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Clean
Energy (Auction of Carbon Units) Determination 2013
FRLI: F2013L00759
Portfolio: Climate Change
Summary of committee view
2.1
The committee seeks
further information as to why it is necessary to publish the names of persons
disqualified from bidding for carbon units at auction (including when the
decision is subject to review) and to ask how this is consistent with the right
to privacy.
Overview
2.2
This instrument establishes
policies, procedures and rules for auctioning carbon units under the Clean
Energy Act 2011.
Compatibility with human
rights
2.3
The instrument
is accompanied by a self-contained statement of compatibility that states that
it engages the right to privacy under article 17 of the International Covenant
on Civil and Political Rights (ICCPR). It notes that the instrument requires
persons to provide personal information to the Regulator for the purpose of
participating in the auctioning of carbon units, but that the 'individual's
information will be regulated and treated in accordance with the secrecy
provisions set out in the Clean Energy Regulator Act 2011 and the Privacy
Act 1988'.
2.4
The committee
notes that a large number of instruments[3]
establishing the regime under the Clean Energy Act 2011 note that they
engage the right to privacy but that as the information is dealt with under the
provisions of the Clean Energy Regulator Act 2011 and the Privacy Act
1988 any limitation on rights are reasonable, necessary and proportionate.
2.5
The committee
would be assisted in its task of scrutinising instruments for compatibility
with human rights if more information could be given in future about the applicable
provisions of these Acts and how they protect the right to privacy (for
example, who has access to the information, how long the information is stored for
and the purposes for which it may be used).
2.6
The statement of
compatibility also notes:
The
Instrument also requires the Regulator to publish on the Regulator’s website,
the name of any person who has been disqualified from bidding in an auction and
if the disqualified person has a Registry account − the name of any
authorised representative for the Registry account (section 41).
It is
possible for a person to apply for a review of the Regulator’s decision to
disqualify a person from bidding in the auction with the consequence that the
publication of a person’s name is also subject to review.[4]
2.7
The statement of
compatibility notes that this engages the right to a fair hearing under article
14 of the ICCPR, and sets out the review mechanisms available under the Clean
Energy Act 2011. The committee is satisfied, based on the reasoning set out
in the statement of compatibility, that the instrument does not raise any
concerns with the right to a fair hearing.
2.8
However, the
committee is concerned that publishing the names on a publicly available website
of any person who has been disqualified from an auction may limit the right to
privacy of that person. No explanation is given as to why it is necessary to
make the names of disqualified person's publicly available. It also appears
that the name would be published on the website as soon as the person is
disqualified, even if a review of the disqualification is underway.
2.9
The
committee intends to write to the Minister for Climate Change, Industry and
Innovation to ask why it is necessary to publish the names of persons
disqualified from bidding at auction (including when the decision is subject to
review) and to ask how this is consistent with the right to privacy.
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