the Framework Convention on Climate Change; or

the Kyoto Protocol; or

the Paris Agreement.

A notice terminating a specified kind of licence takes effect on the day specified in the notice.

A notice given on the basis of an adjustment or amendment of the Montreal Protocol that has not entered into force for Australia must not specify a day earlier than the day when the adjustment or amendment enters into force for Australia.

When a notice given to a licensee takes effect, all licences of the kind specified in it that are held by the licensee stop being in force.

19B Transfer of licences

(1) The CEO may transfer a licence, other than a suspended licence, from the licensee to another person (the transferee) on a joint application by the licensee and the transferee.

An application must:

be in the approved form; and

be signed by both applicants; and

be given to the CEO.

The CEO must not grant an application unless satisfied that the transferee is a fit and proper person to be granted a licence.

Note: The mandatory fit and proper person considerations are set out in section 13B.

A decision by the CEO transferring a licence, or refusing to transfer a licence, must be by written notice given to the applicants.

A notice of a decision refusing to transfer a licence must state the reasons for the decision.

If the CEO transfers a licence, the transferee is taken to be the licensee on and after the date of the transfer.

19C Amendment of licence at request of licensee

The CEO may amend a licence (including a suspended licence) at the written request of the licensee.

Note: For example, if there is a change in the name of the licensee, the licence could be amended to specify the new name.

Subsection (1) does not allow amendment of a condition of a licence.

Note: Section 18 deals with variation of the conditions of a licence.

19D Suspension of licence

Circumstances that may lead to suspension

The CEO may suspend a licence if satisfied that the licensee:

is no longer a fit and proper person to hold a licence; or

has contravened a condition of the licence; or

is uncontactable.

Note: The mandatory fit and proper person considerations are set out in section 13B.

(2) A licensee is uncontactable if, and only if, the CEO has made 2 or more reasonable attempts to contact the licensee during a period of 6 months ending immediately before the decision to suspend the licence, but has not been able to contact the licensee.

Suspension notices

(3) The CEO must give the licensee written notice of the suspension (the suspension notice) specifying:

the reasons for the suspension; and

the day the suspension takes effect; and

either or both of the following:

the actions the licensee must take for the suspension to end;

a fixed period for the suspension.

Effect of suspension

While suspended, the licence does not allow the licensee to carry out any activity that the licence would otherwise allow. However, the licence remains in force despite the suspension.

Suspension notices specifying required actions

If the suspension notice specifies actions the licensee must take for the suspension to end, the CEO must give written notice to the licensee when satisfied that the licensee has taken the specified actions.

When a suspension ends

The suspension ends in accordance with the following table:

Variation and revocation

The CEO may, by written notice given to the licensee, do either of the following if the CEO considers it appropriate to do so:

vary the suspension notice;

revoke the suspension.

20 Cancellation of licence

The CEO may cancel a licence (including a suspended licence) if satisfied that the licensee:

is no longer a fit and proper person to hold a licence; or

has contravened a condition of the licence.

Note: The mandatory fit and proper person considerations are set out in section 13B.

The CEO shall cancel a licence by giving to the licensee a written notice stating that the licence has been cancelled and setting out the reasons for the cancellation.

The cancellation of a licence takes effect 60 days after the notice is given to the licensee under subsection (4).

21 Surrender of licence

A licensee may, at any time, surrender a licence (including a suspended licence) by giving the CEO written notice that the licence is surrendered.

The surrender of a licence takes effect (unless the licence is sooner cancelled):

if a date of effect is stated in the notice of surrender, at the end of that day; or

in any other case, on the day on which the notice is given.

22 Publication of information regarding licences etc.

The regulations may make provision for the periodic publication of details of:

licences granted; and

applications for licences refused; and

licences suspended, cancelled or surrendered.

36 Simplified outline of this Part

The CEO may allocate to an SGG licensee:

an HFC quota for a calendar year; or

in prescribed circumstances, a reserve HFC quota for a specified period (which need not be a calendar year).

Under section 18, it is a condition of an SGG licence that:

the licensee must not engage in a regulated HFC activity unless the licensee has been allocated a quota; and

the total quantity of HFCs involved in regulated HFC activities engaged in by the licensee is not more than the licensee’s quotas.

Sections 36A and 36G limit how much quota the CEO may allocate.

36A HFC industry limit

(1) The HFC industry limit for a calendar year is the quantity of HFCs, expressed in CO₂e megatonnes:

prescribed by the regulations in relation to the year for the purposes of this subsection; or

worked out in accordance with a method prescribed by the regulations in relation to the year for the purposes of this subsection.

The sum of the amounts of all HFC quotas allocated for a calendar year must not exceed the HFC industry limit for the year.

Regulations made for the purposes of subsection (1) must be consistent with Australia’s international obligations.

36B Regulated HFC activities

(1) A regulated HFC activity is the manufacture or import of HFCs under an SGG licence.

Note 1: A licence is not required for the manufacture or import of HFCs and other SGGs in certain circumstances, or for certain purposes, prescribed by the regulations: see subsections 13(2) and 13AA(2).

Note 2: This Part does not apply to the import or export of HFCs for use on board ships or aircraft in certain circumstances: see section 12B.

For the purposes of this Act, the quantity of HFCs that is taken to be involved in regulated HFC activities engaged in by an SGG licensee in a period is the greater of the amount worked out using the following formula and nil:

For the purposes of subsection (2), the quantity of HFCs exported by an SGG licensee in a period is taken not to include any quantity exported under a direction given to the licensee under section 36H (direction to export HFCs if quota exceeded).

36C Applications, allocation and size of HFC quotas

The regulations may provide in relation to any of the following:

processes for applying for HFC quotas, including who may apply;

processes for the CEO to:

allocate HFC quotas for calendar years to SGG licensees; or

vary the size of HFC quotas; or

stop allocated HFC quotas being in force; or

cancel allocated HFC quotas, with the effect that the quotas are taken never to have been in force;

the effect on HFC industry limits of the processes mentioned in paragraph (b);

the size of HFC quotas, or the method for working out the size of HFC quotas;

review of decisions made under regulations made for the purposes of this section.

Regulations made for the purposes of subsection (1) may provide in relation to a matter mentioned in that subsection by providing for the matter, or for anything relating to it, to be determined by the Minister or the CEO, including by legislative instrument.

36D Duration of HFC quotas

An HFC quota stays in force until the end of the calendar year for which it is allocated, unless it stops being in force for any other reason before then.

36E Quotas cease when licences cease

An HFC quota allocated to an SGG licensee stops being in force when the licensee’s SGG licence is cancelled, or stops being in force for any other reason.

Note: An SGG licence does not stop being in force only because it is suspended: see subsection 19D(4).

36F Transfer of quotas

Transfer of HFC quota if SGG licence transferred

If the CEO transfers an SGG licensee’s SGG licence under section 19B, the unused part of each HFC quota (if any) allocated to the first licensee for calendar years ending on or after the date of the transfer is taken to have been allocated to the transferee on that date.

Transfer of HFC quota without transferring SGG licence

An SGG licensee (including the licensee for a suspended SGG licence) may, without transferring the licensee’s SGG licence, transfer to another SGG licensee the unused part of:

an HFC quota allocated to the first licensee for a calendar year; and

each HFC quota (if any) allocated to the first licensee for later calendar years.

An SGG licensee (including the licensee for a suspended SGG licence) may, instead of transferring the whole of the unused parts of the HFC quotas mentioned in subsection (2):

choose a particular percentage; and

without transferring the licensee’s SGG licence, transfer to another SGG licensee the lesser of the following percentages of each of those quotas:

the chosen percentage;

the percentage of the quota that is unused.

A transfer under subsection (2) or (3) has no effect until the transferor notifies the CEO of the transfer.

A notice must:

state the transferee’s name, address and licence number; and

specify the amount of each HFC quota transferred.

After a transfer under subsection (2) or (3) takes effect:

each transferred HFC quota, or each transferred part of an HFC quota, is taken to have been allocated to the transferee; and

if only part of an HFC quota is transferred—the transferor is taken to have been allocated the untransferred part of the quota.

36G Reserve HFC quotas

Reserve HFC quotas

The CEO must not allocate a reserve HFC quota unless satisfied that circumstances prescribed by the regulations for the purposes of this subsection exist.

The regulations may provide in relation to any of the following:

processes for applying for reserve HFC quotas, including who may apply;

processes for the CEO to:

allocate reserve HFC quotas; or

vary the size or period of reserve HFC quotas; or

stop allocated reserve HFC quotas being in force; or

cancel allocated reserve HFC quotas, with the effect that the quotas are taken never to have been in force;

processes for transferring reserve HFC quotas between SGG licensees;

the size of reserve HFC quotas, or the method for working out the size of reserve HFC quotas;

the period (not longer than 12 months) during which each reserve HFC quota is in force;

review of decisions made under regulations made for the purposes of this subsection.

Reserve HFC quota limit

(3) The reserve HFC quota limit for a calendar year is the quantity of HFCs, expressed in CO₂e megatonnes:

prescribed by the regulations in relation to the year for the purposes of this subsection; or

worked out in accordance with a method prescribed by the regulations in relation to the year for the purposes of this subsection.

The sum of the amounts of all reserve HFC quotas allocated for a calendar year (including any part of that year) must not be more than the reserve HFC quota limit for that year.

Regulations made for the purposes of subsection (3) must be consistent with Australia’s international obligations.

36H Direction to export HFCs if quota exceeded

The CEO may, by written notice given to an SGG licensee (including the licensee for a suspended SGG licence), direct the licensee to export a specified quantity of HFCs by a specified time if:

both:

the SGG licensee has been allocated an HFC quota for a calendar year; and

(ii) the total quantity of HFCs, expressed in CO₂e megatonnes, involved in regulated HFC activities engaged in by the licensee in the year exceeds the total of that quota and any reserve HFC quotas allocated to the licensee that are in force at any time in the year; or

both:

(i) the SGG licensee has been allocated a reserve HFC quota that is in force for a period (the reserve period) in a calendar year, but has not been allocated an HFC quota for the year; and

(ii) the total quantity of HFCs, expressed in CO₂e megatonnes, involved in regulated HFC activities engaged in by the licensee in the reserve period exceeds the reserve HFC quota.

Note: It is a condition of the SGG licence that the licensee comply with the direction: see subsection 18(1).

Before the time specified in the direction (or a later time specified in a notice under this subsection), the CEO may specify a later time by written notice given to the licensee.

The amount specified in the direction must not be greater than the amount of the excess.

36J Basis on which quotas are allocated

An HFC quota or reserve HFC quota is allocated on the basis that:

the quota may be varied under regulations made for the purposes of subsection 36C(1) or 36G(2); and

the quota may stop being in force under section 36F or under regulations made for the purposes of subsection 36C(1) or 36G(2); and

the quota may be cancelled under regulations made for the purposes of subsection 36C(1) or 36G(2); and

the quota may be varied, stop being in force or be cancelled by or under later legislation; and

no compensation is payable if the quota is varied, stops being in force or is cancelled as mentioned in any of the above paragraphs.

48A Simplified outline of this Part

The CEO and inspectors have monitoring, inspection and enforcement powers under the Regulatory Powers Act to ensure this Act and the regulations are being complied with.

The Regulatory Powers Act creates a framework for monitoring and investigating compliance with this Act and the regulations, as well as providing for the enforcement of civil penalty provisions and the use of infringement notices, enforceable undertakings and injunctions.

This Part provides certain monitoring and investigation powers in addition to those provided by the Regulatory Powers Act.

Goods relating to contraventions of certain provisions of this Act or the regulations may be forfeited to the Commonwealth if:

a person is convicted of an offence, or a civil penalty order is made, in relation to the relevant contravention; or

the goods are seized under the Regulatory Powers Act.

The CEO may require a person to give information or produce documents that are relevant for the purposes of investigating or preventing:

an offence against this Act or the regulations; or

a contravention of a civil penalty provision of this Act or the regulations.

49 Appointment of inspectors

The CEO may, by instrument in writing, appoint as an inspector a person who is:

an officer or employee of an authority of the Commonwealth; or

(b) a person engaged under the Public Service Act 1999; or

an officer or employee of the Public Service of a State or Territory; or

a member of the Police Force of a State or Territory.

The CEO must not appoint an officer or employee of the Public Service of a State or Territory, or a member of the Police Force of a State or Territory, as an inspector unless the appointment is in accordance with an arrangement made by the CEO with a Minister of that State or Territory.

The CEO must not appoint a person as an inspector unless the CEO is satisfied that the person has suitable qualifications and experience to properly exercise the powers of an inspector.

49A Directions to inspectors

An inspector must, in exercising powers as an inspector, comply with any directions of the CEO.

If a direction is given under subsection (1) in writing, the direction is not a legislative instrument.

50 Monitoring powers

Provisions subject to monitoring

The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:

each provision of this Act and the regulations;

(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to one or more of the provisions mentioned in paragraph (a).

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions mentioned in this subsection have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

Information given in compliance or purported compliance with a provision of this Act or the regulations is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

(a) the following provisions of the Customs Act 1901 are related to the provisions and the information:

subsections 50(4) and (7) (prohibited imports);

subsections 112(2B) and (2BC) (prohibited exports);

an inspector is an authorised applicant; and

an inspector is an authorised person; and

(d) a magistrate is an issuing officer; and

the CEO is the relevant chief executive; and

a designated court is a relevant court.

Person assisting

An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1), and the information mentioned in subsection (2).

Extension to external Territories

Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to every external Territory.

51 Modifications of Part 2 of the Regulatory Powers Act

Additional monitoring power

For the purposes of determining:

whether a provision mentioned in subsection 50(1) has been, or is being, complied with; or

the correctness of information mentioned in subsection 50(2);

the additional powers mentioned in subsection (2) are taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.

The additional monitoring powers are:

the power to take samples of any thing on premises entered under Part 2 of the Regulatory Powers Act; and

the power to remove, test and analyse such samples; and

the power to secure premises entered under Part 2 of the Regulatory Powers Act; and

the power to secure things on premises entered under Part 2 of the Regulatory Powers Act for the purpose of sampling, testing or analysing those things; and

the power to secure a container on premises entered under Part 2 of the Regulatory Powers Act that contains a thing if the inspector reasonably believes that it is not reasonably practicable to secure the thing without also securing the container (whether or not the container contains any other thing).

Use of force in executing a monitoring warrant

In executing a monitoring warrant under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection 50(1) and the information mentioned in subsection 50(2) of this Act:

an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Identity cards

A reference to an identity card in sections 25 and 26 and subsection 35(6) of the Regulatory Powers Act, as those provisions apply in relation to the provisions mentioned in subsection 50(1) and information mentioned in subsection 50(2) of this Act, is taken to include a reference to written evidence identifying the authorised person as a member or special member of the Australian Federal Police or an officer of Customs, as the case may be.

Subsection 35(1) of the Regulatory Powers Act, as that subsection applies in relation to the provisions mentioned in subsection 50(1) and information mentioned in subsection 50(2) of this Act, does not require the relevant chief executive to issue an identity card to an authorised person who is a member or special member of the Australian Federal Police, or an officer of Customs.

Period during which monitoring warrant may be in force

Paragraph 32(4)(f) of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection 50(1) and information mentioned in subsection 50(2) of this Act as if the reference in that paragraph to 3 months were a reference to 6 months.

52 Investigation powers

Provisions subject to investigation

A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

a provision that creates an offence against this Act or the regulations; or

a civil penalty provision of this Act or the regulations.

Note 1: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Note 2: For paragraph (a), see the definition of offence against this Act or the regulations in section 7.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

(a) the following provisions of the Customs Act 1901 are related to that evidential material:

subsections 50(4) and (7) (prohibited imports);

subsections 112(2B) and (2BC) (prohibited exports); and

an inspector is an authorised applicant; and

an inspector is an authorised person; and

(d) a magistrate is an issuing officer; and

the CEO is the relevant chief executive; and

a designated court is a relevant court.

Person assisting

An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Extension to external Territories

Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

53 Modifications of Part 3 of the Regulatory Powers Act

Additional investigative powers

The additional powers mentioned in subsection (2) are taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 52(1).

The additional investigation powers are:

the power to take samples of any thing on premises entered under Part 3 of the Regulatory Powers Act; and

the power to remove, test and analyse such samples; and

the power to secure premises entered under Part 3 of the Regulatory Powers Act; and

the power to secure things on premises entered under Part 3 of the Regulatory Powers Act for the purpose of sampling, testing or analysing those things; and

the power to secure a container on premises entered under Part 3 of the Regulatory Powers Act that contains a thing if the inspector reasonably believes that it is not reasonably practicable to secure the thing without also securing the container (whether or not the container contains any other thing); and

(f) if the authorised person has the power to seize a thing (the seizable thing) under Part 3 of the Regulatory Powers Act—the power to seize a container that contains the seizable thing, and any other thing contained in the container, if the inspector reasonably believes that it is not reasonably practicable to seize the seizable thing without also seizing the container.

Return of containers

Despite subsection 66(1) of the Regulatory Powers Act, the requirement under that subsection for the relevant chief executive to take reasonable steps to return a container or other thing, seized under the additional power mentioned in paragraph (2)(f) of this section, applies only from the following time:

subject to paragraph (b) of this subsection—the time that requirement applies in relation to the seizable thing;

if the seizable thing is the subject of a forfeiture notice under section 60A of this Act—the time:

the seizable thing is returned under subsection 60B(5) of this Act; or

the seizable thing is forfeited to the Commonwealth under section 60C of this Act.

Note: Section 66 of the Regulatory Powers Act may not apply at all in relation to the container or other thing if the container or other thing is the subject of a forfeiture notice under section 60A of this Act: see subsection (4) of this section.

Goods subject to forfeiture notice

Sections 66 to 69 of the Regulatory Powers Act do not apply to a thing seized under Part 3 of that Act if the thing is the subject of a forfeiture notice under section 60A of this Act.

Operating equipment etc. that may contain evidential material

Subsection 50(1) of the Regulatory Powers Act is taken to include the power (subject to subsections 50(3) and (4) of that Act) to:

operate electronic equipment on premises entered under Part 3 of that Act, as that Part applies to evidential material that relates to a provision mentioned in subsection 52(1) of this Act; and

use a disk, tape or other storage device that:

is on those premises; and

can be used with the equipment or is associated with it;

to find out whether the equipment, disk, tape or other storage device contains such evidential material.

When investigation warrant need not be announced

An additional circumstance in which subsection 56(2) of the Regulatory Powers Act is taken to authorise an authorised person not to comply with subsection 56(1) of that Act, in relation to an entry to premises under an investigation warrant to search for evidential material that relates to a provision mentioned in subsection 52(1) of this Act, is that the authorised person believes on reasonable grounds that immediate entry to the premises is required to prevent serious damage to the environment.

Note: Subsection 56(3) of the Regulatory Powers Act requires the authorised person’s identity card to be shown as soon as practicable after entering the premises if the authorised person does not comply with subsection 56(1) of that Act because of subsection 56(2) of that Act.

Use of force in executing an investigation warrant

In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 52(1) of this Act:

an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Identity cards

A reference to an identity card in sections 55 and 56 and subsection 76(6) of the Regulatory Powers Act, as those provisions apply in relation to evidential material that relates to a provision mentioned in subsection 52(1) of this Act, is taken to include a reference to written evidence identifying the authorised person as a member or special member of the Australian Federal Police or an officer of Customs, as the case may be.

Subsection 76(1) of the Regulatory Powers Act, as that subsection applies in relation to evidential material that relates to a provision mentioned in subsection 52(1) of this Act, does not require the relevant chief executive to issue an identity card to an authorised person who is a member or special member of the Australian Federal Police, or an officer of Customs.

54 Directions about dealing with pressurised containers

Directions

The CEO may, by writing, direct an inspector to deal with a pressurised container seized under Part 3 of the Regulatory Powers Act (as that Part operates because of this Part), and its contents, in a manner specified in the direction. The inspector must comply with the direction.

A direction under subsection (1) may require the pressurised container and its contents to be destroyed.

A direction under subsection (1) may be given only:

on application by an inspector; and

if the CEO is satisfied that the pressurised container:

constitutes a danger to public health and safety; or

may cause damage to the environment.

If the CEO gives a direction under subsection (1), then sections 66 to 69 of the Regulatory Powers Act do not apply to the container or its contents.

A direction under subsection (1) is not a legislative instrument.

Compensation

If a pressurised container and its contents are destroyed under this section, the owner of the container may apply to a designated court for compensation.

On application under subsection (6), the designated court must order the Commonwealth to pay compensation if the court is satisfied that the pressurised container is not, or did not contain, forfeitable goods.

The amount of compensation ordered must be the market value of the pressurised container and its contents at the time they were destroyed.

62 Civil penalty provisions

Enforceable civil penalty provisions

Each civil penalty provision of this Act or the regulations is enforceable under Part 4 of the Regulatory Powers Act.

Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

For the purposes of Part 4 of the Regulatory Powers Act, the CEO is an authorised applicant in relation to the civil penalty provisions mentioned in subsection (1).

Relevant court

For the purposes of Part 4 of the Regulatory Powers Act, a designated court is a relevant court in relation to the civil penalty provisions mentioned in subsection (1).

Extension to external Territories

Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions mentioned in subsection (1), extends to every external Territory.

Liability of Crown

To avoid doubt, subsection 5(2) of this Act does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to this Act.

63 Infringement notices

Provisions subject to an infringement notice

The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:

each provision of this Act or the regulations, contravention of which constitutes an offence of strict liability;

each civil penalty provision of this Act or the regulations.

Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

For the purposes of Part 5 of the Regulatory Powers Act, an inspector is an infringement officer in relation to the provisions mentioned in subsection (1).

Relevant chief executive

For the purposes of Part 5 of the Regulatory Powers Act, the CEO is the relevant chief executive in relation to the provisions mentioned in subsection (1).

Extension to external Territories

Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

64 Enforceable undertakings

Enforceable provisions

The provisions of this Act and the regulations are enforceable under Part 6 of the Regulatory Powers Act.

Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person

For the purposes of Part 6 of the Regulatory Powers Act, the CEO is an authorised person in relation to the provisions mentioned in subsection (1).

Relevant court

For the purposes of Part 6 of the Regulatory Powers Act, a designated court is a relevant court in relation to the provisions mentioned in subsection (1).

Extension to external Territories

Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

64A Injunctions

Enforceable provisions

The provisions of this Act and the regulations are enforceable under Part 7 of the Regulatory Powers Act.

Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

For the purposes of Part 7 of the Regulatory Powers Act, the CEO is an authorised person in relation to the provisions mentioned in subsection (1).

Relevant court

For the purposes of Part 7 of the Regulatory Powers Act, a designated court is a relevant court in relation to the provisions mentioned in subsection (1).

Extension to external Territories

Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

64B CEO may require person to provide information etc.

Scope

This section applies if the CEO believes, on reasonable grounds, that a person is capable of giving information, or producing any document, that is relevant for the purposes of investigating or preventing:

an offence against this Act or the regulations; or

a contravention of a civil penalty provision of this Act or the regulations.

Note: For paragraph (a), see the definition of offence against this Act or the regulations in section 7.

Notice to produce

The CEO may, by written notice, require the person to give the information, or produce the document, to an inspector.

The notice must specify the following:

how the person is to give the information or produce the document;

the period (which must be at least 14 days after the day the notice is given) within which the person is to give the information or produce the document;

(c) the effect of subsection (4) and sections 137.1 and 137.2 of the Criminal Code.

A person contravenes this subsection if:

the person is given a notice under subsection (2); and

the person fails to comply with the notice within the period specified in the notice.

Strict liability offence

A person commits an offence of strict liability if the person contravenes subsection (4).

Penalty: 30 penalty units.

Civil penalty

A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty: 30 penalty units.

Individuals not excused from giving information or producing documents in certain circumstances

(7) An individual is not excused from giving information or producing a document under this section on the ground that giving the information or producing the document might tend to incriminate the individual in relation to an offence.

Note: A body corporate is not entitled to claim the privilege against self-incrimination.

However:

the information given or document produced; and

the giving of the information or the production of the document; and

any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the production of the document;

are not admissible in evidence against the individual in criminal proceedings other than proceedings for an offence against:

this section; or

(e) Criminal Code that relates to this section.section 137.1 or 137.2 of the

(9) If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information or producing a document under this section, the individual is not excused from giving the information or producing the document under this section on that ground.

Note: A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

65E Simplified outline of this Part

This Part regulates the disclosure and use of information (referred to as relevant information) obtained under this Act (or the Regulatory Powers Act as it applies in relation to this Act) by any of the following persons (referred to as entrusted persons):

the Minister;

the Secretary;

an APS employee in the Department;

any other person employed in, or engaged by, the Department.

The Minister may disclose relevant information to Commonwealth entities, State or Territory government bodies, and certain enforcement bodies, subject to certain conditions. In addition, the Minister may use or disclose relevant information to prevent or lessen a serious risk to human health or the environment.

An entrusted person may use or disclose relevant information for certain other purposes, including for the purposes of this and certain other Acts.

A person may commit an offence or be liable to a civil penalty if the person uses or discloses certain kinds of relevant information other than in accordance with this Part.

65F Disclosure of relevant information to Commonwealth entities

The Minister may disclose relevant information to a Commonwealth entity if the Minister is satisfied the disclosure is for the purposes of assisting the entity to perform its functions or exercise its powers.

65G Disclosure of relevant information to State or Territory government body

The Minister may disclose relevant information to a State or Territory government body if:

the Minister reasonably believes that the disclosure of the information is necessary for the purposes of:

the Minister performing functions, or exercising powers, under this Act; or

the administration of a State or Territory law; and

the State or Territory government body has undertaken not to use or further disclose the information except in accordance with an agreement that:

is in force between the Commonwealth and the State or Territory; and

applies in relation to the information; and

the Minister is satisfied that the information will be used and further disclosed only in accordance with the agreement.

65H Disclosure for the purposes of law enforcement

The Minister may disclose relevant information to an enforcement body if:

the Minister reasonably believes that the disclosure of the information is necessary for:

the enforcement of the criminal law; or

the enforcement of a law imposing a pecuniary penalty; or

the protection of public revenue; and

the functions of that body include that enforcement or protection.

(2) Each of the following is an enforcement body:

a Commonwealth entity;

a State or Territory government body;

the Australian Federal Police;

the police force or police service of a State or Territory.

65J Use or disclosure to reduce serious risk to human health

The Minister may use or disclose relevant information if the Minister reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to human health.

65K Use or disclosure to reduce serious risk to the environment

The Minister may use or disclose relevant information if the Minister reasonably believes that the disclosure is necessary to prevent or lessen a serious risk to the environment.

65L Use or disclosure for the purposes of an Act

An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of this Act or another Act administered by the Minister.

65M Publicly available information

An entrusted person may use or disclose relevant information if the information has already been lawfully made available to the public.

65N Person to whom information relates

An entrusted person may disclose relevant information to the person to whom the information relates.

65P Use or disclosure with consent

An entrusted person may use or disclose relevant information that relates to a person if:

the person has consented to the use or disclosure; and

the use or disclosure is in accordance with that consent.

65Q Person who provided information

An entrusted person may disclose relevant information to the person who provided the information.

65R Summaries or statistics

An entrusted person may use or disclose:

summaries of relevant information; or

statistics derived from relevant information;

if those summaries or statistics do not enable the identification of a person.

65S Disclosure to a court, tribunal etc.

An entrusted person may disclose relevant information, or a document containing relevant information:

for the purposes of proceedings before:

a court; or

a tribunal, authority or person that has the power to require the answering of questions or the production of documents; or

in accordance with an order of a court or such a tribunal, authority or person.

65T Use for the purposes of disclosure

An entrusted person may use relevant information for the purpose of disclosing the relevant information under this Division.

65U Unauthorised use or disclosure of protected information—entrusted person

Unauthorised use or disclosure

A person contravenes this subsection if:

the person is, or has been, an entrusted person; and

the person has obtained relevant information in the person’s capacity as an entrusted person; and

the information is protected information; and

the person uses or discloses the information.

Exceptions

However, subsection (1) does not apply if the use or disclosure is authorised or required by:

this Act; or

any other law of the Commonwealth; or

a prescribed law of a State or a Territory.

Note: A person who wishes to rely on this subsection bears an evidential burden in relation to the matter in this subsection. See subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

Fault-based offence

A person commits an offence if the person contravenes subsection (1).

Note: The physical elements of an offence against this subsection are set out in subsection (1) (see subsection 6B(3)).

Penalty: Imprisonment for 2 years or 180 penalty units, or both.

Strict liability offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 300 penalty units.

65V Unauthorised use or disclosure of protected information—official of Commonwealth entity

A person contravenes this subsection if:

the person is, or has been, an official of a Commonwealth entity; and

the person has obtained relevant information in the person’s capacity as an official of the entity; and

the information is protected information that was disclosed to the entity under section 65F; and

the person uses or discloses the information other than for the purpose for which it was disclosed to the entity.

Fault-based offence

A person commits an offence if the person contravenes subsection (1).

Note: The physical elements of an offence against this subsection are set out in subsection (1) (see subsection 6B(3)).

Penalty: Imprisonment for 2 years or 180 penalty units, or both.

Strict liability offence

A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Civil penalty provision

A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 300 penalty units.