RET Compliance

All relevant participants of the Large-scale Renewable Energy Target and Small-scale Renewable Energy Scheme must comply with the Renewable Energy (Electricity) Act 2000 (the Act), Renewable Energy (Electricity) Charge Act 2000 and Renewable Energy (Electricity) Regulations 2001 (the regulations) for the creation of large-scale generation certificates (LGCs) and small-scale technology certificates (STCs), reporting and other requirements.

Failure to comply with the Act for any reason can result in prosecution and penalties where warranted.

Compliance and Enforcement guide

When will monitoring occur?

Compliance activities will occur consistently throughout the year. The Clean Energy Regulator will use intelligence analysis and risk assessment to make strategic decisions about compliance activities undertaken, with the intent to maximise the number of stakeholders who voluntarily comply with their obligations under the Act.

What are the core elements of the Clean Energy Regulator’s compliance approach?

The core elements of this approach are:

  • assisting stakeholders to understand their rights and obligations
  • making it as easy as possible for stakeholders to meet their obligations
  • supporting stakeholders who want to do the right thing
  • actively pursuing those who opportunistically or deliberately contravene the law.

What form can compliance activities take?

Analysis of information reported by registered persons and corporations; desk top investigations, including data analysis, checks against 3rd party data and other innovative analysis techniques; targeted investigations using authorised officers; and audits of eligible and liable parties.

What are the monitoring powers of Authorised Officers under the Act?

The Act provides for the Regulator to appoint Authorised Officers. The Act provides a number of powers to enable Authorised Officers to assess compliance with the Act, these include entry to premises (with consent) at any reasonable time or entry under a monitoring warrant; search; examination; seizure; copying documents; photographing; video recording of anything that may relate to the creation or transfer of certificates or relevant acquisition of electricity.

What if non-compliance is found?

The Clean Energy Regulator will employ a range of responses that escalate according to the severity of the contravention or if non-compliant activities continue. Generally, education and/or warnings will be used in response to first and less serious contraventions. For serious or continuing contraventions, deterrent sanctions will be used that may include suspension of registration, suspension of accreditation, civil recovery and criminal prosecution.

Compliance and Enforcement Policy

The Clean Energy Regulator has developed a proactive policy for monitoring compliance with the Renewable Energy (Electricity) Act 2000.

Visit - The Clean Energy Regulator Compliance and Enforcement Policy
 

Offences and powers under the Renewable Energy (Electricity) Act 2000

The below tables summarise the offences and powers under the Renewable Energy (Electricity) Act 2000.
For specific and detailed information on the elements of the listed offences and the complete details of the powers under the Act, you should refer to the Act.

Offences under the Renewable Energy (Electricity) Act 2000

Section Offence Penalty

24(1)

Improper creation of certificates (Strict Liability)

1 Penalty unit per certificate

24(3)

Improper creation of certificates

5 Penalty units per certificate

24A

Improper creation of certificates - civil penalty provision

Individual – 1 Penalty unit per certificate (up to 10,000 penalty units) or if under 100 certificates up to 100 Penalty Units

Body Corporate – 5 Penalty unit per certificate (up to 50,000 penalty units) or if under 100 certificates up to 500 Penalty Units

24B

False information resulting in improper creation of certificates - civil penalty provision

Individual – 100 Penalty Units

Body Corporate – 500 Penalty Units

76(1)

3rd party failing to comply with Regulator’s notice

30 Penalty units

78

Liquidator failing to comply with Regulator’s notice

30 Penalty units

82

Receiver failing to comply with Regulator’s notice

30 Penalty units

86

Agent failing to comply with Regulator’s notice

30 Penalty units

109

Offences related to Authorised Officer identity cards

1 Penalty unit

113

Failure to provide information to authorised officer

6 months imprisonment

124

Failure of occupier (of warrant premises) to provide reasonable facilities and assistance

10 Penalty units

125A(4)

Failure to comply with notice from Regulator re the provision of information.

20 Penalty units

125E

False or misleading evidence in purported compliance with s125A

12 months imprisonment

154(1)

Failure to provide documents within specified time(Strict Liability)

30 Penalty units

154(3)

Failure to provide documents within specified time

6 months imprisonment

154N(1)

Civil penalties for executive officers of bodies corporate

Not more than the maximum pecuniary penalty that could be imposed if the officer had committed the contravention referred to in paragraph 154N(1)(a)

160(7)

Failure to comply with requirement under s160

30 Penalty units

Powers under the Renewable Energy (Electricity) Act 2000

Section Power Who How

26(6)

Require written statement in relation to information regarding the creation of a certificate.

The Regulator

Response by written statement

30(1)

Suspension of registration (conviction of offence)

The Regulator

Upon conviction of a person for an offence against 24(3)

30(2)

Suspension of registration (subsequent conviction of offence)

The Regulator

If a person’s registration  has previously been suspended under subsection (1) and they are convicted of another offence against 24(3)

30A (1) & (2)

Suspension of registration  (Regulator’s belief that offence committed)

The Regulator

By written notice

30A (3) & (4)

Suspension of registration (Registration obtained improperly)

The Regulator

By written notice

30(D)(1) & (2)

Suspending the accreditation of a power station (interconnected power stations)

The Regulator

By written notice

30E(1)& (2)

Suspending the accreditation of a power station (Failure to give an Electricity Generation Return)

The Regulator

By written notice

30E (3)&(4)

Suspending the accreditation of a power station  (Contravention of Commonwealth, State or Territory Law)

The Regulator

By written notice

30E

Suspending the accreditation of a power station (Other circumstances)

The Regulator

By written notice

71(2)

Recovery of renewable energy shortfall charge related liability

The Regulator

MAY sue in a court of competent jurisdiction

72

Service of documents if a person is absent from Australia or cannot be found

The Regulator

By posting

Division 2 Subdivision A

Recovery from third parties

The Regulator

 

110

Entry to premises

Authorised officer

MAY (1)(a) Enter any premises at any reasonable time of day and; (1)(b) exercise the monitoring powers set out in section 111.  With the consent of the occupier or entry made under a monitoring warrant

111

Monitoring powers of authorised officers

Authorised Officer

MAY exercise these powers in relation to premises under section110

112(1)

Requesting a person to answer questions

Authorised Officer

Request the occupier to answer questions

112(2)

Requiring a person to answer questions

Authorised Officer

Require the occupier to answer questions

125

Monitoring Warrants

Authorised Officer

Obtained on application to Magistrate

125A

Regulator may obtain information and documents

The Regulator

By written notice (if the Regulator has reason to believe that the person has information or a document that is relevant to the operation of this Act; or is capable of giving evidence which is relevant to the operation of this Act

125D

Regulator may retain documents

The Regulator

Take and retain for as long as necessary possession of a document produced under this part

134

Regulator may publish certain information

The Regulator

MAY Publish a list of each liable entity that has a certificate shortfall for a particular year; and
Both the amount of each liable entity’s certificate shortfall for that year;
The proportion of that shortfall relative to the liable entity’s required renewable energy for that year; and the total of the certificate shortfalls for that year

154Q(1)

The Regulator may accept an undertaking from a person

The Regulator

MAY accept a written undertaking

154Q(2)

Undertaking must be expressed to be an undertaking under this section

The person

MUST be expressed as an undertaking under this section

154Q(3)

Undertaking may be withdrawn or varied at any time (with consent of Regulator)

The person

The person MAY withdraw or vary the undertaking at any time, but only with the consent of the Regulator

154Q(4)

Regulator may cancel undertaking

The Regulator

MAY by written notice given to the person, cancel the undertaking

154Q(5)

Regulator must publish undertaking on its website

The Regulator

MUST publish the undertaking on its website

154R

Enforcement of undertakings

The Regulator

If the Regulator considers that the person has breached the undertaking , the Regulator MAY apply to the Federal Court for an order under subsection (2)

154S

Injunctions

The Regulator

MAY apply to the Federal Court for an injunction if a person is engaging in conduct that would be an offence against the Act or the Regulations or is refusing to do an a thing which would constitute an offence against the Act or the Regulations

Civil penalties explained

The Renewable Energy (Electricity) Act 2000 contains a number of civil penalty provisions. These provisions apply in respect of contraventions of the Act by individuals, companies, executive officers of companies and other persons involved in contraventions of the Act. The civil penalty provisions are explained below:

Improper creation of certificates

Under subsection 24A(1), a person must not create a certificate if the person is not entitled to create the certificate. A "person" includes an individual and a body corporate. 

Under subsection 24A(2), it is also unlawful for a person to:

  • aid, abet, counsel or procure a contravention of subsection 24A(1);
  • induce, whether by threats or promises or otherwise, a contravention of subsection 24A(1)
  • be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection 24A(1);
  • conspire with others to effect a contravention of subsection 24A(1).

A person who is involved in a contravention of subsection 24A(1) in any of the ways described above commits what is called an 'ancillary contravention'.

A person who contravenes subsection 24A(1) or 24A(2) may be taken to court and ordered to pay a civil penalty. Enforceable undertakings and injunctions can also apply in respect of these contraventions.

Examples:

  • An accredited power station which create LGCs in respect of energy generated from sources other than 'eligible energy sources' contravenes subsection 24A(1).

A person who creates STCs in respect of a solar water heater, which is not capable of heating water from the sun or is not an approved model on the Register of Solar Water Heaters contravenes s24A(1).

False information resulting in the improper creation of STCs for solar water heaters and small-scale solar panel, wind or hydro systems

Under subsection 24B(1), a person (the first person) must not provide information:
  • that is false or misleading in a material particular; or
  • that omits a matter or thing without which the information is misleading in a material

to another person (the second person) in relation to a solar water heater or a small-scale solar panel, wind or hydro system (including in relation to the installation of the heater or unit). If the second person relies on that information in creating a STC which the second person is not entitled to create, and it was reasonable for the second person to so rely on the information, the first person contravenes subsection 24B(1).

Subsection 24B(1) is not limited in operation to persons registered under the Renewable Energy (Electricity) Act 2000. Rather, it applies to any person who provides false or misleading information in the manner and circumstances described.

Under subsection 24B(2), it is also unlawful for a person to:

  • aid, abet, counsel or procure a contravention of subsection 24B(1);
  • induce, whether by threats or promises or otherwise, a contravention of subsection 24B(1)
  • be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection 24B(1);
  • conspire with others to effect a contravention of subsection 24B(1).


A person who is involved in a contravention of subsection 24B(1) in any of the ways described above commits what is called an 'ancillary contravention'.

A person who contravenes subsection 24B(1) or 24B(2) may be taken to court and ordered to pay a civil penalty. Enforceable undertakings and injunctions can also apply.

Example:

The installer of a PV system (the first person) submits a STC assignment form on behalf of the owner along with other supporting documentation indicating that the installation has been completed when in fact only the panels have been installed.  If the agent (the second person) creates the STCs in reliance on this information, and it could reasonably have been expected that the agent would so rely on this information, the installer will have contravened subsection 24B(1).

Executive officers of bodies corporate - section 154N

An executive officer of a body corporate contravenes this subsection if he or she knew, or was reckless or negligent as to whether, the body corporate would contravene a civil penalty provision (which includes subsections 24A(1), 24A(2), 24B(1) and 24B(2)), and the executive officer was in a position to influence the body corporate but failed to take all reasonable steps to prevent the contravention.

An executive officer of a body corporate means:

  • a director of the body corporate;
  • the chief executive officer (however described) of the body corporate;
  • the chief financial officer (however described) of the body corporate; or
  • the secretary of the body corporate.

Example:

A company registered to create STCs receives assignments from owners entitled to create STCs but takes no or inadequate steps to check the accuracy or validity of the assignments. If the company subsequently creates STCs where there was no entitlement to create them, the executive officer(s) of the company may be liable for contravention of subsection 154N(1).

Civil penalty orders

Subsections 24A(1), 24A(2), 24B(1), 24B(2) and 154N(1) are civil penalty provisions. The Regulator may commence court proceedings against any person who contravenes these subsections. The maximum penalty a court can impose upon a person for a contravention of subsection 24A(1) is:
  • for an individual— the greater of (a) 1 penalty unit for each certificate to which the contravention relates, up to a maximum of 10,000 penalty units ($1,700,000); or (b) 100 penalty units ($17,000).
  • for a body corporate— the greater of (a) 5 penalty units for each certificate to which the contravention relates, up to a maximum of 50,000 penalty units ($8,500,000); or (b) 500 penalty units ($85,000).
The maximum penalty a court can impose upon a person for a contravention of subsections 24A(2), 24B(1) and 24B(2) is:
  • for an individual— 100 penalty units ($17,000).
  • for a body corporate— 500 penalty units ($85,000).

The maximum penalty a court can impose upon an executive officer who contravenes subsection 154N(1) is determined by reference to the underlying contravention by the body corporate. That is, the maximum penalty is equal to that which could be imposed on the executive officer if he or she had committed the underlying contravention.

One penalty unit is currently $170.00.

Civil and criminal proceedings

Court proceedings brought by the Regulator under Part 15A for contraventions of civil penalty provisions in the Renewable Energy (Electricity) Act 2000 are civil proceedings. However, conduct which contravenes civil penalty provisions may also constitute a criminal offence (either against the Renewable Energy (Electricity) Act 2000 or other legislation, such as the Criminal Code 1995).

A court cannot make a civil penalty order against a person for a contravention of a civil penalty provisions if the person has already been convicted of an offence constituted by substantially the same conduct.

However, criminal proceedings may be commenced against a person even if a civil penalty order has already been made against the person for substantially the same conduct.

There are also limitations on how evidence given in civil proceedings can be used in criminal proceedings where the two proceedings are based on substantially the same conduct.

Example:

A person who creates a certificate which he or she had no entitlement to create contravenes subsection 24A(1). However, this conduct also constitutes an offence against subsection 24(1) (and possibly subsection 24(3)) of the Renewable Energy (Electricity) Act 2000.

Enforceable undertakings

Under section 154Q of the Renewable Energy (Electricity) Act 2000 (the Act), the Regulator may accept a written undertaking from a person to do or refrain from doing certain things, including the surrender of certificates that the person was not entitled to create. 

Undertakings can be in the form of positive obligations (eg, the person will put in place particular checks and balances to ensure certificates are created in accordance with the Renewable Energy (Electricity) Act 2000) or negative obligations (eg, the person will refrain from using a particular installer (who has been involved in the improper installation of solar water heaters in the past) until an audit has been carried out on all the installations the installer has purportedly carried out).

Furthermore, the Regulator may accept an undertaking that a person will surrender certificates which the person was not entitled to create.

If the Regulator considers that a person has breached an undertaking, the Regulator may commence proceedings against that person in the Federal Court of Australia. If the Court is satisfied that the person has breached the undertaking, it may order:

  • the person to comply with the undertaking;
  • the person to pay the Regulator any financial benefit derived from the breach;
  • the person to compensate any other person who has suffered loss or damage as a result of the breach;
  • anything else the Court considers appropriate.

The Regulator is not required to accept an undertaking offered by a person. Whether or not the Regulator will accept an undertaking in lieu of, or in addition to, any other enforcement action (eg seeking a civil penalty) in a given situation will depend on a variety of factors. The Regulator will publish a compliance and enforcement policy dealing with issues such as this.

Visit - Current Enforceable Undertakings

Injunctions

The Regulator or any other 'aggrieved person' may apply to the Federal Court of Australia for an injunction to:

  • restrain a person from engaging in conduct that would be an offence against the Renewable Energy (Electricity) Act 2000 or the Renewable Energy (Electricity) Regulations 2001 or a contravention of a civil penalty provision; or
  • require a person to do a thing if failing to do that thing would be an offence against Renewable Energy (Electricity) Act 2000 or the Renewable Energy (Electricity) Regulations 2001 or a contravention of a civil penalty provision.

Failure to comply with an injunction may constitute a contempt of court.

Compliance contacts

For additional information about the Clean Energy Regulator Compliance and Enforcement Policy, auditing or to report suspicions of non-compliant behaviour, please contact the Compliance team on 02 6159 3990 or by email to retcompliance@cleanenergyregulator.gov.au.

Date last updated: 02 Jan 2013