Nick Xenophon (SA, Independent) Share this | Hansard source

I move amendment (1) standing in my name on sheet 7728:

(1) Schedule 1, page 15 (after line 2), at the end of the Schedule, add:

Part 5—Injunctions

Renewable Energy (Electricity) Act 2000

53 Subsections 154S(1), (2) and (3)

  Repeal the subsections, substitute:

(1) If a person (the first person) has engaged, is engaging, or is about to engage in any conduct that is or would be:

  (a) an offence against this Act or the regulations; or

  (b) a contravention of a civil penalty provision;

the Federal Court may, on the application of the Regulator or any other person, grant an injunction restraining the first person from engaging in the conduct.

(2) If:

  (a) a person (the first person) has refused or failed, is refusing or failing, or is about to refuse or fail, to do a thing; and

  (b) the refusal or failure is, or would be:

     (i) an offence against this Act or the regulations; or

     (ii) a contravention of a civil penalty provision;

the Federal Court may, on the application of the Regulator or any other person, grant an injunction requiring the first person to do the thing.

(3) The power of the Federal Court to grant an injunction may be exercised:

  (a) whether or not it appears to the Court that the first person intends to engage, or to continue to engage, in conduct of that kind; and

  (b) whether or not the first person has previously engaged in conduct of that kind.

The aim of this amendment is to allow the Clean Energy Regulator or any other person to seek an injunction in certain circumstances—that is, if the person, and that includes the Clean Energy Regulator, believes that someone is about to engage in or is engaging in any conduct that would be an offence against this act or the regulations or a contravention of the civil penalty provisions. It allows an application to be made to the Federal Court, on the application of the regulator or any other person, to grant an injunction restraining the first person from engaging in the conduct.

The purpose of this is to ensure that the regulator has that injunctive power to seek an injunction, and, indeed, any other persons, in the event that it appears that a breach is about to be committed. In order to seek an injunction, you need to be able to give an undertaking as to damages. This is not something that will be used lightly. Giving an undertaking as to damages is a very serious undertaking in order to obtain an injunction. Significant damages can flow if you get it wrong, if the injunction is subsequently lifted and there is economic loss to the party that had the injunction lifted against them. But if there is a strong case, if the regulator thinks it is appropriate—or, indeed, any other person who may have an interest in this or who has a concern about an activity that appears, on the face of it, to be a strong prima facie case that there is going to be an offence against the act or the regulations—then there can be action taken. These circumstances also apply where a person has refused or failed or is refusing or failing to do a thing and that thing would be a breach of the act or regulations or a contravention of the civil penalty provision.

In essence, this amendment allows the regulator or a third party to take action where a civil penalty provision has been contravened or there has been a breach of regulations of the act. If we look at other regulatory regimes such as the ACCC with our competition consumer law, the ACCC does have the power to seek an injunction. As I understand it, ASIC has the power to seek an injunction. Why shouldn't the Clean Energy Regulator, at the very least, have the power to seek an injunction? This is not whether you agree or disagree with what is being proposed on biomass. Under the rules that are being proposed that are likely to pass tonight, if there is a likely breach of those rules, what is wrong with giving the Clean Energy Regulator, or indeed any other person, the right to pursue an injunction, to pursue a remedy? To me, this is a fundamental issue of the rule of law. To emasculate the Clean Energy Regulator, to prevent community groups, individuals or indeed any person to seek an injunction is, to me, quite inadequate.

If all the Clean Energy Regulator can do after the event, when it appears as though there could well have been a serious breach, under the rules proposed by the government if there has been a serious breach the only remedy is to suspend the issuing of the renewable energy certificates. I do not think that is an appropriate remedy and I think this is a fundamental issue in respect of ensuring that the legislation will be enforced. It is another layer of protection if a state regulator—if a state EPA, for instance—does not do so. That is why I would urge my colleagues to seriously consider this amendment.