Bills Digest no. 178 2008–09
Australian Climate Change Regulatory Authority Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date introduced: 14 May 2009
House: House of Representatives
Portfolio: Climate Change and Water
Commencement: Sections 1 and 2 and anything not covered elsewhere, on
day of Royal Assent. Sections 3 to 54 on same date of commencement as section 3
of the Carbon Pollution Reduction Scheme Act 2009.
Links: The relevant links to the Bill, Explanatory Memorandum and second reading
speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
As it its name implies, the Australian
Climate Change Regulatory Authority Bill 2009 (the Bill) creates the statutory Australian
Climate Change Regulatory Authority (‘the Authority’).
The Authority will oversight
the implementation of the proposed Carbon Pollution Reduction Scheme (CPRS),
including operating the registry, issuing Australian emissions units,
assessing entitlements, issuing obligation transfer numbers and carrying out
other enforcement and administrative functions. It will also administer the
CPRS reporting regime (established under the National Greenhouse and Energy
Reporting Act 2007 and the expanded Renewable Energy Target (RET) scheme, thus
becoming responsible for the current functions of the Greenhouse and Energy
Data Officer and the Office of the Renewable Energy Regulator under the Renewable
Energy (Electricity) Act 2000.
The Australian Climate Change
Regulatory Authority Bill 2009 (‘the Bill’) is part of a suite of bills that
provide for the establishment and administration of the government’s proposed
Carbon Pollution Reduction Scheme (CPRS). Extensive discussion of the CPRS is
contained in the relevant Bills Digest. [1]
The
Bill was referred to the Senate Economics Legislation Committee for inquiry
which reported on 15 June 2009. Details of the inquiry are at http://www.aph.gov.au/senate/Committee/economics_ctte/cprs_2_09/index.htm.
However, neither the provisions of the Bill, nor the proposed Authority itself,
received any significant attention in the Committee’s report, as the focus was
on the CPRS at large.
The
Explanatory Memorandum states that the financial impact of the CPRS is dealt
with in the Explanatory Memorandum for the CPRS Bill.[2]
Definitions
Clause 4 provides definitions of key terms used in
the Bill. Some of the significant terms are:
climate change law means
any of the following:
- this Act
-
the Carbon Pollution Reduction Scheme Act 2009
-
regulations under the Carbon Pollution Reduction Scheme
Act 2009
-
a determination under subsection 103(1) of the Carbon
Pollution Reduction Scheme Act 2009
-
the National Greenhouse and Energy Reporting Act 2007
-
regulations under the National Greenhouse and Energy
Reporting Act 2007
- the Renewable Energy (Electricity) Act 2000
- regulations under the Renewable Energy (Electricity) Act 2000
- the Renewable Energy (Electricity) (Charge) Act 2000.
international climate change body means:
- a body established under the Climate Change Convention or the
Kyoto Protocol, or
- a body established by a body mentioned above.
protected information means
information that:
- was obtained after the commencement of this section by a person
in the person’s capacity as an official of the Authority, and
- relates to the affairs of a person other than the official of the
Authority.
The geographic application of the Act
The Act extends to:
- every external territory (clause 7)
- a matter relating to the exercise of Australia’s sovereign rights
in the exclusive economic zone or the continental shelf (clause 8), and
- the Joint Petroleum Development area (clause 8A), but does
not apply to foreign ships to the extent that it would be inconsistent with the
rights of foreign ships as laid out in the United Nations Convention on the Law
of the Sea (clause 9).
Clause 11 provides that the functions of the
Authority are:
- those that are conferred by this Act, or a climate change law, or
by any other law of the Commonwealth, and
- anything incidental to or conducive to the performance of these
duties.
The current Bill deals mainly with the establishment and
administrative aspects of the Authority. The majority of its operational
functions are conferred by other current or proposed climate change laws,
notably the Carbon Pollution Reduction Scheme Bill.
Clause 12 provides that:
- the Authority has power to do all things necessary or convenient to
be done for or in connection with the performance of its functions,
- the powers of the Authority include, but are not limited to, the
power to enter into contracts.
Curiously there is no clause
13 in the Bill.
Clause 14 provides that the Authority’s liabilities are the
Commonwealth’s liabilities.
Clause 15 provides that the Authority has the privileges and
immunities of the Crown in right of the Commonwealth.
Clause 16 provides that the Authority is a body
corporate which must have a seal and may acquire, hold and dispose of personal
property and may sue and be sued in its corporate name.
Clause 17 provides that the Authority consists of a
Chair and at least two, but no more than four other members.
Clause 18 provides that the Minister is to appoint
members by written instrument. A person is not eligible for appointment as a
member unless the Minister is satisfied that the person has:
- substantial experience or knowledge, and
- significant standing in at least one of the following fields:
- economics
- industry
- energy production and supply
- energy measurement and reporting
- greenhouse gas emissions measurement and reporting
- greenhouse gas abatement measures
- financial markets
- trading of environmental instruments.
The Chair of the Authority holds the office on a full-time
basis, whereas a member of the Authority may hold office on a full or part-time
basis.
Presumably the written instrument by which members are
appointed are not legislative instruments, and hence not subject to explicit Parliamentary
scrutiny and disallowance.
Clause 19 provides that a member of the Authority
holds office for the period specified in the instrument of appointment, but
that period must not exceed five years.
Clause 20 enables the Minister to appoint an acting
chair or member of the Authority where there is a vacancy, or during a period
of absence of the chair/member of the Authority. A person is not eligible to
act in either capacity unless they are eligible for appointment as a member of
the Authority.
Clause 21 deals with the remuneration and allowances of
members of the Authority. Members of the Authority are to be paid such
remuneration as is determined by the Remuneration Tribunal, or if no
determination is in operation, a member is to be paid such remuneration as is
prescribed by the regulations. Allowances are prescribed by regulations.
Clause 22 provides that a member of the Authority must give written
notice to the Minister of all interests, pecuniary or otherwise, that
the member has, or acquires, and that do, or may, conflict with the proper
performance of the member’s functions.
Clause 23 provides that a member of the Authority who has an
interest, pecuniary or otherwise, in a matter being considered or about to be
considered by the Authority must disclose the nature of the interest to a
meeting of the Authority. Notice must be provided in a timely manner and
recorded in the minutes.
Unless the Authority otherwise determines, the member of the
Authority must not be present at any deliberation on the matter by the
Authority and cannot participate in any decision of the Authority with regard
to the matter.
Clause 24 forbids a full-time member of the Authority from engaging
in paid outside employment without Ministerial approval. Any part-time member
of the Authority must not engage in paid employment that conflicts or may
conflict with the proper performance of their duties.
Clause 27 enables the Minister to terminate the appointment of a
member of the Authority for misbehaviour or physical or mental incapacity.
- The Minister may also terminate the appointment of a member of
the Authority if the member:
- becomes bankrupt, or
- applies to take the benefit of any law for the relief of bankrupt
or insolvent debtors, or
- compounds with his or her creditors, or
- makes an assignment of his or her remuneration for the benefit of
his or her creditors, or
- breaches the requirements of clause 24, or
- fails to comply, without reasonable excuse, the requirements of
clauses 22 or 23, or
- the member is absent (except on leave of absence) for three
consecutive meetings of the Authority.
The Authority may convene a
meeting at any time and is to hold meetings as necessary for the performance of
its functions (clause 29). The Chair is to preside over the meeting if
they are present, otherwise the members of the Authority must appoint one of
themselves to preside (clause 30). Meetings must be minuted (clause
34).
Two members of the Authority
constitute a quorum (clause 31) and questions are decided by a majority
of votes, but the person presiding has a casting vote where there is an
equality of votes (clause 32).
The Authority may, in writing, delegate any of its functions
and power to a member of the Authority, or to a SES (or acting SES) employee of
the Authority. The delegate is obliged to exercise those powers or functions in
compliance with any directions of the Authority. However, the delegation does
not apply to the power to vary or revoke a legislative instrument, or a power
under section 186 of the CPRS Act (clause 35).
Clause 36 provides that the staff of the Authority are to be
engaged under the Public Service Act 1999.
Clause 37 provides a list of persons who may provide
assistance to the Authority in connection with the performance of any of its
functions.
Clause 38 provides that the Authority may engage
suitably qualified consultants who are to be employed on terms and conditions
that the Authority determines in writing.
Clause 39 mandates that the Authority is under an
obligation to develop a corporate plan at least once every three years which
covers a three year period, defines the key objectives of the Authority and
outlines the strategies to be pursued by the Authority in achieving those
stated objectives. The first corporate plan must be prepared within 12 months
after the commencement of this section of the Act.
The Chair of the Authority must keep the Minister abreast of
changes to the plan and matters that may significantly affect the achievement
of the plan’s objectives.
Clause 40 provides that the Authority must, as soon
as practicable at the end of each financial year, prepare and give to the
Minister for presentation to the Parliament, a report on its operations during
that year. Basic mandatory requirements for the contents of the annual report
are also outlined.
Clause 41 enables the Minister, by legislative
instrument, to give directions to the Authority in relation to performance of
its functions and exercise of powers, which the Authority must comply. These
directions must be of a general nature only.
Given the potential breadth, depth and sensitivity of
commercial information that is expected to be collected by such a scheme,
effective protection of such information and penalties for unauthorised use and
disclosure are essential.
Clause 43 makes in an offence for a person who is or
has been an official of the Authority to make unauthorised use or disclosure of
‘protected information’ obtained in their capacity as an official, unless one
of the one of the exceptions applies. The maximum penalty is 2 years
imprisonment or 120 penalty unit points ($13,200), or both.
In broad terms, the exceptions
(circumstances in which protected information can be disclosed or used) are:
- disclosure or use for the purposes of the Act or a climate change
law (clause 44)
- disclosure to the Minister (clause 45)
- disclosure to the Secretary of the Department of Climate Change
(or person authorized by the Secretary) for defined purposes (clause 46)
- disclosure to a Royal Commission (clause 47)
- disclosure to certain agencies, bodies and persons, where the
Chair of the Authority is satisfied it will ‘enable or assist’ any of the
listed agencies, bodies and persons to perform or exercise their relevant
functions or powers (clause 48)
- disclosure to certain financial bodies (clause 49)
- disclosure with consent (clause 50)
- disclosure of publicly available information (clause 51)
- disclosure where summaries or statistics derived from the
information are released and this is not likely to enable identification of a
person (clause 52)
The Bill also provides for secondary disclosure offences in
certain cases, so that once information has been disclosed pursuant to one of
the exceptions above, a breach of the conditions under which it was provided by
the Authority may constitute an offence. The maximum penalty is 2 years
imprisonment or 120 penalty unit points ($13,200), or both.
Clause 53 enables the Chair of the Authority to
delegate their powers or functions under Part 3 of the Act to any member
of the Authority. A person to whom such a delegation is made is obliged to
exercise those powers or functions in compliance with any directions given by
the Chair.
Clause
54 provides that
the Governor-General may make regulations prescribing matters:
required or permitted by the Act to be prescribed, or
necessary or convenient to be prescribed for carrying out or
giving effect to the Act.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2404.
Juli Tomaras
22 June 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
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