Who will be liable for Australia's solution to pollution? An analysis of the scope of businesses' liability under the Carbon Pollution Reduction Scheme

Consistent with achieving an international agreement to reduce greenhouse gas emissions at Copenhagen in December 2009, Australia, like the United States, is currently in the throes of having its emissions trading scheme legislation processed through Parliament. The Rudd Government is on track to have its heavily-debated Carbon Pollution Reduction Scheme (CPRS) passed during Parliament's Winter sessions this year. If successful, Australian businesses will only have until 1 July 2011 to prepare for the onerous obligations imposed upon those liable under the wide-reaching legislation. This article analyses businesses' liability for the core reporting and surrendering obligations imposed under the CPRS. It finds that businesses and their executive officers who contravene the CPRS will not only be liable for the wide-ranging administrative, civil and criminal penalties in the CPRS itself, but they may also face civil and criminal liability under the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth), the Criminal Code 1995 (Cth), the Trade Practices Act 1974 (Cth) and State and Territory fair trading legislation in respect of the same conduct. In particular, businesses and their executive officers should be aware of the extensive monitoring and information-gathering powers that will be conferred upon the regulatory body established under the CPRS, the Australian Climate Change Regulatory Authority, and adopt procedures to protect the disclosure to, and use by, the regulator of privileged and confidential information.