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It should be noted that the name of this Bill as introduced on 22 October
2009 is actually the Australian Climate Change Regulatory Authority
Bill 2009. This Bill is identical to the earlier Bill of the same
name which was first introduced in the House of Representatives on 14
May 2009, passed unamended on 4 June 2009, but then negatived by the Senate
on 13 August 2009.
The addition of the reference ‘[No. 2]’
has been made by the Department of the House of Representatives Table
Office to indicate that the Bill is introduced for a second time.
Bills Digest no. 51 2009–10
Australian Climate Change Regulatory Authority Bill 2009 [No. 2]
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
Concluding comments
Contact officer & copyright details
Passage history
Australian Climate Change Regulatory
Authority Bill 2009 [No. 2]
Date introduced: 22 October 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.[1]
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 [No. 2] (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 original
Bill) was first introduced into Parliament on 14 May 2009 as part of the
11-Bill Carbon Pollution Reduction Scheme (CPRS) package of legislation.
Along with the other CPRS Bills, the original Bill was passed by the House
of Representatives on 4 June, but negatived in the Senate on 13 August
2009.
The content of the current Bill, now titled the Australian Climate Change
Regulatory Authority Bill 2009 [No.2], is identical to the original Bill.
As such, this Digest is unchanged from the Digest produced
in June for the original Bill. For commentary on recent developments regarding
the proposed CPRS, including the reintroduction of the CPRS Bills, see
relevant sections in the Digest on the Carbon Pollution Reduction Scheme
Bill [No. 2] 2009.
At the time of writing, the current
Bill has not been referred to any committee. The original Bill, along
with the others in the CPRS package, was referred to the Senate Standing
Committee on Economics for inquiry and report by 15 June 2009. Details
of the inquiry are at http://www.aph.gov.au/senate/committee/economics_ctte/cprs_2_09/index.htm
The Explanatory Memorandum states that the financial impact of the CPRS
is dealt with in the Explanatory Memorandum for the Carbon Pollution Reduction
Scheme Bill [No. 2] Bill.
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:
- the proposed Australian Climate Change Regulatory Authority Act
2009
- 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 it 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 exceptions applies. The maximum penalty is 2 year’s imprisonment
or 120 penalty units ($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 year’s imprisonment
or 120 penalty units ($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.
Juli Tomaras
29 October 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
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