Clean Energy Act 2011
No. 131, 2011 as amended
Compilation start date: 1 July 2013
Includes amendments up to: Act No. 103, 2013
About this compilation
The compiled Act
This is a compilation of the Clean Energy Act 2011 as amended and in force on 1 July 2013. It includes any amendment affecting the compiled Act to that date.
This compilation was prepared on 12 July 2013.
The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.
Uncommenced provisions and amendments
If a provision of the compiled Act is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.
Application, saving and transitional provisions for amendments
If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes.
Modifications
If a provision of the compiled Act is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.
Provisions ceasing to have effect
If a provision of the compiled Act has expired or otherwise ceased to have effect in accordance with a provision of the Act, details of the provision are set out in the endnotes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Objects
4 Simplified outline
5 Definitions
5A Special meaning of supply—natural gas
6 When supply of natural gas occurs
7 Electronic notice transmitted to the Regulator
8 Crown to be bound
9 Extension to external Territories
10 Extension to exclusive economic zone and continental shelf
11 Extension to Joint Petroleum Development Area
12 Application to foreign ships
Part 2—Carbon pollution cap
13 Simplified outline
14 Carbon pollution cap
15 Disallowance of regulations
16 When regulations must be tabled
17 Default carbon pollution cap for 2015‑16
18 Default carbon pollution cap for a later flexible charge year
Part 3—Liable entities
Division 1—Introduction
19 Simplified outline
Division 2—Direct emitters of greenhouse gases
Subdivision A—General rules
20 Liable entity—person who has operational control of a facility
21 Liable entity—participant in designated joint venture
22 Liable entity—holder of a liability transfer certificate
Subdivision B—Landfill facilities
23 Liable entity for landfill emissions—person who has operational control of a landfill facility
24 Liable entity for landfill emissions—participant in designated joint venture
25 Liable entity for landfill emissions—holder of a liability transfer certificate
Subdivision C—Adjustment of provisional emissions number in relation to a facility in the Joint Petroleum Development Area or the Greater Sunrise unit area
26 Joint Petroleum Development Area—adjustment of provisional emissions number
27 Joint Petroleum Development Area/Greater Sunrise unit area—adjustment of provisional emissions number
28 Greater Sunrise unit area—adjustment of provisional emissions number
Subdivision D—Anti‑avoidance
29 Anti‑avoidance
Subdivision E—Covered emissions from the operation of a facility
30 Covered emissions from the operation of a facility
31 Measurement of covered emissions from the operation of a facility
Subdivision F—Emissions from the…
Overview
The Clean Energy Act 2011 was enacted by the Australian Parliament to establish a mechanism for dealing with climate change in a way that encourages the use of clean energy. The Act aims to give effect to Australia's obligations under the Climate Change Convention and the Kyoto Protocol, and to support the development of an effective global response to climate change by reducing Australia's net greenhouse gas emissions in a flexible and cost-effective manner. The Act sets up a carbon pricing mechanism, which includes a carbon pollution reduction scheme and measures to support jobs and competitiveness in sectors exposed to international competition. The Clean Energy Regulator is responsible for administering the Act, with the Minister for Climate Change playing a key role in guiding its implementation and the Climate Change Authority providing expert advice and conducting periodic reviews of the scheme.
Scope and Application
The Clean Energy Act 2011 is a Commonwealth Act that applies to all persons and entities responsible for greenhouse gas emissions from the operation of facilities, including corporate entities and natural persons who have operational control over facilities in Australia, its external Territories, and in certain areas of its sovereign rights such as the exclusive economic zone and continental shelf. It does not apply to the operation of foreign ships in Australian waters. The Act's primary objective is to implement a carbon pollution reduction scheme to meet Australia's international obligations and support the transition to a low-carbon economy. This is achieved by setting a carbon pollution cap, identifying liable entities responsible for surrendering emissions units, and regulating the issuance and transfer of these units. The Act also establishes the Clean Energy Regulator to administer the scheme, and includes provisions for monitoring, compliance, and enforcement. Exclusions from the Act include emissions from activities such as the operation of landfill facilities that are below a certain threshold, and emissions from the operation of facilities that are covered by other legislative regimes. The Act's application can be extended or modified through subordinate regulations, which are subject to parliamentary disallowance and must be tabled before being enacted. The Act binds the Crown but does not make it liable to pecuniary penalties, except in specific instances outlined in the legislation.
Key Provisions
- The Clean Energy Act 2011, as amended, primarily aims to establish a mechanism to encourage the use of clean energy and manage greenhouse gas emissions in Australia. The Act sets up a carbon pollution reduction scheme that includes a carbon pollution cap, liability for emitting entities, and provisions for the issue and surrender of carbon units. Section 14 allows the Minister to declare a carbon pollution cap through regulations, which must consider Australia's international obligations and recent reports by the Climate Change Authority. Section 20 to 32A define liable entities responsible for covered emissions, including those with operational control of facilities, natural gas suppliers, and participants in designated joint ventures. These entities must surrender eligible emissions units to avoid unit shortfall charges. The Act also includes provisions for the issue and management of obligation transfer numbers (OTN) and liability transfer certificates, which are tools for managing compliance with emissions obligations.
- Obligations under the Act include the requirement for liable entities to report their emissions numbers and surrender the corresponding number of eligible emissions units. The Act imposes civil and criminal penalties for non-compliance. For example, Section 212 mandates an administrative penalty for failing to relinquish carbon units as required, with a late payment penalty for delayed payments. Section 226 to 228A impose record-keeping requirements for certain activities, including the quotation of OTNs and the surrender of carbon units. Furthermore, the Act mandates the publication of information related to liable entities, carbon unit auctions, and other operational aspects by the Clean Energy Regulator.
- Breaches of the Act can result in severe penalties. For instance, Section 265 states that the Regulator can issue an infringement notice for civil penalty provisions, with penalties up to 500 penalty units for certain contraventions. Section 272 to 276 outline offences related to schemes intended to avoid liabilities such as unit shortfall charges and administrative penalties, with penalties including imprisonment for up to 10 years and fines up to 10,000 penalty units. Additionally, executive officers of bodies corporate can be held liable for civil penalty provisions if they fail to prevent contraventions by the corporation, as stated in Section 248. The Act also provides for civil penalty orders, which can be applied for by the Regulator and enforced by the courts, as outlined in Part 17.
- Area of Law
- Climate Change Law
- Environmental Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Commencement Provisions
- Civil Penalty Provisions
- Licensing & Registration
- Reporting & Disclosure Obligations
- Enforcement Powers
- Regulatory Standards
- Prohibited Conduct