Manage a carbon abatement contract

A carbon abatement contract is a commercial arrangement. It has rights and obligations enforceable through the courts.

Once you have entered into a contract, there are certain things you need to do to manage it. You must make reasonable efforts to fulfil any obligations in the timeframe specified in the contract.

Code of Common Terms

Both party's rights and obligations are set out in the Code of Common Terms.

Current version

Option to Deliver - Code of common terms - version 2

Delivering ACCUs 

To deliver Australian carbon credit units (ACCUs), you must transfer them from your Australian National Register of Emissions Units (ANREU) account to ours.

Delivery is considered complete when the ACCUs are received in our ANREU account.

Find out more about how to transfer ACCUs.

You must send us an invoice after every delivery. The invoice must include the:

• ANREU account number from which delivery was made
• scheduled delivery date
• number of ACCUs delivered
• amount payable by us for the delivery
• relevant Australian business number (ABN)
• contract identification number.

You should provide the invoice within 90 days of delivery. If you don't, payment may be delayed. 

Early delivery

If your project is issued ACCUs before the scheduled delivery date, you can make an early delivery and receive payment.

Failure to deliver

You must deliver the ACCUs by the due dates outlined in the delivery schedule.

Fixed delivery contract

If you can't deliver ACCUs generated by your project, you can:

• purchase ACCUs on the secondary market to deliver the scheduled quantity
• source ACCUs from a new or alternate project
• apply for a fixed delivery exit arrangement.

If you can't meet the scheduled delivery quantity by the due date, you must notify us as soon as possible. You should submit your delivery failure notice in Client Portal.

The notice should include:

• the amount of ACCUs you will fail to deliver by the scheduled delivery date
• the reason for the delivery failure and what steps you are taking to address it
• how long you think the delivery issue will last
• whether you need to change the delivery schedule.

Both parties must make reasonable efforts to agree on a revised delivery schedule. You can't change the total ACCU amount scheduled for delivery under the contract.

Optional delivery contract

If you don't deliver ACCUs for a delivery milestone as set out in the delivery schedule, your right to against that milestone will lapse.

If you can't meet the scheduled delivery quantity by the due date, you must notify us as soon as possible. For optional delivery contracts, you should send this notice via post or email.

In limited circumstances, a milestone may be extended by mutual agreement. For example, if there was a delay in ACCUs being issued.

All ACCUs delivered under the optional delivery contract must be sourced from the single project identified in the contract. ACCUs from other sources won't be accepted.

If you deliver ACCUs from other sources:

• they will be returned to your ANREU account
• the delivery will not be accepted against the optional delivery contract delivery milestone
• no payment will be made
• seller’s market damages will not be applicable.

It's your responsibility to ensure only eligible ACCUs are transferred to us.

Receiving payments

After delivery is complete, we will make payment by electronic transfer to your nominated bank account.

We make payment within 20 business days of receipt of your invoice.

If your invoice is incomplete or inaccurate, payment may be delayed.

You must notify us of any changes to your bank account details.

Notices

If you want to make changes to a contract or communicate with us about a contract, you must do so by notice.

A notice must be:

• in writing
• signed by the seller or an authorised representative of the seller (or stated to be signed if sent by email)
• addressed and marked for attention as specified in the Code of Common Terms (for sellers) or commercial terms (for buyers).

The date the notice comes into effect depends on the delivery method:

• hand delivery: on delivery to the relevant address
• sent by post: 5 business days after it was sent
• sent by email: upon actual receipt in the addressee's inbox.

If a notice is received after 5pm or on a day that is not a business day, it will come into effect the next business day.

Sending a notice

You can submit your delivery failure notice in Client Portal. For other notices, submit via email or pre paid post.

Email

Attention: Carbon abatement contracts

Email: erfcontracts@cer.gov.au

Pre-paid post

Clean Energy Regulator

GPO Box 62​1

Canberra

ACT 2601 Australia​​​

Vary a contract

If you want to make changes to a contract, you need a contract variation. This could include updating your contact details or revising a delivery schedule.

Both parties must agree in writing to a variation.

You cannot vary the:

• Code of Common Terms
• financial terms
• agreed quantity of ACCUs (total abatement over the contract)
• contract duration.

Time limit

If you want to revise a delivery schedule, the variation must be negotiated and agreed to in 20 business days.

Other variations don’t have a time limit.

Who can vary a contract

You must be authorised to agree to any contract variations. We will check this before we enter into discussions or negotiations with you.

If the seller is a company, we can accept a notice to vary the contract signed by:

• 2 company directors
• a company director and company secretary
• a person appointed to exercise powers under the contract by 2 company directors, or a company director and company secretary
• the sole director of a proprietary company if they are also the sole company secretary
• one director if they are the only director of an Aboriginal and Torres Strait Islander corporation.

Novation

If the person or company responsible for running an Australian Carbon Credit Unit (ACCU) Scheme project changes, you need to vary the project. Before this happens, you can request to novate the carbon abatement contract.

A contract novation brings a replacement contract (with the same terms as the original) into effect. The obligations and benefits under the original contract are transferred to the new participant who is responsible for running the project. The original contract is discharged for the future.

We aren't obligated to agree to a contract novation. Before we agree, we will evaluate the new participant to make sure they are able to run the project and meet the remaining contractual obligations. This is in addition to other requirements that apply when varying a project.

You can also download an Advance Payment Addendum.

Termination

A carbon abatement contract ends when it has been completed or terminated.

Depending on the circumstances, contracts can be terminated by you (the seller) or us (the buyer).

There are a range of reasons a contract can be terminated:

• Conditions precedent are not waived or fulfilled by the conditions precedent expiry date.
• A representation or warranty made by either party is found to have been made recklessly, wilfully or intentionally false or misleading. This includes representations or warranties made during auction qualification, auction registration or project application.
• The seller becomes insolvent, or events prescribed in the contract occur that are similar to insolvency (and where novation to another party has not occurred).
• A force majeure event continues for more than 365 days or past the expiry date.
• Both parties agree to a termination.​

Note that the Clean Energy Regulator is unlikely to agree to a termination where the seller has not delivered the full contracted volume and is likely to still have access to ACCUs from their projects, including from projects that are not the anchor project for the contract. 

If a contract is terminated before the delivery obligations are met, you may have to pay market damages for the balance of the contracted volume.

Force majeure

A force majeure is an event that prevents you from fulfilling your obligations under the contract. This is an event beyond your control and one that we determine can't be overcome by reasonable efforts. Force majeure events may include natural disasters like flooding, drought and fire.

If a force majeure event affects your project, you must notify us of:

• the event details
• the steps you’re taking to mitigate the impact of the event
• how long you expect the event to last.

Dispute resolution

A dispute is a disagreement between the parties that can’t be resolved informally.

The dispute resolution process is in clause 12 of the Code of Common Terms:

• One party must give notice about the dispute to the other.
• Within 10 business days of notice being served, both parties must nominate a representative with no prior involvement and the authority to settle the dispute.
• The party receiving the notice must respond with its position within 10 business days of notice being served.
• The representatives will try to settle the dispute by negotiation.
• If the dispute isn't settled by negotiation within 20 business days of notice being served, the parties may agree to refer the dispute to an independent third person to mediate and recommend a non-binding resolution.
• If a resolution isn't reached in 40 business days of notice being served, either party can start legal proceedings.

​Each party is responsible for its own costs in the dispute resolution process. They must share the costs of engaging an independent third party.