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Electricity Safety Amendment
(Electrical Equipment Safety Scheme)
Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which are to amend the
Electricity Safety Act 1998 to--
provide for the regulation of the supply of in-scope
electrical equipment; and
provide for the regulation of responsible suppliers
registered in the register established under the
Electrical Safety Act 2002 of Queensland;
further provide for the regulation of the supply of
electrical equipment;
make other minor and consequential amendments to
Part 4;
and to make amendments to the Energy Safe Victoria Act 2005
to provide for the use and disclosure of information by Energy
Safe Victoria.
Generally, the Bill is intended to implement the Victorian
Government's commitment to enact an Electrical Equipment
Safety Scheme law which is substantially to the same effect
as Part 2A of the Electrical Safety Act 2002 of Queensland
(and associated subordinate rules and regulations).
581075 1 BILL LA INTRODUCTION 6/2/2018
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed. It does not identify a default commencement
date as the commencement of the Electrical Equipment Safety
Scheme law is to be co-ordinated with Queensland and other
participating jurisdictions. As an inter-jurisdictional scheme,
the Electrical Equipment Safety Scheme law relies on each
participating jurisdiction entering into an intergovernmental
agreement to formalise the arrangements for the governance,
implementation and administration of the scheme. Accordingly,
to allow for any contingencies that may occur in other
jurisdictions entering into the intergovernmental agreement,
no default commencement date is set.
Clause 3 provides that for the purposes of the Bill, the Electricity Safety
Act 1998 is called the Principal Act.
Part 2--Electricity Safety Act 1998
Clause 4 substitutes the definition of supply in section 3 of the Principal
Act. The definition has been amended for consistency with the
definition of sell in the Electrical Safety Act 2002 of Queensland
on which the Electrical Equipment Safety Scheme is substantially
based.
Clause 5 substitutes section 7(c) of the Principal Act to provide Energy
Safe Victoria with the appropriate functions for administering
the Electrical Equipment Safety Scheme.
Clause 6 repeals sections 54, 55, 57, 58, 59, 60, 61 and 62 of the Principal
Act. These provisions relate to the regulation of electrical
equipment by Energy Safe Victoria. The matters addressed
in these provisions will now be covered by the new Electrical
Equipment Safety Scheme provisions (in relation to "in-scope"
electrical equipment), and by some residual provisions applying
to equipment that is not in-scope electrical equipment.
Clause 7 inserts new Divisions 1, 2, 3, 4, and 5 into Part 4 of the Principal
Act.
New Division 1 sets out preliminary matters for the purposes of
Part 4 of the Principal Act, as amended by the Bill.
New section 50 of new Division 1 provides for definitions
used in Part 4 of the Principal Act. Chiefly, it provides for
a definition of in-scope electrical equipment, which is the
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equipment that will be subject to the new Electrical Equipment
Safety Scheme. In-scope electrical equipment is further
sub-categorised as either level 1, level 2 and level 3 in-scope
electrical equipment, with respective definitions for each.
These are the 3 risk-categories applying to electrical equipment
under the Electrical Equipment Safety Scheme. Each risk
category is subject to a different level of regulation.
New section 50 also provides definitions of responsible
supplier and registered responsible supplier. Responsible
suppliers are persons who manufacture in-scope electrical
equipment in Australia or New Zealand, or import in-scope
electrical equipment into Australia or New Zealand.
Registered responsible suppliers are responsible suppliers
who are registered in the register for the Electrical Equipment
Safety Scheme, which is established under section 48D of the
Electrical Safety Act 2002 of Queensland.
The new Electrical Equipment Safety Scheme imposes
requirements mainly on responsible suppliers and registered
responsible suppliers who supply in-scope electrical equipment.
However there are also provisions regulating the supply of
non-in-scope equipment by persons generally (specifically new
sections 54 and 55, as inserted by this clause 7). This will ensure
that there are no gaps in the regulation of the supply of electrical
equipment in Victoria.
New section 51 of new Division 1 allows the Minister to, by
notice in the Government Gazette, declare a law of another
State or Territory or of New Zealand to be a corresponding law.
The Minister may only make such a declaration where the
law to be declared is a law relating to the supply of electrical
equipment which substantially corresponds to Part 4. The effect
of declaring a law to be a corresponding law is that the person
or body responsible for the monitoring or enforcement of
compliance with that law within that jurisdiction becomes a
regulatory authority for the purposes of Part 4, and that persons
or bodies that are approved by the regulatory authority under
a corresponding law to issue certificates of conformity or
suitability become an external certifier for the purposes of
Part 4. Further, certain offences introduced by the Bill include
an exception, an element of which is that the electrical equipment
was registered under a corresponding law of New Zealand.
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New section 52 of new Division 1 ensures that there is no double
jeopardy where an act or omission is both an offence against
Part 4 of the Principal Act and an offence against a corresponding
law.
New section 53 of new Division 1 provides that Energy Safe
Victoria may, by notice published in the Government Gazette,
declare an item, type or component of electrical equipment to
not be in-scope electrical equipment. The effect of making such
a declaration is that the equipment will cease to be subject
to the new Electrical Equipment Safety Scheme provisions
(which generally only relate to in-scope electrical equipment),
and will instead be subject to the provisions relating to the supply
of electrical equipment that is not in-scope electrical equipment
(see new sections 54 and 55, as inserted by this clause 7).
New section 54 of new Division 1 creates an offence for a
person to supply or offer to supply electrical equipment that
is not in-scope electrical equipment, unless the electrical
equipment satisfies the applicable prescribed standard and is
safe to be connected to an electricity supply. The penalty for
contravention of this offence is 60 penalty units in the case of
a natural person, or 240 penalty units in the case of a body
corporate. New section 54 remakes current section 54 of the
Principal Act with modifications. Whereas current section 54
relates to all electrical equipment, new section 54 is confined
to non-in-scope electrical equipment. Additionally, new
section 54 clarifies that the equipment must be safe to be
connected to an electricity supply.
New section 55(1) of new Division 1 provides for Energy Safe
Victoria to declare an item, description, type or component of
electrical equipment that is not in-scope electrical equipment,
to be controlled electrical equipment. New section 55(3) is an
offence that provides a person must not supply or offer to supply
controlled electrical equipment unless it has been issued with a
certificate of conformity that is current and the equipment is
marked as prescribed. The penalty for contravention of this
offence is 60 penalty units in the case of a natural person, or
240 penalty units in the case of a body corporate. A declaration
made under new section 55(1) takes effect on the date specified
in the notice.
New Division 2 provides for the issue of certificates of suitability
and related matters.
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New section 56 of new Division 2 provides for the meaning of
certificates of suitability. A certificate of suitability means a
certificate certifying that the relevant electrical equipment is safe
to use, safe to supply and satisfies either the relevant standard
(in the case of level 1 or level 2 in-scope electrical equipment)
or the prescribed standard (for electrical equipment that is not
controlled electrical equipment or in-scope electrical equipment).
Certificates of suitability are not issued in respect of level 3
in-scope electrical equipment or controlled electrical equipment;
these are instead issued with certificates of conformity.
New section 57 of new Division 2 provides for persons to
apply to Energy Safe Victoria for certificates of suitability.
An application may be made in relation to an item, group or
component of equipment that is level 1 in-scope electrical
equipment, or level 2 in-scope electrical equipment, or electrical
equipment that is not controlled electrical equipment or in-scope
electrical equipment. An application must be accompanied by
the prescribed fee and specified technical information, including
colour images. Further, Energy Safe Victoria may require the
applicant to provide additional information about the electrical
equipment, and samples of the electrical equipment if colour
images provided are not adequate. Energy Safe Victoria may
also exempt the applicant from the requirement to provide certain
technical documentation if of the opinion that it is not necessary
for it to be provided.
New section 58 of new Division 2 provides for the consideration
of applications for certificates of suitability by Energy Safe
Victoria. After considering an application made under new
section 57, Energy Safe Victoria must issue a certificate of
suitability, or issue a certificate subject to the carrying out of
any specified modifications, or refuse to issue a certificate.
If Energy Safe Victoria issues a certificate subject to the carrying
out of any specified modifications, the certificate does not apply
to the electrical equipment unless those modifications are made.
If Energy Safe Victoria refuses to issue a certificate, it must
notify the applicant in writing of that decision and provide
reasons for the decision.
New section 59 of new Division 2 provides for the term of a
certificate of suitability. A certificate of suitability is issued
for the term specified in the certificate, which may not exceed
5 years, unless the certificate is sooner suspended or cancelled.
5
New section 60 of new Division 2 provides for the variation
of certificates of suitability issued by Energy Safe Victoria.
The holder of a certificate of suitability may apply to Energy
Safe Victoria to request variation of a certificate which has
been issued to them by Energy Safe Victoria. Energy Safe
Victoria may vary a certificate of suitability it has issued on
the application of the holder of the certificate, or of its own
motion. Note that new section 60 does not relate to certificates
of suitability which have not been issued by Energy Safe Victoria
(e.g. where a certificate of suitability has been issued by a
regulatory authority or an external certifier).
New section 61 of new Division 2 provides for the suspension
of certificates of suitability issued by Energy Safe Victoria.
Energy Safe Victoria may suspend a certificate of suitability it
has issued for a specified period by giving written notice to the
holder of the certificate. Suspension may only be on specified
grounds.
The grounds for suspension of a certificate of suitability for
level 1 and level 2 in-scope electrical equipment include that the
electrical equipment no longer satisfies the applicable relevant
standard (relevant standard is defined in new section 50 of new
Division 1 to mean a standard prescribed to apply to a type of
in-scope electrical equipment).
For an item, group or component of electrical equipment that
is not controlled electrical equipment or in-scope electrical
equipment, the grounds include that the electrical equipment
no longer satisfies the standard prescribed that applies to the
electrical equipment.
For all level 1 in-scope, level 2 in-scope and non-controlled
non-in-scope electrical equipment, the grounds also include
that the electrical equipment is or is likely to become dangerous
in normal use as a result of the design or construction of the
electrical equipment.
The suspension of a certificate of suitability takes effect on
the service of the notice. Energy Safe Victoria must lift
the suspension of a certificate of suitability immediately if
satisfied that the grounds for the suspension no longer exist.
Note that new section 61 does not relate to certificates of
suitability which have not been issued by Energy Safe Victoria
(e.g. where a certificate of suitability has been issued by a
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regulatory authority or an external certifier--the suspension
of these certificates is dealt with under new section 62B).
New section 62 of new Division 2 provides for the cancellation
of certificates of suitability issued by Energy Safe Victoria.
Energy Safe Victoria may at any time cancel a certificate of
suitability it has issued, by giving written notice to the person
to whom the certificate of suitability was issued. The notice
must state the reasons for cancellation, and the date of
cancellation. A copy of a cancellation notice must be
published on Energy Safe Victoria's Internet site.
Note that new section 62 does not relate to certificates of
suitability which have not been issued by Energy Safe Victoria
(e.g. where a certificate of suitability has been issued by a
regulatory authority or an external certifier).
New section 62A of new Division 2 provides that, for the
purposes of new section 62B, a current certificate of suitability
or a certificate that certifies similar matters issued by a regulatory
authority or an external certifier is taken to be a certificate of
suitability issued by Energy Safe Victoria.
New section 62B of new Division 2 provides for Energy
Safe Victoria to suspend certificates of suitability issued by
a regulatory authority or an external certifier. Energy Safe
Victoria may suspend a certificate of suitability issued by a
regulatory authority or an external certifier for a specified
period, by giving written notice to the holder of the certificate.
Suspension may only be where Energy Safe Victoria is of
the opinion the electrical equipment in respect of which the
certificate of suitability was issued does not satisfy the relevant
standard or the standard prescribed, or is or is likely to become
dangerous in normal use as a result of the design or construction
of the electrical equipment. A suspension of a certificate of
suitability issued by a regulatory authority or an external
certifier may be made in respect of an item, group or component
of level 1 or level 2 in-scope electrical equipment, or a type,
group or component of electrical equipment that is not controlled
electrical equipment or in-scope electrical equipment. If a
certificate of suitability issued by a regulatory authority or an
external certifier is suspended, Energy Safe Victoria must notify
the regulatory authority or the external certifier that issued the
certificate. If Energy Safe Victoria is of the opinion that the
reason for the suspension of a certificates of suitability issued
7
by a regulatory authority or an external certifier no longer exists,
Energy Safe Victoria must lift the suspension immediately.
New Division 3 provides for the issue of certificates of
conformity and related matters.
New section 62C of new Division 3 provides for the meaning
of certificates of conformity. A certificate of conformity means
a certificate certifying that the relevant controlled electrical
equipment or level 3 in-scope electrical equipment is safe to
use, safe to supply, and satisfies either the standard prescribed
(for controlled electrical equipment) or the relevant standard
(for level 3 in-scope electrical equipment). Certificates of
conformity are not issued in respect of level 1 or 2 in-scope
electrical equipment, or non-controlled electrical equipment;
these are instead issued with certificates of suitability.
New section 62D of new Division 3 provides for persons to
apply to Energy Safe Victoria for certificates of conformity.
An application may be made in relation to an item, group or
component of controlled electrical equipment or level 3 in-scope
electrical equipment. An application must be accompanied by
the prescribed fee and specified technical information, including
colour images. Further, Energy Safe Victoria may require the
applicant to provide additional information about the electrical
equipment, and samples of the electrical equipment if colour
images provided are not adequate. Energy Safe Victoria may
also exempt the applicant from the requirement to provide certain
technical documentation if of the opinion that it is not necessary
for it to be provided.
New section 62E of new Division 3 provides for the
consideration of applications for certificates of conformity by
Energy Safe Victoria. After considering an application made
under new section 62D, Energy Safe Victoria must issue a
certificate of conformity, or issue a certificate subject to the
carrying out of any specified modifications, or refuse to issue
a certificate. If Energy Safe Victoria issues a certificate
subject to the carrying out of any specified modifications, the
certificate does not apply to the electrical equipment unless
those modifications are made. If Energy Safe Victoria refuses
to issue a certificate, it must notify the applicant in writing of
that decision and provide reasons for the decision.
8
New section 62F of new Division 3 provides for the term of a
certificate of conformity. A certificate of conformity is issued
for the term specified in the certificate, which may not exceed
5 years, unless the certificate is sooner suspended or cancelled.
New section 62G of new Division 3 provides for the variation
of certificates of conformity issued by Energy Safe Victoria.
The holder of a certificate of conformity may apply to Energy
Safe Victoria to request variation of a certificate which has
been issued to them by Energy Safe Victoria. Energy Safe
Victoria may vary a certificate of conformity it has issued on
the application of the holder of the certificate, of its own motion,
or on being satisfied that any modifications required by a notice
given under section 62J(1) have been made to the equipment.
Note that new section 62G does not relate to certificates of
conformity which have not been issued by Energy Safe Victoria
(e.g. where a certificate of conformity has been issued by a
regulatory authority or an external certifier).
New section 62H of new Division 3 provides that Energy Safe
Victoria may require the re-examination of controlled electrical
equipment or level 3 in-scope electrical equipment at any time,
where the equipment is the subject of a certificate of conformity
that Energy Safe Victoria has issued. Note that new section 62H
does not allow re-examination of equipment that is subject to a
certificate of conformity not issued by Energy Safe Victoria
(e.g. where the certificate has been issued by a regulatory
authority or an external certifier).
New section 62I of new Division 3 provides for the suspension
of certificates of conformity issued by Energy Safe Victoria.
Energy Safe Victoria may suspend a certificate of conformity it
has issued by giving written notice to the holder of the certificate.
Suspension may only be where Energy Safe Victoria is of the
opinion that certain grounds are made out.
For controlled electrical equipment, the grounds include that the
electrical equipment no longer satisfies the standard prescribed
that applies to the electrical equipment.
For level 3 in-scope electrical equipment, the grounds include
that the electrical equipment no longer satisfies the relevant
standard that applies to the electrical equipment (relevant
standard is defined in new section 50 of new Division 1 to
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mean a standard prescribed to apply to a type of in-scope
electrical equipment).
For both controlled electrical equipment and level 3 in-scope
electrical equipment, the grounds also include that the electrical
equipment is or is likely to become dangerous in normal use as a
result of the design or construction of the electrical equipment.
The suspension of a certificate of conformity takes effect on
the service of the notice. Energy Safe Victoria must lift the
suspension of a certificate of conformity immediately if satisfied
that the grounds for the suspension no longer exist, or that any
modifications required by a notice given under section 62J(1)
have been made to the equipment.
Note that new section 62I does not relate to certificates of
conformity which have not been issued by Energy Safe Victoria
(e.g. where a certificate of conformity has been issued by a
regulatory authority or an external certifier--the suspension
of these certificates is dealt with under new section 62M).
New section 62J of new Division 3 provides for Energy Safe
Victoria to require modifications to electrical equipment that
is the subject of a suspended certificate of conformity. If a
certificate of conformity is suspended under new section 62I,
Energy Safe Victoria may require that modifications be made
to the equipment that is the subject of the certificate, by giving
written notice to the holder of the certificate.
It is an offence for a person to whom a modification notice
is given to supply or offer to supply the electrical equipment
that is the subject of the certificate of conformity, unless the
suspension of the certificate has been lifted in accordance
with section 62I(3). The maximum penalty is, in the case
of a natural person, 60 penalty units, or in the case of a body
corporate, 240 penalty units.
Note that new section 62J only relates to certificates of
conformity suspended under section 62I which, as noted,
only relates to certificates of conformity issued by Energy
Safe Victoria.
New section 62K of new Division 3 provides for the cancellation
of certificates of conformity issued by Energy Safe Victoria.
Energy Safe Victoria may at any time cancel a certificate of
conformity it has issued, by giving written notice to the person to
10
whom the certificate of conformity was issued. The notice must
state the reasons for cancellation, and the date of cancellation.
A copy of a cancellation notice must be published on Energy
Safe Victoria's Internet site.
Note that new section 62K does not relate to certificates of
conformity which have not been issued by Energy Safe Victoria
(e.g. where a certificate of conformity has been issued by a
regulatory authority or an external certifier).
New section 62L of new Division 3 provides that, for the
purposes of new section 62M, a current certificate of conformity
issued by a regulatory authority or an external certifier is taken to
be a certificate of conformity issued by Energy Safe Victoria.
New section 62M of new Division 3 provides for Energy
Safe Victoria to suspend certificates of conformity issued by
a regulatory authority or an external certifier. Energy Safe
Victoria may suspend a certificate of conformity issued by a
regulatory authority or an external certifier for a specified
period, by giving written notice to the holder of the certificate.
Suspension may only be where Energy Safe Victoria is of the
opinion that the electrical equipment in respect of which the
certificate of conformity was issued does not satisfy the relevant
standard or the standard prescribed, or is or is likely to become
dangerous in normal use as a result of the design or construction
of the electrical equipment. A suspension of a certificate of
conformity issued by a regulatory authority or an external
certifier may be made in respect of an item, group or component
of controlled electrical equipment or an item, group or
component of level 3 in-scope electrical equipment. If a
certificate of conformity issued by a regulatory authority or an
external certifier is suspended, Energy Safe Victoria must notify
the regulatory authority or the external certifier that issued the
certificate. If Energy Safe Victoria is of the opinion that the
reason for the suspension of a certificates of conformity issued
by a regulatory authority or an external certifier no longer exists,
Energy Safe Victoria must lift the suspension immediately.
New Division 4 provides for the registration of responsible
suppliers and related matters.
New section 62N of new Division 4 provides for "responsible
suppliers" who are registered in the Register to be taken to be
"registered responsible suppliers" for the purposes of Part 4
11
of the Principal Act as amended by the Bill, except where a
responsible suppliers' registration has been cancelled under
new section 62U. Registered responsible supplier, responsible
supplier and Register are defined in new section 50 of new
Division 1. If a responsible supplier has registered level 2
or level 3 in-scope electrical equipment in the Register, the
responsible supplier is taken to have registered that electrical
equipment for the purposes of Part 4 of the Principal Act as
amended by the Bill.
New section 62O of new Division 4 provides for the recording,
amendment and removal of matters on the Register. Energy Safe
Victoria may request that the chief executive amend or remove
a matter that appears on the Register, or record a matter in
the Register. These arrangements reflect that the register is
established under Electrical Safety Act 2002 of Queensland,
and is administered by the chief executive responsible for the
administration of that Act. Chief executive and Register are
defined in new section 50 of new Division 1.
New section 62P of new Division 4 provides for applications
for the exemption of registered responsible suppliers or in-scope
electrical equipment from certain requirements. A person may
apply to Energy Safe Victoria for an exemption under new
section 62Q in relation to an item, type, component, or
group of in-scope electrical equipment, or in relation to a
requirement to supply documentary evidence or certificates
under new sections 67B(2), 67C(2) or 67D(2). An application
for exemption must contain details of the exemption requested,
the reasons for the exemption, the applicant's contact details,
and be accompanied by any relevant technical information.
New section 62Q of new Division 4 provides for Energy Safe
Victoria to exempt registered responsible suppliers or in-scope
electrical equipment from certain requirements. Specifically,
Energy Safe Victoria may exempt--
a type of in-scope electrical equipment from a
requirement of a relevant standard, or a requirement
related to the regulatory compliance mark (by notice
published in the Government Gazette).
in-scope electrical equipment registered to a registered
responsible supplier from a requirement of a relevant
standard, or a requirement related to the regulatory
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compliance mark (by notice in writing given to
the person who made the application under new
section 62P).
a responsible supplier from a requirement to supply
documentary evidence, a compliance folder, or
certificates under new sections 67B(2), 67C(2)
or 67D(2) (by notice in writing given to the person
who made the application under new section 62P).
Energy Safe Victoria may grant an exemption on the application
of a person who made an application under new section 62P,
or of its own motion. Energy Safe Victoria may impose any
conditions that must be complied with to maintain an exemption,
and may vary or revoke an exemption at any time by notice
published in the Government Gazette. If an exemption has
been granted in respect of an application made by a person under
section 62P, Energy Safe Victoria must notify the applicant in
writing of any variation or revocation of the exemption.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exemption from an offence, and
the accused wishes to rely on the exemption, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exemption.
New section 62R of new Division 4 provides for the grounds for
cancellation of registration of responsible suppliers who supply
or offer to supply or supplied in-scope electrical equipment in
Victoria. Energy Safe Victoria may cancel the registration of
such registered responsible suppliers on any of the following
grounds--
where the registered responsible supplier requests
cancellation of their registration;
where the registered responsible supplier has been
convicted of an offence against Part 4 of the Principal
Act as amended by the Bill, or the regulations applying
under amended Part 4;
where the registered responsible supplier has
contravened a prohibition notice or a recall notice.
Prohibition notice and recall notice are defined in
new section 50 of new Division 1;
13
where the registered responsible supplier obtained
registration by fraud, misrepresentation, the
concealment of facts or a false declaration;
where the registration of level 2 or level 3 in-scope
electrical equipment registered by the registered
responsible supplier has been cancelled under new
section 62U.
New section 62S of new Division 4 provides for the grounds
for cancellation of registration of level 2 or level 3 in-scope
electrical equipment registered to a registered responsible
supplier if that equipment is supplied or offered for supply,
or was previously supplied or previously offered for supply,
by the registered responsible supplier in Victoria. Energy Safe
Victoria may cancel the registration of such equipment on any
of the following grounds--
where the registered responsible supplier requests
cancellation of the registration of the relevant
equipment;
where the registered responsible supplier is convicted
of an offence against Part 4 of the Principal Act as
amended by the Bill, or the regulations applying under
amended Part 4;
where the registered responsible supplier contravenes
a requirement of a prohibition notice or a recall notice.
Prohibition notice and recall notice are defined in new
section 50 of new Division 1;
where the registered responsible supplier registered
the relevant equipment by fraud, misrepresentation,
the concealment of facts or a false declaration;
where the electrical equipment did not satisfy the
relevant standard at the time it was registered, or
has since ceased to satisfy the applicable relevant
standard, for example the equipment may satisfy
the relevant standard at the time it was registered,
but a new relevant standard could subsequently be
prescribed which the equipment does not comply
with, so there would be grounds for cancellation
under new section 62S(2)(e)(ii);
14
where the equipment is the subject of a certificate
of suitability or a certificate of conformity that is
suspended, has been cancelled or has expired; or
where the equipment is or is likely to become dangerous
in normal use.
New section 62T of new Division 4 provides for the service
of show cause notices by Energy Safe Victoria. Energy Safe
Victoria may, by post, serve a registered responsible supplier
a written notice requiring the registered responsible supplier
to show cause why the relevant registration should not be
cancelled if Energy Safe Victoria believes that a ground under
new section 62R exists, or that a ground under section 62S
exists in relation to the registration of level 2 in-scope electrical
equipment or level 3 in-scope electrical equipment. Section 49
of the Interpretation of Legislation Act 1984 provides for
service by post. A show cause notice must state each ground
relied upon by Energy Safe Victoria, must specify the facts and
circumstances that Energy Safe Victoria believes form the basis
of each ground, must state the consequences of not responding
to the notice, and must state the time period for the registered
responsible supplier to respond. The time period for responding
must be no less than 28 days from the date of service in the case
of the registration of a responsible supplier, or 14 days in the case
of the registration of equipment.
New section 62U provides for the cancellation of registration of
registered responsible suppliers, and level 2 and level 3 in-scope
electrical equipment by Energy Safe Victoria. Energy Safe
Victoria may do one of or a combination of, the following--
cancel the registration of a registered responsible
supplier; or
cancel the registration of level 2 in-scope electrical
equipment registered to a registered responsible
supplier; or
cancel the registration of level 3 in-scope electrical
equipment registered to a registered responsible
supplier.
Before making a decision to cancel a registration, Energy
Safe Victoria must serve a show cause notice on the registered
responsible supplier, and must consider any submissions
15
provided by the registered responsible supplier in response
and any reasons given by the registered responsible supplier
why the registration should not be cancelled.
The effect of the cancellation of a registration of a registered
responsible supplier is that the responsible supplier ceases to
be registered for the purposes of Part 4 of the Principal Act
as amended by the Bill. The effect of the cancellation of a
registration of level 2 or level 3 in-scope electrical equipment
is that the electrical equipment ceases to be registered for the
purposes of Part 4 of the Principal Act as amended by the Bill.
If Energy Safe Victoria decides to cancel a registration, Energy
Safe Victoria must notify the cancellation to the registered
responsible supplier and the chief executive.
New section 62V of new Division 4 provides for evidentiary
matters related to registration on the Register. A certificate that
appears to be signed by the chief executive and states a matter
that appears in the Register, is evidence of the matter. Such a
certificate may state a matter by reference to a date or period,
and a court must accept such a certificate as proof of the matters
stated in it if there is no evidence to the contrary.
New Division 5 provides for an alternative mark to the regulatory
compliance mark. Alternative mark and regulatory compliance
mark are defined in new section 50 of new Division 1.
New section 62W of new Division 5 allows Energy Safe Victoria
to approve an alternative mark for in-scope electrical equipment
if Energy Safe Victoria believes the regulatory compliance mark
applying to that in-scope electrical equipment is not appropriate
in the circumstances.
Clause 8 inserts a new heading before section 63 of the Principal Act, to
locate sections 63 to 66 within a new Division 6--Prohibition of
supply and recall of electrical equipment.
Clause 9 amends section 63 of the Principal Act to allow Energy
Safe Victoria to exercise a power of prohibition where it has
reasonable grounds to believe that the electrical equipment does
not satisfy the relevant standard (in the case of in-scope electrical
equipment) or the standard prescribed (in the case of controlled
electrical equipment). No change is intended to be made to the
safety grounds for exercising a power of prohibition--Energy
Safe Victoria may continue to exercise a power of prohibition
16
for any electrical equipment (including non in-scope electrical
equipment) where it has reasonable grounds to believe the
specified electrical equipment is likely to become unsafe to
use because of its design or construction (including where
there is a risk of death or injury). Section 63 is also amended to
clarify that it applies irrespective of whether or not the electrical
equipment is controlled electrical equipment, or issued with a
certificate of suitability or conformity, or issued with a certificate
by a regulatory authority or external certifier.
Clause 10 inserts new Division 7 into the Principal Act, which provides for
offences.
New section 67 of new Division 7 provides for an offence
relating to the supply of level 2 or level 3 in-scope electrical
equipment by responsible suppliers. It is an offence for a
responsible supplier to supply or offer to supply level 2 or level 3
in-scope electrical equipment to a person, except where the
equipment is supplied in accordance with subsections (2), (3),
or (4). The penalty for breach of this offence is 60 penalty units
in the case of a natural person, or 240 penalty units in the case
of a body corporate.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
Subsection (2) provides an exception for where the responsible
supplier is a registered responsible supplier or supplies the
equipment with the approval of Energy Safe Victoria, and where
the equipment satisfies certain registration, certification and
safety requirements and complies with the relevant standard.
Subsection (3) provides an exception for where the responsible
supplier is supplied with the equipment by a person registered
under a corresponding law of New Zealand, and at the time of
its importation the electrical equipment was registered to that
person under a corresponding law of New Zealand, and the
equipment satisfies certain safety requirements and complies
with the relevant standard.
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Subsection (4) provides an exception for responsible suppliers
who import the equipment from a body corporate, where the
responsible supplier is a related body corporate of a New
Zealand body corporate, and the New Zealand body corporate
is a registered responsible supplier and has registered the
electrical equipment, and the equipment satisfies certain safety
requirements and complies with the relevant standard.
New section 67A of new Division 7 provides for an offence
relating to the supply of level 1 in-scope electrical equipment
by a responsible supplier. It is an offence for a responsible
supplier to supply or offer to supply level 1 in-scope electrical
equipment, except where the equipment is supplied in accordance
with subsections (2), (3), or (4). The penalty for breach of this
offence is 60 penalty units in the case of a natural person, or
240 penalty units in the case of a body corporate.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
Subsection (2) provides an exception for where the responsible
supplier is a registered responsible supplier or supplies the
equipment with the approval of Energy Safe Victoria, and where
the responsible supplier is the manufacturer or importer of the
electrical equipment which complied with the relevant standard
at the time of manufacture or import (or was supplied with the
approval of Energy Safe Victoria).
Subsection (3) provides an exception for where the responsible
supplier is supplied with the equipment by a person registered
under a corresponding law of New Zealand, and at the time of
its importation the electrical equipment was registered to the
person under a corresponding law of New Zealand, and the
equipment satisfies certain safety requirements and complies
with the relevant standard.
Subsection (4) provides an exception for responsible suppliers
who import the equipment from a body corporate, where the
responsible supplier is a related body corporate of a New
Zealand body corporate, and the New Zealand body corporate
is a registered responsible supplier and has registered the
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electrical equipment, and the equipment satisfies certain safety
requirements and complies with the relevant standard.
New section 67B of new Division 7 allows Energy Safe Victoria
to request documentary evidence from a responsible supplier
who has supplied or offered to supply level 1 in-scope electrical
equipment during the relevant period, and creates an offence
for the responsible supplier failing to supply that documentary
evidence within 10 business days. The penalty for breach of
this offence is 60 penalty units in the case of a natural person,
or 240 penalty units in the case of a body corporate.
Subsection (3) provides for what is the "relevant documentary
evidence" for the purposes of new section 67B.
Subsection (4) provides an exception for where the responsible
supplier is registered under a corresponding law of New Zealand,
and at the time of its importation the electrical equipment was
registered to the person under a corresponding law of New
Zealand.
Subsection (5) provides an exception for responsible suppliers
who supply level 1 in-scope electrical equipment imported from
a body corporate, where the responsible supplier is a related
body corporate of a New Zealand body corporate, and the New
Zealand body corporate is a registered responsible supplier and
has registered the electrical equipment as electrical equipment
supplied by a New Zealand body corporate.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
Subsection (6) provides for the meaning of relevant period
in this section, which is a period of 5 years from the date the
electrical equipment is supplied by a responsible supplier.
New section 67C of new Division 7 allows Energy Safe Victoria
to request documentary evidence from a responsible supplier
who has supplied or offered to supply registered level 2 in-scope
electrical equipment during the relevant period, and creates
an offence for the responsible supplier failing to supply that
documentary evidence (which includes a compliance folder and
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certificate of suitability) within 10 business days. The penalty for
breach of this offence is 60 penalty units in the case of a natural
person, or 240 penalty units in the case of a body corporate.
Subsection (4) provides an exception for where the responsible
supplier is registered under a corresponding law of New Zealand,
and at the time of its importation the electrical equipment was
registered to the person under a corresponding law of New
Zealand.
Subsection (5) provides an exception for responsible suppliers
who supply level 2 in-scope electrical equipment imported from
a body corporate, where the responsible supplier is a related
body corporate of a New Zealand body corporate, and the New
Zealand body corporate is a registered responsible supplier and
has registered the electrical equipment as electrical equipment
supplied by a New Zealand body corporate.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
Subsection (6) provides for the meaning of relevant period in
this section, which is a period of 5 years from the date of the
registration of the electrical equipment in the Register by a
responsible supplier to the date that is 5 years after the day of
the expiry or the cancellation of that registration.
New section 67D of new Division 7 allows Energy Safe Victoria
to request a certificate of conformity from a responsible supplier
who has supplied or offered to supply registered level 3 in-scope
electrical equipment (including level 3 in-scope electrical
equipment that is a component of other electrical equipment)
during the relevant period, and creates an offence for the
responsible supplier failing to supply that certificate of
conformity within 10 business days. The penalty for breach
of this offence is 60 penalty units in the case of a natural person,
or 240 penalty units in the case of a body corporate.
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Subsection (3) provides an exception for where the responsible
supplier is registered under a corresponding law of New Zealand,
and at the time of its importation the electrical equipment was
registered to the person under a corresponding law of New
Zealand.
Subsection (4) provides an exception for responsible suppliers
who supply level 3 in-scope electrical equipment, or a component
of such equipment, imported from a body corporate, where
the responsible supplier is a related body corporate of a New
Zealand body corporate, and the New Zealand body corporate is
a registered responsible supplier and has registered the electrical
equipment as electrical equipment supplied by a New Zealand
body corporate.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
Subsection (5) provides for the meaning of relevant period in
this section, which is a period beginning on the date of issue of
a certificate of conformity and ending on the date that is 5 years
after the date of the expiry of the certificate of conformity.
New section 67E of new Division 7 creates an offence for a
responsible supplier to supply or offer to supply an item of
in-scope electrical equipment that is the subject of a suspended
certificate of conformity or a suspended certificate of suitability.
The penalty for breach of this offence is 60 penalty units in the
case of a natural person, or 240 penalty units in the case of
a body corporate. In this section, suspended certificate of
conformity means a certificate of conformity that is suspended
under new section 62I or 62M, and suspended certificate of
suitability means a certificate of suitability that is suspended
under new section 61 or 62B.
New section 67F of new Division 7 provides for an offence
relating to the on-sale of unregistered level 2 or level 3 in-scope
electrical equipment. It is an offence for a person to supply or
offer to supply an item of level 2 or level 3 in-scope electrical
equipment if that equipment was purchased by the person for
the purpose of supplying it or offering it for supply to another
21
person, and if the electrical equipment was not registered to a
responsible supplier on the date it was purchased by the person.
The penalty for breach of this offence is 60 penalty units in the
case of a natural person, or 240 penalty units in the case of a
body corporate. Unlike the offences in new sections 67 to 67E,
this offence applies to any person, not just responsible suppliers
(but including responsible suppliers).
Subsection (2) provides for a number of exceptions to the
offence, which are--
where the electrical equipment is registered to a
responsible supplier after the date it was purchased
by the person; or
where the person is a responsible supplier of the
electrical equipment; or
where the item of electrical equipment is second hand
equipment. Second hand equipment is defined in
new section 50 of new Division 1.
Note that under section 72 of the Criminal Procedure Act 2009,
where an Act provides for an exception from an offence, and
the accused wishes to rely on the exception, the accused bears
an evidential burden to point to evidence of the reasonable
possibility of the existence of facts that would establish the
exception.
New section 67G of new Division 7 creates an offence for a
person, other than a responsible supplier, to supply or offer to
supply an item of in-scope electrical equipment unless the item
is marked with the regulatory compliance mark, an alternative
mark, or another mark approved by a regulatory authority as
an alternative to the regulatory compliance mark. The penalty
for breach of this offence is 60 penalty units in the case of a
natural person, or 240 penalty units in the case of a body
corporate. This offence does not apply to a person if the item
of in-scope electrical equipment is second hand equipment.
Alternative mark, regulatory compliance mark and second hand
equipment are defined in new section 50 of new Division 1.
New section 67H of new Division 7 creates an offence for
a responsible supplier to supply or offer to supply an item
of in-scope electrical equipment unless the item is marked
with the regulatory compliance mark, an alternative mark,
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or another mark approved by a regulatory authority as an
alternative to the regulatory compliance mark. The penalty
for breach of this offence is 60 penalty units in the case of
a natural person, or 240 penalty units in the case of a body
corporate. Alternative mark, and regulatory compliance
mark are defined in new section 50 of new Division 1.
New section 67I of new Division 7 creates an offence relating
to the use of the regulatory compliance mark on in-scope
electrical equipment that does not satisfy the relevant standard.
It is an offence for a person to mark an item of in-scope electrical
equipment with the regulatory compliance mark or make a false
or misleading representation that the equipment is marked with
the regulatory compliance mark, if the equipment does not
satisfy the relevant standard for that item. The penalty for
breach of this offence is 60 penalty units in the case of a natural
person, or 240 penalty units in the case of a body corporate.
In this section, mark includes to mark the label or packaging
of an item of in-scope electrical equipment with the regulatory
compliance mark or an alternative mark approved by Energy
Safe Victoria or another regulatory authority. Alternative mark,
and regulatory compliance mark are defined in new section 50
of new Division 1. Unlike the offences in new sections 67
to 67E, this offence applies to any person, not just responsible
suppliers (but including responsible suppliers).
New section 67J of new Division 7 creates an offence for a
person to offer for hire an item of in-scope electrical equipment,
unless the item of in-scope electrical equipment is safe to be
connected to an electricity supply and the person ensures the
equipment satisfies the prescribed testing, labelling or tagging
of requirements. The penalty for breach of this offence is
60 penalty units in the case of a natural person, or 240 penalty
units in the case of a body corporate. Unlike the offences in
new sections 67 to 67E, this offence applies to any person, not
just responsible suppliers (but including responsible suppliers).
New section 67K of new Division 7 creates an offence for a
person, other than a responsible supplier, to supply or offer
to supply second hand equipment that is an item of in-scope
electrical equipment, unless the person ensures the equipment
satisfies the prescribed testing, labelling or tagging of
requirements. The penalty for breach of this offence is
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60 penalty units in the case of a natural person, or 240 penalty
units in the case of a body corporate.
Clause 11 amends section 69(2)(b) of the Principal Act to provide for
applications to review decisions made under Part 4 of the
Principal Act as amended by the Bill.
Clause 12 amends section 140A of the Principal Act, to update the list of
prescribed offences for which an infringement notice may be
served.
Clause 13 amends section 140D of the Principal Act, to reflect that some
penalties in the Act are prescribed.
Clause 14 amends section 153 of the Principal Act to provide the Governor
in Council with appropriate regulation-making powers for the
amendments made by this Bill to the Principal Act, and to make
other consequential amendments.
Clause 15 makes a consequential amendment to section 157(2)(e) of the
Principal Act, to clarify that regulations made under the Principal
Act may empower Energy Safe Victoria to exempt electrical
equipment or in-scope electrical equipment from all or any of the
requirements of the regulations.
Clause 16 provides for transitional arrangements for the amendments made
by this Bill to the Principal Act, by inserting new section 167 into
the Principal Act.
New section 167 generally provides for certificate of compliance,
certain approvals in respect of equipment and certifications,
which were in force immediately before the commencement
day of the Bill, to continue in force until the day of expiry or
cancellation or the fifth anniversary of the commencement day,
whichever is earlier.
Further, for 6 months on and from the commencement day,
a responsible supplier who supplies or offers to supply any
in-scope electrical equipment is taken to be a registered
responsible supplier, is taken to have marked the equipment
with a regulatory compliance mark, and (in relation to level 2
in-scope electrical equipment) is taken to have satisfied certain
documentary evidence and registration requirements.
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A person other than a responsible supplier may supply or offer
to supply in-scope electrical equipment as if the equipment
was registered and marked with a regulatory compliance
mark, if the equipment was purchased for the purpose of
supplying it or offering it for supply to another person before
the commencement day or in the period not exceeding 6 months
after the commencement day.
Part 3--Energy Safe Victoria Act 2005
Clause 17 inserts new section 7B into the Energy Safe Victoria Act 2005
to provide Energy Safe Victoria with the necessary powers
relating to the use and disclosure of information to enable it to
perform its functions under the Principal Act as amended by the
Bill. This amendment is necessary to facilitate the disclosure of
information to regulatory authorities under a corresponding law.
Part 4--Repeal of amending Act
Clause 18 repeals this Act on the first anniversary of the first day on
which all of the provisions in this Act are in operation.
The repeal of this Act does not affect the continuing operation
of the amendments made by the Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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