(b) such functions as are conferred on the Regulator by any other law of the
Commonwealth;
(c) to do anything incidental to or conducive to the performance of any of the above
functions.
The Regulator administers legislation, listed in Attachment A, that:
- encourages the use of clean energy,
- encourages the generation of electricity from renewable sources,
- provides for the reporting and dissemination of information related to greenhouse gas
emissions, greenhouse gas projects, energy consumption and energy production of
corporations,
- provides for projects to remove carbon dioxide from the atmosphere and projects to avoid
emissions of greenhouse gases, and
- provides for the Registry.
The
Renewable Energy (Electricity) Act 2000 was formerly administered by the Office of the
Renewable Energy Regulator (ORER), whose responsibilities were transferred to the CER by
the
Clean Energy Regulator Act 2011 on 2 April 2012. ORER was previously considered an
enforcement agency under the TIA Act and relied on the use of telecommunications
information to administer the
Renewable Energy (Electricity) Act 2000,
undertake
investigations and has used such information as evidence in a criminal prosecution of an
offence under this Act.
In addition to the administration of the
Renewable Energy (Electricity) Act 2000, the
Regulator will issue, and oversight transactions in, tradeable emissions units with a value of
over $25 billion during the first three years of operation. The Registry will be used to issue,
record legal title over, and track the transfer of these units.
(b) The laws administered by the Clean Energy Regulator carrying a range of enforcement
powers, ranging from administrative penalties to criminal sanctions for dishonest or
fraudulent behaviour:
-
administrative and late payment penalties
-
relinquishment orders
-
enforceable undertakings
-
infringement notices
-
civil penalties
-
criminal penalties
Specific section numbers relating to offences imposing a pecuniary penalty or a criminal
sanction are provided in Attachment B.
Additionally, the carbon price mechanism is designed to raise revenue through placing a
liability on the carbon emissions of certain entities covered by the legislation. The provisions
and offences within the
Clean Energy Act 2011 serve to protect the public revenue. The
Regulator may seek to authorise the disclosure of telecommunications data to protect the
public revenue in accordance with this legislation.
Please detail how telecommunications data will be of assistance to the requesting agency
For example, please provide examples of why your agency seeks access to telecommunications data and how it will be
used to enforce a criminal law, a law imposing a pecuniary penalty or protect the public revenue.
In the event of an alleged, potential and apparent breach of climate change law that carries a
criminal or pecuniary penalty, telecommunications data may be sought to substantiate the breach,
or for the purposes of collecting evidence to prove or disprove the offence. Examples of how
telecommunication information will be applied to CER legislation include:
-
Section 24B of the
Renewable Energy (Electricity) Act 2000 provides a pecuniary penalty
when false information pertaining to the installation of solar water heaters or small
generation units is supplied to another person and this causes the creation of small-scale
technology certificates under the Renewable Energy Target. If it was suspected that an
entity had provided false information through a telephone system (e.g. by fax or the
internet) for the purpose of improperly creating small-scale technology certificates,
telecommunications data, such as subscriber details or call charge records, may be
sought to identify the source of this false information and obtain evidence to prove the
commission of this offence.
-
Section 23 of the
Australian National Register of Emissions Units Act 2011 provides that
it is an offence to make an entry in the Registry, or cause an entry to be made in the
Registry, knowing that the entry is false. This offence, punishable by imprisonment for 7
years or 2,000 penalty units, or both, includes hacking into the registry and moving
Australian carbon credit units from account to account, or making entries for non-
existent units (including counterfeit units). Telecommunications data may be sought by
the CER to obtain information pertaining to the source of false instructions, assist in
identifying the entity involved and obtain evidence to prove the commission of this
offence.
-
Section 273(1)-(3) of the
Clean Energy Act 2011 provides that it is an offence to enter
into a scheme to avoid an existing liability to pay a unit shortfall charge. This offence is
punishable by imprisonment for 10 years or 10,000 penalty units, or both. Such an
offence is likely to involve a number of persons or organisations. Telecommunications
data, such as call charge records, may be sought by the CER to obtain information
pertaining to communication that had been exchanged between the parties concerned,
to progress investigative lines of inquiry and obtain evidence to prove the commission of
this offence.
Attachment A – Clean Energy Regulator legislation
Clean Energy Regulator Act 2011
Clean Energy Act 2011
Clean Energy (Charges—Excise) Act 2011
Clean Energy (Charges—Customs) Act 2011
Clean Energy (Unit Issue Charge—Auctions) Act 2011
Clean Energy (Unit Issue Charge—Fixed Charge) Act 2011
Clean Energy (Unit Shortfall Charge—General) Act 2011
Clean Energy (International Unit Surrender Charge) Act 2011
Carbon Credits (Carbon Farming Initiative) Act 2011
National Greenhouse and Energy Reporting Act 2007
Renewable Energy (Electricity) Act 2000
Renewable Energy (Electricity) (Large-scale Generation Shortfall Charge) Act 2000
Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010
Australian National Registry of Emissions Units Act 2011
Attachment B – Primary Clean Energy Regulator legislation - provisions containing pecuniary penalties or criminal sanctions
Clean Energy Act 2011
Civil penalties and amounts
Clause
Description
Maximum Amount
47(1)
Notification of change of name or address of OTN holder
500 penalty units (currently $55,000) for a corporation
100 penalty units (currently $11,000) for any other person
63
Misuse of OTN
(1)-(2)
66
Notification of mandatory designated JVs
(1), (2),
(3), (4)
71A
Notification of mandatory designated JVs
151
Compliance with JCP reporting and record-keeping requirements
(1)-(3)
10,000 penalty units (currently $1.1 million) for a corporation
218
Notification of significant holding — controlling corporation of a
(2), (4)
group
2,000 penalty units (currently $220,000) for any other person
219
Notification of significant holding — non-group entity
(2), (4)
221
Regulator may obtain information and documents
(4), (5)
227
Record-keeping requirements — general
(2), (3)
228
Record-keeping requirements — quotation of OTN
(2), (3)
64
Quotation of bogus OTN
Section 64(1) or (2) – three times the total benefit received by a corporation
(1)-(4)
Section 64(3) or (4) – 500 penalty units (currently $55,000) for a corporation
Section 64(3) or (4) – 100 penalty units (currently $11,000)
248(1)
Civil penalties for executive officers of bodies corporate
2,000 penalty units (currently $220,000) for an individual
Continuing civil penalties and amounts
Clause
Description
Maximum Daily Amount
47(1) and
Notification of change of name or address of OTN holder
25 penalty units (currently $2,750) for a corporation
(2)
5 penalty units (currently $550) for any other person
66(1),
Notification of a mandatory designated JV
(2),(3), (4)
71A(1)
Notification of a declared designated JV
151(1)
Compliance with JCP reporting and record-keeping requirements
500 penalty units (currently $55,000) for a corporation
100 penalty units (currently $11,000) for any other person
218(2)
Notification of significant holding — controlling corporation of a
group – notice requirement
219(2)
Notification of significant holding — non-group entity – notice
requirement
221(4)
Regulator may obtain information and documents – compliance with
1,000 penalty units (currently $110,000) for a corporation
notice
200 penalty units (currently $22,000) for any other person
Offences and criminal sanctions
Clause
Description
Maximum Sanction
62
False or misleading declarations under clause 61(4)
Imprisonment for 12 months
231
Identity cards for inspector – failure to return
1 penalty unit (currently $110)
235
Inspector may ask questions and seek production of documents –
Imprisonment for 6 months or 30 penalty units (currently $3,300), or both
failure to comply
244
Occupier to provide inspector with facilities and assistance
30 penalty units (currently $3,300)
273(5),
Scheme to avoid liability to pay unit shortfall charge or administrative
274(5),
penalty – objective purpose
275(5)
Imprisonment for 3 years or 850 penalty units (currently $93,500) or both
and
276(5)
273(1)-
Scheme to avoid liability to pay unit shortfall charge or administrative
Imprisonment for 10 years or 10,000 penalty units (currently $1.1 million) or both
(3),
penalty– intention, knowledge or belief
Clause
Description
Maximum Sanction
274(1)-
(3),
275(1)-
(3),
276(1)-
(3)
Carbon Credits (Carbon Farming Initiative) Act 2011
Civil penalties and amounts
Clause
Description
Maximum Amount
76 (1,2
Contravene requirements for first reporting period - Contraventions
11)
78 (2,3)
Notification requirement—ceasing to be the project proponent for an
eligible offsets project otherwise than because of death - Notification/
Ancillary contraventions
79 (2,3)
Notification requirement—death of the project proponent for an
eligible offsets project - Notification/ Ancillary contraventions
80 (2,3)
Notification requirement—methodology determinations - Notification/
Ancillary contraventions
81 (2,3)
Notification requirement-- natural disturbances - Notification/Ancillary
contraventions
82 (2,3,
Notification requirement—reversal of sequestration due to conduct of
5)
another person
- Notification/Ancillary contraventions
83 (2,3)
Notification requirement—project becomes inconsistent with a
Body corporate: penalty must not exceed 10,000 penalty units for each
regional natural resource management plan
contravention.
- Notification/Ancillary contraventions
Person other than a body corporate: penalty must not exceed 2,000 penalty units
84 (2,3)
Notification requirement—recognised offsets entities
for each contravention.
- Notification/Ancillary contraventions
85 (5,6)
Regulations may impose notification requirements
- Requirement/ Ancillary contraventions
Administrator may obtain information or documents -
185 (4,5)
Requirement:Compliance/Ancillary contraventions
Record-keeping requirements—general - Requirements/Ancillary
191 (2,3) contraventions
Record-keeping requirements—preparation of offsets report -
192 (3.4)
Requirements/ Ancillary contraventions
Record-keeping requirements—methodology determinations -
193 (2,3)
Requirements/ Ancillary contraventions
Project monitoring requirements—methodology determinations -
194 (2,3)
Requirements/ Ancillary contraventions
214
(4,5,6)
Compliance audits - Audit/ Ancillary contraventions
Clause
Description
Maximum Amount
215 (3,4)
Other audits - Audit/Ancillary contraventions
Civil penalties for executive officers of bodies corporate -
217 (1)
Contravention of civil penalty provision
Offences and criminal sanctions
Clause
Description
Maximum Sanction
270 (1)
Secrecy - Disclosure
Disclosure to certain persons and bodies - Secondary disclosure and
276 (4)
use
276 (7)
Disclosure to certain persons and bodies - Conditions
277 (4)
Disclosure to certain financial bodies - Secondary disclosure and use
277 (7)
Disclosure to certain financial bodies - Conditions
Disclosure for purposes of law enforcement- protected Administrator
Imprisonment for 2 years or 120 penalty units, or both.
282 (4)
information - Secondary disclosure and use
Disclosure for purposes of law enforcement- protected Administrator
282 (6)
information - Conditions
Disclosure for purposes of law enforcement—protected DOIC
283 (4)
information - Secondary disclosure and use
Disclosure for purposes of law enforcement—protected DOIC
283 (6)
information - Conditions
Scheme to avoid existing liability to pay administrative penalty
234 (5)
- Objective purpose
Imprisonment for 3 years or 850 penalty units, or both.
Scheme to avoid future liability to pay administrative penalty -
235 (5)
Objective purpose
Scheme to avoid existing liability to pay administrative penalty
234 (1)
- Intention
Scheme to avoid existing liability to pay administrative penalty
234 (3)
- Knowledge or belief
Imprisonment for 7 years or 2,000 penalty units, or both.
Scheme to avoid future liability to pay administrative penalty -
235 (1)
Intention
Scheme to avoid future liability to pay administrative penalty -
235 (3)
Knowledge or belief
Australian National Registry of Emissions Units Act 2011
Civil penalties and amounts
Clause
Description
Maximum Amount
26 (1)
Use and disclosure of information obtained from the Registry - Use
For a body corporate, must not exceed 500 penalty units for each contravention:
Use and disclosure of information obtained from the Registry –
for a non-body corporate, must not exceed 100 penalty units for each
26 (2)
Disclosure
contravention
Use and disclosure of information obtained from the Registry -
26 (5)
Ancillary contraventions
27 (4)
Regulations about the Registry - Requirement
For a body corporate, must not exceed 10,000 penalty units for each
contravention: for a non-body corporate, must not exceed 2,000 penalty units for
27 (5)
Regulations about the Registry - Ancillary contraventions
each contravention.
Offences and criminal sanctions
Clause
Description
Maximum Sanction
23 Making a false entry in the Registry - (blank)
Imprisonment for 7 years or 2,000 penalty units, or both.
24 Falsified documents - (blank)
Imprisonment for 12 months or 60 penalty units, or both.
National Greenhouse and Energy Reporting Act 2007
Civil penalties and amounts
Clause
Description
Maximum Amount
58 (2)
Identity cards
1 penalty unit
61 (3)
Authorised officer may request persons to answer questions
10 penalty units
69 (2)
Occupier to provide authorised officer with all facilities and assistance
10 penalty units
71 (3)
Power to request information
50 penalty units
71 (4)
Power to request information
60 penalty units.
73 (4)
External audits—compliance
250 penalty units
74 (2A)
External audits—other
250 penalty units
74 (3)
External audits—other
250 penalty units
Reports relating to greenhouse gas projects: reduction of greenhouse gas
21 (4)
emissions and removals of greenhouse gases
1,000 penalty units
21A (2)
Reports relating to offsets of greenhouse gas emissions
1,000 penalty units
22 (1)
Records to be kept
1,000 penalty units
73 (5)
External audits—compliance
1,000 penalty units
12 (1)
Applying to register in relation to meeting a threshold
2,000 penalty units
19 (1)
Report to be given to Greenhouse and Energy Data Officer
2,000 penalty units
For an individual—200 penalty units; or otherwise—1,000 penalty units.
22 (2)
Records to be kept
For an individual—400 penalty units; or otherwise—2,000 penalty units.
20 (4)
Liability of other persons to provide certain information
(3) Under section 31, a Court may order a person contravening subsection (1) to
pay a pecuniary penalty not more than the pecuniary penalty the Court could
order a corporation to pay for contravening the civil penalty provision mentioned
47 (1)
Civil penalties for chief executive officers of corporations
in paragraph (1
Offences and criminal sanctions
Clause
Description
Maximum Sanction
23 (1)
Secrecy
Imprisonment for 2 years.
Renewable Energy (Electricity) Act 2000
Civil penalties and amounts
Clause
Description
Maximum Amount
24 (1)
Improper creation of certificates—offences
1 penalty units.
24 (3)
Improper creation of certificates—offences
5 penalty units.
124
Offences related to warrants
10 penalty units.
125A (4)
Regulator may obtain information and documents
20 penalty units.
76 (1)
Offence (Recovery from a third party)
30 penalty units.
78
Offence (Recovery from liquidator)
30 penalty units.
82
Offence (receiver's obligation)
30 penalty units.
86
Offence (Recovery from agent winding up business for non-resident
30 penalty units.
principal)
154 (1)
Failure to provide documents
30 penalty units.
160(7)
Records to be kept and preserved by registered persons, liable entities
30 penalty units
and holders of partial exemption certificates
24A (1)
Improper creation of certificates—civil penalty
The pecuniary penalty for a contravention by an individual of subsection 24A(1)
must not be more than the greater of:
(a) 1 penalty unit for each renewable energy certificate to which the contravention
relates, up to a maximum of 10,000 penalty units; and
(b) 100 penalty units.
The pecuniary penalty for a contravention by a body corporate of subsection 24A(1)
must not be more than the greater of:
(a) 5 penalty units for each renewable energy certificate to which the contravention
relates, up to a maximum of 50,000 penalty units; and
(b) 500 penalty units.
24A (2)
Improper creation of certificates—civil penalty - Ancillary
For a body corporate, not more than 500 penalty units: for an individual, not
contraventions
more than 100 penalty units
Clause
Description
Maximum Amount
24B (1)
False etc. information resulting in improper creation of certificates
under Subdivision B or BA—civil penalty
24B (2)
False etc. information resulting in improper creation of certificates
under Subdivision B or BA—civil penalty - Ancillary contraventions
154N (1)
Civil penalties for executive officers of bodies corporate
The pecuniary penalty for a contravention, by an executive officer of a body
corporate, of subsection 154N(1) must not be more than the maximum pecuniary
penalty that could be imposed on the officer under this section if the officer had
committed the contravention referred to in paragraph 154N(1)(a).
Offences and criminal sanctions
Clause
Description
Maximum Sanction
125E
False or misleading evidence
Imprisonment for 12 months.
127 (1)
Information may be recorded or divulged only for purposes of Act
Imprisonment for 2 years.
154 (3)
Failure to provide documents
Imprisonment for 6 months.