South Australian Numbered Acts South Australian Numbered ActsAfter section 91 insert:
91A—Energy efficiency shortfalls
(1) Subject to this
section, if the Commission is satisfied that a relevant gas retailer has an
energy efficiency shortfall (or "REES shortfall ) with respect to a particular
year, the Commission may recover an amount in respect of the shortfall (a
"shortfall penalty ).
(2) The amount that
the Commission may recover as a shortfall penalty from the
relevant gas retailer in respect of a REES shortfall will be—
(a) the
prescribed base penalty; and
(b) an
additional amount, calculated in accordance with the regulations, to reflect
the extent of the shortfall.
(3) The Commission may
not proceed to recover a shortfall penalty from a relevant gas retailer under
this section unless the Commission has served on the
retailer a notice (a "shortfall notice")—
(a)
stating that the retailer has a REES shortfall and the grounds on which the
shortfall has been determined; and
(b)
setting out—
(i)
the prescribed base penalty; and
(ii)
the calculation used by the Commission to arrive at the
amount payable under subsection (2)(b).
(4) A shortfall notice
must include, or be accompanied by, a statement advising that the
relevant gas retailer may, by written notice to the Commission served within a
period specified by the Commission, elect to be prosecuted in respect of the
shortfall as an alternative to paying the shortfall penalty.
(5) The period
specified by the Commission under subsection (4) must be at least
21 days from the date of service of the shortfall notice on the
relevant gas retailer.
(6) If the
relevant gas retailer elects to be prosecuted within the time specified under
subsection (4), the Commission may not proceed to recover the shortfall
penalty specified in the shortfall notice.
(7) If the
relevant gas retailer does not elect to be prosecuted within the time
specified under subsection (4), the Commission may proceed to recover the
shortfall penalty specified in the shortfall notice.
(8) The Commission
may, if it thinks fit, by subsequent notice—
(a)
withdraw a shortfall notice;
(b)
issue a new shortfall notice in place of an existing notice,
on account of recalculations undertaken by the Commission (and this section
will apply to any new shortfall notice published under this subsection as if
the original notice had not been issued).
(9) Subject to
subsection (10), nothing in this section prevents the commencement of
criminal proceedings at any time in relation to a contravention of this Act
but if such proceedings are commenced then the Commission may not commence or
continue proceedings to recover a shortfall penalty under this section in
respect of the conduct to which the criminal proceedings relate.
(10) If a shortfall
penalty specified in a shortfall notice is paid by the relevant gas retailer
(other than where the payment is made in response to an original
shortfall notice after a new shortfall notice is served on the retailer), the
retailer cannot be prosecuted in relation to the relevant contravention of the
Act.
(11) Subject to the
preceding subsections, the Commission may recover the amount of any shortfall
penalty as a debt from the relevant gas retailer.
(12) If an amount is
recovered as a shortfall penalty under this section, it must be applied under
a scheme established by the Commission for 1 or more of the following
purposes:
(a) to
assist persons who may have failed to benefit from activities relating to
energy efficiency on account of any gas retailer's energy efficiency
shortfall;
(b) to
support other programs or activities to promote or support energy efficiency
or renewable energy initiatives within South Australian households.
(13) For the purposes
of this section—
(a) a
relevant gas retailer has an energy efficiency shortfall if the retailer has
failed to engage, in accordance with and to the extent required by the
regulations, in activities relating to energy efficiency identified by the
regulations for the purposes of this section; and
(b) the
extent of an energy efficiency shortfall is to be calculated in accordance
with the regulations.
(14) This section
extends to an energy efficiency shortfall occurring in 2009 (including a
shortfall that is attributable to requirements arising before the commencement
of this section).
(15) In this
section—
"prescribed base penalty" means an amount, not exceeding $100 000,
prescribed by the regulations for the purposes of this section;
"relevant gas retailer" means a gas entity that is authorised to sell gas by
retail identified by the regulations for the purposes of this section.