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ELECTRICITY SUPPLY ACT 1995 - SCHEDULE 4A

SCHEDULE 4A – Energy security safeguard schemes

Part 1 - Energy savings scheme

Division 1 - Preliminary

1 Objects of Part

(1) The principal object of this Part is to create a financial incentive to reduce the consumption of energy by encouraging energy saving activities.
(2) The other objects of this Part are--
(a) to assist households and businesses to reduce energy consumption and energy costs, and
(b) to complement any national scheme for carbon pollution reduction by making the reduction of greenhouse gas emissions achievable at a lower cost, and
(c) to reduce the cost of, and the need for, additional energy generation, transmission and distribution infrastructure.

2 Definitions

(1) In this Part--

"accredited certificate provider" means a person accredited as an energy savings certificate provider under this Part and whose accreditation is in force.

"base penalty rate" --see clause 16.

"carried forward shortfall" --see clause 19.

"certificate conversion factors" --see clause 33.

"compliance officer" means a compliance officer appointed under clause 71A.

"consumer price index" means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.

"direct supplier of electricity" has the meaning given by clause 4.

"end user" of electricity means a person who acquires, or proposes to acquire, electricity for consumption purposes.

"energy conversion factor" --see clause 11.

"energy savings certificate" means an energy savings certificate created under this Part.

"energy savings scheme" or
"scheme" means the energy savings scheme established by this Part.

"energy savings scheme target" --see clause 6.

"energy savings shortfall" --see clause 14.

"energy savings shortfall penalty" --see clause 15.

"energy savings statement" --see clause 26.

"green hydrogen" means hydrogen produced using renewable energy.

"individual energy savings target" --see clause 9.

"liable acquisition" --see clause 10.

"Market Operator" means the entity that has the function of operating and administering the wholesale exchange under the National Electricity (NSW) Law .

"notional megawatt hours" --see clause 9(1).

"penalty conversion factor" --see clause 16.

"recognised energy saving activity" means an activity in respect of which an energy savings certificate may be created under this Part.

"recognised form of energy" means the following--
(a) electricity,
(b) a type of gas,
(c) a form of energy prescribed by the regulations.

"register" means a register kept by the Scheme Administrator under this Part.

"related body corporate" of a person has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.

"Scheme Administrator" means the person or body required to exercise the functions of Scheme Administrator under this Part.

"scheme participant" means a person who is required by this Part to participate in the energy savings scheme.

"scheme penalty rate" --see clause 16.

"Scheme Regulator" means the person or body required to exercise the functions of Scheme Regulator under this Part.

"scheme rule" means a rule approved by the Minister under Division 13 of this Part.
(2) In this Part, a reference to a particular
"year" is a reference to the period of 12 months commencing on 1 January of that year, except in relation to the year 2009. A reference to the year 2009 is a reference to the period of 6 months commencing on 1 July 2009.

Division 2 - Energy savings scheme

3 Establishment of scheme

There is established by this Part an energy savings scheme.

4 Persons required to participate in scheme

(1) The following persons are required to participate in the energy savings scheme--
(a) a retailer,
(b) a direct supplier of electricity,
(c) a market customer.
(2) In this clause--

"direct supplier of electricity" means an electricity generator prescribed by the regulations, or any other person prescribed by the regulations, who supplies electricity directly to a customer.

"market customer" means a customer that has classified any of its electricity loads as a market load and that is registered with the Market Operator as a market customer under the National Electricity Rules (within the meaning of the National Electricity (NSW) Law ).

5 Scheme participants required to meet individual energy savings targets

Each scheme participant is required to meet its individual energy savings target for each year, in accordance with this Part.

Note : Failure to meet an individual energy savings target will result in a penalty being payable.

Division 3 - Energy savings scheme targets

6 Energy savings scheme targets

(1) The energy savings scheme targets are to be used as the basis for the calculation of each scheme participant's individual energy savings target.
(2) The energy savings scheme targets are set out in Schedule 5.
Note : Clause 8A enables energy savings scheme targets to be inserted into Schedule 5 for the year 2026 and following years.
(3) The energy savings scheme target for a year specified in column 1 of Schedule 5 is the amount specified for that year in column 2 of that Schedule.
Note : The energy savings scheme target is applied to the liable acquisitions made by a scheme participant to calculate an individual energy savings target for the scheme participant. This is explained in Division 4.

7 Changes to energy savings scheme targets

(1) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 5 to change the energy savings scheme target for a specified year or years.
(2) Accordingly, any such regulation may omit an amount specified in column 2 of Schedule 5 and substitute a new amount.
(3) Any such regulation does not affect the energy savings scheme target for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
Note : For example, a regulation to change the energy savings scheme target for the year 2011 would have to be made on or before 31 December 2009.

8 Conditions under which energy savings scheme targets may be changed

The Minister may recommend the making of a regulation to change the energy savings scheme target for a year or years only if the Minister has certified in writing to the Governor that, in the Minister's opinion--

(a) the change to the energy savings scheme target is appropriate to achieve greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the energy savings scheme, or for the purposes of implementing a national scheme with similar objectives to the energy savings scheme, or
(b) the change to the energy savings scheme target is appropriate because of an under supply or over supply of energy savings certificates that may be surrendered under this Part, as evidenced in the manner set out in the regulations, or
(c) the change to the energy savings scheme target is appropriate because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020 , or
(d) the change to the energy savings scheme target is appropriate because of significant changes to the rules governing the creation of energy savings certificates, or
(e) the change to the energy savings scheme target is otherwise appropriate because of significant changes to the policy or regulatory framework, or the market conditions, in which the energy savings scheme operates.

8A Energy savings scheme targets and energy conversion factors for 2026 onwards

(1) The regulations may amend Schedule 5 to insert an energy savings scheme target and energy conversion factor for the year 2026 or a following year.
(2) To avoid doubt--
(a) an energy savings scheme target or energy conversion factor inserted by a regulation under subclause (1) may be changed under clause 7 or 11 respectively, and
(b) clause 8 does not apply to the making of a regulation made under subclause (1).

Division 4 - Individual energy savings targets

9 Individual energy savings targets

(1) The
"individual energy savings target" of a scheme participant for a year is the amount (expressed in units referred to as
"notional megawatt hours" ) calculated as follows--
(a) Multiply the total value of all liable acquisitions made by the scheme participant during that year (expressed in megawatt hours) by the energy savings scheme target for the year (the
"megawatt hours target" ).
(b) Multiply the megawatt hours target by the energy conversion factor for that year.
(2) If the result obtained at the end of Step 2 includes a fraction of a notional megawatt hour, the fractional amount is to be rounded up or down to the nearest whole notional megawatt hour (and, if the amount to be rounded is half a notional megawatt hour, is to be rounded up).
Note : For example, if a scheme participant has liable acquisitions in the year 2016 of 75,050 megawatt hours, to calculate the scheme participant's individual energy savings target under subclause (1)--
(a) Step 1 requires the 75,050 megawatt hours to be multiplied by 0.07 (the energy savings scheme target for 2016), resulting in a megawatt hours target of 5,253.5, and
(b) Step 2 requires the figure of 5,253.5 to be multiplied by 1.00 (the energy conversion factor for 2016), resulting in an individual energy savings target of 5,253.5 notional megawatt hours.
The result is then rounded up to 5,254 in accordance with subclause (2).
The scheme participant has an individual energy savings target for the year 2016 of 5,254 notional megawatt hours.
The scheme participant can meet this target by surrendering energy savings certificates to the Scheme Regulator in accordance with this Part. Since each certificate has a value of 1 notional megawatt hour (see clause 31), the scheme participant can meet this target by surrendering 5,254 certificates.
Energy savings certificates may be created in respect of activities that involve the consumption of a recognised form of energy. Certificate conversion factors are applied to the actual energy savings of end users resulting from an energy saving activity to produce energy savings expressed in notional megawatt hours for the purposes of energy savings targets. See Division 7.
Consequently, the number of notional megawatt hours of individual energy savings targets of scheme participants will not be the same as the number of actual megawatt hours saved by end users as a result of energy saving activities for which energy savings certificates are created.

10 Liable acquisitions

(1) For the purposes of this Part, a
"liable acquisition" is any purchase of electricity by a scheme participant, from the Market Operator or from any other person, whether or not a registered participant under the National Electricity (NSW) Law , where the electricity is purchased for consumption by, or onsale to, end users in this State, or for use in this State.
(2) A supply of electricity generated by a scheme participant is also to be treated as a liable acquisition under this Part if--
(a) the scheme participant is a retailer and the electricity is supplied by the retailer for consumption by, or onsale to, end users in this State, or for use in this State, or
(b) the scheme participant is a direct supplier of electricity and the supply is of a kind specified by the regulations to be a liable acquisition under the scheme.
(2A) However, if a scheme participant purchases electricity from another scheme participant, the purchase is not a liable acquisition if the purchase of the electricity is, or the supply of the electricity is to be treated as, a liable acquisition for that other scheme participant or for a scheme participant who is further up the chain of supply of the electricity.
(3) For the purposes of this Part--
(a) a liable acquisition is
"made" by a scheme participant on the date the electricity is purchased by the scheme participant or, in the case of a supply of electricity treated as a liable acquisition, supplied by the scheme participant, and
(b) the
"value" of a purchase or supply of electricity is the amount of electricity purchased or supplied, expressed in megawatt hours.
(4) Electricity is taken to be purchased by a scheme participant on the date the electricity is physically delivered to the scheme participant (regardless of when the contract or other arrangement for purchase of the electricity was entered into or made).
(5) This clause is subject to Division 5 (which provides for exemptions).

11 Energy conversion factors

(1) Energy conversion factors are set out in Schedule 5.
Note : Clause 8A enables energy conversion factors to be inserted into Schedule 5 for the year 2026 and following years.
(2) The energy conversion factor for a year specified in column 1 of Schedule 5 is the amount specified for that year in column 3 of that Schedule.
(3) The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 5 to change the energy conversion factor for a specified year or years.
(4) Accordingly, any such regulation may omit an amount specified in column 3 of Schedule 5 and substitute a new amount.
(5) Any such regulation does not affect the energy conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.

12 How does a scheme participant meet an individual energy savings target?

(1) A scheme participant meets an individual energy savings target for a year if the energy savings attributable to the scheme participant for the year are equivalent to, or exceed, the individual energy savings target of the scheme participant for that year.
(2) A scheme participant fails to meet an individual energy savings target for a year if the energy savings attributable to the scheme participant for the year are less than the individual energy savings target of the scheme participant for that year.

13 What are the energy savings attributable to a scheme participant?

For the purposes of this Part, the energy savings attributable to a scheme participant for a year is the total value of all energy savings certificates that the scheme participant elects to surrender, in accordance with this Part, for the purpose of meeting its individual energy savings target for that year.

Note : Energy savings certificates may be created in respect of activities that reduce the consumption of a recognised form of energy. See Division 7.

14 Failure to meet individual energy savings target--energy savings shortfalls

(1) If a scheme participant fails to meet its individual energy savings target for a year, the scheme participant has an
"energy savings shortfall" for that year.
(2) The amount of the energy savings shortfall is the number of notional megawatt hours by which the individual energy savings target of the scheme participant for the year exceeds the energy savings attributable to the scheme participant for that year.

15 Penalties for energy savings shortfalls

(1) A scheme participant who has an energy savings shortfall for a year is liable to pay a penalty in respect of that year (an
"energy savings shortfall penalty" ).
(2) The amount of the energy savings shortfall penalty is the amount (in dollars) calculated by multiplying the amount of the energy savings shortfall by the scheme penalty rate.
(3) If the result obtained from that calculation is not a whole number of dollars, it is to be rounded down to the nearest whole number of dollars.

16 Penalty rates

(1) The
"scheme penalty rate" is the amount (expressed in dollars per notional megawatt hour) calculated by multiplying the base penalty rate for the year in respect of which the energy savings shortfall penalty is payable by the penalty conversion factor for that year.
(2) Subject to clause 17--
(a) the base penalty rate is as follows--
(i) for 2009 and 2010--$24.50 per notional megawatt hour,
(ii) for each subsequent year--the base penalty rate for a previous year specified in the regulations and adjusted for movements in the consumer price index in accordance with the regulations, and
(b) the penalty conversion factor for a year is 0.94.
(3) The Scheme Regulator is to cause notice of the adjusted base penalty rate for a year to be published on its website before the beginning of that year.

17 Changes to base penalty rates and penalty conversion factors

(1) The Governor may, by regulation made on the recommendation of the Minister, change the base penalty rate or the penalty conversion factor (or both) for a specified year or years.
(3) Any such regulation does not affect the base penalty rate or penalty conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
Note : For example, a regulation to prescribe a different base penalty rate or penalty conversion factor for the year 2011 and subsequent years would have to be made on or before 31 December 2009.
(4) The Minister may recommend the making of a regulation to change the base penalty rate for a year or years only if the Minister has certified in writing to the Governor that, in the Minister's opinion--
(a) the change to the base penalty rate is appropriate to achieve greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the energy savings scheme, or for the purposes of implementing a national scheme with similar objectives to the energy savings scheme, or
(b) the change to the base penalty rate is appropriate because of an under supply or over supply of energy savings certificates that may be surrendered under this Part, as evidenced in the manner set out in the regulations, or
(d) the change to the base penalty rate is appropriate because of significant changes to the rules governing the creation of energy savings certificates, or
(e) the change to the base penalty rate is otherwise appropriate because of significant changes to the policy or regulatory framework, or the market conditions, in which the energy savings scheme operates.
(5) To avoid doubt, subclause (4) does not apply to a regulation that changes the penalty conversion factor for a year or years.
(6) This clause does not apply to a regulation that provides for the adjustment of base penalty rates for movements in the consumer price index.

18 Payment of energy savings shortfall penalties

(1) An energy savings shortfall penalty payable by a scheme participant in respect of a year is payable on 1 March in the following year or on any later date determined by the Scheme Regulator for the scheme participant.
(2) An energy savings shortfall penalty is payable to the Scheme Regulator, for payment into the Consolidated Fund as public money.
(3) An energy savings shortfall penalty payable by a scheme participant may be recovered in any court of competent jurisdiction as a debt due to the Crown.

19 Energy savings shortfalls may be carried forward

(1) A scheme participant may elect to carry forward an energy savings shortfall, or part of an energy savings shortfall, for a year to the next year in accordance with this clause.
(2) If a scheme participant elects to carry forward an energy savings shortfall, or part of an energy savings shortfall, the amount carried forward is not subject to an energy savings shortfall penalty for the year to which the shortfall relates.
(3) The maximum amount of an energy savings shortfall that may be carried forward to the year 2010 by a scheme participant is 20% of the scheme participant's individual energy savings target for the year 2009 or, if the regulations prescribe another amount as the maximum amount that may be carried forward to year 2010, the amount so prescribed.
(4) The maximum amount of an energy savings shortfall that may be carried forward to any other year by a scheme participant is 10% of the scheme participant's individual energy savings target in the previous year or, if the regulations prescribe another amount as the maximum amount that may be carried forward to the relevant year, the amount so prescribed.
(5) An energy savings shortfall, or part of an energy savings shortfall, may be carried forward to the next year only.
(6) However, an energy savings shortfall, or part of an energy savings shortfall, for the year 2050 cannot be carried forward to the next year.
Note : The scheme automatically terminates at the end of the year 2050. It is also possible for the scheme to be terminated earlier under Division 14, in which case the regulations may prohibit scheme participants from carrying forward an energy savings shortfall to the next year if the termination takes effect in that next year.
(7) The fact that a scheme participant elects to carry forward an energy savings shortfall, or part of an energy savings shortfall, to the next year does not prevent the scheme participant from electing to carry forward an energy savings shortfall, or part of an energy savings shortfall, for that next year to the following year.
(8) For the purposes of this Part, an energy savings shortfall, or part of an energy savings shortfall, for a year that is carried forward to the next year is a
"carried forward shortfall" for that next year.

20 Carried forward shortfalls must be remedied

(1) A scheme participant who has a carried forward shortfall for a year must remedy the carried forward shortfall in that year.
(2) A scheme participant remedies a carried forward shortfall if the additional energy savings attributable to the scheme participant for the year to which the energy savings shortfall is carried forward are equivalent to, or exceed, the amount of the carried forward shortfall.
(3) A scheme participant fails to remedy a carried forward shortfall if the additional energy savings attributable to the scheme participant for the year to which the energy savings shortfall is carried forward are less than the amount of the carried forward shortfall.
(4) For the purposes of this Part, the additional energy savings attributable to a scheme participant for a year is the total value of all energy savings certificates that the scheme participant elects to surrender, in accordance with this Part, for the purpose of remedying its carried forward shortfall for that year.
(5) If a scheme participant fails to remedy a carried forward shortfall, the scheme participant is liable for a penalty in respect of the non-remedied amount (that is, the amount by which the carried forward shortfall exceeds the additional energy savings attributable to the scheme participant for the year).
(6) The penalty is to be calculated as if the non-remedied amount were an energy savings shortfall for the year to which the energy savings shortfall is carried forward.
(7) The penalty is payable in the same manner as, and is taken to be, an energy savings shortfall penalty.
(8) To avoid doubt, a penalty payable by a scheme participant in respect of a failure to remedy a carried forward shortfall in a year is additional to any penalty payable by the scheme participant in respect of the participant's energy savings shortfall (if any) for that year.

21 Elections by scheme participants

(1) An election by a scheme participant to surrender an energy savings certificate for the purpose of meeting its individual energy savings target or remedying a carried forward shortfall, or to carry forward an energy savings shortfall, must be made to the Scheme Regulator in accordance with this Part.
(2) An election has no effect unless it is accepted by the Scheme Regulator.
Note : The election must accompany the scheme participant's annual energy savings statement. See Division 6.

Division 5 - Exemptions

22 Exemptions

(1) The Minister may, by order published in the Gazette, grant an exemption from the scheme in respect of any electricity load--
(a) used by a specified person, or class of persons, or
(b) used in connection with a specified activity or class of activities.
(2) An order granting an exemption may also specify the scheme participant, or class of scheme participants, in respect of whom the exemption applies.
(3) The Minister may grant an exemption under this clause only if satisfied that the electricity is used--
(a) in connection with an industry or activity that is both emissions intensive and trade exposed, or
(b) to produce green hydrogen.
(3A) The Minister may grant an exemption under this clause only if satisfied that the exemption is otherwise generally consistent with the objects of this Part.
(4) An exemption is to specify whether it is a full exemption or a partial exemption.
(5) If the exemption is a full exemption, the electricity load to which the exemption applies is, for the purposes of this Part,
"fully exempt electricity load" .
(6) If the exemption is a partial exemption, the electricity load to which the exemption applies is, for the purposes of this Part,
"partially exempt electricity load" .
(7) If an exemption is a partial exemption, the order granting the exemption is to specify (as a percentage or otherwise) the proportion of electricity load used by the relevant person or class of persons, or in connection with the relevant activity or class of activities, that is exempt from the scheme. The proportion specified is referred to in this Division as the
"exempt proportion" .

23 Effect of exemption

(1) A scheme participant is entitled to deduct from the total value of its liable acquisitions the value of any purchase of electricity that is to be used by a person or in connection with an activity and which, when so used, is fully exempt electricity load.
(2) A scheme participant is entitled to deduct from the total value of its liable acquisitions a proportion of the value of any purchase of electricity that is to be used by a person or in connection with an activity and which, when so used, is partially exempt electricity load. The proportion that may be deducted is the exempt proportion.
(3) An order granting an exemption may specify any allowances that may be made by scheme participants, in applying the exemption, for electricity losses occurring between the purchase of the electricity by the scheme participant and its use by an end user.
(4) Electricity the subject of such an allowance may also be deducted from the total value of liable acquisitions made by a scheme participant, in accordance with the exemption.
(5) An order granting an exemption may authorise the Scheme Regulator to make rules with respect to the exemption (including rules relating to assessment of deductions under this Division).
(6) Any deductions made by scheme participants under this Division must be made in accordance with the provisions of the relevant exemption, and any such rules.
(7) In any proceedings under this Act involving a scheme participant, the burden of establishing that the scheme participant was entitled to deduct any particular amount of electricity purchased by it from the total value of its liable acquisitions lies on the scheme participant.
(8) In this clause, a reference to a purchase of electricity includes a reference to a supply of electricity that is treated as a liable acquisition under this Part.

24 Grounds on which electricity load may be exempt

(1) The regulations may make further provision with respect to the determination of whether--
(a) an industry or activity is emissions intensive or trade exposed, and
(b) electricity is taken to be used to produce green hydrogen.
(2) Subject to the regulations, the Minister may determine the basis on which--
(a) an industry or activity is considered to be emissions intensive or trade exposed, and
(b) electricity is taken to be used to produce green hydrogen.

25 General provisions with respect to exemptions

(1) An exemption takes effect on the day the order granting the exemption is published in the Gazette or, if a later day is specified in the order, on that later day.
(2) An exemption may be revoked by order of the Minister published in the Gazette.
(3) If an exemption is revoked, the revocation takes effect on the day the order revoking the exemption is published in the Gazette or, if a later day is specified in the order, on that later day.
(4) The Minister is to provide a copy of any order made under this Division to the Scheme Regulator.
(5) The Scheme Regulator is to make particulars of any exemption under this Division, and any rules it makes with respect to an exemption, available to scheme participants, including by publishing particulars of the exemptions and rules on its website.

Division 6 - Assessment of compliance of scheme participants

26 Annual energy savings statements

(1) A scheme participant must lodge with the Scheme Regulator a statement (an
"energy savings statement" ) on or before 1 March in each year or on or before any later day specified in respect of the scheme participant by the Scheme Regulator.
(2) An energy savings statement is to contain the following--
(a) an assessment of the scheme participant's individual energy savings target for the previous year, including particulars of liable acquisitions made by the scheme participant during the previous year and of any deductions made in respect of fully exempt or partially exempt electricity load,
(b) an assessment of the participant's liability (if any) for an energy savings shortfall penalty for the previous year, including liability for an energy savings shortfall penalty in respect of a carried forward shortfall,
(c) any other matters required by the Scheme Regulator.
(3) If the scheme participant seeks to elect to surrender one or more energy savings certificates for the purposes of meeting its individual energy savings target for the year to which the energy savings statement relates, or to remedy a carried forward shortfall for the year, the election is to accompany the energy savings statement and is to contain details of the energy savings certificates proposed to be surrendered.
(4) If a scheme participant seeks to elect to carry forward an energy savings shortfall for the year to which the statement relates, or any part of that shortfall, the election is to accompany the statement.
(5) An energy savings statement, and any election that accompanies the statement, must be in a form approved by the Scheme Regulator.
(6) A scheme participant that fails to lodge an energy savings statement in accordance with this clause is guilty of an offence.
: Maximum penalty--
(a) in the case of a corporation--250 penalty units, or
(b) in the case of an individual--100 penalty units.

27 Restrictions on surrender of energy savings certificates

(1) An energy savings certificate cannot be surrendered by a scheme participant for the purposes of meeting its individual energy savings target or remedying a carried forward shortfall unless--
(a) the certificate is registered in the register of energy savings certificates kept under this Part and the registration is in force, and
(b) the participant is recorded in the register of energy savings certificates as the owner of the certificate, and
(c) the certificate was created in relation to energy savings that occurred before the end of the year to which the energy savings statement relates, and
(d) in the case of a certificate that relates to an energy saving activity that occurred in a State or Territory for which there is an approved corresponding scheme under clause 30--the Minister has, by the order approving the corresponding scheme or by a subsequent order published in the Gazette, approved the surrender of such certificates by a scheme participant for those purposes.
(2) The Scheme Regulator may, by notice in writing to a scheme participant, refuse to accept an election to surrender an energy savings certificate--
(a) if, in the opinion of the Scheme Regulator, the certificate cannot be surrendered under this clause, or
(b) if, in the opinion of the Scheme Regulator, the certificate is surplus to the number required to be surrendered for the purpose of meeting the participant's individual energy savings target or to remedy a carried forward shortfall.
(3) If the Scheme Regulator accepts the surrender of an energy savings certificate, and the Scheme Regulator is not the Scheme Administrator, the Scheme Regulator must give the Scheme Administrator notice in writing of the decision, including details of the certificates surrendered.

28 Regulations relating to assessments

Regulations may be made for or with respect to the following matters--

(a) the assessment of the liability of a scheme participant for an energy savings shortfall penalty, including self-assessment or assessment by the Scheme Regulator,
(b) the date on which an assessment is taken to have been made and the date on which an assessment takes effect,
(c) default assessments where an energy savings statement is not lodged by a scheme participant,
(d) amendment of assessments, at the request of a scheme participant or on the Scheme Regulator's own motion,
(e) revocation of the cancellation of energy savings certificates in connection with amended assessments and the revival of the certificates,
(f) payments resulting from amended assessments,
(g) notice of assessments.

29 Validity of assessment

The validity of an assessment of a liability to pay an energy savings shortfall penalty is not affected by any failure to comply with a provision of this Act, the regulations or the scheme rules.

Division 7 - Creation of energy savings certificates

30 Activities in respect of which energy savings certificates may be created

(1) The scheme rules may make provision for or with respect to the creation of energy savings certificates in respect of any activity, or class of activities, that reduces the consumption of a recognised form of energy in this State.
(2) The scheme rules may also make provision for or with respect to the creation of energy savings certificates in respect of any activity, or class of activities, that reduces the consumption of a recognised form of energy in another jurisdiction, if an approved corresponding scheme is in operation in that jurisdiction.
(3) An
"approved corresponding scheme" is a scheme approved by the Minister for the purposes of this clause, by order published in the Gazette.
(4) The Minister may approve a scheme for the purposes of this clause only if the Minister is satisfied that--
(a) the scheme is intended to promote the reduced consumption of a recognised form of energy and the objectives of the scheme are consistent with the objectives of the energy savings scheme established by this Part, and
(b) the monitoring and enforcement of compliance with the scheme to be approved is no less stringent than that applicable to the energy savings scheme established by this Part.
(5) An energy savings certificate cannot be created in respect of an activity unless the activity commenced or commences on or after 1 July 2008.
Note : However, energy savings certificates may be created only in respect of energy savings occurring on or after 1 July 2009. For example, a project that results in energy savings that commenced in September 2008 may be eligible for accreditation under the scheme, but energy savings certificates may be created only in respect of energy savings arising from the project that occur on or after 1 July 2009.
(6) An activity in respect of which an energy savings certificate may be created under this Part is a
"recognised energy saving activity" .

31 Energy savings represented by certificates

(1) An energy savings certificate may be created for each whole notional megawatt hour attributable to energy savings arising from a recognised energy saving activity.
(2) Accordingly, each energy savings certificate has a value of 1 notional megawatt hour.

32 Calculation of energy savings attributable to recognised energy saving activities

(1) The number of notional megawatt hours attributable to energy savings arising from a recognised energy savings activity is to be calculated by applying the certificate conversion factor or factors for the year in which the energy savings for which the certificate is created occurred to the number of megawatt hours of energy savings arising from the activity.
(2) Depending on the nature of the energy saving activity and the scheme rules, the calculation may require the application of the certificate conversion factor for the recognised form of energy.
(3) The scheme rules may provide for the methodology for calculating the number of megawatt hours of energy savings arising from a recognised energy saving activity and for applying the certificate conversion factors.

33 Certificate conversion factor--electricity

(1) Subject to this clause, the certificate conversion factor for a year for electricity is 1.06.
(3) The Governor may, by regulation made on the recommendation of the Minister, change a certificate conversion factor for a specified year or years.
(5) Any such regulation does not affect a certificate conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.

33A Certificate conversion factor--forms of energy other than electricity

(1) The certificate conversion factor for a form of energy other than electricity for a year is the factor prescribed by the regulations for the form of energy.
(2) If the regulations do not prescribe a certificate conversion factor for a year for a type of gas, the certificate conversion factor for a year for the type of gas is 0.39.

34 When energy savings certificates may be created

(1) An energy savings certificate for energy savings arising from a recognised energy saving activity that occur during a particular year may be created--
(a) if the regulations prescribe a period for the creation of the certificate--in the period prescribed by the regulations, or
(b) otherwise--no later than 6 months after the end of the year in which the energy savings occur.
(2) An energy savings certificate is not created until an application is made under clause 46 for registration of the certificate.
(4) The regulations or scheme rules may specify when the energy savings arising from a recognised energy saving activity are considered to have occurred for the purposes of this Part.
(5) Without limiting the above, the regulations or scheme rules may provide that energy savings are taken to have occurred on the date on which the recognised energy saving activity is first commenced. Accordingly, energy savings certificates may be created in respect of the energy savings arising from the activity immediately after the activity is first commenced.
Note : Subclause (5) makes it clear that the regulations or scheme rules may allow certificates to be created in respect of an activity that has ongoing energy saving effects as soon as the activity is commenced. It will not be necessary to wait until all the energy savings arising from the activity actually occur before creating a certificate in respect of the activity. Such provisions may apply, for example, if the regulations or scheme rules allow for the creation of certificates in respect of the installation of energy efficient lighting, which has ongoing energy savings.

35 No double counting of energy savings

An energy savings certificate cannot be created in respect of energy savings arising from a recognised energy saving activity if an abatement certificate under Part 8A has already been created in respect of those energy savings.

36 Improper creation of energy savings certificates

(1) A person must not create or purport to create an energy savings certificate in contravention of this Act, the regulations or the scheme rules (including any conditions of accreditation imposed by or under this Act).
: Maximum penalty--2,000 penalty units.
(2) For avoidance of doubt, a person may be found guilty of an offence against this clause whether or not the certificate concerned is registered in the register of energy savings certificates kept under this Part.

Division 8 - Accreditation of certificate providers

37 Certificates may be created by accredited certificate providers only

(1) Energy savings certificates may be created by accredited certificate providers only.
(2) A person who is an accredited certificate provider may create energy savings certificates in accordance with this Part, the regulations, the scheme rules and the conditions (if any) of the person's accreditation as a certificate provider.
(3) A person who is an accredited certificate provider may create energy savings certificates only in relation to those activities in relation to which the person has been accredited as a certificate provider.

38 Eligibility for accreditation

(1) The regulations and scheme rules may make provision for or with respect to the eligibility of a person for accreditation as a certificate provider.
(2) Without limiting the above, a person who is engaged in an industry, or carries out an activity, that benefits from a full exemption from the scheme, or is a related body corporate of such a person, is not eligible for accreditation as a certificate provider in respect of an activity that reduces the consumption of a recognised form of energy used in that industry or activity.
(3) For the purposes of this clause, an industry or activity benefits from a full exemption from the scheme if the electricity load used in that industry or activity is fully exempt electricity load.

39 Application for accreditation

(1) Any person who is eligible for accreditation as a certificate provider in relation to an activity may apply to the Scheme Administrator for accreditation.
(2) The Scheme Administrator is to determine an application for accreditation as a certificate provider--
(a) by accrediting the applicant as a certificate provider in relation to specified activities, or
(b) by refusing the application.
(3) The Scheme Administrator may refuse an application for accreditation as a certificate provider on such grounds as may be specified in the regulations.
(4) The regulations may make provision for or with respect to applications for accreditation, including by requiring an application fee to be paid to the Scheme Administrator.
(5) The Scheme Administrator may charge a fee (in addition to any application fee) in respect of the investigation and determination of an application for accreditation. The fee is to be determined by the Scheme Administrator on a cost recovery basis.

40 Duration of accreditation

(1) Accreditation of a person as a certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2) The Scheme Administrator may suspend or cancel the accreditation of a person as a certificate provider on such grounds as may be specified in the regulations.
(3) The suspension or cancellation of the accreditation of a person as a certificate provider is subject to such conditions as the Scheme Administrator imposes. Any such conditions may include (but are not limited to) any condition to which the accreditation was subject immediately before it was suspended or cancelled.
(4) The regulations may provide for the variation or revocation of any conditions that are imposed by the Scheme Administrator on the suspension or cancellation of accreditation as a certificate provider.

41 Conditions of accreditation

(1) Accreditation as a certificate provider is subject to the following conditions--
(a) such conditions as may be imposed from time to time by the regulations,
(b) such conditions as may be imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2) Without limiting the above, the following are examples of the types of conditions that may be imposed on the accreditation of a person as a certificate provider--
(a) a condition that requires the person not to create an energy savings certificate in respect of the energy savings arising from an activity if an energy savings certificate has already been created in respect of that energy saving or if that energy saving has already been used for the purposes of compliance with a scheme or arrangement with similar objectives to the scheme established by this Part,
(b) a condition that requires the person not to use the energy savings arising from a recognised energy saving activity for the purposes of compliance with a scheme or arrangement with similar objectives to the scheme established by this Part, if an energy savings certificate has already been created in respect of those energy savings,
(c) a condition that requires the person to provide financial assurances to secure or guarantee the person's compliance with this Part,
(d) a condition that requires the person to take out and maintain a policy of insurance in connection with the person's functions as an accredited certificate provider,
(e) a condition that requires the person to provide information, assistance and access to the Scheme Administrator (or persons appointed by the Scheme Administrator) for the purposes of monitoring and auditing compliance by the person with this Part.
(3) A person must not contravene any of the conditions of the person's accreditation as a certificate provider.
: Maximum penalty--2,000 penalty units.
(4) Subclause (3) extends to any conditions to which the suspension or cancellation of the accreditation of a person is subject under this Part.

42 Amendment of accreditation

(1) An accredited certificate provider may apply to the Scheme Administrator to amend the provider's accreditation by--
(a) varying the activities for which the provider is accredited, or
(b) varying or revoking a condition of the accreditation imposed by the Scheme Administrator.
(2) Subclause (1)(b) does not apply to a condition imposed by this Act or the regulations.
(3) The Scheme Administrator must determine an application to amend a provider's accreditation by--
(a) granting the application, or
(b) refusing the application.
(4) The regulations may make provision for the amendment of a provider's accreditation, including by requiring an application fee to be paid to the Scheme Administrator for an application to amend an accreditation.
(5) The Scheme Administrator may refuse an application to amend a provider's accreditation on grounds specified in the regulations.
(6) In addition to an application fee referred to in subclause (4), the Scheme Administrator may recover from an accredited certificate provider the costs reasonably incurred by the Administrator in investigating and determining an application to amend the provider's accreditation.

43 Transfer of accreditation

(1) Accreditation as a certificate provider is not transferable, except as otherwise provided by this clause.
(2) A person who is accredited as a certificate provider may, with the approval of the Scheme Administrator, transfer that accreditation to a related body corporate of the person.
(3) The Scheme Administrator may approve the transfer of accreditation only if satisfied that the person to whom the accreditation is proposed to be transferred is or will be eligible for accreditation and will fulfil the obligations that the accredited certificate provider is required to fulfil in respect of the recognised energy saving activity or activities for which accreditation is to be transferred.
(4) The regulations may make further provision with respect to the transfer of accreditation, including by requiring a fee to be paid to the Scheme Administrator in connection with an application for approval of a transfer of accreditation.

44 Records to be kept by accredited certificate providers

The regulations may make provision for or with respect to the records to be kept by accredited certificate providers and the information required to be provided to the Scheme Administrator in connection with the creation of energy savings certificates.

45 Scheme Administrator may require surrender of certificates

(1) The Scheme Administrator may, by order in writing to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, a number of energy savings certificates specified in the order.
(2) An order may be made against a person under this clause only if the Scheme Administrator is satisfied, on the balance of probabilities, that--
(a) the person is guilty of an offence involving the improper creation of energy savings certificates (that is, an offence under clause 36), or
(b) the person is guilty of an offence of contravening a condition of the person's accreditation as a certificate provider (that is, an offence under clause 41).
(3) In the case of an order made against a person on grounds involving the improper creation of energy savings certificates, the Scheme Administrator is to require the surrender of a number of certificates that is no more than the number of energy savings certificates that, in the opinion of the Scheme Administrator, were improperly created by the person and registered under this Part.
(4) In any other case, the Scheme Administrator is to determine the number of energy savings certificates to be surrendered in accordance with the regulations.
(5) A person must not fail to comply with an order under this clause.
: Maximum penalty--1,000 penalty units, and an additional 1 penalty unit for each energy savings certificate the person fails to surrender in accordance with the order.
(6) The value of any energy savings certificates surrendered for the purposes of compliance with an order under this clause cannot be counted towards meeting a scheme participant's individual energy savings target or remedying a carried forward shortfall.
(7) If a person fails to comply with an order under this clause, the Scheme Administrator may cancel any energy savings certificates in respect of which the person is registered under this Part as the owner.
(8) For avoidance of doubt, it is not an excuse for a failure to comply with an order under this clause that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of energy savings certificates to comply with the order.
Note : If the person who is the subject of the order does not hold a sufficient number of certificates to comply with the order, the person may obtain the required number by purchasing them.
(9) The regulations may make further provision for or with respect to orders under this clause.

Division 9 - Registration, form and duration of energy savings certificates

46 Creation of certificate must be registered

(1) An energy savings certificate has no force or effect until the creation of the certificate is registered by the Scheme Administrator in the register of energy savings certificates kept under this Part.
(2) An application for registration of the creation of an energy savings certificate may be made to the Scheme Administrator by an accredited certificate provider.
(3) The Scheme Administrator is to determine an application for registration of the creation of an energy savings certificate by--
(a) granting the application and registering the creation of the energy savings certificate in the register of energy savings certificates kept under this Part, or
(b) refusing the application.
(4) The Scheme Administrator registers the creation of an energy savings certificate by creating an entry for the certificate in the register of energy savings certificates and recording the name of the person who created the certificate as the owner of the certificate.
(5) The Scheme Administrator may refuse an application for registration of the creation of an energy savings certificate on such grounds as may be specified in the regulations.
(6) The regulations may make provision for or with respect to applications for registration of the creation of an energy savings certificate, including by requiring an application fee (adjusted for movements in the consumer price index for each year in accordance with the regulations) to be paid to the Scheme Administrator.
(7) The Scheme Administrator is to cause notice of any adjusted application fee to be published on its website before the beginning of the year to which the application fee applies.

47 Form of certificate

The regulations may make provision for or with respect to the form in which energy savings certificates are to be created.

48 Duration of certificate

(1) An energy savings certificate, when registered by the Scheme Administrator, remains in force until it is cancelled by the Scheme Administrator.
(2) An energy savings certificate may be cancelled by the Scheme Administrator--
(a) if the person registered as the owner of the energy savings certificate is a scheme participant who elects to surrender the certificate for the purpose of meeting its individual energy savings target or remedying a carried forward shortfall, and the Scheme Regulator accepts the surrender of the certificate, or
(b) if the person registered as the owner of the energy savings certificate, by notice in writing, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate, or
(c) in any other circumstances authorised by this Part.
(3) The Scheme Administrator must cancel any energy savings certificate that is surrendered by the owner of the certificate if the owner is surrendering the certificate for the purposes of compliance with an order made under this Part by the Scheme Administrator requiring the person to surrender energy savings certificates.
(4) The Scheme Administrator cancels an energy savings certificate by altering the entry relating to the certificate in the register of energy savings certificates kept under this Part to show that the certificate is cancelled.

Division 10 - Transfers and other dealings in certificates

49 Certificates are transferable

An energy savings certificate is transferable in accordance with this Division.

50 Application for registration of transfer

(1) The transfer of an energy savings certificate does not have effect until the transfer is registered by the Scheme Administrator under this Part.
(2) An application for registration of a transfer of an energy savings certificate is to be made to the Scheme Administrator by the parties to the transfer.
(3) The Scheme Administrator must--
(a) grant the application by registering the transfer of the energy savings certificate in the register of energy savings certificates kept under this Part, or
(b) refuse the application.
(4) The Scheme Administrator registers the transfer of an energy savings certificate by altering the entry relating to that certificate in the register of energy savings certificates so as to record the new owner of the certificate.
(5) The Scheme Administrator may refuse an application for registration of a transfer of an energy savings certificate on such grounds as may be specified in the regulations.
(6) The regulations may make provision for or with respect to applications for the registration of transfers of energy savings certificates, including by requiring an application fee to be paid to the Scheme Administrator.

51 Other dealings in certificates

The regulations may make provision for or with respect to the registration of any mortgage, assignment, transmission or other dealing in an energy savings certificate.

52 Holder of certificate may deal with certificate

(1) The person registered as the owner of an energy savings certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for any consideration for any such dealing.
(2) This clause is subject to any rights appearing in the register of energy savings certificates to belong to another person, being rights that are registered in accordance with any regulations made under this Part.
(3) This clause only protects a person who deals with the person registered as the owner of the energy savings certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(4) Despite subclause (3), a person who purchases an energy savings certificate in good faith for value does not lose the protection provided by this clause because the person has notice that a person has been found guilty of an offence against this Part in respect of the creation of an energy savings certificate.
Note : This Part makes it an offence to improperly create an energy savings certificate. The Scheme Administrator may require a person who has been convicted of such an offence to "make good" the improper creation of the certificates by surrendering to the Scheme Administrator an equivalent number of certificates to those improperly created. It is not necessary for those certificates to be the actual certificates improperly created (as those certificates may already have been sold).

53 Scheme Administrator not concerned as to legal effect of transaction

The Scheme Administrator is not concerned with the effect in law of any transaction registered under this Part or the regulations and the registration of the transaction does not give to the transaction any effect that it would not have if this Division had not been enacted.

Division 11 - Administration of scheme

54 Scheme Regulator

(1) The Minister may, by order in writing, appoint a person or body as the Scheme Regulator.
(2) The functions of the Scheme Regulator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Regulator or, in the absence of such an appointment, the Tribunal.
(3) The regulations may make provision for or with respect to the appointment of a Scheme Regulator by the Minister.

55 Functions of Scheme Regulator

(1) The Scheme Regulator has the following functions--
(a) to assess and determine, in accordance with this Part, the regulations and the scheme rules, whether scheme participants have complied with individual energy savings targets,
(b) if appropriate, to assess and determine, in accordance with this Part, the regulations and the scheme rules, any energy savings shortfall penalty payable by a scheme participant,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d) to monitor, and report to the Minister on, the extent to which scheme participants comply, or fail to comply, with obligations imposed by or under this Part,
(d1) to provide advice to the Minister on request about the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part,
(e) such other functions as are conferred or imposed on it by or under this Act.
(2) If the Scheme Regulator is appointed by the Minister, the Scheme Regulator also has such other functions as are conferred or imposed on it by the Minister under the terms of its appointment as Scheme Regulator.
(3) For the purpose of enabling the Scheme Regulator to exercise its functions, the Minister must furnish the Scheme Regulator with such information in the possession of the Minister as the Scheme Regulator may request in relation to the compliance by scheme participants with this Part.
(4) The Scheme Regulator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Regulator, section 10 of the Independent Pricing and Regulatory Tribunal Act 1992 does not apply to its functions as Scheme Regulator.

56 Scheme Administrator

(1) The Minister may, by order in writing, appoint a person or body as the Scheme Administrator.
(2) The functions of the Scheme Administrator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Administrator or, in the absence of such an appointment, the Tribunal.
(3) In determining whether to appoint a person or body as Scheme Administrator, the Minister must consider the following matters--
(a) the costs of any such appointment,
(b) the efficiency of administrative arrangements relating to the energy savings scheme,
(c) ability to meet objectives of the energy savings scheme,
(d) proposed governance arrangements,
(e) arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator's functions.
(4) The regulations may make provision for or with respect to the appointment of a Scheme Administrator by the Minister.
(5) The Minister may limit the appointment of a person or body as Scheme Administrator to particular specified functions of the Scheme Administrator. In such a case, a reference in this Act to the Scheme Administrator, in relation to any functions of the Scheme Administrator, is a reference to the person or body appointed to exercise those functions (or, in the absence of such an appointment, the Tribunal).

57 Functions of Scheme Administrator

(1) The Scheme Administrator has the following functions--
(a) the functions conferred by this Part relating to the energy savings scheme,
(b) to monitor, and to report to the Minister on, the extent to which accredited certificate providers comply with this Part, the regulations, the scheme rules and any conditions of accreditation,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(c1) to provide advice to the Minister on request about the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part,
(d) such other functions as are conferred or imposed on it by or under this Act or any other Act or law.
(2) If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has such other functions as are conferred or imposed on it by the Minister under the terms of its appointment as Scheme Administrator.
(3) For the purpose of enabling the Scheme Administrator to exercise its functions, the Minister must furnish the Scheme Administrator with such information in the possession of the Minister as the Scheme Administrator may request in relation to the compliance by accredited certificate providers with this Part.
(4) The Scheme Administrator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Administrator, section 10 of the Independent Pricing and Regulatory Tribunal Act 1992 does not apply to its functions as Scheme Administrator.

58 Conduct of audits

(1) The regulations may make provision for or with respect to the conduct of audits by the Scheme Regulator, the Scheme Administrator or other persons for the purposes of this Part.
(2) Without limiting subclause (1), the regulations may provide for the following matters--
(a) matters that may be the subject of audits,
(b) persons who may conduct audits,
(c) matters relating to decisions about who will conduct audits, including, for example, providing for the Scheme Regulator or Scheme Administrator to make decisions about whether to conduct audits personally or require audits to be conducted by an auditor engaged by the Scheme Regulator, Scheme Administrator or scheme participant,
(d) functions that may be exercised by persons conducting audits,
(e) fees payable for audits, including--
(i) who determines whether fees are payable for particular types of audits or audits in particular circumstances, and
(ii) how and by whom the amount of the fees payable for audits are determined, and
(iii) the maximum fees payable for audits generally or particular types of audits, and
(iv) to whom the fees for audits are payable,
(f) offences relating to obstructing or hindering, or refusing or failing to comply with requirements made by, persons who conduct audits.
(3) If the regulations provide that a fee, as determined by or under the regulations, is payable for the carrying out of particular types of audit or audits in particular circumstances, each scheme participant and accredited certificate provider is liable to pay the fee for the carrying out of an audit of that type or in those circumstances in relation to the participant or provider.
(4) Without limitation, a licence or accreditation may include terms and conditions relating to the determination of the cost of carrying out those functions.

59 Provision of information, documents and evidence

(1) For the purposes of exercising its functions under this Part, the Scheme Regulator or Scheme Administrator may, by notice in writing served on any relevant person, require the person to do any one or more of the following--
(a) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, any document or type of document specified in the notice.
(2) If the Tribunal is the Scheme Regulator or Scheme Administrator, the Tribunal may, in such a notice, in addition to or instead of requiring any of the above, require a relevant person to attend a meeting of the Tribunal to give evidence.
(3) A person must not, without reasonable excuse--
(a) refuse or fail to comply with a notice served under this clause, or
(b) refuse or fail to answer a question that the person is required to answer at any meeting of the Tribunal that the person is required to attend under this clause.
: Maximum penalty--
(a) in the case of a corporation--250 penalty units, or
(b) in the case of an individual--100 penalty units or 6 months imprisonment, or both.
(4) An individual has a reasonable excuse for the purposes of subclause (3) if complying with the notice or answering the question might tend to incriminate the individual or make the individual liable to any forfeiture or penalty.
(5) If documents are given to the Scheme Regulator or Scheme Administrator under this clause, the Scheme Regulator or Scheme Administrator--
(a) may take possession of, and make copies of or take extracts from, the documents, and
(b) may keep possession of the documents for the period necessary for those purposes, and
(c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Scheme Regulator or Scheme Administrator.
(6) This clause does not affect the law relating to client legal privilege (or other legal professional privilege).
(7) In this clause, a
"relevant person" means--
(a) an officer of a scheme participant or former scheme participant, or
(b) an officer of an accredited certificate provider or former accredited certificate provider, or
(c) any other person whom the Scheme Regulator or Scheme Administrator (as the case requires) has reason to believe is able to provide information relevant to its functions as Scheme Regulator or Scheme Administrator.

60 Obstruction of Scheme Regulator or Scheme Administrator

A person must not hinder, obstruct or interfere with the Scheme Regulator, the Scheme Administrator or any member or officer of the Scheme Regulator or the Scheme Administrator in the exercise of functions under this Part.

: Maximum penalty--
(a) in the case of a corporation--250 penalty units, or
(b) in the case of an individual--100 penalty units or 6 months imprisonment, or both.

61 False or misleading information

A person must not, for the purposes of this Part--

(a) give to the Scheme Regulator or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular (unless the person informs the Scheme Regulator or Scheme Administrator of that fact), or
(b) at a meeting of the Tribunal acting as Scheme Regulator or Scheme Administrator, give evidence that the person knows to be false or misleading in a material particular.
: Maximum penalty--100 penalty units or 6 months imprisonment, or both.

62 Confidential information

(1) If a person provides information to the Scheme Regulator or Scheme Administrator in connection with the functions of the Scheme Regulator or Scheme Administrator under this Part on the understanding that the information is confidential and will not be divulged, the Scheme Regulator or Scheme Administrator is required to ensure that the information is not divulged by it to any person, except--
(a) with the consent of the person who provided the information, or
(b) in the case of information provided to the Tribunal while acting as Scheme Regulator or Scheme Administrator, to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c) to a member or officer of the Scheme Regulator or Scheme Administrator, as the case requires, or
(d) as required by any other law.
(2) If the Scheme Regulator or Scheme Administrator is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Scheme Regulator or Scheme Administrator in connection with its functions under this Part, it may give directions prohibiting or restricting the divulging of the information.
(3) A person must not contravene a direction given under subclause (2).
: Maximum penalty--100 penalty units or imprisonment for 6 months, or both.
(4) A reference in this clause to information includes information given at a meeting of the Scheme Regulator or Scheme Administrator and information contained in any documents given to the Scheme Regulator or Scheme Administrator.

62A Identity of person providing information to be confidential

(1) This clause applies if a person (an
"information provider" ) provides information to the Scheme Regulator or Scheme Administrator about another person's non-compliance with an obligation under this Part.
(2) The Scheme Regulator or Scheme Administrator must ensure that the identity of an information provider, and anything that may reasonably identify the information provider, is not disclosed to any person except--
(a) with the consent of the information provider, or
(b) if ordered by a court or tribunal, or
(c) if required by another law.
(3) If the identity of an information provider cannot be disclosed under subclause (2), the information provided by the information provider cannot be used as evidence in proceedings against another person for an offence under this Act.
(4) Subclause (3) does not prevent the Scheme Regulator or Scheme Administrator using information, including in proceedings for an offence under this Act, obtained as a result of the information received from an information provider.

63 Cabinet documents and proceedings

(1) This Part does not enable the Scheme Regulator or Scheme Administrator--
(a) to require any person to give any statement of information or answer any question that relates to confidential proceedings of Cabinet, or
(b) to require any person to produce Cabinet information, or
(c) to inspect Cabinet information.
(2) For the purposes of this clause, a certificate of the Secretary of the Department of Premier and Cabinet, or the General Counsel of that Department, that any information or question relates to confidential proceedings of Cabinet or that information is Cabinet information is conclusive of the matter certified.
(3) In this clause--

"Cabinet" includes a committee of Cabinet or a subcommittee of such a committee.

"Cabinet information" means information that is Cabinet information under the Government Information (Public Access) Act 2009 .

Division 11A - Civil penalties

63A Definitions

In this Division--

"civil penalty order" --see clause 63B.

"civil penalty provision" means a provision prescribed by the regulations as a civil penalty provision.

"scheme entity" means--

(a) the Scheme Administrator, or
(b) the Scheme Regulator.

63B Monetary penalty

(1) If a person has contravened a civil penalty provision, a scheme entity may, by written order (a
"civil penalty order" ), require the person to pay a monetary penalty of no more than the penalty notice amount for the provision.
(2) If a corporation is liable to a monetary penalty under this clause, each of the following persons may be ordered to pay a monetary penalty if the person knowingly authorised or permitted the contravention--
(a) a director of the corporation,
(b) a person concerned in the management of the corporation.

63C Process

(1) A scheme entity may not issue a civil penalty order to a person unless--
(a) the scheme entity has given the person notice of the proposed order and the reasons for it, and
(b) the person has been given a reasonable opportunity to make a submission about the proposed order, and
(c) the scheme entity has considered a submission made by the person, and
(d) the scheme entity is satisfied on the balance of probabilities that the person--
(i) contravened the relevant civil penalty provision, or
(ii) knowingly authorised or permitted the contravention.
(2) A scheme entity must provide written reasons for a decision to issue a civil penalty order to the person.
(3) A civil penalty order must be issued within 3 years after the date on which evidence of the alleged offence first came to the attention of the scheme entity.
(4) A civil penalty order must include the date, not less than 28 days after the date the order is issued, by which the monetary penalty imposed by the order must be paid.

63D Double jeopardy

(1) A scheme entity may not issue a civil penalty order to a person if--
(a) another civil penalty order has been issued to a person for the contravention, or
(b) the person has been found guilty, whether a conviction is recorded or not, of an offence under this Act or the regulations for the contravention.
(2) If criminal proceedings are taken against a person for a contravention after the person pays the monetary penalty imposed by a civil penalty order, a court that finds the person guilty of an offence must discount any penalty imposed by the court by the civil penalty amount paid by the person.

63E Payment not an admission of guilt or liability

The payment of a monetary penalty under this Division cannot be taken to be an admission of--

(a) a breach of a civil penalty provision, or
(b) liability for civil or criminal proceedings arising from substantially the same conduct.

63F Withdrawal of order

(1) A scheme entity may withdraw a civil penalty order by written notice to the person the subject of the order.
(2) A civil penalty order may be withdrawn under this clause at any time before it is complied with.
(3) A civil penalty order issued to a person is automatically withdrawn on the commencement against the person of criminal proceedings for the contravention.
(4) A civil penalty order withdrawn under this clause may, subject to clause 63D, be reissued.

63G Internal review of order

(1) A person who is the subject of a civil penalty order may apply to the scheme entity that issued the order for a review of--
(a) the decision to issue the order, or
(b) the monetary penalty imposed by the order.
(2) An application must be made within 28 days of the issuing of the order.
(3) A person issued a civil penalty order is not required to pay the monetary penalty imposed by the order while an application is being considered.
(4) The scheme entity's decision on the application must be given to the applicant--
(a) by written notice that includes the reasons for the decision, and
(b) within 90 days of the making of the application.
(5) If the written notice of the scheme entity's decision is not given to the applicant within 90 days of the making of the application, the application is taken to have been refused.
(6) If the scheme entity affirms the decision to issue the civil penalty order, including with a different monetary penalty, the written notice of the decision must include the date, not less than 28 days after the date of the notice, by which the monetary penalty must be paid.

63H External review of order

(1) A person who is not satisfied with the result of an internal review under clause 63G may make an application to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 for administrative review of the internal review decision.
(2) The Administrative Decisions Review Act 1997 , section 53 does not apply to a decision under clause 63G that may be reviewed by the Tribunal.

63I Recovery of monetary penalty

The monetary penalty imposed by a civil penalty order may be recovered by a scheme entity in a court of competent jurisdiction as a debt owing to the Crown.

Division 12 - Registers

64 Establishment and keeping of registers

(1) The Scheme Administrator is required to establish and keep the following registers for the purposes of this Part--
(a) a register of accredited certificate providers,
(b) a register of energy savings certificates,
(c) a register of persons who have applied for and been refused accreditation as accredited certificate providers.
(2) A register is to be kept in such form as the Scheme Administrator considers appropriate.
(3) A register may be kept wholly or partly by electronic means.

65 Register of accredited certificate providers

(1) The register of accredited certificate providers is to contain the following information in relation to each accredited certificate provider--
(a) the name of the accredited certificate provider,
(b) any other information required to be included in the register by this Part or the regulations.
(2) The register of accredited certificate providers may also contain such information as the regulations may prescribe in relation to a person whose accreditation as a certificate provider is suspended or cancelled.
(3) The register of accredited certificate providers must be published on the Scheme Administrator's website.
(4) However, the information required to be included in the register by the regulations is required to be made available to the public under this clause only if the regulations require it to be made so available.

65A Register of persons refused accreditation as accredited certificate providers

The register of persons who have applied for and been refused accreditation as an accredited certificate provider must contain the following information about each person--

(a) the name of the person and, if the person is a corporation, the corporation's ACN,
(b) the reasons the person's application was refused,
(c) other information required to be included in the register by this Part or the regulations.

66 Register of energy savings certificates

(1) The register of energy savings certificates is to contain the following information in relation to each energy savings certificate that is created under this Part--
(a) the name of the person who created the energy savings certificate,
(b) the name of the current registered owner, and any previous registered owners, of the energy savings certificate,
(b1) if the Minister has approved a corresponding scheme for a State or Territory for the purposes of clause 30 and the energy saving activity to which the certificate relates occurred in such a State or Territory--the State or Territory in which the activity occurred,
(c) whether the certificate is in force, or has been cancelled,
(d) any other information required to be included in the register by this Part or the regulations.
(2) The register of energy savings certificates must be published on the Scheme Administrator's website.
(3) However, the information required to be included in the register by the regulations is required to be made available to the public under this clause only if the regulations require it to be made so available.

67 Information from registers

The Scheme Administrator may compile the following information from a register and make that information available for public inspection (free of charge) in such form as the Scheme Administrator thinks fit--

(a) information concerning the creation or cancellation of energy savings certificates under this Part,
(b) information concerning current and previous registered owners of energy savings certificates,
(c) information concerning the transfer of energy savings certificates,
(d) other information of a kind prescribed by the regulations.

68 Evidentiary provisions

(1) A register kept under this Division is evidence of any particulars registered in it.
(2) If a register is wholly or partly kept by electronic means, a document issued by the Scheme Administrator producing in writing particulars included in the register, or the part kept by electronic means, is admissible in legal proceedings as evidence of those particulars.

69 Correction of register

The Scheme Administrator may correct any error in, or omission from, a register.

69A Information sharing

(1) The Scheme Administrator may enter into an arrangement (an
"information sharing arrangement" ) with a relevant agency for the purposes of sharing or exchanging information about the following held by the Scheme Administrator or the agency--
(a) offences and alleged offences under this Part, including investigations,
(b) the administration of the energy savings scheme,
(c) other matters of a type prescribed by the regulations.
(2) Under an information sharing arrangement, the Scheme Administrator and the relevant agency are, despite any other Act or law of the State, authorised--
(a) to request and receive information held by the other party to the arrangement, and
(b) to disclose information to the other party.
(3) In this clause--

"relevant agency" means the following--
(a) a government sector agency within the meaning of the Government Sector Employment Act 2013 ,
(b) another person or body prescribed by the regulations.

Division 13 - Scheme rules

70 Scheme rules

(1) The Minister may approve rules for or with respect to the following matters--
(a) any matter for which a scheme rule may be made under this Part,
(b) any other matter prescribed by the regulations.
Note : Under Division 7, the scheme rules may make provision for--
(a) the activities in respect of which energy savings certificates may be created, and
(b) the methodology for calculating the number of megawatt hours of energy savings arising from a recognised energy saving activity and for applying the certificate conversion factors.
(2) A rule may make provision for a matter by applying, adopting or incorporating the provisions of an Act or statutory rule or another publication as follows--
(a) with or without modification,
(b) as in force on a particular day or from time to time.
(3) A rule may--
(a) apply generally or be limited in its application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body.
(4) The Minister may from time to time approve amendments to the rules or a revocation of rules.
(5) If a rule, or a rule amending or revoking a rule, is approved by the Minister--
(a) written notice of the approval of the rule must be published in the Gazette, and
(b) the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and
(c) the Minister must make available a copy of the rule to each scheme participant and make copies available to the public.
(6) A rule must be consistent with this Act and the regulations.
Editorial note : For approved rules published in the Gazette under this clause, see Gazettes No 99 of 3.7.2009, p 3897; No 140 of 24.12.2010, p 6178; No 49 of 30.5.2014, pp 1851, 1854; No 50 of 19.6.2015, p 1703; No 66 of 7.8.2015, p 2376 (and see errata in Gazettes No 84 of 29.9.2015, p 3042 and No 88 of 9.10.2015, p 3171); No 26 of 8.4.2016, p 603 (and see erratum in Gazette No 35 of 13.5.2016, p 1048); No 80 of 30.9.2016, p 2700; No 42 of 31.3.2017, p 831; No 45 of 20.4.2018, p 2429 and No 7 of 10.1.2020, n2020-52. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

71 Obligations under scheme rules

A person who is a scheme participant or an accredited certificate provider must not contravene a provision of a scheme rule.

: Maximum penalty--
(a) in the case of a corporation--250 penalty units, or
(b) in the case of an individual--100 penalty units.

Division 13A - Compliance officers and penalty notices

71A Appointment of compliance officers

(1) The Scheme Administrator may, in accordance with any guidelines in force under this clause, appoint compliance officers for the purposes of this Part.
(2) The Minister may, by written order, issue guidelines for the appointment of compliance officers.
(3) An order under this clause must be published on the Scheme Administrator's website and takes effect on--
(a) the day on which it is published, or
(b) a later day specified in the order.

71B Powers of compliance officers

(1) The powers of a compliance officer may be exercised for the purposes of investigating an accredited certificate provider's compliance with the following--
(a) this Part,
(b) the regulations,
(c) the scheme rules,
(d) a condition of the provider's accreditation.
(2) A compliance officer may at a reasonable time enter--
(a) premises that are used in connection with an energy savings activity for which a certificate has been created, and
(b) the principal place of business of an accredited certificate provider.
(3) A compliance officer may not enter a part of premises used only for residential purposes without the permission of the occupier of the premises.
(4) A compliance officer may, at premises lawfully entered, do anything that, in the opinion of the compliance officer, is necessary to be done for the purposes of the investigation, including the following--
(a) examine and test plant or equipment on the premises,
(b) take photographs, films, audio, video and other recordings,
(c) take copies of records or documents on the premises,
(d) seize anything the compliance officer believes on reasonable grounds is connected with an offence under this Part.
(5) A person must not hinder or obstruct a compliance officer in the exercise of a power.
: Maximum penalty--
(a) in the case of a corporation--200 penalty units, or
(b) for an individual--50 penalty units.
(6) A person is not guilty of an offence under subclause (5) unless it is established that the compliance officer identified themselves as a compliance officer.

71C Penalty notices

(1) A compliance officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence in this Part, or a regulation under this Part, that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this clause.
Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this clause is the amount prescribed for the alleged offence by the regulations, which must not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(5) This clause does not limit the operation of another provision of, or made under, this or another Act relating to proceedings that may be taken for offences.

Division 14 - Miscellaneous

72 Application of Part to persons who cease to be scheme participants

(1) If a person ceases to be a scheme participant, this Part and the regulations under this Part continue to apply to the person in respect of the period during which the person was a scheme participant and, for that purpose, a reference to a scheme participant includes a reference to a former scheme participant.
(2) In particular, the former scheme participant continues to be required to lodge an energy savings statement in respect of the year during which the person ceased to be a scheme participant, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in respect of the person as if the person were a scheme participant.
(3) The Minister may, by notice in writing to the former scheme participant, bring forward the date on which the person would otherwise be required to lodge an energy savings statement with the Scheme Regulator in respect of the year during which the person ceased to be a scheme participant.
(4) The notice may specify a date (a
"submission date" ) on which the former scheme participant is required to lodge the energy savings statement with the Scheme Regulator, being a date that is earlier than the date on which the person would otherwise be required to lodge the statement.
(5) The submission date must not be earlier than 28 days after the person ceased to be a scheme participant.
(6) If the Minister brings forward the date for submission of an energy savings statement under this clause, the provisions of this Act regarding the lodgment of an energy savings statement and the payment of an energy savings shortfall penalty apply as if a reference to the date of 1 March were a reference to the submission date.

73 Administrative reviews by Civil and Administrative Tribunal

(1) A scheme participant or former scheme participant who is aggrieved by any of the following decisions of the Scheme Regulator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a determination as to the individual energy savings target for the scheme participant or former scheme participant for a year,
(b) a decision to refuse to accept the surrender of an energy savings certificate for the purposes of meeting the scheme participant's or former scheme participant's individual energy savings target or remedying a carried forward shortfall,
(c) an assessment of the amount of any energy savings shortfall penalty payable by the scheme participant or former scheme participant for a year,
(d) any other decision of the Scheme Regulator of a kind prescribed by the regulations.
(2) A person who is or was accredited, or who has applied to be accredited, under this Part as a certificate provider and who is aggrieved by any of the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a decision to refuse accreditation of the person as a certificate provider,
(b) a decision to cancel or suspend the accreditation of the person as a certificate provider,
(c) a decision to refuse registration of the creation of an energy savings certificate,
(d) any other decision of the Scheme Administrator of a kind prescribed by the regulations.
(3) A person who has applied for the registration of a transfer of an energy savings certificate under this Part and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4) A person who is the subject of an order by the Scheme Administrator under this Part requiring the person to surrender energy savings certificates to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(5) A person who, under a scheme rule, is approved by the Scheme Administrator to undertake a function and who is aggrieved by a decision of the Scheme Administrator to revoke the person's approval may apply to the Civil and Administrative Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 .

74 Certificate evidence

A certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate--

(a) a person was or was not a scheme participant, or
(b) the individual energy savings target for a scheme participant was the amount specified in the certificate, or
(c) the energy savings shortfall for a scheme participant for a year, or the carried forward shortfall for a year, was the amount specified in the certificate, or
(d) the energy savings shortfall penalty payable by a scheme participant was the amount specified in the certificate,
is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated in the certificate.

74A Ancillary offences

(1) This clause applies to a person who, for an offence under this Part or the regulations under this Part--
(a) causes or permits another person to commit the offence, or
(b) aids, abets, counsels or procures another person to commit the offence, or
(c) conspires with another person to commit the offence.
(2) A person to whom this clause applies is guilty of the offence and is liable to the same penalty applicable to an offence against the other provision.

75 Personal liability

(1) A protected person is not personally subject to any liability for anything done--
(a) in good faith, and
(b) for the purpose of exercising functions under this Act or another Act.
(2) The liability instead attaches to the Crown.
(3) In this clause--

"done" includes omitted to be done.

"liability" means civil liability and includes action, claim or demand.

"protected person" means--
(a) the Scheme Regulator, or
(b) the Scheme Administrator, or
(c) a member or officer of, or a person acting under the direction of, the Scheme Regulator or Scheme Administrator, or
(d) a compliance officer.

76 Annual report by Scheme Regulator

(1) As soon as practicable after 1 March in each year, the Scheme Regulator must prepare a report on the extent to which scheme participants have complied, or failed to comply, with individual energy savings targets during the previous year.
(1A) The report must be forwarded to the Minister on or before--
(a) the date prescribed by the regulations, or
(b) if the regulations do not prescribe a date--31 August in the same year.
(2) Without limiting the above, the report is to contain the following--
(a) the name of each scheme participant and the performance of the participant in relation to the participant's individual energy savings target in the year to which the report relates,
(b) the total number of energy savings certificates surrendered in the year to which the report relates,
(c) the total number of energy savings certificates created in the year to which the report relates,
(c1) the total number of energy savings certificates created in previous years and not surrendered under this Part before the beginning of the year to which the report relates,
(c2) an assessment of the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part in the year to which the report relates,
(d) an estimate, prepared by the Scheme Administrator, of the actual savings in each recognised form of energy that have been realised by end users under the scheme in the year to which the report relates (having regard to the number of energy savings certificates that have been created),
(e) an estimate, prepared by the Scheme Administrator, of the actual savings in each recognised form of energy that will be realised by end users under the scheme in the next 10 years (having regard to the number of energy savings certificates that have been created).
(2A) For the purposes of subclause (2), any energy savings certificates created under an approved corresponding scheme that are not able to be surrendered by a scheme participant for the purpose of meeting its annual energy savings target or remedying a carried forward shortfall are to be disregarded.
(3) The report must also set out the functions delegated by the Scheme Regulator or Scheme Administrator and the person or body to whom they were delegated.
(4) The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(5) For the purposes of enabling the Scheme Regulator to compile a report under this clause, the Scheme Administrator must furnish the Scheme Regulator with--
(a) the estimates the Scheme Administrator is required to prepare for inclusion in the report, and
(b) such other information as the Scheme Regulator reasonably requires to complete the report.
(6) The first report under this clause is to be made in the year 2010.

77 Five-yearly reviews of scheme

(1) The Minister is to review the operation of the scheme to determine whether the policy objectives of the scheme remain valid and whether the terms of this Part remain appropriate for securing those objectives.
(2) The first review is to be undertaken as soon as possible after the end of the period of 5 years from 1 July 2009.
(3) After that, a review is to be undertaken at the end of each subsequent period of 5 years.
(4) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period to which the review relates.

77A Waiver or reduction of application fees

The Scheme Administrator may waive payment of, or reduce, an application fee required to be paid under this Part.

78 Waiver, suspension or reduction of obligations in emergencies

(1) The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a scheme participant to meet its individual energy savings target or remedy a carried forward shortfall, but only if it appears to the Minister that a scheme participant is or will be unable to meet the individual energy savings target or remedy the carried forward shortfall because of--
(a) a systems or other failure of the register of energy savings certificates kept under this Part, or
(b) any other emergency affecting the integrity of the register or the energy savings scheme.
(2) An order may--
(a) be made subject to conditions, and
(b) apply to all scheme participants or to a specified class of participants, and
(c) specify the effect of the waiver or suspension on any other rights conferred or obligations imposed under this Part.
(2A) The Minister may, by order published in the Gazette, reduce the individual energy savings target of a small retailer by a specified percentage for a specified year if it appears to the Minister that small retailers generally are, or will be, unable to meet the individual energy savings target because of an emergency affecting the State or part of the State.
(2B) If the reduction under subclause (2A) results in a fraction of a notional megawatt hour, the fractional amount is to be rounded up or down to the nearest whole notional megawatt hour (and, if the amount to be rounded is half a notional megawatt hour, is to be rounded up).
(2C) An order made under subclause (2A) may--
(a) be made subject to conditions, and
(b) apply to all small retailers or to a specified class of small retailers.
(3) An order takes effect on the day on which it is published in the Gazette or, if a later day is specified in the order, on that day.
(4) In this clause--

"small retailer" means a scheme participant who, in the year specified in an order made under subclause (2A)--
(a) supplies electricity to no more than 5,000 end users in this State, and
(b) makes liable acquisitions not exceeding 30,000 megawatt hours of electricity.

78A Exchange of information

(1) Despite another provision of this Act, the Scheme Administrator may keep the following information--
(a) information about offences or alleged offences under this Part,
(b) information collected in the administration of this Act.
(2) The Scheme Administrator may give the information kept under this clause to the following--
(a) a person or body undertaking functions, similar to those undertaken by the Scheme Administrator, in another State or Territory or for the Commonwealth,
(b) a government sector agency within the meaning of the Government Sector Employment Act 2013 .

79 Termination of scheme on establishment of national scheme

(1) The Governor may, by proclamation published on the NSW legislation website, terminate the operation of any or all of the provisions of this Part.
(2) A proclamation may be made only if the Minister has certified to the Governor that the Minister is satisfied that New South Wales is, or will be, a participant in a scheme that--
(a) has been or will be established either nationally or in this State and at least one or more other States or Territories, and
(b) is designed to achieve outcomes that include a reduction in the consumption of electricity and the encouragement of participation in activities that result in energy savings.
(3) The termination of the operation of the provisions concerned takes effect on the day (not being a day earlier than the day on which the proclamation is published on the NSW legislation website) specified in the proclamation.
(4) The day specified in the proclamation must not be a day that is earlier than the day on which New South Wales becomes, or will become, a participant in the scheme concerned.

80 Automatic termination of scheme at end of year 2050

(1) The scheme terminates at the end of the year 2050.
(2) This Part continues to have effect with respect to matters arising (including obligations incurred) before the termination of the scheme.
(3) In particular, persons who are scheme participants in the year 2050 continue to be required to lodge an energy savings statement in respect of that year in accordance with this Part, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator and Scheme Administrator continue to apply, even though the scheme is terminated.
(4) A reference in this Part to a scheme participant includes, after the scheme is terminated, a reference to a former scheme participant.

80A Termination of scheme--regulations

(1) On termination of the scheme under clause 79 or 80, regulations may be made about the effect of the termination on rights conferred or obligations imposed under this Part.
(2) Without limiting subclause (1), the regulations may--
(a) prohibit scheme participants from carrying forward an energy savings shortfall, or part of an energy savings shortfall, for a year to the following year, and
(b) specify other conditions that must be complied with following the termination.

Part 2 - Peak demand reduction scheme

Division 1 - Preliminary

81 Definitions

In this Part--

"accredited certificate provider" means a person accredited as a certificate provider under Division 7 and whose accreditation is in force.

"annual statement" --see clause 103(1).

"approved corresponding scheme" means a scheme approved by the Minister, for the purposes of clause 107, by order published in the Gazette.

"carried forward shortfall" --see clause 101(8).

"certificate" means a certificate created under clause 106.

"compliance officer" means a compliance officer appointed under clause 136B.

"compliance period" means the period commencing on 1 November and ending on 31 March the following year.

Example--: The 2022-2023 compliance period means the compliance period commencing on 1 November 2022 and ending on 31 March 2023.

"consumer price index" means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.

"direct supplier of electricity" means an electricity generator prescribed by the regulations, or other person prescribed by the regulations, who supplies electricity directly to a customer.

"end user" of electricity means a person who acquires, or proposes to acquire, electricity for consumption purposes.

"forecast peak demand" for a compliance period is the forecast maximum demand for megawatts of electricity used by NSW electricity customers during the compliance period, as determined by the Scheme Regulator under clause 86.

"green hydrogen" means hydrogen produced using renewable energy.

"individual certificate target" --see clause 92(1).

"individual liable demand" --see clause 89(1).

"peak demand reduction capacity" means the capacity to reduce demand for electricity during the peak demand reduction period.

"peak demand reduction period" --see clause 85(1).

"peak demand reduction scheme" means the peak demand reduction scheme established by this Part.

"peak demand reduction target" for a compliance period means the target prescribed by the regulations for the period under clause 84.

"register" means the register of accredited certificate providers or the register of certificates kept by the Scheme Administrator under Division 11.

"related body corporate" of a person has the same meaning as in the Corporations Act 2001 of the Commonwealth.

"Scheme Administrator" means the person or body required to exercise the functions of Scheme Administrator under this Part.

"scheme certificate target" --see clause 87(1).

"scheme liable demand" --see clause 91(1).

"scheme participant" means a person who is required to participate in the peak demand reduction scheme under clause 83(3).

"scheme penalty rate" --see clause 99(1).

"Scheme Regulator" means the person or body required to exercise the functions of Scheme Regulator under this Part.

"scheme rule" means a rule approved by the Minister under clause 137.

"shortfall" --see clause 97(4).

"shortfall penalty" --see clause 98(1).

82 Regulations

(1) A reference in this Part to regulations is a reference to regulations made under section 98EA.
Note--: Section 98EA provides that regulations may be made in relation to the peak demand reduction scheme for matters for which regulations may be made under Schedule 4A, Part 1 for the energy savings scheme. Necessary modifications for the peak demand reduction scheme may also be made.
(2) This Part does not limit the operation of section 98EA.

83 Establishment of peak demand reduction scheme

(1) The principal object of this Part is to create a financial incentive to reduce peak demand for electricity by encouraging activities that create peak demand reduction capacity.
(2) The other objects of this Part are as follows--
(a) to improve the reliability of electricity supply,
(b) to reduce the cost of electricity for customers,
(c) to improve the sustainability of electricity generation.
(3) The following persons are required to participate in the peak demand reduction scheme--
(a) a retailer,
(b) a direct supplier of electricity,
(c) a market customer within the meaning of the National Electricity Rules .
(4) A scheme participant is required to surrender certificates in relation to each compliance period in accordance with this Part.

84 Peak demand reduction targets

(1) The
"peak demand reduction target" for a compliance period is the target prescribed by the regulations--
(a) on the commencement of this clause, or
(b) as amended in accordance with this clause.
Example--: A peak demand reduction target of 1% for the 2023-2024 compliance period means a target of creating the capacity to reduce demand for electricity during the peak demand reduction period in the 2023-2024 compliance period by 1%.
(2) The peak demand reduction target for a compliance period is to be used as the basis for the calculation of the scheme certificate target for the compliance period.
(3) A regulation to amend a prescribed peak demand reduction target for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example--: An amendment to the peak demand reduction target for the 2023-2024 compliance period must be made on or before 31 October 2022.
(4) A regulation to amend a prescribed peak demand reduction target for a compliance period may be made only if the Minister is satisfied that the change to the peak demand reduction target is appropriate--
(a) for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b) for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c) because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d) because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020 , or
(e) because of significant changes to the scheme rules relating to the creation of certificates, or
(f) because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.

85 Peak demand reduction period

(1) The
"peak demand reduction period" for a compliance period is the period prescribed by the regulations--
(a) on the commencement of this clause, or
(b) as amended in accordance with this clause.
(2) A regulation to amend a prescribed peak demand reduction period for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example--: An amendment to the peak demand reduction period for the 2023-2024 compliance period must be made on or before 31 October 2022.
(3) A regulation to amend a prescribed peak demand reduction period for a compliance period may be made only if the Minister is satisfied that the change to the peak demand reduction period is appropriate--
(a) for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b) for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c) because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d) because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020 , or
(e) because of significant changes to the scheme rules relating to the creation of certificates, or
(f) because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.

Division 2 - Determination of scheme certificate targets and individual certificate targets

86 Scheme Regulator to determine forecast peak demand

The Scheme Regulator must, before the beginning of each compliance period, determine the forecast peak demand for the compliance period--

(a) based on a 10% probability of exceedance (POE) forecast specified in a statement of opportunities published by AEMO under the National Electricity Rules , and
(b) in accordance with the scheme rules.

87 Scheme Regulator to determine scheme certificate target

(1) The Scheme Regulator must, before the beginning of each compliance period, calculate the total number of certificates required to be surrendered for the compliance period by all scheme participants (the
"scheme certificate target" ) using the following formula--
graphic

"n" is the number of hours within the peak demand reduction period in one day.
Example--: Assuming the following apply for the 2024-2025 compliance period--
(a) the forecast peak demand is 14,000 megawatts,
(b) the regulations prescribe 0.03 as the peak demand reduction target,
(c) the regulations prescribe 6 hours as the peak demand reduction period.
The scheme certificate target is calculated by multiplying 14,000 by 0.03 by 10,000 by 6 to give the result of 25.2 million certificates.
(2) The number of certificates must be rounded up or down to the nearest whole number and an amount of 0.5 must be rounded up.
(3) The Scheme Regulator must, before the beginning of each compliance period, publish on its website the scheme certificate target for the compliance period.

88 Information about exemptions and liable acquisitions

(1) A scheme participant must, in the form approved by the Scheme Regulator, notify the Scheme Regulator of the following in relation to the previous compliance period--
(a) whether the scheme participant intends to rely on an exemption granted in relation to fully or partially exempt electricity load that applies to the scheme participant,
(b) whether the scheme participant has made a liable acquisition that is a purchase of electricity from a person other than AEMO.
(2) The scheme participant must give the notice to the Scheme Regulator by--
(a) 31 May, or
(b) a later day specified by the Scheme Regulator for the scheme participant.
: Maximum penalty (subclauses (1) and (2))--250 penalty units for a corporation or 100 penalty units for an individual.

89 Scheme participant to determine individual liable demand

(1) A scheme participant must, after the end of a compliance period, calculate the scheme participant's
"individual liable demand" for the compliance period using the following formula--
graphic

"LA" means the total of the scheme participant's liable acquisitions, in megawatt hours, for the hours occurring in the peak demand reduction period on each of the 4 days nominated by the Scheme Regulator under subclause (2) for the compliance period.

"n" is the number of hours in the peak demand reduction period in one day.
(2) The Scheme Regulator must, by 30 April each year, nominate and publish on its website the 4 days that had the highest maximum demand for megawatts of electricity during the compliance period.
(3) The Scheme Regulator must nominate the 4 days by--
(a) considering the demand for electricity over the whole of each day during the compliance period, not only during the peak demand reduction period, and
(b) using information published by AEMO.
(4) A scheme participant must, in the form approved by the Scheme Regulator, notify the Scheme Regulator of the scheme participant's individual liable demand for the previous compliance period by--
(a) 30 September, or
(b) a later day specified by the Scheme Regulator for the scheme participant.
: Maximum penalty (subclause (4))--250 penalty units for a corporation or 100 penalty units for an individual.
(5) If the scheme participant fails to notify the Scheme Regulator of the scheme participant's individual liable demand in accordance with subclause (4), the Scheme Regulator must calculate the scheme participant's individual liable demand for the compliance period in accordance with the regulations.
(6) The Scheme Regulator's calculation is taken to be the scheme participant's individual liable demand.

90 Meaning of "liable acquisitions"

(1) In this Part, a
"liable acquisition" for a scheme participant is a purchase of electricity by the scheme participant, from AEMO or another person whether or not a registered participant under the National Electricity (NSW) Law , where the electricity is purchased for--
(a) consumption by or onsale to end users in this State, or
(b) use in this State.
(2) A supply of electricity generated by a scheme participant is also to be treated as a liable acquisition if--
(a) the scheme participant is a retailer and the electricity is supplied by the retailer for--
(i) consumption by or onsale to end users in this State, or
(ii) use in this State, or
(b) the scheme participant is a direct supplier of electricity and the supply is of a kind specified by the regulations to be a liable acquisition.
(3) However, if a scheme participant purchases electricity from another scheme participant, the purchase is not a liable acquisition if the purchase of the electricity is, or the supply of the electricity is to be treated as, a liable acquisition for the other scheme participant or for a scheme participant who is further up the chain of supply of the electricity.
(4) For the purposes of this Part--
(a) a liable acquisition is
"made" by a scheme participant on the date the electricity is purchased by the scheme participant or, in the case of a supply of electricity treated as a liable acquisition, supplied by the scheme participant, and
(b) the
"value" of a purchase or supply of electricity is the amount of electricity purchased or supplied, expressed in megawatt hours.
(5) Electricity is taken to be purchased by a scheme participant on the date the electricity is physically delivered to the scheme participant, regardless of when the contract or other arrangement for purchase of the electricity was entered into or made.
(6) The scheme rules may make further provision in relation to determining when a scheme participant is taken to have purchased electricity, for the purposes of determining which liable acquisitions are to be used under clause 89 to calculate the scheme participant's individual liable demand.
(7) This clause is subject to Division 3.

91 Scheme Regulator to determine scheme liable demand

(1) The Scheme Regulator must, after 30 September each year, determine the
"scheme liable demand" for the previous compliance period by adding together each scheme participant's individual liable demand for the previous compliance period.
(2) The Scheme Regulator must publish on its website the scheme liable demand for the previous compliance period by--
(a) 15 November, or
(b) a later day notified by the Scheme Regulator on its website before 15 November.
(3) The Scheme Regulator may not amend the scheme liable demand for the previous compliance period after it has been published under subclause (2).

92 Scheme participant to determine individual certificate target

(1) A scheme participant must, after 15 November in each year, calculate the number of certificates the scheme participant is required to surrender in relation to the previous compliance period (the
"individual certificate target" ) using the following formula--
graphic

"ILD" is the individual liable demand for the compliance period.

"SLD" is the scheme liable demand for the compliance period.

"SCT" is the scheme certificate target for the compliance period.
(2) The number of certificates must be rounded up or down to the nearest whole number, and an amount of 0.5 must be rounded up.

Division 3 - Exemptions

93 Exemptions

(1) The Minister may, by order published in the Gazette, grant an exemption from the peak demand reduction scheme in relation to electricity load--
(a) used by a specified person, or class of persons, or
(b) used in connection with a specified activity or class of activities.
(2) An order granting an exemption may also specify the scheme participant, or class of scheme participants, in relation to whom the exemption applies.
(3) The Minister may grant an exemption under this clause only if satisfied that the electricity is used--
(a) in connection with an industry or activity that is both emissions intensive and trade exposed, or
(b) to produce green hydrogen.
(4) The Minister may grant an exemption under this clause only if satisfied that the exemption is otherwise generally consistent with the objects of this Part.
(5) An exemption must specify whether it is a full or partial exemption.
(6) If the exemption is a full exemption, the electricity load to which the exemption applies is, for the purposes of this Part,
"fully exempt electricity load" .
(7) If the exemption is a partial exemption, the electricity load to which the exemption applies is, for the purposes of this Part,
"partially exempt electricity load" .
(8) If an exemption is a partial exemption, the order granting the exemption must specify the proportion of electricity load used by the person, or class of persons, or in connection with a specified activity or class of activities, that is exempt from the peak demand reduction scheme (referred to in clause 94 as the
"exempt proportion" ).

94 Effect of exemption

(1) A scheme participant is entitled to deduct from the total value of its liable acquisitions the value of each purchase of electricity that--
(a) is to be used by a person or in connection with an activity, and
(b) when so used, is fully exempt electricity load.
(2) A scheme participant is entitled to deduct from the total value of its liable acquisitions a proportion of the value of each purchase of electricity that--
(a) is to be used by a person or in connection with an activity, and
(b) when so used, is partially exempt electricity load.
(3) The proportion that may be deducted under subclause (2) is the exempt proportion.
(4) An order granting an exemption may specify the allowances that may be made by scheme participants, in applying the exemption, for electricity losses occurring between the purchase of the electricity by the scheme participant and its use by an end user.
(5) Electricity the subject of an allowance may also be deducted from the total value of liable acquisitions made by a scheme participant, in accordance with the exemption.
(6) An order granting an exemption may authorise the Scheme Regulator to make rules relating to the exemption, including rules relating to assessment of deductions under this Division.
(7) A scheme participant must make a deduction under this Division in accordance with the provisions of the relevant exemption and rules made under subclause (6).
(8) In proceedings under this Act involving a scheme participant, the burden of establishing that the scheme participant was entitled to deduct the exempt liable demand lies on the scheme participant.
(9) In this clause, a reference to a purchase of electricity includes a reference to a supply of electricity that is treated as a liable acquisition under this Part.

95 Grounds on which electricity load may be exempt

(1) The regulations may make further provision with respect to the determination of whether--
(a) an industry or activity is emissions intensive or trade exposed, and
(b) electricity is taken to be used to produce green hydrogen.
(2) Subject to the regulations, the Minister may determine the basis on which--
(a) an industry or activity is considered to be emissions intensive or trade exposed, and
(b) electricity is taken to be used to produce green hydrogen.

96 General provisions about exemptions

(1) An exemption takes effect on--
(a) the day on which the order granting the exemption is published in the Gazette, or
(b) a later day specified in the order.
(2) An exemption may be revoked by order of the Minister published in the Gazette.
(3) If an exemption is revoked, the revocation takes effect on--
(a) the day on which the order revoking the exemption is published in the Gazette, or
(b) a later day specified in the order.
(4) The Minister must provide a copy of an order made under this Division to the Scheme Regulator.
(5) The Scheme Regulator must publish the following on its website--
(a) particulars of an exemption under this Division, and
(b) rules made under clause 94(6) about an exemption.

Division 4 - Compliance of scheme participants

97 Surrender of certificates

(1) A scheme participant is required to surrender the number of certificates calculated as the scheme participant's individual certificate target for a compliance period.
(2) An election by a scheme participant to surrender a certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, or to carry forward a shortfall, must be made to the Scheme Regulator in accordance with this Part.
(3) An election has no effect unless it is accepted by the Scheme Regulator.
(4) If a scheme participant surrenders less than the number of certificates in its individual certificate target for a compliance period, the scheme participant has a
"shortfall" for the compliance period, consisting of the number of certificates the scheme participant failed to surrender.

98 Penalties for shortfalls

(1) A scheme participant who has a shortfall for a compliance period must pay a penalty for the compliance period (a
"shortfall penalty" ).
(2) The amount of the shortfall penalty is the amount, in dollars, calculated by multiplying the shortfall by the scheme penalty rate.
(3) The amount must be rounded down to the nearest whole number of dollars.
(4) Regulations may be made in relation to the assessment of the amount of a shortfall penalty payable by a scheme participant, including self-assessment or assessment by the Scheme Regulator.

99 Penalty rates

(1) The
"scheme penalty rate" for a compliance period is the rate prescribed by the regulations--
(a) on the commencement of this clause, or
(b) as amended in accordance with this clause.
(2) A regulation to amend a prescribed scheme penalty rate for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example--: An amendment to the scheme penalty rate for the 2023-2024 compliance period must be made on or before 31 October 2022.
(3) A regulation to amend a prescribed scheme penalty rate for a compliance period may be made only if the Minister is satisfied that the change to the prescribed scheme penalty rate is appropriate--
(a) for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b) for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c) because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d) because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020 , or
(e) because of significant changes to the scheme rules relating to the creation of certificates, or
(f) because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.
(4) Subclauses (2) and (3) do not apply to a regulation that provides for the adjustment of scheme penalty rates for movements in the consumer price index.

100 Payment of shortfall penalties

(1) A shortfall penalty payable by a scheme participant is, for a compliance period, payable--
(a) within 12 months of the end of the compliance period, or
(b) on a later day determined by the Scheme Regulator for the scheme participant.
(2) A shortfall penalty is payable to the Scheme Regulator, for payment into the Consolidated Fund as public money.
(3) A shortfall penalty payable by a scheme participant may be recovered in a court of competent jurisdiction as a debt due to the Crown.

101 Shortfalls may be carried forward

(1) A scheme participant may elect to carry forward a shortfall, or part of a shortfall, for a compliance period to the next compliance period in accordance with this clause.
(2) If a scheme participant elects to carry forward a shortfall, or part of a shortfall, the amount carried forward is not subject to a shortfall penalty for the compliance period to which the shortfall relates.
(3) The maximum amount of a shortfall that may be carried forward to the 2023-2024 compliance period by a scheme participant is--
(a) 20% of the scheme participant's individual certificate target for the 2022-2023 compliance period, or
(b) another amount prescribed by the regulations.
(4) The maximum amount of a shortfall that may be carried forward to another compliance period by a scheme participant is--
(a) 10% of the scheme participant's individual certificate target in the previous period, or
(b) another amount prescribed by the regulations.
(5) A shortfall, or part of a shortfall, may be carried forward to the next compliance period only.
(6) A shortfall, or part of a shortfall, for the 2049-2050 compliance period cannot be carried forward.
(7) A scheme participant who elects to carry forward a shortfall, or part of a shortfall, to the next compliance period is not prevented from electing to carry forward a shortfall, or part of a shortfall, for that next compliance period to the following compliance period.
(8) For the purposes of this Part, a shortfall, or part of a shortfall, for a compliance period that is carried forward to the next period is a
"carried forward shortfall" .

102 Carried forward shortfalls must be remedied

(1) A scheme participant who has a carried forward shortfall in a compliance period must remedy the carried forward shortfall in the compliance period to which the shortfall is carried forward.
(2) A scheme participant remedies a carried forward shortfall if the participant surrenders the number of certificates required for the carried forward shortfall.
(3) A scheme participant fails to remedy a carried forward shortfall if the participant does not surrender the number of certificates required for the carried forward shortfall.
(4) If a scheme participant fails to remedy a carried forward shortfall, the scheme participant must pay a penalty for the amount by which the carried forward shortfall exceeds the certificates surrendered by the scheme participant for the compliance period (the
"non-remedied amount" ).
(5) The penalty must be calculated as if the non-remedied amount were a shortfall for the compliance period to which the shortfall is carried forward.
(6) The penalty is payable in the same way as, and is taken to be, a shortfall penalty.
(7) To avoid doubt, a penalty payable by a scheme participant for a failure to remedy a carried forward shortfall in a compliance period is additional to a penalty payable by the scheme participant for a shortfall in the compliance period.

Division 5 - Assessment of compliance of scheme participants

103 Annual statements

(1) A scheme participant must lodge with the Scheme Regulator a statement (an
"annual statement" ) each year on or before--
(a) 15 December, or
(b) a later day specified by the Scheme Regulator for the scheme participant.
(2) An annual statement must contain the following--
(a) an assessment of the scheme participant's individual certificate target for the previous compliance period,
(b) an assessment of the amount of any shortfall penalty payable by the scheme participant for the previous compliance period, including any shortfall penalty for a carried forward shortfall,
(c) other matters required by the Scheme Regulator.
(3) If the scheme participant seeks to elect to surrender one or more certificates for the purposes of meeting its individual certificate target for the compliance period to which the annual statement relates, the election must--
(a) accompany the annual statement, and
(b) contain details of the certificates proposed to be surrendered.
(4) If a scheme participant seeks to elect to carry forward a shortfall, or part of a shortfall, for the compliance period to which the annual statement relates, the election must accompany the annual statement.
(5) An annual statement, and any election that accompanies the statement, must be in a form approved by the Scheme Regulator.
(6) A scheme participant who fails to lodge an annual statement in accordance with this clause is guilty of an offence.
: Maximum penalty (subclause (6))--250 penalty units for a corporation or 100 penalty units for an individual.
(7) Regulations may be made in relation to the following--
(a) assessments by the Scheme Regulator of the matters referred to in subclause (2)(a) and (b), if a scheme participant does not lodge an annual statement as required under this clause,
(b) the amendment of assessments of the matters referred to in subclause (2)(a) and (b), at the request of a scheme participant or on the Scheme Regulator's own motion.

104 Restrictions on surrender of certificates

(1) A certificate cannot be surrendered by a scheme participant for the purposes of meeting its individual certificate target or remedying a carried forward shortfall unless--
(a) the certificate--
(i) is registered as active in the register of certificates, or
(ii) was registered as active during the compliance period for which the certificate is surrendered, and
(b) the participant is recorded in the register of certificates as the owner of the certificate, and
(c) for a certificate that relates to an activity that occurred in a jurisdiction for which there is an approved corresponding scheme--the Minister has, by the order approving the corresponding scheme or a subsequent order published in the Gazette, approved the surrender of certificates of that kind by a scheme participant for those purposes.
(2) The Scheme Regulator may, by written notice to a scheme participant, refuse to accept an election to surrender a certificate if, in the opinion of the Scheme Regulator--
(a) the certificate cannot be surrendered under this clause, or
(b) the certificate is surplus to the number required to be surrendered for the purposes of meeting the scheme participant's individual certificate target or remedying a carried forward shortfall.
(3) If the Scheme Regulator accepts the surrender of a certificate, and the Scheme Regulator is not the Scheme Administrator, the Scheme Regulator must give the Scheme Administrator written notice of the decision, including details of the certificate surrendered.

105 Validity of assessment

The validity of an assessment of the amount of a shortfall penalty payable by a scheme participant is not affected by a failure to comply with a provision of this Act, the regulations or the scheme rules.

Division 6 - Certificates

106 Creation of certificates

(1) The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that creates peak demand reduction capacity.
(2) A certificate may be created by an accredited certificate provider, in accordance with the scheme rules, in relation to an activity that creates peak demand reduction capacity.
(3) Subject to the scheme rules, one certificate may be created for an activity that creates peak demand reduction capacity of 0.1 kilowatt averaged over 1 hour.
(4) One certificate may be created for each 0.1 kilowatt averaged over 1 hour on 1 day only within the compliance period.
An air conditioner is installed that creates the capacity to reduce demand for electricity by an average of 0.2 kilowatt for each of the 6 hours of the peak demand reduction period between 2:30pm and 8:30pm. The installation of the air conditioner will create 12 certificates for the whole compliance period.
(5) A certificate may be created in relation to an activity no later than 6 months after the end of the compliance period in which the peak demand reduction capacity is made available.
(6) The scheme rules may specify--
(a) the date after which an activity must have occurred for a certificate to be created in relation to the activity, and
(b) when peak demand reduction capacity is taken to have been created or made available.
(7) The number of certificates arising from an activity must be calculated in accordance with the scheme rules.
(8) To avoid doubt, an activity may create peak demand reduction capacity in one or more compliance periods.
(9) Regulations may be made in relation to--
(a) the revocation of the cancellation of certificates in connection with an amendment to a scheme participant's individual liable demand or annual statement, and
(b) the revival of certificates.

107 Creation of certificates for activities outside NSW

(1) The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that creates peak demand reduction capacity in another jurisdiction, if an approved corresponding scheme is in operation in the jurisdiction.
(2) The Minister may approve a corresponding scheme for the purposes of this clause only if the Minister is satisfied that--
(a) the corresponding scheme is intended to promote activities that create peak demand reduction capacity, and
(b) the objectives of the corresponding scheme are consistent with the objectives of the peak demand reduction scheme established by this Part, and
(c) the monitoring and enforcement of compliance with the corresponding scheme to be approved is no less stringent than the monitoring and enforcement of compliance with the peak demand reduction scheme established by this Part.

108 Improper creation of certificates

(1) A person must not create or purport to create a certificate in contravention of--
(a) this Part or the regulations, or
(b) the scheme rules, or
(c) a condition of accreditation imposed by or under this Act.
: Maximum penalty (subclause (1))--2,000 penalty units.
(2) To avoid doubt, a person may be found guilty of an offence against this clause whether or not the certificate is registered in the register of certificates.

Division 7 - Accreditation of certificate providers

109 Certificates may be created by accredited certificate providers only

(1) A certificate may be created by an accredited certificate provider only.
(2) A person who is an accredited certificate provider may create a certificate in accordance with this Part, the regulations, the scheme rules and the conditions, if any, of the person's accreditation as a certificate provider.
(3) A person who is an accredited certificate provider may create a certificate only in relation to the activities in relation to which the person has been accredited as a certificate provider.
(4) Regulations may be made in relation to--
(a) the records that must be kept by accredited certificate providers, and
(b) the information required to be provided to the Scheme Administrator in connection with the creation of certificates.

110 Eligibility for accreditation

(1) The regulations and scheme rules may make provision about the eligibility of a person for accreditation as a certificate provider.
(2) Without limiting subclause (1), the following persons are not eligible for accreditation as a certificate provider--
(a) a person who is engaged in an industry, or carries out an activity, that benefits from a full exemption from the peak demand reduction scheme,
(b) a related body corporate of a person specified in paragraph (a).

111 Application for accreditation

(1) A person who is eligible for accreditation as a certificate provider in relation to an activity may apply to the Scheme Administrator for accreditation.
(2) The Scheme Administrator must determine an application for accreditation as a certificate provider by--
(a) accrediting the applicant as a certificate provider in relation to specified activities, or
(b) refusing the application.
(3) The Scheme Administrator may refuse an application for accreditation as a certificate provider on any grounds specified in the regulations.
(4) The Scheme Administrator may charge a fee for the investigation and determination of an application, in addition to an application fee required to be paid under the regulations.
(5) The fee for the investigation and determination of an application must be determined by the Scheme Administrator on a cost recovery basis.

112 Accreditation of certificate providers under energy savings scheme

(1) This clause applies to a person who--
(a) is an accredited certificate provider for the energy savings scheme under Schedule 4A, Part 1 in relation to a specified activity, or
(b) has applied for accreditation as a certificate provider for the energy savings scheme under Schedule 4A, Part 1 in relation to a specified activity and the Scheme Administrator under that scheme has not yet determined the application.
(2) A person to whom this clause applies is eligible for accreditation as a certificate provider under the peak demand reduction scheme in relation to the specified activity if--
(a) the specified activity is an activity in relation to which a certificate may be created under the peak demand reduction scheme, and
(b) the Scheme Administrator is satisfied that the person is otherwise eligible for accreditation as a certificate provider under the peak demand reduction scheme.
(3) The Scheme Administrator may accredit a person who is eligible under this clause without requiring the person to apply for accreditation under clause 111.

113 Duration of accreditation

(1) Accreditation of a person as a certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2) The Scheme Administrator may suspend or cancel the accreditation of a person on any grounds specified in the regulations.
(3) The suspension or cancellation of the accreditation of a person is subject to any conditions imposed by the Scheme Administrator.
(4) The conditions may include, but are not limited to, a condition to which the accreditation was subject immediately before it was suspended or cancelled.
(5) The regulations may provide for the variation or revocation of a condition imposed by the Scheme Administrator on the suspension or cancellation of accreditation as a certificate provider.

114 Conditions of accreditation

(1) Accreditation as a certificate provider is subject to the following conditions--
(a) a condition imposed from time to time by the regulations,
(b) a condition imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2) A person must not contravene a condition of the person's accreditation as a certificate provider.
: Maximum penalty (subclause (2))--2,000 penalty units.
(3) Subclause (2) extends to a condition to which the suspension or cancellation of the accreditation of a person is subject under this Part.

115 Amendment of accreditation

(1) An accredited certificate provider may apply to the Scheme Administrator to amend the provider's accreditation by--
(a) varying the activities for which the provider is accredited, or
(b) varying or revoking a condition of the accreditation imposed by the Scheme Administrator.
(2) Subclause (1)(b) does not apply to a condition imposed by this Act or the regulations.
(3) The Scheme Administrator must determine an application to amend a provider's accreditation by--
(a) granting the application, or
(b) refusing the application.
(4) The regulations may make provision for the amendment of a provider's accreditation, including by requiring an application fee to be paid to the Scheme Administrator for an application to amend an accreditation.
(5) The Scheme Administrator may refuse an application to amend a provider's accreditation on grounds specified in the regulations.
(6) In addition to an application fee referred to in subclause (4), the Scheme Administrator may recover from an accredited provider the costs reasonably incurred by the Administrator in investigating and determining an application to amend the provider's accreditation.

116 Transfer of accreditation

(1) Accreditation as a certificate provider is not transferable, except as otherwise provided by this clause.
(2) A person who is accredited as a certificate provider may, with the approval of the Scheme Administrator, transfer the accreditation to a related body corporate of the person.
(3) The Scheme Administrator may approve the transfer of accreditation only if satisfied that the person to whom the accreditation is proposed to be transferred--
(a) is or will be eligible for accreditation, and
(b) will fulfil the obligations that the accredited certificate provider is required to fulfil in relation to the activity.
(4) Regulations may be made in relation to the transfer of accreditation, including to require a fee to be paid to the Scheme Administrator for an application for approval of a transfer of accreditation.

117 Scheme Administrator may require surrender of certificates

(1) The Scheme Administrator may, by written order to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, the number of certificates specified in the order.
(2) An order may be made against a person only if the Scheme Administrator is satisfied, on the balance of probabilities, that the person is guilty of--
(a) an offence under clause 108 involving the improper creation of certificates, or
(b) an offence under clause 114(2) of contravening a condition of the person's accreditation as a certificate provider.
(3) The number of certificates required to be surrendered by an order is--
(a) for an order made under subclause (2)(a)--the number of certificates that is no more than the number of certificates that, in the opinion of the Scheme Administrator, were improperly created, and
(b) for an order made under subclause (2)(b)--the number determined by the Scheme Administrator in accordance with the regulations.
(4) A person must not fail to comply with an order.
: Maximum penalty (subclause (4))--1,000 penalty units, and an additional 1 penalty unit for each certificate the person fails to surrender in accordance with the order.
(5) The value of a certificate surrendered for the purposes of compliance with an order cannot be counted towards meeting a scheme participant's individual certificate target or remedying a carried forward shortfall.
(6) If a person fails to comply with an order, the Scheme Administrator may cancel a certificate in relation to which the person is registered as the owner.
(7) To avoid doubt, it is not an excuse for a failure to comply with an order that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of certificates to comply with the order.
(8) Regulations may be made in relation to the orders made by the Scheme Administrator under this clause.

Division 8 - Registration and duration of certificates

118 Creation of certificate must be registered

(1) A certificate has no effect until the creation of the certificate is registered by the Scheme Administrator in the register of certificates.
(2) An application for registration of the creation of a certificate may be made to the Scheme Administrator by an accredited certificate provider.
(3) The Scheme Administrator must determine an application for registration of the creation of a certificate by--
(a) granting the application and registering the creation of the certificate in the register of certificates, or
(b) refusing the application.
(4) The Scheme Administrator registers the creation of a certificate by--
(a) creating an entry for the certificate in the register of certificates, and
(b) recording the name of the person who created the certificate as the owner of the certificate.
(5) The Scheme Administrator must, when registering the creation of a certificate, specify--
(a) whether the certificate is active, and
(b) if the certificate is not active--the date on which the certificate will be taken to be active, if known.
(6) The Scheme Administrator may alter the entry for a certificate in the register of certificates at any time to show--
(a) the certificate is active, or
(b) the date on which the certificate will be taken to be active.
(7) The scheme rules may make provision about the circumstances in which a certificate is or is not taken to be active.
(8) A certificate may be registered as active before the beginning of the compliance period during which the peak demand reduction capacity is made available.
(9) The Scheme Administrator may refuse an application for registration of the creation of a certificate on any grounds specified in the regulations.
(10) Regulations may be made in relation to applications for registration of certificates, including--
(a) to require an application fee to be paid to the Scheme Administrator, and
(b) to adjust the amount of the fee for movements in the consumer price index.
(11) The Scheme Administrator must publish the adjusted application fees on its website before the beginning of the compliance period to which the application fee applies.

119 Duration of certificate

(1) A certificate remains in force from the date on which the certificate is active until the end of the period of 3 years from the beginning of the compliance period during which the peak demand reduction capacity is made available, unless sooner cancelled.
(2) A certificate may be cancelled by the Scheme Administrator--
(a) if the person registered as the owner of the certificate is a scheme participant who elects to surrender the certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, and the Scheme Regulator accepts the surrender of the certificate, or
(b) if the person registered as the owner of the certificate, by written notice, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate, or
(c) in other circumstances authorised by this Part.
(3) The Scheme Administrator must cancel a certificate that is surrendered by the owner of the certificate if the owner is surrendering the certificate for the purposes of compliance with an order made by the Scheme Administrator requiring the person to surrender a certificate.
(4) The Scheme Administrator cancels a certificate by altering the entry relating to the certificate in the register of certificates to show that the certificate is cancelled.

Division 9 - Transfers and other dealings in certificates

120 Transfer of certificates

(1) A certificate is transferable in accordance with this Division.
(2) A certificate is transferable only if--
(a) the certificate is registered as active in the register of certificates, or
(b) the date on which the certificate will be taken to be active is specified in the register of certificates.
(3) The transfer of a certificate does not have effect until the transfer is registered by the Scheme Administrator.
(4) An application for registration of a transfer of a certificate must be made to the Scheme Administrator by the parties to the transfer.
(5) The Scheme Administrator must--
(a) grant the application by registering the transfer of the certificate in the register of certificates, or
(b) refuse the application.
(6) The Scheme Administrator registers the transfer of a certificate by altering the entry relating to that certificate in the register of certificates to record the new owner of the certificate.
(7) The Scheme Administrator may refuse an application for registration of a transfer of a certificate on any grounds specified in the regulations.
(8) Regulations may be made in relation to applications for registration of a transfer, including to require an application fee to be paid to the Scheme Administrator.

121 Holder of certificate may deal with certificate

(1) The person registered as the owner of a certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for a consideration for the dealing.
(2) This clause is subject to any rights appearing in the register of certificates to belong to another person, being rights that are registered in accordance with the regulations.
(3) This clause only protects a person who deals with the person registered as the owner of the certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(4) Despite subclause (3), a person who purchases a certificate in good faith for value does not lose the protection provided by this clause because the person has notice that a person has been found guilty of an offence against this Part in respect of the creation of a certificate.

122 Scheme Administrator not concerned as to legal effect of transaction

(1) The Scheme Administrator is not concerned with the effect in law of a transaction registered under this Part or the regulations.
(2) The registration of a transaction does not give to the transaction an effect that it would not have if this Part had not been enacted.

Division 10 - Administration of peak demand reduction scheme

123 Scheme Regulator

(1) The Minister may, by written order, appoint a person or body as the Scheme Regulator.
(2) The functions of the Scheme Regulator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Regulator or, in the absence of an appointment, the Tribunal.
(3) Regulations may be made in relation to the appointment of a Scheme Regulator by the Minister.

124 Functions of Scheme Regulator

(1) The Scheme Regulator has the following functions--
(a) to assess and determine, in accordance with this Part, the regulations and the scheme rules, whether scheme participants have complied with individual certificate targets,
(b) if appropriate, to assess and determine, in accordance with this Part, the regulations and the scheme rules, any shortfall penalty payable by a scheme participant,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d) to monitor, and report to the Minister on, the extent to which scheme participants comply, or fail to comply, with obligations imposed by or under this Part,
(e) to provide advice to the Minister on request about the extent of an under supply or over supply of certificates that may be surrendered,
(f) other functions conferred or imposed on it by or under this Act.
(2) If the Scheme Regulator is appointed by the Minister, the Scheme Regulator also has any other functions conferred or imposed on it by the Minister under the terms of its appointment as Scheme Regulator.
(3) For the purposes of enabling the Scheme Regulator to exercise its functions, the Minister must provide the Scheme Regulator with information in the Minister's possession in relation to the compliance by scheme participants with this Part, if requested by the Scheme Regulator.
(4) The Scheme Regulator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Regulator, the Independent Pricing and Regulatory Tribunal Act 1992 , section 10 does not apply to the Tribunal's functions as Scheme Regulator.

125 Scheme Administrator

(1) The Minister may, by written order, appoint a person or body as the Scheme Administrator.
(2) The functions of the Scheme Administrator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Administrator or, in the absence of an appointment, the Tribunal.
(3) In determining whether to appoint a person or body as Scheme Administrator, the Minister must consider the following matters--
(a) the costs of the appointment,
(b) the efficiency of administrative arrangements relating to the peak demand reduction scheme,
(c) ability to meet objectives of the peak demand reduction scheme,
(d) proposed governance arrangements,
(e) arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator's functions.
(4) The Minister may limit the appointment of a person or body as Scheme Administrator to particular specified functions of the Scheme Administrator.
(5) Regulations may be made in relation to the appointment of a Scheme Administrator by the Minister.

126 Functions of Scheme Administrator

(1) The Scheme Administrator has the following functions--
(a) the functions conferred by this Part relating to the peak demand reduction scheme,
(b) to monitor, and to report to the Minister on, the extent to which accredited certificate providers comply with this Part, the regulations, the scheme rules and conditions of accreditation,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d) to provide advice to the Minister on request about the extent of an under supply or over supply of certificates that may be surrendered,
(e) other functions conferred or imposed on it by or under this Act or another Act or law.
(2) If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has the other functions conferred or imposed on it by the Minister under the terms of the appointment.
(3) For the purposes of enabling the Scheme Administrator to exercise its functions, the Minister must provide the Scheme Administrator with information in the Minister's possession that relates to compliance by accredited certificate providers with this Part, if requested by the Scheme Administrator.
(4) The Scheme Administrator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Administrator, the Independent Pricing and Regulatory Tribunal Act 1992 , section 10 does not apply to its functions as Scheme Administrator.

127 Conduct of audits

(1) Regulations may be made in relation to the conduct of audits by the Scheme Regulator, the Scheme Administrator or other persons.
(2) Without limiting subclause (1), the regulations may provide for the following matters--
(a) matters that may be the subject of audits,
(b) persons who may conduct audits,
(c) matters relating to decisions about who will conduct audits, including, for example, providing for the Scheme Regulator or Scheme Administrator to make decisions about whether to conduct audits personally or require audits to be conducted by an auditor engaged by the Scheme Regulator, Scheme Administrator or scheme participant,
(d) functions that may be exercised by persons conducting audits,
(e) fees payable for audits, including--
(i) who determines whether fees are payable for particular types of audits or audits in particular circumstances, and
(ii) how and by whom the amount of the fees payable for audits are determined, and
(iii) the maximum fees payable for audits generally or particular types of audits, and
(iv) to whom the fees for audits are payable,
(f) offences relating to obstructing or hindering, or refusing or failing to comply with requirements made by, persons who conduct audits.
(2A) If the regulations provide that a fee, as determined by or under the regulations, is payable for the carrying out of particular types of audit or audits in particular circumstances, each scheme participant and accredited certificate provider is liable to pay the fee for the carrying out of an audit of that type or in those circumstances in relation to the participant or provider.
(3) An accreditation may include terms and conditions relating to the determination of the cost of carrying out audit functions under subclause (1).

128 Provision of information, documents and evidence

(1) For the purposes of exercising its functions under this Part, the Scheme Regulator or Scheme Administrator may, by written notice served on a relevant person, require the person to do one or more of the following--
(a) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a document or type of document specified in the notice.
(2) If the Tribunal is the Scheme Regulator or Scheme Administrator, the Tribunal may, in the notice, in addition to or instead of requiring a relevant person to do something specified in subclause (1), require the relevant person to attend a meeting of the Tribunal to give evidence.
(3) A person must not, without reasonable excuse--
(a) refuse or fail to comply with a notice served under this clause, or
(b) refuse or fail to answer a question the person is required to answer at a meeting of the Tribunal the person is required to attend under this clause.
: Maximum penalty (subclause (3))--250 penalty units for a corporation or 100 penalty units for an individual.
(4) An individual has a reasonable excuse for the purposes of subclause (3) if complying with the notice or answering the question might tend to incriminate the individual or make the individual liable to any forfeiture or penalty.
(5) If documents are given to the Scheme Regulator or Scheme Administrator under this clause, the Scheme Regulator or Scheme Administrator--
(a) may take possession of, and make copies of or take extracts from, the documents, and
(b) may keep possession of the documents for the period necessary for those purposes, and
(c) during that period must permit the documents to be inspected at all reasonable times by persons who would be entitled to inspect them if the documents were not in the possession of the Scheme Regulator or Scheme Administrator.
(6) This clause does not affect the law relating to client legal privilege or other legal professional privilege.
(7) In this clause--

"relevant person" means--
(a) an officer of a scheme participant or former scheme participant, or
(b) an officer of an accredited certificate provider or former accredited certificate provider, or
(c) another person whom the Scheme Regulator or Scheme Administrator, as the case requires, reasonably believes is able to provide information relevant to its functions as Scheme Regulator or Scheme Administrator.

129 Obstruction of Scheme Regulator or Scheme Administrator

A person must not hinder, obstruct or interfere with the following in the exercise of functions under this Part--

(a) the Scheme Regulator,
(b) the Scheme Administrator,
(c) a member or officer of the Scheme Regulator or Scheme Administrator.
: Maximum penalty--250 penalty units for a corporation or 100 penalty units for an individual.

130 False or misleading information

A person must not, for the purposes of this Part--

(a) give to the Scheme Regulator or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular, unless the person informs the Scheme Regulator or Scheme Administrator, or
(b) at a meeting of the Tribunal acting as Scheme Regulator or Scheme Administrator, give evidence that the person knows to be false or misleading in a material particular.
: Maximum penalty--100 penalty units.

131 Confidential information

(1) If a person provides information to the Scheme Regulator or Scheme Administrator in connection with the functions of the Scheme Regulator or Scheme Administrator under this Part on the understanding that the information is confidential and will not be divulged, the Scheme Regulator or Scheme Administrator must ensure that the information is not divulged by the Scheme Regulator or the Scheme Administrator, as the case requires, to another person.
(2) Despite subclause (1), the Scheme Regulator or the Scheme Administrator may divulge the information to another person--
(a) with the consent of the person who provided the information, or
(b) for information provided to the Tribunal while acting as Scheme Regulator or Scheme Administrator, to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c) to a member or officer of the Scheme Regulator or Scheme Administrator, as the case requires, or
(d) as required by another law.
(3) The Scheme Regulator or Scheme Administrator may give a direction prohibiting or restricting the divulging of information provided to the Scheme Regulator or Scheme Administrator under this Part if satisfied that the direction is desirable because of the confidential nature of the information.
(4) A person must not contravene a direction given under subclause (3).
: Maximum penalty (subclause (4))--100 penalty units.
(5) A reference in this clause to information includes information--
(a) given at a meeting of the Scheme Regulator or Scheme Administrator, and
(b) contained in a document given to the Scheme Regulator or Scheme Administrator.

131A Identity of person providing information to be confidential

(1) This clause applies if a person (an
"information provider" ) provides information to the Scheme Regulator or Scheme Administrator about another person's non-compliance with an obligation under this Part
(2) The Scheme Regulator or Scheme Administrator must ensure that the identity of an information provider, and anything that may reasonably identify the information provider, is not disclosed to any person except--
(a) with the consent of the information provider, or
(b) if ordered by a court or tribunal, or
(c) if required by another law.
(3) If the identity of an information provider cannot be disclosed under subclause (2), the information provided by the information provider cannot be used as evidence in proceedings against another person for an offence under this Act.
(4) Subclause (3) does not prevent the Scheme Regulator or Scheme Administrator using information, including in proceedings for an offence under this Act, obtained as a result of the information received from an information provider.

132 Cabinet documents and proceedings

(1) This Part does not enable the Scheme Regulator or Scheme Administrator--
(a) to require a person to give a statement of information or answer a question that relates to confidential proceedings of Cabinet, or
(b) to require a person to produce Cabinet information, or
(c) to inspect Cabinet information.
(2) For the purposes of this clause, a certificate of the Secretary of the Department of Premier and Cabinet, or the General Counsel of the Department, that information or a question relates to confidential proceedings of Cabinet or that information is Cabinet information is conclusive of the matter certified.
(3) In this clause--

"Cabinet" includes a committee of Cabinet or a subcommittee of a committee of Cabinet.

"Cabinet information" means information that is Cabinet information under the Government Information (Public Access) Act 2009 .

Division 10A - Civil penalties

132A Definitions

In this Division--

"civil penalty order" --see clause 132B.

"civil penalty provision" means a provision prescribed by the regulations as a civil penalty provision.

"scheme entity" means--

(a) the Scheme Administrator, or
(b) the Scheme Regulator.

132B Monetary penalty

(1) If a person has contravened a civil penalty provision, a scheme entity may by written order (a
"civil penalty order" ) require the provider to pay a monetary penalty of no more than the penalty notice amount for the provision.
(2) If a corporation is liable to a monetary penalty under this clause, each of the following persons may be ordered to pay a monetary penalty if the person knowingly authorised or permitted the contravention--
(a) a director of the corporation,
(b) a person concerned in the management of the corporation.

132C Process

(1) A scheme entity may not issue a civil penalty order to a person unless--
(a) the scheme entity has given the person notice of the proposed order and the reasons for it, and
(b) the person has been given a reasonable opportunity to make a submission about the proposed order, and
(c) the scheme entity has considered a submission made by the person, and
(d) the scheme entity is satisfied on the balance of probabilities that the person--
(i) contravened the relevant civil penalty provision, or
(ii) knowingly authorised or permitted the contravention.
(2) A scheme entity must provide written reasons for a decision to issue a civil penalty order to the person.
(3) A civil penalty order must be issued within 3 years after the date on which evidence of the alleged offence first came to the attention of the scheme entity.
(4) A civil penalty order must include the date, not less than 28 days after the date the order is issued, by which the monetary penalty imposed by the order must be paid.

132D Double jeopardy

(1) A scheme entity may not issue a civil penalty order to a person if--
(a) another civil penalty order has been issued to a person for the contravention, or
(b) the person has been found guilty, whether a conviction is recorded or not, of an offence under this Act or the regulations for the contravention.
(2) If criminal proceedings are taken against a person for a contravention after the person pays the monetary penalty imposed by a civil penalty order, a court that finds the person guilty of an offence must discount any penalty imposed by the civil penalty amount paid by the person.

132E Payment not an admission of guilt or liability

The payment of a monetary penalty under this Division cannot be taken to be an admission of--

(a) a breach of a civil penalty provision, or
(b) liability for civil or criminal proceedings arising from substantially the same conduct.

132F Withdrawal of order

(1) A scheme entity may withdraw a civil penalty order by written notice to the person the subject of the order.
(2) A civil penalty order may be withdrawn under this clause at any time before it is complied with.
(3) A civil penalty order issued to a person is automatically withdrawn on the commencement against the person of criminal proceedings for the contravention.
(4) A civil penalty order withdrawn under this clause may, subject to clause 132D, be reissued.

132G Internal review of order

(1) A person who is the subject of a civil penalty order may apply to the scheme entity that issued the order for a review of--
(a) the decision to issue the order, or
(b) the monetary penalty imposed by the order.
(2) An application must be made within 28 days of the issuing of the order.
(3) A person issued a civil penalty order is not required to pay the monetary penalty imposed while an application is being considered.
(4) The scheme entity's decision on the application must be given to the applicant--
(a) by written notice that includes the reasons for the decision, and
(b) within 90 days of the making of the application.
(5) If the written notice of the scheme entity's decision is not given to the applicant within 90 days of the making of the application, the application is taken to have been refused.
(6) If the scheme entity affirms the decision to issue the civil penalty order, including with a different monetary penalty, the written notice of the decision must include the date, not less than 28 days after the date of the notice, by which the monetary penalty must be paid.

132H External review of order

(1) A person who is not satisfied with the result of an internal review under clause 132G may make an application to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 for administrative review of the internal review decision.
(2) The Administrative Decisions Review Act 1997 , section 53 does not apply to a decision under clause 132G that may be reviewed by the Tribunal.

132I Recovery of monetary penalty

The monetary penalty imposed by a civil penalty order may be recovered by a scheme entity in a court of competent jurisdiction as a debt owing to the Crown.

Division 11 - Registers

133 Keeping of registers

(1) The Scheme Administrator must establish and keep the following registers for the purposes of this Part--
(a) a register of accredited certificate providers,
(b) a register of certificates,
(c) a register of persons who have applied for and been refused accreditation as accredited certificate providers.
(2) A register must be kept in the form the Scheme Administrator considers appropriate.
(3) A register may be kept wholly or partly by electronic means.
(4) A register must be published on the Scheme Administrator's website.
(5) The Scheme Administrator may correct an error in, or omission from, a register.

134 Register of accredited certificate providers

The register of accredited certificate providers must contain--

(a) the name of each accredited certificate provider, and
(b) other information in relation to each accredited certificate provider required to be included in the register by this Part or the regulations.

134A Register of persons refused accreditation as accredited certificate providers

The register of persons who have applied for and been refused accreditation as an accredited certificate provider must contain the following information about each person--

(a) the name of the person and, if the person is a corporation, the corporation's ACN,
(b) the reasons the person's application was refused,
(c) other information required to be included in the register by this Part or the regulations.

135 Register of certificates

The register of certificates must contain the following information in relation to each certificate--

(a) the name of the person who created the certificate,
(b) the name of the current registered owner, and any previous registered owners, of the certificate,
(c) if there is an approved corresponding scheme in another jurisdiction and the activity to which the certificate relates occurred in the other jurisdiction--the jurisdiction in which the activity occurred,
(d) the date from which the certificate will be taken to be active, if known,
(e) the period for which the certificate is in force,
(f) the compliance period during which the peak demand reduction capacity is made available by the activity for which the certificate is created,
(g) other information required to be included in the register by this Part or the regulations.

136 Evidentiary provisions

(1) A register is evidence of the particulars registered in it.
(2) If a register is wholly or partly kept by electronic means, a written document issued by the Scheme Administrator containing particulars included in the register, or the part of the register kept by electronic means, is admissible in legal proceedings as evidence of the particulars.

136A Information sharing

(1) The Scheme Administrator may enter into an arrangement (an
"information sharing arrangement" ) with a relevant agency for the purposes of sharing or exchanging information about the following held by the Scheme Administrator or the agency--
(a) offences and alleged offences under this Part, including investigations,
(b) the administration of the peak demand reduction scheme,
(c) other matters of a type prescribed by the regulations.
(2) Under an information sharing arrangement, the Scheme Administrator and the relevant agency are, despite any other Act or law of the State, authorised--
(a) to request and receive information held by the other party to the arrangement, and
(b) to disclose information to the other party.
(3) In this clause--

"relevant agency" means the following--
(a) a government sector agency within the meaning of the Government Sector Employment Act 2013 ,
(b) another person or body prescribed by the regulations.

Division 11A - Compliance officers and penalty notices

136B Appointment of compliance officers

(1) The Scheme Administrator may, in accordance with any guidelines in force under this clause, appoint compliance officers for the purposes of this Part.
(2) The Minister may, by written order, issue guidelines for the appointment of compliance officers.
(3) An order must be published on the Scheme Administrator's website and takes effect on--
(a) the day on which it is published, or
(b) a later day specified in the order.

136C Powers of compliance officers

(1) The powers of a compliance officer may be exercised for the purposes of investigating an accredited certificate provider's compliance with the following--
(a) this Part,
(b) the regulations,
(c) the scheme rules,
(d) a condition of the provider's accreditation.
(2) A compliance officer may at a reasonable time enter--
(a) premises that are used in connection with an energy savings activity for which a certificate has been created, and
(b) the principal place of business of an accredited certificate provider.
(3) A compliance officer may not enter a part of premises used only for residential purposes without the permission of the occupier of the premises.
(4) A compliance officer may, at premises lawfully entered, do anything that, in the opinion of the compliance officer, is necessary to be done for the purposes of the investigation, including the following--
(a) examine and test plant or equipment on the premises,
(b) take photographs, films, audio, video and other recordings,
(c) take copies of records or documents on the premises,
(d) seize anything that the compliance officer believes on reasonable grounds is connected with an offence under this Part.
(5) A person must not hinder or obstruct a compliance officer in the exercise of a power.
: Maximum penalty--
(a) in the case of a corporation--200 penalty units, or
(b) for an individual--50 penalty units.
(6) A person is not guilty of an offence under subclause (5) unless it is established that the compliance officer identified themselves as a compliance officer.

136D Penalty notices

(1) A compliance officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence in this Part, or a regulation under this Part, that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this clause.
Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this clause is the amount prescribed for the alleged offence by the regulations, which must not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(5) This clause does not limit the operation of another provision of, or made under, this or another Act relating to proceedings that may be taken for offences.

Division 12 - Miscellaneous

137 Scheme rules

(1) The Minister may approve rules that make provision about--
(a) matters for which a scheme rule may be made under this Part, and
(b) other matters prescribed by the regulations.
(2) A rule may make provision for a matter by applying, adopting or incorporating the provisions of an Act or statutory rule or another publication as follows--
(a) with or without modification,
(b) as in force on a particular day or from time to time.
(3) A rule may--
(a) apply generally or be limited in its application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind, or
(c) authorise a matter or thing to be from time to time agreed, determined, applied or regulated by a specified person or body.
(4) The Minister may from time to time approve a rule that amends a rule or revokes a rule.
(5) Notice of a rule approved by the Minister must be published in the Gazette.
(6) A rule takes effect on--
(a) the day on which the written notice is published in the Gazette, or
(b) the later day specified in the rule.
(7) The Minister must make copies of each rule available to each scheme participant and the public.
(8) A rule must be consistent with this Act and the regulations.
(9) A person who is a scheme participant or an accredited certificate provider must not contravene a provision of a scheme rule.
: Maximum penalty (subclause (9))--250 penalty units for a corporation or 100 penalty units for an individual.

138 Application of Part to persons who cease to be scheme participants

(1) If a person ceases to be a scheme participant, this Part and the regulations continue to apply to the person in relation to the period during which the person was a scheme participant.
(2) For that purpose, a reference to a scheme participant includes a reference to a former scheme participant.
(3) A former scheme participant continues to be required to lodge an annual statement for the compliance period during which the person ceased to be a scheme participant.
(4) The requirements of this Part in relation to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in relation to the person as if the person were a scheme participant.
(5) The Minister may, by written notice to the former scheme participant, bring forward the date on which the person would otherwise have to--
(a) lodge an annual statement with the Scheme Regulator for the compliance period during which the person ceased to be a scheme participant, and
(b) pay a shortfall penalty for the compliance period during which the person ceased to be a scheme participant.
(6) The notice may specify--
(a) the date (the
"lodgment date" ) by which the former scheme participant must lodge the annual statement, and
(b) the date by which the former scheme participant must pay the shortfall penalty.
(7) The lodgment date must not be earlier than 28 days after the person ceased to be a scheme participant.
(8) The provisions of this Part relating to the lodgment of an annual statement and the payment of a shortfall penalty apply as if a reference to 15 December were a reference to the lodgment date.

139 Administrative reviews by Civil and Administrative Tribunal

(1) A scheme participant or former scheme participant who is aggrieved by the following decisions of the Scheme Regulator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a determination by the Scheme Regulator of whether a scheme participant has complied with the scheme participant's individual certificate target,
(b) a decision to refuse to accept the surrender of a certificate for the purposes of meeting the scheme participant's or former scheme participant's individual certificate target or remedying a carried forward shortfall,
(c) an assessment of the amount of a shortfall penalty payable by the scheme participant or former scheme participant,
(d) other decisions of the Scheme Regulator of a kind prescribed by the regulations.
(2) A person who is or was accredited, or who has applied to be accredited, as a certificate provider and who is aggrieved by the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a decision to refuse accreditation of the person as a certificate provider,
(b) a decision to cancel or suspend the accreditation of the person as a certificate provider,
(c) a decision to refuse registration of the creation of a certificate,
(d) other decisions of the Scheme Administrator of a kind prescribed by the regulations.
(3) A person who has applied for the registration of a transfer of a certificate and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4) A person who is the subject of an order by the Scheme Administrator requiring the person to surrender a certificate to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(5) A person who, under a scheme rule, is approved by the Scheme Administrator to undertake a function and who is aggrieved by a decision of the Scheme Administrator to revoke the person's approval may apply to the Civil and Administrative Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 .

140 Certificate evidence

(1) This clause applies to a certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate--
(a) a person was or was not a scheme participant, or
(b) the individual certificate target for a scheme participant was the amount specified in the certificate, or
(c) the shortfall for a scheme participant for a compliance period, or the carried forward shortfall for a period, was the amount specified in the certificate, or
(d) the shortfall penalty payable by a scheme participant was the amount specified in the certificate.
(2) A certificate is admissible in evidence in proceedings before a court or tribunal and is prima facie evidence of the matters stated in the certificate.

140A Ancillary offences

(1) This clause applies to a person who, for an offence under this Part or the regulations under this Part--
(a) causes or permits another person to commit the offence, or
(b) aids, abets, counsels or procures another person to commit the offence, or
(c) conspires with another person to commit the offence.
(2) A person to whom this clause applies is guilty of the offence and is liable to the same penalty applicable to an offence against the other provision.

141 Personal liability

(1) A protected person is not personally subject to any liability for anything done--
(a) in good faith, and
(b) for the purpose of exercising functions under this Act or another Act.
(2) The liability instead attaches to the Crown.
(3) In this clause--

"done" includes omitted to be done.

"liability" means civil liability and includes action, claim or demand.

"protected person" means--
(a) the Scheme Regulator, or
(b) the Scheme Administrator, or
(c) a member or officer of, or a person acting under the direction of, the Scheme Regulator or Scheme Administrator, or
(d) a compliance officer.

142 Annual report by Scheme Regulator

(1) As soon as practicable after 1 March in each year, the Scheme Regulator must prepare a report on the extent to which scheme participants have complied, or failed to comply, with individual certificate targets during the previous year.
(1A) The report must be forwarded to the Minister on or before--
(a) the date prescribed by the regulations, or
(b) if the regulations do not prescribe a date--31 August in the same year.
(2) Without limiting subclause (1), the report must contain the following--
(a) the name of each scheme participant and the performance of the participant in relation to the participant's individual certificate target in the compliance period,
(b) the total number of certificates surrendered in the compliance period,
(c) the total number of certificates created in the compliance period,
(d) the total number of certificates created in previous compliance period and not surrendered before the beginning of the compliance period to which the report relates,
(e) an assessment of the extent of an under supply or over supply of certificates that may be surrendered in the compliance period,
(f) an estimate, prepared by the Scheme Administrator, of the actual peak demand reduction capacity that is made available by end users under the peak demand reduction scheme in the compliance period, having regard to the number of certificates that have been created,
(g) an estimate, prepared by the Scheme Administrator, of the actual peak demand reduction capacity that will be made available by end users under the peak demand reduction scheme in the next 10 years, having regard to the number of certificates that have been created.
(3) For the purposes of subclause (2), a certificate created under an approved corresponding scheme that is not able to be surrendered by a scheme participant for the purposes of meeting its individual certificate target or remedying a carried forward shortfall is to be disregarded.
(4) The report must also set out the functions delegated by the Scheme Regulator or Scheme Administrator and the person or body to whom the functions were delegated.
(5) The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(6) For the purposes of enabling the Scheme Regulator to prepare a report, the Scheme Administrator must provide to the Scheme Regulator--
(a) the estimates the Scheme Administrator is required to prepare under subclause (2), and
(b) other information that the Scheme Regulator reasonably requires to complete the report.
(7) The first report under this clause must be prepared for the 2022-2023 compliance period.

143 Reviews of peak demand reduction scheme

(1) The Minister must review the operation of the peak demand reduction scheme to determine whether--
(a) the policy objectives of the peak demand reduction scheme remain valid, and
(b) the terms of this Part remain appropriate for securing the objectives.
(2) A review must be undertaken--
(a) as soon as possible after 1 July 2024, and
(b) every 5 years after the first review.
(3) A report on the outcome of the review must be tabled in each House of Parliament within 12 months after the end of the period to which the review relates.

143A Waiver or reduction of application fees

The Scheme Administrator may waive payment of, or reduce, an application fee required to be paid under this Part.

144 Waiver, suspension or reduction of obligations in emergencies

(1) The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a scheme participant to meet its individual certificate target or remedy a carried forward shortfall.
(2) The Minister may make an order under subclause (1) only if it appears to the Minister that a scheme participant is or will be unable to meet its individual certificate target or remedy the carried forward shortfall because of--
(a) a systems or other failure of the register of certificates, or
(b) another emergency affecting the integrity of the peak demand reduction scheme or the register of certificates.
(3) The Minister may, by order published in the Gazette, reduce the individual certificate target of a small retailer by a specified amount for a specified compliance period if it appears to the Minister that the small retailer is or will be unable to meet the individual certificate target because of an emergency affecting the State or part of the State.
(4) An order under subclause (1) or (3) may--
(a) be made subject to conditions, and
(b) apply to all scheme participants or to a specified class of participants, and
(c) specify the effect of the waiver or suspension on other rights conferred or obligations imposed under this Part.
(5) An order under subclause (1) or (3) takes effect on--
(a) the day on which it is published in the Gazette, or
(b) a later day specified in the order.
(6) In this clause--

"small retailer" means a scheme participant who, in the 12 months specified in the order under subclause (3)--
(a) supplies electricity to no more than 5,000 end users in this State, and
(b) makes liable acquisitions not exceeding 30,000 megawatt hours of electricity.

144A Exchange of information

(1) Despite another provision of this Act, the Scheme Administrator may keep the following information--
(a) information about offences or alleged offences under this Part,
(b) information collected in the administration of this Act.
(2) The Scheme Administrator may give the information kept under this clause to the following--
(a) a person or body undertaking functions, similar to those undertaken by the Scheme Administrator, in another State or Territory or for the Commonwealth,
(b) a government sector agency within the meaning of the Government Sector Employment Act 2013 .

145 Termination of peak demand reduction scheme on establishment of national scheme

(1) The Governor may, by proclamation published on the NSW legislation website, terminate the operation of a provision or all of the provisions of this Part.
(2) A proclamation may be made only if the Minister is satisfied that New South Wales is, or will be, a participant in a scheme (a
"national scheme" ) that--
(a) has been or will be established--
(i) nationally, or
(ii) in this State and at least one or more other States or Territories, and
(b) is designed to achieve outcomes that include encouraging activities that create peak demand reduction capacity.
(3) The termination of the operation of a provision takes effect on the day specified in the proclamation, not being a day earlier than the day on which the proclamation is published on the NSW legislation website.
(4) The day specified in the proclamation must not be a day that is earlier than the day on which New South Wales becomes, or will become, a participant in the national scheme.
(5) Regulations may be made about the effect of the termination of a provision of this Part on rights conferred or obligations imposed under this Part.

146 Automatic termination of peak demand reduction scheme at end of year 2050

(1) The peak demand reduction scheme terminates at the end of the 2049-2050 compliance period.
(2) This Part continues to have effect with respect to matters arising, including obligations incurred, before the termination of the peak demand reduction scheme.
(3) Persons who are scheme participants in the compliance period 2049-2050 continue to be required to lodge an annual statement for the compliance period.
(4) The requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator and Scheme Administrator continue to apply, even though the peak demand reduction scheme is terminated.
(5) A reference in this Part to a scheme participant includes, after the peak demand reduction scheme is terminated, a reference to a former scheme participant.

147 Termination of scheme--regulations

(1) On termination of the scheme under clause 145 or 146, regulations may be made about the effect of the termination on rights conferred or obligations imposed under this Part.
(2) Without limiting subclause (1), the regulations may--
(a) prohibit scheme participants from carrying forward a shortfall, or part of a shortfall, for a year to the following year, and
(b) specify other conditions that must be complied with following the termination.

Part 3 - Renewable fuel scheme

Division 1 - Preliminary

148 Definitions

(1) In this Part--

"accredited certificate provider" means a person accredited as a certificate provider under Division 7 and whose accreditation is in force.

"annual statement" --see clause 167(1).

"approved corresponding scheme" means a scheme approved by the Minister, for the purposes of clause 171, by order published in the Gazette.

"carried forward shortfall" --see clause 165(8).

"certificate" means a certificate created under clause 170.

"compliance officer" means a compliance officer appointed by the Scheme Administrator under clause 214.

"compliance period" means a calendar year.
Example--: The 2022 compliance period means the compliance period commencing on 1 January 2022 and ending on 31 December 2022.

"consumer price index" or
"CPI" means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.

"end user" of gas means--
(a) a person who acquires natural gas for consumption purposes who is not a retail customer, or
(b) a person who produces natural gas for the purposes of consumption by the person.

"fully exempt gas use" --see clause 157.

"gas" means a substance that--
(a) is in a gaseous state at standard temperature and pressure, and
(b) is suitable for consumption, and
(c) consists of hydrocarbons, or a mixture of hydrocarbons and non-hydrocarbons, the principal constituent of which is methane.

"gas retailer" means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law (NSW) in relation to the sale of gas, within the meaning of this Part.

"green hydrogen" means hydrogen produced using renewable energy, other than biomass from timber native to Australia.

"individual certificate target" --see clause 153(1).

"individual liable use" --see clause 154.

"partially exempt gas use" --see clause 157.

"register" means the register of accredited certificate providers or the register of certificates kept by the Scheme Administrator under Division 12.

"related body corporate" of a person has the same meaning as in the Corporations Act 2001 of the Commonwealth.

"renewable fuel" --see subclauses (2) and (3).

"renewable fuel scheme" means the renewable fuel scheme established by this Part.

"retail customer" of gas means a person to whom gas is sold for premises by a gas retailer.

"Scheme Administrator" means the person or body required to exercise the functions of Scheme Administrator under this Part.

"scheme liable use" --see clause 156(1).

"scheme participant" --see clause 150(2).

"scheme penalty rate" --see clause 163(1).

"Scheme Regulator" means the person or body required to exercise the functions of Scheme Regulator under this Part.

"scheme rule" means a rule approved by the Minister under clause 218.

"scheme target" for a renewable fuel--see clause 151.

"shortfall" --see clause 161(4).

"shortfall penalty" --see clause 162(1).

"timber" means trees of any age or description, including a shrub and a sapling or seeding of a tree, whether growing or dead.
(2) In this Part,
"renewable fuel" means--
(a) green hydrogen, or
(b) another renewable fuel prescribed by the regulations.
(3) A fuel is not a
"renewable fuel" if it is produced using biomass from timber native to Australia.

149 Regulations

(1) A reference in this Part to regulations is a reference to regulations made under section 98EA.
Note--: Section 98EA provides that regulations may be made in relation to the renewable fuel scheme for matters for which regulations may be made under this Schedule, Part 1 for the energy savings scheme. Necessary modifications for the renewable fuel scheme may also be made.
(2) This Part does not limit the operation of section 98EA.

150 Establishment of renewable fuel scheme

(1) The object of this Part is to create a financial incentive to increase the production of green hydrogen and other renewable fuels.
(2) Each of the following (a
"scheme participant" ) is required to participate in the renewable fuel scheme--
(a) a gas retailer,
(b) an end user.
(3) A scheme participant is required to surrender certificates in relation to each compliance period in accordance with this Part.

151 Scheme targets

(1) The
"scheme target" for a renewable fuel for a compliance period is the target amount of gigajoules of the renewable fuel to be produced in the compliance period.
(2) The scheme target for a renewable fuel for a compliance period must be used as the basis for the calculation of the individual certificate target for the compliance period.
(3) The scheme target for green hydrogen for a compliance period is the target prescribed by the regulations on the commencement of this clause.
(4) The scheme target for another renewable fuel for a compliance period is the target prescribed by the regulations for the renewable fuel.
(5) The regulations may amend the scheme targets for a compliance period prescribed under subclause (3) or (4).
(6) A regulation under this clause that prescribes a scheme target or amends a prescribed scheme target for a compliance period must be made at least 12 months before the beginning of the compliance period.

152 Amendment of prescribed scheme targets

(1) A regulation made under clause 151(5) to amend a scheme target for a renewable fuel must not reduce the amount of gigajoules prescribed as the scheme target for the renewable fuel for a compliance period.
(2) A regulation made under clause 151(5) to amend a scheme target for a renewable fuel may be made only if the Minister is satisfied that the change to the scheme target for the renewable fuel is appropriate--
(a) for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the renewable fuel scheme, or
(b) for the purposes of implementing a national scheme with similar objectives to the renewable fuel scheme, or
(c) because of an over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d) because of significant changes to the scheme rules relating to the creation of certificates, or
(e) because of significant changes to the policy or regulatory framework, or the market conditions, in which the renewable fuel scheme operates.

Division 2 - Determination of individual certificate targets

153 Scheme participant's individual certificate target

(1) A scheme participant must, before 1 March in each year, calculate the number of certificates the scheme participant must surrender in relation to the previous compliance period (the
"individual certificate target" ) using the following formula--
graphic
(2) The individual certificate target is calculated on the basis of one certificate for each gigajoule of renewable fuel.
(3) The number of certificates must be rounded up or down to the nearest whole number, and an amount of 0.5 must be rounded up.

154 Scheme participant's individual liable use

(1) A scheme participant must calculate the scheme participant's
"individual liable use" for a compliance period, which is the total value of the liable uses of gas for the scheme participant for the previous year.
Example--: The individual liable use for the 2026 compliance period is the total value of a scheme participant's gas use in 2025.
(2) The use of gas by a scheme participant who is a gas retailer is a
"liable use" if the gas is conveyed to a retail customer using a relevant pipeline under a contract with the scheme participant.
(3) The use of gas by a scheme participant who is an end user is a
"liable use" if--
(a) the scheme participant produced the gas, or
(b) the gas is conveyed to the scheme participant using a relevant pipeline or otherwise conveyed to the scheme participant.
(4) A use of gas is not a liable use for a scheme participant if the gas is a liable use for a scheme participant who is lower down the chain of supply of gas.
(5) If the gas used by a scheme participant has green hydrogen or renewable methane as a component of the gas, the green hydrogen or renewable methane component is not included in the scheme participant's liable use.
(6) For the purposes of this Part--
(a) a liable use specified in subclause (2) is a liable use for a scheme participant on the date on which the gas is used by the retail customer, and
(b) a liable use specified in subclause (3) is a liable use for a scheme participant on the date on which the gas is used by the scheme participant, and
(c) the value of a use of gas is the amount of gas used, expressed in gigajoules.
(7) The scheme rules may make further provision in relation to determining when a use of gas is taken to be a liable use for a scheme participant, for the purposes of determining the scheme participant's individual liable use.
(8) This clause is subject to Division 3.
(9) In this clause--

"relevant pipeline" means--
(a) a pipeline licensed under the Pipelines Act 1967 , Part 3, or
(b) a distribution pipeline within the meaning of the Gas Supply Act 1996 .

"renewable methane" does not include methane produced using biomass from timber native to Australia.

155 Scheme participant to notify Scheme Regulator of individual liable use

(1) A scheme participant must, in the form approved by the Scheme Regulator, notify the Scheme Regulator of the scheme participant's individual liable use for a compliance period by--
(a) 30 September in the compliance period, or
(b) a later day notified by the Scheme Regulator on its website before 30 September.
: Maximum penalty (subclause (1))--
(a) for a corporation--250 penalty units, or
(b) for an individual--100 penalty units.
(2) If the scheme participant fails to notify the Scheme Regulator of the scheme participant's individual liable use in accordance with subclause (1), the Scheme Regulator must calculate the scheme participant's individual liable use for the compliance period in accordance with the regulations.
(3) The Scheme Regulator's calculation is taken to be the scheme participant's individual liable use.

156 Scheme Regulator to determine scheme liable use

(1) The Scheme Regulator must determine the
"scheme liable use" for a compliance period by adding together each scheme participant's individual liable use for the compliance period.
(2) The Scheme Regulator must publish on its website the scheme liable use for a compliance period by--
(a) 15 November in the compliance period, or
(b) a later day notified by the Scheme Regulator on its website before 15 November.
(3) The Scheme Regulator may not amend the scheme liable use for a compliance period after it has been published under subclause (2).

Division 3 - Exemptions

157 Exemptions

(1) The Minister may, by order published in the Gazette, grant an exemption from the renewable fuel scheme in relation to gas used--
(a) by a specified person or class of persons, or
(b) in connection with a specified activity or class of activities.
(2) An order granting an exemption may also specify the scheme participant, or class of scheme participants, in relation to whom the exemption applies.
(3) The Minister may grant an exemption under this clause only if satisfied that--
(a) the gas is used in connection with an industry or activity that is both emissions intensive and trade exposed, or
(b) the exemption meets the criteria specified by the Minister in a notice published in the Gazette.
(4) The criteria specified by the Minister must be generally consistent with--
(a) the object of this Part, or
(b) the objects of the energy savings scheme under Part 1, or
(c) the object of the safeguard specified in the Act, section 98C.
(5) An exemption must specify whether it is a full or partial exemption.
(6) If the exemption is a full exemption, the gas use to which the exemption applies is
"fully exempt gas use" .
(7) If the exemption is a partial exemption, the gas use to which the exemption applies is
"partially exempt gas use" .
(8) If an exemption is a partial exemption, the order granting the exemption must specify the proportion of gas used by the person, or class of persons, or in connection with a specified activity or class of activities, that is exempt from the renewable fuel scheme, referred to in clause 158 as the
"exempt proportion" .

158 Effect of exemption

(1) A scheme participant is entitled to deduct the following from the total value of its liable uses for a compliance period--
(a) the value of each use of gas that is fully exempt gas use,
(b) a proportion of the value of each use of gas that is partially exempt gas use (the
"exempt proportion" ).
(2) An order granting an exemption may specify the allowances that may be made by scheme participants, in applying the exemption, for gas losses occurring during the conveyance of the gas to a retail customer.
(3) If gas is the subject of an allowance, the gas may also be deducted from the total value of liable uses made by a scheme participant, in accordance with the exemption.
(4) An order granting an exemption may authorise the Scheme Regulator to make rules relating to the exemption, including rules relating to assessment of deductions under this Division.
(5) A scheme participant must make a deduction under this Division in accordance with the provisions of the relevant exemption and rules made under subclause (4).
(6) In proceedings under this Act involving a scheme participant, the burden of establishing that the scheme participant was entitled to deduct the exempt liable use lies on the scheme participant.

159 Grounds on which gas uses may be exempt

(1) The regulations may make further provision with respect to the determination of whether an industry or activity is emissions intensive or trade exposed.
(2) Subject to the regulations, the Minister may determine the basis on which an industry or activity is considered to be emissions intensive or trade exposed.

160 General provisions about exemptions

(1) An exemption takes effect on--
(a) the day on which the order granting the exemption is published in the Gazette, or
(b) a later day specified in the order.
(2) An exemption may be revoked by order of the Minister published in the Gazette.
(3) If an exemption is revoked, the revocation takes effect on--
(a) the day on which the order revoking the exemption is published in the Gazette, or
(b) a later day specified in the order.
(4) The Minister must provide a copy of an order made under this Division to the Scheme Regulator.
(5) The Scheme Regulator must publish the following on its website--
(a) particulars of an exemption under this Division, and
(b) rules made under clause 158(4) about an exemption.

Division 4 - Compliance of scheme participants

161 Surrender of certificates

(1) A scheme participant is required to surrender the number of certificates calculated as the scheme participant's individual certificate target for a compliance period.
(2) An election by a scheme participant to surrender a certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, or to carry forward a shortfall, must be made to the Scheme Regulator in accordance with this Part.
(3) An election has no effect unless it is accepted by the Scheme Regulator.
(4) If a scheme participant surrenders less than the number of certificates in its individual certificate target for a compliance period, the scheme participant has a
"shortfall" for the compliance period, consisting of the number of certificates the scheme participant failed to surrender.

162 Penalties for shortfalls

(1) A scheme participant who has a shortfall for a compliance period must pay a penalty for the compliance period (a
"shortfall penalty" ).
(2) The amount of the shortfall penalty is the amount, in dollars, calculated by multiplying the shortfall by the scheme penalty rate.
(3) The amount must be rounded down to the nearest whole number of dollars.
(4) Regulations may be made in relation to the assessment of the amount of a shortfall penalty payable by a scheme participant, including self-assessment or assessment by the Scheme Regulator.

163 Penalty rates

(1) The
"scheme penalty rate" for a compliance period is the rate prescribed by the regulations.
(2) A regulation to prescribe or amend an existing prescribed scheme penalty rate for a compliance period must be made at least 12 months before the beginning of the compliance period.
(3) A regulation to amend a prescribed scheme penalty rate for a compliance period may be made only if the Minister is satisfied that the change to the prescribed scheme penalty rate is appropriate--
(a) for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the renewable fuel scheme, or
(b) for the purposes of implementing a national scheme with similar objectives to the renewable fuel scheme, or
(c) because of an over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d) because of significant changes to the scheme rules relating to the creation of certificates, or
(e) because of significant changes to the policy or regulatory framework, or the market conditions, in which the renewable fuel scheme operates.
(4) Subclauses (2) and (3) do not apply to a regulation that provides for the adjustment of scheme penalty rates for movements in the consumer price index.

164 Payment of shortfall penalties

(1) A shortfall penalty payable by a scheme participant is, for a compliance period, payable--
(a) within 12 months of the end of the compliance period, or
(b) on a later day determined by the Scheme Regulator for the scheme participant.
(2) A shortfall penalty is payable to the Scheme Regulator for payment into the Climate Change Fund under the Energy and Utilities Administration Act 1987 .
(3) A shortfall penalty payable by a scheme participant may be recovered in a court of competent jurisdiction as a debt due to the Crown.

165 Shortfalls may be carried forward

(1) A scheme participant may elect to carry forward a shortfall, or part of a shortfall, for a compliance period to the next compliance period in accordance with this clause.
(2) If a scheme participant elects to carry forward a shortfall, or part of a shortfall, the amount carried forward is not subject to a shortfall penalty for the compliance period to which the shortfall relates.
(3) The maximum amount of a shortfall that may be carried forward to the 2025 compliance period by a scheme participant is--
(a) 20% of the scheme participant's individual certificate target for the 2024 compliance period, or
(b) another amount prescribed by the regulations.
(4) The maximum amount of a shortfall that may be carried forward to another compliance period by a scheme participant is--
(a) 10% of the scheme participant's individual certificate target in the previous compliance period, or
(b) another amount prescribed by the regulations.
(5) A shortfall, or part of a shortfall, may be carried forward to the next compliance period only.
(6) A shortfall, or part of a shortfall, for the 2044 compliance period cannot be carried forward.
(7) A scheme participant who elects to carry forward a shortfall, or part of a shortfall, to the next compliance period is not prevented from electing to carry forward a shortfall, or part of a shortfall, for that next compliance period to the following compliance period.
(8) For the purposes of this Part, a shortfall, or part of a shortfall, for a compliance period that is carried forward to the next period is a
"carried forward shortfall" .

166 Carried forward shortfalls must be remedied

(1) A scheme participant who has a carried forward shortfall in a compliance period must remedy the carried forward shortfall in the compliance period to which the shortfall is carried forward.
(2) A scheme participant remedies a carried forward shortfall if the participant surrenders the number of certificates required for the carried forward shortfall.
(3) A scheme participant fails to remedy a carried forward shortfall if the participant does not surrender the number of certificates required for the carried forward shortfall.
(4) If a scheme participant fails to remedy a carried forward shortfall, the scheme participant must pay a penalty for the amount by which the carried forward shortfall exceeds the certificates surrendered by the scheme participant for the compliance period (the
"non-remedied amount" ).
(5) The penalty must be calculated as if the non-remedied amount were a shortfall for the compliance period to which the shortfall is carried forward.
(6) The penalty is payable in the same way as, and is taken to be, a shortfall penalty.
(7) To avoid doubt, a penalty payable by a scheme participant for a failure to remedy a carried forward shortfall in a compliance period is additional to a penalty payable by the scheme participant for a shortfall in the compliance period.

Division 5 - Assessment of compliance of scheme participants

167 Annual statements

(1) A scheme participant must lodge with the Scheme Regulator a statement (an
"annual statement" ) each year on or before--
(a) 1 March, or
(b) a later day specified by the Scheme Regulator for the scheme participant.
(2) An annual statement must contain the following--
(a) the scheme participant's individual certificate target for the previous compliance period,
(b) the amount of any shortfall penalty payable by the scheme participant for the previous compliance period, including any shortfall penalty for a carried forward shortfall,
(c) other matters required by the Scheme Regulator.
(3) If the scheme participant seeks to elect to surrender one or more certificates for the purposes of meeting its individual certificate target for the compliance period to which the annual statement relates, the election must--
(a) accompany the annual statement, and
(b) contain details of the certificates proposed to be surrendered.
(4) If a scheme participant seeks to elect to carry forward a shortfall, or part of a shortfall, for the compliance period to which the annual statement relates, the election must accompany the annual statement.
(5) An annual statement, and any election that accompanies the statement, must be in a form approved by the Scheme Regulator.
(6) A scheme participant who fails to lodge an annual statement in accordance with this clause is guilty of an offence.
: Maximum penalty (subclause (6))--
(a) for a corporation--250 penalty units, or
(b) for an individual--100 penalty units.
(7) Regulations may be made in relation to the following--
(a) assessments by the Scheme Regulator of the matters referred to in subclause (2)(a) and (b), if a scheme participant does not lodge an annual statement as required under this clause,
(b) the amendment of assessments of the matters referred to in subclause (2)(a) and (b), at the request of a scheme participant or on the Scheme Regulator's own motion.

168 Restrictions on surrender of certificates

(1) A certificate cannot be surrendered by a scheme participant for the purposes of meeting its individual certificate target or remedying a carried forward shortfall unless--
(a) the certificate--
(i) is registered as in force in the register of certificates, or
(ii) was in force during the compliance period for which the certificate is surrendered, and
(b) the participant is recorded in the register of certificates as the owner of the certificate, and
(c) for a certificate that relates to an activity that occurred in a jurisdiction for which there is an approved corresponding scheme--the Minister has, by the order approving the corresponding scheme under clause 171, or a subsequent order published in the Gazette, approved the surrender of certificates of that kind by a scheme participant for those purposes.
(2) The Scheme Regulator may, by written notice to a scheme participant, refuse to accept an election to surrender a certificate if, in the opinion of the Scheme Regulator--
(a) the certificate cannot be surrendered under this clause, or
(b) the certificate is surplus to the number required to be surrendered for the purposes of meeting the scheme participant's individual certificate target or remedying a carried forward shortfall.
(3) If the Scheme Regulator accepts the surrender of a certificate, and the Scheme Regulator is not the Scheme Administrator, the Scheme Regulator must give the Scheme Administrator written notice of the decision, including details of the certificate surrendered.

169 Validity of assessment

The validity of an assessment of the amount of a shortfall penalty payable by a scheme participant is not affected by a failure to comply with a provision of this Act, the regulations or the scheme rules.

Division 6 - Certificates

170 Creation of certificates

(1) A certificate may be created by an accredited certificate provider, in accordance with the scheme rules, in relation to an activity that produces renewable fuel.
(2) Subject to the scheme rules, one certificate may be created for an activity that produces 1 gigajoule of renewable fuel.
(3) The number of certificates created for an activity must be calculated in accordance with the scheme rules.
(4) A certificate may be created in relation to an activity no later than 6 months after the end of the compliance period in which the activity produces the renewable fuel.
(5) The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that produces renewable fuel.
(6) In particular, the scheme rules may--
(a) provide for activities that produce renewable fuel before the beginning of the 2024 compliance period, and
(b) specify the date before or after which an activity must have commenced for a certificate to be created in relation to the activity.
(7) The regulations or scheme rules may--
(a) specify when an activity is taken to have produced renewable fuel, and
(b) provide that an activity is taken to have occurred on the date on which the activity is first commenced.
(8) Regulations may be made in relation to--
(a) the revocation of the cancellation of certificates in connection with an amendment to a scheme participant's individual liable use or annual statement, and
(b) the revival of certificates.

171 Creation of certificates for activities outside NSW

(1) The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that produces renewable fuel in another jurisdiction, if an approved corresponding scheme is in operation in the jurisdiction.
(2) The Minister may, by order published in the Gazette, approve a corresponding scheme for the purposes of this clause only if the Minister is satisfied that--
(a) the corresponding scheme is intended to promote activities that produce renewable fuel, and
(b) the objectives of the corresponding scheme are consistent with the objectives of the renewable fuel scheme established by this Part, and
(c) the monitoring and enforcement of compliance with the corresponding scheme to be approved is no less stringent than the monitoring and enforcement of compliance with the renewable fuel scheme established by this Part.

172 Improper creation of certificates

(1) A person must not create or purport to create a certificate in contravention of--
(a) this Part or the regulations, or
(b) the scheme rules, or
(c) a condition of accreditation imposed by or under this Act.
: Maximum penalty (subclause (1))--2,000 penalty units.
(2) To avoid doubt, a person may be found guilty of an offence against this clause whether or not the certificate is registered in the register of certificates.

Division 7 - Accreditation of certificate providers

173 Certificates may be created by accredited certificate providers only

(1) A certificate may be created by an accredited certificate provider only.
(2) A person who is an accredited certificate provider may create a certificate in accordance with this Part, the regulations, the scheme rules and the conditions, if any, of the person's accreditation as a certificate provider.
(3) A person who is an accredited certificate provider may create a certificate only for activities in relation to which the person has been accredited as a certificate provider.
(4) Regulations may be made in relation to--
(a) the records that must be kept by accredited certificate providers, and
(b) the information required to be provided to the Scheme Administrator in connection with the creation of certificates.

174 Eligibility for accreditation

(1) The regulations and scheme rules may make provision about the eligibility of a person for accreditation as a certificate provider.
(2) Without limiting subclause (1), the regulations may provide that the following persons are not eligible for accreditation as a certificate provider--
(a) a person who is engaged in an industry, or carries out an activity, that benefits from a full exemption from the renewable fuel scheme,
(b) a related body corporate of a person specified in paragraph (a).

175 Application for accreditation

(1) A person who is eligible for accreditation as a certificate provider in relation to an activity may apply to the Scheme Administrator for accreditation.
(2) The Scheme Administrator must determine an application for accreditation as a certificate provider by--
(a) accrediting the applicant as a certificate provider in relation to specified activities, or
(b) refusing the application.
(3) The Scheme Administrator may refuse an application for accreditation as a certificate provider on any grounds specified in the regulations.
(4) The Scheme Administrator may charge a fee for the investigation and determination of an application, in addition to an application fee required to be paid under the regulations.
(5) The fee for the investigation and determination of an application must be determined by the Scheme Administrator on a cost recovery basis.

176 Duration of accreditation

(1) Accreditation of a person as a certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2) The Scheme Administrator may suspend or cancel the accreditation of a person on any grounds specified in the regulations.
(3) The suspension or cancellation of the accreditation of a person is subject to any conditions imposed by the Scheme Administrator.
(4) The conditions may include, but are not limited to, a condition to which the accreditation was subject immediately before it was suspended or cancelled.
(5) The regulations may provide for the variation or revocation of a condition imposed by the Scheme Administrator on the suspension or cancellation of accreditation as a certificate provider.

177 Conditions of accreditation

(1) Accreditation as a certificate provider is subject to the following conditions--
(a) a condition imposed from time to time by the regulations,
(b) a condition imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2) Without limiting the types of conditions that may be imposed, the following are examples of the types of conditions that may be imposed on the accreditation of a person as a certificate provider--
(a) a condition that requires the person not to create a certificate in relation to the production of renewable fuel if--
(i) a certificate has already been created in relation to the same production of renewable fuel, or
(ii) the production of the renewable fuel has already been used for the purposes of compliance with a scheme or arrangement with similar objectives to the renewable fuel scheme,
(b) a condition that requires the person to provide financial assurances to secure or guarantee the person's compliance with this Part,
(c) a condition that requires the person to take out and maintain a policy of insurance in connection with the person's functions as an accredited certificate provider,
(d) a condition that requires the person to provide information, assistance and access to the Scheme Administrator, or persons appointed by the Scheme Administrator, for the purposes of monitoring and auditing compliance by the person with this Part.
(3) A person must not contravene a condition of the person's accreditation as a certificate provider.
: Maximum penalty (subclause (3))--2,000 penalty units.
(4) Subclause (3) extends to a condition to which the suspension or cancellation of the accreditation of a person is subject under this Part.

178 Amendment of accreditation

(1) An accredited certificate provider may apply to the Scheme Administrator to amend the provider's accreditation by--
(a) varying the activities for which the provider is accredited, or
(b) varying or revoking a condition of the provider's accreditation imposed by the Scheme Administrator.
(2) Subclause (1)(b) does not apply to a condition of an accredited certificate provider that is imposed by this Act or the regulations.
(3) The Scheme Administrator must determine an application to amend a provider's accreditation by--
(a) granting the application, or
(b) refusing the application.
(4) The regulations may make provision for the amendment of a provider's accreditation, including by requiring an application fee to be paid to the Scheme Administrator.
(5) The Scheme Administrator may refuse an application to amend a provider's accreditation on grounds specified in the regulations.
(6) In addition to an application fee, the Scheme Administrator may recover from the accredited certificate provider the costs reasonably incurred by the Scheme Administrator in investigating and determining the application.

179 Transfer of accreditation

(1) Accreditation as a certificate provider is not transferable, except as otherwise provided by this clause.
(2) A person who is accredited as a certificate provider may, with the approval of the Scheme Administrator, transfer the accreditation to a related body corporate of the person.
(3) The Scheme Administrator may approve the transfer of accreditation only if satisfied that the person to whom the accreditation is proposed to be transferred--
(a) is or will be eligible for accreditation, and
(b) will fulfil the obligations that the accredited certificate provider is required to fulfil in relation to the activity.
(4) Regulations may be made in relation to the transfer of accreditation, including to require a fee to be paid to the Scheme Administrator for an application for approval of a transfer of accreditation.

180 Scheme Administrator may require surrender of certificates

(1) The Scheme Administrator may, by written order to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, the number of certificates specified in the order.
(2) An order may be made against a person only if the Scheme Administrator is satisfied, on the balance of probabilities, that the person is guilty of--
(a) an offence under clause 172 involving the improper creation of certificates, or
(b) an offence under clause 177(3) of contravening a condition of the person's accreditation as a certificate provider.
(3) The number of certificates required to be surrendered by an order is--
(a) for an order made under subclause (2)(a)--the number of certificates that is no more than the number of certificates that, in the opinion of the Scheme Administrator, were improperly created, and
(b) for an order made under subclause (2)(b)--the number determined by the Scheme Administrator in accordance with the regulations.
(4) A person must not fail to comply with an order.
: Maximum penalty (subclause (4))--
(a) 1,000 penalty units, and
(b) an additional 1 penalty unit for each certificate the person fails to surrender in accordance with the order.
(5) The value of a certificate surrendered for the purposes of compliance with an order cannot be counted towards meeting a scheme participant's individual certificate target or remedying a carried forward shortfall.
(6) If a person fails to comply with an order, the Scheme Administrator may cancel a certificate in relation to which the person is registered as the owner.
(7) To avoid doubt, it is not an excuse for a failure to comply with an order that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of certificates to comply with the order.
(8) Regulations may be made in relation to the orders made by the Scheme Administrator under this clause.

Division 8 - Registration and duration of certificates

181 Creation of certificate must be registered

(1) An application for registration of the creation of a certificate may be made to the Scheme Administrator by an accredited certificate provider.
(2) A certificate is created when an application for registration of the creation of the certificate is made under subclause (1).
(3) A certificate has no effect until the creation of the certificate is registered by the Scheme Administrator in the register of certificates.
(4) The Scheme Administrator must determine an application for registration of the creation of a certificate by--
(a) granting the application and registering the creation of the certificate in the register of certificates, or
(b) refusing the application.
(5) The Scheme Administrator registers the creation of a certificate by--
(a) creating an entry for the certificate in the register of certificates, and
(b) recording the name of the person who created the certificate as the owner of the certificate.
(6) The Scheme Administrator may refuse an application for registration of the creation of a certificate on any grounds specified in the regulations.
(7) Regulations may be made in relation to applications for registration of certificates, including--
(a) to require an application fee to be paid to the Scheme Administrator, and
(b) to adjust the amount of the fee for movements in the consumer price index.
(8) The Scheme Administrator must publish the adjusted application fees on its website before the beginning of the compliance period to which the application fee applies.

182 Form of certificate

The regulations may provide for the form in which certificates are to be created.

183 Duration of certificate

(1) A certificate remains in force for 3 years from the date on which the certificate is registered by the Scheme Administrator in the register of certificates, unless sooner cancelled.
(2) A certificate may be cancelled by the Scheme Administrator--
(a) if the person registered as the owner of the certificate is a scheme participant who elects to surrender the certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, and the Scheme Regulator accepts the surrender of the certificate, or
(b) if the person registered as the owner of the certificate, by written notice, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate, or
(c) in other circumstances authorised by this Part.
(3) The Scheme Administrator must cancel a certificate that is surrendered by the owner of the certificate if the owner is surrendering the certificate for the purposes of compliance with an order made by the Scheme Administrator requiring the person to surrender a certificate.
(4) The Scheme Administrator cancels a certificate by altering the entry relating to the certificate in the register of certificates to show that the certificate is cancelled.

Division 9 - Transfers and other dealings in certificates

184 Transfer of certificates

(1) A certificate is transferable in accordance with this Division.
(2) A certificate is transferable only if the certificate is registered in the register of certificates.
(3) The transfer of a certificate does not have effect until the transfer is registered by the Scheme Administrator.
(4) An application for registration of a transfer of a certificate must be made to the Scheme Administrator by the parties to the transfer.
(5) The Scheme Administrator must--
(a) grant the application by registering the transfer of the certificate in the register of certificates, or
(b) refuse the application.
(6) The Scheme Administrator registers the transfer of a certificate by altering the entry relating to that certificate in the register of certificates to record the new owner of the certificate.
(7) The Scheme Administrator may refuse an application for registration of a transfer of a certificate on any grounds specified in the regulations.
(8) Regulations may be made in relation to applications for registration of a transfer, including to require an application fee to be paid to the Scheme Administrator.

185 Other dealings with certificates

The regulations may make provision for or with respect to the registration of a mortgage, assignment, transmission or other dealing in a certificate.

186 Holder of certificate may deal with certificate

(1) The person registered as the owner of a certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for a consideration for the dealing.
(2) This clause is subject to any rights appearing in the register of certificates to belong to another person, being rights that are registered in accordance with the regulations.
(3) This clause only protects a person who deals with the person registered as the owner of the certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(4) Despite subclause (3), a person who purchases a certificate in good faith for value does not lose the protection provided by this clause because the person has notice that a person has been found guilty of an offence against this Part in respect of the creation of a certificate.

187 Scheme Administrator not concerned as to legal effect of transaction

(1) The Scheme Administrator is not concerned with the effect in law of a transaction registered under this Part or the regulations.
(2) The registration of a transaction does not give to the transaction an effect that it would not have if this Part had not been enacted.

Division 10 - Administration of renewable fuel scheme

188 Scheme Regulator

(1) The Minister may, by written order, appoint a person or body as the Scheme Regulator.
(2) The functions of the Scheme Regulator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Regulator or, in the absence of an appointment, the Tribunal.
(3) Regulations may be made in relation to the appointment of a Scheme Regulator by the Minister.

189 Functions of Scheme Regulator

(1) The Scheme Regulator has the following functions--
(a) to assess and determine, in accordance with this Part, the regulations and the scheme rules, whether scheme participants have complied with individual certificate targets,
(b) if appropriate, to assess and determine, in accordance with this Part, the regulations and the scheme rules, any shortfall penalty payable by a scheme participant,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d) to monitor, and report to the Minister on, the extent to which scheme participants comply, or fail to comply, with obligations imposed by or under this Part,
(e) to provide advice to the Minister on request about the extent of an over supply of certificates that may be surrendered,
(f) other functions conferred or imposed on it by or under this Act.
(2) If the Scheme Regulator is appointed by the Minister, the Scheme Regulator also has any other functions conferred or imposed on it by the Minister under the terms of its appointment as Scheme Regulator.
(3) For the purposes of enabling the Scheme Regulator to exercise its functions, the Minister must provide the Scheme Regulator with information in the Minister's possession in relation to the compliance by scheme participants with this Part, if requested by the Scheme Regulator.
(4) The Scheme Regulator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Regulator, the Independent Pricing and Regulatory Tribunal Act 1992 , section 10 does not apply to the Tribunal's functions as Scheme Regulator.

190 Scheme Administrator

(1) The Minister may, by written order, appoint a person or body as the Scheme Administrator.
(2) The functions of the Scheme Administrator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Administrator or, in the absence of an appointment, the Tribunal.
(3) In determining whether to appoint a person or body as Scheme Administrator, the Minister must consider the following matters--
(a) the costs of the appointment,
(b) the efficiency of administrative arrangements relating to the renewable fuel scheme,
(c) ability to meet objectives of the renewable fuel scheme,
(d) proposed governance arrangements,
(e) arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator's functions.
(4) The Minister may limit the appointment of a person or body as Scheme Administrator to particular specified functions of the Scheme Administrator.
(5) Regulations may be made in relation to the appointment of a Scheme Administrator by the Minister.

191 Functions of Scheme Administrator

(1) The Scheme Administrator has the following functions--
(a) the functions conferred by this Part relating to the renewable fuel scheme,
(b) to monitor, and to report to the Minister on, the extent to which accredited certificate providers comply with this Part, the regulations, the scheme rules and conditions of accreditation,
(c) to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d) to provide advice to the Minister on request about the extent of an over supply of certificates that may be surrendered,
(e) other functions conferred or imposed on it by or under this Act or another Act or law.
(2) If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has the other functions conferred or imposed on it by the Minister under the terms of the appointment.
(3) For the purposes of enabling the Scheme Administrator to exercise its functions, the Minister must provide the Scheme Administrator with information in the Minister's possession that relates to compliance by accredited certificate providers with this Part, if requested by the Scheme Administrator.
(4) The Scheme Administrator may delegate the exercise of its functions under this Part, other than this power of delegation, to--
(a) with the approval of the Minister--another person or body, and
(b) a person who is a member of a class of persons approved by the Minister.
(5) If the Tribunal is the Scheme Administrator, the Independent Pricing and Regulatory Tribunal Act 1992 , section 10 does not apply to its functions as Scheme Administrator.

192 Conduct of audits

(1) Regulations may be made in relation to the conduct of audits by the Scheme Regulator, the Scheme Administrator or other persons.
(2) Without limiting subclause (1), the regulations may provide for the following matters--
(a) matters that may be the subject of audits,
(b) persons who may conduct audits,
(c) matters relating to decisions about who will conduct audits, including, for example, providing for the Scheme Regulator or Scheme Administrator to make decisions about whether to conduct audits personally or require audits to be conducted by an auditor engaged by the Scheme Regulator, Scheme Administrator or scheme participant,
(d) functions that may be exercised by persons conducting audits,
(e) fees payable for audits, including--
(i) who determines whether fees are payable for particular types of audits or audits in particular circumstances, and
(ii) how and by whom the amount of the fees payable for audits are determined, and
(iii) the maximum fees payable for audits generally or particular types of audits, and
(iv) to whom the fees for audits are payable,
(f) offences relating to obstructing or hindering, or refusing or failing to comply with requirements made by, persons who conduct audits.
(2A) If the regulations provide that a fee, as determined by or under the regulations, is payable for the carrying out of particular types of audit or audits in particular circumstances, each scheme participant and accredited certificate provider is liable to pay the fee for the carrying out of an audit of that type or in those circumstances in relation to the participant or provider.
(3) An accreditation may include terms and conditions relating to the determination of the cost of carrying out audit functions by the Scheme Regulator or Scheme Administrator.

193 Provision of information, documents and evidence

(1) For the purposes of exercising its functions under this Part, the Scheme Regulator or Scheme Administrator may, by written notice served on a relevant person, require the person to do one or more of the following--
(a) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b) to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a document or type of document specified in the notice.
(2) If the Tribunal is the Scheme Regulator or Scheme Administrator, the Tribunal may, in the notice, in addition to or instead of requiring a relevant person to do something specified in subclause (1), require the relevant person to attend a meeting of the Tribunal to give evidence.
(3) A person must not, without reasonable excuse--
(a) refuse or fail to comply with a notice served under this clause, or
(b) refuse or fail to answer a question the person is required to answer at a meeting of the Tribunal the person is required to attend under this clause.
: Maximum penalty (subclause (3))--
(a) for a corporation--250 penalty units, or
(b) for an individual--100 penalty units.
(4) An individual has a reasonable excuse for the purposes of subclause (3) if complying with the notice or answering the question might--
(a) tend to incriminate the individual, or
(b) make the individual liable to a forfeiture or penalty.
(5) If documents are given to the Scheme Regulator or Scheme Administrator under this clause, the Scheme Regulator or Scheme Administrator--
(a) may take possession of, and make copies of or take extracts from, the documents, and
(b) may keep possession of the documents for the period necessary for those purposes, and
(c) during that period must permit the documents to be inspected at all reasonable times by persons who would be entitled to inspect them if the documents were not in the possession of the Scheme Regulator or Scheme Administrator.
(6) This clause does not affect the law relating to client legal privilege or other legal professional privilege.
(7) In this clause--

"relevant person" means--
(a) an officer of a scheme participant or former scheme participant, or
(b) an officer of an accredited certificate provider or former accredited certificate provider, or
(c) another person whom the Scheme Regulator or Scheme Administrator, as the case requires, reasonably believes is able to provide information relevant to its functions as Scheme Regulator or Scheme Administrator.

194 Obstruction of Scheme Regulator or Scheme Administrator

A person must not hinder, obstruct or interfere with the following in the exercise of functions under this Part--

(a) the Scheme Regulator,
(b) the Scheme Administrator,
(c) a member or officer of the Scheme Regulator or Scheme Administrator.
: Maximum penalty--
(a) for a corporation--250 penalty units, or
(b) for an individual--100 penalty units.

195 False or misleading information

A person must not, for the purposes of this Part--

(a) give to the Scheme Regulator or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular, unless the person informs the Scheme Regulator or Scheme Administrator, or
(b) at a meeting of the Tribunal acting as Scheme Regulator or Scheme Administrator, give evidence that the person knows to be false or misleading in a material particular.
: Maximum penalty--100 penalty units.

196 Confidential information

(1) If a person provides information to the Scheme Regulator or Scheme Administrator in connection with the functions of the Scheme Regulator or Scheme Administrator under this Part on the understanding that the information is confidential and will not be divulged, the Scheme Regulator or Scheme Administrator must ensure that the information is not divulged by the Scheme Regulator or the Scheme Administrator, as the case requires, to another person.
(2) Despite subclause (1), the Scheme Regulator or the Scheme Administrator may divulge the information to another person--
(a) with the consent of the person who provided the information, or
(b) for information provided to the Tribunal while acting as Scheme Regulator or Scheme Administrator, to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c) who is a member or officer of the Scheme Regulator or Scheme Administrator, as the case requires, or
(d) as required by another law.
(3) The Scheme Regulator or Scheme Administrator may give a direction prohibiting or restricting the divulging of information provided to the Scheme Regulator or Scheme Administrator under this Part if satisfied that the direction is desirable because of the confidential nature of the information.
(4) A person must not contravene a direction given under subclause (3).
: Maximum penalty (subclause (4))--100 penalty units.
(5) A reference in this clause to information includes information--
(a) given at a meeting of the Scheme Regulator or Scheme Administrator, and
(b) contained in a document given to the Scheme Regulator or Scheme Administrator.

197 Identity of persons providing information to be confidential

(1) This clause applies if a person (an
"information provider" ) provides information to the Scheme Regulator or Scheme Administrator about another person's non-compliance with an obligation under this Part.
(2) The Scheme Regulator or Scheme Administrator must ensure that the identity of an information provider, and anything that may reasonably identify the information provider, is not disclosed to any person except--
(a) with the consent of the information provider, or
(b) if ordered by a court or tribunal, or
(c) if required by another law.
(3) If the identity of an information provider cannot be disclosed under subclause (2), the information provided by the information provider cannot be used as evidence in proceedings against another person for an offence under this Act.
(4) Subclause (3) does not prevent the Scheme Regulator or Scheme Administrator using information, including in proceedings for an offence under this Act, obtained as a result of the information received from an information provider.

198 Cabinet documents and proceedings

(1) This Part does not enable the Scheme Regulator or Scheme Administrator--
(a) to require a person to give a statement of information or answer a question that relates to confidential proceedings of Cabinet, or
(b) to require a person to produce Cabinet information, or
(c) to inspect Cabinet information.
(2) For the purposes of this clause, a certificate of the Secretary of the Department of Premier and Cabinet, or the General Counsel of the Department, that information or a question relates to confidential proceedings of Cabinet or that information is Cabinet information is conclusive of the matter certified.
(3) In this clause--

"Cabinet" includes a committee of Cabinet or a subcommittee of a committee of Cabinet.

"Cabinet information" means information that is Cabinet information under the Government Information (Public Access) Act 2009 .

Division 11 - Civil penalties

199 Definitions

In this Division--

"civil penalty order" --see clause 200.

"civil penalty provision" means a provision prescribed by the regulations as a civil penalty provision.

"scheme entity" means--

(a) the Scheme Administrator, or
(b) the Scheme Regulator.

200 Monetary penalty

(1) If a person has contravened a civil penalty provision, a scheme entity may, by written order (a
"civil penalty order" ), require the person to pay a monetary penalty of no more than the penalty notice amount for the provision.
(2) If a corporation is liable to a monetary penalty under this clause, each of the following persons may be ordered to pay a monetary penalty if the person knowingly authorised or permitted the contravention--
(a) a director of the corporation,
(b) a person concerned in the management of the corporation.

201 Process

(1) A scheme entity may not issue a civil penalty order to a person unless--
(a) the scheme entity has given the person notice of the proposed order and the reasons for it, and
(b) the person has been given a reasonable opportunity to make a submission about the proposed order, and
(c) the scheme entity has considered a submission made by the person, and
(d) the scheme entity is satisfied on the balance of probabilities that the person--
(i) contravened the relevant civil penalty provision, or
(ii) knowingly authorised or permitted the contravention.
(2) A scheme entity must provide written reasons for a decision to issue a civil penalty order to the person.
(3) A civil penalty order must be issued within 3 years after the date on which evidence of the alleged offence first came to the attention of the scheme entity.
(4) A civil penalty order must include the date, not less than 28 days after the date the order is issued, by which the monetary penalty imposed by the order must be paid.

202 Double jeopardy

(1) A scheme entity may not issue a civil penalty order to a person if--
(a) another civil penalty order has been issued to a person for the contravention, or
(b) the person has been found guilty, whether a conviction is recorded or not, of an offence under this Act or the regulations for the contravention.
(2) If criminal proceedings are taken against a person for a contravention after the person pays the monetary penalty imposed by a civil penalty order, a court that finds the person guilty of an offence must discount any penalty imposed by the civil penalty amount paid by the person.

203 Payment not an admission of guilt or liability

The payment of a monetary penalty under this Division cannot be taken to be an admission of--

(a) a breach of a civil penalty provision, or
(b) liability for civil or criminal proceedings arising from substantially the same conduct.

204 Withdrawal of order

(1) A scheme entity may withdraw a civil penalty order by written notice to the person the subject of the order.
(2) A civil penalty order may be withdrawn under this clause at any time before it is complied with.
(3) A civil penalty order issued to a person is automatically withdrawn on the commencement against the person of criminal proceedings for the contravention.
(4) A civil penalty order withdrawn under this clause may, subject to clause 202, be reissued.

205 Internal review of order

(1) A person who is the subject of a civil penalty order may apply to the scheme entity that issued the order for a review of--
(a) the decision to issue the order, or
(b) the monetary penalty imposed by the order.
(2) An application must be made within 28 days of the issuing of the order.
(3) A person issued a civil penalty order is not required to pay the monetary penalty imposed while an application is being considered.
(4) The scheme entity's decision on the application must be given to the applicant--
(a) by written notice that includes the reasons for the decision, and
(b) within 90 days of the making of the application.
(5) If the written notice of the scheme entity's decision is not given to the applicant within 90 days of the making of the application, the application is taken to have been refused.
(6) If the scheme entity affirms the decision to issue the civil penalty order, including with a different monetary penalty, the written notice of the decision must include the date, not less than 28 days after the date of the notice, by which the monetary penalty must be paid.

206 External review of order

(1) A person who is not satisfied with the result of an internal review under clause 205 may make an application to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 for administrative review of the internal review decision.
(2) The Administrative Decisions Review Act 1997 , section 53 does not apply to a decision under clause 205 that may be reviewed by the Tribunal.

207 Recovery of monetary penalty

The monetary penalty imposed by a civil penalty order may be recovered by a scheme entity in a court of competent jurisdiction as a debt owing to the Crown.

Division 12 - Registers

208 Keeping of registers

(1) The Scheme Administrator must establish and keep the following registers for the purposes of this Part--
(a) a register of accredited certificate providers,
(b) a register of certificates,
(c) a register of persons who have applied for and been refused accreditation as an accredited certificate provider.
(2) A register must be kept in the form the Scheme Administrator considers appropriate.
(3) A register may be kept wholly or partly by electronic means.
(4) A register must be published on the Scheme Administrator's website.
(5) The Scheme Administrator may correct an error in, or omission from, a register.

209 Register of accredited certificate providers

The register of accredited certificate providers must contain--

(a) the name of each accredited certificate provider, and
(b) other information in relation to each accredited certificate provider required to be included in the register by this Part or the regulations.

210 Register of certificates

The register of certificates must contain the following information in relation to each certificate--

(a) the name of the person who created the certificate,
(b) the name of the current registered owner, and any previous registered owners, of the certificate,
(c) if there is an approved corresponding scheme in another jurisdiction and the activity to which the certificate relates occurred in the other jurisdiction--the jurisdiction in which the activity occurred,
(d) the period for which the certificate is in force,
(e) the compliance period during which the activity, in relation to which the certificate is created, produced the renewable fuel,
(f) other information required to be included in the register by this Part or the regulations.

211 Register of persons refused accreditation as accredited certificate providers

The register of persons who have applied for and been refused accreditation as an accredited certificate provider must contain the following information about each person--

(a) the name of the person and, if the person is a corporation, the corporation's ACN,
(b) the reasons the person's application was refused,
(c) other information required to be included in the register by this Part or the regulations.

212 Evidentiary provisions

(1) A register is evidence of the particulars registered in it.
(2) If a register is wholly or partly kept by electronic means, a written document issued by the Scheme Administrator containing particulars included in the register, or the part of the register kept by electronic means, is admissible in legal proceedings as evidence of the particulars.

213 Information sharing

(1) The Scheme Administrator may enter into an arrangement (an
"information sharing arrangement" ) with a relevant agency for the purposes of sharing or exchanging information about the following held by the Scheme Administrator or the relevant agency--
(a) offences and alleged offences under this Part, including investigations,
(b) the administration of the renewable fuel scheme,
(c) other matters of a type prescribed by the regulations.
(2) Under an information sharing arrangement, the Scheme Administrator and the relevant agency are, despite any other Act or law, authorised--
(a) to request and receive information held by the other party to the arrangement, and
(b) to disclose information to the other party.
(3) In this clause--

"relevant agency" means the following--
(a) a government sector agency within the meaning of the Government Sector Employment Act 2013 ,
(b) another person or body prescribed by the regulations.

Division 13 - Compliance officers and penalty notices

214 Appointment of compliance officers

(1) The Scheme Administrator may, in accordance with any guidelines in force under this clause, appoint compliance officers for the purposes of this Part.
(2) The Minister may, by written order, issue guidelines for the appointment of compliance officers.
(3) An order must be published on the Scheme Administrator's website and takes effect on--
(a) the day on which it is published, or
(b) a later day specified in the order.

215 Powers of compliance officers

(1) The powers of a compliance officer may be exercised for the purposes of investigating an accredited certificate provider's compliance with the following--
(a) this Part,
(b) the regulations,
(c) the scheme rules,
(d) a condition of the provider's accreditation.
(2) A compliance officer may at a reasonable time enter--
(a) premises that are used in connection with an activity for which a certificate has been created, and
(b) the principal place of business of an accredited certificate provider.
(3) A compliance officer may not enter a part of premises used only for residential purposes without the permission of the occupier of the premises.
(4) A compliance officer may, at premises lawfully entered, do anything that, in the opinion of the compliance officer, is necessary to be done for the purposes of the investigation, including the following--
(a) examine and test plant or equipment on the premises,
(b) take photographs, films, audio, video and other recordings,
(c) take copies of records or documents on the premises,
(d) seize anything that the compliance officer believes on reasonable grounds is connected with an offence under this Part.
(5) A person must not hinder or obstruct a compliance officer in the exercise of a power.
: Maximum penalty (subclause (5))--
(a) for a corporation--200 penalty units, or
(b) for an individual--50 penalty units.
(6) A person is not guilty of an offence under subclause (5) unless it is established that the compliance officer identified themselves as a compliance officer.

216 Penalty notices

(1) A compliance officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence in this Part, or a regulation under this Part, that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this clause.
Note--: The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this clause is the amount prescribed for the alleged offence by the regulations, which must not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(5) This clause does not limit the operation of another provision of, or made under, this or another Act relating to proceedings that may be taken for offences.

Division 14 - Miscellaneous

217 Limit on recovery of scheme compliance costs from small business gas customers

(1) A scheme participant must not, during a compliance period, charge a small business customer a fee or charge, however described, exceeding the relevant cap for the compliance period if the purpose of the fee or charge is to recover the costs to the scheme participant of complying with the renewable fuel scheme.
: Maximum penalty (subclause (1))--
(a) for a corporation--250 penalty units, or
(b) for an individual--50 penalty units.
(2) For the purposes of this clause, the
"relevant cap" is--
(a) for the 2024 compliance period--$300, and
(b) in each subsequent compliance period--the amount calculated as follows--
graphic
where--

"CPIyear-1" is the CPI number for the September quarter of the immediately preceding compliance period.

"CPIyear-2" is the CPI number for the September quarter of the year before the immediately preceding compliance period.
(3) The relevant cap is to be rounded up to the nearest cent.
(4) If the amount of the relevant cap calculated for a compliance period is less than the amount that applied for the previous compliance period, the amount for the previous compliance period applies instead.
(5) The relevant cap for each compliance period, other than the relevant cap for 2024, must be published on the Scheme Regulator's website before the beginning of the compliance period.
(6) In this clause--

"small business customer" , in relation to a scheme participant, means--
(a) a person of a class specified by the Scheme Regulator for the purposes of this clause, or
(b) if a class is not specified under paragraph (a), a person who--
(i) purchases gas from the scheme participant, and
(ii) is a small customer under the National Energy Retail Law (NSW) , section 5(2)(b).

218 Scheme rules

(1) The Minister may approve rules that make provision about--
(a) matters for which a scheme rule may be made under this Part, and
(b) other matters prescribed by the regulations.
(2) A rule may make provision about a matter by applying, adopting or incorporating the provisions of an Act or statutory rule or other publication as follows--
(a) with or without modification,
(b) as in force on a particular day or from time to time.
(3) A rule may--
(a) apply generally or be limited in its application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind, or
(c) authorise a matter or thing to be from time to time agreed, determined, applied or regulated by a specified person or body.
(4) The Minister may from time to time approve a rule that amends a rule or revokes a rule.
(5) Notice of a rule approved by the Minister must be published in the Gazette.
(6) A rule takes effect on--
(a) the day on which the written notice is published in the Gazette, or
(b) the later day specified in the rule.
(7) The Minister must make copies of each rule available to each scheme participant and the public.
(8) A rule must be consistent with this Act and the regulations.
(9) A person who is a scheme participant or an accredited certificate provider must not contravene a provision of a scheme rule.
: Maximum penalty (subclause (9))--
(a) for a corporation--250 penalty units, or
(b) for an individual--100 penalty units.

219 Application of Part to persons who cease to be scheme participants

(1) If a person ceases to be a scheme participant, this Part and the regulations continue to apply to the person in relation to the period during which the person was a scheme participant.
(2) For that purpose, a reference to a scheme participant includes a reference to a former scheme participant.
(3) A former scheme participant continues to be required to lodge an annual statement for the compliance period during which the person ceased to be a scheme participant.
(4) The requirements of this Part in relation to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in relation to the person as if the person were a scheme participant.
(5) The Minister may, by written notice to the former scheme participant, bring forward the date on which the person would otherwise have to--
(a) lodge an annual statement with the Scheme Regulator for the compliance period during which the person ceased to be a scheme participant, and
(b) pay a shortfall penalty for the compliance period during which the person ceased to be a scheme participant.
(6) The notice may specify--
(a) the date (the
"lodgment date" ) by which the former scheme participant must lodge the annual statement, and
(b) the date by which the former scheme participant must pay the shortfall penalty.
(7) The lodgment date must not be earlier than 28 days after the person ceased to be a scheme participant.
(8) The provisions of this Part relating to the lodgment of an annual statement and the payment of a shortfall penalty apply as if a reference to 30 April were a reference to the lodgment date.

220 Administrative reviews by Civil and Administrative Tribunal

(1) A scheme participant or former scheme participant who is aggrieved by the following decisions of the Scheme Regulator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a determination by the Scheme Regulator of whether a scheme participant has complied with the scheme participant's individual certificate target,
(b) a decision to refuse to accept the surrender of a certificate for the purposes of meeting the scheme participant's or former scheme participant's individual certificate target or remedying a carried forward shortfall,
(c) an assessment of the amount of a shortfall penalty payable by the scheme participant or former scheme participant,
(d) other decisions of the Scheme Regulator of a kind prescribed by the regulations.
(2) A person who is or was accredited, or who has applied to be accredited, as a certificate provider and who is aggrieved by the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision--
(a) a decision to refuse accreditation of the person as a certificate provider,
(b) a decision to cancel or suspend the accreditation of the person as a certificate provider,
(c) a decision to refuse registration of the creation of a certificate,
(d) other decisions of the Scheme Administrator of a kind prescribed by the regulations.
(3) A person who has applied for the registration of a transfer of a certificate and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4) A person who is the subject of an order by the Scheme Administrator requiring the person to surrender a certificate to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(5) A person who, under a scheme rule, is approved by the Scheme Administrator to undertake a function and who is aggrieved by a decision of the Scheme Administrator to revoke the person's approval may apply to the Civil and Administrative Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 .

221 Certificate evidence

(1) This clause applies to a certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate--
(a) a person was or was not a scheme participant, or
(b) the individual certificate target for a scheme participant was the amount specified in the certificate, or
(c) the shortfall for a scheme participant for a compliance period, or the carried forward shortfall for a period, was the amount specified in the certificate, or
(d) the shortfall penalty payable by a scheme participant was the amount specified in the certificate.
(2) A certificate is admissible in evidence in proceedings before a court or tribunal and is prima facie evidence of the matters stated in the certificate.

222 Ancillary offences

(1) This clause applies to a person who, for an offence under this Part or the regulations under this Part--
(a) causes or permits another person to commit the offence, or
(b) aids, abets, counsels or procures another person to commit the offence, or
(c) conspires with another person to commit the offence.
(2) A person to whom this clause applies is guilty of the offence and is liable to the same penalty for an offence against the other provision.

223 Personal liability

(1) A protected person is not personally subject to any liability for anything done--
(a) in good faith, and
(b) for the purpose of exercising functions under this Act or another Act.
(2) The liability instead attaches to the Crown.
(3) In this clause--

"done" includes omitted to be done.

"liability" means civil liability and includes action, claim or demand.

"protected person" means--
(a) the Scheme Regulator, or
(b) the Scheme Administrator, or
(c) a member or officer of, or a person acting under the direction of, the Scheme Regulator or Scheme Administrator, or
(d) a compliance officer.

224 Annual report by Scheme Regulator

(1) As soon as practicable after 30 June in each year, the Scheme Regulator must prepare a report on the extent to which scheme participants have complied, or failed to comply, with individual certificate targets during the previous year.
(2) The report must be provided to the Minister on or before--
(a) the date prescribed by the regulations, or
(b) if the regulations do not prescribe a date--31 August in the same year.
(3) Without limiting subclause (1), the report must contain the following--
(a) the name of each scheme participant and the performance of the participant in relation to the participant's individual certificate target during the year to which the report relates,
(b) the total number of certificates surrendered during the year to which the report relates,
(c) the total number of certificates created during the year to which the report relates,
(d) the total number of certificates created in previous years and not surrendered before the beginning of the year to which the report relates,
(e) an assessment of the extent of an over supply of certificates that may be surrendered during the year to which the report relates,
(f) an estimate, prepared by the Scheme Administrator, of the actual amount of renewable fuels produced during the year to which the report relates, having regard to the number of certificates that have been created.
(4) For the purposes of subclause (3), a certificate created under an approved corresponding scheme that is not able to be surrendered by a scheme participant for the purposes of meeting its individual certificate target or remedying a carried forward shortfall is to be disregarded.
(5) The report must also set out--
(a) the functions delegated by the Scheme Regulator or Scheme Administrator, and
(b) the person or body to whom the functions were delegated.
(6) The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(7) For the purposes of enabling the Scheme Regulator to prepare a report, the Scheme Administrator must provide to the Scheme Regulator--
(a) the estimate the Scheme Administrator is required to prepare under subclause (3)(f), and
(b) other information that the Scheme Regulator reasonably requires to complete the report.
(8) The first report under this clause must be prepared for the 2024 compliance period.

225 Reviews of renewable fuel scheme

(1) The Minister must review the operation of the renewable fuel scheme to determine whether--
(a) the policy objectives of the renewable fuel scheme remain valid, and
(b) the terms of this Part remain appropriate for securing the objectives.
(2) A review must be undertaken at least every 5 years after the renewable fuel scheme commences.
(3) A report on the outcome of the review must be tabled in each House of Parliament within 12 months after the end of the period to which the review relates.

225A Waiver or reduction of application fees

The Scheme Administrator may waive payment of, or reduce, an application fee required to be paid under this Part.

226 Waiver, suspension or reduction of obligations in emergencies

(1) The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a scheme participant to meet its individual certificate target or remedy a carried forward shortfall.
(2) The Minister may make an order only if it appears to the Minister that a scheme participant is or will be unable to meet its individual certificate target or remedy the carried forward shortfall because of--
(a) a systems or other failure of the register of certificates, or
(b) another emergency affecting the integrity of the renewable fuel scheme or the register of certificates.
(3) An order may--
(a) be made subject to conditions, and
(b) apply to all scheme participants or to a specified class of participants, and
(c) specify the effect of the waiver or suspension on other rights conferred or obligations imposed under this Part.
(4) An order takes effect on--
(a) the day on which it is published in the Gazette, or
(b) a later day specified in the order.

227 Exchange of information

(1) Despite another provision of this Act, the Scheme Administrator may keep the following information--
(a) information about offences or alleged offences under this Part,
(b) information collected in the administration of this Act.
(2) The Scheme Administrator may give the information kept under this clause to the following--
(a) a person or body undertaking functions, similar to those undertaken by the Scheme Administrator, in another State or Territory or for the Commonwealth,
(b) a government sector agency within the meaning of the Government Sector Employment Act 2013 .

228 Termination of renewable fuel scheme at end of 2044

(1) The renewable fuel scheme terminates at the end of the 2044 compliance period.
(2) This Part continues to have effect with respect to matters arising, including obligations incurred, before the termination of the renewable fuel scheme.
(3) Persons who are scheme participants in the 2044 compliance period continue to be required to lodge an annual statement for the compliance period.
(4) The requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator and Scheme Administrator continue to apply, even though the renewable fuel scheme is terminated.
(5) A reference in this Part to a scheme participant includes, after the renewable fuel scheme is terminated, a reference to a former scheme participant.
(6) On the termination of the renewable fuel scheme, regulations may be made about the effect of the termination on rights conferred or obligations imposed under this Part.
(7) Without limiting subclause (6), the regulations may--
(a) prohibit scheme participants from carrying forward a shortfall, or part of a shortfall, for a compliance period to the following compliance period, and
(b) specify other conditions that must be complied with following the termination.



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