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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Electricity and Gas)
Bill 2016
A BILL FOR
An Act to amend the
Electricity
Act 1996
and the
Gas
Act 1997
.
Contents
Part 2—Amendment of Electricity
Act 1996
4Amendment of section
3—Objects
5Amendment of section
4—Interpretation
6Amendment of section 10—Technical
Regulator's power to require information
7Amendment of section
22—Licences authorising generation of electricity
8Amendment of
section 23—Licences authorising operation of transmission or
distribution network
9Amendment of section 24A—Licences
authorising system control
10Insertion of Part 4 Division
1A
Division 1A—General investigative powers
of electricity officers
44AGeneral
investigative powers of electricity officers
11Amendment of section 48—Entry for
purposes related to infrastructure
12Amendment of heading to Part 5 Division
1
55AAPowers of electricity entity in
relation to vegetation clearance
14Amendment of section 57—Power to enter
for vegetation clearance purposes
16Amendment of section 60—Responsibility
of owner or operator of infrastructure or installation
60BSafety,
reliability, maintenance and technical management plans
18Amendment of section 61—Electrical
installation work
61BDesign of
electrical installations
21Amendment of section 62A—Public warning
statements
22Amendment of section 62B—Immunity from
liability
25Redesignation of section
63B
26Insertion of sections 63BB and
63BC
63BBOffence to act
contrary to assurance
63BCEnforcement
orders in relation to assurances
27Insertion of Part 7 Division A3
Division A3—Enforcement
notices
28Amendment of section 68—Power of
entry
69General
investigative powers of authorised officers
30Amendment of section 70—Disconnection of
electricity supply
31Amendment of section 71—Power to require
disconnection of cathodic protection system
32Amendment of section 72—Power to make
infrastructure, installation or equipment safe
33Amendment of section 73—Power to require
information or documents
34Insertion of Part 7 Division 3
35Amendment of section 75—Review of
decisions by Commission or Technical Regulator
37Amendment of section 80—Power of
exemption
40Amendment of section 92—General
defence
93AImputing conduct
to bodies corporate
42Amendment of section
97—Service
43Amendment of section
98—Regulations
Part 3—Amendment of Gas
Act 1997
45Amendment of section
3—Objects
46Amendment of section 8—Functions of
Technical Regulator
47Amendment of section 10—Technical
Regulator's power to require information
48Amendment of section
26—Licences authorising operation of distribution system
49Amendment of section 37A—Minister's
power to require information or documents
50Insertion of Part 4 Division 1A
Division 1A—General investigative powers
of gas officers
45AGeneral
investigative powers of gas officers
51Amendment of section 48—Power to enter
for purposes related to gas entity's infrastructure
52Amendment of section 55—Responsibility
of owner or operator of infrastructure or installation
55ASafety,
reliability, maintenance and technical management plans
54Amendment of section 56—Certain gas
fitting work
56ADesign of gas
installations
58Amendment of section 57C—Immunity from
liability
61Insertion of sections 61BA and
61BB
61BAOffence to act
contrary to assurance
61BBEnforcement
orders in relation to assurances
62Insertion of Part 6 Division A3
Division A3—Enforcement
notices
63Amendment of section 66—Power of
entry
67General
investigative powers of authorised officers
65Amendment of section 68—Disconnection
of gas supply
66Amendment of section 69—Power to make
infrastructure or installation safe
67Amendment of section 70—Power to
require information or documents
68Insertion of Part 6 Division 3
69Amendment of section 71—Review of
decisions by Commission or Technical Regulator
71Amendment of section 81—Unlawful
interference with distribution system or gas installation
73Amendment of section 88—General
defence
74Amendment of section 89—Offences by
bodies corporate
89AImputing
conduct to bodies corporate
76Amendment of section
94—Service
77Amendment of section
95—Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Electricity and Gas)
Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Electricity
Act 1996
4—Amendment
of section 3—Objects
Section 3(d)—after "installations" insert:
(including such standards relating to the design of electrical
installations)
5—Amendment
of section 4—Interpretation
(1) Section 4(1)—after the definition of bush
fire insert:
bushfire risk area—see subsection (4);
(2) Section 4(1)—after the definition of install
insert:
internal switching manual means an internal manual relating
to switching that—
(a) the holder of a licence authorising the generation of electricity;
or
(b) the holder of a licence authorising the operation of a transmission or
distribution network; or
(c) the holder of a licence authorising system control over a power
system; or
(d) a person exempted from the requirement to hold a licence of a kind
referred to in paragraphs (a) to (c),
is required (under the conditions of the licence or exemption) to prepare
and maintain in accordance with the regulations for the purposes of safety in
connection with switching relevant to the operations of the licence holder or
person;
(3) Section 4(1)—after the definition of network
services insert:
non-bushfire risk area means a part of the State not within
the bushfire risk area;
(4) Section 4—after subsection (3) insert:
(4) For the purposes of this Act, the regulations may designate an area of
the State to be the bushfire risk area.
6—Amendment
of section 10—Technical Regulator's power to require
information
Section 10(3)—delete subsection (3) and
substitute:
(3) Subject to
subsection (4)
, a natural person is not required to give information under this section
if the information would tend to incriminate the person of an offence.
(4) If a natural
person is required to give information under this section relating to the safety
of electricity infrastructure, an electrical installation or electrical
equipment, and the information would tend to incriminate the person of an
offence, the person must nevertheless give the information, but the information
so given will not be admissible in evidence against the person in proceedings
for an offence (other than an offence relating to the making of a false or
misleading statement or declaration).
7—Amendment
of section 22—Licences authorising generation of
electricity
(1) Section 22(1)(c)(i)—after "prepare" insert:
, maintain
(2) Section 22(1)(c)(ii)—delete subparagraph (ii) and
substitute:
(ii) to obtain the approval of the Technical Regulator—
(A) to the plan (prior to the commencement of the operation of the
generating plant to which the plan relates); and
(B) to any revision of the plan; and
(3) Section 22—after subsection (1) insert:
(1a) In addition, it is a condition of a licence authorising the
generation of electricity that the holder of the licence—
(a) prepare and maintain an internal switching manual in accordance with
the regulations; and
(b) comply with any other requirements relating to switching prescribed in
the regulations.
8—Amendment
of section 23—Licences authorising operation of transmission or
distribution network
(1) Section 23(1)(c)(i)—after "prepare" insert:
, maintain
(2) Section 23(1)(c)(ii)—delete subparagraph (ii) and
substitute:
(ii) to obtain the approval of the Technical Regulator—
(A) to the plan (prior to the commencement of the operation of the
transmission or distribution system to which the plan relates); and
(B) to any revision of the plan; and
(3) Section 23—after subsection (1) insert:
(1a) In addition, it is a condition of a licence authorising the operation
of a transmission or distribution network that the holder of the
licence—
(a) prepare and maintain an internal switching manual in accordance with
the regulations; and
(b) comply with any other requirements relating to switching prescribed in
the regulations.
9—Amendment
of section 24A—Licences authorising system
control
Section 24A—after subsection (1) insert:
(1a) In addition, it is a condition of a licence authorising system
control over a power system that the holder of the licence—
(a) prepare and maintain an internal switching manual in accordance with
the regulations; and
(b) comply with any other requirements relating to switching prescribed in
the regulations.
10—Insertion
of Part 4 Division 1A
Part 4—after Division 1 insert:
Division 1A—General investigative powers of
electricity officers
44A—General investigative powers of electricity
officers
An electricity officer may, in the course of exercising powers under this
Part, take photographs, films or audio, video or other recordings as reasonably
required in connection with the exercise of those powers.
11—Amendment
of section 48—Entry for purposes related to
infrastructure
Section 48(2)—delete subsection (2) and
substitute:
(1) Where electricity
infrastructure owned or operated by an electricity entity is situated on
land—
(a) that is in the bushfire risk area; and
(b) that does not belong to the entity; and
(c) that is not public land under section 47,
an electricity officer for the entity may, at any reasonable time and
without prior notice, enter the land for the purpose of conducting an inspection
in relation to the infrastructure.
(2) Subject to this section and without limiting
subsection (1)
, the following provisions apply to an electricity officer seeking to enter
land pursuant to rights conferred on an electricity entity by a statutory or
other easement relating to electricity infrastructure situated on the
land:
(a) if the entry is for the purpose of conducting an inspection in
relation to the infrastructure and the land is in the bushfire risk
area—the officer may enter the land at any reasonable time and without
prior notice;
(b) in any other case—the officer may only enter the land after
giving reasonable written notice to the owner or occupier of the land stating
the reason and the date and, if it is practicable to do so, the time of the
proposed entry.
12—Amendment
of heading to Part 5 Division 1
Heading to Part 5 Division 1—after "Duties"
insert:
and powers
After section 55 insert:
55AA—Powers of electricity entity in relation to
vegetation clearance
(1) An electricity
entity with a duty under this Part to keep vegetation clear of powerlines may
clear vegetation that is within the bushfire risk area if the entity is
satisfied that the vegetation is likely to fall onto a public powerline or
private powerline under the entity's control so as to damage the powerline, or
give rise to a risk of fire, electric shock, or interruption of electricity
supply, despite the entity not having a duty under this Part to carry out such
work (but the entity incurs no liability for failure to clear such
vegetation).
(2) An electricity entity must, before clearing vegetation under
subsection (1)
, obtain a report on the extent of clearance necessary to prevent the
vegetation from falling onto a powerline from a person who holds qualifications
prescribed by the regulations.
14—Amendment
of section 57—Power to enter for vegetation clearance
purposes
Section 57(2)—after "notice" insert:
(or such lesser period of notice as is agreed to by the occupier)
15—Amendment
of section 59—Requirements relating to electrical installation connection
and meter installation
(1) Section 59(1d), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of the person personally carrying out the work of making
the connection—$10 000;
(b) in the case of the prescribed person—$50 000.
Expiation fee: in the case of a contravention of paragraph (b) by the
person personally carrying out the work of making the
connection—$1 000.
(2) Section 59(4)(c)—delete paragraph (c) and substitute:
(c) the work of installing or replacing a meter
includes—
(i) the temporary disconnection of the electricity supply while the work
is carried out; and
(ii) connecting or reconnecting electricity supply from a transmission or
distribution network to the electrical installation to which the meter is wired
following the installation or replacement of the meter.
16—Amendment
of section 60—Responsibility of owner or operator of infrastructure or
installation
Section 60(1)—delete subsection (1) and substitute:
(1) A person who owns
or operates electricity infrastructure must take reasonable steps to ensure
that—
(a) the infrastructure complies with, and is operated in accordance with,
technical and safety requirements imposed under the regulations; and
(b) the infrastructure is safe and safely operated.
(1a) A person who contravenes
subsection (1)
is guilty of an offence.
Maximum penalty:
(a) if the person committed the offence intentionally or recklessly and
with the knowledge that an immediate and material risk of harm to any person
will or might result—
(i) if the offender is a body corporate—a penalty of $250 000;
or
(ii) in any other case—a penalty of $50 000; or
(b) in any other case—
(i) if the offender is a body corporate—a penalty of $100 000;
or
(ii) in any other case—a penalty of $20 000.
(1b) A person who owns or operates an electrical installation must take
reasonable steps to ensure that—
(a) the installation complies with, and is operated in accordance with,
technical and safety requirements imposed under the regulations; and
(b) the installation is safe and safely operated.
Maximum penalty:
(a) if the offender is a body corporate—a penalty of
$50 000;
(b) in any other case—a penalty of $10 000.
Expiation fee: $315.
After section 60A insert:
60B—Safety, reliability, maintenance and technical
management plans
A person exempted from the requirement to hold a licence authorising the
generation of electricity or the operation of a transmission or distribution
network must, if so required by the Technical Regulator by written
notice—
(a) prepare, maintain and periodically revise a safety, reliability,
maintenance and technical management plan dealing with matters prescribed by
regulation; and
(b) obtain the approval of the Technical Regulator to the plan and any
revision; and
(c) comply with the plan as approved from time to time; and
(d) audit from time to time the entity's compliance with the plan and
report the results of those audits to the Technical Regulator.
Maximum penalty: $50 000.
18—Amendment
of section 61—Electrical installation work
(1) Section 61(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) if the offender is a body corporate—a penalty of
$50 000;
(b) in any other case—a penalty of $10 000.
Expiation fee: $315.
(2) Section 61(2)(a)—delete "licensed electrical contractor or
licensed building work contractor" first occurring and substitute:
licensed electrical contractor under the
Plumbers,
Gas Fitters and Electricians Act 1995
or licensed building work contractor under the
Building
Work Contractors Act 1995
(3) Section 61(2)(a)—after "worker" insert:
under the
Plumbers,
Gas Fitters and Electricians Act 1995
(4) Section 61(2)(b)—after "worker" first occurring
insert:
under the
Plumbers,
Gas Fitters and Electricians Act 1995
(5) Section 61(2)(b)—delete "licensed electrical contractor or
licensed building work contractor" and substitute:
licensed electrical contractor under the
Plumbers,
Gas Fitters and Electricians Act 1995
or licensed building work contractor under the
Building
Work Contractors Act 1995
(6) Section 61(3)—delete "2 years" and
substitute:
3 years
After section 61A insert:
61B—Design of electrical
installations
An electrical installation must be designed in accordance with technical
and safety requirements under the regulations.
Maximum penalty: $10 000.
Expiation fee: $315.
20—Amendment
of section 62—Power to require rectification etc in relation to
infrastructure, installations or equipment
(1) Section 62(1)—after "unsafe," insert:
or the Technical Regulator believes on reasonable grounds that the
infrastructure, installation or equipment is, or may become, unsafe when in
use,
(2) Section 62(1)(a)—after "satisfaction" insert:
within a period specified in the direction
(3) Section 62(2)(b)—delete paragraph (b) and
substitute:
(b) in relation to an installation or equipment—
(i) in the case of an installation or equipment that is unsafe, or in
relation to which it is reasonably believed that the installation or equipment
is, or may become, unsafe when in use, as a result of work performed on the
installation or equipment within 2 years before the giving of the direction
and with the consent of the person in charge of the installation or equipment or
the occupier of the place in which the installation or equipment is
situated—to the person who carried out the work, unless that person is not
authorised to carry out such work; or
(ii) in any other case—to the person in charge of the installation
or equipment or the occupier of the place in which the installation or equipment
is situated.
(4) Section 62(4)—delete subsection (4) and
substitute:
(4) A person to whom a direction is given under this
section—
(a) must comply with the direction; and
(b) must not fail to
take action specified in the direction to rectify the contravention within the
period specified in the direction; and
(c) must not reconnect
or permit the reconnection of the electricity supply, or connect or permit the
connection of the infrastructure (or part of the infrastructure), installation
or equipment to any other supply of electricity, without the written approval of
an authorised officer.
Maximum penalty: $50 000.
Expiation fee:
(a) in the case of an offence against
paragraph (c)
—$1 000;
(b) in any other case—$315.
21—Amendment
of section 62A—Public warning statements
Section 62A—after subsection (2) insert:
(3) The Technical Regulator is not obliged to conduct a hearing or invite
submissions in connection with—
(a) the exercise of a power under this section if the Technical Regulator
considers that urgent action is required; or
(b) a preliminary investigation conducted by the Technical Regulator for
the purposes of this section.
22—Amendment
of section 62B—Immunity from liability
Section 62B—after subsection (2) insert:
(3) It is the intention of the Parliament that the immunity from liability
provided for in this section apply within the State and outside the State to the
full extent of the extra-territorial legislative capacity of the
Parliament.
Section 63—delete the section and substitute:
63—Reporting of accidents etc
(1) If an accident
involving or associated with any electricity infrastructure, electrical
installation or electrical equipment results in electric shock, electrical burns
or a prescribed fire the accident must be reported as required under the
regulations—
(a) if the accident involves part of an electricity entity's
infrastructure—by the electricity entity; or
(b) if the accident happens while an electrical worker is working on an
electrical installation or equipment and the electrical worker is able to make
the report—by the electrical worker; or
(c) in any other
case—by the occupier of the place in which the accident happens.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) Despite
subsection (1)(c)
, an occupier is not required to report an accident that results in a
prescribed fire.
(3) For the purposes of
an investigation of an accident of a kind referred to in
subsection (1)
, the Technical Regulator may prohibit, restrict or regulate access to any
infrastructure, installation or equipment involved in or associated with the
accident.
(4) A person must not
alter or interfere with—
(a) any infrastructure, installation or equipment involved in or
associated with an accident of a kind referred to in
subsection (1)
; or
(b) anything prohibiting, restricting or regulating access to any such
infrastructure, installation or equipment.
Maximum penalty: $10 000.
Expiation fee: $315.
(5) Despite
subsections (3)
and
(4)
, a person may alter or interfere with the infrastructure, installation or
equipment or anything prohibiting, restricting or regulating access to
it—
(a) if to do so is necessary to—
(i) maintain the integrity of a network; or
(ii) avert an immediate and serious danger to a person or property;
or
(b) with the approval of the Technical Regulator.
(6) In this section—
prescribed fire means a fire that involves the attendance of
an officer (including a volunteer officer) or employee of an emergency services
organisation within the meaning of the
Fire
and Emergency Services Act 2005
.
24—Substitution
of section 63A
Section 63A—delete the section and substitute:
63A—Warning notices
(1) If it appears to the Commission that a person has been guilty of a
contravention of Part 3 or Part 6A (other than in relation to
contraventions of Part 6A for which the Technical Regulator may issue a
warning notice under
subsection (2)
) and the contravention is capable of being rectified, the Commission may
issue a warning notice to the person, warning the person that the person may be
prosecuted for the contravention unless the person takes action specified in the
notice to rectify the contravention within the period specified in the
notice.
(2) If it appears to
the Technical Regulator that a person has been guilty of a contravention of
Part 6, or Part 6A in relation to contraventions relating to technical
and safety matters arising under Part 6A, and the contravention is capable
of being rectified, the Technical Regulator may issue a warning notice to the
person, warning the person that the person may be prosecuted for the
contravention unless the person takes action specified in the notice to rectify
the contravention within the period specified in the notice.
(3) A warning notice issued under this section must be in
writing.
(4) The action that may be specified in a warning notice to rectify a
contravention may include action to remedy adverse consequences of the
contravention, for example (without limitation)—
(a) the refunding of an amount wrongly paid to the person as a result of
the contravention; or
(b) the payment of compensation to a person who has suffered loss, damage
or injury as a result of the contravention; or
(c) the disclosure of information; or
(d) the publication of advertisements relating to the contravention or
relating to action to rectify or remedy the contravention.
(5) The Commission or the Technical Regulator may, by written notice to a
person, vary a warning notice issued to the person.
(6) If the Commission or the Technical Regulator issues a warning notice
to a person, the Commission or the Technical Regulator must not proceed against
the person in respect of the contravention to which the notice relates, unless
the person fails to take action specified in the notice to rectify the
contravention within the period specified in the notice.
63B—Assurances
(1) The Commission may accept an assurance given by a person in connection
with a matter in relation to which the Commission has a power or function under
this Act.
(2) The Technical Regulator may accept an assurance given by a person in
connection with a matter in relation to which the Technical Regulator has a
power or function under this Act.
(3) An assurance under this section must be in writing.
(4) A person who has given an assurance may, with the consent of the
Commission or the Technical Regulator (as the case requires), withdraw or vary
the assurance at any time.
(5) If the Commission or the Technical Regulator accepts an assurance, the
Commission or the Technical Regulator must not proceed against the person who
has given the assurance in respect of the conduct specified in the assurance,
unless it appears to the Commission or the Technical Regulator that the person
has acted contrary to, or has failed to comply with, the assurance.
25—Redesignation
of section 63B
Section 63B—redesignate the section as section 63BA
26—Insertion
of sections 63BB and 63BC
After section 63B (now designated as section 63BA—see
section 25
of this Act) insert:
63BB—Offence to act contrary to
assurance
(1) A person who
acts contrary to, or fails to comply with, an assurance accepted by the
Commission or the Technical Regulator is guilty of an offence.
Maximum penalty: $20 000.
(2) Proceedings for an offence against
subsection (1)
must not be commenced except—
(a) in the case of an assurance accepted by the Commission—on the
authorisation of the Commission; or
(b) in the case of an assurance accepted by the Technical
Regulator—on the authorisation of the Technical Regulator.
(3) An apparently genuine document purporting to be under the hand of the
Commission or the Technical Regulator and to authorise the commencement of
proceedings under this section must be accepted in legal proceedings, in the
absence of proof to the contrary, as proof of the authorisation.
63BC—Enforcement orders in relation to
assurances
(1) If the District
Court is satisfied, on an application under this section, that a person has
acted contrary to, or failed to comply with, an assurance accepted under this
Division, the Court may make any or all of the following orders:
(a) an order
prohibiting the person from engaging in specified conduct;
(b) an order directing the person to take specified action to comply with
the assurance;
(c) an order directing the person to pay to the Crown an amount up to the
amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach of, or
non-compliance with, the assurance;
(d) any order that the Court considers appropriate directing the person to
compensate any person who has suffered loss or damage as a result of the breach
of, or non-compliance with, the assurance;
(e) any other order that the Court considers appropriate.
(2) An application under this section may be made—
(a) in the case of an assurance accepted by the Commission—by the
Commission; or
(b) in the case of an assurance accepted by the Technical
Regulator—by the Technical Regulator.
(3) The Court may make an interim order under
subsection (1)(a)
pending final determination of the application.
(4) The Court may, on the application of the Commission, the Technical
Regulator or a person, vary or discharge an order under
subsection (1)(a)
.
(5) An order under
subsection (1)(a)
may be made subject to such conditions as the Court thinks fit.
(6) The Court must not make an order under this section (other than an
interim order) unless satisfied on the balance of probabilities that proper
grounds for the order have been established.
27—Insertion
of Part 7 Division A3
Part 7—after Division A2 insert:
Division A3—Enforcement
notices
63D—Enforcement notices
(1) An authorised officer may issue a notice (an enforcement
notice) under this section for the purpose of securing compliance with a
requirement imposed by or under this Act (including a standard referred to or
incorporated by this Act).
(2) A notice under
this section—
(a) subject to
subsection (3)
, must be in the form of a written notice served on the person to whom it
is issued; and
(b) must specify the person to whom it is issued (whether by name or by a
description sufficient to identify the person); and
(c) may direct 2 or more persons to do something specified in the
notice jointly; and
(d) without limiting any other provision, in the case of a notice that
relates to a situation existing on any premises, may be issued to any person
who—
(i) is the owner or occupier of the premises; or
(ii) has the management or control of the premises; and
(e) without limiting any other provision, may be issued to any person who
has performed, or is performing, any work (including work on any premises owned
or occupied by another person); and
(f) must state the grounds on which the notice is issued; and
(g) may impose any
requirement reasonably required for the purpose for which the notice is issued
including 1 or more of the following:
(i) a requirement that the person discontinue, or not commence, a
specified activity indefinitely or for a specified period or until further
notice from a relevant authority;
(ii) a requirement that the person take specified action in a specified
way, and within a specified period or at specified times or in specified
circumstances;
(iii) a requirement that the person comply with any specified standard or
code published by the Technical Regulator or any other specified person or body
referred to in the notice;
(iv) a requirement that the person undertake specified tests or
monitoring;
(v) a requirement that the person furnish to a relevant authority
specified results or reports;
(vi) a requirement prescribed by the regulations; and
(h) must state that the person may, within 10 days, apply for a
review of the notice.
(3) An authorised
officer may, if of the opinion that urgent action is required, issue an
emergency notice imposing a requirement of a kind referred to in
subsection (2)(g)
as reasonably required in the circumstances.
(4) An emergency enforcement notice may be issued orally (and without
compliance with a requirement to give preliminary notice) but, in that event,
the person to whom the notice is issued must be advised forthwith of the
person's right to apply for a review of the notice.
(5) If an emergency enforcement notice is issued by an authorised officer,
the notice will cease to have effect on the expiration of 72 hours from the
time of issuing unless confirmed by a written notice served on the relevant
person.
(6) An authorised officer may, by written notice served on a person to
whom a notice under this section has been issued, vary or revoke the
notice.
(7) A relevant authority may, by written notice served on a person to whom
a notice under this section has been issued by the relevant authority, vary or
revoke the notice.
(8) A person to whom a notice is issued under this section must not,
without reasonable excuse, fail to comply with the notice.
Maximum penalty: $20 000.
(9) A person must not hinder or obstruct a person complying with a notice
under this section.
Maximum penalty: $20 000.
(10) If the
requirements of a notice under this section are not complied with, a relevant
authority may take any action required by the notice.
(11) Action to be
taken by a relevant authority under
subsection (10)
may be taken on the relevant authority's behalf by an authorised officer
or another person authorised by the relevant authority for the
purpose.
(12) A person taking action under
subsection (10)
or
(11)
may enter any premises at any reasonable time.
(13) The reasonable costs and expenses incurred by a relevant authority in
taking action under
subsections (10)
and
(11)
may be recovered by the relevant authority as a debt from the person who
failed to comply with the requirements of the notice.
(14) If an amount is recoverable from a person by a relevant authority
under this section, the relevant authority may, by written notice to the person,
fix a period, being not less than 28 days from the date of the notice,
within which the amount must be paid by the person, and, if the amount is not
paid by the person within that period, the person is liable to pay interest
charged at the prescribed rate per annum on the amount unpaid.
(15) In this section—
relevant authority means—
(a) the Minister; or
(b) the Commission; or
(c) the Technical Regulator.
28—Amendment
of section 68—Power of entry
Section 68—after "place" wherever occurring insert in each
case:
or vehicle
Section 69—delete the section and substitute:
69—General investigative powers of authorised
officers
(1) An authorised
officer who enters a place or vehicle under this Part may exercise any 1 or
more of the following powers:
(a) investigate whether the provisions of this Act are being or have been
complied with;
(b) examine and test
electrical infrastructure, electrical installations or equipment to find out
whether the infrastructure, installations or equipment are safe and comply with
the requirements of this Act, or cause or require it to be so examined or
tested, or seize it or require its production for such examination or
testing;
(c) require a report on any testing conducted under
paragraph (b)
;
(d) investigate a suspected electrical accident;
(e) investigate a suspected interference with electrical infrastructure or
an electrical installation;
(f) investigate a suspected theft or diversion of electricity;
(g) search for, examine and copy or take an extract from a document or
record of any kind;
(h) take photographs or make films or other records of activities in the
place or vehicle and electrical infrastructure, installations or equipment in
the place or vehicle;
(i) give directions with respect to the stopping or movement of a
vehicle;
(j) take possession of any object that may be evidence of an offence
against this Act;
(k) require a person who the authorised officer reasonably suspects has
committed, is committing or is about to commit, a contravention of this Act to
state the person’s full name and usual place of residence and to produce
evidence of the person’s identity;
(l) require a person, by written notice served on the person, to attend at
a specified time and place.
(2) An authorised officer may only exercise the powers conferred by
subsection (1)
as reasonably required for the administration or enforcement of this
Act.
(3) If an authorised officer takes possession of an object that may be
evidence of an offence—
(a) the authorised officer must give the occupier of the place or person
apparently in charge of the vehicle (as the case requires) a receipt for the
object; and
(b) the object must be returned to its owner—
(i) if proceedings for an offence are not instituted within the designated
period after the authorised officer takes possession of the object—at the
end of that period; or
(ii) if proceedings have been so instituted—on completion of the
proceedings, unless the court, on application by the Commission or Technical
Regulator (as the case may be), orders confiscation of the object.
(4) A court may order the confiscation of an object of which an authorised
officer has taken possession under
subsection (1)
if of the opinion that the object has been used for the purpose of
committing an offence or there is some other proper reason for ordering its
confiscation.
(5) If the court orders the confiscation of an object, the Commission or
Technical Regulator may dispose of the object.
(6) A person who—
(a) having been asked a question under this section, does not answer the
question to the best of his or her knowledge, information and belief;
or
(b) refuses or fails to comply with a requirement or direction of an
authorised officer under this section; or
(c) being the person in charge of a place or vehicle subject to an
inspection and having been required to provide reasonable assistance to
facilitate the inspection, refuses or fail to provide such assistance,
is guilty of an offence.
Maximum penalty: $20 000.
(7) In this section—
designated period means 1 year or such longer period as
a magistrate may, on application by the Technical Regulator, allow.
30—Amendment
of section 70—Disconnection of electricity supply
(1) Section 70(3)—after "without the" insert:
written
(2) Section 70(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $50 000.
Expiation fee: $1 000.
31—Amendment
of section 71—Power to require disconnection of cathodic protection
system
Section 71(3)—delete subsection (3) and
substitute:
(3) A person to whom a direction is given under this
section—
(a) must comply with the direction; and
(b) must not reconnect
or permit the reconnection of the electricity supply without the written
approval of an authorised officer.
Maximum penalty: $50 000.
Expiation fee:
(a) in the case of an offence against
paragraph (b)
—$1 000;
(b) in any other case—$315.
32—Amendment
of section 72—Power to make infrastructure, installation or equipment
safe
(1) Section 72(1)—after "unsafe," insert:
or believes on reasonable grounds that the infrastructure, installation or
equipment is, or may become, unsafe when in use,
(2) Section 72(1)(b)—after "safe" insert:
within a period specified in the direction
(3) Section 72(2)(b)—delete paragraph (b) and
substitute:
(b) in relation to an installation or equipment—
(i) in the case of installation or equipment that is unsafe, or in
relation to which it is reasonably believed that the installation or equipment
is, or may become, unsafe when in use, as a result of work performed on the
installation or equipment within 2 years before the giving of the direction
and with the consent of the person in charge of the installation or equipment or
the occupier of the place in which the installation or equipment is
situated—to the person who carried out the work, unless that person is not
authorised to carry out such work; or
(ii) in any other case—to the person in charge of the installation
or equipment or the occupier of the place in which the installation or equipment
is situated.
(4) Section 72(4)—delete subsection (4) and
substitute:
(4) A person to whom a direction is given under this
section—
(a) must comply with the direction; and
(b) must not fail to
take action specified in the direction to make the infrastructure, installation
or equipment safe within the period specified in the direction; and
(c) must not reconnect
or permit the reconnection of the electricity supply, or connect or permit the
connection of the infrastructure (or part of the infrastructure), installation
or equipment to any other supply of electricity, without the written approval of
an authorised officer.
Maximum penalty: $50 000.
Expiation fee:
(a) in the case of an offence against
paragraph (c)
—$1 000;
(b) in any other case—$315.
(5) If a person does not comply with a direction, an authorised officer
may take any action that is reasonable and necessary to have the direction
carried out.
(6) A person, authorised in writing by an authorised officer, may do what
is reasonable and necessary to carry out the direction.
(7) The costs incurred in carrying out the direction are recoverable as a
debt due to the Crown.
33—Amendment
of section 73—Power to require information or
documents
Section 73(4)—delete subsection (4)
34—Insertion
of Part 7 Division 3
Part 7—after Division 2 insert:
Division 3—Related matters
74—Self-incrimination
(1) Subject to
subsection (2)
, a natural person is not required to give information or produce a
document under this Part if the answer to the question or the contents of the
document would tend to incriminate the person of an offence.
(2) If an
authorised officer informs a natural person required to give information or
produce a document under this Part that the requirement is made for the
administration or enforcement of Part 6 relating to the safety of
electricity infrastructure, an electrical installation or electrical equipment,
and the information or document would tend to incriminate the person of an
offence, the person must nevertheless give the information or produce the
document, but the information or document so given or produced will not be
admissible in evidence against the person in proceedings for an offence (other
than an offence relating to the making of a false or misleading statement or
declaration).
35—Amendment
of section 75—Review of decisions by Commission or Technical
Regulator
(1) Section 75(1)—delete "An application" and substitute:
Subject to this section, an application
(2) Section 75—after subsection (1) insert:
(1a) An application may not be made under subsection (1) in relation
to a decision to issue an enforcement notice under Part 7 Division A3,
or any matter associated with the requirements or enforcement of such a
notice.
Section 76—delete the section and substitute:
76—Appeals
(1) The following
rights of appeal lie to the Administrative and Disciplinary Division of the
District Court (the Court):
(a) an applicant
for review under section 75 who is dissatisfied with a decision as confirmed,
amended or substituted by the Commission or the Technical Regulator on the
review;
(b) a person to
whom an enforcement notice has been issued under Part 7
Division A3.
(2) An appeal must be made—
(a) in the case of an appeal under
subsection (1)(a)
—within 10 working days after receipt of the written notice of
the decision appealed against or, if the Commission or the Technical Regulator
failed to make a decision on the review within the allowed period, within
10 working days after the end of that period; and
(b) in the case of an appeal under
subsection (1)(b)
—within 10 working days after the notice is issued to the
relevant person.
(3) In the case of an appeal under
subsection (1)(a)
, the Court must sit with experts selected in accordance with
Schedule 1A.
(4) The Court may—
(a) on an appeal under
subsection (1)(a)
—
(i) affirm the decision appealed against; or
(ii) remit the matter to the original decision maker for consideration or
further consideration in accordance with any directions of the Court;
and
(b) on an appeal under
subsection (1)(b)
—
(i) confirm, vary or revoke the notice; or
(ii) remit the matter to any person or body under this Act for further
consideration; and
(c) in any event—make any consequential or ancillary order or
direction, or impose any condition, that the Court considers necessary or
expedient on account of an appeal under this section.
(5) An appeal under the
District
Court Act 1991
will lie against a decision of the Court under this section on a question
of law (but not on a question of fact).
37—Amendment
of section 80—Power of exemption
Section 80(1a)—delete "a provision requiring the Commission to make a
licence held by the person subject to a specified condition." and
substitute:
—
(a) a provision requiring the Commission to make a licence held by the
person subject to a specified condition; and
(b) the operation of section 22(1a), 23(1a)
or 24A(1a).
38—Amendment
of section 84—Unlawful interference with electricity infrastructure or
electrical installation
(1) Section 84(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) Section 84(3)—delete subsection (3) and
substitute:
(3) A person must not discharge a firearm or throw or project an object or
substance towards electrical infrastructure or an electrical installation if
there is a risk of damage to the infrastructure or installation, or interruption
of electricity supply.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) A person must not burn any material in proximity to electricity
infrastructure such that there is a risk of damage to the infrastructure,
outages or flashovers, without the written authority of the person who owns or
operates the infrastructure.
Maximum penalty: $10 000.
Expiation fee: $315.
After section 91A insert:
91B—Offences
(1) The following
persons are authorised to give expiation notices for an alleged offence against
this Act (in addition to any person authorised under the
Expiation
of Offences Act 1996
):
(a) any authorised officer authorised in writing by the Technical
Regulator;
(b) any electricity officer authorised in writing by the Technical
Regulator.
(2) An authorisation under
subsection (1)
may be given subject to such conditions or limitations as the Technical
Regulator thinks fit.
(3) An apparently genuine document purporting to be under the hand of the
Technical Regulator and to give an authorisation under
subsection (1)
must be accepted, in the absence of proof to the contrary, as proof of the
authorisation.
40—Amendment
of section 92—General defence
Section 92—after subsection (2) insert:
(2a) If a body corporate or other employer seeks to establish a defence
provided by this section by proving the establishment of proper workplace
systems and procedures designed to prevent a contravention of this Act, that
proof must be accompanied by proof—
(a) that proper systems and procedures were also in place whereby any such
contravention or risk of such contravention of this Act that came to the
knowledge of a person at any level in the workforce was required to be reported
promptly to the governing body of the body corporate or to the employer, or to a
person or group with the right to report to the governing body or to the
employer; and
(b) that the governing body of the body corporate or the employer actively
and effectively promoted and enforced compliance with this Act and with all such
systems and procedures within all relevant areas of the workforce.
After section 93 insert:
93A—Imputing conduct to bodies
corporate
(1) For the purposes of proceedings for an offence against this Act, the
conduct and state of mind of an officer, employee or agent of a body corporate
acting within the scope of his or her actual, usual or ostensible authority will
be imputed to the body corporate.
(2) For the purposes of this section, a reference to conduct
or acting includes a reference to failure to
act.
42—Amendment
of section 97—Service
Section 97(1)—after paragraph (c) insert:
or
(d) by transmitting to the person by email to the email address last
provided to the Commission or Technical Regulator by the person for that
purpose.
43—Amendment
of section 98—Regulations
Section 98(2)(g)—delete "$5 000" and substitute:
$10 000
(1) An amendment to section 22, 23 or 24A of the principal Act
effected by a provision of this Act applies to a licence granted under the
principal Act, or the holder of a licence under the principal Act, whether the
licence was granted before or after the commencement of the relevant provision
(and any existing licence is taken to be modified accordingly).
(2) In particular, a reference to the Commission in a condition relating
to section 22(1)(c)(ii) or section 23(1)(c)(ii) of the principal Act
under a licence in force immediately before the commencement of
section 7
or
8
of this Act (as the case requires) will be taken, on the commencement of
the relevant section, to be a reference to the Technical Regulator (but nothing
in this subsection is to be taken to require a licence holder to obtain a fresh
approval to an existing safety, reliability, maintenance and technical
management plan).
(3) For the purposes of the preceding subsections, the Commission may, as
it thinks fit, issue to the holder of a licence under the principal Act in force
immediately before the commencement of a provision of this Act a replacement
copy of the licence in order to take account of modifications effected by the
provision.
(4) In this section—
principal Act means the
Electricity
Act 1996
.
Part 3—Amendment
of Gas Act 1997
45—Amendment
of section 3—Objects
Section 3(d)—after "appliances" insert:
(including such standards relating to the design of gas
installations)
46—Amendment
of section 8—Functions of Technical Regulator
Section 8(1)(e)—delete paragraph (e) and substitute:
(e) any other functions prescribed by regulation or assigned to the
Technical Regulator by or under this or any other Act.
47—Amendment
of section 10—Technical Regulator's power to require
information
Section 10(3)—delete subsection (3) and
substitute:
(3) Subject to
subsection (4)
, a natural person is not required to give information under this section
if the information would tend to incriminate the person of an offence.
(4) If a natural
person is required to give information under this section relating to the safety
of gas infrastructure, or a gas installation or appliance, and the information
would tend to incriminate the person of an offence, the person must nevertheless
give the information, but the information so given will not be admissible in
evidence against the person in proceedings for an offence (other than an offence
relating to the making of a false or misleading statement or
declaration).
48—Amendment
of section 26—Licences authorising operation of distribution
system
(1) Section 26(1)(b)(i)—after "prepare" insert:
, maintain
(2) Section 26(1)(b)(ii)—delete subparagraph (ii) and
substitute:
(ii) to obtain the approval of the Technical Regulator—
(A) to the plan (prior to the commencement of the operation of the
distribution system to which the plan relates); and
(B) to any revision of the plan; and
49—Amendment
of section 37A—Minister's power to require information or
documents
(1) Section 37A(1)—after "time" wherever occurring insert:
, or at specified times,
(2) Section 37A(2)—after "time" insert:
, or at the times,
50—Insertion
of Part 4 Division 1A
Part 4—after Division 1 insert:
Division 1A—General investigative powers of gas
officers
45A—General investigative powers of gas
officers
A gas officer may, in the course of exercising powers under this Part, take
photographs, films or audio, video or other recordings as reasonably required in
connection with the exercise of those powers.
51—Amendment
of section 48—Power to enter for purposes related to gas entity's
infrastructure
(1) Section 48(2)—before "occupier" insert:
owner or
(2) Section 48(2)—after "date and" insert:
, if it is practicable to do so, the
52—Amendment
of section 55—Responsibility of owner or operator of infrastructure or
installation
Section 55(1)—delete subsection (1) and substitute:
(1) A person who
owns or operates gas infrastructure must take reasonable steps to ensure
that—
(a) the infrastructure complies with, and is operated in accordance with,
technical and safety requirements imposed under the regulations; and
(b) the infrastructure is safe and safely operated.
(1a) A person who contravenes
subsection (1)
is guilty of an offence.
Maximum penalty:
(a) if the person committed the offence intentionally or recklessly and
with the knowledge that an immediate and material risk of harm to any person
will or might result—
(i) if the offender is a body corporate—a penalty of $250 000;
or
(ii) in any other case—a penalty of $50 000; or
(b) in any other case—
(i) if the offender is a body corporate—a penalty of $100 000;
or
(ii) in any other case—a penalty of $20 000.
(1b) A person who owns or operates a gas installation must take reasonable
steps to ensure that—
(a) the installation complies with, and is operated in accordance with,
technical and safety requirements imposed under the regulations; and
(b) the installation is safe and safely operated.
Maximum penalty:
(a) if the offender is a body corporate—a penalty of
$50 000;
(b) in any other case—a penalty of $10 000.
Expiation fee: $315.
After section 55 insert:
55A—Safety, reliability, maintenance and technical
management plans
A person exempted from the requirement to hold a licence authorising the
operation of a distribution system must, if so required by the Technical
Regulator by written notice—
(a) prepare, maintain and periodically revise a safety, reliability,
maintenance and technical management plan dealing with matters prescribed by
regulation; and
(b) obtain the approval of the Technical Regulator to the plan and any
revision; and
(c) comply with the plan as approved from time to time; and
(d) audit from time to time the entity's compliance with the plan and
report the results of those audits to the Technical Regulator.
Maximum penalty: $50 000.
54—Amendment
of section 56—Certain gas fitting work
(1) Section 56(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty:
(a) if the offender is a body corporate—a penalty of
$50 000;
(b) in any other case—a penalty of $10 000.
Expiation fee: $315.
(2) Section 56(2)—after "worker" insert:
under the
Plumbers,
Gas Fitters and Electricians Act 1995
(3) Section 56(3)(a)—delete "licensed gas fitting contractor or
licensed building work contractor" first occurring and substitute:
licensed gas fitting contractor under the
Plumbers,
Gas Fitters and Electricians Act 1995
or licensed building work contractor under the
Building
Work Contractors Act 1995
(4) Section 56(4)—delete "two years" and
substitute:
3 years
After section 56 insert:
56A—Design of gas
installations
A gas installation must be designed in accordance with technical and safety
requirements under the regulations.
Maximum penalty: $10 000.
Expiation fee: $315.
56—Amendment
of section 57—Power to require rectification etc in relation to
infrastructure or installations
(1) Section 57(1)—after "unsafe," insert:
or the Technical Regulator believes on reasonable grounds that the
infrastructure or installation is, or may become, unsafe when in use,
(2) Section 57(1)(a)—after "satisfaction" insert:
within a period specified in the direction
(3) Section 57(2)(b)—delete paragraph (b) and
substitute:
(b) in relation to an installation—
(i) in the case of an installation that is unsafe, or in relation to which
it is reasonably believed that the installation is, or may become, unsafe when
in use, as a result of work performed on the installation within 2 years
before the giving of the direction and with the consent of the person in charge
of the installation or the occupier of the place in which the installation is
situated—to the person who carried out the work, unless that person is not
authorised to carry out such work; or
(ii) in any other case—to the person in charge of the installation
or the occupier of the place in which the installation is situated.
(4) Section 57(4)—delete subsection (4) and
substitute:
(4) A person to whom a direction is given under this
section—
(a) must comply with the direction; and
(b) must not fail to
take action specified in the direction to rectify the contravention within the
period specified in the direction; and
(c) must not reconnect
or permit the reconnection of the gas supply, or connect or permit the
connection of the infrastructure (or part of the infrastructure) or installation
to any other supply of gas, without the written approval of an authorised
officer.
Maximum penalty: $50 000.
Expiation fee:
(a) in the case of an offence against
paragraph (c)
—$1 000;
(b) in any other case—$315.
57—Amendment
of section 57B—Public warning statements about unsafe gas installations,
components, practices etc
Section 57B—after subsection (2) insert:
(3) The Technical Regulator is not obliged to conduct a hearing or invite
submissions in connection with—
(a) the exercise of a power under this section if the Technical Regulator
considers that urgent action is required; or
(b) a preliminary investigation conducted by the Technical Regulator for
the purposes of this section.
58—Amendment
of section 57C—Immunity from liability
Section 57C—after subsection (2) insert:
(3) It is the intention of the Parliament that the immunity from liability
provided for in this section apply within the State and outside the State to the
full extent of the extra-territorial legislative capacity of the
Parliament.
Section 58—delete the section and substitute:
58—Reporting of accidents etc
(1) If an accident
involving or associated with any gas infrastructure, gas installation or gas
appliance results in injury, an explosion or a prescribed fire the accident must
be reported as required under the regulations—
(a) if the accident involves part of a gas entity's
infrastructure—by the gas entity; or
(b) if the accident happens while a gas fitting worker is working on a gas
installation or appliance and the worker is able to make the report—by the
worker; or
(c) in any other case—by the occupier of the place in which the
accident happens.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) For the
purposes of an investigation of an accident of a kind referred to in
subsection (1)
, the Technical Regulator may prohibit, restrict or regulate access to any
infrastructure, installation or appliance involved in or associated with the
accident.
(3) A person must
not alter or interfere with any infrastructure, installation or appliance
involved in or associated with an accident of a kind referred to in
subsection (1)
or anything prohibiting, restricting or regulating access to any such
infrastructure, installation or appliance.
Maximum penalty: $10 000.
Expiation fee: $315.
(4) Despite
subsections (2)
and
(3)
, a person may alter or interfere with the infrastructure, installation or
appliance or anything prohibiting, restricting or regulating access to
it—
(a) if to do so is necessary to—
(i) maintain the gas supply or the integrity of a network; or
(ii) avert an immediate and serious danger to a person or property;
or
(b) with the approval of the Technical Regulator.
(5) In this section—
injury includes harm resulting from the inhalation of a
product of combustion;
prescribed fire means a fire that involves the attendance of
an officer (including a volunteer officer) or employee of an emergency services
organisation within the meaning of the
Fire
and Emergency Services Act 2005
.
60—Substitution
of section 61A
Section 61A—delete the section and substitute:
61A—Warning notices
(1) If it appears to the Commission that a person has been guilty of a
contravention of Part 3 or Part 5A (other than in relation to
contraventions of Part 5A for which the Technical Regulator may issue a
warning notice under
subsection (2)
) and the contravention is capable of being rectified, the Commission may
issue a warning notice to the person, warning the person that the person may be
prosecuted for the contravention unless the person takes action specified in the
notice to rectify the contravention within the period specified in the
notice.
(2) If it appears to
the Technical Regulator that a person has been guilty of a contravention of
Part 5, or Part 5A in relation to contraventions relating to technical
and safety matters arising under Part 5A, and the contravention is capable
of being rectified, the Technical Regulator may issue a warning notice to the
person, warning the person that the person may be prosecuted for the
contravention unless the person takes action specified in the notice to rectify
the contravention within the period specified in the notice.
(3) A warning notice issued under this section must be in
writing.
(4) The action that may be specified in a warning notice to rectify a
contravention may include action to remedy adverse consequences of the
contravention, for example (without limitation)—
(a) the refunding of an amount wrongly paid to the person as a result of
the contravention; or
(b) the payment of compensation to a person who has suffered loss, damage
or injury as a result of the contravention; or
(c) the disclosure of information; or
(d) the publication of advertisements relating to the contravention or
relating to action to rectify or remedy the contravention.
(5) The Commission or the Technical Regulator may, by written notice to a
person, vary a warning notice issued to the person.
(6) If the Commission or the Technical Regulator issues a warning notice
to a person, the Commission or the Technical Regulator must not proceed against
the person in respect of the contravention to which the notice relates, unless
the person fails to take action specified in the notice to rectify the
contravention within the period specified in the notice.
61AB—Assurances
(1) The Commission may accept an assurance given by a person in connection
with a matter in relation to which the Commission has a power or function under
this Act.
(2) The Technical Regulator may accept an assurance given by a person in
connection with a matter in relation to which the Technical Regulator has a
power or function under this Act.
(3) An assurance under this section must be in writing.
(4) A person who has given an assurance may, with the consent of the
Commission or the Technical Regulator (as the case requires), withdraw or vary
the assurance at any time.
(5) If the Commission or the Technical Regulator accepts an assurance, the
Commission or the Technical Regulator must not proceed against the person who
has given the assurance in respect of the conduct specified in the assurance,
unless it appears to the Commission or the Technical Regulator that the person
has acted contrary to, or has failed to comply with, the assurance.
61—Insertion
of sections 61BA and 61BB
After section 61B insert:
61BA—Offence to act contrary to
assurance
(1) A person who
acts contrary to, or fails to comply with, an assurance accepted by the
Commission or the Technical Regulator is guilty of an offence.
Maximum penalty: $20 000.
(2) Proceedings for an offence against
subsection (1)
must not be commenced except—
(a) in the case of an assurance accepted by the Commission—on the
authorisation of the Commission; or
(b) in the case of an assurance accepted by the Technical
Regulator—on the authorisation of the Technical Regulator.
(3) An apparently genuine document purporting to be under the hand of the
Commission or the Technical Regulator and to authorise the commencement of
proceedings under this section must be accepted in legal proceedings, in the
absence of proof to the contrary, as proof of the authorisation.
61BB—Enforcement orders in relation to
assurances
(1) If the District
Court is satisfied, on an application under this section, that a person has
acted contrary to, or failed to comply with, an assurance accepted under this
Division, the Court may make any or all of the following orders:
(a) an order
prohibiting the person from engaging in specified conduct;
(b) an order directing the person to take specified action to comply with
the assurance;
(c) an order directing the person to pay to the Crown an amount up to the
amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach of, or
non-compliance with, the assurance;
(d) any order that the Court considers appropriate directing the person to
compensate any person who has suffered loss or damage as a result of the breach
of, or non-compliance with, the assurance;
(e) any other order that the Court considers appropriate.
(2) An application under this section may be made—
(a) in the case of an assurance accepted by the Commission—by the
Commission; or
(b) in the case of an assurance accepted by the Technical
Regulator—by the Technical Regulator.
(3) The Court may make an interim order under
subsection (1)(a)
pending final determination of the application.
(4) The Court may, on the application of the Commission, the Technical
Regulator or a person, vary or discharge an order under
subsection (1)(a)
.
(5) An order under
subsection (1)(a)
may be made subject to such conditions as the Court thinks fit.
(6) The Court must not make an order under this section (other than an
interim order) unless satisfied on the balance of probabilities that proper
grounds for the order have been established.
62—Insertion
of Part 6 Division A3
Part 6—after Division A2 insert:
Division A3—Enforcement
notices
61D—Enforcement notices
(1) An authorised officer may issue a notice (an enforcement
notice) under this section for the purpose of securing compliance with a
requirement imposed by or under this Act (including a standard referred to or
incorporated by this Act).
(2) A notice under
this section—
(a) subject to
subsection (3)
, must be in the form of a written notice served on the person to whom it
is issued; and
(b) must specify the person to whom it is issued (whether by name or by a
description sufficient to identify the person); and
(c) may direct 2 or more persons to do something specified in the
notice jointly; and
(d) without limiting any other provision, in the case of a notice that
relates to a situation existing on any premises, may be issued to any person
who—
(i) is the owner or occupier of the premises; or
(ii) has the management or control of the premises; and
(e) without limiting any other provision, may be issued to any person who
has performed, or is performing, any work (including work on any premises owned
or occupied by another person); and
(f) must state the grounds on which the notice is issued; and
(g) may impose any
requirement reasonably required for the purpose for which the notice is issued
including 1 or more of the following:
(i) a requirement that the person discontinue, or not commence, a
specified activity indefinitely or for a specified period or until further
notice from a relevant authority;
(ii) a requirement that the person take specified action in a specified
way, and within a specified period or at specified times or in specified
circumstances;
(iii) a requirement that the person comply with any specified standard or
code published by the Technical Regulator or any other specified person or body
referred to in the notice;
(iv) a requirement that the person undertake specified tests or
monitoring;
(v) a requirement that the person furnish to a relevant authority
specified results or reports;
(vi) a requirement prescribed by the regulations; and
(h) must state that the person may, within 10 days, apply for a
review of the notice.
(3) An authorised
officer may, if of the opinion that urgent action is required, issue an
emergency notice imposing a requirement of a kind referred to in
subsection (2)(g)
as reasonably required in the circumstances.
(4) An emergency enforcement notice may be issued orally (and without
compliance with a requirement to give preliminary notice) but, in that event,
the person to whom the notice is issued must be advised forthwith of the
person's right to apply for a review of the notice.
(5) If an emergency enforcement notice is issued by an authorised officer,
the notice will cease to have effect on the expiration of 72 hours from the
time of issuing unless confirmed by a written notice served on the relevant
person.
(6) An authorised officer may, by written notice served on a person to
whom a notice under this section has been issued, vary or revoke the
notice.
(7) A relevant authority may, by written notice served on a person to whom
a notice under this section has been issued by the relevant authority, vary or
revoke the notice.
(8) A person to whom a notice is issued under this section must not,
without reasonable excuse, fail to comply with the notice.
Maximum penalty: $20 000.
(9) A person must not hinder or obstruct a person complying with a notice
under this section.
Maximum penalty: $20 000.
(10) If the
requirements of a notice under this section are not complied with, a relevant
authority may take any action required by the notice.
(11) Action to be
taken by a relevant authority under
subsection (10)
may be taken on the relevant authority's behalf by an authorised officer
or another person authorised by the relevant authority for the
purpose.
(12) A person taking action under
subsection (10)
or
(11)
may enter any premises at any reasonable time.
(13) The reasonable costs and expenses incurred by a relevant authority in
taking action under
subsections (10)
and
(11)
may be recovered by the relevant authority as a debt from the person who
failed to comply with the requirements of the notice.
(14) If an amount is recoverable from a person by a relevant authority
under this section, the relevant authority may, by written notice to the person,
fix a period, being not less than 28 days from the date of the notice,
within which the amount must be paid by the person, and, if the amount is not
paid by the person within that period, the person is liable to pay interest
charged at the prescribed rate per annum on the amount unpaid.
(15) In this section—
relevant authority means—
(a) the Minister; or
(b) the Commission; or
(c) the Technical Regulator.
63—Amendment
of section 66—Power of entry
Section 66—after "place" wherever occurring insert in each
case:
or vehicle
Section 67—delete the section and substitute:
67—General investigative powers of authorised
officers
(1) An authorised
officer who enters a place or vehicle under this Part may exercise any 1 or
more of the following powers:
(a) investigate whether the provisions of this Act are being or have been
complied with;
(b) examine and
test any gas infrastructure or gas installation to find out whether the
infrastructure or installation is safe and complies with the requirements of
this Act, or cause or require it to be so examined or tested, or seize it or
require its production for such examination or testing;
(c) require a report on any testing conducted under
paragraph (b)
;
(d) investigate an accident suspected to involve gas;
(e) investigate a suspected interference with gas infrastructure or a gas
installation;
(f) investigate a suspected theft or diversion of gas;
(g) search for, examine and copy or take an extract from a document or
record of any kind;
(h) take photographs or make films or other records of activities in the
place or vehicle and gas infrastructure or gas installations in the place or
vehicle;
(i) give directions with respect to the stopping or movement of a
vehicle;
(j) take possession of any object that may be evidence of an offence
against this Act;
(k) require a person who the authorised officer reasonably suspects has
committed, is committing or is about to commit, a contravention of this Act to
state the person’s full name and usual place of residence and to produce
evidence of the person’s identity;
(l) require a person, by written notice served on the person, to attend at
a specified time and place.
(2) An authorised officer may only exercise the powers conferred by
subsection (1)
as reasonably required for the administration or enforcement of this
Act.
(3) If an authorised officer takes possession of an object that may be
evidence of an offence—
(a) the authorised officer must give the occupier of the place or person
apparently in charge of the vehicle (as the case requires) a receipt for the
object; and
(b) the object must be returned to its owner—
(i) if proceedings for an offence are not instituted within the designated
period after the authorised officer takes possession of the object—at the
end of that period; or
(ii) if proceedings have been so instituted—on completion of the
proceedings, unless the court, on application by the Commission or Technical
Regulator (as the case may be), orders confiscation of the object.
(4) A court may order the confiscation of an object of which an authorised
officer has taken possession under
subsection (1)
if of the opinion that the object has been used for the purpose of
committing an offence or there is some other proper reason for ordering its
confiscation.
(5) If the court orders the confiscation of an object, the Commission or
Technical Regulator may dispose of the object.
(6) A person who—
(a) having been asked a question under this section, does not answer the
question to the best of his or her knowledge, information and belief;
or
(b) refuses or fails to comply with a requirement or direction of an
authorised officer under this section; or
(c) being the person in charge of a place or vehicle subject to an
inspection and having been required to provide reasonable assistance to
facilitate the inspection, refuses or fail to provide such assistance,
is guilty of an offence.
Maximum penalty: $20 000.
(7) In this section—
designated period means 1 year or such longer period as
a magistrate may, on application by the Technical Regulator, allow.
65—Amendment
of section 68—Disconnection of gas supply
(1) Section 68(3)—after "without the" insert:
written
(2) Section 68(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $50 000.
Expiation fee: $1 000.
66—Amendment
of section 69—Power to make infrastructure or installation
safe
(1) Section 69(1)—after "unsafe," insert:
or believes on reasonable grounds that the infrastructure or installation
is, or may become, unsafe when in use,
(2) Section 69(1)(b)—after "safe" insert:
within a period specified in the direction
(3) Section 69(2)(b)—delete paragraph (b) and
substitute:
(b) in relation to a gas installation—
(i) in the case of an installation that is unsafe, or in relation to which
it is reasonably believed that the installation is, or may become, unsafe when
in use, as a result of work performed on the installation within 2 years
before the giving of the direction and with the consent of the person in charge
of the installation or the occupier of the place in which the installation is
situated—to the person who carried out the work, unless that person is not
authorised to carry out such work; or
(ii) in any other case—to the person in charge of the installation
or the occupier of the place in which the installation is situated.
(4) Section 69(4)—delete subsection (4) and
substitute:
(4) A person to whom a direction is given under this
section—
(a) must comply with the direction; and
(b) must not fail to
take action specified in the direction to make the infrastructure or
installation safe within the period specified in the direction; and
(c) must not reconnect
or permit the reconnection of the gas supply, or connect or permit the
connection of the infrastructure (or part of the infrastructure) or installation
to any other supply of gas, without the written approval of an authorised
officer.
Maximum penalty: $50 000.
Expiation fee:
(a) in the case of an offence against
paragraph (c)
—$1 000.
(b) in any other case—$315.
(5) If a person does not comply with a direction, an authorised officer
may take any action that is reasonable and necessary to have the direction
carried out.
(6) A person, authorised in writing by an authorised officer, may do what
is reasonable and necessary to carry out the direction.
(7) The costs incurred in carrying out the direction are recoverable as a
debt due to the Crown.
67—Amendment
of section 70—Power to require information or
documents
Section 70(4) and (5)—delete subsections (4) and (5)
68—Insertion
of Part 6 Division 3
Part 6—after Division 2 insert:
Division 3—Related matters
70A—Self-incrimination
(1) Subject to
subsection (2)
, a natural person is not required to give information or produce a
document under this Part if the information or the contents of the document
would tend to incriminate the person of an offence.
(2) If an
authorised officer informs a natural person required to give information or
produce a document under this Part that the requirement is made
for—
(a) the administration or enforcement of Part 5 relating to the
safety of gas infrastructure, or a gas installation or appliance; or
(b) the enforcement of Part 3 Division 5,
and the information or document would tend to incriminate the person of an
offence, the person must nevertheless give the information or produce the
document, but the information or document so given or produced will not be
admissible in evidence against the person in proceedings for an offence (other
than an offence relating to the making of a false or misleading statement or
declaration).
69—Amendment
of section 71—Review of decisions by Commission or Technical
Regulator
(1) Section 71(1)—delete "An application" and substitute:
Subject to this section, an application
(2) Section 71—after subsection (1) insert:
(1a) An application may not be made under subsection (1) in relation
to a decision to issue an enforcement notice under Part 6 Division A3,
or any matter associated with the requirements or enforcement of such a
notice.
Section 72—delete the section and substitute:
72—Appeals
(1) The following
rights of appeal lie to the Administrative and Disciplinary Division of the
District Court (the Court):
(a) an applicant
for review under section 71 who is dissatisfied with a decision as confirmed,
amended or substituted by the Commission or the Technical Regulator on the
review;
(b) a person to
whom an enforcement notice has been issued under Part 6
Division A3.
(2) An appeal must be made—
(a) in the case of an appeal under
subsection (1)(a)
—within 10 working days after receipt of the written notice of
the decision appealed against or, if the Commission or the Technical Regulator
failed to make a decision on the review within the allowed period, within
10 working days after the end of that period; and
(b) in the case of an appeal under
subsection (1)(b)
—within 10 working days after the notice is issued to the
relevant person.
(3) In the case of an appeal under
subsection (1)(a)
, the Court must sit with experts selected in accordance with
Schedule 3.
(4) The Court may—
(a) on an appeal under
subsection (1)(a)
—
(i) affirm the decision appealed against; or
(ii) remit the matter to the original decision maker for consideration or
further consideration in accordance with any directions of the Court;
and
(b) on an appeal under
subsection (1)(b)
—
(i) confirm, vary or revoke the notice; or
(ii) remit the matter to any person or body under this Act for further
consideration; and
(c) in any event—make any consequential or ancillary order or
direction, or impose any condition, that the Court considers necessary or
expedient on account of an appeal under this section.
(5) An appeal under the
District
Court Act 1991
will lie against a decision of the Court under this section on a question
of law (but not on a question of fact).
71—Amendment
of section 81—Unlawful interference with distribution system or gas
installation
Section 81—after its present contents (now to be designated as
subsection (1)) insert:
(2) A person must not, without proper authority—
(a) be in an enclosure where gas infrastructure is situated; or
(b) climb structures that are part of gas infrastructure.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) A person must not discharge a firearm or throw or project an object or
substance towards gas infrastructure or a gas installation if there is a risk of
damage to the infrastructure or installation, or interruption of gas
supply.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) A person must not burn any material in proximity to gas infrastructure
such that there is a risk of damage to the infrastructure, without the written
authority of the person who owns or operates the infrastructure.
Maximum penalty: $10 000.
Expiation fee: $315.
After section 87 insert:
87A—Offences
(1) The following
persons are authorised to give expiation notices for an alleged offence against
this Act (in addition to any person authorised under the
Expiation
of Offences Act 1996
):
(a) any authorised officer authorised in writing by the Technical
Regulator;
(b) any gas officer authorised in writing by the Technical
Regulator.
(2) An authorisation under
subsection (1)
may be given subject to such conditions or limitations as the Technical
Regulator thinks fit.
(3) An apparently genuine document purporting to be under the hand of the
Technical Regulator and to give an authorisation under
subsection (1)
must be accepted, in the absence of proof to the contrary, as proof of the
authorisation.
73—Amendment
of section 88—General defence
Section 88—after subsection (2) insert:
(2a) Where a body corporate or other employer seeks to establish a defence
provided by this section by proving the establishment of proper workplace
systems and procedures designed to prevent a contravention of this Act, that
proof must be accompanied by proof—
(a) that proper systems and procedures were also in place whereby any such
contravention or risk of such contravention of this Act that came to the
knowledge of a person at any level in the workforce was required to be reported
promptly to the governing body of the body corporate or to the employer, or to a
person or group with the right to report to the governing body or to the
employer; and
(b) that the governing body of the body corporate or the employer actively
and effectively promoted and enforced compliance with this Act and with all such
systems and procedures within all relevant areas of the workforce.
74—Amendment
of section 89—Offences by bodies corporate
Section 89(3)—delete "34D,"
After section 89 insert:
89A—Imputing conduct to bodies
corporate
(1) For the purposes of proceedings for an offence against this Act, the
conduct and state of mind of an officer, employee or agent of a body corporate
acting within the scope of his or her actual, usual or ostensible authority will
be imputed to the body corporate.
(2) For the purposes of this section, a reference to conduct
or acting includes a reference to failure to
act.
76—Amendment
of section 94—Service
Section 94(1)—after paragraph (c) insert:
or
(d) by transmitting to the person by email to the email address last
provided to the Commission or Technical Regulator by the person for that
purpose.
77—Amendment
of section 95—Regulations
Section 95(2)(j)—delete "$5 000" and substitute:
$10 000
(1) The amendment to section 26 of the principal Act effected by
section 48
of this Act applies to a licence granted under the principal Act, or the
holder of a licence under the principal Act, whether the licence was granted
before or after the commencement of
section 48
of this Act (and any existing licence is taken to be modified
accordingly).
(2) In particular, a reference to the Commission in a condition relating
to section 26(1)(b)(ii) of the principal Act under a licence in force
immediately before the commencement of
section 48
of this Act will be taken, on the commencement of
section 48
, to be a reference to the Technical Regulator (but nothing in this
subsection is to be taken to require a licence holder to obtain a fresh approval
to an existing safety, reliability, maintenance and technical management
plan).
(3) For the purposes of the preceding subsections, the Commission may, as
it thinks fit, issue to the holder of a licence under the principal Act in force
immediately before the commencement of
section 48
of this Act a replacement copy of the licence in order to take account of
the modifications effected by
section 48
.
(4) In this section—
principal Act means the
Gas
Act 1997
.