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This is a Bill, not an Act. For current law, see the Acts databases.
CLEAN ENERGY REGULATOR BILL 2011
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 Energy
Regulator, and for other purposes
i Clean Energy Regulator Bill 2011 No. , 2011
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Simplified
outline
..............................................................................
2
4 Definitions
.........................................................................................
3
5
Vacancy in the office of a member of the Regulator ......................... 6
6
Crown to be bound ............................................................................. 6
7
Extension to external Territories ........................................................ 7
8
Extension to exclusive economic zone and continental shelf ............ 7
9
Extension to Joint Petroleum Development Area .............................. 7
10 Application
to
foreign ships ............................................................... 7
Part 2--Clean Energy Regulator
8
Division 1--Regulator's establishment, functions, powers and
liabilities
8
11
Clean Energy Regulator ..................................................................... 8
12
Functions of the Regulator ................................................................. 8
13
Powers of the Regulator ..................................................................... 8
14
Regulator's liabilities are Commonwealth liabilities ......................... 9
15
Regulator has privileges and immunities of the Crown ..................... 9
Division 2--Constitution and membership of the Regulator
10
16 Constitution
of
the Regulator ........................................................... 10
17 Membership
of
the Regulator .......................................................... 10
18
Appointment of members of the Regulator ...................................... 10
19
Period of appointment for members of the Regulator ...................... 11
20
Acting members of the Regulator .................................................... 11
Division 3--Terms and conditions for members of the Regulator
13
21 Remuneration
...................................................................................
13
22
Disclosure of interests to the Minister ............................................. 13
23
Disclosure of interests to the Regulator ........................................... 13
24 Outside
employment
........................................................................
14
25
Leave of absence .............................................................................. 14
26 Resignation
......................................................................................
14
27 Termination
of
appointment ............................................................ 15
28 Other
terms
and
conditions .............................................................. 15
Division 4--Decision-making by the Regulator
16
29 Holding
of
meetings......................................................................... 16
30
Presiding at meetings ....................................................................... 16
Clean Energy Regulator Bill 2011 No. , 2011 ii
31 Quorum
............................................................................................
16
32 Voting
at
meetings etc. .................................................................... 16
33
Conduct of meetings ........................................................................ 16
34 Minutes
............................................................................................
16
Division 5--Delegation
17
35
Delegation by the Regulator ............................................................ 17
Division 6--Staff of the Regulator etc.
18
36 Staff
.................................................................................................
18
37 Persons
assisting
the Regulator ........................................................ 18
38 Consultants
......................................................................................
18
Division 7--Planning and reporting obligations
19
39 Corporate
plan
.................................................................................
19
40 Annual
report
...................................................................................
19
Division 8--Other matters
21
41
Minister may give directions to the Regulator ................................. 21
42
Chair of the Regulator not subject to direction by the
Regulator on certain matters ............................................................ 21
Part 3--Secrecy
22
43 Secrecy
.............................................................................................
22
44
Disclosure or use for the purposes of a climate change law
etc. .................................................................................................... 22
45 Disclosure
to
Ministers etc. ............................................................. 23
46
Disclosure to Secretaries etc. ........................................................... 23
47
Disclosure or use for purposes of development of
methodology determinations etc. ..................................................... 24
48
Disclosure to a Royal Commission .................................................. 25
49
Disclosure to certain agencies, bodies and persons ......................... 25
50
Disclosure to certain financial bodies .............................................. 28
51 Disclosure
with
consent
...................................................................
30
52
Disclosure to reduce threat to life or health ..................................... 30
53 Disclosure
of
publicly
available information ................................... 30
54 Disclosure
of
summaries or statistics ............................................... 30
55
Disclosure for purposes of law enforcement .................................... 31
56 Delegation
........................................................................................
33
Part 4--Miscellaneous
34
57 Regulations
......................................................................................
34
Clean Energy Regulator Bill 2011 No. , 2011 1
A Bill for an Act to establish the Clean Energy
1
Regulator, and for other purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
5
1 Short title
6
This Act may be cited as the Clean Energy Regulator Act 2011.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
Part 1 Preliminary
Section 3
2 Clean Energy Regulator Bill 2011 No. , 2011
column 2 of the table. Any other statement in column 2 has effect
1
according 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 originally
4
enacted. It will not be amended to deal with any later amendments of
5
this 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 it
8
may be edited, in any published version of this Act.
9
3 Simplified outline
10
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 or
13
under:
14
(a)
the
Clean Energy Act 2011; and
15
(b)
the
Carbon Credits (Carbon Farming Initiative)
16
Act 2011; and
17
(c)
the
National Greenhouse and Energy Reporting
18
Act 2007; and
19
(d)
the
Renewable Energy (Electricity) Act 2000; and
20
Preliminary Part 1
Section 4
Clean Energy Regulator Bill 2011 No. , 2011 3
(e)
the
Australian National Registry of Emissions
1
Units Act 2011.
2
4 Definitions
3
In this Act:
4
Australian police force means:
5
(a) the Australian Federal Police; or
6
(b) a police force or police service of a State or Territory.
7
climate change law means any of the following:
8
(a) this Act or legislative instruments under this Act;
9
(b)
the
Clean Energy Act 2011 or legislative instruments under
10
that Act;
11
(c)
the
Clean Energy (Charges--Excise) Act 2011 or legislative
12
instruments under that Act;
13
(d)
the
Clean Energy (Charges--Customs) Act 2011 or
14
legislative instruments under that Act;
15
(e)
the
Clean Energy (Unit Issue Charge--Auctions) Act 2011 or
16
legislative instruments under that Act; and
17
(f)
the
Clean Energy (Unit Issue Charge--Fixed Charge) Act
18
2011; and
19
(g)
the
Clean Energy (Unit Shortfall Charge--General) Act 2011
20
or legislative instruments under that Act; and
21
(h)
the
Clean Energy (International Unit Surrender Charge) Act
22
2011 or legislative instruments under that Act; and
23
(i)
the
Carbon Credits (Carbon Farming Initiative) Act 2011 or
24
legislative instruments under that Act;
25
(j)
the
National Greenhouse and Energy Reporting Act 2007 or
26
legislative instruments under that Act;
27
(k)
the
Renewable Energy (Electricity) Act 2000 or legislative
28
instruments under that Act;
29
(l)
the
Renewable Energy (Electricity) (Large-scale Generation
30
Shortfall Charge) Act 2000;
31
(m)
the
Renewable Energy (Electricity) (Small-scale Technology
32
Shortfall Charge) Act 2010;
33
Part 1 Preliminary
Section 4
4 Clean Energy Regulator Bill 2011 No. , 2011
(n)
the
Australian National Registry of Emissions Units Act 2011
1
or legislative instruments under that Act.
2
engage in conduct means:
3
(a) do an act; or
4
(b) omit to perform an act.
5
foreign country includes a region where:
6
(a) the region is a colony, territory or protectorate of a foreign
7
country; or
8
(b) the region is part of a foreign country; or
9
(c) the region is under the protection of a foreign country; or
10
(d) a foreign country exercises jurisdiction or control over the
11
region; or
12
(e) a foreign country is responsible for the region's international
13
relations.
14
international agreement has the same meaning as in the Clean
15
Energy Act 2011.
16
international climate change agreement has the same meaning as
17
in the Clean Energy Act 2011.
18
international climate change body means:
19
(a) a body established under an international climate change
20
agreement; or
21
(b) a body established by a body mentioned in paragraph (a).
22
Joint Petroleum Development Area has the same meaning as in
23
the Petroleum (Timor Sea Treaty) Act 2003.
24
member of the Regulator includes the Chair of the Regulator.
25
methodology determination has the same meaning as in the
26
Carbon Credits (Carbon Farming Initiative) Act 2011.
27
objectives of the Regulator includes:
28
(a) the specific objectives of the Regulator in relation to the
29
Clean Energy Act 2011 or legislative instruments under that
30
Act; and
31
Preliminary Part 1
Section 4
Clean Energy Regulator Bill 2011 No. , 2011 5
(b) the specific objectives of the Regulator in relation to the
1
Carbon Credits (Carbon Farming Initiative) Act 2011 or
2
legislative instruments under that Act; and
3
(c) the specific objectives of the Regulator in relation to the
4
National Greenhouse and Energy Reporting Act 2007 or
5
legislative instruments under that Act; and
6
(d) the specific objectives of the Regulator in relation to the
7
Renewable Energy (Electricity) Act 2000 or legislative
8
instruments under that Act; and
9
(e) the specific objectives of the Regulator in relation to the
10
Australian National Registry of Emissions Units Act 2011 or
11
legislative instruments under that Act.
12
official of the Regulator means:
13
(a) a member of the Regulator; or
14
(b) a member of the staff of the Regulator; or
15
(c) a person whose services are made available to the Regulator
16
under section 37; or
17
(d) a person engaged as a consultant under section 38.
18
offsets project has the same meaning as in the Carbon Credits
19
(Carbon Farming Initiative) Act 2011.
20
prescribed eligible carbon unit has the same meaning as in the
21
Carbon Credits (Carbon Farming Initiative) Act 2011.
22
prescribed international unit has the same meaning as in the
23
Australian National Registry of Emissions Units Act 2011.
24
protected information means information that:
25
(a) was obtained after the commencement of this section by a
26
person in the person's capacity as an official of the
27
Regulator; and
28
(b) relates to the affairs of a person other than an official of the
29
Regulator.
30
Regulator means the Clean Energy Regulator.
31
Royal Commission has the same meaning as in the Royal
32
Commissions Act 1902.
33
Part 1 Preliminary
Section 5
6 Clean Energy Regulator Bill 2011 No. , 2011
Secretary means the Secretary of the Department.
1
staff of the Regulator means the staff described in section 36.
2
State/Territory government body means:
3
(a) the government of a State or Territory; or
4
(b) an agency or authority of a State or Territory.
5
United Nations Convention on the Law of the Sea means the
6
United Nations Convention on the Law of the Sea, done at
7
Montego Bay on 10 December 1982.
8
Note:
The text of the Convention is set out in Australian Treaty Series 1994
9
No. 31 ([1994] ATS 31). In 2011, the text of an international
10
agreement in the Australian Treaty Series was accessible through the
11
Australian Treaties Library on the AustLII website
12
(www.austlii.edu.au).
13
vacancy, in relation to the office of a member of the Regulator, has
14
a meaning affected by section 5.
15
5 Vacancy in the office of a member of the Regulator
16
For the purposes of a reference in:
17
(a) this Act to a vacancy in the office of a member of the
18
Regulator; or
19
(b)
the
Acts Interpretation Act 1901 to a vacancy in the
20
membership of a body;
21
there are taken to be 4 offices of members of the Regulator in
22
addition to the Chair of the Regulator.
23
6 Crown to be bound
24
(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 or
26
to be prosecuted for an offence.
27
(3) The protection in subsection (2) does not apply to an authority of
28
the Crown.
29
Preliminary Part 1
Section 7
Clean Energy Regulator Bill 2011 No. , 2011 7
7 Extension to external Territories
1
This Act extends to every external Territory.
2
8 Extension to exclusive economic zone and continental shelf
3
This Act extends to a matter relating to the exercise of Australia's
4
sovereign rights in the exclusive economic zone or the continental
5
shelf.
6
9 Extension to Joint Petroleum Development Area
7
This Act extends to the Joint Petroleum Development Area.
8
10 Application to foreign ships
9
This Act does not apply to the extent that its application would be
10
inconsistent with the exercise of rights of foreign ships in:
11
(a) the territorial sea; or
12
(b) the exclusive economic zone; or
13
(c) waters of the continental shelf;
14
in accordance with the United Nations Convention on the Law of
15
the Sea.
16
17
Part 2 Clean Energy Regulator
Division 1 Regulator's establishment, functions, powers and liabilities
Section 11
8 Clean Energy Regulator Bill 2011 No. , 2011
Part 2--Clean Energy Regulator
1
Division 1--Regulator's establishment, functions, powers
2
and liabilities
3
11 Clean Energy Regulator
4
The Clean Energy Regulator is established by this section.
5
Note: In
this
Act,
Regulator means the Clean Energy Regulator--see
6
section 4.
7
12 Functions of the Regulator
8
The Regulator has the following functions:
9
(a) such functions as are conferred on the Regulator by a climate
10
change law;
11
(b) such functions as are conferred on the Regulator by any other
12
law of the Commonwealth;
13
(c) to do anything incidental to or conducive to the performance
14
of any of the above functions.
15
13 Powers of the Regulator
16
(1) The Regulator has power to do all things necessary or convenient
17
to be done for or in connection with the performance of its
18
functions.
19
(2) The powers of the Regulator include, but are not limited to, the
20
power to enter into contracts.
21
(3) Any contract entered into by the Regulator is to be entered into on
22
behalf of the Commonwealth.
23
(4) Any real or personal property held by the Regulator is held for and
24
on behalf of the Commonwealth.
25
(5) Any money received by the Regulator is received for and on behalf
26
of the Commonwealth.
27
Clean Energy Regulator Part 2
Regulator's establishment, functions, powers and liabilities Division 1
Section 14
Clean Energy Regulator Bill 2011 No. , 2011 9
(6) The Regulator cannot hold real or personal property, or money, on
1
trust for a person other than the Commonwealth.
2
Note:
The Commonwealth may hold real or personal property or money on
3
trust.
4
(7) To avoid doubt, a right to sue is taken not to be personal property
5
for the purposes of subsection (4).
6
14 Regulator's liabilities are Commonwealth liabilities
7
(1) Any financial liabilities of the Regulator are taken to be liabilities
8
of the Commonwealth.
9
(2) In this section:
10
financial liability means a liability to pay a person an amount,
11
where the amount, or the method for working out the amount, has
12
been determined.
13
15 Regulator has privileges and immunities of the Crown
14
The Regulator has the privileges and immunities of the Crown in
15
right of the Commonwealth.
16
17
Part 2 Clean Energy Regulator
Division 2 Constitution and membership of the Regulator
Section 16
10 Clean Energy Regulator Bill 2011 No. , 2011
Division 2--Constitution and membership of the Regulator
1
16 Constitution of the Regulator
2
(1)
The
Regulator:
3
(a) is a body corporate with perpetual succession; and
4
(b) must have a seal; and
5
(c) may acquire, hold and dispose of real and personal property;
6
and
7
(d) may sue and be sued in its corporate name.
8
(2) The seal of the Regulator is to be kept in such custody as the
9
Regulator directs and must not be used except as authorised by the
10
Regulator.
11
(3) All courts, judges and persons acting judicially must:
12
(a) take judicial notice of the imprint of the seal of the Regulator
13
appearing on a document; and
14
(b) presume that the document was duly sealed.
15
17 Membership of the Regulator
16
The Regulator consists of the following members:
17
(a)
a
Chair;
18
(b) at least 2, and not more than 4, other members.
19
18 Appointment of members of the Regulator
20
(1) Each member of the Regulator is to be appointed by the Minister
21
by written instrument.
22
Note:
The member of the Regulator is eligible for reappointment: see the
23
Acts Interpretation Act 1901.
24
(2) A person is not eligible for appointment as a member of the
25
Regulator unless the Minister is satisfied that the person has:
26
(a) substantial experience or knowledge; and
27
(b)
significant
standing;
28
in at least one of the following fields:
29
(c)
economics;
30
Clean Energy Regulator Part 2
Constitution and membership of the Regulator Division 2
Section 19
Clean Energy Regulator Bill 2011 No. , 2011 11
(d)
industry;
1
(e) energy production and supply;
2
(f) energy measurement and reporting;
3
(g) greenhouse gas emissions measurement and reporting;
4
(h) greenhouse gas abatement measures;
5
(i)
financial
markets;
6
(j) trading of environmental instruments;
7
(k) land resource management;
8
(l)
public
administration.
9
(3) The Chair of the Regulator holds office on a full-time basis.
10
(4) A member of the Regulator (other than the Chair) may hold office
11
on either a full-time or a part-time basis.
12
19 Period of appointment for members of the Regulator
13
A member of the Regulator holds office for the period specified in
14
the instrument of appointment. The period must not exceed 5 years.
15
Note:
For reappointment, see the Acts Interpretation Act 1901.
16
20 Acting members of the Regulator
17
Acting Chair of the Regulator
18
(1) The Minister may appoint a person to act as the Chair of the
19
Regulator:
20
(a) during a vacancy in the office of the Chair of the Regulator
21
(whether or not an appointment has previously been made to
22
the office); or
23
(b) during any period, or during all periods, when the Chair of
24
the Regulator:
25
(i) is absent from duty or Australia; or
26
(ii) is, for any reason, unable to perform the duties of the
27
office.
28
Part 2 Clean Energy Regulator
Division 2 Constitution and membership of the Regulator
Section 20
12 Clean Energy Regulator Bill 2011 No. , 2011
Acting member of the Regulator (other than the Chair of the
1
Regulator)
2
(2) The Minister may appoint a person to act as a member of the
3
Regulator (other than the Chair of the Regulator):
4
(a) during a vacancy in the office of a member of the Regulator
5
(other than the Chair of the Regulator), whether or not an
6
appointment has previously been made to the office; or
7
(b) during any period, or during all periods, when a member of
8
the Regulator (other than the Chair of the Regulator):
9
(i) is absent from duty or Australia; or
10
(ii) is, for any reason, unable to perform the duties of the
11
office.
12
Eligibility
13
(3) A person is not eligible for appointment to act as:
14
(a) the Chair of the Regulator; or
15
(b) a member of the Regulator (other than the Chair of the
16
Regulator);
17
unless the person is eligible for appointment as a member of the
18
Regulator.
19
Note 1:
See subsection 18(2).
20
Note 2:
For rules that apply to acting appointments, see sections 33AB and
21
33A of the Acts Interpretation Act 1901.
22
23
Clean Energy Regulator Part 2
Terms and conditions for members of the Regulator Division 3
Section 21
Clean Energy Regulator Bill 2011 No. , 2011 13
Division 3--Terms and conditions for members of the
1
Regulator
2
21 Remuneration
3
(1) A member of the Regulator is to be paid the remuneration that is
4
determined by the Remuneration Tribunal. If no determination of
5
that remuneration by the Tribunal is in operation, a member of the
6
Regulator is to be paid the remuneration that is prescribed by the
7
regulations.
8
(2) A member of the Regulator is to be paid the allowances that are
9
prescribed by the regulations.
10
(3) This section has effect subject to the Remuneration Tribunal Act
11
1973.
12
22 Disclosure of interests to the Minister
13
A member of the Regulator must give written notice to the
14
Minister of all interests, pecuniary or otherwise, that the member
15
has or acquires and that conflict or could conflict with the proper
16
performance of the member's functions.
17
23 Disclosure of interests to the Regulator
18
(1) A member of the Regulator who has an interest, pecuniary or
19
otherwise, in a matter being considered or about to be considered
20
by the Regulator must disclose the nature of the interest to a
21
meeting of the Regulator.
22
(2) The disclosure must be made as soon as possible after the relevant
23
facts have come to the knowledge of the member of the Regulator.
24
(3) The disclosure must be recorded in the minutes of the meeting of
25
the Regulator.
26
(4) Unless the Regulator otherwise determines, the member of the
27
Regulator:
28
(a) must not be present during any deliberation by the Regulator
29
on the matter; and
30
Part 2 Clean Energy Regulator
Division 3 Terms and conditions for members of the Regulator
Section 24
14 Clean Energy Regulator Bill 2011 No. , 2011
(b) must not take part in any decision of the Regulator with
1
respect to the matter.
2
(5) For the purposes of making a determination under subsection (4),
3
the member of the Regulator:
4
(a) must not be present during any deliberation of the Regulator
5
for the purpose of making the determination; and
6
(b) must not take part in making the determination.
7
(6) A determination under subsection (4) must be recorded in the
8
minutes of the meeting of the Regulator.
9
24 Outside employment
10
(1) A full-time member of the Regulator must not engage in paid
11
employment outside the duties of his or her office without the
12
Minister's approval.
13
(2) A part-time member of the Regulator must not engage in any paid
14
employment that conflicts or may conflict with the proper
15
performance of his or her duties.
16
25 Leave of absence
17
(1) A full-time member of the Regulator has the recreation leave
18
entitlements that are determined by the Remuneration Tribunal.
19
(2) The Minister may grant leave of absence, other than recreation
20
leave, to a full-time member of the Regulator on the terms and
21
conditions as to remuneration or otherwise that the Minister
22
determines.
23
(3) The Chair of the Regulator may grant leave of absence to a
24
part-time member of the Regulator on the terms and conditions that
25
the Chair determines.
26
26 Resignation
27
(1) A member of the Regulator may resign his or her appointment by
28
giving the Minister a written resignation.
29
Clean Energy Regulator Part 2
Terms and conditions for members of the Regulator Division 3
Section 27
Clean Energy Regulator Bill 2011 No. , 2011 15
(2) The resignation takes effect on the day it is received by the
1
Minister or, if a later day is specified in the resignation, on that
2
later day.
3
27 Termination of appointment
4
(1) The Minister may terminate the appointment of a member of the
5
Regulator for misbehaviour or physical or mental incapacity.
6
(2) The Minister may terminate the appointment of a member of the
7
Regulator if:
8
(a)
the
member:
9
(i) becomes bankrupt; or
10
(ii) applies to take the benefit of any law for the relief of
11
bankrupt or insolvent debtors; or
12
(iii) compounds with his or her creditors; or
13
(iv) makes an assignment of his or her remuneration for the
14
benefit of his or her creditors; or
15
(b) if the member is a full-time member--the member engages,
16
except with the Minister's approval, in paid employment
17
outside the duties of his or her office (see section 24); or
18
(c) if the member is a part-time member--the member engages
19
in paid employment that conflicts or may conflict with the
20
proper performance of his or her duties (see section 24); or
21
(d) the member fails, without reasonable excuse, to comply with
22
section 22 or 23; or
23
(e) the member is absent, except on leave of absence, from 3
24
consecutive meetings of the Regulator.
25
28 Other terms and conditions
26
A member of the Regulator holds office on the terms and
27
conditions (if any) in relation to matters not covered by this Act
28
that are determined by the Minister.
29
30
Part 2 Clean Energy Regulator
Division 4 Decision-making by the Regulator
Section 29
16 Clean Energy Regulator Bill 2011 No. , 2011
Division 4--Decision-making by the Regulator
1
29 Holding of meetings
2
(1) The Regulator is to hold such meetings as are necessary for the
3
performance of its functions.
4
(2) The Chair of the Regulator may convene a meeting at any time.
5
30 Presiding at meetings
6
(1) The Chair of the Regulator presides at all meetings at which he or
7
she is present.
8
(2) If the Chair of the Regulator is not present at a meeting, the
9
members of the Regulator present must appoint one of themselves
10
to preside.
11
31 Quorum
12
At a meeting of the Regulator, 2 members of the Regulator
13
constitute a quorum.
14
32 Voting at meetings etc.
15
(1) At a meeting of the Regulator, a question is decided by a majority
16
of the votes of members of the Regulator present and voting.
17
(2) The person presiding at a meeting has a deliberative vote and, in
18
the event of an equality of votes, also has a casting vote.
19
33 Conduct of meetings
20
The Regulator may, subject to this Division, regulate proceedings
21
at its meetings as it considers appropriate.
22
Note:
Section 33B of the Acts Interpretation Act 1901 provides for
23
participation in meetings by telephone etc.
24
34 Minutes
25
The Regulator must keep minutes of its meetings.
26
Clean Energy Regulator Part 2
Delegation Division 5
Section 35
Clean Energy Regulator Bill 2011 No. , 2011 17
Division 5--Delegation
1
35 Delegation by the Regulator
2
(1) The Regulator may, by writing, delegate any or all of its functions
3
and powers to:
4
(a) a member of the Regulator; or
5
(b) a person who is:
6
(i) a member of the staff of the Regulator; and
7
(ii) an SES employee or acting SES employee; or
8
(c) a person who is:
9
(i) a member of the staff of the Regulator; and
10
(ii) an APS employee who holds or performs the duties of
11
an Executive Level 2 position or an equivalent position;
12
or
13
(d) a person who is:
14
(i) a person assisting the Regulator under section 37; and
15
(ii) an SES employee or acting SES employee in the
16
Department; or
17
(e) a person who is:
18
(i) a person assisting the Regulator under section 37; and
19
(ii) an APS employee who holds or performs the duties of
20
an Executive Level 2 position, or an equivalent position,
21
in the Department.
22
Note: The
expressions
SES employee and acting SES employee are defined
23
in the Acts Interpretation Act 1901.
24
(2) A delegate must comply with any written directions of the
25
Regulator.
26
(3) Subsection (1) does not apply to a power to make, vary or revoke a
27
legislative instrument.
28
29
Part 2 Clean Energy Regulator
Division 6 Staff of the Regulator etc.
Section 36
18 Clean Energy Regulator Bill 2011 No. , 2011
Division 6--Staff of the Regulator etc.
1
36 Staff
2
(1) The staff of the Regulator are to be persons engaged under the
3
Public Service Act 1999.
4
(2) For the purposes of the Public Service Act 1999:
5
(a) the Chair of the Regulator and the staff of the Regulator
6
together constitute a Statutory Agency; and
7
(b) the Chair of the Regulator is the Head of that Statutory
8
Agency.
9
37 Persons assisting the Regulator
10
The Regulator may also be assisted:
11
(a) by officers and employees of Agencies (within the meaning
12
of the Public Service Act 1999); or
13
(b) by officers and employees of authorities of the
14
Commonwealth; or
15
(c) by officers and employees of a State or Territory; or
16
(d) by officers and employees of authorities of a State or
17
Territory;
18
whose services are made available to the Regulator in connection
19
with the performance of any of its functions.
20
38 Consultants
21
(1) The Regulator may engage persons having suitable qualifications
22
and experience as consultants to the Regulator.
23
(2) The consultants are to be engaged on the terms and conditions that
24
the Regulator determines in writing.
25
26
Clean Energy Regulator Part 2
Planning and reporting obligations Division 7
Section 39
Clean Energy Regulator Bill 2011 No. , 2011 19
Division 7--Planning and reporting obligations
1
39 Corporate plan
2
(1) The Regulator must prepare a corporate plan at least once each
3
3-year period and give it to the Minister.
4
(2) The plan must cover a 3-year period.
5
(3) The plan must include details of the following matters:
6
(a) the objectives of the Regulator;
7
(b) the strategies and policies that are to be followed by the
8
Regulator in order to achieve those objectives;
9
(c) such other matters (if any) as the Minister requires.
10
(4) The Chair of the Regulator must keep the Minister informed about:
11
(a) changes to the plan; and
12
(b) matters that might significantly affect the achievement of the
13
objectives set out in the plan.
14
(5) The Minister may give the Chair of the Regulator written
15
guidelines that are to be used by the Chair in deciding whether a
16
matter is covered by paragraph (3)(c) or (4)(b).
17
(6) A guideline given under subsection (5) is not a legislative
18
instrument.
19
(7) The Regulator must ensure that the first corporate plan is prepared
20
within 12 months after the commencement of this section.
21
40 Annual report
22
(1) The Regulator must, as soon as practicable after the end of each
23
financial year, prepare and give to the Minister, for presentation to
24
the Parliament, a report on its operations during that year.
25
Note:
See also section 34C of the Acts Interpretation Act 1901, which
26
contains extra rules about annual reports.
27
(2) A report under subsection (1) for a financial year must set out:
28
(a) a description of the objectives of the Regulator; and
29
Part 2 Clean Energy Regulator
Division 7 Planning and reporting obligations
Section 40
20 Clean Energy Regulator Bill 2011 No. , 2011
(b) an assessment of the extent to which the Regulator's
1
operations during that year have achieved those objectives.
2
(3) An assessment under paragraph (2)(b) must be made against
3
performance indicators set out in the report.
4
(4) A report under subsection (1) is in addition to a report under
5
section 105 of the Renewable Energy (Electricity) Act 2000.
6
(5) If a report under section 105 of the Renewable Energy (Electricity)
7
Act 2000 relating to a calendar year (the REE report) has been
8
presented to the Parliament, the report under subsection (1) of this
9
section for the financial year ending on 30 June after the end of the
10
calendar year:
11
(a) need not deal comprehensively with the working of that Act
12
during so much of the financial year as overlaps the calendar
13
year; and
14
(b) must include a summary of the REE report, to the extent to
15
which the REE report deals with the working of the
16
Renewable Energy (Electricity) Act 2000 during so much of
17
the financial year as overlaps the calendar year.
18
(6) If this section does not commence at the start of a financial year,
19
the period:
20
(a) beginning at the commencement of this section; and
21
(b) ending at the end of 30 June after that commencement;
22
is taken, for the purposes of this section, to be a financial year.
23
24
Clean Energy Regulator Part 2
Other matters Division 8
Section 41
Clean Energy Regulator Bill 2011 No. , 2011 21
Division 8--Other matters
1
41 Minister may give directions to the Regulator
2
(1) The Minister may, by legislative instrument, give directions to the
3
Regulator in relation to the performance of its functions and the
4
exercise of its powers.
5
Note 1:
For variation and revocation, see subsection 33(3) of the Acts
6
Interpretation Act 1901.
7
Note 2:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
8
Instruments Act 2003 do not apply to the direction (see sections 44
9
and 54 of that Act).
10
(2) A direction under subsection (1) must be of a general nature only.
11
(3) A direction under subsection (1) must not be inconsistent with the
12
objects of:
13
(a)
the
Clean Energy Act 2011; or
14
(b)
the
Carbon Credits (Carbon Farming Initiative) Act 2011; or
15
(c)
the
National Greenhouse and Energy Reporting Act 2007; or
16
(d)
the
Renewable Energy (Electricity) Act 2000.
17
(4) The Regulator must comply with a direction under subsection (1).
18
42 Chair of the Regulator not subject to direction by the Regulator
19
on certain matters
20
To avoid doubt, the Chair of the Regulator is not subject to
21
direction by the Regulator in relation to the Chair's performance of
22
functions, or exercise of powers, under:
23
(a)
the
Financial Management and Accountability Act 1997; or
24
(b)
the
Public Service Act 1999;
25
in relation to the Regulator.
26
27
Part 3 Secrecy
Section 43
22 Clean Energy Regulator Bill 2011 No. , 2011
Part 3--Secrecy
1
2
43 Secrecy
3
(1) A person commits an offence if:
4
(a) the person is, or has been, an official of the Regulator; and
5
(b) the person has obtained protected information in the person's
6
capacity as an official of the Regulator; and
7
(c)
the
person:
8
(i) discloses the information to another person; or
9
(ii) uses the information.
10
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
11
Exceptions
12
(2) Each of the following is an exception to the prohibition in
13
subsection (1):
14
(a) the disclosure or use is authorised by a provision of this Part;
15
(b) the disclosure or use is in compliance with a requirement
16
under:
17
(i) a law of the Commonwealth; or
18
(ii) a prescribed law of a State or a Territory.
19
Note:
A defendant bears an evidential burden in relation to a matter in
20
subsection (2) (see subsection 13.3(3) of the Criminal Code).
21
(3) Except where it is necessary to do so for the purposes of giving
22
effect to a climate change law, an official of the Regulator is not to
23
be required:
24
(a) to produce to a court or tribunal a document containing
25
protected information; or
26
(b) to disclose protected information to a court or tribunal.
27
44 Disclosure or use for the purposes of a climate change law etc.
28
An official of the Regulator may disclose or use protected
29
information if:
30
Secrecy Part 3
Section 45
Clean Energy Regulator Bill 2011 No. , 2011 23
(a) the disclosure or use is for the purposes of a climate change
1
law; or
2
(b) the disclosure or use is for the purposes of the performance of
3
the functions of the Regulator under a climate change law; or
4
(c) the disclosure or use is in the course of the official's
5
employment or service as an official of the Regulator.
6
45 Disclosure to Ministers etc.
7
(1) An official of the Regulator may disclose protected information to
8
the Minister.
9
(2) An official of the Regulator may disclose protected information to
10
a Minister if the Minister is responsible for administering a
11
program, or collecting statistics, relating to:
12
(a) greenhouse gas emissions (within the meaning of the
13
National Greenhouse and Energy Reporting Act 2007); or
14
(b) energy consumption (within the meaning of that Act); or
15
(c) energy production (within the meaning of that Act).
16
(3) An official of the Regulator may disclose protected information to
17
a person employed, under section 13 or 20 of the Members of
18
Parliament (Staff) Act 1984, as a member of staff of a Minister
19
referred to in subsection (1) or (2).
20
46 Disclosure to Secretaries etc.
21
(1) An official of the Regulator may disclose protected information to:
22
(a) the Secretary; or
23
(b) an officer of the Department who is authorised by the
24
Secretary, in writing, for the purposes of this subsection;
25
if the disclosure is for the purposes of:
26
(c) advising the Minister; or
27
(d) facilitating the monitoring of Australia's compliance with its
28
international obligations under an international climate
29
change agreement; or
30
(e) facilitating the development of an international agreement
31
that relates to climate change.
32
Part 3 Secrecy
Section 47
24 Clean Energy Regulator Bill 2011 No. , 2011
(2) If a Minister is responsible for administering a program, or
1
collecting statistics, relating to:
2
(a) greenhouse gas emissions (within the meaning of the
3
National Greenhouse and Energy Reporting Act 2007); or
4
(b) energy consumption (within the meaning of that Act); or
5
(c) energy production (within the meaning of that Act);
6
an official of the Regulator may disclose protected information to:
7
(d) the Secretary of the Department administered by that
8
Minister; or
9
(e) an officer of that Department who is authorised by that
10
Secretary, in writing, for the purposes of this subsection;
11
if the disclosure is for the purposes of:
12
(f) advising that Minister; or
13
(g) administering that program, or collecting those statistics, as
14
the case may be.
15
47 Disclosure or use for purposes of development of methodology
16
determinations etc.
17
(1) The Regulator may disclose or use protected information that
18
relates to a particular offsets project if:
19
(a) under section 27 of the Carbon Credits (Carbon Farming
20
Initiative) Act 2011, the Regulator has declared the offsets
21
project to be an eligible offsets project; and
22
(b) more than 7 years have passed since the application under
23
section 22 of that Act was made for the declaration; and
24
(c) the information was:
25
(i) contained in the application; or
26
(ii) given in connection with the application; or
27
(iii) contained in an offsets report about the project; and
28
(d) the disclosure or use is for the purposes of facilitating the
29
development of either or both of the following:
30
(i) one or more methodology determinations;
31
(ii) one or more proposals for methodology determinations.
32
(2) The Regulator may disclose or use protected information if:
33
(a) the information was:
34
Secrecy Part 3
Section 48
Clean Energy Regulator Bill 2011 No. , 2011 25
(i) contained in an application under section 108 of the
1
Carbon Credits (Carbon Farming Initiative) Act 2011
2
for endorsement of a specified proposal for a
3
methodology determination; or
4
(ii) contained in an application under section 116 of the
5
Carbon Credits (Carbon Farming Initiative) Act 2011
6
for endorsement of a specified proposal for the variation
7
of a methodology determination; or
8
(iii) given in connection with an application covered by
9
subparagraph (i) or (ii); and
10
(b) more than 7 years have passed since the application was
11
made; and
12
(c) the disclosure or use is for the purposes of facilitating the
13
development of either or both of the following:
14
(i) one or more methodology determinations;
15
(ii) one or more proposals for methodology determinations.
16
(3) Subsections (1) and (2) do not apply to personal information
17
(within the meaning of the Privacy Act 1988).
18
48 Disclosure to a Royal Commission
19
(1) An official of the Regulator may disclose protected information to
20
a Royal Commission.
21
(2) The Chair of the Regulator may, by writing, impose conditions to
22
be complied with in relation to protected information disclosed
23
under subsection (1).
24
(3) An instrument under subsection (2) is not a legislative instrument.
25
49 Disclosure to certain agencies, bodies and persons
26
Scope
27
(1) This section applies if the Chair of the Regulator is satisfied that
28
particular protected information will enable or assist any of the
29
following agencies, bodies or persons:
30
(a) the Australian Bureau of Statistics;
31
(b) the Australian Communications and Media Authority;
32
Part 3 Secrecy
Section 49
26 Clean Energy Regulator Bill 2011 No. , 2011
(c) the Australian Competition and Consumer Commission;
1
(d) the Australian Prudential Regulation Authority;
2
(e) the Australian Securities and Investments Commission;
3
(f) the National Competition Council;
4
(g) the Productivity Commission;
5
(h) the Australian Energy Regulator;
6
(i) the Australian Statistician;
7
(j) the Commissioner of Taxation;
8
(k) the Australian Competition Tribunal;
9
(l) the Director of Public Prosecutions;
10
(m) the Australian Transaction Reports and Analysis Centre;
11
(n) the Reserve Bank of Australia;
12
(o) Australian Energy Market Operator Limited (ACN 072 010
13
327);
14
(p) the Australian Energy Market Commission established under
15
the Australian Energy Market Commission Establishment Act
16
2004 of South Australia;
17
(q) the Independent Market Operator established under the
18
Electricity Industry (Independent Market Operator)
19
Regulations 2004 of Western Australia;
20
(r) Low Carbon Australia Limited (ACN 141 478 748);
21
(s) the Climate Change Authority;
22
(t) the Land Sector Carbon and Biodiversity Board;
23
(u) the Chief Executive Officer of Customs;
24
(v) a State/Territory government body whose functions include a
25
function that corresponds to a function of the Regulator;
26
(w) a prescribed State/Territory government body;
27
(x) a prescribed international climate change body;
28
(y) a prescribed professional disciplinary body;
29
(z) a person or body responsible for the administration of a
30
scheme that involves the issue or registration of:
31
(i) prescribed eligible carbon units; or
32
(ii) prescribed international units;
33
to perform or exercise any of the functions or powers of the
34
agency, body or person.
35
Secrecy Part 3
Section 49
Clean Energy Regulator Bill 2011 No. , 2011 27
Disclosure
1
(2) If an official of the Regulator is authorised by the Chair of the
2
Regulator, in writing, for the purposes of this section, the official
3
may disclose that protected information to the agency, body or
4
person concerned.
5
(3) The Chair of the Regulator may, by writing, impose conditions to
6
be complied with in relation to protected information disclosed
7
under subsection (2).
8
(4) A person commits an offence if:
9
(a) the person is subject to a condition under subsection (3); and
10
(b) the person engages in conduct; and
11
(c) the person's conduct breaches the condition.
12
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
13
(5) An instrument under subsection (3) is not a legislative instrument.
14
Prescribed professional disciplinary bodies
15
(6) A person commits an offence if:
16
(a) the person is:
17
(i) a prescribed professional disciplinary body; or
18
(ii) a member of a prescribed professional disciplinary
19
body; and
20
(b) protected information has been disclosed under
21
subsection (2) to the body; and
22
(c)
the
person:
23
(i) discloses the information to another person; or
24
(ii) uses the information.
25
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
26
Exceptions
27
(7) Subsection (6) does not apply if:
28
(a) the disclosure or use is with the consent of the Chair of the
29
Regulator; and
30
Part 3 Secrecy
Section 50
28 Clean Energy Regulator Bill 2011 No. , 2011
(b) the disclosure or use is for the purpose of:
1
(i) deciding whether or not to take disciplinary or other
2
action; or
3
(ii) taking that action.
4
Note:
A defendant bears an evidential burden in relation to a matter in
5
subsection (7) (see subsection 13.3(3) of the Criminal Code).
6
50 Disclosure to certain financial bodies
7
Scope
8
(1) This section applies if the Chair of the Regulator is satisfied that
9
particular protected information will enable or assist a body
10
corporate that:
11
(a)
either:
12
(i) conducts, or is involved in the supervision of, a
13
financial market; or
14
(ii) is a body corporate that holds an Australian CS facility
15
licence; and
16
(b) is specified in the regulations;
17
to monitor compliance with, enforce, or perform functions or
18
exercise powers under:
19
(c)
the
Corporations Act 2001; or
20
(d) the business law of a State or Territory; or
21
(e) the business law of a foreign country; or
22
(f) the operating rules (if any) of the body corporate.
23
Disclosure
24
(2) If an official of the Regulator is authorised by the Chair of the
25
Regulator, in writing, for the purposes of this section, the official
26
may disclose that protected information to the body corporate.
27
Conditions
28
(3) The Chair of the Regulator may, by writing, impose conditions to
29
be complied with by the body corporate and its officers, employees
30
and agents in relation to protected information disclosed to the
31
body corporate under subsection (2).
32
Secrecy Part 3
Section 50
Clean Energy Regulator Bill 2011 No. , 2011 29
(4) A person commits an offence if:
1
(a) the person is subject to a condition under subsection (3); and
2
(b) the person engages in conduct; and
3
(c) the person's conduct breaches the condition.
4
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
5
(5) An instrument under subsection (3) is not a legislative instrument.
6
Secondary disclosure and use
7
(6) A person commits an offence if:
8
(a) the person is:
9
(i) a body corporate; or
10
(ii) an officer, employee or agent of a body corporate; and
11
(b) protected information has been disclosed under
12
subsection (2) to the body corporate; and
13
(c)
the
person:
14
(i) discloses the information to another person; or
15
(ii) uses the information.
16
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
17
Exceptions
18
(7) Each of the following is an exception to the prohibition in
19
subsection (6):
20
(a) the disclosure or use is with the consent of the Chair of the
21
Regulator;
22
(b) the disclosure or use is for the purpose of monitoring
23
compliance with, enforcing, or performing functions or
24
exercising powers under:
25
(i)
the
Corporations Act 2001; or
26
(ii) the business law of a State or Territory; or
27
(iii) the business law of a foreign country; or
28
(iv) the operating rules (if any) of the body corporate.
29
Note:
A defendant bears an evidential burden in relation to a matter in
30
subsection (7) (see subsection 13.3(3) of the Criminal Code).
31
Part 3 Secrecy
Section 51
30 Clean Energy Regulator Bill 2011 No. , 2011
Meaning of expressions
1
(8) In this section, the following expressions have the same meanings
2
as in the Corporations Act 2001:
3
(a)
Australian CS facility licence;
4
(b)
financial market;
5
(c)
officer;
6
(d)
operating rules.
7
51 Disclosure with consent
8
An official of the Regulator may disclose protected information
9
that relates to the affairs of a person if:
10
(a) the person has consented to the disclosure; and
11
(b) the disclosure is in accordance with that consent.
12
52 Disclosure to reduce threat to life or health
13
An official of the Regulator may disclose protected information if:
14
(a) the official believes on reasonable grounds that the disclosure
15
is necessary to prevent or lessen a serious and imminent
16
threat to the life or health of an individual; and
17
(b) the disclosure is for the purposes of preventing or lessening
18
that threat.
19
53 Disclosure of publicly available information
20
An official of the Regulator may disclose protected information if
21
it has already been lawfully made available to the public.
22
54 Disclosure of summaries or statistics
23
An official of the Regulator may disclose:
24
(a) summaries of protected information; or
25
(b) statistics derived from protected information;
26
if those summaries or statistics, as the case may be, are not likely
27
to enable the identification of a person.
28
Secrecy Part 3
Section 55
Clean Energy Regulator Bill 2011 No. , 2011 31
55 Disclosure for purposes of law enforcement
1
Scope
2
(1) This section applies if the Chair of the Regulator is satisfied that
3
disclosure of particular protected information is reasonably
4
necessary for:
5
(a) the enforcement of the criminal law; or
6
(b) the enforcement of a law imposing a pecuniary penalty; or
7
(c) the protection of the public revenue.
8
Disclosure
9
(2) The Chair of the Regulator may disclose that protected information
10
to:
11
(a) a Department, agency or authority of the Commonwealth, a
12
State or a Territory; or
13
(b) an Australian police force;
14
whose functions include that enforcement or protection, for the
15
purposes of that enforcement or protection.
16
(3) If an official of the Regulator is authorised by the Chair of the
17
Regulator, in writing, for the purposes of this section, the official
18
may disclose that protected information to:
19
(a) a Department, agency or authority of the Commonwealth, a
20
State or a Territory; or
21
(b) an Australian police force;
22
whose functions include that enforcement or protection, for the
23
purposes of that enforcement or protection.
24
Secondary disclosure and use
25
(4) A person commits an offence if:
26
(a) the person is, or has been, an employee or officer of:
27
(i) a Department, agency or authority of the
28
Commonwealth, a State or a Territory; or
29
(ii) an Australian police force; and
30
Part 3 Secrecy
Section 55
32 Clean Energy Regulator Bill 2011 No. , 2011
(b) protected information has been disclosed under
1
subsection (2) or (3) to the Department, agency, authority or
2
police force, as the case may be; and
3
(c) the person has obtained the information in the person's
4
capacity as an employee or officer of the Department,
5
agency, authority or police force, as the case may be; and
6
(d)
the
person:
7
(i) discloses the information to another person; or
8
(ii) uses the information.
9
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
10
(5) Subsection (4) does not apply if:
11
(a) the disclosure or use is with the consent of the Chair of the
12
Regulator; and
13
(b) the disclosure or use is for the purpose of:
14
(i) enforcing the criminal law; or
15
(ii) enforcing a law imposing a pecuniary penalty; or
16
(iii) protecting the public revenue.
17
Note:
A defendant bears an evidential burden in relation to a matter in
18
subsection (5) (see subsection 13.3(3) of the Criminal Code).
19
Conditions
20
(6) The Chair of the Regulator may, by writing, impose conditions to
21
be complied with in relation to protected information disclosed
22
under subsection (2) or (3).
23
(7) A person commits an offence if:
24
(a) the person is subject to a condition under subsection (6); and
25
(b) the person engages in conduct; and
26
(c) the person's conduct breaches the condition.
27
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
28
(8) An instrument under subsection (6) is not a legislative instrument.
29
Secrecy Part 3
Section 56
Clean Energy Regulator Bill 2011 No. , 2011 33
56 Delegation
1
(1) The Chair of the Regulator may, by writing, delegate any or all of
2
his or her functions and powers under this Part to a member of the
3
Regulator.
4
(2) A delegate must comply with any written directions of the Chair of
5
the Regulator.
6
7
Part 4 Miscellaneous
Section 57
34 Clean Energy Regulator Bill 2011 No. , 2011
Part 4--Miscellaneous
1
2
57 Regulations
3
The Governor-General may make regulations prescribing matters:
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(a) required or permitted by this Act to be prescribed; or
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(b) necessary or convenient to be prescribed for carrying out or
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giving effect to this Act.
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