Bills Digest no. 178 2008–09
Australian Climate Change Regulatory Authority Bill
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
Contact officer & copyright details
introduced: 14 May
House: House of Representatives
Portfolio: Climate Change and Water
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
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.
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
The Bill was referred to
the Senate Economics Legislation Committee for inquiry which
reported on 15 June 2009. Details of the inquiry are at
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
Clause 4 provides definitions of key terms used
in the Bill. Some of the significant terms are:
climate change law means any of the
- this Act
- the Carbon Pollution Reduction Scheme Act 2009
- regulations under the Carbon Pollution Reduction Scheme Act
- a determination under subsection 103(1) of the Carbon
Pollution Reduction Scheme Act 2009
- the National Greenhouse and Energy Reporting Act
- regulations under the National Greenhouse and Energy
Reporting Act 2007
- the Renewable Energy (Electricity) Act 2000
- regulations under the Renewable Energy (Electricity) Act
- 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
- 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 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 11 provides that the functions of the
- 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
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
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
- 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
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
Clause 17 provides that the Authority consists
of a Chair and at least two, but no more than four other
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
- substantial experience or knowledge, and
- significant standing in at least one of the following fields:
- 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
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
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
Clause 36 provides that the staff of the
Authority are to be engaged under the Public Service Act
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
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
- disclosure to a Royal Commission (clause
- 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
- disclosure to certain financial bodies (clause
- disclosure with consent (clause 50)
- disclosure of publicly available information (clause
- 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.
54 provides that the Governor-General may make regulations
required or permitted by the Act to be
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.
22 June 2009
Bills Digest Service
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