An Act to encourage more efficient use of energy by large energy
using businesses, and for related purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Energy
Efficiency Opportunities Act 2006.
2
Commencement [see Note 1]
This Act commences on the day on which it
receives the Royal Assent.
3
Object
(1) The object of this Act is to improve the
identification and evaluation of energy efficiency opportunities by large
energy using businesses and, as a result, to encourage implementation of cost
effective energy efficiency opportunities.
(2) In order to achieve its object, this Act
requires large energy using businesses:
(a) to undertake an assessment of
their energy efficiency opportunities to a minimum standard in order to improve
the way in which those opportunities are identified and evaluated; and
(b) to report publicly on the outcomes
of that assessment in order to demonstrate to the community that those
businesses are effectively managing their energy.
4
Definitions
(1) In this Act:
approved assessment plan means an assessment
plan that has been approved under section 16 or subsection 17(4).
Australia does not include any external
Territory. However, it includes an installation (within the meaning of the Customs
Act 1901) that is deemed by section 5C of that Act to be part of Australia.
civil penalty provision has the meaning given
by clause 1 of Schedule 1.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
controlling corporation has the meaning given
by section 7.
Court means the Federal Court of Australia.
energy use threshold has the meaning given by
section 10.
group has the meaning given by subsection
8(1).
holding company has the meaning given by
section 6.
joint venture means an enterprise carried on
by 2 or more entities in common otherwise than in partnership.
member has the meaning given by subsection
8(2).
monitoring warrant means a warrant issued
under section 38.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
registered corporation means a controlling
corporation that is registered under Part 4.
Secretary means the Secretary of the
Department.
subsidiary has the meaning given by section 46
of the Corporations Act 2001.
warrant premises, in relation to a monitoring
warrant, means the premises to which the warrant relates.
(2) In this Act:
(a) a reference to energy use is taken
to be a reference to energy use in Australia; and
(b) a reference to energy efficiency
is taken to be a reference to energy efficiency in Australia.
5
Schedule 1 (consequences of contravening civil penalty provisions)
Schedule 1 has effect.
Part 2—Definitions relating to groups
6
Holding company
A holding company, in
relation to a body corporate, is a body corporate of which the first body
corporate is a subsidiary.
7
Controlling corporation
(1) A controlling corporation
is a constitutional corporation that:
(a) does not have a holding company
incorporated in Australia; and
(b) is covered by subsection (2).
(2) A corporation is covered by this section
unless:
(a) the corporation’s activities are
mainly in the electricity generation, electricity and gas transmission, or
electricity and gas distribution sectors; and
(b) it is within a class of
corporations (if any) specified in the regulations.
8
Group and members of a group
(1) A controlling corporation’s group consists
of the following entities:
(a) the controlling corporation;
(b) the controlling corporation’s
subsidiaries covered by subsections (3) and (4) (if any);
(c) the joint ventures covered by subsection (5)
(if any);
(d) the partnerships covered by subsection (6)
(if any).
(2) The members of the group
are the entities mentioned in subsection (1).
(3) A subsidiary of the controlling
corporation is covered by this section unless:
(a) the subsidiary is also a
subsidiary of another body corporate because the other body corporate meets the
requirement in subparagraph 46(a)(i) or (ii) of the Corporations Act 2001 in
relation to the subsidiary; and
(b) the other body corporate is not a
member of the group (including by reason of a previous operation of this
subsection).
(4) A subsidiary of the controlling
corporation is covered by this section unless:
(a) the subsidiary’s activities are
mainly in the electricity generation, electricity and gas transmission, or
electricity and gas distribution sectors; and
(b) it is within a class of entities
(if any) specified in the regulations.
(5) A joint venture is covered by this
subsection if a member of the group (other than a joint venture or partnership)
is a participant in the joint venture and the participants in the joint venture
have either:
(a) nominated that member as the
responsible entity for the joint venture in accordance with regulations made
for the purposes of subsection (7); or
(b) not nominated an entity as the
responsible entity for the joint venture in accordance with those regulations.
(6) A partnership is covered by this
subsection if a member of the group (other than a joint venture or partnership)
is a partner in the partnership and the partners in the partnership have
either:
(a) nominated that member as the
responsible entity for the partnership in accordance with regulations made for
the purposes of subsection (7); or
(b) not nominated an entity as the
responsible entity for the partnership in accordance with those regulations.
(7) The regulations may establish rules under
which:
(a) participants in a joint venture
may make, and revoke, nominations for the purposes of subsection (5); and
(b) partners in a partnership may
make, and revoke, nominations for the purposes of subsection (6).
Part 3—Corporations required to register
9
Obligation to apply to register
(1) If the following are satisfied in
relation to a financial year (the trigger year):
(a) a controlling corporation’s group
meets the energy use threshold for that year under section 10;
(b) the controlling corporation is not
registered under Part 4 on 30 June of that year;
the controlling corporation must, in accordance with this
section, apply in the next financial year to be registered under Part 4.
Note 1: Clause 3 of Schedule 1 provides for a
civil penalty for failing to comply with this subsection.
Note 2: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
(2) Subsection (1) does not apply if the
corporation:
(a) did not know; and
(b) could not, with reasonable diligence,
have ascertained;
that its group met the energy use threshold for the
trigger year under section 10.
(3) A corporation that wishes to rely on subsection (2)
bears an evidential burden in relation to that matter.
(4) The application must be made during the
period:
(a) beginning on 1 July in the
financial year after the trigger year; and
(b) ending on 31 March in the
financial year after the trigger year.
(5) The application must:
(a) identify the controlling
corporation; and
(b) contain any other information
required by the regulations; and
(c) be in the form (if any) specified
in the regulations.
(5A) Regulations made for the purposes of paragraph (5)(b)
may only require the following information:
(a) information that is reasonably
necessary for assessing applications made under this section;
(b) information that would be required
by subsection 12(4) to be entered on the Register if the controlling
corporation were registered under Part 4.
(6) This section applies only if the trigger
year ends on or after 30 June 2006.
10
Energy use threshold
(1) A controlling corporation’s group meets
the energy use threshold for a financial year if in that year the
total energy used by the entities that are members of the group is more than
0.5 petajoules.
(3) For the purposes of subsection (1),
the energy used by an entity has the meaning given by the
regulations.
(4) Without limiting subsection (3),
regulations made for the purposes of that subsection may determine that
meaning:
(a) by reference to particular kinds
and uses of energy; and
(b) in relation to particular periods
during which an entity is a member of a controlling corporation’s group during
a financial year.
(5) Without limiting subsection (3),
regulations made for the purposes of that subsection may determine that
meaning:
(a) in relation to activities of a
member of a controlling corporation’s group as the trustee of a trust; and
(b) in relation to activities under a
franchise of which a member of a controlling corporation’s group is a
franchisor.
11
Exemption from registration on application by corporation
(1) Subsection 9(1) does not apply to a
controlling corporation in relation to a particular financial year if the
corporation is covered by an exemption under subsection (5) for that year.
(2) A controlling corporation may apply to
the Secretary for an exemption from the requirement to be registered under Part 4
in relation to a particular financial year if:
(a) it is not already registered under
Part 4; and
(b) the controlling corporation’s
group met the energy use threshold for the previous financial year (the trigger
year) under section 10.
Note: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
(3) The application must be made on or before
31 December in the financial year after the trigger year.
(4) The application must:
(a) contain information required by
the regulations; and
(b) be in the form (if any) specified
in the regulations.
(4A) Regulations made for the purposes of paragraph (4)(a)
may only require information that is reasonably necessary for assessing
applications made under this section.
(5) The Secretary must grant the exemption
if:
(a) the application is in accordance
with subsections (2), (3) and (4); and
(b) the Secretary is satisfied that
the controlling corporation’s group is not likely to meet the energy use
threshold under section 10 for the financial year after the trigger year.
(6) The Secretary is taken to have granted
the exemption under subsection (5) if he or she has not given the
controlling corporation notice in writing, within 60 days after receiving the
application for exemption, of a decision not to grant the exemption.
Part 4—Registration
12 The
Register
(1A) The object of this section is to encourage
compliance with this Act by providing for a register containing information
about corporations registered under this Part and their compliance with this
Act.
(1) The Secretary must cause a Register to be
kept for the purposes of this Act.
(2) The Register is called the Register of
Corporations for the Energy Efficiency Opportunities Scheme.
(3) The Secretary may cause the contents of
part or all of the Register to be made available to the public by electronic or
other means.
(4) The Secretary must cause the following
information, and only that information, to be entered on the Register:
(a) the name of each corporation that
the Secretary must register under section 13;
(b) any other matters required by the
regulations.
(4A) Regulations made for the purposes of paragraph (4)(b)
may only require information that is reasonably necessary to further the object
of this section.
(5) A corporation is registered under this
Part when the Secretary has entered the name of the corporation on the
Register.
13
Secretary must register corporation
The Secretary must register a
corporation under this Part if:
(a) the Secretary is satisfied that
the corporation must apply to be registered in accordance with sections 9
and 11; and
(a) the corporation has applied for
registration in accordance with section 9.
14
Corporation may apply for deregistration
(1) A registered corporation may apply to the
Secretary to be deregistered.
Note: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty of
confidentiality.
(2) The application must:
(a) contain information required by
the regulations; and
(b) be in the form (if any) specified
in the regulations.
(2A) Regulations made for the purposes of paragraph (2)(a)
may only require information that is reasonably necessary for assessing
applications made under this section.
(3) The Secretary must remove the name of the
corporation from the Register if the Secretary is satisfied that the registered
corporation’s group is not likely to meet the energy use threshold in section 10
for:
(a) the financial year in which the
application is made; and
(b) the next 2 financial years.
(4) The corporation ceases to be registered
under this Part when the Secretary has removed its name from the Register.
Part 5—Assessment plan
15
Registered corporation must submit assessment plan every 5 years
(1) A registered corporation must give the
Secretary an assessment plan meeting the requirements in section 18.
Note: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
(2) An assessment plan must be given to the
Secretary at a time during each of the following periods:
(a) the period of 18 months beginning
on 1 July in the financial year in which the corporation was most recently
required to make an application under section 9 to be registered under
Part 4;
(b) the period of 18 months beginning
on every fifth anniversary of that 1 July.
Example: A registered corporation’s trigger year under
section 9 is the financial year 2005‑2006. In the financial year
2006‑2007 the corporation is required to apply under that section to be
registered under Part 4.
The corporation’s first assessment plan
must be given during the period of 18 months beginning on 1 July 2006 and ending on 31 December 2007.
The corporation’s later assessment plans
must be given during the period of 18 months beginning on 1 July 2011 and ending on 31 December 2012, and so on.
(4) To avoid doubt, a controlling corporation
that has applied to be registered under Part 4, but is not yet registered,
may give the Secretary an assessment plan for the purposes of complying with subsection (1).
(5) A registered corporation contravenes this
subsection if it fails to comply with subsections (1) and (2).
Note: Clause 3 of Schedule 1 provides for
a civil penalty for failing to comply with this subsection.
16
Approval of assessment plan
(1) This section applies if the Secretary has
been given an assessment plan under section 15.
(2) If the Secretary is satisfied that the
assessment plan substantially meets the requirements in section 18, the
Secretary must:
(a) approve the assessment plan; and
(b) give the controlling corporation
written notice of the approval.
(3) If the Secretary has not refused to
approve the assessment plan within 6 months after receiving it, he or she:
(a) is taken to be satisfied that it
substantially meets the requirements in section 18; and
(b) must deal with it under subsection (2)
accordingly.
17
Refusal to approve assessment plan
(1) This section applies if:
(a) the Secretary has been given an
assessment plan under section 15; and
(b) he or she is not satisfied that
the assessment plan substantially meets the requirements in section 18.
(2) The Secretary must:
(a) refuse to approve the assessment
plan; and
(b) give the controlling corporation
written notice of the refusal.
(3) The Secretary must also:
(a) prepare a revised assessment plan
for the controlling corporation that substantially meets the
requirements in section 18, to the satisfaction of the Secretary; and
(b) give the controlling corporation a
notice:
(i) setting out the
revised assessment plan; and
(ii) inviting the
controlling corporation to comment on the revised assessment plan within a
specified period.
(4) At the end of the period specified in the
invitation, the Secretary may:
(a) approve the revised assessment
plan; and
(b) give the controlling corporation
written notice of the approval.
(5) In making a decision under subsection (4),
the Secretary must consider any written comments received from the controlling
corporation within the period specified in the invitation.
(6) If the Secretary does not approve the
revised assessment plan under subsection (4), this section applies in
relation to that plan as if:
(a) it were an assessment plan that
the Secretary had been given under section 15; and
(b) the Secretary were not satisfied
that it substantially met the requirements in section 18.
Note: This means that the Secretary must prepare a
new revised assessment plan, and send it to the controlling corporation for
comment.
18
Requirements for an assessment plan
(1) An assessment plan must set out a
proposal for assessing the opportunities for improving the energy efficiency of
the controlling corporation’s group for the period mentioned in this table:
|
Assessment plans
|
|
Item
|
For this assessment
plan:
|
the period is:
|
|
1
|
First assessment plan given after the corporation’s most
recent application for registration under Part 4
|
the period of 5 years beginning on 1 July in the
financial year in which the corporation was required to make that
application.
|
|
2
|
If the corporation is registered because of that
application—each later assessment plan given during the period of that
registration
|
the period of 5 years beginning on the day after the end
of the period covered by the last assessment plan.
|
Example: A controlling corporation’s trigger year under
section 9 is the financial year 2005‑2006. In the financial year
2006‑2007 the corporation is required to apply under that section to be
registered under Part 4.
The corporation’s first assessment plan
must cover the period of 5 years beginning on 1 July 2006 and ending on 30 June 2011.
The corporation’s later assessment plans
must cover the period of 5 years beginning on 1 July 2011 and ending on 30 June 2016, and so on.
(3) The assessment plan must be in the form
(if any) specified in the regulations.
(4) The proposal must set out particular
actions that need to be done to assess those opportunities.
(5) Those actions must be specified for the
group:
(a) as a whole; or
(b) in terms of particular parts of
the group.
(6) The proposal must set out a deadline or
deadlines for doing all of those actions.
(7) The assessment plan must set out the
manner in which the controlling corporation intends to comply with subsection
22(1).
(7A) Without limiting the scope of subsection (7),
the assessment plan must set out:
(a) whether the controlling
corporation intends to rely on section 22A in order to comply with its
obligations under subsection 22(1); and
(b) if the controlling corporation
intends to rely on section 22A in that way—the other members of the group
that are intended to prepare a report in accordance with section 22A; and
(c) whether the controlling
corporation intends to rely on section 22B in order to comply with its
obligations under subsection 22(1); and
(d) if the controlling corporation
intends to rely on section 22B in that way—the corporation that is
intended to prepare a report in accordance with section 22B.
(8) The regulations may:
(a) set out requirements for a
proposal in relation to the following:
(i) the types of actions
mentioned in subsection (4);
(ii) the deadlines for
doing those actions;
(iii) matters that must be
set out for the purposes of subsections (7) and (7A); and
(b) require particular information to
be set out in the assessment plan.
(9) Regulations made for the purposes of paragraph (8)(b)
may only require information that:
(a) is reasonably necessary to assess
the extent to which this Act achieves its objects; or
(b) is reasonably necessary for the
administration of this Act.
19
Registered corporation may seek variation to approved assessment plan
(1) A registered corporation with an approved
assessment plan may give the Secretary a proposed variation to the plan.
Note: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
(2) Section 16 and subsections 17(1) and
(2) apply to the variation as if it (together with the approved assessment
plan) were an assessment plan given to the Secretary.
Part 6—Energy efficiency opportunities assessments
20
Requirement to carry out energy efficiency opportunities assessments
(1A) The object of this section is to require
registered corporations to undertake assessments of a kind mentioned in
paragraph 3(2)(a).
(1) A registered corporation must ensure the
carrying out of the proposal in its approved assessment plan for assessing the
opportunities for improving the energy efficiency of its group.
(2) A registered corporation must ensure the
carrying out of that proposal in accordance with requirements (if any) set out
in the regulations.
(3) Regulations made for the purposes of subsection (2)
may set out requirements relating to:
(a) the communication of objectives
about energy use; and
(b) the measurement and analysis of
energy use, and of related business activity; and
(c) the identification and evaluation
of opportunities for improving energy efficiency; and
(d) any other matter reasonably
necessary to further the object of this section.
(4) A registered corporation contravenes this
subsection if it fails to comply with subsections (1) and (2).
Note: Clause 3 of Schedule 1 provides for
a civil penalty for failing to comply with this subsection.
Part 7—Reporting about energy efficiency opportunities assessments
21
Overview
A registered corporation must:
(a) prepare and make available to the
public a report in accordance with section 22; and
(b) prepare and give to the Secretary
a report in accordance with section 23.
22
Reporting to the public
(1A) The object of this section is to create
public reporting requirements of a kind mentioned in paragraph 3(2)(b).
(1) A registered corporation must:
(a) prepare a report in accordance
with this section for each period mentioned in subsection (2); and
(b) make the report available to the
public in accordance with subsection (5).
Note: Clause 3 of Schedule 1 provides for
a civil penalty for failing to comply with this subsection.
(2) The period is the period specified in the
regulations.
(3) The report must contain:
(a) a description of the way in which
the corporation has carried out, during the period, the proposal in its
approved assessment plan for assessing the opportunities for improving the
energy efficiency of its group; and
(b) the results of carrying out that
proposal; and
(c) the response of the corporation to
those results; and
(d) any other information required by
the regulations.
(3A) Regulations made for the purposes of paragraph (3)(d)
may only require information that is reasonably necessary to further the object
of this section.
(4) The report must:
(a) be in the form (if any) specified
in the regulations; and
(b) be signed by a person who is the
chair of the board of directors, the chief executive officer, the managing
director, or an equivalent officer, of the registered corporation; and
(c) include a statement by that person
that the board of directors of the registered corporation has reviewed and
noted the report.
(5) The report must be made available to the
public:
(a) at the time specified in the
regulations; and
(b) in the manner (if any) specified
in the regulations.
(6) Despite subsection (5), the report
need not be made available to the public at a time if, within the period of 12
months ending at that time, the registered corporation had made another report
under this section available to the public.
22A
Public reporting—decentralised reporting
(1) The registered corporation is taken to
comply with subsection 22(1) in relation to a period mentioned in subsection
22(2) if:
(a) the
registered corporation’s approved assessment plan sets out, in accordance with
paragraph 18(7A)(a), its intention to rely on this section in order to comply
with its obligations under subsection 22(1); and
(b) the registered corporation
prepares a report that describes the way in which only part of the proposal
mentioned in paragraph 22(3)(a) was carried out during the period; and
(c) one or more other members of the
group prepared a report or reports describing the way in which the remaining
part or parts of the proposal were carried out during the period; and
(d) each report mentioned in paragraphs (b)
and (c):
(i) meets the requirements
in subsection 22(3) for the part or parts of the proposal to which the report
relates; and
(ii) meets the requirements
in subsection 22(4); and
(iii) has been made
available to the public in accordance with subsection 22(5).
(2) For the purposes of applying subsection (1)
in relation to a report prepared by a member of the group other than the
registered corporation:
(a) treat references in subsections
22(3) and (4) to the corporation, or the registered corporation, as references
to the member of the group that prepared the report; and
(b) treat references in subsection
22(3) to the proposal in the approved assessment plan of the registered
corporation as references to the part or parts of that proposal to which the
report relates.
22B
Public reporting—reporting by manager of joint venture
(1) Subsection (2) applies if:
(a) a joint venture is a member of the
registered corporation’s group; and
(b) the participants in the joint
venture have nominated a member of the group (the responsible entity)
as the responsible entity for the joint venture for the purposes of subsection
8(5); and
(c) a corporation (the operator)
operates or manages the joint venture; and
(d) the registered corporation’s
approved assessment plan sets out, in accordance with paragraph 18(7A)(c), its
intention to rely on this section in order to comply with its obligations under
subsection 22(1); and
(e) the operator prepares a report
that describes the way in which the part of the proposal mentioned in paragraph
22(3)(a) relating to the joint venture was carried out during the period; and
(f) the report is signed by the chief
executive officer of the operator; and
(g) the report includes a statement by
the chief executive officer of the operator that the board of directors of the
responsible entity has reviewed and noted the report.
(2) If this subsection applies:
(a) subsection 22A(1) applies in
relation to the report prepared by the operator as if the operator were a
member of the group; and
(b) for the purposes of applying
subsection 22A(1) in relation to the report prepared by the operator:
(i) treat the reference in
subsection 22(3) to the corporation as a reference to the operator; and
(ii) treat references in
subsection 22(3) to the proposal in the approved assessment plan of the
registered corporation as references to the part or parts of that proposal to
which the report relates; and
(iii) disregard paragraphs
22(4)(b) and (c).
23
Reporting to the Secretary
(1) A registered corporation must:
(a) prepare a report in accordance
with this section for each period mentioned in subsection (2); and
(b) give the report to the Secretary
in accordance with subsection (5).
Note 1: Clause 3 of Schedule 1 provides for a
civil penalty for failing to comply with this subsection.
Note 2: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
(2) The period is the period specified in the
regulations.
(3) The report must contain:
(a) the information required to be
contained in a report made to the public under section 22; and
(b) any further information required
by the regulations.
(3A) Regulations made for the purposes of paragraph (3)(b)
may only require information that is reasonably necessary to:
(a) administer this Act; or
(b) assess the extent to which this
Act achieves its objects; or
(c) assess the benefits and costs of
complying with this Act.
(4) The report must be in the form (if any)
specified in the regulations.
(5) The report must be given to the
Secretary:
(a) at the time specified in the
regulations; and
(b) in the manner (if any) specified
in the regulations.
(6) Despite subsection (5), the report
need not be given to the Secretary at a time if, within the period of 12 months
ending at that time, the registered corporation had given the Secretary another
report under this section.
Part 8—Powers of inspection
Division 1—Overview
24
Overview of Part
(1) This Part provides for powers of
inspection in relation to obligations under this Act.
(2) Division 2 provides for the
appointment of authorised officers to undertake inspection functions and for
the issue of identification for such persons.
(3) Division 3 sets out the powers of
authorised officers and Division 4 sets out the obligations imposed on
authorised officers in the exercise of those powers.
(4) Division 5 deals with an occupier’s
rights and responsibilities in circumstances where an authorised officer seeks
to exercise inspection powers.
(5) Division 6 deals with the procedure
for obtaining and the nature of monitoring warrants.
Division 2—Appointment of authorised officers and identity cards
25
Appointment of authorised officers
(1) The Secretary may, in writing, appoint:
(a) an officer or employee of the
Department; or
(b) any other suitably qualified
person;
to be an authorised officer for the purposes of this Part.
(2) In exercising powers or performing
functions as an authorised officer, an authorised officer must comply with any
directions of the Secretary.
Note: Section 70 of the Crimes Act 1914 creates
an offence where Commonwealth officers (including persons performing services
for or on behalf of the Commonwealth) disclose information in breach of a duty
of confidentiality.
26
Identity cards
(1) The Secretary must issue an identity card
to an authorised officer in the form prescribed by the regulations. The
identity card must contain a recent photograph of the authorised officer.
(2) A person commits an offence if:
(a) the person has been issued with an
identity card; and
(b) the person ceases to be an
authorised officer; and
(c) the person does not, as soon as
practicable after so ceasing, return the identity card to the Secretary.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3) An authorised officer must carry the
identity card at all times when exercising powers or performing functions as an
authorised officer.
Division 3—Powers of authorised officer
Subdivision A—Monitoring powers
27
Authorised officer may enter premises by consent or under monitoring warrant
(1) For the purposes of substantiating
information provided under this Act or of determining whether this Act has been
complied with, an authorised officer may:
(a) enter any premises:
(i) during normal business
hours; or
(ii) if the
entry is made under a monitoring warrant—at any time specified in the warrant;
and
(b) exercise the monitoring powers set
out in section 28.
(2) An authorised officer is not authorised
to enter premises under subsection (1) unless:
(a) the premises are business
premises, the occupier of the premises has consented to the entry and the
officer has shown his or her identity card if required by the occupier; or
(b) the entry is made under a
monitoring warrant.
(3) If an authorised officer is on the
premises with the consent of the occupier, the authorised officer must leave
the premises if the occupier asks the authorised officer to do so.
28
Monitoring powers of authorised officers
(1) For the purposes of this Part, the
following are the monitoring powers that an authorised officer may exercise in
relation to premises under section 27:
(a) the power to search the premises
for any thing on the premises that may relate to compliance with this Act;
(b) the power to examine any activity
conducted on the premises that may relate to information provided for the
purposes of this Act;
(c) the power to examine any thing on
the premises that may relate to information provided for the purposes of this
Act;
(d) the power to take photographs or
make video or audio recordings or sketches on the premises of any such activity
or thing;
(e) the power to inspect any document
on the premises that may relate to information provided for the purposes of
this Act;
(f) the power to take extracts from,
or make copies of, any such document;
(g) the power to take onto the
premises such equipment and materials as the authorised officer requires for
the purpose of exercising powers in relation to the premises;
(h) the power to secure a thing that:
(i) is found during the
exercise of monitoring powers on the premises; and
(ii) an authorised officer
believes on reasonable grounds affords evidence of a contravention of this Act
or of the commission of an offence against the Crimes Act 1914;
until a warrant is obtained to
seize the thing;
(i) the powers in subsections (2)
and (3).
(2) For the purposes of this Part, monitoring
powers includes the power to operate equipment at premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage
device that:
(i) is at the premises;
and
(ii) can be used with the
equipment or is associated with it;
contains information that is relevant to assessing the
correctness of information provided under this Act.
(3) For the purposes of this Part, monitoring
powers includes the following powers in relation to information
described in subsection (2) found in the exercise of the power under that
subsection:
(a) the power to operate facilities at
the premises to put the information in documentary form and copy the documents
so produced;
(b) the power to operate facilities at
the premises to transfer the information to a disk, tape or other storage
device that:
(i) is brought to the
premises for the exercise of the power; or
(ii) is at the premises and
the use of which for the purpose has been agreed in writing by the occupier of
the premises;
(c) the power to remove from the
premises a disk, tape or other storage device to which the information has been
transferred in exercise of the power under paragraph (b).
Subdivision B—Power of authorised officer to ask questions and seek
production in certain circumstances
29
Authorised officer may request persons to answer questions
(1) If the authorised officer was only
authorised to enter premises because the occupier of the premises consented to
the entry, the authorised officer may ask the occupier to:
(a) answer any questions related to
the operation of this Act that are put by the authorised officer; and
(b) produce any document requested by
the authorised officer that is so related.
(2) If the authorised officer was authorised
to enter the premises by a monitoring warrant, the authorised officer has power
to require the occupier (if the occupier is in or on the premises), or another
person who apparently represents the occupier (if that person is in or on the
premises), to:
(a) answer any questions related to
the operation of this Act that are put by the authorised officer; and
(b) produce any document requested by
the authorised officer that is so related.
(3) A person commits an offence if the person
refuses or fails to comply with a requirement under subsection (2).
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(4) An individual is excused from complying
with a requirement of subsection (2) if the answer to the question or the
production of the document might tend to incriminate the individual or expose
the individual to a penalty.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal
Code.
Division 4—Obligations and incidental powers of authorised officers
30
Authorised officer must produce identity card on request
An authorised officer is not entitled to
exercise any powers under this Part in relation to premises if:
(a) the occupier of the premises
requires the authorised officer to produce his or her identity card for
inspection by the occupier; and
(b) the authorised officer fails to
comply with the requirement.
31
Consent
(1) Before obtaining the consent of a person
for the purposes of paragraph 27(2)(a), the authorised officer must inform the person
that he or she may refuse consent.
(2) An entry of an authorised officer because
of the consent of a person is not lawful unless the person voluntarily
consented to the entry.
32
Announcement before entry
An authorised officer executing a monitoring
warrant must, before entering premises under the warrant:
(a) announce that he or she is
authorised to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
33
Details of monitoring warrant to be given to occupier etc. before entry
(1) If a monitoring warrant is being executed
and the occupier of the premises in respect of which it is being executed or
another person who apparently represents the occupier is present at the
premises, the authorised officer must make available to that person a copy of
the warrant.
(2) The authorised officer must identify
himself or herself to that person.
(3) The copy of the warrant referred to in subsection (1)
need not include the signature of the magistrate who issued the warrant.
Note: Monitoring warrants are issued under section 38.
34 Use
of electronic equipment in exercising monitoring powers
(1) An authorised officer or a person
assisting that officer may operate electronic equipment already at premises in
order to exercise monitoring powers if he or she believes, on reasonable
grounds, that the operation of the equipment can be carried out without damage
to the equipment.
(2) If the authorised officer or a person
assisting believes, on reasonable grounds, that:
(a) there is on the premises material
relating to information supplied under this Act that may be accessible by
operating electronic equipment on the premises; and
(b) expert assistance is required to
operate the equipment; and
(c) if he or she does not take action
under this subsection, the material may be destroyed, altered or otherwise
interfered with;
he or she may do whatever is necessary to secure the
equipment, whether by locking it up, placing a guard, or otherwise.
(3) The authorised officer or a person
assisting must give notice to the occupier of the premises of his or her
intention to secure equipment and of the fact that the equipment may be secured
for up to 24 hours.
(4) The equipment may be secured:
(a) for a period not exceeding 24
hours; or
(b) until the equipment has been
operated by the expert;
whichever first happens.
(5) If an authorised officer or a person
assisting believes, on reasonable grounds, that the expert assistance will not
be available within 24 hours, he or she may apply to a magistrate for an
extension of the period.
(6) The magistrate may extend the period of
time, up to a maximum of a further 48 hours.
(7) The authorised officer or a person
assisting must give notice to the occupier of the premises of his or her
intention to apply for an extension and the occupier is entitled to be heard in
relation to that application.
(8) The provisions of this Part relating to
the issue of monitoring warrants apply, with such modifications as are
necessary, to the issue of an extension.
(9) In this section:
premises means:
(a) premises that an authorised
officer has entered, and remains on, with the consent of the occupier; and
(b) warrant premises.
35
Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being
operated as mentioned in section 34:
(i) damage is caused to
the equipment; or
(ii) the data recorded on
the equipment is damaged; or
(iii) programs associated
with the use of the equipment, or with the use of the data, are damaged or
corrupted; and
(b) the damage or corruption occurs
because:
(i) insufficient care was
exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was
exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as the Commonwealth and the owner or
user agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings in the
Court for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises, or the
occupier’s employees or agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money
appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage
by erasure of data or addition of other data.
Division 5—Occupier’s rights and responsibilities
36
Occupier entitled to be present during execution of monitoring warrant
(1) If a monitoring warrant is being executed
and the occupier of the warrant premises, or another person who apparently
represents the occupier, is present at the premises, the person is entitled to
observe the execution of the warrant.
(2) The right to observe the execution of the
warrant ceases if the person impedes that execution.
(3) This section does not prevent the
execution of the warrant in 2 or more areas of the premises at the same time.
37
Occupier to provide authorised officer with all facilities and assistance
(1) The occupier of warrant premises, or
another person who apparently represents the occupier, must provide the officer
executing the warrant and any person assisting that officer with all reasonable
facilities and assistance for the effective exercise of their powers.
(2) A person commits an offence if the person
fails to comply with the obligation set out in subsection (1).
Penalty: 10 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Division 6—Warrants
38
Monitoring warrants
(1) An authorised officer may apply to a
magistrate for a warrant under this section in relation to premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if the magistrate is satisfied, by information
on oath or affirmation, that it is reasonably necessary that one or more
authorised officers should have access to the premises for the purposes of
substantiating information provided under this Act or of determining whether
this Act has been complied with.
(3) The magistrate must not issue the warrant
unless the authorised officer or some other person has given to the magistrate,
either orally or by affidavit, such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought.
(4) The warrant must:
(a) authorise one or more authorised
officers (whether or not named in the warrant), with such assistance and by
such force as is necessary and reasonable:
(i) to enter the premises;
and
(ii) to exercise the powers
set out in section 28 in relation to the premises; and
(b) state whether the entry is
authorised to be made at any time of the day or during specified hours of the
day; and
(c) specify the day (not more than 6
months after the issue of the warrant) on which the warrant ceases to have
effect; and
(d) state the purpose for which the
warrant is issued.
Part 9—Miscellaneous
39
Delegation
The Secretary may, by signed instrument,
delegate to an SES employee, or an acting SES employee, in the Department all
or any of the Secretary’s powers under this Act.
40 AAT
review of decisions
An application may be made to the
Administrative Appeals Tribunal for the review of:
(a) a decision of the Secretary not to
grant an exemption under section 11; and
(b) a decision of the Secretary not to
register a corporation in accordance with section 13; and
(c) a decision of the Secretary not to
deregister a corporation in accordance with section 14; and
(d) a decision of the Secretary not to
approve an assessment plan, or a variation to an assessment plan, under
subsections 17(1) and (2); and
(e) a decision of the Secretary to
approve an assessment plan under subsection 17(4).
41
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.