Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SAFEGUARD MECHANISM (CREDITING) AMENDMENT BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Climate Change and Energy,
the Hon. Chris Bowen MP)
AMENDMENTS TO THE SAFEGUARD MECHANISM (CREDITING)
AMENDMENT BILL 2022
GENERAL OUTLINE
The Safeguard reforms envisage the continued use of Australian Carbon Credit Units
(ACCUs). The recent Independent Review of ACCUs (the ACCU Review) made 16
recommendations to help strengthen the integrity, transparency and provide participants with
greater confidence in the scheme. The Government has accepted all 16 recommendations in
principle.
The proposed amendments to the Safeguard Mechanism (Crediting) Amendment Bill 2022
would amend the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act) to
implement the first stage of the Government's response to the ACCU Review.
The proposed amendments would make the following changes to the CFI Act:
• change the Chair of the Emissions Reduction Assurance Committee from a part-time
office to a full-time office;
o this change would allow the appointment of a new full-time Chair bolstering
the capacity of the Committee to independently analyse and assess the
integrity of methods while the Government consults on the establishment of
the new Carbon Abatement Integrity Committee. Consistent with the
recommendations of the ACCU Review, the Chair would be appointed
through a transparent and merit-based process. The Government intends to
establish an independent secretariat reporting directly to the Chair, once
appointed.
• require the Minister to be satisfied that a methodology determination (or a varied
methodology determination) complies with the offsets integrity standards before the
Minister can make or vary the determination;
o this change would implement an important clarification of the decision-
making requirements for the Minister, as recommendation by the ACCU
Review.
• require the publication of carbon estimation area information (CEAs) and other
information prescribed by the rules.
o this change would implement a key recommendation of the ACCU Review on
improving the transparency of the scheme. CEAs are critical information
necessary to analyse the impacts of relevant projects. The Government intends
to consult on additional information for publishing, to assist with independent
analysis and would implement any additional requirements through the rules.
2
The proposed amendments would bolster the integrity of the ACCU Scheme while the
Government consults on implementation of the remaining recommendations, including the
establishment and role of the new Carbon Abatement Integrity Committee.
FINANCIAL IMPACT STATEMENT
Minor financial implications. The remuneration for the full-time Emissions Reduction
Assurance Committee Chair will be determined by the Remuneration Tribunal.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The proposed amendments to the Bill are compatible with human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. The full Statement of Compatibility with Human Rights
is included in this supplementary explanatory memorandum (Attachment A).
3
NOTES ON AMENDMENTS
Amendment 1 - Clause 2, page 2 (table)
1. Amendment 1 would amend the commencement provision in clause 2 of the Safeguard
Mechanism (Crediting) Amendment Bill 2022 (the Bill) to omit the existing table and
substitute a new table.
2. The new commencement table would have the effect that:
• clauses 1 to 3 of the Bill (and anything in the Bill not elsewhere covered by the table)
would commence the day the Bill receives the Royal Assent;
• Schedule 1, 2 and 3 to the Bill, and Part 1 of Schedule 4 to the Bill, would commence
on the day after the Bill receives the Royal Assent;
• Part 2 of Schedule 4 to the Bill would commence on a date fixed by proclamation or,
if no proclamation is made within 6 months of the Bill receiving the Royal Assent, on
the day after the end of that period.
Amendment 2 - Schedule 4, page 49 (after line 1), after the heading
3. Amendment 2 would insert a new heading at the start of Schedule 4 to the Bill that would
have the effect that existing Schedule 4 would become new Part 1 of Schedule 4.
4. New Part 1 of Schedule 4 to the Bill would consist of:
• the amendments proposed by existing items 1 to 5 of the Bill;
• new item 1A (to be inserted by Amendment 3);
• new items 6 and 7 (to be inserted by Amendment 4);
• new items 8 to 15 (to be inserted by Amendment 5).
5. The amendments in new Part 1 of Schedule 4 to the Bill would commence the day after
the Bill receives the Royal Assent.
6. This amendment is consequential to Amendment 6 which would insert a new Part 2 of
Schedule 4 into the Bill (see below). The amendments in new Part 2 of Schedule 4 would
have a different commencement to the amendments in new Part 1 of Schedule 4.
Amendment 3 - Schedule 4, page 49 (after line 3), before item 1
7. Amendment 3 would insert new item 1A into new Part 1 of Schedule 4 to the Bill.
4
8. This amendment is consequential to the amendments proposed by Amendment 5, which
would, relevantly, insert items 9 to 15 into the Bill. Items 9 to 15 would amend the
Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act) to require the Regulator
to publish on the Emissions Reduction Fund Register (the Register) information about the
carbon estimation areas for eligible offsets projects that are area-based offsets projects.
Item 1A
9. Section 5 of the CFI Act defines key terms for that Act.
10. Item 1A would amend existing section 5 to insert a new definition for carbon estimation
area. A carbon estimation area, in relation to an area-based offsets project, would have
the meaning given by the applicable methodology determination for the project.
Amendment 4 - Schedule 4, page 49 (after line 27), at the end of the Schedule
11. Amendment 4 would insert new items 6 and 7 into new Part 1 of Schedule 4 to the Bill.
12. New items 6 and 7 would make amendments to the CFI Act concerning the requirements
for the Minister to make or vary a methodology determination.
13. Methodology determinations are legislative instruments made by the Minister that:
• apply to specified kinds of offsets projects;
• set out requirements that must be met for such a project to be an eligible offsets
project; and
• set out a method of calculating the carbon dioxide equivalent net abatement amount
for the project in relation to a reporting period.
14. Methodology determinations may also specify other matters that apply to a kind of offset
project covered by the determination, including additionality requirements, crediting
periods, project monitoring requirements and reporting, notification or record-keeping
requirements.
15. The Independent Review of ACCUs (the ACCU Review) made a number of
recommendations in relation to the process for making and varying methodology
determinations. This included the recommendation that, before making or varying a
methodology determination, the Minister should be required to be satisfied that the
determination (or varied determination) complies with the offsets integrity standards. The
offsets integrity standards are set out in section 133 of the CFI Act and are intended to
ensure that, through its methodology determinations, the scheme under the CFI Act
credits genuine and verifiable abatement (including by requiring additionality in offsets
projects) - so that credits are only issued for abatement that would not normally have
occurred and, therefore, provides a genuine environmental benefit.
5
16. Consultation is currently underway with stakeholders in relation to the implementation of
the remaining ACCU Review recommendations, including recommendations relating to
methodology determinations.
17. In the meantime, it is appropriate to amend the CFI Act to ensure the Minister is required
to be satisfied that a proposed methodology determination or proposed variation to a
methodology determination complies with the offsets integrity standards.
Item 6
18. Section 106 of the CFI Act provides for the Minister to, by legislative instrument, make a
methodology determination.
19. Subsection 106(4) of the CFI Act sets out the matters to which the Minister must have
regard in deciding whether to make a methodology determination. This includes whether
the determination complies with the offsets integrity standards.
20. New item 6 would amend existing section 106 of the CFI Act to insert new subsection
106(4A). New subsection 106(4A) would have the effect that the Minister would only be
able to make a methodology determination if the Minister is satisfied that the
determination complies with the offsets integrity standards.
21. This would provide additional assurance and integrity to methodology determinations, as
it would remove the potential for the Minister to be able to make a methodology
determination even if, having considered whether the determination complies with the
offsets integrity standards (under subsection 106(4)), the Minister is not satisfied that the
determination complies with those standards.
Item 7
22. Section 114 of the CFI Act provides for the Minister to, by legislative instrument, vary a
methodology determination. Subsection 114(2) of the CFI Act sets out the matters to
which the Minister must have regard in deciding whether to vary a methodology
determination. This includes whether the varied determination complies with the offsets
integrity standards.
23. New item 7 would amend existing section 114 of the CFI Act to insert new subsection
114(2AA). New subsection 114(2AA) would have the effect that the Minister would only
be able to vary a methodology determination if the Minister is satisfied that the varied
determination complies with the offsets integrity standards.
24. This would provide additional assurance and integrity to methodology determinations, as
it would remove the potential for the Minister to be able to vary a methodology
determination even if, having considered whether the varied determination complies with
6
the offsets integrity standards (under subsection 114(2)), the Minister is not satisfied that
the varied determination complies with those standards.
Amendment 5 - Schedule 4, page 49, at the end of the Schedule (after proposed item 7)
25. Amendment 5 would insert new items 8 to 15 into new Part 1 of Schedule 4 to the Bill.
26. These items would make necessary amendments to the CFI Act to:
• require the publication in the Register of the carbon estimation area or areas for an
eligible offsets project that is an area-based offsets project;
• repeal the power that allows project proponents to request that to, in certain
circumstances, request that project area information for a particular project is not
included in the Register;
• provide a 30-day grace period for project proponents for projects that were declared
eligible offsets projects before the amendments commence (existing projects) to be
able to request that project area or carbon estimation area information for the
particular project is not included in the Register. There would no longer be an ability
for proponents for new projects to request that project area information (or carbon
estimation area information) for the project is not included in the Register;
• require the Regulator to publish additional information that is prescribed in the rules
and that is relevant to Australia's compliance with its obligations under any of the
United Nations Framework Convention on Climate Change (UNFCCC), its Kyoto
Protocol or Paris Agreement, or any other international agreement.
27. The ACCU Review made recommendations that the CFI Act should be amended to
maximise transparency, data access and data sharing, while enabling protection of privacy
and commercial-in-confidence information, to support greater public trust and confidence
in scheme arrangements (see recommendation 4). It specifically noted that the default
should be that data should be made public, including carbon estimation areas (see
recommendation 4.1).
28. Further consultation is being undertaken on mechanisms to support greater transparency
and data access under the scheme. However, in the meantime, requiring carbon estimation
area information (and other information prescribed by the rules) to be published on the
Register would assist in improving transparency around projects and their efficacy in
reducing emissions (and in particular, help to build confidence that relevant offset
projects generate genuine carbon abatement). This, in turn, is intended to address the
ACCU Review's findings that lack of transparency about projects was undermining
public trust in scheme.
Item 8
7
29. Part 12 of the CFI Act deals with the publication of information. Item 8 would amend
existing Part 12 to insert new Division 4A - Information about Australia's international
obligations.
30. New Division 4A would consist of new section 166A. New subsection 166A(1) would
require the Regulator to publish on the Regulator's website any information that is held
by the Regulator and that is specified in rules made for the purposes of new subsection
166A(2). New subsection 166A(2) would have the effect of allowing the rules to specify
information that is required to be published under new subsection 166A(1), provided that
the information is relevant to Australia meeting its obligations under any of the
UNFCCC, Kyoto Protocol, Paris Agreement or any other international agreement.
31. This could include information about projects or credits issued under the scheme which is
a key mechanism for Australia to meet its international climate change obligations under
the UNFCCC.
32. This is consistent with the objects of the CFI Act, which include the objective to remove
greenhouse gases from the atmosphere, and avoid emissions of greenhouse gases, in order
to meet Australia's obligations under any or all of the above-mentioned treaties.
Item 9
33. Section 168 of the CFI Act requires the Register to set out certain specified information
for eligible offsets projects. Paragraph 168(1)(b) requires that, if the project is an area-
based offsets project, the Register must set out the project area or project areas for the
project.
34. Item 9 would amend existing paragraph 168(1)(b) of the CFI Act to include a requirement
that, if the project is an area-based offsets project, the Register must (in addition to setting
out the project area or project areas) also set out the carbon estimation area or carbon
estimation areas for the project. A carbon estimation area would be defined in section 5
of the CFI Act by referencing to the meaning in the applicable methodology
determination for the project (see item 1A).
35. Publishing the carbon estimation areas for an eligible offsets project that is an area-based
offsets project would increase transparency around such projects. Carbon estimation area
information for a project would generally be provided by the project proponent to the
Regulator in an offset report, but may, in some circumstances, also be provided by the
project proponent to the Regulator via other mechanisms as required by the applicable
methodology determination that covers the project (such as at project registration stage).
Item 10
36. Subsection 168(2) of the CFI Act provides that existing paragraph 168(1)(b) is subject to
section 169 of the CFI Act, which provides a process for project proponents to, in certain
8
circumstances, request that project area information for a particular project is not included
in the Register.
37. Item 10 would repeal existing subsection 168(2) of the CFI Act. This amendment is
consequential to the amendment in item 12, which would repeal existing section 169 of
the CFI Act.
Item 11
38. Item 11 would amend existing subsection 168(2A) to omit the words 'of this section'.
This is a drafting style change and would not change the substantive meaning of this
provision.
Item 12
39. Item 12 would repeal section 169 of the CFI Act.
40. Section 169 of the CFI Act provides a process for project proponents to, in certain
circumstances, request that project area information for a particular project is not included
in the Register. On receiving such a request, the Regulator must not publish the relevant
project area information if the Regulator is satisfied that:
• the setting out of the project area or project areas could reasonably be expected to
substantially prejudice the commercial interests of the project proponent or another
person (subparagraph 169(1)(b)(i)); and
• the prejudice outweighs the public interest in the setting out of the project area or
project areas (subparagraph 169(1)(b)(ii)).
41. Following the recommendations of the ACCU Review to maximise transparency, data
access and data sharing, it is considered appropriate to repeal this provision, as it would
increase transparency about projects covered by the scheme. This is also consistent with a
previous recommendation from the Climate Change Authority.
42. However, a 30-day grace period would be provided for proponents of existing declared
eligible offsets projects to make a request under section 169 following its repeal (see the
transitional provisions in item 14). To date only less than 20 projects have sought to use
section 169 to withhold part or all of the project area, with all of these permanent planting
projects. As noted by the ACCU Review, the public interest in demonstrating the integrity
of the scheme through transparency is very important and so the substantial prejudice that
needs to arise would need to be very serious to outweigh the public interest in disclosure.
It is noted that avoiding scrutiny for any failures to correctly apply scheme requirements
is not a relevant commercial interest be protected by this provision.
9
Item 13
43. Section 240 of the CFI Act sets out the decisions under the Act that are subject to merits
review, including by the Administrative Appeals Tribunal (a reviewable decision). Item
21 of the table in section 240 has the effect that a decision under section 169 to refuse a
request not to set out the project area or project areas for an eligible offsets project in the
Emissions Reduction Fund Register is a reviewable decision.
44. Item 13 would amend existing section 240 of the CFI Act to remove item 21 of the table.
This amendment is consequential to the amendment in item 12, which would repeal
existing section 169 of the CFI Act.
Item 14
45. Item 14 contains transitional provisions relating to the proposed repeal of section 169 of
the CFI Act (see item 12).
46. The combined effect of the transitional provisions in sub-item 14(2) to (6) would be that:
• any requests under existing section 169 that have been made, but not finally
determined, at the time the amendments commence should be assessed, and
finally determined, under s169 as it existed immediately prior to the amendments
commencing;
• existing section 169 would be extended to cover requests not to publish carbon
estimation areas for a project but only:
i. for a 30-day 'grace period' following the commencement of the
amendments; and
ii. in relation to projects that are already declared eligible offsets projects
before the amendments commence (existing projects).
• the 30-day 'grace period' would also cover requests not to publish project areas
under existing section 169 - but, again, would only apply to existing projects.
47. This means that a project proponent for a project that is declared, after the amendments
commence, to be an eligible offsets project (a new project) would not be able to request
that either:
• the project area or project areas for the project; or
• the carbon estimation area or carbon estimation areas for the project,
is not included in the Register.
10
48. Similarly, following the end of the 30-day grace period, project proponents for existing
projects would also not be able to request that their project area information or carbon
estimation area information is not published.
49. The transitional provision in sub-item 14(7) would have the effect that a decision by the
Regulator to refuse a request that was made under section 169 (as modified by subitem
13(6) to extend to requests not to publish carbon estimation areas for existing projects)
during the 30-day grace period would be taken to be a reviewable decision for the
purposes of the Act.
50. This means that a person affected by such a decision would be able to apply under the
CFI Act for the decision to be reconsidered or, if the decision was made by the Regulator
personally, would be able to apply to the Administrative Appeals Tribunal to review the
decision
51. The transitional provision in sub-item 14(8) would have the effect that the decision period
for requests made under section 169 during the 30-day grace period would be extended to
30 days to 60 days. This is to recognise the likelihood of an increase in volume of
requests during this period.
Amendment 6 - Schedule 4, page 49, at the end of the Schedule (after proposed item 15)
52. Amendment 6 would insert a new Part 2 of Schedule 4 to the Bill.
53. New Part 2 would include new items 15 to 25 into Schedule 4 to the Bill. These items
would make necessary amendments to the CFI Act for the purpose of changing the Chair
of the Emissions Reduction Assurance Committee (ERAC) from a part-time office to a
full-time office.
54. The ACCU Review made a number of recommendations in respect of the ERAC,
including to re-establish it as the Carbon Abatement Integrity Committee (CAIC). The
review recommended the CAIC have a full-time Chair and at least 4 members with a
range of skills, expertise and experience (and that at least one of the members be a First
Nations Australian with relevant expertise), and to change the remuneration of members
and ensure the secretariat is independent.
55. Consultation is currently underway with stakeholders in relation to the implementation of
the ACCU Review recommendations, including replacing the ERAC with the CAIC. In
the meantime, the provision for, and appointment of, a full-time Chair would provide
additional integrity and assurance to the decisions made by the ERAC.
56. The amendments proposed in new Part 2 of Schedule 4 to the Bill would commence on a
date fixed by proclamation or, if no proclamation is made within 6 months of the Bill
receiving the Royal Assent, on the day after the end of that period. This is to ensure that
there is sufficient time for the Remuneration Tribunal to set the remuneration and leave
11
entitlements for the new full-time ERAC Chair, and for a proper, transparent and merit-
based appointment process to be undertaken.
Item 15
57. Item 15 would amend existing section 5 of the CFI Act to insert a new definition for paid
work. Paid work would be defined as work for financial gain or reward (whether as an
employee, a self-employed person or otherwise).
58. This definition would be relevant to the amendments to existing section 263 of the CFI
Act (proposed by new item 19), which would prevent the new full-time Chair of the
ERAC from engaging in other paid work without the Minister's approval.
Item 16
59. Section 257 of the CFI Act sets out the requirements for a person to be appointed as a
member of the ERAC.
60. Item 16 would amend existing section 257 of the CFI Act to repeal subsections 257(3)
and (4). Subsections 257(3) and (4) have the combined effect that the Chair of the ERAC
cannot be an employee of the Commonwealth or a Commonwealth authority, or a person
who holds a full-time office under a law of the Commonwealth. These restrictions would
no longer be appropriate, as a full-time ERAC Chair would be a full-time office under a
law of the Commonwealth.
Item 17
61. Item 17 would amend existing section 257 of the CFI Act to insert new subsection
257(6A). New subsection 257(6A) would require the Chair of ERAC to hold office on a
full-time basis.
Item 18
62. Subsection 257(7) of the CFI Act provides that an ERAC member holds office on a part-
time basis.
63. Item 18 would amend existing subsection 257(7) of the CFI Act to remove this
requirement for the Chair of ERAC. This is because the Chair of ERAC would hold office
on a full-time basis rather than a part-time basis.
Item 19
64. Section 263 of the CFI Act provides that an ERAC member must not engage in any paid
employment that conflicts or may conflict with the proper performance of his or her
duties.
12
65. Item 19 would amend existing section 263 of the CFI Act to insert a new subsection
263(1). New subsection 263(1) would prevent the Chair of the ERAC from engaging in
other paid work without the Minister's approval. This is appropriate as the ERAC Chair
would hold office on a full-time basis.
Item 20
66. Item 20 would amend existing section 263 of the CFI Act to the effect that the existing
requirement that an ERAC member must not engage in any paid employment that
conflicts or may conflict with the proper performance of his or her duties would become
new subsection 263(2).
67. This amendment is consequential to the amendment proposed by item 19.
Item 21
68. Item 21 would amend existing section 263 of the CFI Act to remove the existing
requirement (that an ERAC member must not engage in any paid employment that
conflicts or may conflict with the proper performance of his or her duties) from applying
to the ERAC Chair.
69. This amendment is consequential to the amendment proposed by item 19.
Item 22
70. Section 265 of the CFI Act sets out relevant information about leave entitlements for
ERAC members. Specifically, subsection 265(1) provides that the Minister may grant a
leave of absence to the ERAC Chair on the terms or conditions that the Minister
determines, while subsection 265(2) allows the ERAC Chair to grant a leave of absence
to another ERAC member on the terms and conditions the Chair determines.
71. Item 22 would amend section 265 of the CFI Act to repeal existing subsection 265(1) and
substitute new subsections 265(1) and (1A).
72. New subsection 265(1) would provide that the ERAC Chair has the recreation leave
entitlements that are determined by the Remuneration Tribunal. This is appropriate for a
full-time office under a law of the Commonwealth.
73. New subsection 265(1A) would allow the Minister to grant the ERAC Chair a leave of
absence (other than recreation leave) on the terms and conditions (as to remuneration or
otherwise) that the Minister determines.
74. The power of the ERAC Chair in subsection 265(2) to grant a leave of absence to another
ERAC member would remain unchanged.
Item 23
13
75. Section 267 of the CFI Act deals with the termination of the appointment of an ERAC
member (including the ERAC Chair). Paragraph 267(2)(c) allows the Minister to
terminate the appointment of an ERAC member (including the Chair) if the member
engages in paid employment that conflicts or may conflict with the proper performance of
his or her duties.
76. Item 23 would amend section 267 of the CFI Act to repeal existing paragraph 267(2)(c).
This amendment would be consequential to the amendments proposed by items 20, 21
and 25.
77. This amendment is appropriate because the requirement in existing paragraph 267(2)(c)
would no longer be relevant to the ERAC Chair, given the proposed amendments to
section 263 of the CFI Act (see items 20 and 21). Instead, a new provision that allows the
Minister to terminate the appointment of the ERAC Chair if the Chair engages in other
paid work without the Minister's approval would be inserted into section 267 by item 25
(new subsection 267(5)).
78. The substantive requirement in existing paragraph 267(2)(c) would still apply to ERAC
members other than the Chair under new subsection 267(6) (see item 25).
Item 24
79. Subsection 267(3) of the CFI Act allows the Minister to terminate the appointment of the
ERAC Chair if the Chair is an employee of the Commonwealth or a Commonwealth
authority, or a person who holds a full-time office under a law of the Commonwealth.
80. Item 24 would amend section 267 of the CFI Act to repeal existing subsection 267(3).
This is appropriate as the ERAC Chair would be a full-time office under a law of the
Commonwealth.
Item 25
81. Item 25 would amend section 267 of the CFI Act to insert new subsections 267(5) and
(6).
82. New subsection 267(5) would allow the Minister to terminate the appointment of the
ERAC Chair if the Chair engages in paid work outside of the duties as the ERAC Chair
without the Minister's approval. This would reflect the obligation in new subsection
263(1) that the full-time ERAC Chair not engage in other paid work without the
Minister's approval (see item 19).
83. New subsection 267(6) would allow the Minister to terminate the appointment of an
ERAC member (other than the Chair) if the member engages in paid employment that
conflicts or may conflict with the proper performance of the member's duties. This
reflects the obligation in new subsection 263(2) that an ERAC member not engage in paid
14
employment that conflicts or may conflict with the proper performance of the member's
duties (see item 21).
15
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Safeguard Mechanism (Crediting) Amendment Bill 2022
The proposed amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the amendments
The proposed amendments to the Safeguard Mechanism (Crediting) Amendment Bill 2022
(the Bill) would amend the Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act)
to implement the first stage of the Government's response to the ACCU Review.
The proposed amendments would make the following changes to the CFI Act:
• change the Chair of the Emissions Reduction Assurance Committee from a part-time
office to a full-time office;
• require the Minister to be satisfied that a methodology determination (or a varied
methodology determination) complies with the offsets integrity standards before the
Minister can make or vary the determination;
• require the publication of carbon estimation area information and other information
prescribed by the rules.
Human Rights implications
The proposed amendments to the Bill engage the following human rights:
• the right to privacy in Article 17 of the ICCPR;
Right to Privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual's
privacy, family, home or correspondence. The right to privacy can be limited to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be authorised by
law, be for a reason consistent with the ICCPR and be reasonable in the circumstances.
Publication of information
16
Items 1A and 8 to 14 of Part 1 of Schedule 4 to the Bill would relevantly require the
Regulator to:
• set out the carbon estimation area or areas for an area-based eligible offsets project in
the Emissions Reduction Fund Register, which is publicly available; and
• publish, on the Regulator's website, other information that is prescribed by the rules
and that is relevant to Australia meeting its obligations under any or all of the United
Nations Framework Convention on Climate Change (UNFCCC), its Kyoto Protocol
or Paris Agreement, or any other international agreement.
It is not expected that information that would be published would generally include personal
information. It is also expected that most project proponents would be body corporates, for
which the protection in the Privacy Act will not apply.
Notwithstanding this, there is a risk that, in limited circumstances, some carbon estimation
area information would be able to be used to infer identity of an individual through a
combination of the carbon estimation area location, the Register, and a title search.
Accordingly, the amendments proposed by items 1A and 8 to 14 of Part 2 of Schedule 4 to
the Bill would involve a limitation on the right to privacy.
However, this limitation is reasonable, necessary and proportionate to achieve legitimate
objectives. This is because the amendments are intended to implement recommendation 4 of
the Independent Review of Australian Carbon Credit Units (ACCU Review).
Recommendation 4 provided that 'Provisions in the governing legislation should be amended
to maximise transparency, data access and data sharing, while enabling protection of privacy
and commercial-in-confidence information, to support greater public trust and confidence in
scheme arrangements'.
In other words, requiring the publication of carbon estimation information data about offset
projects is intended to achieve the legitimate objective of improving transparency around
projects and their efficacy in reducing emissions (and in particular, to help re-establish that
relevant offset projects generate genuine carbon abatement). This, in turn, is intended to
address the ACCU Review's findings that lack of transparency about projects was
undermining public trust in scheme.
Similarly, allowing the rules to prescribe additional information to be published that is
relevant to Australia's meeting its obligations under the UNFCCC, Kyoto Protocol, Paris
Agreement or another international agreement is reasonable and proportionate as it is
consistent with the objects of the CFI Act, which are intended to implement Australia's
international obligations.
It should also be noted that information that has been given to the Regulator by a project
proponent will generally have been provided by a person who is choosing to participate in the
carbon credit market under the CFI Act. A person who has voluntarily participated the carbon
credit market under the CFI Act should expect that, in order to obtain the benefits of the
system, a certain amount of personal information will need to be provided to the Regulator
and that that information may be used in the administration of the relevant legislation. Given
that one of the objects of the CFI Act is to facilitate compliance with Australia's international
17
obligations relating to climate change and emissions reduction, such persons should also
expect that information collected under that Act may also be used for such purposes.
For these reasons, this limitation to the right to privacy is reasonable, necessary and
proportionate to achieve legitimate objectives and is consistent with the right to privacy in
Article 17 of the ICCPR.
Conclusion
The proposed amendments to the Bill are compatible with human rights as, to the extent that
they engage and limits the right to privacy under Article 17 of the ICCPR, those limitations
are reasonable, necessary and proportionate to achieve the legitimate aims of the Bill.
The Hon. Chris Bowen MP
Minister for Climate Change and Energy
18
Index]
[Search]
[Download]
[Bill]
[Help]