Compliance and enforcement
The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) was established to meet Australia's obligations under the Vienna Convention and the Montreal Protocol and later to include Australia's obligations under the Kyoto Protocol. These protocols aim to bring countries around the world together with the common goal of reducing the use of Ozone Depleting Substances (ODS), which deplete the world's protective ozone layer, and synthetic greenhouse gases (SGG) which have a high Global Warming Potential (GWP).
A number of these substances have legitimate applications in our modern society as refrigerants and are commonly encountered in a variety of applications throughout the automotive, refrigeration and air conditioning industries. The Australian Government recognised the need to allow access to these substances in a regulated fashion and implemented a licensing and authorisation scheme to achieve this.
The Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Regulations) contain provisions to authorise people who have proven themselves competent and qualified to obtain a licence which allows them to work with refrigerant and refrigeration and air conditioning equipment. The licensing scheme is administered by the Australian Refrigeration Council (ARC) on behalf of the Department of Sustainability, Environment, Water, Population and Communities.
Licences issued by the ARC include several conditions outlined in the Regulations that must be adhered to in order to achieve the broader objectives under the Montreal Protocol. Whilst the department encourages people licensed through the ARC to act in accordance with the conditions of their licence, there are instances where this does not occur and compliance measures must be implemented. Similarly, individuals or businesses that engage in handling refrigerant or refrigeration and air conditioning equipment and are not licensed through the ARC are also liable for compliance action. This includes individuals and businesses that acquire, possess or dispose of refrigerant without the appropriate authorisation issued through the ARC, for example a Refrigerant Trading Authorisation (RTA).
The vast majority of non-compliant behaviour can be rectified by educating stakeholders about their requirements under the Regulations. In instances where serious or repeated non-compliant behaviour occurs a stronger level of compliance action may be required. Individuals or businesses that are licensed through the ARC face penalties ranging from official warnings through to the suspension of their licence. The handling and installation of refrigeration and air conditioning equipment without the correct authorisation is an offence of strict liability under the Regulations. An offence under the regulations carries the maximum penalty of $1,100 for individuals and $5,500 for body corporate entities.
The ARC conducts audits on behalf of the department to ensure compliance with the Regulations. An Australia-wide network of auditors ensures a good coverage of businesses and individuals that are licensed through the ARC. Audits may be conducted on either a prearranged or "drive-by" basis. Regardless of which type occurs you have the following rights when an ARC auditor enters your premises for the purpose of conducting an audit:
- the right to refuse consent for an auditor to enter, or to remain on your premises
- the right to withdraw your consent at any time, even after you have provided verbal or written consent.
The department expects all ARC auditors to conduct themselves in a professional manner and uphold the rights of the person or business where the audit is taking place. Any complaint in relation to the conduct of an ARC auditor should be directed to the ARC in writing in the first instance.
Individuals or businesses that are found to be non-compliant during the audit are provided with a written notice that includes the issues identified during the audit. The notice will also indicate the time period in which the issues must be resolved to become compliant. All minor breaches of RTA conditions are followed up by the ARC as part of the authorisation renewal process. Companies that are found to be non-compliant and do not comply within the period specified on the written notice will risk not having their RTA renewed. Any questions or concerns regarding this process should be directed in writing to the ARC.
The approach towards compliance with the Act is outlined in the Department of Sustainability, Environment, Water, Population and Communities' Compliance and Enforcement Policy . Where self regulation and education fail to achieve compliance outcomes the department provides a targeted response through the measures covered under the regulations.
After an initial assessment is conducted by an ARC auditor there are a number of serious offences that must be remedied within 14 days otherwise they are automatically referred to the department for follow up action. These offences include:
- Individuals handling refrigerant who are not licensed with the ARC
- Unsupervised trainees handling refrigerant
- Businesses that do not have all of the equipment required under their licence, or the equipment is not operating correctly (leak detector, vacuum pump, recovery unit)
- Using cylinders that are not within the test date
- Using cylinders that are non-refillable
Serious offences and offences identified and assessed by the ARC that are not rectified in a timely manner are referred to the department for case management. Cases where people fail to rectify their non-compliant practises can be assessed by the Compliance Management Panel where a decision may be made to appoint a government investigator to the case. Investigators operate in accordance with the department's Compliance and Enforcement Policy and can apply for a warrant, which affords them additional powers in terms of collecting and seizing items for evidence. This may result in a referral to the Commonwealth Department of Public Prosecution and subsequent fines covered under Compliance Measures above. Companies that do not rectify incidents of non-compliance may not have their licence renewed.
Australian Refrigeration Council
First point of contact for compliance related issues