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
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.
Looking for information about
compliance monitoring for the 2016-17 reporting period?
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).
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:
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 oxidation or conversion factors.
Greenhouse Gas Protocol describes other records that might be kept in order to maintain a high-quality and easily auditable greenhouse gas inventory.
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.
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.
The Clean Energy Regulator monitors compliance with the NGER legislation to:
Compliance monitoring may occur by:
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.
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 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:
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:
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:
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:
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.
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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