Simon Birmingham (SA, Liberal Party, Assistant Minister for Education and Training) Share this | Hansard source

As with Senator Wong before, I thank Senator Xenophon for the amendment. The government appreciates the intent behind the amendment but does not agree with it. The RET already has a robust enforcement framework with a very wide range of tools for the Clean Energy Regulator to bring entities into compliance with the act and regulations. There are robust market entry criteria, including the fit-and-proper person test. There are powers to suspend registration of participants. There are powers to have enforceable undertakings made. There are civil and criminal penalties.

The framework already includes an injunction power in the form proposed both for the Clean Energy Regulator and another person aggrieved by conduct in breach of the act to enable the Federal Court to grant injunctions, either restraining a person from committing an offence against the RET act or contravening a civil penalty provision, and requiring a person who refuses or fails to do something required by a civil or criminal offence provision of the act or regulations to do whatever they were required to do.

This amendment would expand the range of persons who can seek these injunctions under section 154S to include any person not just aggrieved persons. The term 'aggrieved persons' is not defined by the act. It is used in a range of contexts in legislation. Its purpose is to provide a filter. It is meant to require that someone who brings an action has a grievance beyond that experienced by an ordinary member of the public. I am advised that it is also interpreted rather broadly by the courts.

Generally speaking, this standing requirement is designed to ensure that people seeking injunctions have some connection with the conduct complained of. For example, in relation to administrative law, it concerns people affected by a decision. In the context of the RET, it would include people affected by the conduct alleged to be or likely to be in contravention of the renewable energy act.

The amendment's purpose would be to enable anyone to take action. It would require the courts to consider the standing of people bringing actions. The obligations currently in the renewable energy act and regulations have not been designed with the idea of enforcement by unrelated third parties in mind. It would also mean that people with no connection with the conduct could take action. It could encourage speculative, strategic or mischievous litigation by people with no connection with or who are not affected by a renewable energy project. This change could add regulatory risk to renewable energy projects and ultimately increase the cost of the RET to consumers.

I would also point out to Senator Xenophon that obviously we have had some discussion tonight in relation to the undertakings that Minister Hunt has made with some of the crossbench colleagues. These include establishing a wind farm commissioner, who would be able to help communities to resolve complaints and deal with certain issues and work with relevant state authorities where complaints need to be addressed, which I suspect would provide further assistance in relation to all the existing protections with regard to some of the issues or incidences that you are probably seeking to target through this amendment.