House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Climate Change and Energy Efficiency, the Hon Greg Combet AM MP and the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP)

Chapter 5 Amendments relating to the Clean Energy Finance Corporation

Outline of chapter

5.1 Chapter 5 explains amendments to the ARENA Act and the CER Act concerning the sharing of information between the CEFC and ARENA, and the CEFC and the CER. This Chapter covers Schedule 5.

Context of amendments

5.2 The CEFC will make decisions concerning investments in clean energy technologies and projects. In making these decisions or concerning the ongoing efficacy of investments, the CEFC may require information about specific issues from ARENA or the CER.

5.3 The sharing of relevant and appropriate information between the CEFC and ARENA and the CEFC and the CER is limited to the circumstances spelt out in the ARENA Act and the CER Act respectively and this is not a general ability for the CEFC to obtain or request information.

Summary of new law

5.4 The bill includes a new section 73A in the ARENA Act, which provides that ARENA may disclose information to CEFC if the disclosure will enable or assist the CEFC to perform or exercise any of its functions or powers.

5.5 The bill amends section 49 of the CER Act, to add the CEFC to the list of bodies with which the CER may disclose 'protected information'. Section 49 specifies the circumstances in which the CER may disclose such information and the manner in which this may occur.

Comparison of key features of new law and current law

Detailed explanation of new law

Disclosure of information by ARENA

5.6 ARENA may disclose information to the CEFC, if the disclosure will enable or assist the CEFC to perform or exercise any of its functions or powers. This will facilitate the sharing of information between ARENA and the CEFC and ensure the two have a close working relationship. [Schedule 5, item 1, section 73A, ARENA Act]

Disclosure of information by the CER

5.7 The CER may disclose protected information to the CEFC in accordance with the requirements of section 49 of the CER Act (which is described below). [Schedule 5, item 2, section 49(1), CER Act]

5.8 Information obtained by the CER may be commercially sensitive. For example, it could disclose the market share of a corporation, or details of its supply arrangements. Part 3 of the CER Act, including section 49, seeks to ensure that information obtained by the CER is not disclosed unnecessarily or put to unauthorised use. Personal information collected under Part 3 of the CER Act is subject to the Privacy Act 1988 . It should be noted that, under Information Privacy Principle 11.3, a person, body or agency to whom personal information is disclosed shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

5.9 Section 43 of the CER Act provides that it is an offence for a person who is, or has been, an official of the CER to disclose or use 'protected information' - in broad terms, information obtained in an official capacity - unless one of a number of exceptions apply. The penalty for that offence is up to two years' imprisonment or 120 penalty units (currently $13,200), or both. This penalty is the same as applies to a similar offence in secrecy provisions (section 23) of the NGER Act.

5.10 Section 4 of the CER Act defines 'official of the Regulator' broadly, to include not only CER members and staff but also:

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public sector employees (state, territory or Commonwealth) whose services are made available to the CER in connection with the performance of its functions; and

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consultants engaged by the CER.

5.11 In broad terms, the exceptions - that is, the circumstances in which 'protected information' can be disclosed or used - include disclosure to specified bodies listed in subsection 49(1) of the CER Act. The bill amends this list to include the CEFC. [Schedule 5, item 2, section 49(1), CER Act]

Application and transitional provisions

5.12 The amendments to the ARENA Act and the CER Act commence on the same day as section 3 of the CEFC Act (once enacted). Clause 2 of the CEFC Bill provides that clause 3 of that bill will commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day that the CEFC Bill receives the Royal Assent, they commence on the day after the end of that period. [Section 2]