ENERGY EFFICIENCY OPPORTUNITIES BILL 2005

i Energy Efficiency Opportunities Bill 2005 No. , 2005

Contents

Part 1--Preliminary

Short title.......................................................................................1

Commencement .............................................................................2

Object............................................................................................2

Definitions.....................................................................................2

Schedule 1 (consequences of contravening civil penalty

provisions).....................................................................................3

Part 2--Definitions relating to groups

Holding company...........................................................................4

Controlling corporation ..................................................................4

Group and members of a group.......................................................4

Part 3--Corporations required to register

Obligation to apply to register ........................................................6

Energy use threshold......................................................................6

Exemption from registration on application by corporation..............8

Part 4--Registration

The Register ..................................................................................9

Secretary must register corporation.................................................9

Corporation may apply for deregistration........................................9

Part 5--Assessment plan

Registered corporation must submit assessment plan every 5

years............................................................................................11

Approval of assessment plan ........................................................11

Refusal to approve assessment plan ..............................................12

Requirements for an assessment plan............................................13

Registered corporation may seek variation to approved

assessment plan............................................................................14

Part 6--Energy efficiency opportunities assessments

Requirement to carry out energy efficiency opportunities

assessments..................................................................................15

Part 7--Reporting about energy efficiency opportunities

assessments

Overview.....................................................................................16

Reporting to the public.................................................................16

Reporting to the Secretary ............................................................17

Energy Efficiency Opportunities Bill 2005 No. , 2005 ii

Part 8--Powers of inspection

Division 1--Overview

Overview of Part..........................................................................18

Division 2--Appointment of authorised officers and identity

cards

Appointment of authorised officers...............................................19

Identity cards ...............................................................................19

Division 3--Powers of authorised officer

Subdivision A--Monitoring powers

Authorised officer may enter premises by consent or under

monitoring warrant.......................................................................20

Monitoring powers of authorised officers......................................20

Subdivision B--Power of authorised officer to ask questions and

seek production in certain circumstances

Authorised officer may request persons to answer questions..........22

Division 4--Obligations and incidental powers of authorised

officers

Authorised officer must produce identity card on request...............24

Consent .......................................................................................24

Announcement before entry..........................................................24

Details of monitoring warrant to be given to occupier etc.

before entry .................................................................................24

Use of electronic equipment in exercising monitoring powers........25

Compensation for damage to electronic equipment........................26

Division 5--Occupier's rights and responsibilities

Occupier entitled to be present during execution of

monitoring warrant.......................................................................28

Occupier to provide authorised officer with all facilities and

assistance.....................................................................................28

Division 6--Warrants

Monitoring warrants.....................................................................29

Part 9--Miscellaneous

Delegation ...................................................................................30

AAT review of decisions..............................................................30

Regulations..................................................................................30

iii Energy Efficiency Opportunities Bill 2005 No. , 2005

Schedule 1--Consequences of contravening civil

penalty provisions

Declarations of contravention .......................................................31

Declaration of contravention is conclusive evidence......................31

Pecuniary penalty orders ..............................................................31

Who may apply for a declaration or order .....................................32

Time limit for application for a declaration or order ......................32

Civil evidence and procedure rules for declarations of

contravention and civil penalty orders...........................................32

Civil proceedings after criminal proceedings.................................32

Criminal proceedings during civil proceedings..............................33

Criminal proceedings after civil proceedings.................................33

Minister requiring person to assist ................................................33

Relief from liability for contravention of civil penalty

provision .....................................................................................35

Part 1 Preliminary

Section 2

2 Energy Efficiency Opportunities Bill 2005 No. , 2005

2 Commencement

This Act commences on the day on which it receives the Royal

Assent.

3 Object

(1) The object of this Act is to improve the identification and

evaluation of energy efficiency opportunities by large energy using

businesses and, as a result, to encourage implementation of cost

effective energy efficiency opportunities.

(2) In order to achieve its object, this Act requires large energy using

businesses:

(a) to undertake an assessment of their energy efficiency

opportunities to a minimum standard in order to improve the

way in which those opportunities are identified and

evaluated; and

(b) to report publicly on the outcomes of that assessment in order

to demonstrate to the community that those businesses are

effectively managing their energy.

4 Definitions

(1) In this Act:

approved assessment plan means an assessment plan that has been

approved under section 16 or subsection 17(4).

Australia does not include any external Territory. However, it

includes an installation (within the meaning of the Customs Act

1901) that is deemed by section 5C of that Act to be part of

Australia.

civil penalty provision has the meaning given by clause 1 of

Schedule 1.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

controlling corporation has the meaning given by section 7.

Preliminary Part 1

Section 5

Energy Efficiency Opportunities Bill 2005 No. , 2005 3

Court means the Federal Court of Australia.

energy use threshold has the meaning given by section 10.

group has the meaning given by subsection 8(1).

holding company has the meaning given by section 6.

joint venture means an enterprise carried on by 2 or more entities

in common otherwise than in partnership.

member has the meaning given by subsection 8(2).

monitoring warrant means a warrant issued under section 38.

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

registered corporation means a controlling corporation that is

registered under Part 4.

Secretary means the Secretary of the Department.

subsidiary has the meaning given by section 46 of the

Corporations Act 2001.

warrant premises, in relation to a monitoring warrant, means the

premises to which the warrant relates.

(2) In this Act:

(a) a reference to energy use is taken to be a reference to energy

use in Australia; and

(b) a reference to energy efficiency is taken to be a reference to

energy efficiency in Australia.

5 Schedule 1 (consequences of contravening civil penalty provisions)

Schedule 1 has effect.

Part 2 Definitions relating to groups

Section 6

4 Energy Efficiency Opportunities Bill 2005 No. , 2005

Part 2--Definitions relating to groups

6 Holding company

A holding company, in relation to a body corporate, is a body

corporate of which the first body corporate is a subsidiary.

7 Controlling corporation

(1) A controlling corporation is a constitutional corporation that:

(a) does not have a holding company incorporated in Australia;

and

(b) is covered by subsection (2).

(2) A corporation is covered by this section unless:

(a) the corporation's activities are mainly in the electricity

generation, electricity and gas transmission, or electricity and

gas distribution sectors; and

(b) it is within a class of corporations (if any) specified in the

regulations.

8 Group and members of a group

(1) A controlling corporation's group consists of the controlling

corporation and its subsidiaries covered by subsections (3) and (4)

(if any).

(2) The members of the group are the controlling corporation and its

subsidiaries covered by subsections (3) and (4) (if any).

(3) A subsidiary of the controlling corporation is covered by this

section unless:

(a) the subsidiary is also a subsidiary of another body corporate

because the other body corporate meets the requirement in

subparagraph 46(a)(i) or (ii) of the Corporations Act 2001 in

relation to the subsidiary; and

Definitions relating to groups Part 2

Section 8

Energy Efficiency Opportunities Bill 2005 No. , 2005 5

(b) the other body corporate is not a member of the group

(including by reason of a previous operation of this

subsection).

(4) A subsidiary of the controlling corporation is covered by this

section unless:

(a) the subsidiary's activities are mainly in the electricity

generation, electricity and gas transmission, or electricity and

gas distribution sectors; and

(b) it is within a class of entities (if any) specified in the

regulations.

Part 3 Corporations required to register

Section 9

6 Energy Efficiency Opportunities Bill 2005 No. , 2005

Part 3--Corporations required to register

9 Obligation to apply to register

(1) A controlling corporation must apply to be registered under Part 4,

in accordance with this section, if its group meets the energy use

threshold for a financial year (the trigger year) under section 10.

Note:

Clause 3 of Schedule 1 provides for a civil penalty for failing to

comply with this subsection.

(2) Subsection (1) does not apply if the corporation:

(a) did not know; and

(b) could not, with reasonable diligence, have ascertained;

that its group met the energy use threshold for the trigger year

under section 10.

(3) A corporation that wishes to rely on subsection (2) bears an

evidential burden in relation to that matter.

(4) The application must be made on or before 31 March in the

financial year after the trigger year.

(5) The application must:

(a) be in the form (if any) specified in the regulations; and

(b) contain any other information that is required by the

regulations.

(6) This section applies only if the trigger year ends on or after 30 June

2006.

10 Energy use threshold

(1) A controlling corporation's group meets the energy use threshold

for a financial year if in that year the total energy used by the

entities mentioned in subsection (2) is more than 0.5 petajoules.

(2) The entities are:

(a) the members of the group; and

Corporations required to register Part 3

Section 10

Energy Efficiency Opportunities Bill 2005 No. , 2005 7

(b) a joint venture, if a member of the group is a participant in

the joint venture and the participants in the joint venture have

either:

(i) nominated that member as the responsible entity for the

joint venture in accordance with regulations made for

the purposes of subsection (6); or

(ii) not nominated an entity as the responsible entity for the

joint venture in accordance with those regulations; and

partnership and the partners in the partnership have either:

(i) nominated that member as the responsible entity for the

partnership in accordance with regulations made for the

purposes of subsection (6); or

(ii) not nominated an entity as the responsible entity for the

partnership in accordance with those regulations.

(3) For the purposes of subsection (1), the energy used by an entity

has the meaning given by the regulations.

(4) Without limiting subsection (3), regulations made for the purposes

of that subsection may determine that meaning:

(a) by reference to particular kinds and uses of energy; and

(b) in relation to particular periods during which an entity is a

member of a controlling corporation's group during a

financial year.

(5) Without limiting subsection (3), regulations made for the purposes

of that subsection may determine that meaning:

(a) in relation to activities of a member of a controlling

corporation's group as the trustee of a trust; and

(b) in relation to activities under a franchise of which a member

of a controlling corporation's group is a franchisor.

(6) The regulations may establish rules under which:

(a) participants in a joint venture may make, and revoke,

nominations for the purposes of paragraph (2)(b); and

(b) partners in a partnership may make, and revoke, nominations

for the purposes of paragraph (2)(c).

Part 3 Corporations required to register

Section 11

8 Energy Efficiency Opportunities Bill 2005 No. , 2005

11 Exemption from registration on application by corporation

(1) Subsection 9(1) does not apply to a controlling corporation in

relation to a particular financial year if the corporation is covered

by an exemption under subsection (5) for that year.

(2) A controlling corporation may apply to the Secretary for an

exemption from the requirement to be registered under Part 4 in

relation to a particular financial year if:

(a) it is not already registered under Part 4; and

(b) the controlling corporation's group met the energy use

threshold for the previous financial year (the trigger year)

under section 10.

(3) The application must be made on or before 31 December in the

financial year after the trigger year.

(4) The application must:

(a) be in the form (if any) specified in the regulations; and

(b) contain any other information that is required by the

regulations.

(5) The Secretary must grant the exemption if:

(a) the application is in accordance with subsections (2), (3) and

(4); and

(b) the Secretary is satisfied that the controlling corporation's

group is not likely to meet the energy use threshold under

section 10 for the financial year after the trigger year.

(6) The Secretary is taken to have granted the exemption under

subsection (5) if he or she has not given the controlling corporation

notice in writing, within 60 days after receiving the application for

exemption, of a decision not to grant the exemption.

Registration Part 4

Section 12

Energy Efficiency Opportunities Bill 2005 No. , 2005 9

Part 4--Registration

12 The Register

(1) The Secretary must cause a Register to be kept for the purposes of

this Act.

(2) The Register is called the Register of Corporations for the Energy

Efficiency Opportunities Scheme.

(3) The Secretary may cause the contents of the Register to be made

available to the public by electronic or other means.

(4) The Secretary must cause the following information, and only that

information, to be entered on the Register:

(a) the name of each corporation that the Secretary must register

under section 13;

(b) any other matters required by the regulations.

(5) A corporation is registered under this Part when the Secretary has

entered the name of the corporation on the Register.

13 Secretary must register corporation

The Secretary must register a corporation under this Part if:

(a) the Secretary is satisfied that the corporation must apply to be

registered in accordance with sections 9 and 11; and

(a) the corporation has applied for registration in accordance

with section 9.

14 Corporation may apply for deregistration

(1) A registered corporation may apply to the Secretary to be

deregistered.

(2) The application must:

(a) be in the form (if any) specified in the regulations; and

Part 4 Registration

Section 14

10 Energy Efficiency Opportunities Bill 2005 No. , 2005

(b) contain any other information that is required by the

regulations.

(3) The Secretary must remove the name of the corporation from the

corporation's group is not likely to meet the energy use threshold

in section 10 for:

(a) the financial year in which the application is made; and

(b) the next 2 financial years.

(4) The corporation ceases to be registered under this Part when the

Secretary has removed its name from the Register.

Assessment plan Part 5

Section 15

Energy Efficiency Opportunities Bill 2005 No. , 2005 11

Part 5--Assessment plan

15 Registered corporation must submit assessment plan every 5

years

(1) A registered corporation must give the Secretary an assessment

plan meeting the requirements in subsections 18(1), (2) and (3).

Note:

Section 70 of the Crimes Act 1914 imposes secrecy obligations on

Commonwealth officers.

(2) An assessment plan must be given to the Secretary at a time during

each period that:

(a) begins 6 months before a day covered by subsection (3); and

(b) ends on that day.

(3) The following days are covered by this subsection:

(a) 31 December in the financial year following the financial

year in which the corporation was first required to apply

under sections 9 and 11 to be registered under Part 4; and

(b) every fifth anniversary of the day mentioned in paragraph (a).

(4) To avoid doubt, a controlling corporation that has applied to be

registered under Part 4, but is not yet registered, may give the

Secretary an assessment plan for the purposes of complying with

subsection (1).

(5) A registered corporation contravenes this subsection if it fails to

comply with subsections (1) and (2).

Note:

Clause 3 of Schedule 1 provides for a civil penalty for failing to

comply with this subsection.

16 Approval of assessment plan

(1) This section applies if the Secretary has been given an assessment

plan under section 15.

(2) If the Secretary is satisfied that the assessment plan substantially

meets the requirements in section 18, the Secretary must:

Part 5 Assessment plan

Section 17

12 Energy Efficiency Opportunities Bill 2005 No. , 2005

(a) approve the assessment plan; and

(b) give the controlling corporation written notice of the

approval.

(3) If the Secretary has not refused to approve the assessment plan

within 6 months after receiving it, he or she:

(a) is taken to be satisfied that it substantially meets the

requirements in section 18; and

(b) must deal with it under subsection (2) accordingly.

17 Refusal to approve assessment plan

(1) This section applies if:

(a) the Secretary has been given an assessment plan under

section 15; and

(b) he or she is not satisfied that the assessment plan

substantially meets the requirements in section 18.

(2) The Secretary must:

(a) refuse to approve the assessment plan; and

(b) give the controlling corporation written notice of the refusal.

(3) The Secretary must also:

(a) prepare a revised assessment plan for the controlling

corporation that substantially meets the requirements in

section 18, to the satisfaction of the Secretary; and

(b) give the controlling corporation a notice:

(i) setting out the revised assessment plan; and

(ii) inviting the controlling corporation to comment on the

revised assessment plan within a specified period.

(4) At the end of the period specified in the invitation, the Secretary

may:

(a) approve the revised assessment plan; and

(b) give the controlling corporation written notice of the

approval.

Assessment plan Part 5

Section 18

Energy Efficiency Opportunities Bill 2005 No. , 2005 13

(5) In making a decision under subsection (4), the Secretary must

consider any written comments received from the controlling

corporation within the period specified in the invitation.

(6) If the Secretary does not approve the revised assessment plan under

subsection (4), this section applies in relation to that plan as if:

(a) it were an assessment plan that the Secretary had been given

under section 15; and

(b) the Secretary were not satisfied that it substantially met the

requirements in section 18.

Note:

This means that the Secretary must prepare a new revised assessment

plan, and send it to the controlling corporation for comment.

18 Requirements for an assessment plan

(1) An assessment plan must set out a proposal for assessing the

opportunities for improving the energy efficiency of the controlling

corporation's group for the period mentioned in subsection (2).

(2) The period is the period of 5 years ending on the latest day on

which the controlling corporation is next required under section 15

to give the Secretary an assessment plan.

(3) The assessment plan must be in the form (if any) specified in the

regulations.

(4) The proposal must set out particular actions that need to be done to

assess those opportunities.

(5) Those actions must be specified for the group:

(a) as a whole; or

(b) in terms of particular parts of the group.

(6) The proposal must set out a deadline or deadlines for doing all of

those actions.

(7) The assessment plan must meet any extra requirements set out in

the regulations.

(8) Without limiting subsection (7), regulations made for the purposes

of that subsection may:

Part 5 Assessment plan

Section 19

14 Energy Efficiency Opportunities Bill 2005 No. , 2005

(a) set out requirements for a proposal in relation to the

following:

(i) the types of actions mentioned in subsection (4);

(ii) the deadlines for doing those actions;

(iii) any other matter; and

(b) require particular information to be set out in the assessment

plan.

19 Registered corporation may seek variation to approved

assessment plan

(1) A registered corporation with an approved assessment plan may

give the Secretary a proposed variation to the plan.

(2) Section 16 and subsections 17(1) and (2) apply to the variation as if

it (together with the approved assessment plan) were an assessment

plan given to the Secretary.

Energy efficiency opportunities assessments Part 6

Section 20

Energy Efficiency Opportunities Bill 2005 No. , 2005 15

Part 6--Energy efficiency opportunities

assessments

20 Requirement to carry out energy efficiency opportunities

assessments

(1) A registered corporation must carry out the proposal in its

approved assessment plan for assessing the opportunities for

improving the energy efficiency of its group.

(2) A registered corporation must carry out that proposal in accordance

with requirements (if any) set out in the regulations.

(3) Regulations made for the purposes of subsection (2) may set out

requirements relating to:

(a) the communication of objectives about energy use; and

(b) the measurement and analysis of energy use, and of related

business activity; and

improving energy efficiency; and

(d) any other matter related to the carrying out of proposals in an

approved assessment plan.

(4) A registered corporation contravenes this subsection if it fails to

comply with subsections (1) and (2).

Note:

Clause 3 of Schedule 1 provides for a civil penalty for failing to

comply with this subsection.

Part 7 Reporting about energy efficiency opportunities assessments

Section 21

16 Energy Efficiency Opportunities Bill 2005 No. , 2005

Part 7--Reporting about energy efficiency

opportunities assessments

21 Overview

A registered corporation must:

(a) prepare and make available to the public a report in

accordance with section 22; and

(b) prepare and give to the Secretary a report in accordance with

section 23.

22 Reporting to the public

(1) A registered corporation must:

(a) prepare a report in accordance with this section for each

period mentioned in subsection (2); and

(b) make the report available to the public in accordance with

subsection (5).

Note:

Clause 3 of Schedule 1 provides for a civil penalty for failing to

comply with this subsection.

(2) The period is the period specified in the regulations.

(3) The report must contain:

(a) a description of the way in which the corporation has carried

out, during the period, the proposal in its approved

assessment plan for assessing the opportunities for improving

the energy efficiency of its group; and

(b) the results of carrying out that proposal; and

(d) any other information required by the regulations.

(4) The report must:

(a) be in the form (if any) specified in the regulations; and

(b) be signed by the chair of the board of directors (or equivalent

officer) of the registered corporation.

Reporting about energy efficiency opportunities assessments Part 7

Section 23

Energy Efficiency Opportunities Bill 2005 No. , 2005 17

(5) The report must be made available to the public:

(a) at the time specified in the regulations; and

(b) in the manner (if any) specified in the regulations.

23 Reporting to the Secretary

(1) A registered corporation must:

(a) prepare a report in accordance with this section for each

period mentioned in subsection (2); and

(b) give the report to the Secretary in accordance with

subsection (5).

Note 1:

Clause 3 of Schedule 1 provides for a civil penalty for failing to

comply with this subsection.

Note 2:

Section 70 of the Crimes Act 1914 imposes secrecy obligations on

Commonwealth officers.

(2) The period is the period specified in the regulations.

(3) The report must contain:

(a) the information required to be contained in a report made to

the public under section 22; and

(b) any further information required by the regulations.

(4) The report must be in the form (if any) specified in the regulations.

(5) The report must be given to the Secretary:

(a) at the time specified in the regulations; and

(b) in the manner (if any) specified in the regulations.

Part 8 Powers of inspection

Division 1 Overview

Section 24

18 Energy Efficiency Opportunities Bill 2005 No. , 2005

Part 8--Powers of inspection

Division 1--Overview

24 Overview of Part

(1) This Part provides for powers of inspection in relation to

obligations under this Act.

(2) Division 2 provides for the appointment of authorised officers to

undertake inspection functions and for the issue of identification

for such persons.

(3) Division 3 sets out the powers of authorised officers and Division 4

sets out the obligations imposed on authorised officers in the

exercise of those powers.

(4) Division 5 deals with an occupier's rights and responsibilities in

circumstances where an authorised officer seeks to exercise

inspection powers.

(5) Division 6 deals with the procedure for obtaining and the nature of

monitoring warrants.

Powers of inspection Part 8

Appointment of authorised officers and identity cards Division 2

Section 25

Energy Efficiency Opportunities Bill 2005 No. , 2005 19

Division 2--Appointment of authorised officers and

identity cards

25 Appointment of authorised officers

(1) The Secretary may, in writing, appoint:

(a) an officer or employee of the Department; or

(b) any other suitably qualified person;

to be an authorised officer for the purposes of this Part.

(2) In exercising powers or performing functions as an authorised

officer, an authorised officer must comply with any directions of

the Secretary.

26 Identity cards

(1) The Secretary must issue an identity card to an authorised officer

in the form prescribed by the regulations. The identity card must

contain a recent photograph of the authorised officer.

(2) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised officer; and

return the identity card to the Secretary.

Penalty: 1 penalty unit.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(3) An authorised officer must carry the identity card at all times when

exercising powers or performing functions as an authorised officer.

Part 8 Powers of inspection

Division 3 Powers of authorised officer

Section 27

20 Energy Efficiency Opportunities Bill 2005 No. , 2005

Division 3--Powers of authorised officer

Subdivision A--Monitoring powers

27 Authorised officer may enter premises by consent or under

monitoring warrant

(1) For the purposes of substantiating information provided under this

Act or of determining whether this Act has been complied with, an

authorised officer may:

(a) enter any premises:

(i) during normal business hours; or

(ii) if the entry is made under a monitoring warrant--at any

time specified in the warrant; and

(b) exercise the monitoring powers set out in section 28.

(2) An authorised officer is not authorised to enter premises under

subsection (1) unless:

(a) the premises are business premises, the occupier of the

premises has consented to the entry and the officer has shown

his or her identity card if required by the occupier; or

(b) the entry is made under a monitoring warrant.

(3) If an authorised officer is on the premises with the consent of the

occupier, the authorised officer must leave the premises if the

occupier asks the authorised officer to do so.

28 Monitoring powers of authorised officers

(1) For the purposes of this Part, the following are the monitoring

powers that an authorised officer may exercise in relation to

premises under section 27:

(a) the power to search the premises for any thing on the

premises that may relate to compliance with this Act;

(b) the power to examine any activity conducted on the premises

that may relate to information provided for the purposes of

this Act;

Powers of inspection Part 8

Powers of authorised officer Division 3

Section 28

Energy Efficiency Opportunities Bill 2005 No. , 2005 21

relate to information provided for the purposes of this Act;

(d) the power to take photographs or make video or audio

recordings or sketches on the premises of any such activity or

thing;

(e) the power to inspect any document on the premises that may

relate to information provided for the purposes of this Act;

(f) the power to take extracts from, or make copies of, any such

document;

(g) the power to take onto the premises such equipment and

materials as the authorised officer requires for the purpose of

exercising powers in relation to the premises;

(h) the power to secure a thing that:

(i) is found during the exercise of monitoring powers on

the premises; and

(ii) an authorised officer believes on reasonable grounds

affords evidence of a contravention of this Act or of the

commission of an offence against the Crimes Act 1914;

until a warrant is obtained to seize the thing;

(i) the powers in subsections (2) and (3).

(2) For the purposes of this Part, monitoring powers includes the

power to operate equipment at premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to assessing the correctness of

information provided under this Act.

(3) For the purposes of this Part, monitoring powers includes the

following powers in relation to information described in

subsection (2) found in the exercise of the power under that

subsection:

(a) the power to operate facilities at the premises to put the

information in documentary form and copy the documents so

produced;

Part 8 Powers of inspection

Division 3 Powers of authorised officer

Section 29

22 Energy Efficiency Opportunities Bill 2005 No. , 2005

(b) the power to operate facilities at the premises to transfer the

information to a disk, tape or other storage device that:

(i) is brought to the premises for the exercise of the power;

(ii) is at the premises and the use of which for the purpose

has been agreed in writing by the occupier of the

premises;

storage device to which the information has been transferred

in exercise of the power under paragraph (b).

Subdivision B--Power of authorised officer to ask questions

and seek production in certain circumstances

29 Authorised officer may request persons to answer questions

(1) If the authorised officer was only authorised to enter premises

because the occupier of the premises consented to the entry, the

authorised officer may ask the occupier to:

(a) answer any questions related to the operation of this Act that

are put by the authorised officer; and

(b) produce any document requested by the authorised officer

that is so related.

(2) If the authorised officer was authorised to enter the premises by a

monitoring warrant, the authorised officer has power to require the

occupier (if the occupier is in or on the premises), or another

person who apparently represents the occupier (if that person is in

or on the premises), to:

(a) answer any questions related to the operation of this Act that

are put by the authorised officer; and

(b) produce any document requested by the authorised officer

that is so related.

(3) A person commits an offence if the person refuses or fails to

comply with a requirement under subsection (2).

Penalty: 6 months imprisonment.

Powers of inspection Part 8

Powers of authorised officer Division 3

Section 29

Energy Efficiency Opportunities Bill 2005 No. , 2005 23

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(4) An individual is excused from complying with a requirement of

subsection (2) if the answer to the question or the production of the

document might tend to incriminate the individual or expose the

individual to a penalty.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4), see subsection 13.3(3) of the Criminal Code.

Part 8 Powers of inspection

Division 4 Obligations and incidental powers of authorised officers

Section 30

24 Energy Efficiency Opportunities Bill 2005 No. , 2005

Division 4--Obligations and incidental powers of

authorised officers

30 Authorised officer must produce identity card on request

An authorised officer is not entitled to exercise any powers under

this Part in relation to premises if:

(a) the occupier of the premises requires the authorised officer to

produce his or her identity card for inspection by the

occupier; and

(b) the authorised officer fails to comply with the requirement.

31 Consent

(1) Before obtaining the consent of a person for the purposes of

paragraph 27(2)(a), the authorised officer must inform the person

that he or she may refuse consent.

(2) An entry of an authorised officer because of the consent of a

person is not lawful unless the person voluntarily consented to the

entry.

32 Announcement before entry

An authorised officer executing a monitoring warrant must, before

entering premises under the warrant:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

33 Details of monitoring warrant to be given to occupier etc. before

entry

(1) If a monitoring warrant is being executed and the occupier of the

premises in respect of which it is being executed or another person

who apparently represents the occupier is present at the premises,

Powers of inspection Part 8

Obligations and incidental powers of authorised officers Division 4

Section 34

Energy Efficiency Opportunities Bill 2005 No. , 2005 25

the authorised officer must make available to that person a copy of

the warrant.

(2) The authorised officer must identify himself or herself to that

person.

(3) The copy of the warrant referred to in subsection (1) need not

include the signature of the magistrate who issued the warrant.

Note:

Monitoring warrants are issued under section 38.

34 Use of electronic equipment in exercising monitoring powers

(1) An authorised officer or a person assisting that officer may operate

electronic equipment already at premises in order to exercise

monitoring powers if he or she believes, on reasonable grounds,

that the operation of the equipment can be carried out without

damage to the equipment.

(2) If the authorised officer or a person assisting believes, on

reasonable grounds, that:

(a) there is on the premises material relating to information

supplied under this Act that may be accessible by operating

electronic equipment on the premises; and

(b) expert assistance is required to operate the equipment; and

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard, or otherwise.

(3) The authorised officer or a person assisting must give notice to the

occupier of the premises of his or her intention to secure equipment

and of the fact that the equipment may be secured for up to 24

hours.

(4) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever first happens.

Part 8 Powers of inspection

Division 4 Obligations and incidental powers of authorised officers

Section 35

26 Energy Efficiency Opportunities Bill 2005 No. , 2005

(5) If an authorised officer or a person assisting believes, on

reasonable grounds, that the expert assistance will not be available

within 24 hours, he or she may apply to a magistrate for an

extension of the period.

(6) The magistrate may extend the period of time, up to a maximum of

a further 48 hours.

(7) The authorised officer or a person assisting must give notice to the

occupier of the premises of his or her intention to apply for an

extension and the occupier is entitled to be heard in relation to that

application.

(8) The provisions of this Part relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(9) In this section:

premises means:

(a) premises that an authorised officer has entered, and remains

on, with the consent of the occupier; and

(b) warrant premises.

35 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in

section 34:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

Powers of inspection Part 8

Obligations and incidental powers of authorised officers Division 4

Section 35

Energy Efficiency Opportunities Bill 2005 No. , 2005 27

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Court for

such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

(5) Compensation is payable out of money appropriated by the

Parliament.

(6) For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or

addition of other data.

Part 8 Powers of inspection

Division 5 Occupier's rights and responsibilities

Section 36

28 Energy Efficiency Opportunities Bill 2005 No. , 2005

Division 5--Occupier's rights and responsibilities

36 Occupier entitled to be present during execution of monitoring

warrant

(1) If a monitoring warrant is being executed and the occupier of the

warrant premises, or another person who apparently represents the

occupier, is present at the premises, the person is entitled to

observe the execution of the warrant.

(2) The right to observe the execution of the warrant ceases if the

person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

37 Occupier to provide authorised officer with all facilities and

assistance

(1) The occupier of warrant premises, or another person who

apparently represents the occupier, must provide the officer

executing the warrant and any person assisting that officer with all

reasonable facilities and assistance for the effective exercise of

their powers.

(2) A person commits an offence if the person fails to comply with the

obligation set out in subsection (1).

Penalty: 10 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Powers of inspection Part 8

Warrants Division 6

Section 38

Energy Efficiency Opportunities Bill 2005 No. , 2005 29

Division 6--Warrants

38 Monitoring warrants

(1) An authorised officer may apply to a magistrate for a warrant

under this section in relation to premises.

(2) Subject to subsection (3), the magistrate may issue the warrant if

the magistrate is satisfied, by information on oath or affirmation,

that it is reasonably necessary that one or more authorised officers

should have access to the premises for the purposes of

substantiating information provided under this Act or of

determining whether this Act has been complied with.

(3) The magistrate must not issue the warrant unless the authorised

officer or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

(4) The warrant must:

(a) authorise one or more authorised officers (whether or not

named in the warrant), with such assistance and by such

force as is necessary and reasonable:

(i) to enter the premises; and

(ii) to exercise the powers set out in section 28 in relation to

the premises; and

(b) state whether the entry is authorised to be made at any time

of the day or during specified hours of the day; and

warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

Part 9 Miscellaneous

Section 39

30 Energy Efficiency Opportunities Bill 2005 No. , 2005

Part 9--Miscellaneous

39 Delegation

The Secretary may, by signed instrument, delegate to an SES

employee in the Department all or any of the Secretary's powers

under this Act.

40 AAT review of decisions

An application may be made to the Administrative Appeals

Tribunal for the review of:

(a) a decision of the Secretary not to grant an exemption under

section 11; and

(b) a decision of the Secretary not to register a corporation in

accordance with section 13; and

accordance with section 14; and

(d) a decision of the Secretary not to approve an assessment

plan, or a variation to an assessment plan, under subsections

17(1) and (2); and

(e) a decision of the Secretary to approve an assessment plan

under subsection 17(4).

41 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Consequences of contravening civil penalty provisions Schedule 1

Clause 1

Energy Efficiency Opportunities Bill 2005 No. , 2005 31

Schedule 1--Consequences of contravening

civil penalty provisions

Note:

See section 5.

1 Declarations of contravention

(1) If the Court is satisfied that a controlling corporation has

contravened 1 of the following provisions, it must make a

declaration of contravention:

(a) subsection 9(1);

(b) subsection 15(5);

(d) subsection 22(1);

(e) subsection 23(1).

These provisions are the civil penalty provisions.

Note:

Once a declaration has been made, the Minister can then seek a

pecuniary penalty order (see clause 3).

(2) A declaration of contravention must specify the following:

(a) the Court that made the declaration;

(b) the civil penalty provision that was contravened;

(d) the conduct that constituted the contravention.

2 Declaration of contravention is conclusive evidence

A declaration of contravention is conclusive evidence of the

matters referred to in subclause 1(2).

3 Pecuniary penalty orders

(1) The Court may order a controlling corporation to pay the

Commonwealth a pecuniary penalty of up to 1000 penalty units if:

(a) a declaration of contravention by the controlling corporation

has been made under clause 1; and

(b) the contravention is serious.

Schedule 1 Consequences of contravening civil penalty provisions

Clause 4

32 Energy Efficiency Opportunities Bill 2005 No. , 2005

(2) The penalty is a civil debt payable to the Commonwealth. The

Commonwealth may enforce the order as if it were an order made

in civil proceedings against the controlling corporation to recover a

debt due by the controlling corporation. The debt arising from the

order is taken to be a judgment debt.

4 Who may apply for a declaration or order

Application by Minister

(1) The Minister, or some other person authorised in writing by the

Minister under this subclause to make the application, may apply

for a declaration of contravention or a pecuniary penalty order.

No one else may apply

(2) No person may apply for a declaration of contravention or a

pecuniary penalty order unless permitted by this clause.

(3) Subclause (2) does not exclude the operation of the Director of

Public Prosecutions Act 1983.

5 Time limit for application for a declaration or order

Proceedings for a declaration of contravention or a pecuniary

penalty order may be started no later than 6 years after the

contravention.

6 Civil evidence and procedure rules for declarations of

contravention and civil penalty orders

The Court must apply the rules of evidence and procedure for civil

matters when hearing proceedings for:

(a) a declaration of contravention; or

(b) a pecuniary penalty order.

7 Civil proceedings after criminal proceedings

The Court must not make a declaration of contravention or a

pecuniary penalty order against a controlling corporation for a

Consequences of contravening civil penalty provisions Schedule 1

Clause 8

Energy Efficiency Opportunities Bill 2005 No. , 2005 33

contravention if the controlling corporation has been convicted of

an offence constituted by conduct that is substantially the same as

the conduct constituting the contravention.

8 Criminal proceedings during civil proceedings

(1) Proceedings for a declaration of contravention or pecuniary penalty

order against a controlling corporation are stayed if:

(a) criminal proceedings are started or have already been started

against the controlling corporation for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the contravention.

(2) The proceedings for the declaration or order may be resumed if the

controlling corporation is not convicted of the offence. Otherwise,

the proceedings for the declaration or order are dismissed.

9 Criminal proceedings after civil proceedings

Criminal proceedings may be started against a controlling

corporation for conduct that is substantially the same as conduct

constituting a contravention of a civil penalty provision regardless

of whether:

(a) a declaration of contravention has been made against the

controlling corporation; or

(b) a pecuniary penalty order has been made against the

controlling corporation.

10 Minister requiring person to assist

(1) The Minister may require a person to give all reasonable assistance

in connection with:

(a) an application for a declaration of contravention or a

pecuniary penalty order; or

(b) criminal proceedings for an offence against this Act.

The person must comply with the request.

Penalty: 5 penalty units.

Schedule 1 Consequences of contravening civil penalty provisions

Clause 10

34 Energy Efficiency Opportunities Bill 2005 No. , 2005

(2) The Minister can require the person to assist in connection with an

application for a declaration or order if, and only if:

(a) it appears to the Minister that:

(i) a controlling corporation may have contravened a civil

penalty provision; and

(ii) the person required to assist is not that controlling

corporation; and

(b) the Minister suspects or believes that the person required to

assist can give information relevant to the application.

(3) The Minister can require the person to assist in connection with

criminal proceedings if, and only if:

(a) it appears to the Minister that the person required to assist is

unlikely to be a defendant in the proceedings; and

(b) the person required to assist is, in relation to a person who is

or should be a defendant in the proceedings:

(i) an employee or agent (including a banker or auditor) of

the other person; or

(ii) if the other person is an individual--a partner of the

other person.

(4) The Minister can require the person to assist regardless of whether:

(a) an application for the declaration or penalty order has

actually been made; or

(b) criminal proceedings for the offence have actually begun.

(5) The person cannot be required to assist if they are or have been a

lawyer for:

(a) in an application for a declaration or penalty order--the

controlling corporation suspected of the contravention; or

(b) in criminal proceedings--a defendant or likely defendant in

the proceedings.

(6) The requirement to assist must be given in writing.

(7) The Court may order the person to comply with the requirement in

a specified way. Only the Minister may apply to the Court for an

order under this subsection.

Consequences of contravening civil penalty provisions Schedule 1

Clause 11

Energy Efficiency Opportunities Bill 2005 No. , 2005 35

11 Relief from liability for contravention of civil penalty provision

(1) In this section:

eligible proceedings:

(a) means proceedings for a contravention of a civil penalty

provision; and

(b) does not include proceedings for an offence.

(2) If:

(a) eligible proceedings are brought against a controlling

corporation; and

(b) in the proceedings it appears to the court that the controlling

corporation has, or may have, contravened a civil penalty

provision but that:

(i) the controlling corporation has acted honestly; and

(ii) having regard to all the circumstances of the case, the

controlling corporation ought fairly to be excused for

the contravention;

the court may relieve the controlling corporation either wholly or

partly from a liability to which the controlling corporation would

otherwise be subject, or that might otherwise be imposed on the

controlling corporation, because of the contravention.

(3) If a controlling corporation thinks that eligible proceedings will or

may be begun against it, the controlling corporation may apply to

the Court for relief.

(4) On an application under subclause (3), the Court may grant relief

under subclause (2) as if the eligible proceedings had been begun

in the Court.

(5) For the purposes of subclause (2) as applying for the purposes of a

case tried by a judge with a jury:

(a) a reference in that subclause to the court is a reference to the

judge; and

(b) the relief that may be granted includes withdrawing the case

in whole or in part from the jury and directing judgment to be

entered for the defendant on such terms as to costs as the

judge thinks appropriate.

Commonwealth of Australia Bills

ENERGY EFFICIENCY OPPORTUNITIES BILL 2005