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This is a Bill, not an Act. For current law, see the Acts databases.
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment and Sustainable Development)
Construction and Energy Efficiency Legislation Amendment Bill 2014
Contents
Page
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment and Sustainable Development)
Construction and Energy Efficiency Legislation Amendment Bill 2014
A Bill for
An Act to amend legislation about construction and energy efficiency
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Construction and Energy Efficiency Legislation Amendment Act 2014
.
(1) This Act (other than sections 18 and 19) commences on the day after its notification day.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) Sections 18 and 19 commence on a day fixed by the Minister by written notice.
Note 1 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act
, s 77 (1)).
Note 2 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see
, s 79).
This Act amends the following legislation:
•
•
•
•
.
Part 2 Construction Occupations (Licensing) Act 2004
4 What is a building
assessor?
Section 8A (3) and note
omit
5 What is a works
assessor?
Section 14A (3) and note
omit
substitute
Division 6.1 Preliminary—pt 6
75 Definitions—pt 6
In this part:
compliance auditor means a compliance auditor appointed under section 76.
inspector means an inspector appointed under section 80CA.
officer means a compliance auditor or an inspector.
Division 6.2 Compliance auditors
substitute
76 Compliance auditors—appointment
substitute
77 Compliance auditors—functions
omit
substitute
78 Compliance auditors—entry to premises
11 Functions of compliance
auditors—entry to premises
Section 80 (2)
substitute
(2) However, subsection (1) does not authorise entry into a part of premises that is being used for residential purposes unless—
(a) the occupier or person apparently in charge of the premises consents to the entry; or
(b) the entry is authorised under a search warrant.
12 Consent to entry
Section
80A
omit
substitute
79 Compliance auditors—production of documents
substitute
80 Non-compliance with s 79 notice
15 Non-compliance with s 80B
notice
Section 80C (1)
substitute
(1) A licensee commits an offence if the licensee fails to comply with a notice given to the licensee under section 79 (Compliance auditors—production of documents).
Maximum penalty: 50 penalty units.
omit
section 80B
substitute
section 79
insert
Division 6.3 Inspectors
80CA Inspectors—appointment
(1) The registrar may appoint a public servant to be an inspector for this Act for—
(a) building assessment work; or
(b) works assessment work.
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see
, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207).
(2) An appointment must not be for longer than 5 years.
Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act
, s 208 and dict, pt 1, def appoint).
80CB Inspectors—functions
(1) An inspector is responsible for inspecting the work undertaken by a licensee for compliance with this Act, the operational Acts and other legislation which applies to building assessors.
Example—other legislation applying to building assessors
Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see
, s 126 and s 132).
(2) Subsection (1) applies only to work for which a person must be licensed under this Act.
(3) An inspector has any other function given to the inspector by the registrar.
(4) An inspector must exercise the inspector’s functions in accordance with—
(a) the instrument of appointment; and
(b) any directions the registrar gives the inspector.
80CC Inspectors—entry to premises
(1) For this Act, an inspector may—
(a) enter any premises at any time with the consent of the occupier; or
(b) enter premises when open to the public; or
(c) enter business premises during business hours at the premises; or
(d) enter premises in accordance with a warrant under this part.
(2) An inspector may, without the occupier’s consent or a warrant, enter the land around premises—
(a) to ask the occupier for consent to enter the premises; or
(b) to inspect the land.
(3) An inspector must not remain on premises entered under this section if, on request by the occupier, the inspector does not produce his or her identity card.
(4) An inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises, anything on the premises and the land around the premises:
(a) inspect or examine;
(b) inspect and copy, or take an extract from, any document at the premises;
(c) take measurements or conduct tests;
(d) take samples;
(e) take photographs, films, audio, video or other recordings;
(f) take onto the premises any people, equipment or material the inspector reasonably needs to exercise the inspector’s functions under this Act;
(g) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector’s functions under this Act.
Note The
, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.
(5) A person must take all reasonable steps to comply with a requirement made of the person under subsection (4) (g).
Maximum penalty: 50 penalty units.
80CD Inspectors—power to seize things
(1) An inspector who enters premises under this part with the occupier’s consent may seize anything at the premises if—
(a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.
(2) An inspector who enters premises under a warrant under this part may seize anything at the premises that the inspector is authorised to seize under the warrant.
(3) An inspector who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, an inspector who enters premises under this part (whether with the occupier’s consent or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing—
(a) puts the health or safety of people at risk; or
(b) may cause damage to property or the environment.
(5) The powers of an inspector under subsections (3) and (4) are additional to any powers of the inspector under subsection (1) or any other territory law.
(6) Having seized a thing, an inspector may—
(a) remove the thing from the premises where it was seized (the place of seizure) to another place; or
(b) leave the thing at the place of seizure but restrict access to it.
(7) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6); and
(b) the person does not have an inspector’s approval to interfere with the thing.
Maximum penalty: 50 penalty units.
(8) An offence against this section is a strict liability offence.
80CE Inspectors—receipt for things seized
(1) As soon as practicable after a thing is seized by an inspector under this part, the inspector must give a receipt for it to the person from whom it was seized.
(2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt, secured conspicuously at the place of seizure.
80CF Access to things seized
A person who would, apart from the seizure, be entitled to a thing seized under this part may—
(a) inspect it; and
(b) if it is a document—take extracts from it or make copies of it.
80CG Return of things seized
(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—
(a) a prosecution for an offence relating to the thing is not instituted within 90 days of the seizure; or
(b) the court does not find the offence proved in a prosecution for an offence relating to the thing.
(2) A thing seized under this part is forfeited to the Territory if a court—
(a) finds an offence relating to the thing to be proved; and
(b) orders the forfeiture.
(3) If subsection (2) (a) applies, but a court does not order forfeiture of the thing seized, the construction occupations registrar must return the thing to its owner or the Territory must pay reasonable compensation to the owner for the loss of the thing.
Division 6.4 Identity cards—compliance auditors and inspectors
80CH Identity cards
(1) The registrar must give a compliance auditor an identity card stating the person’s name and that the person is a compliance auditor.
(2) The registrar must give an inspector an identity card stating the person’s name and that the person is an inspector.
(3) The identity card must show—
(a) a recent photograph of the person; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
(4) A person commits an offence if—
(a) the person ceases to be an officer; and
(b) the person does not return the person’s identity card to the registrar as soon as practicable (but within 7 days) after the day the person ceases to be an officer.
Maximum penalty: 1 penalty unit.
(5) An offence against this section is a strict liability offence.
80CI Functions not to be exercised before identity card shown
An officer may exercise a function under this Act in relation to a person only if the officer first shows the person the officer’s identity card.
80CJ Consent to entry
(1) When seeking the consent of an occupier for entering premises under this part an officer must—
(a) produce his or her identity card; and
(b) tell the occupier—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in evidence in court; and
(iii) that consent may be refused.
(2) If the occupier consents, the officer must ask the occupier to sign a written acknowledgment—
(a) that the occupier was told—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in evidence in court; and
(iii) that consent may be refused; and
(b) that the occupier consented to the entry; and
(c) stating the time, and day, when consent was given.
(3) If the occupier signs an acknowledgment of consent, the officer must immediately give a copy to the occupier.
(4) Unless the contrary is proven, a court must presume that an occupier of premises did not consent to an entry to the premises by an officer under this part if—
(a) the question whether the occupier consented to the entry arises in proceedings in the court; and
(b) an acknowledgment under this section is not produced in evidence for the entry; and
(c) it is not proved that the occupier consented to the entry.
(5) In this section:
occupier, of premises, includes—
(a) a person an officer believes on reasonable grounds to be an occupier of the premises; and
(b) a person apparently in charge of the premises.
Division 6.5 Search warrants
80CK Warrants generally
(1) An officer may apply to a magistrate for a warrant to enter premises.
(2) The application must be sworn and state the grounds on which the warrant is sought.
(3) The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence against this Act; and
(b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days.
(5) The warrant must state—
(a) that an officer may, with any necessary assistance and force, enter the premises and exercise the officer’s powers under this part; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant’s issue, that the warrant ends.
(6) In this section:
connected—an activity is connected with an offence if—
(a) the offence has been committed by engaging or not engaging in it; or
(b) it will provide evidence of the commission of the offence.
80CL Warrants—application made other than in person
(1) An officer may apply for a warrant by phone, fax, radio or other form of communication if the officer considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the officer must prepare an application stating the grounds on which the warrant is sought.
(3) The officer may apply for the warrant before the application is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy to the officer if it is practicable to do so.
(5) If it is not practicable to fax a copy to the officer—
(a) the magistrate must—
(i) tell the officer what the terms of the warrant are; and
(ii) tell the officer the date and time the warrant was issued; and
(b) the officer must complete a form of warrant (the warrant form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed by the officer, authorises the entry and exercise of the officer’s powers under this part.
(7) The officer must, at the first reasonable opportunity, send to the magistrate—
(a) the sworn application; and
(b) if the officer completed a warrant form—the completed warrant form.
(8) On receiving the documents, the magistrate must attach them to the warrant.
(9) A court must find that a power exercised by an officer was not authorised by a warrant under this section if—
(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a warrant under this section.
80CM Search warrants—announcement before entry
(1) An officer must, before anyone enters premises under a search warrant—
(a) announce that the officer is authorised to enter the premises; and
(b) give anyone at the premises an opportunity to allow entry to the premises; and
(c) if an occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person.
(2) The officer is not required to comply with subsection (1) if the officer believes on reasonable grounds that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the officer or any person assisting); or
(b) that the effective execution of the warrant is not frustrated.
80CN Details of search warrant to be given to occupier etc
If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the officer or a person assisting must make available to the person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the person.
80CO Occupier entitled to be present during search etc
(1) If an occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the occupier or the other person is entitled to observe the search being conducted.
(2) However, the person is not entitled to observe the search if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
80CP Moving things to another place for examination or processing
(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing for not longer than 72 hours.
(3) An officer may apply to a magistrate for an extension of time if the officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours.
(4) The officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.
(5) If a thing is moved to another place under this section, the officer must, if practicable—
(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier’s representative to be present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.
18 The register
Section 107
(4)
substitute
(4) The registrar must make available to the public information that is—
(a) included in the register; and
(b) required by regulation to be made available to the public.
(5) If a person asks, in writing, to have access to other information on the register, the registrar may give access to the other information.
(6) Before deciding to give access to information requested under subsection (5), the registrar must consider—
(a) the reason the person requires the information, including whether it is related to the provision of a construction service; and
(b) whether the information includes personal or other information the registrar believes would be inappropriate or illegal to disclose; and
(c) whether the provision of the information would compromise the exercise of a function under this Act or an operational Act.
insert
107A Register—public information
(1) The registrar must publish a register of public information (the public register) at least once a week on a website.
(2) However, the registrar must update the public register by not later than the end of the next working day after the day when—
(a) a licensee’s licence is suspended or cancelled under part 5 (Automatic licence suspension and occupational discipline); or
(b) if a licensee’s licence is suspended under section 97 (Licence suspension) or cancelled under section 98 (Licence disqualification) as a consequence of incurring demerit points—the licensee has exhausted review rights; or
(c) a licensee’s suspension or cancellation is lifted, overturned or expires; or
(d) the registrar receives a direction from ACAT or a court about recording or removing information from the register.
(3) For subsection (2) (b), a licensee has exhausted review rights—
(a) if the licensee has not applied for review of the relevant decision within the period allowed under the ACT Civil and Administrative Tribunal Act 2008
—when the period ends; or
(b) if the licensee has applied for review of the decision within the period mentioned in paragraph (a), when the ACAT—
(i) completes the review; or
(ii) sets aside the decision.
(4) The public register must include—
(a) the name of each licensee and—
(i) if the licensee is a partnership—the name of each partner in the partnership and, if the partnership has an ACN, the ACN; or
(ii) if the licensee is a corporation—
(A) the corporation’s ACN; and
(B) the name and licence number of each nominee for the licensee, the licensee’s licence number and the construction occupation or occupation class for which the nominee is nominated; and
(b) anything else prescribed by regulation.
(5) In relation to each licence held by the licensee, the public register must include the following:
(a) the construction occupation or occupation class of the licence;
(b) the expiry date of the licence;
(c) any condition on the licence;
Note For licence conditions—see s 21, s 21A and s 56.
(d) any endorsement on the licence;
Note For licence endorsements—see s 22.
(e) any information that must be included under section 110 (Recording interim licence suspension).
(6) The public register must also include the following information in relation to licensees that have been licensed in the period beginning on the day 10 years before the registrar most recently updates the register, unless the information is no longer available:
(a) details of any suspension under division 5.1 (Automatic licence suspension), including the start date of suspension, the end date of suspension and the reason for suspension;
(b) details of any disciplinary action taken by the registrar under section 56 (1) (Occupational discipline) including—
(i) the kind of action; and
(ii) the start date of the action; and
(iii) the end date of the action; and
(iv) the reason for the action (unless the ACAT orders otherwise); and
(v) any other information required to be recorded on the register by the ACAT; and
(vi) whether the period in which the licensee can apply to the ACAT for review of the action has expired; and
(vii) whether the action is under review by the ACAT;
(c) details of any occupational discipline order by made by the ACAT under section 58 (Occupational discipline orders—licensees) including—
(i) the start date of the order; and
(ii) the end date of the order; and
(iii) the nature and effect of the order; and
(iv) the reason for the order (unless the ACAT orders otherwise); and
(v) any other information required to be recorded on the register by the ACAT;
(d) if the licensee of the licence has been subject to any other form of occupational discipline—
(i) the kind of occupational discipline; and
Examples—other kinds of occupational discipline
1 suspension of licence (see s 97)
2 disqualification of licensee (see s 98)
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(ii) any applicable start and end dates; and
(iii) the reason for the occupational discipline (unless the ACAT orders otherwise); and
(iv) any other information required to be recorded on the register by the ACAT;
(e) details of any action the registrar has taken under section 95 (2) (c) (Consequences of incurring demerit points—licensees);
(f) details of any licence suspension under section 97 (Licence suspension);
(g) details of any licence disqualification under section 98 (Licence disqualification);
(h) details of previous suspensions and cancellations, occupational discipline, and disciplinary action in the previous 10 years, whether in effect or not, unless the details have been removed from the register under section 111 (Removal of information from register);
(i) details of rectification orders recorded in the register under section 108 (Recording rectification orders);
(j) details of any contravention of a rectification order recorded in the register under section 109 (Recording contravention of rectification orders).
(7) For subsection (6) (e), (f), (g), (i) and (j), the details mentioned must not be included in the public register—
(a) unless the licensee has not applied for review of the relevant decision within the period allowed under the ACT Civil and Administrative Tribunal Act 2008
; or
(b) if the licensee has applied for review of the decision, before the ACAT—
(i) completes the review; or
(ii) sets aside the decision.
insert
Part 20 Transitional—Construction and Energy Efficiency Legislation Amendment Act 2014
180 Conduct engaged in before commencement of amending Act
Part 6 as amended by the Construction and Energy Efficiency Legislation Amendment Act 2014 (the Act), applies in relation to work carried out by licensees and former licensees before the commencement of the Act.
181 Expiry—pt 20
This part expires 1 year after the day the Act, section 3 commences.
Note Transitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act
, s 88).
21 Dictionary, new definition of building assessment work
insert
building assessment work means preparing and providing—
(a) an energy efficiency certificate under the Building Act 2004
; or
(b) an energy efficiency rating statement; or
(c) a statement, certificate or other document prescribed by regulation.
Note Energy efficiency certificate—see the Building Act 2004
, s 139C.
22 Dictionary, definition of compliance auditor
substitute
compliance auditor, for part 6 (Enforcement)—see section 75.
23 Dictionary, new definitions
insert
inspector, for part 6 (Enforcement)—see section 75.
officer, for part 6 (Enforcement)—see section 75.
works assessment work means—
(a) undertaking an exemption assessment under the Planning and Development Act 2007
; or
(b) providing, including doing anything incidental to providing, a unit title assessment report under the Unit Titles Act 2001
.
Note Unit title assessment report—see the Unit Titles Act 2001
, s 22B.
Part 3 Construction Occupations (Licensing) Regulation 2004
24 Reviewable
decisions
Schedule 4, new item 21A
insert
|
21A
|
Act, 107 (5)
|
refuse to give access to information on register
|
person asking for access to information
|
Part 4 Electricity Safety Act 1971
substitute
Part 2 Electrical wiring work and electrical installations
Division 2.1 Electrical wiring work and electrical installations—safety
after section 8, insert
Division 2.2 Electrical wiring work and electrical installations—energy efficiency
Note The
(Cwlth) (the Commonwealth Act) applies greenhouse and energy minimum standards (GEMS) in association with the supply and commercial use of products that use energy, or affect the energy used by another product. These standards are provided for by requirements in Ministerial determinations (GEMS determinations).
See this Act, s 27 (Offences—energy efficiency requirements for non-prescribed articles of electrical equipment).
8A Offences—energy efficiency requirements for electrical wiring work and electrical installations
(1) A person commits an offence if—
(a) the person carries out electrical wiring work; and
(b) the work does not comply with a regulation made under section 66 (2) (a) (Regulation-making power) that applies to the work.
Maximum penalty: 50 penalty units.
Note Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act
, s 48).
(2) A person commits an offence if—
(a) the person carries out electrical wiring work on an electrical installation; and
(b) the installation does not comply with a regulation made under section 66 (2) (a) that applies to the work.
Maximum penalty: 50 penalty units.
(3) A person commits an offence if—
(a) the person disposes of—
(i) all or part of an electrical installation; or
(ii) all or part of an article of electrical equipment; and
(b) the disposal does not comply with a standard prescribed by regulation that applies to the disposal.
Maximum penalty: 50 penalty units.
27 Definitions for pt
3
Section 9, definition of approved first seller
substitute
approved first seller means a person who—
(a) either—
(i) manufactures a prescribed article of electrical equipment in the ACT or another state or territory; or
(ii) imports a prescribed article of electrical equipment into the ACT from outside Australia; and
(b) is registered or approved as an approved first seller (however described) under a relevant safety standard.
28 Declaration of prescribed articles
of electrical equipment
New section 11A (4A) to (4C)
insert
(4A) If the construction occupations registrar states a safety standard under subsection (4) by adopting the law of a State, and that law includes a registration, approval or certification requirement, that requirement applies to the safety standard stated by the registrar.
(4B) Also, an article of electrical equipment ceases to comply with a safety standard if there is an approved first seller of the article and—
(a) the registrar is satisfied that—
(i) the approved first seller of the article is insolvent; or
(ii) the approved first seller of the article has been refused registration as a first seller or approved applicant, or equivalent registration, under a corresponding law of a State or another Territory; or
(iii) the registration of a person as a first seller or approved applicant, or equivalent registration of the person, under the corresponding law of a State or another Territory has been cancelled other than at the request of the person; or
(iv) the approved first seller of the article has been convicted of an offence against this part or part 3 as in force immediately before the commencement of this part or of a similar offence against the law of a State or another Territory; or
(v) the person has supplied an article of electrical equipment in breach of an undertaking referred to in a determination of compliance; or
(b) the approved first seller asks in writing that the registration be cancelled; or
(c) the approved first seller—
(i) for a body corporate—is dissolved; or
(ii) for an individual—dies.
(4C) For subsection (4B), a person is taken to be insolvent if—
(a) for a body corporate—a resolution for the winding-up of the body has been passed or an application for the winding-up of the body has been filed in a court; or
(b) for an individual—the person becomes bankrupt or personally
insolvent.
29 Sale or installation of prescribed
articles
Section 12 (1) (b) (i)
substitute
(i) a declaration of compliance in relation to the article is not registered in accordance with a relevant safety standard or corresponding law; or
substitute
(i) a declaration of compliance in relation to the article had never been registered in accordance with a relevant safety standard or corresponding law; or
omit
32 Multiple occupations, classes and
authorisation
Section 20
omit
the authority
substitute
the registrar
33 Registers
Section 21 (1)
(b) and (c)
omit
34 Revocation of nominee’s
appointment
Section 30 (2) (a)
omit
the authority
substitute
the registrar
35 Emergency rectification
order
Section 39
omit
the authority
substitute
the registrar
36 Power to inspect electrical wiring
work
Section 57 (1)
omit
(Electrical wiring work)
insert
(Electrical wiring work and electrical installations)
37 Regulation-making
power
New section 66 (2)
after the note, insert
(2) The Executive may also make regulations—
(a) for electrical installations and articles of electrical equipment to promote the efficient use or conservation of power and energy, or to limit harm to the environment; and
(b) that set standards in relation to construction, installation, configuration, maintenance, repair, service, replacement, inspection, testing, labelling or disposal of articles of electrical equipment and electrical installations (or parts of electrical equipment and electrical installations).
38 Reviewable
decisions
Schedule 1, items 3 to 8
omit
insert
• construction occupations registrar
omit
• planning and land authority
41 Further amendments, mentions of planning and land authority
omit
planning and land authority
substitute
construction occupations registrar
in
• sections 11A and 11B
• section 20
• section 28
• sections 30 and 31
• section 36
• sections 39 and 40
Part 5 Energy Efficiency (Cost of Living) Improvement Act 2012
42 Achieving energy savings
obligations
New section 14 (4)
after the notes, insert
(4) However, if a NERL retailer undertakes an eligible activity before the retailer gives a compliance plan for a compliance period to the administrator, the activity is taken not to comply with an approved code of practice for the compliance period.
43 NERL retailer must lodge compliance
plan
Section 17 (3)
omit
lodge a compliance plan
substitute
give a compliance plan to the administrator
44 Compliance with energy savings
obligations—retailer energy savings result
New section 20 (3A)
and (3B)
insert
(3A) The administrator may exclude from the calculation of a retailer energy savings result the abatement factor for an eligible activity reported by the retailer under section 19 if the administrator is not satisfied that the activity complies with a relevant approved code of practice.
(3B) If the administrator excludes data from a calculation under subsection (3A), the administrator may substitute data that the administrator believes on reasonable grounds is correct.
Example—reason for excluding an abatement factor
the abatement factor has been miscalculated
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132)
insert
20D Redetermining energy savings result
(1) If the administrator believes on reasonable grounds that the determination of a NERL retailer’s retailer energy savings result is not correct, the administrator may make a new determination of the retailer’s retailer energy savings result under section 20.
(2) A new determination under section 20 must not be made more than 5 years after the day on which the compliance period, for which the original determination was made, ends.
(3) Section 20 (4) to (8) and section 21 apply to a new determination of the retailer’s retailer energy savings result.
46 Compliance with priority household
obligations—retailer priority household result
New section 21
(2A) and (2B)
insert
(2A) The administrator may exclude from the calculation of a retailer priority household result the abatement factor for an eligible activity reported by the retailer under section 19 if the administrator is not satisfied that the activity complies with a relevant approved code of practice.
(2B) If the administrator excludes data from a calculation under subsection (2A), the administrator may substitute data that the administrator believes on reasonable grounds is correct.
47 Codes of practice
New
section 25 (1) (e)
before the note, insert
(e) carrying out an audit of information given to the administrator under section 19 (Information to be given to administrator), including the following:
(i) purpose of the audit;
(ii) qualifications of auditors;
(iii) appointment of auditors;
(iv) removal of auditors;
(v) obligations of auditors;
(vi) reporting requirements for auditors.
insert
Part 4A Information sharing
28A Definitions—pt 4A
In this part:
compliance information means information that—
(a) the administrator has as a result of exercising a function under this Act; or
(b) a regulatory agency has—
(i) as a result of exercising a function under a territory law; and
(ii) that is relevant to a function of the administrator under this Act.
non-territory agency means an agency of the Commonwealth or a State that exercises functions analogous to those exercised by a regulatory agency.
regulatory agency means any of the following:
(a) the construction occupations registrar;
(b) the planning and land authority;
(c) the environment protection authority;
(d) the commissioner appointed under the Fair Trading (Australian Consumer Law) Act 1992
;
(e) the director-general responsible for the Fair Trading (Australian Consumer Law) Act 1992
;
(f) the director-general responsible for the Work Health and Safety Act 2011
;
(g) the commissioner appointed under the Work Health and Safety Act 2011
;
(h) the independent competition and regulatory commission;
(i) the chief executive officer appointed under the Independent Competition and Regulatory Commission Act 1997
;
(j) an entity prescribed by regulation.
28B Sharing information—territory agencies
(1) The administrator may—
(a) give compliance information to a regulatory agency; and
(b) impose conditions on how the regulatory agency uses, stores or shares the information.
(2) The administrator may request compliance information from a regulatory agency.
(3) A regulatory agency that receives a request under subsection (2) may—
(a) give the information to the administrator; and
(b) impose conditions on how the administrator uses, stores or shares the information.
(4) However, compliance information must not be given under this section unless the entity that gives the information is satisfied that—
(a) the entity that receives the information (the recipient) will use the information to exercise a function the recipient has under a territory law; and
(b) giving or receiving the information will not compromise the exercise of a function under a territory law.
Example—instance where exercise of function could be compromised
XYZ Pty Ltd carries out an eligible activity under this Act. The work safety
commissioner (the commissioner) is investigating XYZ for possible
breaches of the
. The commissioner receives a request for compliance information from the administrator. The commissioner believes that giving the administrator the information could jeopardise the investigation. The commissioner may refuse the request.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
28C Sharing information—non-territory agencies
(1) The administrator may give compliance information to a non-territory agency if the administrator believes on reasonable grounds that—
(a) the information relates to the undertaking of eligible activities; and
(b) the information relates to compliance with a law of another jurisdiction that is applied, adopted or incorporated under—
(i) a determination made under section 10 (Eligible activities); or
(ii) a code of practice approved under section 25 (Codes of practice).
Note Law of another jurisdiction—see s 10 (8).
(2) The administrator may impose conditions on how the non-territory agency uses, stores or shares the information.
(3) However, the administrator must not give compliance information under this section unless the administrator is satisfied that—
(a) the entity that receives the information (the recipient) will use the information to exercise a function the recipient has under a law mentioned in subsection (1) (b); and
(b) giving the information will not compromise the exercise of a function under a territory law.
insert
Division 5.5A Contravention of code of practice
49A Powers of administrator to address contravention
(1) If the administrator believes on reasonable grounds that a NERL retailer, or the retailer’s agent, has contravened a code of practice, the administrator may do any of the following:
(a) require the retailer or agent to complete a stated course of training to the satisfaction of the administrator;
(b) restrict or place a condition on the performance of an activity by the retailer or agent;
Examples—condition
1 retailer must notify administrator before performing an activity
2 retailer must arrange for independent quality assurance
3 retailer must report more often
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(c) require the retailer to rectify the contravention within a stated time;
(d) if the administrator is satisfied that it would not be appropriate to require the retailer to rectify the contravention because of the relationship between the retailer and the land owner—authorise someone else to rectify the contravention, and require the NERL retailer to pay for the work;
Example where relationship requires another party to do work
A NERL retailer installed an article on land owned by another person (the owner). The owner has been seeking redress for bad workmanship from the retailer in relation to this and/or other installations on the land. The owner has no confidence in the retailer’s ability to properly carry out the work. It would not be appropriate to require the retailer to do the work.
(e) require the retailer to pay a financial penalty of not more than $1 000 in relation to each contravention.
Note A penalty imposed under this Act must be paid to the Territory.
(2) If the administrator requires a person to complete training under subsection (1) (a), the person must pay—
(a) for the training; and
(b) if the Territory incurs expense in arranging the training—the Territory the amount of expense incurred.
(3) However, if the person who is required to complete training under subsection (1) (a) is a retailer’s agent, the retailer must pay the costs mentioned in subsection (2).
49B Notice before exercising power
(1) The administrator must not take action under section 49A unless the administrator has given notice in relation to the following matters to a relevant person:
(a) details of the action that may be taken;
(b) an explanation of why the administrator intends to take the action;
(c) that the person may make submissions about the proposed action during a period stated in the notice that is not less than 5 working days after the day the person receives the notice.
(2) However, the administrator must not give notice of action to be taken under section 49A to an owner of land unless the action requires work to be carried out on the land.
(3) Subsection (4) applies if the rectification work must be carried out on land that is not owned or occupied by the NERL retailer.
(4) The notice must—
(a) state that the administrator will not make a rectification order unless the administrator is satisfied that it is appropriate to make the order in relation to the NERL retailer, because of the relationship between the retailer and the land owner; and
(b) if the administrator is not satisfied that it is appropriate to make the order in relation to the NERL retailer, because of the relationship between the retailer and the land owner—inform the NERL retailer that the administrator proposes to take action under section 49A (1) (d).
(5) In this section:
relevant person means a NERL retailer, and a person on whose land the retailer has carried out an activity.
49C When rectification order may be made
(1) This section applies if—
(a) the administrator has given a relevant person notice under section 49B; and
(b) the person carried out the activity to which the notice relates; and
(c) after considering any submissions made within the time mentioned in the notice, the administrator is satisfied—
(i) the person is contravening, or has contravened, this Act; and
(ii) it is appropriate to make a rectification order in relation to the person.
Note 1 If deciding under this section whether it is appropriate to make a rectification order, the registrar must consider the considerations mentioned in s 49D.
Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
(2) The administrator may make an order under section 49E (Rectification orders) in relation to the person.
(3) If the administrator receives a submission within the period stated in subsection (1) (c), the administrator may not make an order under section 49E if a submission is made that satisfies the administrator that the act that caused the contravention happened, or ended, more than 10 years before the day the registrar proposes to make the order.
(4) The following do not prevent the administrator making an order under section 49D:
(a) a report has been accepted;
(b) an energy savings result has been determined under section 20 (Compliance with energy savings obligations—retailer energy savings result) or section 21 (Compliance with priority household obligations—retailer priority household result);
(c) a penalty notice has been issued.
49D Considerations for deciding under s 49B and s 49C
(1) In deciding whether it is, or may be, appropriate to make a rectification order in relation to a NERL retailer that is contravening, or has or may have contravened, this Act, the administrator must consider the following:
(a) any injury or damage caused, or that could be caused, by the contravention;
(b) if a rectification order is proposed—how the proposed order may affect people affected by the contravention.
Example—effect of contravention, including injury and damage
adverse effect on health of user of thing affected by contravention
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2) The administrator may not make a rectification order if an order has been made under another Territory law that requires a person to carry out work that would address the matters that the rectification order would cover.
(3) Also, if there is another Territory law that could address the matters that the rectification order would cover, the administrator—
(a) must refer the matter to the administrative unit responsible for the law; and
(b) may make a rectification order only if the administrator remains satisfied that injury or damage is, or could be, caused by the contravention.
49E Rectification orders
(1) The administrator may make an order (a rectification order) in relation to a NERL retailer requiring the retailer—
(a) to take stated action to rectify work done as part of an eligible activity or the retailer’s operations under this Act; or
(b) to start or finish stated work in relation to which an eligible activity or operation of the retailer has been, is being or was proposed to be provided.
Example—stated action
rectify work to comply with a stated performance requirement of the Building Code of Australia
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2) The rectification order may also require the NERL retailer to give the administrator written information about a thing required to be done under the order.
Example
an engineer’s report about whether rectified work complies with relevant standards
(3) Subsection (4) applies if—
(a) the order requires the NERL retailer to do a thing; and
(b) the NERL retailer—
(i) is not licensed, authorised or qualified to do the thing; or
(ii) if a licence, authorisation or qualification is not required to do the thing—does not have appropriate experience and skill to do the thing.
(4) The NERL retailer must arrange, and pay for, the thing to be done by someone who—
(a) is licensed, authorised or qualified to do the thing; or
(b) if a licence, authorisation or qualification is not required to do the thing—has appropriate experience and skill to do the thing.
Example
A rectification order requires Freddie to take stated action to rectify work he has done. The action includes having to provide written information about whether the rectified work complies with relevant standards. Freddie is not qualified to provide the information so he must arrange, and pay for, a qualified person to prepare a report about the rectified work.
(5) The rectification order must state a period within which what is required to be done must be done.
(6) The stated period for a rectification order must not be less than 1 month after the day the rectification order is given to the NERL retailer.
(7) A copy of the rectification order must be given to the land owner.
49F Failure to comply with order
(1) This section applies if an entity (the ordered entity) in relation to whom a rectification order is made contravenes the rectification order.
(2) The Territory may, in writing, authorise a person to enter the land where the work to which the rectification order relates is to be done and—
(a) take the action stated in the rectification order; or
(b) start or finish the work stated in the rectification order.
(3) The authorised person must—
(a) give the owner of the land written notice that the person intends to enter the land at least 24 hours before the person enters the land; and
(b) give a copy of the notice to the ordered entity before entering the land.
(4) However, the Territory must not authorise someone until—
(a) if the ordered entity applied for review of the decision within the period for review (the review period) of the decision to make the rectification order allowed under the ACT Civil and Administrative Tribunal Act 2008
—the review is finally disposed of; or
(b) the review period has ended.
(5) The ordered entity is liable for the reasonable cost incurred in doing anything under subsection (2) and the cost is taken to be a debt owing to the Territory.
Division 5.5B Public safety restrictions
49G Restriction of people—public safety
(1) This section applies if the administrator believes on reasonable grounds that a person has engaged in conduct, or demonstrated insufficient skills and knowledge in carrying out an eligible activity, that presents or is likely to present a risk of death or injury to a person, significant harm to the environment or significant damage to property.
Examples
1 An installer authorised by a retailer to carry out eligible activities is not an electrician but nevertheless undertakes electrical wiring work in consumer’s premises.
2 An inspection of the installation of sealing to a ventilation opening shows that a person has undertaken the work without the required building approval and has sealed a room in which there is a flueless gas heater. When questioned by the administrator, it is apparent that the person is not familiar with the requirements of the building code or the standards for ventilation for gas appliances and has undertaken a number of installations that are not compliant and may cause carbon monoxide poisoning or other problems for the occupants.
3 An installer is replacing a window and frame and disturbs friable asbestos. Although the installer has taken an asbestos awareness course, the installer is not a licensed asbestos assessor or an asbestos removalist. The installer attempts to remove the asbestos himself and places the removed asbestos in a normal garbage bin, releasing asbestos fibres into the air and causing a potential health problem to residents and other members of the public.
4 A retailer or contractor engaged by a retailer employs unlicensed people to undertake gasfitting work.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2) The administrator may place a restriction on a person that—
(a) prevents the person from undertaking an eligible activity; or
(b) prevents the person from undertaking certain prescribed activity requirements; or
(c) prevents the person from undertaking eligible activities or certain prescribed activity requirements without supervision; or
(d) requires the person to undertake specific training, assessment or other remedial activity.
Examples
1 After undertaking inspections on a number of solar water heater installations, the administrator determines that a number of installers employed by an authorised contractor have failed to install appropriate tempering devices, making the installations unsafe. The administrator restricts the authorised contractor from undertaking solar water heater installations until its installers undertake remedial training and the contractor puts in place a quality assurance system for checking installations.
2 A retailer has been permitting unlicensed people to undertake degassing of refrigerators. The administrator may prevent the retailer from undertaking activities requiring the degassing of refrigerators until it can demonstrate that it has engaged suitably licensed people to undertake the work.
(3) A restriction mentioned in subsection (2) does not make it unlawful for the person to undertake an eligible activity, but the eligible activity is taken to generate no abatement factor for this Act.
(4) The restriction mentioned in subsection (2) applies when the administrator gives the person a notice that includes—
(a) the name of the person to whom the restriction applies; and
(b) the nature of the conduct or deficiency; and
(c) the nature of the risk; and
(d) the duration of the restriction; and
(e) the eligible activities, or prescribed activity requirements the restriction applies to; and
(f) a statement that the retailer may apply in writing to the administrator to revoke the restriction.
(5) The administrator may give the notice orally or in writing.
(6) However, if the administrator gives the notice orally, the administrator must give the notice in writing not later than 2 days after the day the administrator gave the notice orally.
(7) In this section:
person, in relation to a restriction, means a retailer, an agent or a representative of a retailer that arranges or carries out eligible activities or certain actions required as part of an eligible activity under this Act.
49H End of restriction
(1) This section applies if a restriction has been placed on a person under section 49G.
(2) The administrator must end the restriction if satisfied that the reason for placing the restriction on the person no longer exists.
(3) The administrator may end the restriction if the administrator believes on reasonable grounds that ending the restriction on the person will not put consumers of the person’s services at greater risk from using the services than if the restriction continued in force.
(4) The administrator must review the restriction not later than 3 months after the day the restriction is placed on the person, unless the restriction ends earlier.
(5) A restriction under section 49G continues in force after the 3 months mentioned in subsection (4) if—
(a) the administrator is not satisfied that the reason for placing the restriction on the person no longer exists; or
(b) the person has not complied with the restriction.
Division 5.5C Information requirements
49I Meaning of information requirement—div 5.5C
In this division:
information requirement—see section 49J (2).
49J Information requirements
(1) This section applies if the administrator believes on reasonable grounds that a person—
(a) has information (the required information) reasonably required by the administrator for the administration or enforcement of this Act; or
(b) has possession or control of a document containing the required information.
(2) The administrator may give the person a notice (an information requirement) requiring the person to give the information, or produce the document, to the administrator.
(3) The information requirement must be in writing and must include details of the following:
(a) the identity of the person to whom it is given;
(b) why the information is required;
(c) the time by which the notice must be complied with.
(4) A person does not incur any civil or criminal liability only because the person gives information, or produces a document, to the administrator in accordance with an information requirement.
49K Treatment of documents provided under information requirement
(1) The administrator must return a document produced in accordance with an information requirement to the person who produced the document as soon as practicable.
(2) Before returning the document, the administrator may make copies of, or take extracts from, the document.
substitute
Schedule 1 Reviewable decisions
(see pt 6)
|
column 1
item
|
column 2
section
|
column 3
decision
|
column 4
entity
|
|---|---|---|---|
|
1
|
18
|
approving an application in relation to acquisition of abatement
factors
|
NERL retailer applying for the approval
|
|
2
|
20
|
determining retailer energy savings result
|
NERL retailer receiving the result
|
|
3
|
21
|
determining retailer priority household result
|
tier 1 NERL retailer receiving the result
|
|
4
|
49A
|
making requirement, imposing restriction or condition
|
person to whom requirement, restriction or condition applies
|
|
5
|
49H
|
refusing to end restriction under s 49G
|
person to whom restriction applies
|
51 Dictionary, definition of auditor
omit
52 Dictionary, new definitions
insert
compliance information, for part 4A (Information sharing)—see section 28A.
information requirement, for division 5.5C (Information requirements)—see section 49H.
non-territory agency, for part 4A (Information sharing)—see section 28A.
rectification order—see section 49E (Rectification orders).
regulatory agency, for part 4A (Information sharing)—see section 28A.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 27 February 2014.
2 Notification
Notified under the
on 2014.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2014
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