Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to establish the Australian Climate Change Regulatory Authority, and for other purposes
Administered by: PMC (DCC)
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 26 Oct 2009
Introduced HR 22 Oct 2009

2008‑2009

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Australian Climate Change Regulatory Authority Bill 2009

 

No.      , 2009

 

(Climate Change and Water)

 

 

 

A Bill for an Act to establish the Australian Climate Change Regulatory Authority, and for other purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Simplified outline................................................................................ 2

4............ Definitions.......................................................................................... 3

5............ Vacancy in the office of a member of the Authority.......................... 6

6............ Crown to be bound............................................................................. 6

7............ Extension to external Territories......................................................... 6

8............ Extension to exclusive economic zone and continental shelf.............. 7

8A......... Extension to Joint Petroleum Development Area.............................. 7

9............ Application to foreign ships............................................................... 7

Part 2—Australian Climate Change Regulatory Authority                            8

Division 1—Authority’s establishment, functions, powers and liabilities             8

10.......... Australian Climate Change Regulatory Authority............................. 8

11.......... Functions of the Authority................................................................ 8

12.......... Powers of the Authority.................................................................... 8

14.......... Authority’s liabilities are Commonwealth liabilities.......................... 9

15.......... Authority has privileges and immunities of the Crown..................... 9

Division 2—Constitution and membership of the Authority                 10

16.......... Constitution of the Authority.......................................................... 10

17.......... Membership of the Authority.......................................................... 10

18.......... Appointment of members of the Authority..................................... 10

19.......... Period of appointment for members of the Authority..................... 11

20.......... Acting members of the Authority.................................................... 11

Division 3—Terms and conditions for members of the Authority      13

21.......... Remuneration.................................................................................... 13

22.......... Disclosure of interests to the Minister............................................. 13

23.......... Disclosure of interests to the Authority.......................................... 13

24.......... Outside employment........................................................................ 14

25.......... Leave of absence............................................................................... 14

26.......... Resignation....................................................................................... 14

27.......... Termination of appointment............................................................ 15

28.......... Other terms and conditions.............................................................. 15

Division 4—Decision‑making by the Authority                                            16

29.......... Holding of meetings.......................................................................... 16

30.......... Presiding at meetings........................................................................ 16

31.......... Quorum............................................................................................. 16

32.......... Voting at meetings etc....................................................................... 16

33.......... Conduct of meetings......................................................................... 16

34.......... Minutes............................................................................................ 16

Division 5—Delegation                                                                                              18

35.......... Delegation by the Authority............................................................ 18

Division 6—Staff of the Authority etc.                                                               19

36.......... Staff.................................................................................................. 19

37.......... Persons assisting the Authority....................................................... 19

38.......... Consultants....................................................................................... 19

Division 7—Planning and reporting obligations                                           20

39.......... Corporate plan.................................................................................. 20

40.......... Annual report................................................................................... 20

Division 8—Other matters                                                                                      22

41.......... Minister may give directions to the Authority................................ 22

42.......... Chair of the Authority not subject to direction by the Authority on certain matters             22

Part 3—Secrecy                                                                                                                     23

43.......... Secrecy.............................................................................................. 23

44.......... Disclosure or use for the purposes of this Act or a climate change law  24

45.......... Disclosure to the Minister................................................................ 24

46.......... Disclosure to the Secretary etc......................................................... 24

47.......... Disclosure to a Royal Commission.................................................. 25

48.......... Disclosure to certain agencies, bodies and persons.......................... 25

49.......... Disclosure to certain financial bodies............................................... 27

50.......... Disclosure with consent................................................................... 29

51.......... Disclosure of publicly available information.................................... 29

52.......... Disclosure of summaries or statistics............................................... 30

53.......... Delegation......................................................................................... 30

Part 4—Miscellaneous                                                                                                       31

54.......... Regulations....................................................................................... 31

 


A Bill for an Act to establish the Australian Climate Change Regulatory Authority, and for other purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Australian Climate Change Regulatory Authority Act 2009.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Sections 3 to 54

At the same time as section 3 of the Carbon Pollution Reduction Scheme Act 2009 commences.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Simplified outline

                   The following is a simplified outline of this Act:

•      This Act establishes the Australian Climate Change Regulatory Authority.

•      The Authority has such functions as are conferred on it by:

               (a)     the Carbon Pollution Reduction Scheme Act 2009; and

               (b)     the National Greenhouse and Energy Reporting Act 2007; and

               (c)     the Renewable Energy (Electricity) Act 2000.

4  Definitions

                   In this Act:

Authority means the Australian Climate Change Regulatory Authority.

Climate Change Convention means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992, as amended and in force for Australia from time to time.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 2 ([1994] ATS 2). In 2009, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

climate change law means any of the following:

                     (a)  this Act;

                     (b)  the Carbon Pollution Reduction Scheme Act 2009;

                     (c)  regulations under the Carbon Pollution Reduction Scheme Act 2009;

                     (d)  a determination under subsection 103(1) of the Carbon Pollution Reduction Scheme Act 2009;

                     (e)  the National Greenhouse and Energy Reporting Act 2007;

                      (f)  regulations under the National Greenhouse and Energy Reporting Act 2007;

                     (g)  the Renewable Energy (Electricity) Act 2000;

                     (h)  regulations under the Renewable Energy (Electricity) Act 2000;

                      (i)  the Renewable Energy (Electricity) (Charge) Act 2000.

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973.

expert advisory committee has the same meaning as in the Carbon Pollution Reduction Scheme Act 2009.

foreign country includes a region where:

                     (a)  the region is a colony, territory or protectorate of a foreign country; or

                     (b)  the region is part of a foreign country; or

                     (c)  the region is under the protection of a foreign country; or

                     (d)  a foreign country exercises jurisdiction or control over the region; or

                     (e)  a foreign country is responsible for the region’s international relations.

foreign government body means:

                     (a)  the government of a foreign country; or

                     (b)  an agency or authority of a foreign country; or

                     (c)  the government of part of a foreign country; or

                     (d)  an agency or authority of part of a foreign country.

international climate change body means:

                     (a)  a body established under the Climate Change Convention or the Kyoto Protocol; or

                     (b)  a body established by a body mentioned in paragraph (a).

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

Kyoto Protocol means the Kyoto Protocol to the United Nations Framework Convention on Climate Change done at Kyoto on 11 December 1997, as amended and in force for Australia from time to time.

Note:          The text of the Kyoto Protocol is set out in Australian Treaty Series 2008 No. 2 ([2008] ATS 2). In 2009, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

member of the Authority includes the Chair of the Authority.

objectives of the Authority includes:

                     (a)  the specific objectives of the Authority in relation to the Carbon Pollution Reduction Scheme Act 2009 or regulations under that Act; and

                     (b)  the specific objectives of the Authority in relation to the National Greenhouse and Energy Reporting Act 2007 or regulations under that Act; and

                     (c)  the specific objectives of the Authority in relation to the Renewable Energy (Electricity) Act 2000 or regulations under that Act.

official of the Authority means:

                     (a)  a member of the Authority; or

                     (b)  a member of the staff of the Authority; or

                     (c)  a person whose services are made available to the Authority under section 37; or

                     (d)  a person engaged as a consultant under section 38.

protected information means information that:

                     (a)  was obtained after the commencement of this section by a person in the person’s capacity as an official of the Authority; and

                     (b)  relates to the affairs of a person other than the official of the Authority.

Royal Commission has the same meaning as in the Royal Commissions Act 1902.

Secretary means the Secretary of the Department.

staff of the Authority means the staff described in section 36.

State/Territory government body means:

                     (a)  the government of a State or Territory; or

                     (b)  an agency or authority of a State or Territory.

territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973.

United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 31 ([1994] ATS 31). In 2009, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

vacancy, in relation to the office of a member of the Authority, has a meaning affected by section 5.

5  Vacancy in the office of a member of the Authority

                   For the purposes of a reference in:

                     (a)  this Act to a vacancy in the office of a member of the Authority; or

                     (b)  the Acts Interpretation Act 1901 to a vacancy in the membership of a body;

there are taken to be 4 offices of members of the Authority in addition to the Chair of the Authority.

6  Crown to be bound

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

             (3)  The protection in subsection (2) does not apply to an authority of the Crown.

7  Extension to external Territories

                   This Act extends to every external Territory.

8  Extension to exclusive economic zone and continental shelf

                   This Act extends to a matter relating to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf.

8A  Extension to Joint Petroleum Development Area

                   This Act extends to the Joint Petroleum Development Area.

9  Application to foreign ships

                   This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign ships in:

                     (a)  the territorial sea; or

                     (b)  the exclusive economic zone; or

                     (c)  waters of the continental shelf;

in accordance with the United Nations Convention on the Law of the Sea.


 

Part 2Australian Climate Change Regulatory Authority

Division 1Authority’s establishment, functions, powers and liabilities

10  Australian Climate Change Regulatory Authority

                   The Australian Climate Change Regulatory Authority is established by this section.

Note:          In this Act, Authority means the Australian Climate Change Regulatory Authority—see section 4.

11  Functions of the Authority

                   The Authority has the following functions:

                     (a)  such functions as are conferred on the Authority by this Act or a climate change law;

                     (b)  such functions as are conferred on the Authority by any other law of the Commonwealth;

                     (c)  to do anything incidental to or conducive to the performance of any of the above functions.

12  Powers of the Authority

             (1)  The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

             (2)  The powers of the Authority include, but are not limited to, the power to enter into contracts.

             (3)  Any contract entered into by the Authority is to be entered into on behalf of the Commonwealth.

             (4)  Any real or personal property held by the Authority is held for and on behalf of the Commonwealth.

             (5)  Any money received by the Authority is received for and on behalf of the Commonwealth.

             (6)  The Authority cannot hold real or personal property, or money, on trust for a person other than the Commonwealth.

Note:          The Commonwealth may hold real or personal property or money on trust.

             (7)  To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (4).

14  Authority’s liabilities are Commonwealth liabilities

             (1)  Any financial liabilities of the Authority are taken to be liabilities of the Commonwealth.

             (2)  In this section:

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

15  Authority has privileges and immunities of the Crown

                   The Authority has the privileges and immunities of the Crown in right of the Commonwealth.


 

Division 2Constitution and membership of the Authority

16  Constitution of the Authority

             (1)  The Authority:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  must have a seal; and

      (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

             (2)  The seal of the Authority is to be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.

             (3)  All courts, judges and persons acting judicially must:

                     (a)  take judicial notice of the imprint of the seal of the Authority appearing on a document; and

                     (b)  presume that the document was duly sealed.

17  Membership of the Authority

                   The Authority consists of the following members:

                     (a)  a Chair;

                     (b)  at least 2, and not more than 4, other members.

18  Appointment of members of the Authority

             (1)  Each member of the Authority is to be appointed by the Minister by written instrument.

Note:          The member of the Authority is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

             (2)  A person is not eligible for appointment as a member of the Authority unless the Minister is satisfied that the person has:

                     (a)  substantial experience or knowledge; and

                     (b)  significant standing;

in at least one of the following fields:

                     (c)  economics;

                     (d)  industry;

                     (e)  energy production and supply;

                      (f)  energy measurement and reporting;

                     (g)  greenhouse gas emissions measurement and reporting;

                     (h)  greenhouse gas abatement measures;

                      (i)  financial markets;

                      (j)  trading of environmental instruments.

             (3)  The Chair of the Authority holds office on a full‑time basis.

             (4)  A member of the Authority (other than the Chair) may hold office on either a full‑time or a part‑time basis.

19  Period of appointment for members of the Authority

                   A member of the Authority holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          For re‑appointment, see subsection 33(4A) of the Acts Interpretation Act 1901.

20  Acting members of the Authority

Acting Chair of the Authority

             (1)  The Minister may appoint a person to act as the Chair of the Authority:

                     (a)  during a vacancy in the office of the Chair of the Authority (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chair of the Authority:

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Acting member of the Authority (other than the Chair of the Authority)

             (2)  The Minister may appoint a person to act as a member of the Authority (other than the Chair of the Authority):

                     (a)  during a vacancy in the office of a member of the Authority (other than the Chair of the Authority), whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when a member of the Authority (other than the Chair of the Authority):

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Eligibility

             (3)  A person is not eligible for appointment to act as:

                     (a)  the Chair of the Authority; or

                     (b)  a member of the Authority (other than the Chair of the Authority);

unless the person is eligible for appointment as a member of the Authority.

Note:          See subsection 18(2).

Validation

             (4)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901.


 

Division 3Terms and conditions for members of the Authority

21  Remuneration

             (1)  A member of the Authority is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a member of the Authority is to be paid the remuneration that is prescribed by the regulations.

             (2)  A member of the Authority is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

22  Disclosure of interests to the Minister

                   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 conflict or could conflict with the proper performance of the member’s functions.

23  Disclosure of interests to the Authority

             (1)  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.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the knowledge of the member of the Authority.

             (3)  The disclosure must be recorded in the minutes of the meeting of the Authority.

             (4)  Unless the Authority otherwise determines, the member of the Authority:

                     (a)  must not be present during any deliberation by the Authority on the matter; and

                     (b)  must not take part in any decision of the Authority with respect to the matter.

             (5)  For the purposes of making a determination under subsection (4), the member of the Authority:

                     (a)  must not be present during any deliberation of the Authority for the purpose of making the determination; and

                     (b)  must not take part in making the determination.

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting of the Authority.

24  Outside employment

             (1)  A full‑time member of the Authority must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

             (2)  A part‑time member of the Authority must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

25  Leave of absence

             (1)  A full‑time member of the Authority has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant leave of absence, other than recreation leave, to a full‑time member of the Authority on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (3)  The Chair of the Authority may grant leave of absence to a part‑time member of the Authority on the terms and conditions that the Chair determines.

26  Resignation

             (1)  A member of the Authority may resign his or her appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

27  Termination of appointment

             (1)  The Minister may terminate the appointment of a member of the Authority for misbehaviour or physical or mental incapacity.

             (2)  The Minister may terminate the appointment of a member of the Authority if:

                     (a)  the member:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  if the member is a full‑time member—the member engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 24); or

                     (c)  if the member is a part‑time member—the member engages in paid employment that conflicts or may conflict with the proper performance of his or her duties (see section 24); or

                     (d)  the member fails, without reasonable excuse, to comply with section 22 or 23; or

                     (e)  the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority.

28  Other terms and conditions

                   A member of the Authority holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.


 

Division 4Decision‑making by the Authority

29  Holding of meetings

             (1)  The Authority is to hold such meetings as are necessary for the performance of its functions.

             (2)  The Chair of the Authority may convene a meeting at any time.

30  Presiding at meetings

             (1)  The Chair of the Authority presides at all meetings at which he or she is present.

             (2)  If the Chair of the Authority is not present at a meeting, the members of the Authority present must appoint one of themselves to preside.

31  Quorum

                   At a meeting of the Authority, 2 members of the Authority constitute a quorum.

32  Voting at meetings etc.

             (1)  At a meeting of the Authority, a question is decided by a majority of the votes of members of the Authority present and voting.

             (2)  The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

33  Conduct of meetings

                   The Authority may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note:          Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

34  Minutes

                   The Authority must keep minutes of its meetings.


 

Division 5Delegation

35  Delegation by the Authority

             (1)  The Authority may, by writing, delegate any or all of its functions and powers to:

                     (a)  a member of the Authority; or

                     (b)  a person who is:

                              (i)  a member of the staff of the Authority; and

                             (ii)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.

             (2)  A delegate must comply with any written directions of the Authority.

             (3)  Subsection (1) does not apply to:

                     (a)  a power to make, vary or revoke a legislative instrument; or

                     (b)  a power conferred by section 186 of the Carbon Pollution Reduction Scheme Act 2009.

Note:          Section 186 of the Carbon Pollution Reduction Scheme Act 2009 deals with windfall gain declarations.


 

Division 6Staff of the Authority etc.

36  Staff

             (1)  The staff of the Authority are to be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Chair of the Authority and the staff of the Authority together constitute a Statutory Agency; and

                     (b)  the Chair of the Authority is the Head of that Statutory Agency.

37  Persons assisting the Authority

                   The Authority may also be assisted:

                     (a)  by officers and employees of Agencies (within the meaning of the Public Service Act 1999); or

                     (b)  by officers and employees of authorities of the Commonwealth; or

                     (c)  by officers and employees of a State or Territory; or

                     (d)  by officers and employees of authorities of a State or Territory;

whose services are made available to the Authority in connection with the performance of any of its functions.

38  Consultants

             (1)  The Authority may engage persons having suitable qualifications and experience as consultants to the Authority.

             (2)  The consultants are to be engaged on the terms and conditions that the Authority determines in writing.


 

Division 7Planning and reporting obligations

39  Corporate plan

             (1)  The Authority must prepare a corporate plan at least once each 3‑year period and give it to the Minister.

             (2)  The plan must cover a 3‑year period.

             (3)  The plan must include details of the following matters:

                     (a)  the objectives of the Authority;

                     (b)  the strategies and policies that are to be followed by the Authority in order to achieve those objectives;

                     (c)  such other matters (if any) as the Minister requires.

             (4)  The Chair of the Authority must keep the Minister informed about:

                     (a)  changes to the plan; and

                     (b)  matters that might significantly affect the achievement of the objectives set out in the plan.

             (5)  The Minister may give the Chair of the Authority written guidelines that are to be used by the Chair in deciding whether a matter is covered by paragraph (3)(c) or (4)(b).

             (6)  A guideline given under subsection (5) is not a legislative instrument.

             (7)  The Authority must ensure that the first corporate plan is prepared within 12 months after the commencement of this section.

40  Annual report

             (1)  The Authority must, as soon as practicable after 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.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  A report under subsection (1) for a financial year must set out:

                     (a)  a description of the objectives of the Authority; and

                     (b)  an assessment of the extent to which the Authority’s operations during that year have achieved those objectives.

             (3)  An assessment under paragraph (2)(b) must be made against performance indicators set out in the report.

             (4)  A report under subsection (1) is in addition to a report under section 105 of the Renewable Energy (Electricity) Act 2000.

             (5)  If a report under section 105 of the Renewable Energy (Electricity) Act 2000 relating to a calendar year (the REE report) has been presented to the Parliament, the report under subsection (1) of this section for the financial year ending on 30 June after the end of the calendar year:

                     (a)  need not deal comprehensively with the working of that Act during so much of the financial year as overlaps the calendar year; and

                     (b)  must include a summary of the REE report, to the extent to which the REE report deals with the working of the Renewable Energy (Electricity) Act 2000 during so much of the financial year as overlaps the calendar year.

             (6)  If this section does not commence at the start of a financial year, the period:

                     (a)  beginning at the commencement of this section; and

                     (b)  ending at the end of 30 June after that commencement;

is taken, for the purposes of this section, to be a financial year.


 

Division 8Other matters

41  Minister may give directions to the Authority

             (1)  The Minister may, by legislative instrument, give directions to the Authority in relation to the performance of its functions and the exercise of its powers.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  A direction under subsection (1) must be of a general nature only.

             (3)  The Authority must comply with a direction under subsection (1).

42  Chair of the Authority not subject to direction by the Authority on certain matters

                   To avoid doubt, the Chair of the Authority is not subject to direction by the Authority in relation to the Chair’s performance of functions, or exercise of powers, under:

                     (a)  the Financial Management and Accountability Act 1997; or

                     (b)  the Public Service Act 1999;

in relation to the Authority.


 

Part 3Secrecy

  

43  Secrecy

             (1)  A person commits an offence if:

                     (a)  the person is, or has been, an official of the Authority; and

                     (b)  the person has obtained protected information in the person’s capacity as an official of the Authority; and

                     (c)  the person:

                              (i)  discloses the information to another person; or

                             (ii)  uses the information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

             (2)  Each of the following is an exception to the prohibition in subsection (1):

                     (a)  the disclosure or use is authorised by section 44, 45, 46, 47, 48, 49, 50, 51 or 52;

                     (b)  the disclosure or use is in compliance with a requirement under:

                              (i)  a law of the Commonwealth; or

                             (ii)  a prescribed law of a State or a Territory.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  Except where it is necessary to do so for the purposes of giving effect to this Act or a climate change law, an official of the Authority is not to be required:

                     (a)  to produce to a court or tribunal a document containing protected information; or

                     (b)  to disclose protected information to a court or tribunal.

44  Disclosure or use for the purposes of this Act or a climate change law

                   An official of the Authority may disclose or use protected information if:

                     (a)  the disclosure or use is for the purposes of this Act or a climate change law; or

                     (b)  the disclosure or use is for the purposes of the performance of the functions of the Authority under this Act or a climate change law; or

                     (c)  the disclosure or use is otherwise in connection with the performance of the official’s duties under this Act or a climate change law; or

                     (d)  the disclosure or use is in connection with giving another official of the Authority access to information for the purposes of, or in connection with:

                              (i)  the performance of the functions of the Authority under this Act or a climate change law; or

                             (ii)  the performance of the duties of the other official of the Authority under this Act or a climate change law.

45  Disclosure to the Minister

                   An official of the Authority may disclose protected information to the Minister.

46  Disclosure to the Secretary etc.

                   An official of the Authority may disclose protected information to:

                     (a)  the Secretary; or

                     (b)  an officer of the Department who is authorised by the Secretary, in writing, for the purposes of this subsection;

if the disclosure is for the purposes of:

                     (c)  advising the Minister; or

                     (d)  facilitating the monitoring of Australia’s compliance with its international obligations under:

                              (i)  the Climate Change Convention; or

                             (ii)  the Kyoto Protocol.

47  Disclosure to a Royal Commission

             (1)  An official of the Authority may disclose protected information to a Royal Commission.

             (2)  The Chair of the Authority may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (1).

             (3)  An instrument under subsection (2) is not a legislative instrument.

48  Disclosure to certain agencies, bodies and persons

Scope

             (1)  This section applies if the Chair of the Authority is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons:

                     (a)  the Australian Bureau of Statistics;

                     (b)  the Australian Communications and Media Authority;

                     (c)  the Australian Competition and Consumer Commission;

                     (d)  the Australian Prudential Regulation Authority;

                     (e)  the Australian Securities and Investments Commission;

                      (f)  the National Competition Council;

                     (g)  the Productivity Commission;

                     (h)  an agency within the meaning of the Freedom of Information Act 1982;

                      (i)  the Australian Energy Regulator;

                      (j)  the Australian Statistician;

                     (k)  the Commissioner of Taxation;

                      (l)  the Australian Competition Tribunal;

                    (m)  the Director of Public Prosecutions;

                     (n)  the Australian Transaction Reports and Analysis Centre;

                     (o)  the Reserve Bank of Australia;

                     (p)  Australian Energy Market Operator Limited (ACN 072 010 327);

                     (q)  the Australian Energy Market Commission established under the Australian Energy Market Commission Establishment Act 2004 of South Australia;

                      (r)  the Independent Market Operator established under the Electricity Industry (Independent Market Operator) Regulations 2004 of Western Australia;

                      (s)  an expert advisory committee;

                      (t)  a State/Territory government body whose functions include a function that corresponds to a function of the Authority;

                     (u)  a foreign government body whose functions include a function that corresponds to a function of the Authority;

                     (v)  an international climate change body;

                    (w)  a prescribed professional disciplinary body;

to perform or exercise any of the functions or powers of the agency, body or person.

Disclosure

             (2)  If an official of the Authority is authorised by the Chair of the Authority, in writing, for the purposes of this section, the official may disclose that protected information to the agency, body or person concerned.

             (3)  The Chair of the Authority may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2).

          (3A)  A person (other than a foreign government body) commits an offence if:

                     (a)  the person is subject to a condition under subsection (3); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct breaches the condition.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (4)  An instrument under subsection (3) is not a legislative instrument.

Prescribed professional disciplinary bodies

             (5)  A person commits an offence if:

                     (a)  the person is:

                              (i)  a prescribed professional disciplinary body; or

                             (ii)  a member of a prescribed professional disciplinary body; and

                     (b)  protected information has been disclosed under subsection (2) to the body; and

                     (c)  the person:

                              (i)  discloses the information to another person; or

                             (ii)  uses the information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

             (6)  Each of the following is an exception to the prohibition in subsection (5):

                     (a)  the disclosure or use is for the purpose of deciding whether or not to take disciplinary or other action;

                     (b)  the disclosure or use is for the purpose of taking that action.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

49  Disclosure to certain financial bodies

Scope

             (1)  This section applies if the Chair of the Authority is satisfied that particular protected information will enable or assist a body corporate that:

                     (a)  either:

                              (i)  conducts, or is involved in the supervision of, a financial market; or

                             (ii)  is a body corporate that holds an Australian CS facility licence; and

                     (b)  is specified in the regulations;

to monitor compliance with, enforce, or perform functions or exercise powers under:

                     (c)  the Corporations Act 2001; or

                     (d)  the business law of a State or Territory; or

                     (e)  the business law of a foreign country; or

                      (f)  the operating rules (if any) of the body corporate.

Disclosure

             (2)  If an official of the Authority is authorised by the Chair of the Authority, in writing, for the purposes of this section, the official may disclose that protected information to the body corporate.

Conditions

             (3)  The Chair of the Authority may, by writing, impose conditions to be complied with by the body corporate and its officers, employees and agents in relation to protected information disclosed to the body corporate under subsection (2).

             (4)  A person commits an offence if:

                     (a)  the person is subject to a condition under subsection (3); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct breaches the condition.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (5)  An instrument under subsection (3) is not a legislative instrument.

Secondary disclosure and use

             (6)  A person commits an offence if:

                     (a)  the person is:

                              (i)  a body corporate; or

                             (ii)  an officer, employee or agent of a body corporate; and

                     (b)  protected information has been disclosed under subsection (2) to the body corporate; and

                     (c)  the person:

                              (i)  discloses the information to another person; or

                             (ii)  uses the information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

             (7)  Each of the following is an exception to the prohibition in subsection (6):

                     (a)  the disclosure or use is with the consent of the Chair of the Authority;

                     (b)  the disclosure or use is for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under:

                              (i)  the Corporations Act 2001; or

                             (ii)  the business law of a State or Territory; or

                            (iii)  the business law of a foreign country; or

                            (iv)  the operating rules (if any) of the body corporate.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Meaning of expressions

             (8)  In this section, the following expressions have the same meanings as in the Corporations Act 2001:

                     (a)  Australian CS facility licence;

                     (b)  financial market;

                     (c)  officer;

                     (d)  operating rules.

50  Disclosure with consent

                   An official of the Authority may disclose protected information that relates to the affairs of a person if:

                     (a)  the person has consented to the disclosure; and

                     (b)  the disclosure is in accordance with that consent.

51  Disclosure of publicly available information

                   An official of the Authority may disclose protected information if it is already publicly available.

52  Disclosure of summaries or statistics

                   An official of the Authority may disclose:

                     (a)  summaries of protected information; or

                     (b)  statistics derived from protected information;

if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.

53  Delegation

             (1)  The Chair of the Authority may, by writing, delegate any or all of his or her functions and powers under this Part to a member of the Authority.

             (2)  A delegate must comply with any written directions of the Chair of the Authority.


 

Part 4Miscellaneous

  

54  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.