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Complying with NGER

08 September 2017

The Clean Energy Regulator encourages voluntary compliance by placing a strong emphasis on education to assist clients to understand their rights, obligations and entitlements. This is done by providing guidance material, such as FAQ​​s​ and webinars, and assisting with enquiries. It is important that reporters are aware of their ongoing obligations to report and the importance of record-keeping in assisting to meet these obligations.

Contents

Record keeping

Under the National Greenhouse and Energy Reporting Act 2007 (NGER Act), a registered corporation and any other person required to provide information to the Clean Energy Regulator under section 20 of the NGER Act must keep adequate records of the activities of members of the group (in the case of registered corporations) or the person's activities (in the case of persons required to provide information under section 20 of the NGER Act).

What information needs to be recorded?

Records of activities must be adequate to enable the Clean Energy Regulator to ascertain whether the corporation or the person has complied with its obligations under the NGER Act. This includes information that can be used to verify the relevance, completeness, consistency, transparency and accuracy of reported data during an external audit.

Reporters are encouraged to record both the decision making process and the details of the calculation and data analysis methods used for greenhouse gas emissions and energy production and consumption. Recommended records include but are not limited to:

  • a list of all sources monitored
  • the activity data used for calculation of greenhouse gas emissions for each source, categorised by process and fuel or material type
  • documentary evidence relating to calculations—for example, receipts, invoices and details of payment methods
  • documentation of the methods used for greenhouse gas emissions and energy estimations
  • documents justifying selection of the monitoring methods chosen
  • documentation of the collection process for activity data for a facility and its sources, and
  • records supporting business decisions and accuracy, especially for high-risk areas relating to reporting coverage (for example, applying concepts of controlling corporation, corporate group and facility).

When facility-specific emissions factors are used, records should document the monitoring methods used and the results from the development of these emissions factors as well as information such as biomass fractions and oxidization or conversion factors.

The Greenhouse Gas Protocol describes other records that might be kept in order to maintain a high-quality and easily auditable greenhouse gas inventory.

How should records be kept?

Records can be kept on paper or in electronic form. Records should be stored in a format that is accessible to the Clean Energy Regulator and external auditors, employed by the reporter or appointed by the Clean Energy Regulator, if required.

How long do records need to be kept?

Reporters are required to keep records for five years from the end of the reporting year in which the activities recorded took place. For example, records for the 2016-17 reporting year should be kept until the end of 2021-22.

Compliance monitoring

The Clean Energy Regulator monitors compliance with the NGER legislation to:

  • determine levels of compliance and identify trends in behaviour
  • detect possible contraventions
  • identify whether, and what type of, education and/or enforcement action may be required, and
  • assess the effectiveness of its operations and programs, and identify opportunities for improvement.

Compliance monitoring may occur by:

  • checking information provided in applications
  • analysing reported information
  • analysing information from other sources
  • analysing information obtained under the Regulator's information gathering powers
  • site visits
  • inspections, and
  • audits

If potential non-compliance is detected through compliance monitoring, the Clean Energy Regulator will contact the reporter for clarification. Where the Clean Energy Regulator determines the report is non-compliant then any necessary regulatory action will be considered in the context of the Compliance, Education, and Enforcement policy.

Assessment of NGER reports

Reports submitted under the National Greenhouse and Energy Reporting Act 2007 (NGER Act) are reviewed and assessed by the Clean Energy Regulator for potential non-compliance with legislative obligations for a period of up to 5 years from the date of submission. This includes using a range of internal, time series and publicly available information which is cross-referenced with legislative reporting requirements as set out in the National Greenhouse and Energy Reporting Regulations 2008 and the National Greenhouse and Energy Reporting (Measurement) Determination 2008. An assessment is not intended to be an exhaustive assessment of individual reporter circumstance nor is the assessment process an audit.

Penalties for non-compliance

Penalties for non-compliance with the NGER Act include civil and criminal penalties and infringement notices.

Most penalty provisions in the NGER Act impose civil penalties. Civil penalty provisions may lead to financial penalties, but not imprisonment, and are not considered criminal offences. Most civil penalty provisions under the NGER Act relate to a person's failure to meet registration requirements, reporting requirements, record-keeping requirements or auditing requirements. An executive officer of a company can, in certain circumstances, be held accountable for their company's contraventions of civil penalty provisions.

There are several provisions in the NGER Act that impose a criminal penalty. Those offences generally relate to behaviour that involves dishonest or fraudulent conduct or could involve considerable harm to the NGER scheme or its participants. Examples of offences under the NGER Act that impose a criminal penalty include the unlawful use of an authorised officer's identity card, unlawful disclosure of information and failure to comply with the requests of an authorised officer when there is a monitoring warrant in place. There are also offences under the Criminal Code which apply where a person provides false or misleading information or documents to the Regulator.

The Clean Energy Regulator can issue an infringement notice where it has reasonable grounds to believe that a person has contravened a civil penalty provision. The penalty specified in an infringement notice will be one-fifth of the maximum penalty a court could impose for the contravention.

The table below lists the civil penalty provisions of the NGER Act:

NGER Act Section Description of Civil Penalty Provision
11B(20) Notification requirement – Failure to notify cessation to the Regulator (nominated person)
12 Registration – Failure to apply for registration in relation to meeting a threshold
19Reporting – Failure by registered corporation to provide a compliant report to the Regulator
20(4)Reporting – Failure of other person to provide certain information
21(4)Reporting – Submission of non-compliant report relating to greenhouse gas projects
21A(2)Reporting – Submission of non-compliant report relating to offsets of greenhouse gas emissions
22(1)Record-keeping requirements – Contravention by registered corporation
22(2)Record-keeping requirements – Contravention by other person required to provide certain information
22GReporting – Failure by holder of reporting transfer certificate to provide a compliant report to the Regulator
22H Record-keeping requirements – Contravention by holder of reporting transfer certificate
22X(2)Reporting – Failure to provide compliant report where obligations transferred to responsible member of corporate group
22XA Record-keeping requirements – Contravention by responsible member of corporate group
30Ongoing failure to comply with civil penalty provision – daily penalty
71(3)Monitoring compliance – Failure to provide specified compellable information to the Regulator
71(4)Monitoring compliance – Providing false or misleading information to the Regulator
73A -
74C
Monitoring compliance – Contraventions relating to audit requirements

Each of the above provisions sets out the maximum penalty that a court may impose for a contravention of that section. Section 31 of the NGER Act sets out what a Court will consider when determining the civil penalty amount payable by a person.

The table below lists the criminal offences and penalties listed in the NGER Act:

NGER Act Offence Penalty: 1 penalty unit = $170
23Secrecy – unlawful disclosure of greenhouse and energy information or audit informationImprisonment for 2 years or 120 penalty units or both
58Monitoring compliance – Unlawful use of identity card 1 penalty unit
61(3)Monitoring compliance – Failure or refusal to comply with authorised officer request during warrant executionImprisonment for 6 months or 30 penalty units or both
69Monitoring compliance – Failure to provide officer executing a warrant with all reasonable facilities and assistance 30 penalty units

Compliance monitoring for the 2016-17 reporting period

The Clean Energy Regulator expects compliance against all reporting requirements. Each year we set compliance priorities to focus our monitoring activities — the outcomes of which are used to inform reporters on areas of improvement for the next reporting period.

Our compliance priorities for the 2016-17 reporting period include:

  • Energy production and consumption is accurately categorised and reported
  • Measurement and reporting of emissions from flaring is accurate
  • Reporting of facility locations is accurate

Reporters are encouraged to examine their compliance in these areas before reporting and contact the Clean Energy Regulator with any questions.

Further information and guidance on how to report correctly can be found on National Greenhouse and Energy Reporting forms and resources. Our reporting system Emissions and Energy Reporting System (EERS) has also been updated with a number of prompts to help you report correctly.

In reviewing the 2016-17 reported data we will conduct the following monitoring activities:

Desktop reviewsExamine NGER report compliance with the measurement determination generally, with additional focus on 2016-17 compliance priorities and high risk reporters.
Greenhouse and energy auditsAudit a random selection of reporters and run a targeted audit program focused on 2016-17 compliance priorities and other known risk areas.
Site visitsExamine a range of representative facilities to build knowledge and examine how reporters collect and report data for their facility.
Data AnalysisCompare NGER data with information from other schemes (Emissions Reduction Fund and Renewable Energy Target) and other government agencies such as the Australian Energy Market Operator (AEMO) to identify anomalies and reporting errors.

The Clean Energy Regulator will work with reporters to resolve any issues identified through the above activities, however, substantial or repeated non-compliance will be addressed in line with our Education, Compliance and Enforcement Policy. The Clean Energy Regulator looks closely at repeated instances of non-compliant reporting, and takes into account a reporter’s compliance history when considering regulatory action and penalties for non-compliance.

If you are selected for an audit or a site visit we will provide you with at least 28 days’ notice, and work with you on timing if you have competing priorities.

Reporters are encouraged to engage a registered greenhouse and energy auditor to confirm they comply with reporting requirements prior to submitting their NGER reports. When selecting an auditor, it is important to be aware of their expertise and experience. Price should not be the only consideration. The register of greenhouse and energy auditors includes information about registered auditors that may assist your selection, including nominated specialisation.

Choosing an inappropriate auditor may result in the Clean Energy Regulator requesting you to provide more information about the matter audited, and you may be subject to further compliance monitoring.

Whilst auditors are generally compliant with the legislation, there may be times when reporters observe some instances of poor performance or non-compliant behaviour. We encourage reporters to inform the agency of any observed non-compliance or poor performance.

Please email CER-Audit@cleanenergyregultor.gov.au if you would like to raise an issue about an auditor’s performance. Alternatively, you can phone our general enquiries number on 1300 553 542. All information provided will remain anonymous.

The Clean Energy Regulator will consider the findings of any voluntary audit report in targeting and conducting compliance monitoring activities. Reporters are encouraged to provide these voluntary audits to the Clean Energy Regulator as an attachment to their NGER report in the EERS.

Further information

Email: reporting@cleanenergyregulator.gov.au

Phone: 1300 553 542

This information is provided as guidance only and is not a substitute for independent professional advice. NGER reporters are responsible for applying the legislation to their particular circumstances and organisational structure.


 

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