Commonwealth of Australia Bills

[Index] [Search] [Download] [Related Items] [Help]

This is a Bill, not an Act. For current law, see the Acts databases.

SAFE CLIMATE (ENERGY EFFICIENT NON-RESIDENTIAL BUILDINGS SCHEME) BILL 2010

2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Safe Climate (Energy Efficient
Non-Residential Buildings Scheme) Bill
2010
No. , 2010
(Senator Milne)
A Bill for an Act to introduce an emissions intensity
cap and building efficiency certificate trading
scheme for non-residential buildings to provide an
economic incentive for investment in energy
efficiency, and for related purposes
i Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
Contents
Part 1--Preliminary
2
1 Short
title
...........................................................................................
2
2 Commencement
.................................................................................
2
3
Object of Act...................................................................................... 2
4 Constitutional
basis for Act ............................................................... 2
5
Crown to be bound ............................................................................. 2
6 Application
to
external Territories ..................................................... 3
7
Relationship with State and Territory laws ........................................ 3
8 Definitions
.........................................................................................
3
Part 2--Emissions intensity cap
5
9
Classes of non-residential buildings .................................................. 5
10
Measurement of emissions intensities ............................................... 5
11
Application of Act to owners of non-residential buildings ................ 5
12 Transitional
reporting by owners ....................................................... 5
13
Emissions intensity cap ...................................................................... 7
14 National
scheme
gateway
..................................................................
9
Part 3--Reporting
10
15 Annual
reporting
by owners ............................................................ 10
Part 4--Building Efficiency Certificate Scheme
12
16 Building
Efficiency
Certificate Scheme .......................................... 12
17 Building
efficiency certificates ........................................................ 12
18
Dealing in certificates ...................................................................... 12
19
Surrender of certificates to meet reported emissions intensity ........ 12
20
Failure to surrender sufficient certificates subject to building
efficiency certificate shortfall penalty ............................................. 13
21 Late
payment
penalty
.......................................................................
14
22 Recovery
of
penalties....................................................................... 14
23
Records to be kept ........................................................................... 14
Part 5--Register
16
24 Register
to
be kept ........................................................................... 16
25 Inspection
of
register
.......................................................................
16
26 Evidentiary
value
of register ............................................................ 16
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
ii
Part 6--Enforcement
18
Division 1--Civil penalty orders
18
27 Civil
penalty
provisions ................................................................... 18
28 Continuing
contraventions ............................................................... 18
29
Court may order person to pay pecuniary penalty for
contravening civil penalty provision ................................................ 19
30
Contravening a civil penalty provision is not an offence ................. 20
31
Persons involved in contravening civil penalty provision ............... 20
32
Recovery of a pecuniary penalty ...................................................... 20
Division 2--Infringement notices
21
33
When an infringement notice can be given ...................................... 21
34
Matters to be included in an infringement notice............................. 21
35
Amount of penalty ........................................................................... 22
36
Withdrawal of an infringement notice ............................................. 22
37
Paying the penalty in accordance with the notice ............................ 23
38
Effect of this Division on civil proceedings ..................................... 23
Division 3--Enforceable undertakings
24
39
Acceptance of undertakings relating to contraventions ................... 24
40 Enforcement
of
undertakings ........................................................... 24
Division 4--Liability of chief executive officers of corporations
26
41
Civil penalties for chief executive officers of corporations ............. 26
42
Did a chief executive officer take reasonable steps to prevent
contravention? .................................................................................. 26
Part 7--Monitoring compliance
28
Division 1--Authorised officers
28
43
Appointment of authorised officers ................................................. 28
44 Identity
cards
...................................................................................
28
Division 2--Powers of authorised officers
30
45
Entering premises to monitor compliance ....................................... 30
46
Powers of authorised officers in monitoring compliance................. 30
47
Authorised officer may request persons to answer questions .......... 32
Division 3--Obligations and incidental powers of authorised
officers
33
48
Authorised officer must produce identity card on request ............... 33
49 Consent
............................................................................................
33
50 Announcement
before entry ............................................................. 33
51
Details of warrant to be given to occupier etc. before entry ............ 33
iii Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
52
Use of electronic equipment in exercising monitoring powers ........ 34
53
Compensation for damage to electronic equipment ......................... 35
Division 4--Occupier's rights and responsibilities
37
54
Occupier entitled to be present during execution of warrant ........... 37
55
Occupier to provide authorised officer with all facilities and
assistance ......................................................................................... 37
Division 5--Warrants
38
56 Monitoring
warrants
........................................................................
38
Division 6--Information gathering
39
57
Power to request information ........................................................... 39
58
Prohibitions on disclosure of information do not apply ................... 40
Division 7--External audits
41
59 External
audits--compliance ........................................................... 41
60 External
audits--other
.....................................................................
42
61 Requirements
for
external auditors .................................................. 42
Part 8--Miscellaneous
44
62
Information may be provided to States and Territories ................... 44
63
Compensation for acquisition of property ....................................... 45
64 Annual
report
on
operation of Act ................................................... 45
65 Regulations
......................................................................................
45
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
1
A Bill for an Act to introduce an emissions intensity
1
cap and building efficiency certificate trading
2
scheme for non-residential buildings to provide an
3
economic incentive for investment in energy
4
efficiency, and for related purposes
5
The Parliament of Australia enacts:
6
Part 1 Preliminary
Section 1
2 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
Part 1--Preliminary
1
2
1 Short title
3
This Act may be cited as the Safe Climate (Energy Efficient
4
Non-Residential Buildings Scheme) Act 2010.
5
2 Commencement
6
This Act commences on the day on which it receives the Royal
7
Assent.
8
3 Object of Act
9
The object of this Act is to provide an economic incentive to
10
owners of non-residential buildings to improve the energy
11
efficiency of such buildings by:
12
(a) providing for emissions intensity caps that are to be met by
13
the owners of non-residential buildings; and
14
(b) providing for emissions intensity caps to be complied with by
15
the surrender of building efficiency certificates.
16
4 Constitutional basis for Act
17
This Act relies on:
18
(a) the Commonwealth's legislative powers under
19
paragraphs 51(xx), (xxix) and (xxxix) of the Constitution;
20
and
21
(b) any implied legislative powers of the Commonwealth.
22
5 Crown to be bound
23
(1) This Act binds the Crown in each of its capacities.
24
(2) This Act does not make the Crown liable to a pecuniary penalty or
25
to be prosecuted for an offence.
26
Preliminary Part 1
Section 6
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
3
(3) The protection in subsection (2) does not apply to an authority of
1
the Crown.
2
(4) The protection in subsection (2) does not apply to a penalty under
3
section 20 or 21.
4
6 Application to external Territories
5
This Act extends to all the external Territories.
6
7 Relationship with State and Territory laws
7
(1) This Act is intended to apply to the exclusion of a law of a State or
8
Territory that is prescribed by the regulations.
9
(2) However, subject to subsection (1), this Act is not intended to
10
exclude or limit the concurrent operation of any other law of a
11
State or Territory, except so far as the contrary intention appears.
12
8 Definitions
13
In this Act:
14
building efficiency certificate shortfall has the meaning given by
15
subsections 20(1) and (2).
16
building efficiency certificate shortfall penalty means the penalty
17
payable under section 20 by the owner of a non-residential building
18
who fails to surrender sufficient certificates for a financial year.
19
carbon dioxide equivalent of greenhouse gas emissions means the
20
mass of carbon dioxide measured in tonnes that has the same
21
global warming potential as the greenhouse gas emissions.
22
certificate means a building efficiency certificate created under
23
Part 4.
24
emissions intensity of a building is the figure calculated by a
25
methodology determined under section 10.
26
Part 1 Preliminary
Section 8
4 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
emissions intensity cap means the cap determined under
1
section 13.
2
emissions intensity information means information reported to the
3
Greenhouse and Energy Data Officer under this Act or information
4
obtained by a person whilst performing duties under this Act or the
5
regulations.
6
Greenhouse and Energy Data Officer means the Greenhouse and
7
Energy Data Officer established under section 49 of the National
8
Greenhouse and Energy Reporting Act 2007.
9
greenhouse gas has the same meaning as in the National
10
Greenhouse and Energy Reporting Act 2007.
11
non-residential building means any building that falls within the
12
scope of Class 3, 5, 6, 7, 8 or 9 of the Building Code of Australia
13
for a year.
14
register means the Register of the Emissions Intensity of
15
Non-Residential Buildings established under section 24.
16
scheme means the Building Efficiency Certificate Scheme
17
established under section 16.
18
scheme penalty rate means the penalty rate prescribed by the
19
regulations which is applied in the case of a building efficiency
20
certificate shortfall.
21
transitional report has the meaning given by subsection 12(1).
22
transitional reporting period has the meaning given by
23
subsection 12(6).
24
Emissions intensity cap Part 2
Section 9
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
5
Part 2--Emissions intensity cap
1
2
9 Classes of non-residential buildings
3
(1) The Minister, within 3 months of the commencement of this Act,
4
must determine by legislative instrument the different classes of
5
non-residential buildings to which this Act applies.
6
(2) The Minister, by 31 May in any year, may determine different or
7
additional classes of non-residential buildings than those
8
determined under subsection (1) to which the Act will apply in the
9
financial year commencing 1 July 3 years later.
10
10 Measurement of emissions intensities
11
The Minister, within 3 months of the commencement of this Act,
12
must determine by legislative instrument methods, or criteria for
13
methods, by which emissions intensities are to be measured for the
14
purposes of this Act and may specify:
15
(a) different methods or criteria for different classes of
16
non-residential buildings; and
17
(b) different methods or criteria depending on the circumstances
18
under which non-residential buildings operate, such as
19
climate; and
20
(c) conditions relating to the use of methods determined by the
21
Minister or of methods which meet criteria determined by the
22
Minister.
23
11 Application of Act to owners of non-residential buildings
24
This Act applies to the owner of each non-residential building
25
within a class of non-residential buildings that is determined under
26
subsection 9(1) or (2).
27
12 Transitional reporting by owners
28
(1) The owner of a non-residential building in a class determined
29
under subsection 9(1) or (2) must provide an annual report to the
30
Part 2 Emissions intensity cap
Section 12
6 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
Greenhouse and Energy Data Officer, for the two financial years
1
commencing the next 1 July after the class is determined
2
(transitional reports).
3
Civil penalty:
100 penalty units.
4
Note 1:
Under Division 137 of the Criminal Code it may be an offence to
5
provide false or misleading information or documents to the
6
Greenhouse and Energy Data Officer in purported compliance with
7
this Act.
8
Note 2:
Under section 28 the person may be liable for an additional civil
9
penalty for each day after the day specified in the determination for
10
which it fails to provide information in accordance with this section.
11
(2) A transitional report under this section must:
12
(a) be given in a manner and form approved by the Greenhouse
13
and Energy Data Officer; and
14
(b) include information based on methods determined by the
15
Minister under subsection 10(3), or methods which meet
16
criteria determined by the Minister under that subsection, for
17
the calculation of the emissions intensity of the relevant
18
non-residential building, where the use of those methods
19
satisfies any conditions specified in a determination under
20
that subsection; and
21
(c) include any information specified by the regulations for the
22
purposes of this paragraph; and
23
(d) be given to the Greenhouse and Energy Data Officer before
24
the end of 30 days after the end of the relevant financial year.
25
(3) Regulations made for the purposes of paragraph (2)(c) may specify
26
different requirements for different circumstances.
27
(4) Regulations made for the purposes of paragraph (2)(c) may also
28
specify information that a State or Territory has requested the
29
Greenhouse and Energy Data Officer to collect.
30
(5) The Greenhouse and Energy Data Officer must:
31
(a) collate the information received under paragraph (2)(b) and
32
provide it to the Minister within 3 months of the end of the
33
relevant financial year; and
34
Emissions intensity cap Part 2
Section 13
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
7
(b) include the uncollated information in the register established
1
under section 24.
2
(6) In this Act:
3
transitional reporting period means the 2 financial year period
4
specified in subsection (1).
5
13 Emissions intensity cap
6
(1) The regulations must declare that a quantity, in tonnes of carbon
7
dioxide equivalent of greenhouse gas emissions per square metre,
8
is the emissions intensity cap that will apply to each class of
9
non-residential buildings determined under section 9 for a specified
10
financial year which must commence after the end of the relevant
11
transitional reporting period.
12
(2) The Minister must take all reasonable steps to ensure that after
13
receiving the relevant second report under paragraph 12(5)(a):
14
(a) regulations declaring the emissions intensity caps for the
15
financial year commencing the next 1 July; and
16
(b) regulations declaring the energy efficiency caps for each of
17
the next 9 financial years;
18
are made before the next 31 May.
19
(3) In making a recommendation to the Governor-General about
20
regulations to be made for the purposes of subsection (2), the
21
Minister must have regard to the average emissions intensity for a
22
class of non-residential buildings, calculated using the two relevant
23
reports received under paragraph 12(5)(a).
24
(4) The Minister must take all reasonable steps to ensure that:
25
(a) regulations declaring the emissions intensity cap for the
26
financial year beginning on the next 1 July after the financial
27
years covered by subsection (2) are made at least 5 years
28
before the end of that financial year; and
29
(b) regulations declaring the emissions intensity cap for a later
30
financial year are made at least 5 years before the end of that
31
later financial year.
32
Part 2 Emissions intensity cap
Section 13
8 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. ,
2010
(5) In making a recommendation to the Governor-General about
1
regulations to be made for the purposes of subsection (4), the
2
Minister may have regard to information provided to the
3
Greenhouse and Energy Data Officer under paragraph 15(2)(b).
4
(6)
If:
5
(a) apart from this subsection, at the beginning of the 5-year
6
period ending at the end of a financial year (the current
7
financial year), there is no emissions intensity cap for the
8
current financial year; and
9
(b) there was an emissions intensity cap for the previous
10
financial year; and
11
(c) the current financial year is a financial year covered by
12
subsection (4);
13
the emissions intensity cap for the current financial year is equal
14
to:
15
(d) if 99% of the emissions intensity cap for the previous
16
financial year is less than the lower bound of the national
17
scheme gateway for the current financial year--that lower
18
bound; or
19
(e) if 99% of the emissions intensity cap for the previous
20
financial year exceeds the upper bound of the national
21
scheme gateway for the current financial year--that upper
22
bound; or
23
(f) if neither paragraph (d) nor (e) applies--99% of the
24
emissions intensity cap for the previous financial year
25
(rounded to the nearest whole number, with a number ending
26
in .5 being rounded up).
27
(7) In making a recommendation to the Governor-General about
28
regulations to be made for the purposes of this section, the Minister
29
may have regard to such matters (if any) as the Minister considers
30
relevant.
31
Emissions intensity cap Part 2
Section 14
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
9
14 National scheme gateway
1
Scope
2
(1) This section applies to a financial year covered by
3
subsection 13(4).
4
Gateway
5
(2) The regulations may declare that:
6
(a) a quantity, in tonnes of carbon dioxide equivalent of
7
greenhouse gas emissions per square metre, is the upper
8
bound of the national scheme gateway for a specified
9
financial year; and
10
(b) a quantity, in tonnes of carbon dioxide equivalent of
11
greenhouse gas emissions per square metre, is the lower
12
bound of the national scheme gateway for a specified
13
financial year.
14
Emissions intensity cap
15
(3) The Minister must take all reasonable steps to ensure that the
16
emissions intensity cap for a financial year:
17
(a) is not more than the upper bound of the national scheme
18
gateway (if any) for the financial year; and
19
(b) is not less than the lower bound of the national scheme
20
gateway (if any) for the financial year.
21
Regulations
22
(4) In making a recommendation to the Governor-General about
23
regulations to be made for the purposes of this section, the Minister
24
may have regard to such matters (if any) as the Minister considers
25
relevant.
26
Part 3 Reporting
Section 15
10 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 3--Reporting
1
2
15 Annual reporting by owners
3
(1) An owner of a non-residential building must provide an annual
4
report to the Greenhouse and Energy Data Officer, for a financial
5
year which commences after the end of the relevant transitional
6
reporting period.
7
Civil penalty:
100 penalty units.
8
Note 1:
Under Division 137 of the Criminal Code it may be an offence to
9
provide false or misleading information or documents to the
10
Greenhouse and Energy Data Officer in purported compliance with
11
this Act.
12
Note 2:
Under section 28 the person may be liable for an additional civil
13
penalty for each day after the day specified in the determination for
14
which it fails to provide information in accordance with this section.
15
(2) An annual report under this section must:
16
(a) be given in a manner and form approved by the Greenhouse
17
and Energy Data Officer; and
18
(b) include information based on methods determined by the
19
Minister under subsection 10(3), or methods which meet
20
criteria determined by the Minister under that subsection, for
21
the calculation of the emissions intensity of the relevant
22
non-residential building, where the use of those methods
23
satisfies any conditions specified in the determination under
24
that subsection; and
25
(c) include any information specified by the regulations for the
26
purposes of this paragraph; and
27
(d) be given to the Greenhouse and Energy Data Officer before
28
the end of 90 days after the end of the relevant financial year.
29
(3) Regulations made for the purposes of paragraph (2)(c) may specify
30
different requirements for different circumstances.
31
(4) Regulations made for the purposes of paragraph (2)(c) may also
32
specify information that a State or Territory has requested the
33
Greenhouse and Energy Data Officer to collect.
34
Reporting Part 3
Section 15
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
11
(5) The Greenhouse and Energy Data Officer must include the
1
information provided under paragraph (2)(b) in the register
2
established under section 24.
3
Part 4 Building Efficiency Certificate Scheme
Section 16
12 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 4--Building Efficiency Certificate Scheme
1
2
16 Building Efficiency Certificate Scheme
3
(1) The Building Efficiency Certificate Scheme is established by this
4
section.
5
(2) The Greenhouse and Energy Data Officer is the administrator of
6
the scheme.
7
17 Building efficiency certificates
8
(1) If an emissions intensity cap is declared in respect of a class of
9
non-residential building for a financial year, the Greenhouse and
10
Energy Data Officer must allocate in that financial year building
11
efficiency certificates to the owner of each non-residential building
12
to the value of the relevant emissions intensity cap as it applies to
13
that building.
14
(2) The Greenhouse and Energy Data Officer must include in the
15
register established under section 24 the number of certificates
16
allocated in a financial year to the owner of a non-residential
17
building.
18
(3) A certificate is transferable and may be transferred to anyone.
19
18 Dealing in certificates
20
(1) The Minister must ensure that a system for transfers and dealings
21
in certificates is established by legislative instrument by the end of
22
the period of 12 months after the commencement of this Act.
23
(2) The system may provide for certificates to be stockpiled for a
24
specified period.
25
19 Surrender of certificates to meet reported emissions intensity
26
(1) The owner of a non-residential building must surrender to the
27
Greenhouse and Energy Data Officer certificates to the value of the
28
Building Efficiency Certificate Scheme Part 4
Section 20
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
13
emissions intensity of the building reported under
1
paragraph 15(2)(b) for the financial year, within 60 days of
2
providing that report to the Greenhouse and Energy Data Officer.
3
(2) The Greenhouse and Energy Data Officer must include in the
4
register established under section 24 the number of certificates
5
surrendered for a financial year by the owner of a non-residential
6
building.
7
20 Failure to surrender sufficient certificates subject to building
8
efficiency certificate shortfall penalty
9
(1) If the owner of a non-residential building fails to surrender
10
certificates to the value of the emissions intensity of the building
11
reported under paragraph 15(2)(b) for the financial year, the owner
12
has a building efficiency certificate shortfall.
13
(2) The amount of the building efficiency certificate shortfall is the
14
difference between the number of certificates surrendered and the
15
number of certificates required to be surrendered under
16
subsection 19(1).
17
(3) An owner who has a building efficiency certificate shortfall for a
18
year is liable to pay a penalty in respect of that year (a building
19
efficiency certificate shortfall penalty).
20
(4) The amount of the building efficiency certificate shortfall penalty
21
is the amount (in dollars) calculated by multiplying the amount of
22
the building efficiency certificate shortfall by the scheme penalty
23
rate for a year prescribed by the regulations.
24
(5) If the amount calculated under subsection (4) is not a whole
25
number of dollars, it is to be rounded down to the nearest whole
26
number of dollars.
27
(6) A building efficiency certificate shortfall penalty payable by the
28
owner of a non-residential building for a financial year is payable
29
to the Greenhouse and Energy Data Officer at the same time as the
30
owner surrenders certificates for the financial year under
31
section 19.
32
Part 4 Building Efficiency Certificate Scheme
Section 21
14 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
(7) Any building efficiency certificate penalties collected under this
1
section are to be used for greenhouse gas reduction activities and
2
programs nominated by the Minister.
3
21 Late payment penalty
4
(1) If an amount payable under section 20 remains unpaid after the
5
time when it became due for payment, the owner of a
6
non-residential building is liable to pay, by way of penalty, an
7
amount calculated at the rate of:
8
(a) 20% per annum; or
9
(b) if a lower rate per annum is specified in the regulations--that
10
lower rate per annum;
11
on the amount unpaid, computed from that time.
12
(2) The Greenhouse and Energy Data Officer may remit the whole or a
13
part of an amount payable under subsection (1).
14
22 Recovery of penalties
15
An amount payable under section 20 or 21:
16
(a) is a debt due to the Commonwealth; and
17
(b) may be recovered by the Greenhouse and Energy Data
18
Officer, on behalf of the Commonwealth, by action in a court
19
of competent jurisdiction.
20
23 Records to be kept
21
(1) The owner of a non-residential building must keep records that:
22
(a) allow the owner to report accurately under this Act; and
23
(b) enable the Greenhouse and Energy Data Officer to ascertain
24
whether the owner has complied with this Act; and
25
(c) comply with the requirements of subsection (2) and the
26
regulations made for the purposes of subsection (3).
27
Civil penalty:
100 penalty units.
28
Building Efficiency Certificate Scheme Part 4
Section 23
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
15
(2) The owner of a non-residential building must retain the records for
1
7 years from the end of the year to which the records relate.
2
(3) The regulations may specify requirements relating to:
3
(a) the kinds of records; and
4
(b) form of records;
5
that must be kept under subsection (1).
6
Part 5 Register
Section 24
16 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 5--Register
1
2
24 Register to be kept
3
(1) The Greenhouse and Energy Data Officer must keep a register for
4
the purposes of this Act, to be known as the Register of the
5
Emissions Intensity of Non-Residential Buildings.
6
(2) The register may be kept completely or partly in electronic form.
7
(3) The register must contain any information required to be included
8
in the register:
9
(a) under this Act; or
10
(b)
under
the
regulations.
11
(4) The register may contain any other information that the
12
Greenhouse and Energy Data Officer considers it necessary to
13
include in the register:
14
25 Inspection of register
15
(1) The register is to be available for public inspection, without fee,
16
during ordinary office hours at the principal office of the
17
Greenhouse and Energy Data Officer.
18
(2) If the register is kept by use of a computer, subsection (1) is taken
19
to be complied with by giving members of the public access to a
20
computer terminal that they can use to inspect, either on a screen or
21
in the form of a computer printout, particulars that are kept by the
22
use of a computer.
23
(3) A copy of the register, to the extent that it is kept in electronic
24
form, must be available for public inspection, without fee, on the
25
Internet.
26
26 Evidentiary value of register
27
(1) The register is admissible in proceedings as evidence of the matters
28
registered in it.
29
Register Part 5
Section 26
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
17
(2) If the register is kept by the use of a computer, the Greenhouse and
1
Energy Data Officer may issue a document containing the details
2
of a matter taken from the register.
3
(3) The document issued under subsection (2) is admissible in
4
proceedings as evidence of the matter.
5
(4) The Greenhouse and Energy Data Officer may give a person a
6
certified copy of, or extract from, the register on payment of the
7
prescribed fee (if any).
8
(5) The certified copy is admissible in proceedings without any further
9
proof of, or the production of, the original.
10
(6) This section does not limit the manner in which evidence may be
11
adduced, or the admissibility of evidence, under the Evidence Act
12
1995.
13
Part 6 Enforcement
Division 1 Civil penalty orders
Section 27
18 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 6--Enforcement
1
Division 1--Civil penalty orders
2
27 Civil penalty provisions
3
The following are civil penalty provisions for the purposes of this
4
Act:
5
(a) a subsection of this Act (or a section of this Act that is not
6
divided into subsections) if the words "civil penalty" and one
7
or more amounts in penalty units are set out at the foot of the
8
subsection (or section);
9
(b) a subsection of this Act if another provision of this Act
10
specifies that the subsection is a civil penalty provision.
11
28 Continuing contraventions
12
(1) If an act or thing is required, under a civil penalty provision of this
13
Act, to be done within a particular period, or before a particular
14
time, then the obligation to do that act or thing continues (even if
15
the period has expired or the time has passed) until the act or thing
16
is done.
17
(2) If, under section 12, 15 or 59, an act or thing is required to be done
18
within a particular period, or before a particular time, and a person
19
fails to comply with that requirement, the person is liable for a civil
20
penalty for each day that the person fails to comply.
21
Civil penalty:
100 penalty units per day.
22
(3) To avoid doubt, a person's failure to comply with such a
23
requirement on a particular day is taken, for the purposes of this
24
Act, not to be the same conduct as the person's failure to comply
25
with that requirement on a different day.
26
Enforcement Part 6
Civil penalty orders Division 1
Section 29
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
19
29 Court may order person to pay pecuniary penalty for
1
contravening civil penalty provision
2
Application for order
3
(1) Within 6 years of a person contravening a civil penalty provision,
4
the Greenhouse and Energy Data Officer may apply, on behalf of
5
the Commonwealth, to a Court for an order that the person pay the
6
Commonwealth a pecuniary penalty.
7
Court may order person to pay pecuniary penalty
8
(2) If the Court is satisfied that the person has contravened a civil
9
penalty provision, the Court may order the person to pay to the
10
Commonwealth for each contravention the pecuniary penalty that
11
the Court determines is appropriate.
12
Maximum pecuniary penalty
13
(3) The pecuniary penalty must not exceed the sum of:
14
(a) the relevant amount specified for the civil penalty provision;
15
and
16
(b) the amount (if any) for which the person is liable under
17
section 28 at the time the Court makes the order.
18
Determining amount of pecuniary penalty
19
(4) In determining the pecuniary penalty, the Court must have regard
20
to all relevant matters, including:
21
(a) the nature and extent of the contravention; and
22
(b) the nature and extent of any loss or damage suffered as a
23
result of the contravention; and
24
(c) the circumstances in which the contravention took place; and
25
(d) whether the person has previously been found by the Court in
26
proceedings under this Act to have engaged in any similar
27
conduct.
28
Part 6 Enforcement
Division 1 Civil penalty orders
Section 30
20 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Conduct contravening more than one civil penalty provision
1
(5) If conduct constitutes a contravention of 2 or more civil penalty
2
provisions, proceedings may be instituted under this Act against a
3
person in relation to the contravention of any one or more of those
4
provisions. However, the person is not liable to more than one
5
pecuniary penalty under this section in respect of the same
6
conduct.
7
30 Contravening a civil penalty provision is not an offence
8
A contravention of a civil penalty provision is not an offence.
9
31 Persons involved in contravening civil penalty provision
10
(1) A person must not:
11
(a) aid, abet, counsel or procure a contravention of a civil
12
penalty provision; or
13
(b) induce (by threats, promises or otherwise) a contravention of
14
a civil penalty provision; or
15
(c) be in any way directly or indirectly knowingly concerned in,
16
or party to, a contravention of a civil penalty provision; or
17
(d) conspire to contravene a civil penalty provision.
18
(2) This Division applies to a person who contravenes subsection (1)
19
in relation to a civil penalty provision as if the person had
20
contravened the provision.
21
32 Recovery of a pecuniary penalty
22
If a Court orders a person to pay a pecuniary penalty:
23
(a) the penalty is payable to the Commonwealth; and
24
(b) the Commonwealth may enforce the order as if it were a
25
judgment of the Court.
26
Enforcement Part 6
Infringement notices Division 2
Section 33
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
21
Division 2--Infringement notices
1
33 When an infringement notice can be given
2
(1) If the Greenhouse and Energy Data Officer has reasonable grounds
3
to believe that a person has contravened a civil penalty provision,
4
the Greenhouse and Energy Data Officer may give to the person an
5
infringement notice relating to the alleged contravention.
6
(2) An infringement notice must be given within 12 months after the
7
day on which the contravention is alleged to have taken place.
8
(3) A single infringement notice may be given to a person in respect
9
of:
10
(a) 2 or more alleged contraventions of a civil penalty provision;
11
and
12
(b) alleged contraventions of 2 or more civil penalty provisions.
13
However, the notice must not require the person to pay more than
14
one penalty in respect of the same conduct.
15
34 Matters to be included in an infringement notice
16
(1) An infringement notice must:
17
(a) identify the person to whom the notice is given; and
18
(b) set out brief details of:
19
(i) the alleged contravention of the civil penalty provision;
20
or
21
(ii) if the infringement notice relates to 2 or more alleged
22
contraventions of a civil penalty provision or alleged
23
contraventions of 2 or more civil penalty provisions--
24
each alleged contravention; and
25
(c) contain a statement to the effect that proceedings will not be
26
brought under this Part in relation to the alleged
27
contravention or contraventions if the penalty specified in the
28
notice is paid to the Greenhouse and Energy Data Officer, on
29
behalf of the Commonwealth, within:
30
(i) 28 days after the notice is given; or
31
Part 6 Enforcement
Division 2 Infringement notices
Section 35
22 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
(ii) if the Greenhouse and Energy Data Officer allows a
1
longer period--that longer period; and
2
(d) contain a statement to the effect that the person to whom the
3
notice is given may choose not to pay the penalty and, if the
4
person does so, proceedings may be brought under this Part
5
in relation to the alleged contravention or contraventions; and
6
(e) give an explanation of how payment of the penalty is to be
7
made; and
8
(f) set out such other matters (if any) as are specified by the
9
regulations.
10
Note:
For the amount of penalty, see section 35.
11
(2) For the purposes of paragraph (1)(b), the brief details must include
12
the following information in relation to each alleged contravention:
13
(a) the date, time and place of the contravention;
14
(b) the civil penalty provision that was allegedly contravened.
15
35 Amount of penalty
16
The penalty to be specified in an infringement notice relating to a
17
person's alleged contravention of a civil penalty provision must be
18
a pecuniary penalty equal to one-fifth of the maximum penalty that
19
a Court could impose on the person for that contravention.
20
Note:
To work out this maximum penalty, see subsection 29(3).
21
36 Withdrawal of an infringement notice
22
(1) This section applies if an infringement notice is given to a person.
23
(2) The Greenhouse and Energy Data Officer may, by written notice
24
given to the person, withdraw the infringement notice.
25
Refund of penalty if infringement notice withdrawn
26
(3)
If:
27
(a) the penalty specified in the infringement notice is paid; and
28
(b) the infringement notice is withdrawn after the penalty is paid;
29
the Commonwealth is liable to refund the penalty.
30
Enforcement Part 6
Infringement notices Division 2
Section 37
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
23
37 Paying the penalty in accordance with the notice
1
(1) This section applies if:
2
(a) an infringement notice relating to an alleged contravention of
3
a civil penalty provision is given to a person; and
4
(b) the penalty is paid in accordance with the infringement
5
notice; and
6
(c) the infringement notice is not withdrawn.
7
(2) Any liability of the person for the alleged contravention is
8
discharged.
9
(3) The payment of the penalty is not to be taken as an admission by
10
the person of liability
for the alleged contravention
.
11
(4) Proceedings under this Part may not be brought against the person
12
for the alleged contravention.
13
38 Effect of this Division on civil proceedings
14
This Division does not:
15
(a) require an infringement notice to be given in relation to an
16
alleged contravention of a civil penalty provision; or
17
(b) affect the liability of a person to have proceedings under this
18
Part brought against the person for an alleged contravention
19
of a civil penalty provision if:
20
(i) the person does not comply with an infringement notice
21
relating to the contravention; or
22
(ii) an infringement notice relating to the contravention is
23
not given to the person; or
24
(iii) an infringement notice relating to the contravention is
25
given to the person and subsequently withdrawn; or
26
(c) limit a Court's discretion to determine the amount of a
27
penalty to be imposed on a person who is found in
28
proceedings under this Part to have contravened a civil
29
penalty provision.
30
Part 6 Enforcement
Division 3 Enforceable undertakings
Section 39
24 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Division 3--Enforceable undertakings
1
39 Acceptance of undertakings relating to contraventions
2
(1) The Greenhouse and Energy Data Officer may accept any of the
3
following undertakings given by a person:
4
(a) a written undertaking that the person will take specified
5
action, in order to comply with the provisions of this Act or
6
the regulations;
7
(b) a written undertaking that the person will refrain from taking
8
specified action in order to comply with the provisions of this
9
Act or the regulations;
10
(c) a written undertaking that the person will take specified
11
action directed towards ensuring that the person:
12
(i) does not commit a contravention of this Act or the
13
regulations; or
14
(ii) is unlikely to commit a contravention of this Act or the
15
regulations;
16
in the future;
17
(d) a written undertaking of a kind specified in regulations made
18
for the purposes of this paragraph.
19
(2) The undertaking must be expressed to be an undertaking under this
20
section.
21
(3) The person may withdraw or vary the undertaking at any time, but
22
only with the consent of the Greenhouse and Energy Data Officer.
23
(4) The Greenhouse and Energy Data Officer may, by written notice
24
given to the person, cancel the undertaking.
25
(5) The undertaking may be published on an appropriate website.
26
40 Enforcement of undertakings
27
(1)
If:
28
(a) a person has given an undertaking under section 39; and
29
(b) the undertaking has not been withdrawn or cancelled; and
30
Enforcement Part 6
Enforceable undertakings Division 3
Section 40
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
25
(c) the Greenhouse and Energy Data Officer considers that the
1
person has breached the undertaking;
2
the Greenhouse and Energy Data Officer may apply to a Court for
3
an order under subsection (2).
4
(2) If the Court is satisfied that the person has breached the
5
undertaking, the Court may make any or all of the following
6
orders:
7
(a) an order directing the person to comply with the undertaking;
8
(b) an order directing the person to pay to the Greenhouse and
9
Energy Data Officer, on behalf of the Commonwealth, an
10
amount up to the amount of any financial benefit that the
11
person has obtained directly or indirectly and that is
12
reasonably attributable to the breach;
13
(c) any order that the Court considers appropriate directing the
14
person to compensate any other person who has suffered loss
15
or damage as a result of the breach;
16
(d) any other order that the Court considers appropriate.
17
Part 6 Enforcement
Division 4 Liability of chief executive officers of corporations
Section 41
26 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Division 4--Liability of chief executive officers of
1
corporations
2
41 Civil penalties for chief executive officers of corporations
3
(1)
If:
4
(a) a corporation contravenes a civil penalty provision; and
5
(b) a chief executive officer of the corporation knew that, or was
6
reckless or negligent as to whether, the contravention would
7
occur; and
8
(c) the officer was in a position to influence the conduct of the
9
corporation in relation to the contravention; and
10
(d) the officer failed to take all reasonable steps to prevent the
11
contravention;
12
the officer contravenes this subsection.
13
(2) Subsection (1) is a civil penalty provision.
14
(3) Under section 29, a Court may order a person contravening
15
subsection (1) to pay a pecuniary penalty not more than the
16
pecuniary penalty the Court could order a corporation to pay for
17
contravening the civil penalty provision mentioned in
18
paragraph (1)(a).
19
42 Did a chief executive officer take reasonable steps to prevent
20
contravention?
21
(1) For the purposes of section 41, in determining whether a chief
22
executive officer of a corporation failed to take all reasonable steps
23
to prevent a contravention, a Court is to have regard to:
24
(a) what action (if any) the officer took directed towards
25
ensuring the following (to the extent that the action is
26
relevant to the contravention):
27
(i) that the corporation regularly assesses its compliance
28
with this Act or the regulations;
29
(ii) that the corporation implements any appropriate
30
recommendations arising from such an assessment;
31
Enforcement Part 6
Liability of chief executive officers of corporations Division 4
Section 42
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
27
(iii) that the corporation's employees, agents and contractors
1
have a reasonable knowledge and understanding of the
2
requirements to comply with this Act and the
3
regulations in so far as those requirements affect the
4
employees, agents or contractors concerned; and
5
(b) what action (if any) the officer took when he or she became
6
aware that the corporation was contravening this Act or the
7
regulations.
8
(2) This section does not, by implication, limit the generality of
9
section 41.
10
Part 7 Monitoring compliance
Division 1 Authorised officers
Section 43
28 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 7--Monitoring compliance
1
Division 1--Authorised officers
2
43 Appointment of authorised officers
3
(1) The Greenhouse and Energy Data Officer may, in writing, appoint:
4
(a) an APS employee; or
5
(b) an employee of a State or a Territory or of an authority of a
6
State or a Territory;
7
to be an authorised officer for the purposes of this Division.
8
(2) In exercising powers or performing functions as an authorised
9
officer, an authorised officer must comply with any directions of
10
the Greenhouse and Energy Data Officer.
11
Note:
Section 70 of the Crimes Act 1914 creates an offence where
12
Commonwealth officers (including persons performing services for or
13
on behalf of the Commonwealth) disclose information in breach of a
14
duty of confidentiality.
15
44 Identity cards
16
(1) The Greenhouse and Energy Data Officer must issue an identity
17
card to an authorised officer in the form specified by the
18
regulations. The identity card must contain a recent photograph of
19
the authorised officer.
20
(2) A person commits an offence if:
21
(a) the person has been issued with an identity card; and
22
(b) the person ceases to be an authorised officer; and
23
(c) the person does not, as soon as practicable after so ceasing,
24
return the identity card to the Greenhouse and Energy Data
25
Officer.
26
Penalty: 1 penalty unit.
27
Note:
Chapter 2 of the Criminal Code sets out the general principles of
28
criminal responsibility.
29
Monitoring compliance Part 7
Authorised officers Division 1
Section 44
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
29
(3) An authorised officer must carry the identity card at all times when
1
exercising powers or performing functions as an authorised officer.
2
Part 7 Monitoring compliance
Division 2 Powers of authorised officers
Section 45
30 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Division 2--Powers of authorised officers
1
45 Entering premises to monitor compliance
2
(1) For the purposes of determining whether this Act has been
3
complied with, an authorised officer may:
4
(a)
enter
any
premises:
5
(i) during normal business hours; or
6
(ii) if the entry is made under a warrant--at any time
7
specified in the warrant; and
8
(b) exercise the powers set out in section 46.
9
(2) An authorised officer is not authorised to enter premises under
10
subsection (1) unless:
11
(a) if the premises are business premises--the occupier of the
12
premises has consented to the entry and the officer has shown
13
his or her identity card if required by the occupier; or
14
(b) the entry is made under a warrant.
15
(3) If an authorised officer is on the premises with the consent of the
16
occupier, the authorised officer must leave the premises if the
17
occupier asks the authorised officer to do so.
18
46 Powers of authorised officers in monitoring compliance
19
(1) The following are the powers that an authorised officer may
20
exercise in relation to premises under section 45:
21
(a) the power to search the premises for any thing on the
22
premises that may relate to compliance with this Act;
23
(b) the power to examine any activity conducted on the premises
24
that may relate to information provided for the purposes of
25
this Act;
26
(c) the power to examine any thing on the premises that may
27
relate to information provided for the purposes of this Act;
28
(d) the power to take photographs or make video or audio
29
recordings or sketches on the premises of any such activity or
30
thing;
31
Monitoring compliance Part 7
Powers of authorised officers Division 2
Section 46
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
31
(e) the power to inspect any document on the premises that may
1
relate to information provided for the purposes of this Act;
2
(f) the power to take extracts from, or make copies of, any such
3
document;
4
(g) the power to take onto the premises such equipment and
5
materials as the authorised officer requires for the purpose of
6
exercising powers in relation to the premises;
7
(h) the power to secure a thing that:
8
(i) is found during the exercise of monitoring powers on
9
the premises; and
10
(ii) an authorised officer believes on reasonable grounds
11
affords evidence of a contravention of this Act or of the
12
commission of an offence against the Crimes Act 1914;
13
until a warrant is obtained to seize the thing;
14
(i) the powers in subsections (2) and (3).
15
(2) The powers that an authorised officer may exercise in relation to
16
premises under section 45 include the power to operate equipment
17
at premises to see whether:
18
(a) the equipment; or
19
(b) a disk, tape or other storage device that:
20
(i) is at the premises; and
21
(ii) can be used with the equipment or is associated with it;
22
contains information that is relevant to assessing the correctness of
23
information provided under this Act.
24
(3) The powers that an authorised officer may exercise in relation to
25
premises under section 45 include the following powers in relation
26
to information described in subsection (2) found in the exercise of
27
the power under that subsection:
28
(a) the power to operate facilities at the premises to put the
29
information in documentary form and copy the documents so
30
produced;
31
(b) the power to operate facilities at the premises to transfer the
32
information to a disk, tape or other storage device that:
33
(i) is brought to the premises for the exercise of the power;
34
or
35
Part 7 Monitoring compliance
Division 2 Powers of authorised officers
Section 47
32 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
(ii) is at the premises and the use of which for the purpose
1
has been agreed in writing by the occupier of the
2
premises;
3
(c) the power to remove from the premises a disk, tape or other
4
storage device to which the information has been transferred
5
in exercise of the power under paragraph (b).
6
47 Authorised officer may request persons to answer questions
7
(1) If the authorised officer was only authorised to enter premises
8
because the occupier of the premises consented to the entry, the
9
authorised officer may ask the occupier to:
10
(a) answer any questions related to the operation of this Act that
11
are put by the authorised officer; and
12
(b) produce any document requested by the authorised officer
13
that is so related.
14
(2) If the authorised officer was authorised to enter the premises by a
15
warrant, the authorised officer has power to require the occupier (if
16
the occupier is in or on the premises), or another person who
17
apparently represents the occupier (if that person is in or on the
18
premises), to:
19
(a) answer any questions related to the operation of this Act that
20
are put by the authorised officer; and
21
(b) produce any document requested by the authorised officer
22
that is so related.
23
(3) A person commits an offence if the person refuses or fails to
24
comply with a requirement under subsection (2).
25
Penalty: 10 penalty units.
26
(4) An individual is excused from complying with a requirement of
27
subsection (2) if the answer to the question or the production of the
28
document might tend to incriminate the individual or expose the
29
individual to a penalty.
30
Note:
A defendant bears an evidential burden in relation to the matter in
31
subsection (4), see subsection 13.3(3) of the Criminal Code.
32
Monitoring compliance Part 7
Obligations and incidental powers of authorised officers Division 3
Section 48
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
33
Division 3--Obligations and incidental powers of
1
authorised officers
2
48 Authorised officer must produce identity card on request
3
An authorised officer is not entitled to exercise any powers under
4
this Act in relation to premises if:
5
(a) the occupier of the premises requires the authorised officer to
6
produce his or her identity card for inspection by the
7
occupier; and
8
(b) the authorised officer fails to comply with the requirement.
9
49 Consent
10
(1) Before obtaining the consent of a person for the purposes of
11
paragraph 45(2)(a), the authorised officer must inform the person
12
that he or she may refuse consent.
13
(2) An entry of an authorised officer because of the consent of a
14
person is not lawful unless the person voluntarily consented to the
15
entry.
16
50 Announcement before entry
17
An authorised officer executing a warrant must, before entering
18
premises under the warrant:
19
(a) announce that he or she is authorised to enter the premises;
20
and
21
(b) give any person at the premises an opportunity to allow entry
22
to the premises.
23
51 Details of warrant to be given to occupier etc. before entry
24
(1) If a warrant is being executed and the occupier of the premises in
25
respect of which it is being executed or another person who
26
apparently represents the occupier is present at the premises, the
27
authorised officer must make available to that person a copy of the
28
warrant.
29
Part 7 Monitoring compliance
Division 3 Obligations and incidental powers of authorised officers
Section 52
34 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
(2) The authorised officer must identify himself or herself to that
1
person.
2
(3) The copy of the warrant referred to in subsection (1) need not
3
include the signature of the magistrate who issued the warrant.
4
Note:
Monitoring warrants are issued under section 56.
5
52 Use of electronic equipment in exercising monitoring powers
6
(1) An authorised officer or a person assisting that officer may operate
7
electronic equipment already at premises in order to exercise the
8
powers set out in section 46 if he or she believes, on reasonable
9
grounds, that the operation of the equipment can be carried out
10
without damage to the equipment.
11
(2) If the authorised officer or a person assisting believes, on
12
reasonable grounds, that:
13
(a) there is on the premises material relating to information
14
supplied under this Act that may be accessible by operating
15
electronic equipment on the premises; and
16
(b) expert assistance is required to operate the equipment; and
17
(c) if he or she does not take action under this subsection, the
18
material may be destroyed, altered or otherwise interfered
19
with;
20
he or she may do whatever is necessary to secure the equipment,
21
whether by locking it up, placing a guard, or otherwise.
22
(3) The authorised officer or a person assisting must give notice to the
23
occupier of the premises of his or her intention to secure equipment
24
and of the fact that the equipment may be secured for up to 24
25
hours.
26
(4) The equipment may be secured:
27
(a) for a period not exceeding 24 hours; or
28
(b) until the equipment has been operated by the expert;
29
whichever first happens.
30
(5) If an authorised officer or a person assisting believes, on
31
reasonable grounds, that the expert assistance will not be available
32
Monitoring compliance Part 7
Obligations and incidental powers of authorised officers Division 3
Section 53
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
35
within 24 hours, he or she may apply to a magistrate for an
1
extension of the period.
2
(6) The magistrate may extend the period of time, up to a maximum of
3
a further 48 hours.
4
(7) The authorised officer or a person assisting must give notice to the
5
occupier of the premises of his or her intention to apply for an
6
extension and the occupier is entitled to be heard in relation to that
7
application.
8
(8) The provisions of this Part relating to the issue of warrants apply,
9
with such modifications as are necessary, to the issue of an
10
extension.
11
(9) In this section:
12
premises means:
13
(a) premises that an authorised officer has entered, and remains
14
on, with the consent of the occupier; and
15
(b)
warrant
premises.
16
53 Compensation for damage to electronic equipment
17
(1) This section applies if:
18
(a) as a result of equipment being operated as mentioned in
19
section 52:
20
(i) damage is caused to the equipment; or
21
(ii) the data recorded on the equipment is damaged; or
22
(iii) programs associated with the use of the equipment, or
23
with the use of the data, are damaged or corrupted; and
24
(b) the damage or corruption occurs because:
25
(i) insufficient care was exercised in selecting the person
26
who was to operate the equipment; or
27
(ii) insufficient care was exercised by the person operating
28
the equipment.
29
(2) The Commonwealth must pay the owner of the equipment, or the
30
user of the data or programs, such reasonable compensation for the
31
Part 7 Monitoring compliance
Division 3 Obligations and incidental powers of authorised officers
Section 53
36 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
damage or corruption as the Commonwealth and the owner or user
1
agree on.
2
(3) However, if the owner or user and the Commonwealth fail to
3
agree, the owner or user may institute proceedings in a Court for
4
such reasonable amount of compensation as the Court determines.
5
(4) In determining the amount of compensation payable, regard is to
6
be had to whether the occupier of the premises, or the occupier's
7
employees or agents, if they were available at the time, provided
8
any appropriate warning or guidance on the operation of the
9
equipment.
10
(5) Compensation is payable out of money appropriated by the
11
Parliament.
12
(6) For the purposes of subsection (1):
13
damage, in relation to data, includes damage by erasure of data or
14
addition of other data.
15
Monitoring compliance Part 7
Occupier's rights and responsibilities Division 4
Section 54
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
37
Division 4--Occupier's rights and responsibilities
1
54 Occupier entitled to be present during execution of warrant
2
(1) If a warrant is being executed and the occupier of the warrant
3
premises, or another person who apparently represents the
4
occupier, is present at the premises, the person is entitled to
5
observe the execution of the warrant.
6
(2) The right to observe the execution of the warrant ceases if the
7
person impedes that execution.
8
(3) This section does not prevent the execution of the warrant in 2 or
9
more areas of the premises at the same time.
10
55 Occupier to provide authorised officer with all facilities and
11
assistance
12
(1) The occupier of warrant premises, or another person who
13
apparently represents the occupier, must provide the officer
14
executing the warrant and any person assisting that officer with all
15
reasonable facilities and assistance for the effective exercise of
16
their powers.
17
(2) A person commits an offence if the person fails to comply with the
18
obligation set out in subsection (1).
19
Penalty: 10 penalty units.
20
Note:
Chapter 2 of the Criminal Code sets out the general principles of
21
criminal responsibility.
22
Part 7 Monitoring compliance
Division 5 Warrants
Section 56
38 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Division 5--Warrants
1
56 Monitoring warrants
2
(1) An authorised officer may apply to a magistrate for a warrant
3
under this section in relation to premises.
4
(2) Subject to subsection (3), the magistrate may issue the warrant if
5
the magistrate is satisfied, by information on oath or affirmation,
6
that it is reasonably necessary that one or more authorised officers
7
should have access to the premises for the purposes of
8
substantiating information provided under this Act or of
9
determining whether this Act has been complied with.
10
(3) The magistrate must not issue the warrant unless the authorised
11
officer or some other person has given to the magistrate, either
12
orally or by affidavit, such further information (if any) as the
13
magistrate requires concerning the grounds on which the issue of
14
the warrant is being sought.
15
(4)
The
warrant
must:
16
(a) authorise one or more authorised officers (whether or not
17
named in the warrant) with such assistance as is necessary
18
and reasonable:
19
(i) to enter the premises; and
20
(ii) to exercise the powers set out in section 46 in relation to
21
the premises; and
22
(b) state whether the entry is authorised to be made at any time
23
of the day or during specified hours of the day; and
24
(c) specify the day (not more than 6 months after the issue of the
25
warrant) on which the warrant ceases to have effect; and
26
(d) state the purpose for which the warrant is issued.
27
Monitoring compliance Part 7
Information gathering Division 6
Section 57
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
39
Division 6--Information gathering
1
57 Power to request information
2
(1) This section applies to a person if the Greenhouse and Energy Data
3
Officer has reason to believe that information (the compellable
4
information) relating to whether this Act has been complied with
5
is in a person's possession, custody or control (whether held
6
electronically or in any other form).
7
(2) The Greenhouse and Energy Data Officer may, in writing, require
8
the person to give specified compellable information to the
9
Greenhouse and Energy Data Officer:
10
(a) within a specified period of time; and
11
(b) in a specified form or manner.
12
(3) The person must not fail to comply with a requirement under this
13
section.
14
Civil penalty:
50 penalty units.
15
(4) The person must not, in purported compliance with a requirement
16
under this section, give to the Greenhouse and Energy Data Officer
17
information that is false or misleading in a material particular.
18
Civil penalty:
20 penalty units.
19
(5) Subsection (3) does not apply to the extent that the person has a
20
reasonable excuse. However, a person does not have a reasonable
21
excuse merely because the information in question is:
22
(a) of a commercial nature; or
23
(b) subject to an obligation of confidentiality arising from a
24
commercial relationship; or
25
(c)
commercially
sensitive.
26
(6) Subsection (3) does not apply in relation to compellable
27
information if giving the information might tend to incriminate the
28
person or expose the person to a penalty.
29
Part 7 Monitoring compliance
Division 6 Information gathering
Section 58
40 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
58 Prohibitions on disclosure of information do not apply
1
This Division has effect despite any law of the Commonwealth, a
2
State or a Territory prohibiting disclosure of the information.
3
Monitoring compliance Part 7
External audits Division 7
Section 59
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
41
Division 7--External audits
1
59 External audits--compliance
2
(1) This section applies if the Greenhouse and Energy Data Officer has
3
reasonable grounds to suspect that the owner of a non-residential
4
building has contravened, is contravening, or is proposing to
5
contravene, this Act or the regulations.
6
(2) The Greenhouse and Energy Data Officer may, by written notice
7
given to the owner, require the owner to:
8
(a)
appoint:
9
(i) an external auditor of his or her choice; or
10
(ii) if the Greenhouse and Energy Data Officer specifies an
11
external auditor in the notice--that external auditor; and
12
(b) arrange for the external auditor to carry out an external audit
13
on one or more aspects of the owner's compliance with this
14
Act or the regulations; and
15
(c) arrange for the external auditor to give the owner a written
16
report setting out the results of the audit; and
17
(d) give the Greenhouse and Energy Data Officer a copy of the
18
audit report on or before the day specified in the notice.
19
(3) The notice must specify the:
20
(a) matters to be covered by the audit; and
21
(b) form of the audit report and the kinds of details it is to
22
contain.
23
(4) The owner must provide an external auditor with all reasonable
24
facilities and assistance necessary for the effective exercise of the
25
external auditor's duties under this Act.
26
Civil penalty:
50 penalty units.
27
(5) If the Greenhouse and Energy Data Officer gives the owner written
28
notice under subsection (2), the owner must comply with the
29
requirements of the notice.
30
Civil penalty:
100 penalty units.
31
Part 7 Monitoring compliance
Division 7 External audits
Section 60
42 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Note:
Under section 28 a person may be liable for an additional civil penalty
1
for each day after the day mentioned in paragraph (2)(d) for which the
2
person fails to provide an audit report in accordance with this section.
3
60 External audits--other
4
(1) The Greenhouse and Energy Data Officer may appoint an external
5
auditor to carry out an external audit of the compliance of the
6
owner of a non-residential building with one or more aspects of
7
this Act or the regulations.
8
(2) The Greenhouse and Energy Data Officer must give written notice
9
to the owner of a decision to appoint an auditor under
10
subsection (1). The notice must:
11
(a) specify the external auditor; and
12
(b) specify the period within which the audit is to be undertaken;
13
and
14
(c) specify the matters to be covered by the audit; and
15
(d) be given to the owner at a reasonable time before the audit is
16
to be undertaken.
17
(2A) The owner must provide the external auditor with all reasonable
18
facilities and assistance necessary for the effective exercise of the
19
external auditor's duties under this Act.
20
Civil penalty:
50 penalty units.
21
(3) If the owner is given a notice under subsection (2), the owner must
22
arrange for the external auditor to carry out the external audit.
23
Civil penalty:
50 penalty units.
24
61 Requirements for external auditors
25
(1) An external auditor must conduct an audit and prepare a report in
26
accordance with guidelines determined by the Greenhouse and
27
Energy Data Officer under subsection (2).
28
(2) The Greenhouse and Energy Data Officer may determine, by
29
legislative instrument, guidelines to be followed by external
30
Monitoring compliance Part 7
External audits Division 7
Section 61
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
43
auditors when conducting audits and preparing reports under this
1
Division.
2
Part 8 Miscellaneous
Section 62
44 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
Part 8--Miscellaneous
1
2
62 Information may be provided to States and Territories
3
(1) The Greenhouse and Energy Data Officer, or a person authorised
4
by the Greenhouse and Energy Data Officer, must provide
5
emissions intensity information to a State or Territory or an
6
authority of a State or Territory if:
7
(a) it is information mentioned in subsection 12(4) or 15(4); or
8
(b) it is information relating to facilities that are wholly or partly
9
located in the State or Territory.
10
(2) However, the Greenhouse and Energy Data Officer may refuse to
11
provide information under this section if satisfied that there would
12
not be adequate security measures in place in relation to the
13
confidentiality of the information.
14
(3) The Greenhouse and Energy Data Officer may make provision of
15
information under this section subject to conditions including:
16
(a) restrictions on disclosure of the information to other persons;
17
and
18
(b) security measures required in relation to the confidentiality of
19
the information; and
20
(c) the State, Territory, or authority not requiring the reporting or
21
disclosure of other information of a kind similar to emissions
22
intensity information.
23
Publication by States or Territories
24
(4) A State or Territory, or an authority of a State or Territory, may
25
publish information provided to it under subsection (1) if:
26
(a) the publication of the information is required under a law of
27
the State or Territory; and
28
(b) the Greenhouse and Energy Data Officer has agreed, in
29
writing, to the publication of the information.
30
Miscellaneous Part 8
Section 63
Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No. , 2010
45
63 Compensation for acquisition of property
1
(1) If the operation of this Act or the regulations would result in an
2
acquisition of property from a person otherwise than on just terms,
3
the Commonwealth is liable to pay a reasonable amount of
4
compensation to the person.
5
(2) If the Commonwealth and the person do not agree on the amount
6
of the compensation, the person may institute proceedings in a
7
court of competent jurisdiction for the recovery from the
8
Commonwealth of such reasonable amount of compensation as the
9
court determines.
10
(3) In this section:
11
acquisition of property has the same meaning as in
12
paragraph 51(xxxi) of the Constitution.
13
just terms has the same meaning as in paragraph 51(xxxi) of the
14
Constitution.
15
64 Annual report on operation of Act
16
(1) The Greenhouse and Energy Data Officer must, as soon as
17
practicable after 30 June in each year, prepare and give to the
18
Minister a report on the operation of this Act during the year
19
ending on that 30 June.
20
Note:
Section 34C of the Acts Interpretation Act 1901 applies to reports
21
under this section.
22
(2) The regulations may prescribe other information to be included in a
23
report under subsection (1).
24
(3) The Minister must table a copy of the report before each House of
25
the Parliament within 15 sitting days of that House after the day on
26
which the Minister receives the report.
27
65 Regulations
28
The Governor-General may make regulations prescribing matters:
29
Part 8 Miscellaneous
Section 65
46 Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2010 No.
, 2010
(a) required or permitted by this Act to be prescribed; or
1
(b) necessary or convenient to be prescribed for carrying out or
2
giving effect to this Act.
3

 

[Index] [Search] [Download] [Related Items] [Help]