Posture

The agency’s primary responsibility is to protect the integrity of the schemes it administers. We do that by ensuring all scheme participants meet their obligations. The starting point for dealing with a non-compliant scheme participant, whether in financial distress or not, is to apply the Compliance, Education and Enforcement Policy and risk appetite statement. Where a debt is involved, the Approach to Debt Recovery framework will be applied. The Approach to Debt Recovery framework highlights the desirability of early engagement with the scheme participant as soon as there are indications of financial distress.  The Compliance, Education and Enforcement Policy as well as the agency’s risk appetite statement refer to the need for procedural fairness and proportionality of response to the risk of or actual non-compliance. 

Protecting scheme participants (and thereby protecting the integrity of the scheme) extends in some cases to protecting the scheme assets of a third party (for example where assets in the form of Australian carbon credit units (ACCUs) or Renewable Energy Certificates (RECs) may be transferred to defeat creditors or former partners). Where non-compliance by a scheme participant in financial distress poses a risk to the integrity of the scheme or assets of a third party, the Regulator will intervene. 

Notwithstanding that a scheme participant is in financial distress, it may be appropriate to pursue past scheme non-compliance and apply discretionary measures such as fit and proper person assessments and pursue criminal or civil penalties. This ensures such clients do not receive an advantage simply because of a perilous financial position. 

The posture provides that the agency will use judgement on whether to take pro-active, temporary and/or enduring (permanent) action, for example freezing accounts and/or revoking/suspending a project or participant registration. The agency will also consider the matter in the context of the scheme objectives.