Ozone-depleting substances and synthetic greenhouse gases
- Document symbol
- G/LIC/N/3/AUS/16
- Original language
- English
- Published on
- 27/11/2023
Outline of Systems
Q1. Give a brief description of each licensing system as a whole and, with respect to each, reply to the following questions as relevant, placing all of the material with respect to a given system in sequence together, and using cross references as appropriate when elements which have already been described are also present in another system.
Australia manages its obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) for ozone depleting substances and hydrofluorocarbons (HFCs) and, for synthetic greenhouse gases other than HFCs, the United Nations Framework Convention on Climate Change (UNFCCC), through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.
The import, export and manufacture of the ozone depleting substances - chlorofluorocarbons, halons, carbon tetrachloride, methyl chloroform, bromochloromethane and methyl bromide (for non‑quarantine and pre-shipment use) is prohibited under the Montreal Protocol except where an essential or critical use exemption has been granted by the parties to the Montreal Protocol. The importation of these substances is also prohibited under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 and the Customs (Prohibited Imports) Regulations 1956 (PI Regulations). The phase-out of ozone depleting hydrochlorofluorocarbons (HCFCs) under the Montreal Protocol is almost complete. Control measures for HFCs under the Kigali Agreement to the Montreal Protocol commenced on 1 January 2019 to phase down the production and import of HFCs.
Australia's Montreal Protocol obligations are implemented through licensing controls and quota restrictions on HCFCs and HFCs, and licensing of imports of methyl bromide. A licence is required to import equipment containing HFCs. The import of equipment containing HCFCs is prohibited except in certain limited circumstances when an import licence may be granted.
Australia controls the import and manufacture of other synthetic greenhouse gases (perfluorocarbons, sulphur hexafluoride and nitrogen trifluoride) in accordance with its obligations under the Kyoto Protocol of the UNFCCC. A licence is required to import, export and manufacture synthetic greenhouse gases and to import products containing synthetic greenhouse gases.
Purposes and Coverage of Licensing
Q2. Identify each licensing system maintained and state what products, appropriately grouped, are covered.
The requirements of the licensing system are:
• Controlled substances:
o import, export or manufacture of bulk methyl bromide, with the quantity of methyl bromide permitted to be imported for non-quarantine and pre-shipment fumigations limited to the quantity approved by the Montreal Protocol;
o import, export or manufacture of bulk HCFCs and HFCs, with import quotas set in line with Montreal Protocol phase-out obligations and Australia’s domestic policy to accelerate phase-out of HCFCs and phase-down of HFCs;
o import, export or manufacture of bulk perfluorocarbons, sulphur hexafluoride and nitrogen trifluoride, with no restrictions on quantity.
• Essential use:
o import, export or manufacture of bulk hydrochlorofluorocarbons, chlorofluorocarbons, halons, carbon tetrachloride, methyl chloroform and bromochloromethane approved for essential use by the parties to the Montreal Protocol.
• Used substances:
o import and export of bulk used chlorofluorocarbons, halons, carbon tetrachloride, methyl chloroform, bromochloromethane, methyl bromide, hydrochlorofluorocarbons, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and nitrogen trifluoride;
• Equipment licences:
o Import of pre-charged equipment containing synthetic greenhouse gases. The import of some equipment is restricted. The import of equipment containing ozone depleting substances is prohibited except in certain limited circumstances when a licence may be granted. Importers who import up to 25 kilograms of synthetic greenhouse gas (HFCs, perfluorocarbons, sulfur hexafluoride and nitrogen trifluoride) in equipment in a calendar year do not need an equipment licence.
Licence conditions and reporting requirements apply in relation to all licences issued.
The import and manufacture of equipment that contains or is designed to operate solely on an HCFC is prohibited under the legislation, except in certain circumstances when an equipment licence may be granted. Exemptions apply to:
• importing equipment insulated with foam manufactured with HCFC;
• the equipment is incidental to the main import, and it is impractical to remove or retrofit the equipment (for example equipment incorporated into a large boat or drilling rig);
• the equipment is essential for medical, veterinary, defence, industrial safety or public safety purposes, and no practical and effective alternative exists;
• the equipment is for use in conjunction with the calibration of scientific, measuring or safety equipment; or,
• the equipment is for test, monitoring, or laboratory and analytical use where there is no practical and effective alternative to that equipment.
Exemptions from licensing requirements apply in limited circumstances for the import or manufacture of certain products containing synthetic greenhouse gases. Exemptions have been approved for metered dose inhalers and imported foam products.
Q3. The system applies to goods originating in and coming from which countries?
The system applies to goods from all countries, with restrictions applying to trade of ozone depleting substances with countries that are not party to the Montreal Protocol.
Q4. Is the licensing intended to restrict the quantity or value of imports, and if not, what are its purposes? Have alternative methods of accomplishing the purposes been considered and if so which? Why have they not been adopted?
The licensing system implements Australia’s legal obligations under the Montreal Protocol. As well as limits on production and consumption of ozone depleting substances and HFCs leading to eventual phase-out or phase-down, the Montreal Protocol requires the establishment of a licensing and quota system.
Q5. Cite the law, regulation and/or administrative order under which the licensing is maintained. Is the licensing statutorily required? Does the legislation leave designation of products to be subjected to licensing to administrative discretion? Is it possible for the government (or the executive branch) to abolish the system without legislative approval?
The legislation under which licences are maintained includes:
- Ozone Protection and Synthetic Greenhouse Gas Management Act 1989;
- Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995;
- Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995;
- Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995;
- Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Regulations 2004; and
- Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Regulations 2004.
Licensing is a legislative requirement. It is an offence to import, export or manufacture a scheduled substance without a licence.
The legislation does not leave designation of products to administrative discretion. All substances that require licences are specified in a schedule to the legislation. No other substances require licensing under this legislation.
Importation of ozone depleting substances and synthetic greenhouse gases and equipment containing these substances is prohibited under provisions of the Customs Act 1901 and the PI Regulations unless a licence has been obtained or the goods are exempt from licensing requirements.
Procedures
Q6. For products under restriction as to the quantity or value of imports (whether applicable globally or to a limited number of countries or whether established bilaterally or unilaterally):
The quantity of controlled ozone depleting substances and HFCs that can be imported into Australia is limited through the Montreal Protocol. These limits and the quota system are also outlined in the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. There is no import limit on other synthetic greenhouse gases.
Q6.I. Is information published, and where, concerning allocation of quotas and formalities of filing applications for licences? If not, how is it brought to the attention of possible importers? Of governments and export promotion bodies of exporting countries and their trade representatives? Is the overall amount published? The amount allocated to goods from each country? The maximum amount allocated to each importer? How to request any exceptions or derogations from the licensing requirement?
Information on licences is published in customs notices, trade journals, on the Australian Government Department of Climate Change, Energy the Environment and Water (DCCEEW) website and in an Australian database for business. DCCEEW works directly with holders of existing licences and new applicants. There are no quotas on amounts to be imported from specific countries, but imports and exports of ozone depleting substances, and HFCs when the Montreal Protocol trade provisions commence in 2033, must be from countries that are Parties to the Montreal Protocol and its relevant amendments. The legislation does not provide for any exception or derogation from licensing requirements.
Q6.II. How is the size of the quotas determined: on a yearly, six-monthly or quarterly basis? Are there cases where the size of quota is determined on a yearly basis but licences are issued for imports on a six-monthly or quarterly basis? In the latter case, is it necessary for importers to apply for fresh licence on a six-monthly or quarterly basis?
Licences for import of controlled substances, used substances and pre-charged equipment are issued for two years. Fixed end dates apply to controlled substances and used substances licences, while pre-charged equipment licences are valid for two years from the date of issue. Most controlled substance licences for an ozone depleting substance and HFCs specify the amount permitted to be imported or manufactured during the licence period. Essential use licences are issued annually. Each licence specifies the maximum amount and type of substance to be imported for the entire duration of the licence.
HCFC and HFC import quotas are based on the total annual consumption (i.e. production plus imports, minus exports) limit under the Montreal Protocol, adjusted for Australia’s accelerated phase-out and phase-down policy as applicable. Individual HCFC and HFC import quotas are based on past imports. There is provision for limited HFC quota allocation for new entrants.
Q6.III. Are licences allotted for certain goods partly or only to domestic producers of like goods? What steps are taken to ensure that licences allocated are actually used for imports? Are unused allocations added to quotas for a succeeding period? Are the names of importers to whom licences have been allocated made known to governments and export promotion bodies of exporting countries upon request? If not, for what reason? (Indicate products to which replies relate.)
Australia has no domestic manufacture of ozone depleting substances and synthetic greenhouse gases. All HCFC and HFC quota holders are importers of substances. Any company wishing to manufacture these substances in Australia would be subject to the same licensing and quota requirements as importers.
Unused quotas are not added to those of the succeeding period as limits under the Montreal Protocol and domestic legislation are not cumulative. The names of Australian importers are available to the public on the DCCEEW website.
Q6.IV. From the time of announcing the opening of quotas, as indicated in I above, what is the period of time allowed for the submission of applications for licences?
Licence applications may be made at any time. DEECCW will seek licence reapplications for a new licence period up to six months prior to the commencement of the licence period.
Consideration of a licence application may take up to 60 days. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 provides that if after 60 days the Minister or delegate has not granted a licence or sought more information, the application is deemed to be refused, unless a formal request for additional information has been made. A request for more information provides 60 days from the date the information is received for the application to be granted or refused. If it is not granted in this period it is deemed to be refused.
Q6.V. What are the minimum and maximum lengths of time for processing applications?
See IV above.
Q6.VI. How much time remains, at a minimum, between the granting of licences and the date of opening of the period of importation?
Licences can be granted at any time before or during a licence period.
Q6.VII. Is consideration of licence applications effected by a single administrative organ? Or must the application be passed on to other organs for visa, note or approval? If so, which? Does the importer have to approach more than one administrative organ?
The authority to grant or refuse licences lies with the Minister for the Environment. This power has been delegated to certain officers in DCCEEW. Applicants need only apply to DCCEEW.
Q6.VIII. If the demand for licences cannot be fully satisfied, on what basis is the allocation to applicants made? First come, first served? Past performance? Is there a maximum amount to be allocated per applicant and, if so, on what basis is it determined? What provision is made for new importers? Are applications examined simultaneously or on receipt?
There is no limit to the number of licences that can be issued under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. The quantity of ozone depleting substances and HFCs that can be imported is limited under the Montreal Protocol and the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. HCFC and HFC imports are managed through a quota system, based on past imports. There is provision for HFC quota allocation for new entrants.
Q6.IX. In the case of bilateral quotas or export restraint arrangements where export permits are issued by exporting countries, are import licences also required? If so, are licences issued automatically?
Q6.X. In cases where imports are allowed on the basis of export permits only, how is the importing country informed of the effect given by the exporting countries to the understanding between the two countries?
Q6.XI. Are there products for which licences are issued on condition that goods should be exported and not sold in the domestic market?
Q7. Where there is no quantitative limit on importation of a product or on imports from a particular country:
Q7.a. How far in advance of importation must application for a licence be made? Can licences be obtained within a shorter time-limit or for goods arriving at the port without a licence (for example, owing to inadvertency)?
Q7.b. Can a licence be granted immediately on request?
Q7.c. Are there any limitations as to the period of the year during which application for licence and/or importation may be made? If so, explain.
Q7.d. Is consideration of licence applications effected by a single administrative organ? Or must the application be passed on to other organs for visa, note or approval? If so, which? Does the importer have to approach more than one administrative organ?
Q8. Under what circumstances may an application for a licence be refused other than failure to meet the ordinary criteria? Are the reasons for any refusal given to the applicant? Have applicants a right of appeal in the event of refusal to issue a licence and, if so, to what bodies and under what procedures?
A licence may be refused if the applicant does not meet ordinary criteria. Where applications are refused, applicants will be given the reasons for such refusal on request. An applicant may apply to the Administrative Appeals Tribunal for a review of the decision not to approve a licence. Alternatively, an appeal may be made on the decision-making process itself under the Administrative Decisions (Judicial Review) Act 1977.
Eligibility of Importers to Apply for Licence
Q9. Are all persons, firms and institutions eligible to apply for licences: (If not, is there a system of registration of persons or firms permitted to engage in importation? What persons or firms are eligible? Is there a registration fee? Is there a published list of authorized importers?) a) under restrictive licensing systems? b) under non-restrictive systems?
Noting the quota restrictions for HCFC and HFC imports, all persons, firms and institutions are eligible to apply for licences.
Documentational and Other Requirements for Application for Licence
Q10. What information is required in applications? Submit a sample form. What documents is the importer required to supply with the application?
Controlled Substance, Essential Use, Used Substance and Pre-charged Equipment application forms are available on the DCCEEW website at: Import and export licences.
Q11. What documents are required upon actual importation?
Upon importation, an importer must present standard customs documentation along with a valid licence issued under the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989.
Q12. Is there any licensing fee or administrative charge? If so, what is the amount of the fee or charge?
Licence application fees are charged. Fees are: Controlled substances - $15,000; Essential Use - $3,000; Used Substance - $15,000; and Pre-charged Equipment - $3,000.
In addition, licence holders are required to pay a six-monthly activity fee: HCFC - $3,000 per ODP (Ozone Depleting Potential) tonne; Methyl Bromide - $135 per metric tonne; synthetic greenhouse gases - $165 per metric tonne.
Q13. Is there any deposit or advance payment requirement associated with the issue of licences? If so, state the amount or rate, whether it is refundable, the period of retention and the purpose of the requirement.
There is no deposit or advance payment requirement associated with the issue of licences.
Conditions of Licensing
Q14. What is the period of validity of a licence? Can the validity of a licence be extended? How?
Licences are valid for the licence period and cannot be extended.
Q15. Is there any penalty for the non-utilization of a licence or a portion of a licence?
There is no penalty for the non-utilisation of a licence or a portion of a licence
Q16. Are licences transferable between importers? If so, are any limitations or conditions attached to such transfer?
Yes. Transferee must be a fit and proper person to be a licence holder. A joint application by the transferor and transferee is made to DCCEEW.
Q17. Are any other conditions attached to the issue of a licence? a) for products subject to quantitative restriction? b) for products not subject to quantitative restriction?
Licensees are not permitted to trade in ozone depleting substances with non-parties to the Montreal Protocol. General conditions of the licence are that the licensee must have arrangements in place to manage their product at its end of life, generally through a product stewardship scheme; and must provide quarterly activity reports and pay the appropriate import levy, as per the Ozone Protection and Synthetic Greenhouse Gas Act 1989.
Conditions may also apply to the purpose to which the imported substance is to be applied if its consumption has been approved for a specific purpose through the Montreal Protocol.
Other Procedural Requirements
Q18. Are there any other administrative procedures, apart from import licensing and similar administrative procedures, required prior to importation?
No.