Dorothy Dixxer owns a 600 hectare sheep farm called Upson Downs near Katanning in Western Australia. with a view to helping to mitigate climate change and the goal of increasing her income by selling carbon offsets, Dorothy decided to participate in the national Carbon Farming Initiative by implementing a new land management strategy at Upson Downs: one that would lead to the increased sequestration of carbon in her farm’s soil. Dorothy carefully follows all the necessary requirements to implement the project. In April 2017 Dorothy’s Carbon Farming Initiative was approved by the Regulator in accordance with 27(2) of the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (the Act) and placed on the Emissions Reduction Fund Register in accordance with s 168 of the Act. The Regulator accepted that Dorothy’s project was a sequestration offsets project in accordance with s 54 the Act.
Question 1 – 30 marks
Dorothy decides to reap the befits of her revised land management strategy. After having the soil tested by an accredited soil technician and consultant, Dorothy has the results audited and a report is issued in accordance with s 76 of the Act. She makes a request under s 12 of the Act for a certificate of entitlement to her Australian carbon credit units. Dorothy receives notification from the Regulator that her application has been refused under s 15(2)(a): she has not passed the fit and proper person test prescribed in the Act.
Dorothy is completely confused by the Regulator’s decision. She has never been convicted of anything in her life. Furthermore, she holds several lifetime achievement awards from her local Landcare group and Rotary clubs. The only thing Dorothy can put this decision down to is that in April 2019 she was the victim of identity theft after someone stole her purse when she was inattendance at the Katanning Field Day. A local trouble-maker, Rhonda Rabbit, had used her credit card to buy $3,000 worth of equipment for the purpose of illegally distilling alcohol. Rabbit was caught, charged and convicted of various offences. After several arguments with her bank over the debt, Dorothy was cleared of any wrongdoing.
Dorothy comes to you as the only lawyer in Katanning and wants to know if the regulator acted within the scope of the Act in refusing the application under s 15(2) in the circumstances? Treat the challenge to the Regulators decision as though you were preparing for a court case on matter of interpretation (ignore Part 24 of the Act). In answering the question, frame and consider constructions for the provision(s) in focus for both Dorothy and the Regulator.
Question 2 – 20 marks
Buster Crabbe is an Inspector appointed by the Regulator under s 196 of the Act. He is an employee of the Regulator and also an employee of the Katanning SES (State Emergency Service). He drops into Dorothy’s farm and knocks on the door on the pretext of collecting donations for the SES. Dorothy recognises Buster as a good friend of one of her friends at the Rotary Club and lets him in.
After some small talk over tea and biscuits Buster produces his Inspector’s identity card and announces that he is exercising his power under s 199 of the Act. He then proceeds to confiscate Dorothy’s desktop computer saying, ‘you are not a person of good character’, then walks out the door, loads the computer in his car and drives off.
Dorothy is dismayed by the actions of the Inspector and comes to you as the only lawyer in Katanning. She wants to know whether Buster has exercised his power within the scope of the Act.
Treat the challenge to the Regulators decision as though you were preparing for a court case on matter of interpretation. In answering the question, frame and consider constructions for the provision(s) in focus for both Dorothy and the Inspector.
