16th May 2024, 6:43 PM – Senate New Vehicle Efficiency Standard Bill 2024 - Committee of the whole - Duty to ensure that final emissions value is zero or less

The majority voted in favour of an motion to keep clauses 79 to 82 and clause 90 unchanged. This division occurred after the opposition moved that:

(11) Division 8, clauses 79 to 82, page 68 (line 1) to page 69 (line 10), to be opposed.

(12) Clause 90, page 75 (line 16) to page 77 (line 5), to be opposed.

What do these clauses do?

Clauses 79 to 82 relate to the duty to ensure that final emissions value is zero or less.

Clause 90 relates to the indexation of the penalty amount.

According to the bills digest:

However, the Bill also modifies the application of the Regulatory Powers Act in relation to clause 17 – the duty to ensure that the final emissions value is zero or less. The most significant of these are set out below.

Firstly, as explained in the Explanatory Memorandum,

… clause 17 is not subject to [the monitoring powers and investigation powers] because whether a person has complied with their duty under clause 17 is based on a point-in-time final emissions value – i.e. whether at the start of the final reconciliation day for the year, the person’s final emissions value for the year is zero or less. A person’s final emissions value is determined by reference to information that is already available to the Department. [emphasis in original]

Secondly, clause 79 modifies the application of subsection 82(5) of the Regulatory Powers Act in relation to contraventions of clause 17. Subsection 82(5) provides for the application of the corporate multiplier (being 5 times the maximum pecuniary penalty) if the contravening person is a body corporate. Clause 79 provides that the maximum penalty a court could impose is ‘the pecuniary penalty specified for that civil penalty provision’ (that is, $100 for each CO2 g/km of a person’s final emissions value, subject to indexation).

Thirdly, clause 82 modifies the application of subsection 104(2) of the Regulatory Powers Act in relation to contraventions of clause 17. Subsection 104(2) sets out the maximum penalty amount that could be specified in an infringement notice. It provides that the maximum penalty that could be imposed is the lesser of:

(a) one‑fifth of the maximum penalty that a court could impose on the person for that contravention; and

(b) 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate.

Clause 17 specifies that the maximum pecuniary penalty is $100 for each CO2 g/km of a person’s final emissions value. Applying subsection 104(2), the maximum penalty that could be specified in an infringement notice would be $20 for each CO2 g/km above a person’s final emissions value. However, clause 82 provides that the maximum penalty that could be specified in an infringement notice is ‘half the maximum penalty that a court could impose on the person for that contravention’; that is, $50 for each CO2 g/km of a person’s final emissions value.