Clean Energy Bill Sept 2011

8/4/2019 Clean Energy Bill Sept 2011

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2010-2011

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Clean Energy Regulator Bill 2011

No. , 2011

(Climate Change and Energy Efficiency)

A Bill for an Act to establish the Clean EnergyRegulator, and for other purposes


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i Clean Energy Regulator Bil l 2011 No. , 2011

Contents

Part 1Preliminary 11 Short title .................... ..................... ...................... ...................... ...... 12 Commencement ..................... ..................... ...................... ................. 13 Simplified outline ...................... ..................... ..................... .............. 24 Definitions ...................... ..................... ..................... ...................... ... 35 Vacancy in the office of a member of the Regulator ...................... ... 66 Crown to be bound ................... ...................... ...................... ............. 67 Extension to external Territories .................... ..................... .............. 78 Extension to exclusive economic zone and continental shelf ............ 79 Extension to Joint Petroleum Development Area ..................... ......... 710 Application to foreign ships .................... ...................... .................... 7

Part 2Clean Energy Regulator 8Division 1

liabilities 811 Clean Energy Regulator.................................. ...................... ............. 812 Functions of the Regulator ...................... ...................... .................... 813 Powers of the Regulator ...................... ...................... ..................... ... 814 ...................... ... 915 Regulator has privileges and immunities of the Crown ..................... 9

Division 2Constitution and membership of the Regulator 1016 Constitution of the Regulator......................................... .................. 1017 Membership of the Regulator ..................... ...................... ............... 1018 Appointment of members of the Regulator ...................... ............... 10

19 Period of appointment for members of the Regulator ..................... . 1120 Acting members of the Regulator ................... ..................... ............ 11

Division 3Terms and conditions for members of the Regulator 1321 Remuneration .................... ...................... ...................... .................. 1322 Disclosure of interests to the Minister ................... ..................... ..... 1323 Disclosure of interests to the Regulator ..................... ..................... . 1324 Outside employment ..................... ...................... ..................... ........ 1425 Leave of absence ....................... ..................... ..................... ............ 1426 Resignation ..................... ..................... ...................... ..................... . 1527 Termination of appointment .................... ...................... .................. 1528 Other terms and conditions ...................... ...................... .................. 15

Division 4Decision-making by the Regulator 1629 Holding of meetings ..................... ...................... ..................... ........ 1630 Presiding at meetings .................... ...................... ...................... ....... 16


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Clean Energy Regulator Bil l 2011 No. , 2011 ii

31 Quorum..................................... ...................... ...................... ........... 1632 Voting at meetings etc. .................... ...................... ...................... .... 1633 Conduct of meetings ..................... ...................... ..................... ........ 1634 Minutes ................... ...................... ...................... ...................... ....... 17

Division 5Delegation 1835 Delegation by the Regulator .................... ...................... .................. 18

Division 6Staff of the Regulator etc. 1936 Staff ..................... ..................... ...................... ...................... ........... 1937 Persons assisting the Regulator ...................... ..................... ............ 1938 Consultants ..................... ..................... ...................... ..................... . 19

Division 7Planning and reporting obligations 2039 Corporate plan ................... ...................... ...................... .................. 2040 Annual report ..................... ...................... ..................... ................... 20

Division 8Other matters 2241 Minister may give directions to the Regulator ...................... ........... 2242 Chair of the Regulator not subject to direction by the

Regulator on certain matters .................... ...................... .................. 22Part 3Secrecy 23

43 Secrecy ................... ...................... ...................... ...................... ....... 2344 Disclosure or use for the purposes of a climate change law

etc. ................................................................................................... 2445 Disclosure to Ministers etc. ..................... ...................... .................. 2446 Disclosure to Secretaries etc. ...................... ...................... ............... 2447 Disclosure or use for purposes of development of

methodology determinations etc. ........................ ..................... ........ 2548 Disclosure to a Royal Commission ..................... ..................... ........ 2649 Disclosure to certain agencies, bodies and persons ..................... .... 2750 Disclosure to certain financial bodies .................... ..................... ..... 2951 Disclosure with consent ................... ...................... ...................... .... 3152 Disclosure to reduce threat to life or health ...................... ............... 3153 Disclosure of publicly available information .................... ............... 3254 Disclosure of summaries or statistics ..................... ..................... ..... 3255 Disclosure for purposes of law enforcement..................... ............... 3256 Delegation ...................... ..................... ..................... ...................... . 34

Part 4Miscellaneous 3557 Regulations ..................... ..................... ...................... ..................... . 35


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Clean Energy Regulator Bil l 2011 No. , 2011 1

A Bill for an Act to establish the Clean Energy1Regulator, and for other purposes2

The Parliament of Australia enacts:3

Part 1Preliminary45

1 Short title6

This Act may be cited as the Clean Energy Regulator Act 2011.7

2 Commencement8

(1) Each provision of this Act specified in column 1 of the table9commences, or is taken to have commenced, in accordance with10


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Part 1 Preliminary

Section 3

2 Clean Energy Regulator Bil l 2011 No. , 2011

column 2 of the table. Any other statement in column 2 has effect1according to its terms.2

3

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

57

At the same time as section 3 of the Clean

Energy Act 2011 commences. Note: This table relates only to the provisions of this Act as originally4

enacted. It will not be amended to deal with any later amendments of5this Act.6

(2) Any information in column 3 of the table is not part of this Act.7

Information may be inserted in this column, or information in it8may be edited, in any published version of this Act.9

3 Simplified outline10

The following is a simplified outline of this Act:11

This Act establishes the Clean Energy Regulator.12

The Regulator has such functions as are conferred on it by or13under:14

(a) the Clean Energy Act 2011; and15

(b) the Carbon Credits (Carbon Farming Initiative)16Act 2011; and17

(c) the National Greenhouse and Energy Reporting18

Act 2007; and19

(d) the Renewable Energy (Electricity) Act 2000; and20


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Preliminary Part 1

Section 4


(e) the Australian National Registry of Emissions1

Units Act 2011.2

4 Definitions3

In this Act:4

Australian police forcemeans:5

(a) the Australian Federal Police; or6

(b) a police force or police service of a State or Territory.7

climate change lawmeans any of the following:8

(a) this Act or legislative instruments under this Act;9

(b) the Clean Energy Act 2011 or legislative instruments under10that Act;11

(c) the Clean Energy (ChargesExcise) Act 2011 or legislative12instruments under that Act;13

(d) the Clean Energy (ChargesCustoms) Act 2011 or14legislative instruments under that Act;15

(e) the Clean Energy (Unit Issue ChargeAuctions) Act 2011 or16legislative instruments under that Act; and17

(f) the Clean Energy (Unit Issue ChargeFixed Charge) Act182011; and19

(g) the Clean Energy (Unit Shortfall ChargeGeneral) Act 201120or legislative instruments under that Act; and21

(h) the Clean Energy (International Unit Surrender Charge) Act222011 or legislative instruments under that Act; and23

(i) the Carbon Credits (Carbon Farming Initiative) Act 2011or24legislative instruments under that Act;25

(j) the National Greenhouse and Energy Reporting Act 2007or26legislative instruments under that Act;27

(k) the Renewable Energy (Electricity) Act 2000or legislative28instruments under that Act;29

(l) the Renewable Energy (Electricity) (Large-scale Generation30Shortfall Charge) Act 2000;31

(m) the Renewable Energy (Electricity) (Small-scale Technology32Shortfall Charge) Act 2010;33


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Part 1 Preliminary

Section 4


(n) the Australian National Registry of Emissions Units Act 20111or legislative instruments under that Act.2

engage in conductmeans:3

(a) do an act; or4

(b) omit to perform an act.5

foreign countryincludes a region where:6

(a) the region is a colony, territory or protectorate of a foreign7country; or8

(b) the region is part of a foreign country; or9

(c) the region is under the protection of a foreign country; or10

(d) a foreign country exercises jurisdiction or control over the11

region; or12(e) 13

relations.14

international agreementhas the same meaning as in the Clean15Energy Act 2011.16

international climate change agreementhas the same meaning as17in the Clean Energy Act 2011.18

international climate change bodymeans:19

(a) a body established under an international climate change20agreement; or21

(b) a body established by a body mentioned in paragraph (a).22

Joint Petroleum Development Areahas the same meaning as in23the Petroleum (Timor Sea Treaty) Act 2003.24

memberof the Regulatorincludes the Chair of the Regulator.25

methodology determinationhas the same meaning as in the26Carbon Credits (Carbon Farming Initiative) Act 2011.27

objectives of the Regulatorincludes:28

(a) the specific objectives of the Regulator in relation to the29

Clean Energy Act 2011 or legislative instruments under that30Act; and31


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Preliminary Part 1

Section 4


(b) the specific objectives of the Regulator in relation to the1Carbon Credits (Carbon Farming Initiative) Act 2011or2

legislative instruments under that Act; and3

(c) the specific objectives of the Regulator in relation to the4National Greenhouse and Energy Reporting Act 2007or5legislative instruments under that Act; and6

(d) the specific objectives of the Regulator in relation to the7Renewable Energy (Electricity) Act 2000or legislative8instruments under that Act; and9

(e) the specific objectives of the Regulator in relation to the10Australian National Registry of Emissions Units Act 2011or11legislative instruments under that Act.12

official of the Regulatormeans:13 (a) a member of the Regulator; or14

(b) a member of the staff of the Regulator; or15

(c) a person whose services are made available to the Regulator16under section 37; or17

(d) a person engaged as a consultant under section 38.18

offsets projecthas the same meaning as in the Carbon Credits19(Carbon Farming Initiative) Act 2011.20

prescribed eligible carbon unithas the same meaning as in the21Carbon Credits (Carbon Farming Initiative) Act 2011.22

prescribed international unithas the same meaning as in the23Australian National Registry of Emissions Units Act 2011.24

protected informationmeans information that:25

(a) was obtained after the commencement of this section by a2627Regulator; and28

(b) relates to the affairs of a person other than an official of the29Regulator.30

Regulatormeans the Clean Energy Regulator.31

Royal Commissionhas the same meaning as in the Royal32Commissions Act 1902.33


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Part 1 Preliminary

Section 5


Secretarymeans the Secretary of the Department.1

staff of the Regulatormeans the staff described in section 36.2

State/Territory government bodymeans:3

(a) the government of a State or Territory; or4

(b) an agency or authority of a State or Territory.5

United Nations Convention on the Law of the Seameans the6United Nations Convention on the Law of the Sea, done at7Montego Bay on 10 December 1982.8

Note: The text of the Convention is set out in Australian Treaty Series 19949No. 31 ([1994] ATS 31). In 2011, the text of an international10agreement in the Australian Treaty Series was accessible through the11Australian Treaties Library on the AustLII website12(www.austlii.edu.au).13

vacancy, in relation to the office of a member of the Regulator, has14a meaning affected by section 5.15

5 Vacancy in the office of a member of the Regulator16

For the purposes of a reference in:17

(a) this Act to a vacancyin the office of a member of the18Regulator; or19

(b) the Acts Interpretation Act 1901to a vacancyin the20membership of a body;21

there are taken to be 4 offices of members of the Regulator in22addition to the Chair of the Regulator.23

6 Crown to be bound24

(1) This Act binds the Crown in each of its capacities.25

(2) This Act does not make the Crown liable to a pecuniary penalty or26

to be prosecuted for an offence.27

(3) The protection in subsection (2) does not apply to an authority of28

the Crown.29


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Preliminary Part 1

Section 7


7 Extension to external Territories1

This Act extends to every external Territory.2

8 Extension to exclusive economic zone and continental shelf3

This Act extends to a matter relating to the exercis4sovereign rights in the exclusive economic zone or the continental5shelf.6

9 Extension to Joint Petroleum Development Area7

This Act extends to the Joint Petroleum Development Area.8

10 Application to foreign ships9

This Act does not apply to the extent that its application would be10inconsistent with the exercise of rights of foreign ships in:11

(a) the territorial sea; or12

(b) the exclusive economic zone; or13

(c) waters of the continental shelf;14

in accordance with the United Nations Convention on the Law of15the Sea.16

17


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Part 2 Clean Energy Regulator

Division 1

Section 11


1

Part 2Clean Energy Regulator2

Division 1Regulator3and liabilities4

11 Clean Energy Regulator5

The Clean Energy Regulator is established by this section.6

Note: In this Act,Regulatormeans the Clean Energy Regulatorsee7section 4.8

12 Functions of the Regulator9

The Regulator has the following functions:10

(a) such functions as are conferred on the Regulator by a climate11change law;12

(b) such functions as are conferred on the Regulator by any other13law of the Commonwealth;14

(c) to do anything incidental to or conducive to the performance15of any of the above functions.16

13 Powers of the Regulator17

(1) The Regulator has power to do all things necessary or convenient18to be done for or in connection with the performance of its19functions.20

(2) The powers of the Regulator include, but are not limited to, the21

power to enter into contracts.22

(3) Any contract entered into by the Regulator is to be entered into on23

behalf of the Commonwealth.24

(4) Any real or personal property held by the Regulatoris held for and25on behalf of the Commonwealth.26

(5) Any money received by the Regulator is received for and on behalf27of the Commonwealth.28


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Clean Energy Regulator Part 2

Division 1

Section 14


(6) The Regulator cannot hold real or personal property, or money, on1trust for a person other than the Commonwealth.2

Note: The Commonwealth may hold real or personal property or money on3trust.4

(7) To avoid doubt, a right to sue is taken not to be personal property5for the purposes of subsection (4).6

14 Regulatorities are Commonwealth liabilities7

(1) Any financial liabilities of the Regulator are taken to be liabilities8

of the Commonwealth.9

(2) In this section:10

financial liabilitymeans a liability to pay a person an amount,11where the amount, or the method for working out the amount, has12been determined.13

15 Regulator has privileges and immunities of the Crown14

The Regulator has the privileges and immunities of the Crown in15

right of the Commonwealth.1617


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Division 2 Constitution and membership of the Regulator

Section 16

10 Clean Energy Regulator Bill 2011 No. , 2011

1

Division 2Constitution and membership of the Regulator2

16 Constitution of the Regulator3

(1) The Regulator:4

(a) is a body corporate with perpetual succession; and5

(b) must have a seal; and6

(c) may acquire, hold and dispose of real and personal property;7and8

(d) may sue and be sued in its corporate name.9

(2) The seal of the Regulator is to be kept in such custody as the10Regulator directs and must not be used except as authorised by the11

Regulator.12

(3) All courts, judges and persons acting judicially must:13

(a) take judicial notice of the imprint of the seal of the Regulator14

appearing on a document; and15

(b) presume that the document was duly sealed.16

17 Membership of the Regulator17

The Regulator consists of the following members:18

(a) a Chair;19

(b) at least 2, and not more than 4, other members.20

18 Appointment of members of the Regulator21

(1) Each member of the Regulator is to be appointed by the Minister22by written instrument.23

Note: The member of the Regulator is eligible for reappointment: see the24Acts Interpretation Act 1901.25

(2) A person is not eligible for appointment as a member of the26Regulator unless the Minister is satisfied that the person has:27

(a) substantial experience or knowledge; and28

(b) significant standing;29


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Constitution and membership of the Regulator Division 2

Section 19


in at least one of the following fields:1

(c) economics;2

(d) industry;3

(e) energy production and supply;4

(f) energy measurement and reporting;5

(g) greenhouse gas emissions measurement and reporting;6

(h) greenhouse gas abatement measures;7

(i) financial markets;8

(j) trading of environmental instruments;9

(k) land resource management;10

(l) public administration.11

(3) The Chair of the Regulator holds office on a full-time basis.12

(4) A member of the Regulator (other than the Chair) may hold office13on either a full-time or a part-time basis.14

19 Period of appointment for members of the Regulator15

A member of the Regulator holds office for the period specified in16the instrument of appointment. The period must not exceed 5 years.17

Note: For reappointment, see theActs Interpretation Act 1901.18

20 Acting members of the Regulator19

Acting Chair of the Regulator20

(1) The Minister may appoint a person to act as the Chair of the21Regulator:22

(a) during a vacancy in the office of the Chair of the Regulator23

(whether or not an appointment has previously been made to24the office); or25

(b) during any period, or during all periods, when the Chair of26the Regulator:27

(i) is absent from duty or Australia; or28

(ii) is, for any reason, unable to perform the duties of the29office.30


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Division 2 Constitution and membership of the Regulator

Section 20


Acting member of the Regulator (other than the Chair of the1Regulator)2

(2) The Minister may appoint a person to act as a member of the3Regulator (other than the Chair of the Regulator):4

(a) during a vacancy in the office of a member of the Regulator5(other than the Chair of the Regulator), whether or not an6appointment has previously been made to the office; or7

(b) during any period, or during all periods, when a member of8the Regulator (other than the Chair of the Regulator):9

(i) is absent from duty or Australia; or10

(ii) is, for any reason, unable to perform the duties of the11office.12

Eligibility13

(3) A person is not eligible for appointment to act as:14

(a) the Chair of the Regulator; or15

(b) a member of the Regulator (other than the Chair of the16Regulator);17

unless the person is eligible for appointment as a member of the18Regulator.19

Note 1: See subsection 18(2).20

Note 2: For rules that apply to acting appointments, see sections 33AB and2133A of the Acts Interpretation Act 1901.22

23


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Terms and conditions for members of the Regulator Division 3

Section 21


1

Division 3Terms and conditions for members of the2Regulator3

21 Remuneration4

(1) A member of the Regulator is to be paid the remuneration that is5determined by the Remuneration Tribunal. If no determination of6

that remuneration by the Tribunal is in operation, a member of the7Regulator is to be paid the remuneration that is prescribed by the8

regulations.9

(2) A member of the Regulator is to be paid the allowances that are10prescribed by the regulations.11

(3) This section has effect subject to the Remuneration Tribunal Act121973.13

22 Disclosure of interests to the Minister14

A member of the Regulator must give written notice to the15

Minister of all interests, pecuniary or otherwise, that the member16has or acquires and that conflict or could conflict with the proper17 18

23 Disclosure of interests to the Regulator19

(1) A member of the Regulator who has an interest, pecuniary or20

otherwise, in a matter being considered or about to be considered21by the Regulator must disclose the nature of the interest to a22meeting of the Regulator.23

(2) The disclosure must be made as soon as possible after the relevant24

facts have come to the knowledge of the member of the Regulator.25

(3) The disclosure must be recorded in the minutes of the meeting of26the Regulator.27

(4) Unless the Regulator otherwise determines, the member of the28Regulator:29


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Division 3 Terms and conditions for members of the Regulator

Section 24


(a) must not be present during any deliberation by the Regulator1on the matter; and2

(b) must not take part in any decision of the Regulatorwith3respect to the matter.4

(5) For the purposes of making a determination under subsection (4),5

the member of the Regulator:6

(a) must not be present during any deliberation of the Regulator7for the purpose of making the determination; and8

(b) must not take part in making the determination.9

(6) A determination under subsection (4) must be recorded in the10minutes of the meeting of the Regulator.11

24 Outside employment12

(1) A full-time member of the Regulator must not engage in paid13

employment outside the duties of his or her office without the14 15

(2) A part-time member of the Regulator must not engage in any paid16employment that conflicts or may conflict with the proper17performance of his or her duties.18

25 Leave of absence19

(1) A full-time member of the Regulator has the recreation leave20entitlements that are determined by the Remuneration Tribunal.21

(2) The Minister may grant leave of absence, other than recreation22

leave, to a full-time member of the Regulator on the terms and23conditions as to remuneration or otherwise that the Minister24determines.25

(3) The Chair of the Regulator may grant leave of absence to a26part-time member of the Regulator on the terms and conditions that27the Chair determines.28


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Terms and conditions for members of the Regulator Division 3

Section 26


26 Resignation1

(1) A member of the Regulator may resign his or her appointment by2giving the Minister a written resignation.3

(2) The resignation takes effect on the day it is received by the4Minister or, if a later day is specified in the resignation, on that5later day.6

27 Termination of appointment7

(1) The Minister may terminate the appointment of a member of the8Regulator for misbehaviour or physical or mental incapacity.9

(2) The Minister may terminate the appointment of a member of the10

Regulator if:11

(a) the member:12

(i) becomes bankrupt; or13

(ii) applies to take the benefit of any law for the relief of14bankrupt or insolvent debtors; or15

(iii) compounds with his or her creditors; or16

(iv) makes an assignment of his or her remuneration for the17benefit of his or her creditors; or18

(b) if the member is a full-time memberthe member engages,1920

outside the duties of his or her office (see section 24); or21(c) if the member is a part-time memberthe member engages22

in paid employment that conflicts or may conflict with the23proper performance of his or her duties (see section 24); or24

(d) the member fails, without reasonable excuse, to comply with25section 22 or 23; or26

(e) the member is absent, except on leave of absence, from 327consecutive meetings of the Regulator.28

28 Other terms and conditions29

A member of the Regulator holds office on the terms and30conditions (if any) in relation to matters not covered by this Act31

that are determined by the Minister.3233


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Division 4 Decision-making by the Regulator

Section 29


1

Division 4Decision-making by the Regulator2

29 Holding of meetings3

(1) The Regulator is to hold such meetings as are necessary for the4performance of its functions.5

(2) The Chair of the Regulator may convene a meeting at any time.6

30 Presiding at meetings7

(1) The Chair of the Regulator presides at all meetings at which he or8

she is present.9

(2) If the Chair of the Regulator is not present at a meeting, the10members of the Regulator present must appoint one of themselves11to preside.12

31 Quorum13

At a meeting of the Regulator, 2 members of the Regulator14

constitute a quorum.15

32 Voting at meetings etc.16

(1) At a meeting of the Regulator, a question is decided by a majority17of the votes of members of the Regulator present and voting.18

(2) The person presiding at a meeting has a deliberative vote and, in19the event of an equality of votes, also has a casting vote.20

33 Conduct of meetings21

The Regulator may, subject to this Division, regulate proceedings22at its meetings as it considers appropriate.23

Note: Section 33B of theActs Interpretation Act 1901 provides for24

participation in meetings by telephone etc.25


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Decision-making by the Regulator Division 4

Section 34


34 Minutes1

The Regulator must keep minutes of its meetings.2


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Division 5 Delegation

Section 35


1

Division 5Delegation2

35 Delegation by the Regulator3

(1) The Regulator may, by writing, delegate any or all of its functions4and powers to:5

(a) a member of the Regulator; or6

(b) a person who is:7

(i) a member of the staff of the Regulator; and8

(ii) an SES employee or acting SES employee; or9

(c) a person who is:10

(i) a member of the staff of the Regulator; and11

(ii) an APS employee who holds or performs the duties of12an Executive Level 2 position or an equivalent position;13or14

(d) a person who is:15

(i) a person assisting the Regulator under section 37; and16

(ii) an SES employee or acting SES employee in the17Department; or18

(e) a person who is:19

(i) a person assisting the Regulator under section 37; and20

(ii) an APS employee who holds or performs the duties of21an Executive Level 2 position, or an equivalent position,22

in the Department.23

Note: The expressionsSES employeeand acting SES employeeare defined24in the Acts Interpretation Act 1901.25

(2) A delegate must comply with any written directions of the26Regulator.27

(3) Subsection (1) does not apply to a power to make, vary or revoke a28legislative instrument.29

30


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Staff of the Regulator etc. Division 6

Section 36


1

Division 6Staff of the Regulator etc.2

36 Staff3

(1) The staff of the Regulator are to be persons engaged under the4Public Service Act 1999.5

(2) For the purposes of the Public Service Act 1999:6

(a) the Chair of the Regulator and the staff of the Regulator7together constitute a Statutory Agency; and8

(b) the Chair of the Regulator is the Head of that Statutory9

Agency.10

37 Persons assisting the Regulator11

The Regulator may also be assisted:12

(a) by officers and employees of Agencies (within the meaning13of the Public Service Act 1999); or14

(b) by officers and employees of authorities of the15

Commonwealth; or16

(c) by officers and employees of a State or Territory; or17

(d) by officers and employees of authorities of a State or18Territory;19

whose services are made available to the Regulator in connection20

with the performance of any of its functions.21

38 Consultants22

(1) The Regulator may engage persons having suitable qualifications23and experience as consultants to the Regulator.24

(2) The consultants are to be engaged on the terms and conditions that25

the Regulator determines in writing.2627


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Division 7 Planning and reporting obligations

Section 39


1

Division 7Planning and reporting obligations2

39 Corporate plan3

(1) The Regulator must prepare a corporate plan at least once each43-year period and give it to the Minister.5

(2) The plan must cover a 3-year period.6

(3) The plan must include details of the following matters:7

(a) the objectives of the Regulator;8

(b) the strategies and policies that are to be followed by the9

Regulator in order to achieve those objectives;10

(c) such other matters (if any) as the Minister requires.11

(4) The Chair of the Regulator must keep the Minister informed about:12

(a) changes to the plan; and13

(b) matters that might significantly affect the achievement of the14

objectives set out in the plan.15

(5) The Minister may give the Chair of the Regulator written16guidelines that are to be used by the Chair in deciding whether a17matter is covered by paragraph (3)(c) or (4)(b).18

(6) A guideline given under subsection (5) is not a legislative19instrument.20

(7) The Regulator must ensure that the first corporate plan is prepared21within 12 months after the commencement of this section.22

40 Annual report23

(1) The Regulator must, as soon as practicable after the end of each24

financial year, prepare and give to the Minister, for presentation to25the Parliament, a report on its operations during that year.26

Note: See also section 34C of theActs Interpretation Act 1901, which27

contains extra rules about annual reports.28

(2) A report under subsection (1) for a financial year must set out:29


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Planning and reporting obligations Division 7

Section 40


(a) a description of the objectives of the Regulator; and1

(b) an assessment of the extent to which the Regulator2operations during that year have achieved those objectives.3

(3) An assessment under paragraph (2)(b) must be made against4performance indicators set out in the report.5

(4) A report under subsection (1) is in addition to a report under6section 105 of the Renewable Energy (Electricity) Act 2000.7

(5) If a report under section 105 of the Renewable Energy (Electricity)8Act 2000relating to a calendar year (the REE report) has been9presented to the Parliament, the report under subsection (1) of this10section for the financial year ending on 30 June after the end of the11

calendar year:12(a) need not deal comprehensively with the working of that Act13

during so much of the financial year as overlaps the calendar14year; and15

(b) must include a summary of the REE report, to the extent to16which the REE report deals with the working of the17Renewable Energy (Electricity) Act 2000during so much of18the financial year as overlaps the calendar year.19

(6) If this section does not commence at the start of a financial year,20the period:21

(a) beginning at the commencement of this section; and22

(b) ending at the end of 30 June after that commencement;23

is taken, for the purposes of this section, to be a financial year.2425


26/39


Division 8 Other matters

Section 41


1

Division 8Other matters2

41 Minister may give directions to the Regulator3

(1) The Minister may, by legislative instrument, give directions to the4Regulator in relation to the performance of its functions and the5

exercise of its powers.6

Note 1: For variation and revocation, see subsection 33(3) of theActs7Interpretation Act 1901.8

Note 2: Section 42 (disallowance) and Part 6 (sunsetting) of theLegislative9Instruments Act 2003do not apply to the direction (see sections 4410and 54 of that Act).11

(2) A direction under subsection (1) must be of a general nature only.12

(3) A direction under subsection (1) must not be inconsistent with the13objects of:14

(a) the Clean Energy Act 2011; or15

(b) the Carbon Credits (Carbon Farming Initiative) Act 2011; or16

(c) the National Greenhouse and Energy Reporting Act 2007; or17

(d) the Renewable Energy (Electricity) Act 2000.18

(4) The Regulator must comply with a direction under subsection (1).19

42 Chair of the Regulator not subject to direction by the Regulator20on certain matters21

To avoid doubt, the Chair of the Regulator is not subject to22direction by the Regulator23functions, or exercise of powers, under:24

(a) the Financial Management and Accountability Act 1997; or25

(b) the Public Service Act 1999;26

in relation to the Regulator.2728


27/39

Secrecy Part 3

Section 43


1

Part 3Secrecy23

43 Secrecy4

(1) A person commits an offence if:5

(a) the person is, or has been, an official of the Regulator; and6

(b) 7capacity as an official of the Regulator; and8

(c) the person:9

(i) discloses the information to another person; or10

(ii) uses the information.11

Penalty: Imprisonment for 2 years or 120 penalty units, or both.12

Exceptions13

(2) Each of the following is an exception to the prohibition in14

subsection (1):15

(a) the disclosure or use is authorised by a provision of this Part;16

(b) the disclosure or use is in compliance with a requirement17under:18

(i) a law of the Commonwealth; or19

(ii) a prescribed law of a State or a Territory.20

Note: A defendant bears an evidential burden in relation to a matter in21subsection (2) (see subsection 13.3(3) of the Criminal Code).22

(3) Except where it is necessary to do so for the purposes of giving23effect to a climate change law, an official of the Regulator is not to24be required:25

(a) to produce to a court or tribunal a document containing26protected information; or27

(b) to disclose protected information to a court or tribunal.28


28/39

Part 3 Secrecy

Section 44


44 Disclosure or use for the purposes of a climate change law etc.1

An official of the Regulator may disclose or use protected2information if:3

(a) the disclosure or use is for the purposes of a climate change4law; or5

(b) the disclosure or use is for the purposes of the performance of6the functions of the Regulator under a climate change law; or7

(c) the disclosure or use is in the course of the 8employment or service as an official of the Regulator.9

45 Disclosure to Ministers etc.10

(1) An official of the Regulator may disclose protected information to11 the Minister.12

(2) An official of the Regulator may disclose protected information to13a Minister if the Minister is responsible for administering a14

program, or collecting statistics, relating to:15

(a) greenhouse gas emissions (within the meaning of the16National Greenhouse and Energy Reporting Act 2007); or17

(b) energy consumption (within the meaning of that Act); or18

(c) energy production (within the meaning of that Act).19

(3) An official of the Regulator may disclose protected information to20

a person employed, under section 13 or 20 of the Members of21 Parliament (Staff) Act 1984, as a member of staff of a Minister22referred to in subsection (1) or (2).23

46 Disclosure to Secretaries etc.24

(1) An official of the Regulator may disclose protected information to:25

(a) the Secretary; or26

(b) an officer of the Department who is authorised by the27

Secretary, in writing, for the purposes of this subsection;28

if the disclosure is for the purposes of:29

(c) advising the Minister; or30


29/39

Secrecy Part 3

Section 47


(d) 1international obligations under an international climate2

change agreement; or3

(e) facilitating the development of an international agreement4that relates to climate change.5

(2) If a Minister is responsible for administering a program, or6collecting statistics, relating to:7

(a) greenhouse gas emissions (within the meaning of the8National Greenhouse and Energy Reporting Act 2007); or9

(b) energy consumption (within the meaning of that Act); or10

(c) energy production (within the meaning of that Act);11

an official of the Regulator may disclose protected information to:12

(d) the Secretary of the Department administered by that13Minister; or14

(e) an officer of that Department who is authorised by that15Secretary, in writing, for the purposes of this subsection;16

if the disclosure is for the purposes of:17

(f) advising that Minister; or18

(g) administering that program, or collecting those statistics, as19the case may be.20

47 Disclosure or use for purposes of development of methodology21determinations etc.22

(1) The Regulator may disclose or use protected information that23relates to a particular offsets project if:24

(a) under section 27 of the Carbon Credits (Carbon Farming25Initiative) Act 2011, the Regulator has declared the offsets26project to be an eligible offsets project; and27

(b) more than 7 years have passed since the application under28section 22 of that Act was made for the declaration; and29

(c) the information was:30

(i) contained in the application; or31

(ii) given in connection with the application; or32

(iii) contained in an offsets report about the project; and33


30/39

Part 3 Secrecy

Section 48


(d) the disclosure or use is for the purposes of facilitating the1development of either or both of the following:2

(i) one or more methodology determinations;3

(ii) one or more proposals for methodology determinations.4

(2) The Regulator may disclose or use protected information if:5

(a) the information was:6

(i) contained in an application under section 108 of the7Carbon Credits (Carbon Farming Initiative) Act 20118for endorsement of a specified proposal for a9methodology determination; or10

(ii) contained in an application under section 116 of the11Carbon Credits (Carbon Farming Initiative) Act 201112

for endorsement of a specified proposal for the variation13of a methodology determination; or14

(iii) given in connection with an application covered by15subparagraph (i) or (ii); and16

(b) more than 7 years have passed since the application was17made; and18

(c) the disclosure or use is for the purposes of facilitating the19development of either or both of the following:20

(i) one or more methodology determinations;21

(ii) one or more proposals for methodology determinations.22

(3) Subsections (1) and (2) do not apply to personal information23 (within the meaning of the Privacy Act 1988).24

48 Disclosure to a Royal Commission25

(1) An official of the Regulator may disclose protected information to26

a Royal Commission.27

(2) The Chair of the Regulator may, by writing, impose conditions to28be complied with in relation to protected information disclosed29

under subsection (1).30

(3) An instrument under subsection (2) is not a legislative instrument.31


31/39

Secrecy Part 3

Section 49


49 Disclosure to certain agencies, bodies and persons1

Scope2

(1) This section applies if the Chair of the Regulator is satisfied that3particular protected information will enable or assist any of the4following agencies, bodies or persons:5

(a) the Australian Bureau of Statistics;6

(b) the Australian Communications and Media Authority;7

(c) the Australian Competition and Consumer Commission;8

(d) the Australian Prudential Regulation Authority;9

(e) the Australian Securities and Investments Commission;10

(f) the National Competition Council;11

(g) the Productivity Commission;12

(h) the Australian Energy Regulator;13

(i) the Australian Statistician;14

(j) the Commissioner of Taxation;15

(k) the Australian Competition Tribunal;16

(l) the Director of Public Prosecutions;17

(m) the Australian Transaction Reports and Analysis Centre;18

(n) the Reserve Bank of Australia;19

(o) Australian Energy Market Operator Limited (ACN 072 01020327);21

(p) the Australian Energy Market Commission established under22the Australian Energy Market Commission Establishment Act232004of South Australia;24

(q) the Independent Market Operator established under the25Electricity Industry (Independent Market Operator)26Regulations 2004of Western Australia;27

(r) Low Carbon Australia Limited (ACN 141 478 748);28

(s) the Climate Change Authority;29

(t) the Land Sector Carbon and Biodiversity Board;30

(u) the Chief Executive Officer of Customs;31

(v) a State/Territory government body whose functions include a32

function that corresponds to a function of the Regulator;33

(w) a prescribed State/Territory government body;34


32/39

Part 3 Secrecy

Section 49


(x) a prescribed international climate change body;1

(y) a prescribed professional disciplinary body;2

(z) a person or body responsible for the administration of a3scheme that involves the issue or registration of:4

(i) prescribed eligible carbon units; or5

(ii) prescribed international units;6

to perform or exercise any of the functions or powers of the7agency, body or person.8

Disclosure9

(2) If an official of the Regulator is authorised by the Chair of the10Regulator, in writing, for the purposes of this section, the official11

may disclose that protected information to the agency, body or12person concerned.13

(3) The Chair of the Regulator may, by writing, impose conditions to14be complied with in relation to protected information disclosed15

under subsection (2).16


(a) the person is subject to a condition under subsection (3); and18

(b) the person engages in conduct; and19

(c) 20



Prescribed professional disciplinary bodies23


(a) the person is:25

(i) a prescribed professional disciplinary body; or26

(ii) a member of a prescribed professional disciplinary27body; and28

(b) protected information has been disclosed under29

subsection (2) to the body; and30(c) the person:31


33/39

Secrecy Part 3

Section 50





Exceptions4

(7) Subsection (6) does not apply if:5

(a) the disclosure or use is with the consent of the Chair of the6Regulator; and7

(b) the disclosure or use is for the purpose of:8

(i) deciding whether or not to take disciplinary or other9action; or10

(ii) taking that action.11 Note: A defendant bears an evidential burden in relation to a matter in12

subsection (7) (see subsection 13.3(3) of the Criminal Code).13

50 Disclosure to certain financial bodies14

Scope15

(1) This section applies if the Chair of the Regulator is satisfied that16particular protected information will enable or assist a body17corporate that:18

(a) either:19

(i) conducts, or is involved in the supervision of, a20financial market; or21

(ii) is a body corporate that holds an Australian CS facility22licence; and23

(b) is specified in the regulations;24

to monitor compliance with, enforce, or perform functions or25exercise powers under:26

(c) the Corporations Act 2001; or27

(d) the business law of a State or Territory; or28

(e) the business law of a foreign country; or29

(f) the operating rules (if any) of the body corporate.30


34/39

Part 3 Secrecy

Section 50


Disclosure1

(2) If an official of the Regulator is authorised by the Chair of the2Regulator, in writing, for the purposes of this section, the official3may disclose that protected information to the body corporate.4

Conditions5

(3) The Chair of the Regulator may, by writing, impose conditions to6

be complied with by the body corporate and its officers, employees7and agents in relation to protected information disclosed to the8body corporate under subsection (2).9


(a) the person is subject to a condition under subsection (3); and11(b) the person engages in conduct; and12

(c) 13



Secondary disclosure and use16


(a) the person is:18

(i) a body corporate; or19(ii) an officer, employee or agent of a body corporate; and20

(b) protected information has been disclosed under21subsection (2) to the body corporate; and22

(c) the person:23




Exceptions27

(7) Each of the following is an exception to the prohibition in28subsection (6):29


35/39

Secrecy Part 3

Section 51


(a) the disclosure or use is with the consent of the Chair of the1Regulator;2

(b) the disclosure or use is for the purpose of monitoring3compliance with, enforcing, or performing functions or4exercising powers under:5

(i) the Corporations Act 2001; or6

(ii) the business law of a State or Territory; or7

(iii) the business law of a foreign country; or8

(iv) the operating rules (if any) of the body corporate.9


Meaning of expressions12

(8) In this section, the following expressions have the same meanings13

as in the Corporations Act 2001:14

(a) Australian CS facility licence;15

(b) financial market;16

(c) officer;17

(d) operating rules.18

51 Disclosure with consent19

An official of the Regulator may disclose protected information20

that relates to the affairs of a person if:21(a) the person has consented to the disclosure; and22

(b) the disclosure is in accordance with that consent.23

52 Disclosure to reduce threat to life or health24

An official of the Regulator may disclose protected information if:25

(a) the official believes on reasonable grounds that the disclosure26is necessary to prevent or lessen a serious and imminent27

threat to the life or health of an individual; and28

(b) the disclosure is for the purposes of preventing or lessening29that threat.30


36/39

Part 3 Secrecy

Section 53


53 Disclosure of publicly available information1

An official of the Regulator may disclose protected information if2it has already been lawfully made available to the public.3

54 Disclosure of summaries or statistics4

An official of the Regulator may disclose:5

(a) summaries of protected information; or6

(b) statistics derived from protected information;7

if those summaries or statistics, as the case may be, are not likely8to enable the identification of a person.9

55 Disclosure for purposes of law enforcement10

Scope11

(1) This section applies if the Chair of the Regulator is satisfied that12disclosure of particular protected information is reasonably13necessary for:14

(a) the enforcement of the criminal law; or15

(b) the enforcement of a law imposing a pecuniary penalty; or16

(c) the protection of the public revenue.17

Disclosure18

(2) The Chair of the Regulator may disclose that protected information19to:20

(a) a Department, agency or authority of the Commonwealth, a21State or a Territory; or22

(b) an Australian police force;23

whose functions include that enforcement or protection, for the24purposes of that enforcement or protection.25

(3) If an official of the Regulator is authorised by the Chair of the26

Regulator, in writing, for the purposes of this section, the official27may disclose that protected information to:28

(a) a Department, agency or authority of the Commonwealth, a29State or a Territory; or30


37/39

Secrecy Part 3

Section 55


(b) an Australian police force;1

whose functions include that enforcement or protection, for the2purposes of that enforcement or protection.3

Secondary disclosure and use4


(a) the person is, or has been, an employee or officer of:6

(i) a Department, agency or authority of the7Commonwealth, a State or a Territory; or8

(ii) an Australian police force; and9

(b) protected information has been disclosed under10subsection (2) or (3) to the Department, agency, authority or11

police force, as the case may be; and12(c) the person has obtained the informa13

capacity as an employee or officer of the Department,14

agency, authority or police force, as the case may be; and15

(d) the person:16




(5) Subsection (4) does not apply if:20

(a) the disclosure or use is with the consent of the Chair of the21Regulator; and22

(b) the disclosure or use is for the purpose of:23

(i) enforcing the criminal law; or24

(ii) enforcing a law imposing a pecuniary penalty; or25

(iii) protecting the public revenue.26


Conditions29

(6) The Chair of the Regulator may, by writing, impose conditions to30

be complied with in relation to protected information disclosed31under subsection (2) or (3).32


38/39

Part 3 Secrecy

Section 56



(a) the person is subject to a condition under subsection (6); and2

(b) the person engages in conduct; and3

(c) 4



56 Delegation7

(1) The Chair of the Regulator may, by writing, delegate any or all of8

his or her functions and powers under this Part to a member of the9Regulator.10

(2) A delegate must comply with any written directions of the Chair of11the Regulator.12

13


39/39

Miscellaneous Part 4

Section 57


1

Part 4Miscellaneous23

57 Regulations4

The Governor-General may make regulations prescribing matters:5

(a) required or permitted by this Act to be prescribed; or6

(b) necessary or convenient to be prescribed for carrying out or7giving effect to this Act.8

Clean Energy Bill Sept 2011

Documents

Transcript of Clean Energy Bill Sept 2011