Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Following the receipt of a satisfactory response, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that on the next day of sitting I shall withdraw business of the Senate notice of motion No. 1 standing in my name for the next day of sitting for the disallowance of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1). I seek leave to incorporate in Hansard the committee’s correspondence concerning this instrument.

Leave granted.

The correspondence read as follows—

Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No.1), Select Legislative Instrument 2009 No. 4

12 March 2009

The Hon Peter Garrett AM MP

Minister for the Environment, Heritage and the Arts

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1), Select Legislative Instrument 2009 No.4. These Amendment Regulations insert new regulation 111 into the principal Regulations which creates the strict liability offence of handling a refrigerant.

The Committee notes that paragraph 111(2)(b) defines the phrase ‘handle a refrigerant’ to include the situation where a person manufactures, installs, commissions, services or maintains refrigeration or air conditioning equipment even where there is no refrigerant present. It thus appears that a person can be liable for the strict liability offence created by subregulation 111(1) relating to handling a refrigerant even where they do not handle a refrigerant because no refrigerant is present. The Committee would appreciate your advice as to why the offence is created in these terms.

The Committee would appreciate your advice on the above matter as soon as possible, but before 1 May 2009, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

2 April 2009

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 12 March 2009 concerning Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 No 1.

Paragraph 111(2)(b) has been added to the Regulations to clarify an ambiguity that existed in the Regulations in the context of the definition of handling a refrigerant. The amendment aims to ensure that the areas of highest risk for emissions of refrigerant are prescribed in the Regulations and only appropriately skilled technicians undertake work on this equipment.

As background, the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Regulations) and its parent Act give effect to Australia’s obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer and the synthetic greenhouse gas (SGG) aspects of the Kyoto Protocol.

The primary purposes of the Act and Regulations are to meet our obligations under the Montreal Protocol and, for SGGs, the Kyoto Protocol by phasing out the use of ozone depleting substances (ODS) in Australia and minimising the emissions of both ODS and SGGs.

Section 45A of the Act provides the power to make regulations covering the sale, purchase, acquisition, disposal, storage, use and handling of these substances. To date specific regulations have been created for the refrigeration and air conditioning and fire protection industries. The refrigeration and air conditioning industry uses 93% of ODS and SGGs consumed in Australia.

A permit scheme for the refrigeration and air conditioning industry was created under the Regulations in 2005 for businesses and technicians that acquire, possess, use and dispose of ODS and SGG refrigerants.

The permit scheme aims to ensure that emissions of ODS and SGG refrigerants are minimised by allowing only suitably skilled technicians to handle refrigerant where there is a reasonable opportunity for its emission to the atmosphere. The Regulations require that any person who handles an ODS or SGG refrigerant hold an appropriate licence. To obtain a licence, an applicant must have completed training appropriate to the type of work that they will be performing.

The risk of emission of refrigerant comes primarily from inappropriate use of tools or improper design, assembly and maintenance of equipment. Therefore, the conditions that will allow refrigerant to be emitted to the atmosphere are generally established before refrigerant is introduced into a system.

To handle a refrigerant, in the literal sense, is in most cases neither possible nor desirable as most refrigerants are gases at room temperature and direct contact, particularly with refrigerant at high pressure, could result in quite serious injury. Due to these considerations, refrigerant cannot be present for most work on a piece of refrigeration and air conditioning (RAC) equipment. The addition of refrigerant to a piece of RAC equipment is the final step in the process of manufacture, installation or maintenance. Proper assembly and preparation of the equipment are essential to prevent emissions once the refrigerant is introduced.

The phase “handle a refrigerant” is, for the purposes of the new regulation, construed in the same way that an electrician could be construed to be working with electricity. The skill of the electrician is in the design, installation and servicing of the current bearing components and, through ensuring that only qualified and licensed electricians do this work, regulators ensure that, when the system is live, the public and environment are protected.

The Regulations were amended to ensure that ODS and SGG refrigerant emissions are minimised through appropriate system design, installation, maintenance and decommissioning.

Yours sincerely

Peter Garrett

Minister for the Environment, Heritage and the Arts

14 May 2009

The Hon Peter Garrett AM MP

Minister for the Environment, Heritage and the Arts

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 2 April 2009 responding to the Committee’s concerns with the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1), Select Legislative Instrument 2009 No.4. These Amendment Regulations, among other things, create a strict liability offence of handling a refrigerant.

In your letter you indicate that “refrigerant cannot be present for most work on a piece of refrigeration and air-conditioning (RAC) equipment” and that the “addition of refrigerant to a piece of RAC equipment is the final step in the process of manufacture, installation or maintenance”. You advise that the phrase ‘handle a refrigerant’ is, for the purposes of the new regulation, “construed in the same way that an electrician could be construed to be working with electricity”.

The Committee notes that this provision is not simply an offence provision, but a strict liability offence provision. This means that a person may commit the offence irrespective of their intent. In such circumstances, clarity and certainty are essential. Arguably, charging someone with the offence of ‘handling a refrigerant’ where no refrigerant is present does not meet those standards of certainty and clarity.

The Committee notes that provisions in the legislation covering electricians often refer to undertaking ‘electrical work’ (which is defined in terms of work on equipment as well as with power) rather than ‘handling electricity’. It may be that taking a similar approach to the description of this offence may make it clearer and more certain.

The Committee would appreciate your advice on the above matter as soon as possible, but before 12 June 2009, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

20 June 2009

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 14 May 2009 regarding the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations (No. 1) 2009 (the Amendment Regulations).

I fully agree with your concern that there should be clarity and certainty in the definition that underpins a strict liability offence provision. It is for this reason that the change to regulation 111 has been made.

The term “handle a refrigerant” is now defined for the purposes of the offence in regulation 111 to mean doing anything with the refrigerant, or a component of refrigeration and air conditioning (RAC) equipment, that carries the risk of refrigerant being emitted, including: (a) decanting the refrigerant; or (b) manufacturing, installing, commissioning, servicing or maintaining RAC equipment, irrespective of whether or not refrigerant is present; or (c) decommissioning RAC equipment where refrigerant is present.

The inclusion of “irrespective of whether or not refrigerant is present” makes it unambiguous that correct manufacture, installation and servicing of RAC equipment, which must be carried out in the absence of refrigerant, is an integral part of preventing unintended emissions and should not be carried out by unlicensed persons.

The change to the definition removes the previous ambiguity about what types of activities were encompassed by the term “handle a refrigerant”. The definition was amended at the request of, and in consultation with, the RAC industry which endorses the revised definition and the continuing use of the term “handle a refrigerant”.

The definition is widely understood in the RAC industry and sits within a broader framework regulating the RAC industry, which includes the requirement for persons to have refrigerant handling licences to work with refrigerant or equipment that contains or is intended to contain refrigerant. The licences are issued to persons who hold the appropriate qualifications to handle refrigerants. These qualifications have long been accepted by the RAC industry as sufficient to ensure such emissions are minimised when undertaking the type of work which is encapsulated by the term “handle a refrigerant”. A holder of such a licence can and does work on RAC equipment (for example by maintaining, servicing or installing) which does not contain refrigerant and is therefore handling a refrigerant within the meaning of that definition.

The licences are required therefore to ensure that when the refrigerant is added to the RAC equipment, the refrigerant is not emitted into the atmosphere. As the refrigerants controlled by the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 9995 (the Regulations) are ozone depleting substances or synthetic greenhouse gases, it is imperative that their emission to the atmosphere be minimised. This is necessary to achieve the policy intent of the legislation and to give effect to Australia’s international obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer and the synthetic greenhouse gas aspects of the Kyoto Protocol. The Amendment Regulations are an integral part of this broader framework.

In conclusion, I am satisfied that the definition of “handle a refrigerant” provides certainty and clarifies the application of the offence in regulation 111 for the RAC industry. The Amendment Regulations are an important part of the overall regulatory framework aimed to reduce emissions of greenhouse gases and ozone depleting substances.

Yours sincerely

Peter Garrett

Minister for the Environment, Heritage and the Arts

25 June 2009

The Hon Peter Garrett AM MP

Minister for the Environment, Heritage and the Arts

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 20 June 2009 responding to the Committee’s concerns with the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1), Select Legislative Instrument 2009 No.4. These Regulations, among other things, create a strict liability offence of ‘handling a refrigerant’.

In your letter you address the Committee’s concerns with regard to the structure and content of this offence. However, the Committee remains concerned by the title of the offence. Notwithstanding that industry has endorsed the revised definition and the continuing use of the term ‘handle a refrigerant,’ the Committee considers that offences – particularly strict liability offences – should be described with the utmost clarity and certainty. This is a matter of public expectation. Given this, can you advise why the title of this offence cannot be amended to “handle a refrigerant or refrigerant equipment”? This would remove any ambiguity about the conduct in issue. The substance of the offence would remain unchanged.

The Committee would appreciate your advice on the above matter as soon as possible, but before 3 August 2009, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

3 August 2009I

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600n

Dear Senator

Thank you for your letter of 25 June 2009 concerning the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations (No. 1) 2009 (the Regulations).

I note the Committee’s recommendation to reword the relevant offence provision to ‘handle a refrigerant or refrigerant equipment’. The Commonwealth’s heads of power under ratified international agreements do not currently allow for the regulation of all refrigerants, only fluorinated refrigerants. Thus, the generally encompassing nature of the phrase ‘refrigerant equipment’ might cause further ambiguity for and concern amongst currently unregulated sectors of the industry who may feel that this construction represents an intention by the Commonwealth to extend the scope of the Regulations into previously unregulated sectors.

To address the Committee’s concerns, I have instructed my Department to consider the matter, liaise with industry and to advise on an appropriately specific and unambiguous phrase to be included in the next set of amendments to the Regulations presented for the consideration of the Governor-General.

Thank you for writing on this matter.

Yours sincerely

Peter Garrett

Minister for the Environment, Heritage and the Arts

13 August 2009

The Hon Peter Garrett AM MP

Minister for the Environment, Heritage and the Arts

Suite M1.40

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 3 August 2009 responding to the Committee’s concerns with the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2009 (No. 1), Select Legislative Instrument 2009 No. 4. These Regulations, among other things, create a strict liability offence of ‘handling a refrigerant’.

In your letter you undertake to instruct your Department to liaise with industry and to advise on an appropriately specific and unambiguous phrase to be included with the next set of amendments to be presented for the consideration of the Governor-General. To enable the Committee to finalise its consideration of these regulations, could you please indicate when this amendment might be expected (ie is it a matter of months away, or is it likely to require more than a year to be settled) and would you please inform the Committee when the amendment is finally made.

The Committee has given a disallowance notice in respect of these regulations. It would assist if we could finalise our consideration at the next Committee meeting on 20 August. We would, therefore, appreciate your urgent advice on the above matter as soon as possible, but before 19 August 2009. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

18 August 2009

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator

Thank you for your letter of 13 August 2009 concerning the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations (No. 1) 2009.

The issue raised by the Standing Committee on Regulations and Ordinances will be addressed in the next set of amendments to the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995. I expect these amendments to be presented in the first half of 2010. I will notify the Standing Committee when the Regulations have been presented to the Governor-General for consideration.

Thank you for writing on this matter.

Yours sincerely

Peter Garrett

Minister for the Environment, Heritage and the Arts