Dio Wang (WA, Palmer United Party) Share this | Link to this | Hansard source

I move Palmer United Party amendment (1) on sheet 7719 revised:

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

Part 5—Self -generation

Renewable Energy (Electricity) Act 2000

53 Subparagraph 31(2)(b)(ii)

  Omit "used solely", substitute "used predominantly".

54 After subsection 31(2)

  Insert:

  (2A) For the purposes of subparagraph (2)(b)(ii), electricity that is transmitted or distributed is used predominantly for the transmission or distribution of electricity if:

     (a) the primary purpose of generating the electricity is for the use of the end user who generated the electricity; and

     (b) an amount of that electricity, no greater than the threshold amount determined under subsection (2B), is made available for use in relation to one or more services in the public interest.

  (2B) For the purposes of paragraph (2A)(b), the Minister must, by legislative instrument, determine a threshold amount of electricity which can be made available for use in relation to one or more services in the public interest.

  (2C) The Minister must:

     (a) make a determination under subsection (2B) within 3 months of the commencement of this subsection; and

     (b) as far as is practicable, ensure that a determination under that subsection is in force at all times after that determination comes into force.

I am concerned that the Renewable Energy (Electricity) Amendment Bill 2015 does not include provisions to overcome a potentially serious flaw in the RET legislation. The problem arises due to the consequences of incidental uses of electricity under the existing legislation, and has potentially serious impacts in my home state of Western Australia. And I note that comments made by shadow minister Gray in the House debate also asked the government to address this matter.

The issue arises because the concessions available to self-generators of electricity from RET liability only apply where such self-generated electricity is used solely by that person. That said, the law must make provisions for the situation where a small amount of electricity is used by third parties to provide vital community services. The Alcoa facilities in Western Australia provide this incidental power for police communication services, telephone services and for the local government. It is ludicrous that Alcoa should face a substantial penalty for making the electricity available to enable these public services.

The Warburton review also recommended that the issue be addressed. It said:

… the Panel recommends that self-generators should be permitted to supply incidental amounts of electricity to third parties for community services on an otherwise dedicated line while still being eligible for the exemption.

My amendment simply asks the minister that within three months, by a legislative instrument, he must determine a threshold amount of electricity that can be made available for use in relation to one or more services in the public interest.

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

I thank Senator Wang. The government appreciate the intent of Senator Wang's amendment, but we do not agree with the amendment. We believe that implementing full exemptions for emissions-intensive trade-exposed entities addresses, through alternative means, most of the concerns raised about the self-generator provisions and that there is a risk the amendment could lead to some unintended consequences for some businesses. It is the government's view that the entities that generate and use their own electricity can seek exemption from RET liability under strict eligibility conditions to target genuine self-generation. To be exempted, electricity must currently be used within one kilometre of the point of generation or supplied via a dedicated line. The proposed amendment seeks to extend these exemptions by diluting the dedicated line test to allow third parties to be supplied under certain circumstances without voiding the self-generation exemption.

The issue this amendment attempts to deal with tends to be confined to large development projects on remote grids where the self-generator is undertaking an ET activity. Increasing the partial exemptions under the scheme for ET activities to a 100 per cent exemption, as proposed in the government's bill, will provide significant additional relief to these ET businesses. Expanding the self-generator exemption provides little additional benefit to the businesses.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

I thank Senator Wang for his contribution and for putting forward his amendment on the concept of reviewing obligations under the current self-generator exemption arrangements of the RET scheme. While it does have some merit to it, this is really neither the time nor the place to throw new and undebated changes into the RET as it currently has been negotiated and agreed upon. I do take on board the contribution he has made with his amendment, specifically in relation to the self-generator exemption arrangements, but at this point in time, with what we are debating right now, the opposition will not be supporting the amendment.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I am just rising to note that the Australian Greens will not be supporting this amendment either. We do not support further exemptions from the renewable energy target and, as the minister has just explained, most of these operators are being exempted by the government expanding the emissions-intensive trade-exposed exemptions anyway because, hey, they love fossil fuels.

Question negatived.

Nick Xenophon (SA, Independent) Share this | Link to 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.

Simon Birmingham (SA, Liberal Party, Assistant Minister for Education and Training) Share this | Link to 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.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I rise to support this amendment. This amendment effectively would allow public interest enforcement of our laws, which is a principle the Greens and, prior to tonight, this parliament have championed for about 30 years. Given that we have these spurious rules around native forest logging that depend on interpretations of high value, that depend on interpretations of primary purpose and that depend on compliance with RFAs, all of which are very subject to debate, it is crucial that we allow members of the public to apply those tests and hold the government to account in applying those tests. The existing drafting merely allows aggrieved persons to take action. That is an affront to open standing, as I say, a principle I thought we had fought for for 30 years—certainly the Greens have.

In relation to your contention that there would be frivolous litigation, it is the Federal Court which is a cost jurisdiction. No-one in their right mind takes on that level of risk, as the last 30 years of court transcripts will show. There are no flood gates. There are very rarely frivolous actions taken, certainly not in the public interest to protect the environment. People have better things to do with their time and money, like protect the environment. We will be supporting this amendment and look forward to its passing.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

I thank Senator Xenophon for contributing to this legislation in moving his amendment and I acknowledge the contributions made by other senators to this particular amendment and this debate. But based on the agreement that has been reached between the government and the opposition, the opposition will not be supporting this amendment.

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

Could I just get some clarification from the minister in respect of this? Is the minister saying that the Clean Energy Regulator has the power to seek an injunction already and that what I am proposing in this amendment is superfluous?

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

I draw Senator Xenophon's attention to section 154S and division 2 of the act headed 'Injunctions', which provides for certain powers for the regulator and indeed for other aggrieved persons. It is defined as, 'On the application of the regulator or any other aggrieved person, the Federal Court may grant an injunction restraining the person from engaging in certain conduct or requiring the person to undertake certain action.' As I outlined before, there are clear provisions there for the regulator to seek injunctions or aggrieved persons to seek injunctions. Certainly, the government believes that these provisions are appropriate and sufficient at this time, and that there are risks with broadening that definition in the manner in which your amendments would do.

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

I am digging up that section of the act now. My understanding is that in the circumstances that are prescribed in this amendment—for instance, if there were about to be logging of a particular coupe and there was a concern that, under the rules set by this parliament, there would be a breach, can there be an injunction in the circumstances anticipated by this particular amendment? My understanding is that that section 154—subsections (1) and (2)—does not allow for that. Could the minister clarify that?

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

To quote from the existing act:

(1) If a 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 aggrieved person, grant an injunction restraining the person from engaging in the conduct.

So, if it were the belief of a party that a logging activity were in some way going to be in breach of the regulations, then either the regulator or an aggrieved person—which, as I identified before, I understand is interpreted relatively widely by the courts—would be able to seek an injunction against an activity that they believe to be in breach of the regulations or the act.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, I beg to differ on your interpretation of what the courts have found 'aggrieved' to mean. Usually it means a direct proprietary or financial interest, which I am sure a forest logging campaigner would not have. This amendment would ensure that, for example, those who are trying to protect forests would have the ability to enforce the rules that you have been assuring us all night are going to mean that native forest logging is going to be just fine. If you are so confident in that assertion, then let people enforce those rules. Given that you also say, 'Leave it to the regulator,' because unfortunately you seem to believe there is a good track record of enforcing environmental law, where the Auditor-General says there is not, my question for you is: how many enforcement officers does the Clean Energy Regulator have?

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

If officials can turn up that exact figure, I will happily provide it. I am surprised that Senator Waters has such low regard for the Clean Energy Regulator, as seems to be apparent from her question. I think the Clean Energy—

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Do not verbal me. Just answer the question!

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

Senator Waters, your question seemed to be suggesting that they were incapable of upholding this environmental law, like many other regulators are incapable of upholding environmental laws, according to you.

Senator Waters interjecting—

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

We will just have one conversation at a time, if we can.

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

Through you, Chair, I hear the interjections, and I know that there is virtually no area where the Australian Greens would not like to see more public servants in place. But, ultimately, it is about providing effective regulation, and the Clean Energy Regulator does provide effective regulation. The capacity is there, Senator Waters, for a party who may not believe they have standing before the court to petition the Clean Energy Regulator to seek an injunction to bring the matter forward in many other ways that would likely see such action taken, if indeed there were potentially going to be a breach of the regulations or the act.

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

I do not think it is at all fair for the minister to characterise Senator Waters' statements as having low regard for the regulator. She did not say that at all. What she said was that there is a distinct lack of resources on the part of the regulator, and that the regulator cannot be everywhere at all times. It is just a resources issue. I will stand corrected, and I am embarrassed that I have to do this, but I think it is fair to say that the regulator does have the power to seek an injunction. It is the question in this amendment to broaden it to allow someone other than an aggrieved person, as narrowly defined in the case law, to seek an injunction. I apologise for that—I think that puts it in context—and I want to correct that and put it on the record. It is just that this amendment was rolled up with the existing provisions but expanded it, hence the confusion on my part. I want to clear that up and to be accurate in respect of that.

Really, the nub of this amendment is: do you restrict this to the regulator or a narrowly-defined group of persons with a direct commercial interest? Or if a citizen believes that the law is about to be broken then they take the very serious step of seeking an injunction with undertaking as to damages, which can be very, very significant, as well as being hit with a massive costs order, because justice is not cheap in this country. We have a legal system, not a justice system. So there are very significant disincentives. There will not be floodgates of litigation opened, but this enshrines the principle that if, as a citizen, you believe there is going to be a breach of the law, you should be able to enforce it. This would also cut to the issue of any breaches with respect to wind turbines. So it cuts both ways—it is not just about waste, about biomass, but it would also go to the issue of wind farms. So if a citizen believes that there has been a breach, they make an undertaking against the damages—and I would imagine in wind turbines it would be a very significant undertaking against the damages—and if they are sure of their case, then they should not be constrained from taking a case on. I cannot take it any higher than that. But, to me, there is an important principle here of the power of the individual to bring a matter to court to ensure that the law is enforced.

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

To address, at least in part, Senator Waters's question before, I understand there are 330 staff employed by the Clean Energy Regulator. If Senator Waters wants to know the exact breakdown of the roles of those staff, that is something that can be pursued at estimates or elsewhere. But it is a significant statutory body, with a significant resource allocation, able to ensure that it undertakes its functions and upholds the act and regulations that it is charged to uphold.

In relation to Senator Xenophon's points, I suspect we will have to agree to disagree this evening. The government does not believe that, in the context of this legislation, it would be appropriate to open it up for any person or any party who did not necessarily have some connection or some grievance beyond that of an ordinary member of the public to pursue injunctions in this regard. We have a well-funded, well-staffed, well-resourced, well-intentioned and well-legislated regulator in place that is able to take that action. Of course, aggrieved persons are also able to take that action. We think that is the appropriate balance to ensure that, if there a risk of the law being broken or if the law is being broken or has been broken, appropriate action is taken by the appropriate parties.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment on sheet 7728 be agreed to.