Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Australian Climate Change Regulatory Authority Bill 2010

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

2008-2009-2010

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Australian Climate Change Regulatory Authority Bill 2010

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the authority of the Minister for

Climate Change and Water, Senator the Honourable Penny Wong)

 



T able of contents

Glossary.............................................................................................................. 1

General outline and financial impact............................................................ 3

Chapter 1               Australian Climate Change Regulatory Authority Bill 2010           5

Index................................................................................................................. 21

 

Do not remove section break.



Do not remove section break.



The following abbreviations and acronyms are used throughout this explanatory memorandum.

Abbreviation

Definition

Authority

Australian Climate Change Regulatory Authority

Climate change law

The laws listed in Table 1.1

consequential amendments bill

Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2010

main bill

Carbon Pollution Reduction Scheme Bill 2010

Scheme

Carbon Pollution Reduction Scheme

White Paper

Commonwealth Government, Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future (December 2008)





Australian Climate Change Regulatory Authority Bill 2010

The Australian Climate Change Regulatory Authority Bill 2010 establishes the Australian Climate Change Regulatory Authority (Authority), which will be responsible for administering the Carbon Pollution Reduction Scheme (Scheme), the Renewable Energy Target, and the National Greenhouse and Energy Reporting System.

Date of effect 28 days from Royal Assent to section 3 of the proposed Carbon Pollution Reduction Scheme Act 2010 (assuming the conditions in section 2 of that Act are satisfied).

Proposal announced The measures are based on the positions included in the White Paper entitled Carbon Pollution Reduction Scheme: Australia’s Low Pollution Future , released by the Government on 15 December 2008.  The Prime Minister announced some changes to the Scheme, including managing the impacts of the global recession, on 4 May 2009.  Further measures negotiated with the Opposition were announced on 24 November 2009. 

Financial impact:  The financial impact of the Carbon Pollution Reduction Scheme is addressed in the explanatory memorandum for the main bill.

Regulation impact The regulation impact statement is attached to the explanatory memorandum for the main bill.

 

Do not remove section break.





C hapter 1     

Australian Climate Change Regulatory Authority Bill 2010

Outline of chapter

1.1                    The explanatory memorandum describes the Authority’s functions and powers, membership, planning and reporting obligations and the secrecy provisions.

Context of amendments

One of a Package of Bills

1.2                    The Australian Climate Change Regulatory Authority Bill 2010 is part of the package of bills that establish the Scheme.

1.3                    Other key bills in that package are the:

•        Carbon Pollution Reduction Scheme Bill 2010 (the main bill)

•        Carbon Pollution Reduction Scheme (Consequential Amendments) Bill 2010 (the consequential amendments bill)

•        Carbon Pollution Reduction Scheme (Charges - General) Bill 2010

•        Carbon Pollution Reduction Scheme (Charges - Excise) Bill 2010

•        Carbon Pollution Reduction Scheme (Charges - Customs) Bill 2010.

1.4                    The bill needs to be read in the context, in particular, of the first two bills mentioned above:

•        the main bill contains the detail concerning the Authority’s functions and powers relating to the Scheme

•        the consequential amendments bill amends the National Greenhouse and Energy Reporting Act 2007 and the Renewable Energy (Electricity) Act 2000 to establish a single climate change regulatory authority. 

Two regulators abolished, one created

1.5                    As well as administering the Scheme, the Authority will also be responsible for the functions of the Office of the Renewable Energy Regulator and the Greenhouse and Energy Data Officer, as illustrated in Diagram 1.1 below.

 

Diagram 1.1 :  Proposed Regulatory Functions

 

 

 

 

 

 

 

 



1.6                    The advantages of this arrangement are expected to be:

•        Improved regulatory outcomes, including reduced risk of conflicts or gaps emerging between regulators with separate functions

•        Streamlined procedures for reporting and surrender of emissions units by liable entities under the Scheme

•        Reduced burden for businesses that would otherwise need to deal with two or three regulators

•        Economies of scale in the administration of legislation

•        Consistency with current Australian Government policy on the governance arrangements for Australian Government bodies.

Authority to be independent from Government

1.7                    The Government’s intention is to establish an independent regulator to administer the Scheme within a limited and legislatively prescribed discretion. Such an arrangement is expected to reduce the risk that the regulator’s decisions are based on factors other than the Scheme’s objectives, and should also contribute to efficient and effective administration.

1.8                    The intention to establish an independent regulator is reflected in a number of elements in the bill, including the limited scope for Ministerial directions to the Authority and the limited grounds on which a member of the Authority may be removed from office.

1.9                    A new authority is proposed because no single existing regulator has the capabilities needed to administer the range of functions required under climate change laws.

Summary of new law

1.10                The bill establishes the Authority, a body corporate comprising a Chair and between two and four other members.

1.11                The primary functions of the Authority are to administer the Carbon Pollution Reduction Scheme, the Renewable Energy Target, and the National Greenhouse and Energy Reporting System.

1.12                For the purposes of the Public Service Act 1999 , the Chair of the Authority is the head of a statutory agency and can employ Australian Public Sector employees on behalf of the Commonwealth.

1.13                In order to ensure proper use and management of public money, public property and other Commonwealth resources, the Authority will be bound by the Financial Management and Accountability Act 1997 .

1.14                The Authority will be required to produce a corporate plan setting out the Authority’s objectives and the strategies and policies that are to be used to achieve those objectives.

1.15                The Authority will also be required to produce an annual report, which will be tabled in Parliament.

1.16                As with many other regulators, such as the Australian Securities and Investments Commission, the Authority is subject to Ministerial direction on general matters only. 

1.17                The Minister may only terminate an appointment to the Authority on narrow grounds, including for misbehaviour, physical or mental incapacity or repeated absence from meetings of the Authority.

1.18                The bill contains provisions designed to ensure that information obtained by the Authority in the course of its functions is only disclosed and used for legitimate purposes. 

 

 

 

Comparison of key features of new law and current law

New law

Current law

One Authority established to administer the Carbon Pollution Reduction Scheme, the Renewable Energy Target and the National Greenhouse and Energy Reporting System

Renewable Energy Target administered by the Office of the Renewable Energy Regulator

National Greenhouse and Energy Reporting System administered by the Greenhouse and Energy Data Officer

No Carbon Pollution Reduction Scheme

Detailed explanation of new law

Establishment of Authority

1.19                The bill establishes the Authority. [Part 2, Division 1, clause 10]

Nature of the Authority

1.20                The Authority is a body corporate, comprising a Chair and between two and four other members.  [Part 2, Division 2, clauses 16-17]

1.21                As with many other regulators, such as the Australian Securities and Investments Commission, the Authority is subject to Ministerial direction on general matters only [Part 2, Division 8, clause 41] .  The policy intention of this provision is to ensure that the Authority is accountable to the Minister and acts consistently with Commonwealth Government policy, whilst not empowering the Minister to intervene in particular cases, for example the issue of Australian emissions units to a particular person.

1.22                A Ministerial direction to the Authority has the status of a legislative instrument [Part 2, Division 8, clause 41] .  This promotes transparency, as it means directions must be tabled in Parliament and incorporated into the Federal Register of Legislative Instruments.  In line with the usual provisions for Ministerial directions, the directions are not disallowable ( Legislative Instruments Act 2003 , section 44(2), Item 41).

1.23                While the Authority is to be independent from specific direction by Government, its nature as a government authority is recognised through a number of provisions.  In particular:

•        contracts entered into by the Authority are entered into on behalf of the Commonwealth [Part 2, Division 1, clause 12(3)]

•        any real or personal property held by the Authority is held for and on behalf of the Commonwealth [Part 2, Division 1, clause 12(4)]

•        any money received by the Authority is received for and on behalf of the Commonwealth [Part 2, Division 1, clause 12(5)]

•        any financial liabilities of the Authority are taken to be liabilities of the Commonwealth [Part 2, Division 1, clause 14]

•        the Authority has the privileges and immunities of the Crown in right of the Commonwealth [Part 2, Division 1, clause 15]

•        the Authority will be subject to the Financial Management and Accountability Act 1997 , which provides for the proper use and management of public money, public property and other Commonwealth resources.  (This will be achieved through the consequential amendments bill rather than through this bill).

Functions of Authority

1.24                The Authority has the following functions:

•        such functions as are conferred on the Authority by a climate change law

•        such functions as are conferred on the Authority by any other law of the Commonwealth

•        to do anything incidental to or conducive to the performance of any of the above functions.

[Part 2, Division 1, clause 11]

1.25                The following table lists ‘climate change laws’ as defined in the bill, and summarises the relevant functions conferred by those laws on the Authority.

Table 1.1 : Summary of functions conferred on the Authority by climate change laws

Climate change law

Summary of Authority’s functions

This Act

•        The functions set out in paragraph 1.24 above.

•        The planning and reporting functions set out from paragraph 1.53 below.

Carbon Pollution Reduction Scheme Act

•        To take various actions and decisions needed for the smooth functioning of the Scheme, including:

-       Maintaining a National Registry to track emissions units

-       Auctioning emissions units

-       Allocating emissions units in relation to emissions-intensive trade-exposed activities, coal-fired electricity generation, and gassy coal mines.

-       Assessing shortfalls in emissions units surrendered by liable entities

-       Overseeing the transfer of liability for emissions between corporate entities in some circumstances

-       Assessing the eligibility of reforestation projects, domestic offsets projects and unit entitlements associated with those projects.

•        To monitor and promote compliance with the Scheme.

•        To conduct and/or co-ordinate education programs about the Scheme.

•        To advise the Minister on matters relating to the Scheme.

•        To advise and assist persons in relation to their obligations under the Scheme.

•        To liaise with regulatory and other bodies, whether in Australia or elsewhere.

•        To collect, analyse, interpret and disseminate statistical information relating to the Scheme.

Regulations under the Carbon Pollution Reduction Scheme Act

•        None at this stage.

National Greenhouse and Energy Reporting Act 2007

(as amended by the consequential amendments bill)

•        Enforcing the reporting of greenhouse gas emissions, energy consumption and production by registered corporations and entities liable under the Scheme.

•        Public disclosure of corporate-level greenhouse gas emissions and energy information.

Regulations under the National Greenhouse and Energy Reporting Act 2007

•        These regulations provide details on matters relevant to the Authority’s obligations, including record-keeping requirements.

Renewable Energy (Electricity) Act 2000

•        Administration of the Mandatory Renewable Energy Target, including:

-       Accrediting eligible renewable energy power stations

-       Maintaining registers, including the register of Renewable Energy Certificates

-       Monitoring and enforcing compliance with the Act.

Regulations under the Renewable Energy (Electricity) Act 2000

•        These Regulations contain detail around some matters contained in the Renewable Energy (Electricity) Act 2000

Renewable Energy (Electricity) (Charges) Act 2000

•        This Act creates the charge to be paid per unit of electricity where there is a failure to comply with the Renewable Energy (Electricity) Act 2000 .  The Authority will be responsible for recovering this charge as part of its function of enforcing compliance with that Act.

Powers of Authority

1.26                The bill provides the Authority with the general power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions. [Part 2, Division 1, clause 12(1)]

1.27                The bill also provides that the Authority may enter into contracts [Part 2, Division 1, clause 12(2)] . This would allow the Authority to, for example, engage consultants or enter into contracts for premises and equipment.

1.28                These powers are in addition to the specific powers given to the Authority under the legislation set out in Table 1.1.  For example, under the main bill the Authority will have a range of enforcement powers, including the power to bring proceedings for civil penalty orders.

Exercise of functions and powers

1.29                The Authority may, by writing, delegate functions and powers to:

•        a member of the Authority

or

•        a member of the staff of the Authority who is a Senior Executive Service or Acting Senior Executive Service employee (that is, one of the senior management group of the Australian Public Sector). [Part 2, Division 5, clause 35]

Membership of the Authority

Number of Members

1.30                As noted above, the Authority will comprise a Chair and between two and four other members. [Part 2, Division 2, clause 17]

Term of Membership

1.31                The Chair must hold office on a full-time basis, and other members may hold office on either a full-time or part-time basis. [Part 2, Division 2, clauses 18(3)-(4)]

1.32                All members are to be appointed for a period of up to five years. [Part 2, Division 2, clause 19]

Expertise of Members

1.33                The Minister is responsible for appointing members of the Authority [Part 2, Division 2, clause 18(1)] .  Before appointing a member, the Minister must be satisfied that the member has substantial experience or knowledge and significant standing in at least one of the following fields:

•        economics

•        industry

•        energy production and supply

•        energy production and reporting

•        greenhouse gas emissions measurement and reporting

•        greenhouse gas abatement measures

•        financial markets

•        trading of environmental instruments

•        public administration.

[Part 2, Division 2, clause 18(2)]

1.34                This list is similar to that for expert advisory committees established under the main bill.   In contrast to expert advisory committees, however, ‘climate science’ is not listed as a relevant field of knowledge for the Authority.  This is because the Authority’s focus is on administration and enforcement of the Scheme, rather than advising on emissions reductions trajectories. 

1.35                Expert advisory committees will not require substantial experience or knowledge and significant standing in public administration.  However, public administration skills and experience are highly relevant to the functions of Authority members. For example, in order to ensure proper use and management of public money, public property and other Commonwealth resources, the Authority will be subject to the Financial Management and Accountability Act 1997 .  The Chair of the Authority will perform functions and exercise powers relating to public administration as the Chief Executive under this legislation.  The Chair of the Authority is the head of a Statutory Agency under the Public Service Act 1999 and can employ Australian Public Sector employees on behalf of the Commonwealth.  The Chair will be expected to direct these staff in their duties.

Acting Members

1.36                The bill anticipates that a member of the Authority may be unable to perform the duties of the office from time to time, such as when absent from Australia.  The Minister can appoint an Acting Chair or Acting Member (as appropriate) in such circumstances. [Part 2, Division 2, clause 20]

1.37                The Minister may also appoint an additional member or members to the Authority if there is a vacancy - that is, where there are less than four members in addition to the Chair. [Part 2, Division 2, clause 20] [Part 1, clause 5]

Terms and conditions for members of the Authority

Remuneration and entitlements of Authority members

1.38                Members of the Authority are to be paid at a rate determined by the Remuneration Tribunal, the independent tribunal established under the Remuneration Tribunal Act 1973 to handle the remuneration of key Commonwealth offices.  Where no determination has been made by the Tribunal, members are paid at the rate prescribed in regulations. [Part 2, Division 3, clause 21]

1.39                A full-time member of the Authority has the recreation leave entitlements determined by the Remuneration Tribunal, and may be granted additional leave (other than recreation leave) by the Minister. [Part 2, Division 3, clause 25]

1.40                The Chair of the Authority may grant leave of absence to a part-time member on terms and conditions decided by the Chair . [Part 2, Division 3, clause 25]   (It is not possible for recreation leave for part-time members to be set by the Remuneration Tribunal, as the Remuneration Tribunal Act only authorises determinations for full-time members of bodies like the Authority: Remuneration Tribunal Act 1973 , section 7(3AA)).

Resignation and Termination

1.41                An Authority member may resign by giving the Minister a written resignation. [Part 2, Division 3, clause 26]

1.42                The Minister may only terminate an appointment on narrow grounds, including for misbehaviour, physical or mental incapacity or repeated absence from meetings of the Authority. [Part 2, Division 3, clause 27]

1.43                In the event that any terms and conditions of employment need to be specified and are not already dealt with in the bill, the Minister may make a determination on those matters. [Part 2, Division 3, clause 28]

Decision-making by the Authority

1.44                The bill is not prescriptive as to how the Authority should make decisions.  Subject to some minimum requirements, the Authority can regulate proceedings at its meetings as it sees appropriate. [Part 2, Division 4, clause 33]

1.45                These minimum requirements are:

•        the Authority should hold such meetings as are necessary for the performance of its functions [Part 2, Division 4, clause 29]

•        the Chair presides at all meetings at which he or she is present [Part 2, Division 4, clause 30(1)]

•        if the Chair is not present, the other members present must appoint one of themselves to preside [Part 2, Division 4, clause 30(2)]

•        two members constitute a quorum [Part 2, Division 4, clause 31]

•        questions are resolved by a majority of votes [Part 2, Division 4,  clause 32]

•        if votes are evenly split, the presiding member has a casting vote [Part 2, Division 4, clause 32]

•        the Authority must keep minutes of its meetings. [Part 2, Division 4, clause 34]

Conflicts of interest

1.46                The bill contains a number of provisions aimed at ensuring that Authority members do not have interests that conflict with the proper performance of their duties.  In particular, the bill establishes:

•        a general requirement that members must give written notice to the Minister of all interests that conflict, or could conflict, with the proper performance of their functions [Part 2, Division 3, clause 22]

•        a specific requirement that members disclose to a meeting of the Authority a conflict of interest in any matter before the Authority, and absent themselves from any deliberation or decision with respect to that matter unless the Authority otherwise determines [Part 2, Division 3, clause 23]

•        a prohibition on a full-time member of the Authority from engaging in any other paid employment without the Minister’s approval [Part 2, Division 3, clause 24]

•        a prohibition on any part-time member from engaging in any paid employment that conflicts, or may conflict, with the proper performance of his or her duties. [Part 2, Division 3, clause 24]

1.47                A failure to comply with above requirements may provide grounds for the termination of a member’s appointment. [Part 2, Division 3, clause 27]

Resourcing

Staff

1.48                For the purposes of the Public Service Act 1999 , the Chair of the Authority is the head of a Statutory Agency and can employ Australian Public Sector employees on behalf of the Commonwealth. [Part 2, Division 6, clause 36]

1.49                In order to ensure clear lines of accountability between the Chair and staff, the Chair is not subject to direction by the Authority in relation to his or her actions taken under the Public Service Act 1999 [Part 2, Division 9, clause 42]

1.50                The consequential amendments bill provides that staff transferred to the Authority from the Department of Climate Change or the Office of the Renewable Energy Regulator will continue to be employed under the same terms and conditions as their previous employment. 

Consultants

1.51                The Authority also has the power to engage persons with suitable qualifications and experience as consultants. [Part 2, Division 6, clause 38]

Other public sector employees

1.52                The Authority may also be assisted by public sector officers and employees (Commonwealth, State or Territory), where their services are made available. [Part 2, Division 6, clause 37]

Planning obligations

1.53                The Authority must prepare a corporate plan at least once in each 3 year period, which sets out the objectives of the Authority and the strategies and policies that are to be followed to achieve those objectives. [Part 2, Division 7,  clauses 39(1)-(3)]

1.54                In addition to these general requirements, the corporate plan must also include details on any other matter that the Minister requires.  [Part 2, Division 7, clause 39(3)(c)]

1.55                However, there is no requirement for the Minister to amend or approve the corporate plan.

1.56                Once a corporate plan has been prepared, the Chair must keep the Minister informed as to changes to the plan and matters that might significantly affect the achievement of the objectives set out in the plan. [Part 2, Division 7, clause 39(4)]

1.57                The Minister may give the Chair guidelines to use in preparing the Corporate Plan, or informing the Minister. [Part 2, Division 7, clauses 39(5)-(6)]

1.58                The first corporate plan must be prepared within 12 months after the commencement of proposed section 39 of the bill - in effect

13 months from the date Royal Assent is given to the Carbon Pollution Reduction Scheme legislative package. [Part 2, Division 7, clause 39(7)]

Annual reports

1.59                The Authority is required to prepare an annual report for each financial year, for presentation by the Minister to Parliament. [Part 2, Division 7, clause 40(1)]

1.60                The annual report will set out

•        a description of the objectives of the Authority

•        an assessment of the extent to which the Authority’s operations during the year have achieved those objectives.

[Part 2, Division 7, clauses 40(2)-(3)]

1.61                The Authority’s annual reports are in addition to reports under section 105 of Renewable Energy (Electricity) Act 2000 , which are provided on a calendar year basis . [Part 2, Division 7, clause 40(4)-(5)]

1.62                The Authority’s main annual report need only include a summary of the separate renewable energy annual report.   [Part 2, Division 7, clause 40 (4)-(5)]

Release of information

1.63                Information obtained by the Authority may be commercially sensitive.  For example, it could disclose the market share of a corporation, or details of its supply arrangements.  The bill seeks to ensure that information obtained by the Authority is not disclosed unnecessarily or put to unauthorised use.

Primary disclosure offence

1.64                The bill seeks to make it an offence for a person who is, or has been an official of the Authority to disclose or use ‘protected information’ - in broad terms, information obtained in an official capacity -  unless one of a number of exceptions apply.  The penalty for that offence is up to two years’ imprisonment or 120 penalty units (which currently equates to $13,200), or both. [Part 3, clause 43]   This penalty is the same as applies to a similar offence in secrecy provisions (section 23) of the National Greenhouse and Energy Reporting Act 2007 .

1.65                ‘Official of the Authority’ is defined broadly to include not only Authority members and staff, but also:

•        public sector employees (State or Commonwealth) whose services are made available to the Authority in connection with the performance of its functions

and

•        consultants engaged by the Authority.

[Part 1, clause 4]

Exceptions to primary disclosure offence

1.66                In broad terms, the exceptions - that is, the circumstances in which ‘protected information’ can be disclosed or used - are:

•        disclosure or use for the purposes of a ‘climate change law’ (for example, disclosure of greenhouse and energy information in accordance with section 26 of the National Greenhouse and Energy Reporting Act 2007 ) [Part 3, clause 44]

•        disclosure to the Minister [Part 3, clause 45]

•        disclosure to the Secretary of the Department (or person authorised by the Secretary), where the disclosure is for the purposes of advising the Minister or facilitating the monitoring of Australia’s compliance with relevant international obligations [Part 3, clause 46]

(‘Department’ means the responsible Department - in this case, the Department of Climate Change: Acts Interpretation Act 1901 , section 19A(3)).

•        disclosure to a Royal Commission [Part 3, clause 47]

•        disclosure to specified agencies, bodies and persons where the Chair of the Authority is satisfied that the information will assist in those agencies in carrying out their functions, including:

-       a range of specified Commonwealth agencies

-       certain specified bodies connected with the operation and oversight of the energy market

-       a State/Territory government body or foreign government body with a function which corresponds to a function of the Authority

-       an international climate change body [Part 1, clause 4, definition of ‘international climate change body’]

-       prescribed professional disciplinary bodies [Part 3, clause 48]

•        disclosure to certain operators of financial markets and clearing and settlement facilities, where that body is specified in regulations and where the Chair of the Authority is satisfied that the information will assist such bodies in carrying out their functions [Part 3, clause 49]

•        disclosure with the consent of the affected person [Part 3, clause 50]

•        disclosure where the material is already publicly available [Part 3, clause 51]

•        disclosure where the summaries of the information, or statistics derived from the information, are released and this release is not likely to enable the identification of a person. [Part 3, clause 52]

Evidential burden

1.67                In any prosecution, the defendant will have the evidential burden with respect to the exceptions outlined above.  [Part 3, clause 43(2)] This is justified because in many cases it is peculiarly within the defendant’s knowledge as to which of the exceptions, if any, apply.  The effect is that the defendant must adduce or point to evidence that suggests a reasonable possibility that one of the exceptions applies.  Once this is done, the prosecution must refute this beyond reasonable doubt to obtain a conviction. (See Criminal Code, section 13.3).

Secondary disclosure offences

1.68                The bill also contains measures to ensure that once protected information has been disclosed for one of the above reasons, further disclosures only take place to the extent necessary.

1.69                In most cases, the Chair of the Authority may impose conditions in relation to protected information, and a person commits an offence if they engage in conduct in breach of a condition. This offence is punishable by a penalty of up to two years’ imprisonment or 120 penalty units (currently $13,200), or both [Part 3, clause 48(3)-(3A)] .

1.70                A specific offence applies to professional disciplinary bodies, and members of professional disciplinary bodies, that improperly release protected information Where a professional disciplinary body, or a member of such a body, receives protected information from the Authority it must only disclose or use that information for the purposes of taking disciplinary or other action, or deciding whether or not to take such action. [Part 3, clause 48(5), 48(6)]   The defendant will have an evidential burden with respect to the question of whether the information was disclosed or used for the purposes of taking disciplinary or other action, or deciding whether or not to take such action.  Again, the justification is that these matters will be peculiarly within the defendant’s knowledge. 

1.71                Specific offences also apply to operators of prescribed financial markets and clearing and settlement facilities. Conditions specified by the Chair may apply to the body itself and its officers, employees and agents.  It is an offence for any of those persons to breach the conditions.  This offence is punishable by a penalty of up to two years’ imprisonment or 120 penalty units (currently $13,200), or both. Again, this penalty is consistent with the penalty applying to secrecy provisions of the National Greenhouse and Energy Reporting Act 2007 . [Part 3, clause 49(6)]

1.72                The bill also creates a more general offence relating to prescribed operators of financial markets and clearing and settlement facilities.  If that body, or an officer, employee or agent of that body, uses or discloses protected information to another person, then they commit an offence unless:

•        the disclosure or use is with the consent of the Chair of the Authority

or

•        the disclosure or use is for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under

-       the Corporations Act 2001

-       the business law of a State or Territory

-       the business law of a foreign country

or

-       the operating rules (if any) of the body corporate. [Part 3, clause 49]

1.73                The defendant will have an evidential burden with respect to the question of whether one of the above exceptions applies.  The justification is that the purpose of the disclosure or use of the information will be peculiarly within the defendant’s knowledge.

1.74                The offences applying to operators of financial markets and clearing and settlement facilities are similar to those presently applying to those bodies under section 127 of the Australian Securities and Investment Commission Act 2001 .

Delegation by the Chair

1.75                The Chair may, by writing, delegate to another member of the Authority the Chair’s functions or powers relating to disclosure of information, or part of those functions or powers. [Part 3, clause 53]

Other matters

1.76                The bill applies to Commonwealth, State and Territory governments. [Part 1, clause 6]

1.77                The bill extends to all of Australia’s external territories, and to matters within Australia’s sovereign rights in the exclusive economic zone and continental shelf. [Part 1, clauses 7-8]

1.78                As with the clause 11A of the main bill, the bill extends to the Joint Petroleum Development Area as defined in the Petroleum (East Timor Sea) Treaty Act 2003 . [Part 1, clauses 4, definition of ‘Joint Petroleum Development Area’] [Part 1, clause 8A]

1.79                The express application of the Act to the Joint Petroleum Development Area—an agreed joint development area under the Timor Sea Treaty [2003] ATS 13—is consistent with the obligations of Australia under article 4(1) of the Treaty between Australia and Timor-L’este on Certain Maritime Arrangements in the Timor Sea [2007] ATS 12.

1.80                The bill does not apply in a manner that is inconsistent with the exercise of rights of foreign ships to the territorial sea, exclusive economic zone or waters of the continental shelf in accordance with the United Nations Convention on the Law of the Sea. [Part 1, clause 9]

1.81                The bill contains a standard regulation-making power. [Part 4, clause 54]

1.82                The short title of the bill is at clause 1, and a simplified outline of the bill is at clause 3. [Part 1, clause 1, 3]

1.83                Definitions of words used in the bill are set out in clause 4. [Part 1, clause 4]

1.84                While not provided for in the bill, the Government intends to establish a Stakeholder Consultative Committee, comprising business, environmental and community stakeholders to provide their perspectives and advice to Ministers on a range of operational matters, including the design and implementation of the Authority. The committee will not review or make recommendations on the merits of policies announced in the White Paper or contained in legislation.  The Stakeholder Consultative Committee is separate from the expert advisory committees established under Part 24 of the main bill, which are responsible for reviewing a range of substantive issues including scheme caps and assistance to emissions-intensive, trade exposed industries.

Application and transitional provisions

1.85                The operative provisions of the bill come into effect at the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2010 , which is 28 days after that Act receives Royal Assent. [Part 1, clause 2]

1.86                This is conditional on other bills essential to the operation of the Carbon Pollution Reduction Scheme also receiving Royal Assent: clause 2 of the main bill.

Consequential amendments

1.87                Consequential amendments, to absorb the current functions of the Renewable Energy Regulator and Greenhouse and Energy Data Officer into the Authority, also come into effect at the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2010 receives Royal Assent: Part 1 of Schedule 1 of the consequential amendments bill.

1.88                For example, if the package of bills relating to the Scheme is passed by both Houses, and Royal Assent is given on 1 July 2010, the operative provisions take effect 28 days after Royal Assent, on 29 July 2010.  On this date, the Authority would assume functions relating to regulation of the Renewable Energy Target and the National Greenhouse and Energy Reporting System, and could prepare for the commencement of the Scheme.



Part 1:  Preliminary

Bill reference

Paragraph number

Clause 1, 3

1.82

Clause 2

1.85

Clauses 4, definition of ‘Joint Petroleum Development Area’

1.78

Clause 4

1.65, 1.83

Clause 4, definition of ‘international climate change body’

1.66

Clause 5

1.37

Clause 6

1.76

Clauses 7-8

1.77

Clause 8A

1.78

Clause 9

1.80

Part 2:  Australian Climate Change Regulatory Authority

Bill reference

Paragraph number

Division 1, clause 10

1.19

Division 1, clause 11

1.24

Division 1, clause 12(1)

1.26

Division 1, clause 12(2)

1.27

Division 1, clause 12(3)

1.23

Division 1, clause 12(4)

1.23

Division 1, clause 12(5)

1.23

Division 1, clause 14

1.23

Division 1, clause 15

1.23

Division 2, clauses 16-17

1.20

Division 2, clause 17

1.30

Division 2, clause 18(1)

1.33

Division 2, clause 18(2)

1.33

Division 2, clauses 18(3)-(4)

1.31

Division 2, clause 19

1.32

Division 2, clause 20

1.36, 1.37

Division 3, clause 21

1.38

Division 3, clause 22

1.46

Division 3, clause 23

1.46

Division 3, clause 24

1.46

Division 3, clause 25

1.39, 1.40

Division 3, clause 26

1.41

Division 3, clause 27

1.42, 1.47

Division 3, clause 28

1.43

Division 4, clause 29

1.45

Division 4, clause 30(1)

1.45

Division 4, clause 30(2)

1.45

Division 4, clause 31

1.45

Division 4,  clause 32

1.45

Division 4, clause 33

1.44

Division 4, clause 34

1.45

Division 5, clause 35

1.29

Division 6, clause 36

1.48

Division 6, clause 37

1.52

Division 6, clause 38

1.51

Division 7,  clauses 39(1)-(3)

1.53

Division 7, clause 39(3)(c)

1.54

Division 7, clause 39(4)

1.56

Division 7, clauses 39(5)-(6)

1.57

Division 7, clause 40 (4)-(5)

1.62

Division 7, clause 39(7)

1.58

Division 7, clause 40(1)

1.59

Division 7, clauses 40(2)-(3)

1.60

Division 7, clause 40(4)-(5)

1.61

Division 8, clause 41

1.21, 1.22

Division 9, clause 42

1.49

Part 3:  Secrecy

Bill reference

Paragraph number

Clause 43(2)

1.67

Clause 43

1.64

Clause 44

1.66

Clause 45

1.66

Clause 46

1.66

Clause 47

1.66

Clause 48(3)-(3A)

1.69

Clause 48(5), 48(6)

1.70

Clause 48

1.66

Clause 49(6)

1.71

Clause 49

1.66, 1.72

Clause 50

1.66

Clause 51

1.66

Clause 52

1.66

Clause 53

1.75

Part 4:  Miscellaneous

Bill reference

Paragraph number

Clause 54

1.81