Clean Energy Regulator Act 2011

The CER itself: The Act creates and governs the body. CER members, staff and consultants are all subject to the secrecy provisions.

Regulated entities under the administered Acts: Companies, individuals and project operators who deal with the CER in its various regulatory functions are affected indirectly. Their information may be protected information. Any leak of that information by CER officials is an offence.

Other government agencies: The Act contains an extensive list of agencies to which the CER may disclose protected information (section 49), including ASIC, ACCC, APRA, ATO, AER, AUSTRAC, the Climate Change Authority and State and Territory government bodies. These bodies may receive CER information to assist their functions.

Financial market bodies: Section 50 allows disclosure to licensed financial market operators and CS facility licensees to assist their monitoring and enforcement functions.

The public: Via the annual corporate plan and performance reports required under the PGPA Act and the CER's planning obligations under Division 7 of Part 2.

Members' governance obligations. Under section 22, members must disclose interests to the Minister under section 29 of the PGPA Act. Full-time members must not engage in outside paid employment without the Minister's approval (section 24). Members must attend meetings without undue absence (section 27(2)(e)).

Secrecy obligations. Under section 43, current and former officials of the CER must not disclose or use protected information unless an exception applies. This obligation is ongoing: it survives the end of a person's engagement with the CER. The two exceptions in section 43(2) are: disclosure authorised by a provision of Part 3; or disclosure required or authorised by a law of the Commonwealth, a State or Territory.

Proceedings in the CER's name. Under section 57A, proceedings relating to the CER's functions may be brought by or against the Commonwealth in the name of the CER.

Planning and reporting. Under Division 7 of Part 2, the CER has obligations around corporate planning and annual performance reports under the PGPA Act framework.

Minister's appointment powers. The Minister appoints all members of the CER (section 18), may appoint acting members (section 20), sets terms and conditions (section 28), and may terminate appointments (section 27).

Chair's information-sharing powers. The Chair of the CER holds the key discretion in the secrecy regime. Under sections 49 and 50, the Chair may authorise officials to disclose protected information to listed agencies, financial market bodies and others if the Chair is satisfied the information will assist those bodies in performing their functions. The Chair may impose conditions on such disclosures (sections 49(3), 50(3)).

Chair's delegation of secrecy powers. Under section 56, the Chair may delegate any or all functions and powers under Part 3 (secrecy) to a CER member.

Regulator's general powers. Under section 13, the CER has power to do all things necessary or convenient for or in connection with the performance of its functions. Under section 15, the CER has the privileges and immunities of the Crown in right of the Commonwealth.

Decision-making. Questions at CER meetings are decided by a majority of members present and voting (section 32(1)). The Chair has a deliberative vote and, in an equality, a casting vote. A quorum is two members (section 31).

Delegation. Under Division 5 (section 35 and related provisions), the CER may delegate functions and powers to officers and employees.

The only offence provisions in this Act are in the secrecy Part.

Section 43 (unauthorised disclosure or use of protected information): 2 years imprisonment or 120 penalty units, or both. This applies to current and former CER officials.

Section 49(4) (breach of conditions on disclosure to agencies): 2 years imprisonment or 120 penalty units, or both.

Section 49(6) (secondary disclosure by prescribed professional disciplinary bodies): 2 years imprisonment or 120 penalty units, or both.

Section 50(4) (breach of conditions on disclosure to financial bodies): 2 years imprisonment or 120 penalty units, or both.

Section 50(6) (secondary disclosure by financial bodies): 2 years imprisonment or 120 penalty units, or both.

Section 55(4) (secondary disclosure by law enforcement recipients of CER information): 2 years imprisonment or 120 penalty units, or both.

Section 55(7) (breach of conditions on law enforcement disclosure): 2 years imprisonment or 120 penalty units, or both.

All secrecy offences use a consistent penalty of 2 years or 120 penalty units. The Criminal Code Act 1995 standard fault elements apply. Under the note to section 43(2), defendants bear an evidential burden in relation to exceptions (Criminal Code section 13.3(3)).

The CER itself (acting as applicant on behalf of the Commonwealth) enforces substantive contraventions under the administered Acts. In Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205, the CER (having taken over from the Renewable Energy Regulator) successfully prosecuted contraventions of the Renewable Energy (Electricity) Act. In Clean Energy Regulator v E Connect Solar & Electrical Pty Ltd [2023] FCA 1082, the CER was confirmed as having been established under section 11 of this Act and brought successful enforcement action against solar installers who falsified small-scale technology certificate claims.

Appointment of members. Members are appointed by the Minister by written instrument (section 18(1)) for periods not exceeding 5 years (section 19). The Chair holds office full-time.

Termination. Under section 27(1), the Minister may terminate for misbehaviour or physical or mental incapacity. Section 27(2) lists further grounds including bankruptcy, unauthorised outside employment, undisclosed interests, and three consecutive unexplained absences.

Meeting procedures. Under section 29(2), the Chair may convene a meeting at any time. Under section 33, the CER may regulate its own proceedings. Decisions are made by majority vote with the Chair having a casting vote.

Secrecy processes. Disclosures of protected information to agencies under section 49 must be authorised by the Chair in writing. Conditions must also be in writing (section 49(3)). These instruments are not legislative instruments (section 49(5)).

Authorised disclosures. Section 56A clarifies that authorisations under the secrecy Part may authorise a specified officer or a person who holds a specified office or position.

CER can be sued in its name. Under section 57A, the CER may sue and be sued in its own name, which facilitates enforcement proceedings and judicial review without naming the Commonwealth directly.

Carbon Credits (Carbon Farming Initiative) Act 2011. The primary Act for Australian carbon credit units and offsets projects. The CER administers this Act. Section 47 allows disclosure of protected information after 7 years for the purpose of developing methodology determinations under that Act.

National Greenhouse and Energy Reporting Act 2007. The framework for mandatory greenhouse gas and energy reporting by large facilities. The CER collects and publishes data under this Act.

Renewable Energy (Electricity) Act 2000. The small-scale and large-scale renewable energy certificate regimes. Enforcement by the CER under this Act has generated the most published case law referencing this Act.

Future Made in Australia (Guarantee of Origin) Act 2024 and New Vehicle Efficiency Standard Act 2024. Recent additions to the CER's administered laws, reflecting expanding regulatory coverage of clean energy and vehicle emissions.

Nature Repair Act 2023. Biodiversity certificate scheme. Section 47A allows disclosure of protected information after 7 years for methodology development.

Public Governance, Performance and Accountability Act 2013. The CER is a listed entity under the PGPA Act. The Chair is the accountable authority. Members' interest disclosure obligations are specified in section 22 by reference to PGPA Act section 29.

Regulatory Powers (Standard Provisions) Act 2014. The definition of "climate change law" includes the Regulatory Powers Act as applied by each of the administered Acts. Monitoring, investigation and civil penalty machinery is exercised under the Regulatory Powers Act framework in each administered Act.

Climate Change Act 2022. Australia's greenhouse gas emissions reduction targets, as used in the definition in section 4, are by reference to the targets in paragraphs 10(1)(a) and (b) of the Climate Change Act.

Corporations Act 2001. Section 50(8) imports definitions from Chapter 7 of the Corporations Act for financial market-related disclosures.

Privacy Act 1988. Sections 47(3) and 47A(2) exclude personal information from the 7-year disclosure exemptions.

Secrecy obligations survive departure. Section 43 applies to persons who "are or have been" officials of the CER. Former staff, members and consultants remain bound. This is particularly relevant for people who leave the CER and move to regulated industry.

The list of disclosure exceptions is exhaustive. Section 43(2) creates two exceptions: authorised by Part 3, or required/authorised by law. Any disclosure outside those two categories is an offence. There is no general public interest or reasonableness exception.

Conditions on agency disclosures bind recipients. When the CER Chair discloses protected information to an agency under section 49 subject to conditions, the recipient agency and its officers are bound by those conditions. A breach carries the same 2-year/120-penalty-unit penalty as the primary offence.

The CER itself has no legal personality. Section 11(1) notes explicitly that the CER does not have a legal identity separate from the Commonwealth. Legal proceedings are therefore brought by or against the Commonwealth, but under section 57A may be styled in the CER's name.

Functions are entirely derivative. The CER has no substantive regulatory powers in this Act. All powers must be traced to a specific climate change law or biodiversity law. If a function is not conferred by one of those Acts, the CER cannot exercise it. Changes to the list of administered Acts in section 3 directly affect the CER's mandate.

Secondary recipients cannot on-disclose. Financial bodies, law enforcement agencies and professional disciplinary bodies that receive protected information from the CER are subject to secondary disclosure offences (sections 49(6), 50(6), 55(4)). Receiving CER information does not create permission to share it further without the Chair's consent.

Enforcement action. The CER commences proceedings in the Federal Court against a small-scale solar installer for false certificate claims under the Renewable Energy (Electricity) Act. As illustrated in E Connect Solar [2023] FCA 1082, the CER brings the proceedings as applicant. The court confirms the CER was established under section 11 of this Act. The underlying contraventions are under the REE Act, not this Act.

Disclosure to the ATO. The CER receives information about a carbon credit project in connection with a methodology assessment. The ATO wants the information for a tax audit. Under section 49(1)(j) and (2), the Chair of the CER may authorise an official to disclose the information to the Commissioner of Taxation if the Chair is satisfied it will assist the ATO in performing its functions. The Chair may impose conditions on the disclosure. A breach of those conditions by an ATO officer is a criminal offence.

Former CER staff member. A person who worked as a CER analyst for five years leaves to work for a regulated business. Information the analyst obtained as a CER official about competitors' carbon projects is protected information. Using or disclosing that information is an offence under section 43, even though the person is no longer a CER official. No time limit applies.

Financial market monitoring. The CER holds data on large-scale generation certificate (LGC) volumes across generators. An ASX-registered market operator regulated under the Corporations Act wants the data for market surveillance. Under section 50, the Chair may authorise disclosure to that body (if it is specified in the regulations as a prescribed body) subject to conditions. Secondary disclosure by the market operator without Chair consent is also an offence.

New vehicle efficiency enforcement. Following the commencement of the New Vehicle Efficiency Standard Act 2024, the CER takes on functions under that Act. Its mandate to administer that Act flows from the definition of "climate change law" in section 4, which includes the NVES Act, combined with the function-conferring provision in section 12. No amendment to this Act is required when new climate change Acts are added to the definition.