An Act to promote the disclosure of information
about the energy efficiency of buildings, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited
as the Building Energy Efficiency Disclosure Act 2010.
2 Commencement
(1) Each provision of this
Act specified in column 1 of the table commences, or is taken to have
commenced, in accordance with column 2 of the table. Any other statement in
column 2 has effect according to its terms.
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Commencement
information
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Column
1
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Column
2
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Column
3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in
this Act not elsewhere covered by this table
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The day this Act receives the Royal
Assent.
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28 June 2010
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2. Sections 3 to 72
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1 July 2010.
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1 July 2010
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Note: This table relates only to the provisions of this
Act as originally passed by both Houses of the Parliament and assented to. It
will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table
contains additional information that is not part of this Act. Information in
this column may be added to or edited in any published version of this Act.
3 Definitions
In this Act:
accredited assessor means a person who is accredited as an assessor under Division 1
of Part 3, but does not include a person whose accreditation has been
suspended or revoked.
auditing authority means:
(a) the Secretary; or
(b) a person or body
appointed by the Secretary under section 33.
auditor means a person appointed as an auditor under section 34.
building energy efficiency
certificate means a certificate issued under
section 13A.
civil
penalty order means an
order under section 53.
civil
penalty provision has the meaning given by
section 51.
constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies.
Court means:
(a) the Federal Court
of Australia; or
(b) the Federal
Circuit Court of Australia.
current: a building energy efficiency certificate is current
for the period set out in the certificate under paragraph 13A(2)(d).
current energy efficiency rating means an energy efficiency rating set out in a current building
energy efficiency certificate.
disclosure affected area of a
building means an area of a building, other
than an exempt area, that is:
(a) used or capable
of being used as an office; and
(b) of a kind
determined by the Minister under subsection 10(2) to be disclosure
affected.
disclosure affected building means a building, other than an exempt building, that is:
(a) used or capable
of being used as an office; and
(b) of a kind
determined by the Minister under subsection 10(1) to be disclosure
affected.
energy efficiency disclosure obligation means an obligation under section 11, subsection 12(6) or
section 15.
entity has the same meaning as in the Income Tax Assessment Act 1997.
exempt area, of a building, means an area exempted under section 17 or
17A.
exempt building means a building exempted under section 17 or 17A.
inviting an offer to lease, in relation to a building or an area of a building, has a meaning
affected by section 5.
inviting an offer to purchase, in relation to a building, has a meaning affected by section 4.
inviting an offer to sublease, in relation to a building or an area of a building, has a meaning
affected by section 5.
issue day: see section 13.
issuing authority means:
(a) the Secretary; or
(b) a person or body
approved by the Secretary under section 71A.
lighting energy efficiency
assessment means:
(a) in relation to a
building—an assessment of the energy efficiency of the lighting for the
building that might reasonably be expected to remain if the building is sold,
let or sublet; or
(b) in relation to an
area of a building—an assessment of the energy efficiency of the lighting for
the area that might reasonably be expected to remain if the area is let or
sublet.
monitoring powers has the meaning given by section 37.
monitoring warrant is a warrant issued under section 47.
non‑assessable, in relation to a building or an area of a building: see section 17.
offer to let, in relation to a building or an area of a building, has a meaning
affected by section 5.
offer to sell, in relation to a building, has a meaning affected by section 4.
offer to sublet, in relation to a building or an area of a building, has a meaning
affected by section 5.
person assisting an auditor has the meaning given by section 38.
registered, in relation to a building energy efficiency certificate, means
registered on the Building Energy Efficiency Register.
reviewable decision has the meaning given by section 67.
Secretary means the Secretary of the Department.
start day: see section 13.
wholly‑owned subsidiary has the same meaning as in the Income Tax Assessment Act 1997.
4 Offering to sell and inviting
offers to purchase a building
Offering to sell
(1) A person is taken to
offer to sell a building if the person offers to enter into a contract under
which a contingent obligation or right to sell the building would be created.
(2) A person is taken to
continue to offer to sell a building if the person continues to offer to enter
into a contract under which a contingent obligation or right to sell the
building would be created.
Inviting offers to purchase
(3) A person is taken to
invite an offer to purchase a building if the person invites an offer to enter
into a contract under which a contingent obligation or right to purchase the
building would be created.
(4) A person is taken to
continue to invite an offer to purchase a building if the person continues to
invite an offer to enter into a contract under which a contingent obligation or
right to purchase the building would be created.
5 Offering to let or sublet and
inviting offers to lease or sublease a building or an area of a building
Offering to let or sublet
(1) A person is taken to
offer to let a building or an area of a building (a space) if the
person offers to enter into a contract under which a contingent obligation or
right to let the space would be created.
(2) A person is taken to
continue to offer to let a space if the person continues to offer to enter into
a contract under which a contingent obligation or right to let the space would
be created.
(3) A person is taken to
offer to sublet a space if the person offers to enter into a contract under
which a contingent obligation or right to sublet the space would be created.
(4) A person is taken to
continue to offer to sublet a space if the person continues to offer to enter
into a contract under which a contingent obligation or right to sublet the
space would be created.
Inviting offers to lease or sublease
(5) A person is taken to
invite an offer to lease a space if the person invites an offer to enter into a
contract under which a contingent obligation or right to lease the space would
be created.
(6) A person is taken to
continue to invite an offer to lease a space if the person continues to invite
an offer to enter into a contract under which a contingent obligation or right
to lease the space would be created.
(7) A person is taken to
invite an offer to sublease a space if the person invites an offer to enter
into a contract under which a contingent obligation or right to sublease the
space would be created.
(8) A person is taken to
continue to invite an offer to sublease a space if the person continues to
invite an offer to enter into a contract under which a contingent obligation or
right to sublease the space would be created.
5A Application to wholly‑owned
subsidiaries
This Act does not apply
in relation to an offer to enter into a contract between:
(a) an entity and a
wholly‑owned subsidiary of the entity; or
(b) wholly‑owned
subsidiaries of an entity.
6 Further subleases
To avoid doubt, where a
person has taken a sublease of a disclosure affected building or a disclosure
affected area of a building (a disclosure affected space), the
person is subject to the energy efficiency disclosure obligations:
(a) if the person
offers or continues to offer to sublet the disclosure affected space—in the
same way as a lessee would be subject to those obligations if the lessee
offered or continued to offer to sublet the space; and
(b) if the person
invites offers or continues to invite offers to sublease the disclosure
affected space—in the same way as a lessee would be subject to those
obligations if the lessee invited or continued to invite offers to sublease the
space.
7 Relationship with State and
Territory law
This Act is not
intended to displace or limit a law of a State or Territory imposing a
disclosure obligation in relation to the sale, lease or sublease of a building
or an area of a building, unless the law is directly inconsistent with this
Act.
8 Act binds the Crown
(1) This Act binds the Crown
in each of its capacities.
(2) This Act does not make
the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2)
does not apply to an authority of the Crown.
9 External Territories
This Act extends to all
the external Territories.
Part 2—Obligations to disclose energy efficiency information
10 Buildings and areas of buildings
affected by energy efficiency disclosure obligations
(1) The Minister may, by
legislative instrument, determine that a specified kind of building is disclosure
affected.
(2) The Minister may, by
legislative instrument, determine that a specified kind of area of a building is
disclosure affected.
11 No sale, lease or sublease
without a building energy efficiency certificate
(1) If a constitutional corporation
owns a disclosure affected building, the corporation must not do any of the
following unless a current building energy efficiency certificate for the
building is registered:
(a) offer, or continue
to offer, to sell the building;
(b) invite offers, or
continue to invite offers, to purchase the building;
(c) offer, or continue
to offer, to let the building;
(d) invite offers, or
continue to invite offers, to lease the building.
Civil penalty: 1,000 penalty units.
(2) If a constitutional corporation
leases a disclosure affected building, the corporation must not do any of the
following unless a current building energy efficiency certificate for the
building is registered:
(a) offer, or continue
to offer, to sublet the building;
(b) invite offers, or
continue to invite offers, to sublease the building.
Civil penalty: 1,000 penalty units.
(3) If a constitutional
corporation owns a building, the corporation must not do any of the following:
(a) offer, or continue
to offer, to let a disclosure affected area of the building;
(b) invite offers, or
continue to invite offers, to lease a disclosure affected area of the building;
unless a current building energy
efficiency certificate for the area is registered.
Civil penalty: 1,000 penalty units.
(4) If a constitutional
corporation leases a disclosure affected area of a building, the corporation
must not do any of the following unless a current building energy efficiency
certificate for the area is registered:
(a) offer, or continue
to offer, to sublet the area;
(b) invite offers, or
continue to invite offers, to sublease the area.
Civil penalty: 1,000 penalty units.
(5) A constitutional
corporation that contravenes a requirement of this section in relation to a
continuing offer or a continuing invitation commits a separate contravention in
respect of each day during which the person fails to comply with that
requirement, including the day of the making of a relevant civil penalty order and
any subsequent day.
(6) Subsections (1) to
(4) do not apply if:
(a) an offer to let
or sublet a building or an area of a building is made and, at the time the
offer is made, a term of 12 months or less is proposed; and
(b) at no time while
the offer is continuing is a term of more than 12 months proposed.
(7) Subsections (1) to
(4) do not apply if:
(a) an invitation to
make offers to lease or sublease a building or an area of a building is made
and, at the time the invitation is made, a term of 12 months or less is
proposed; and
(b) at no time while
the invitation is continuing is a term of more than 12 months proposed.
(8) In working out, for the
purposes of subsections (6) and (7), whether the term proposed for a lease
or sublease is a period of 12 months or less, include in the period any options
to extend the lease or sublease.
12 Rights of a prospective purchaser,
lessee or sublessee
(1) If:
(a) a person (the owner)
owns a disclosure affected building; and
(b) the owner offers
to sell the building, or invites offers to purchase the building; and
(c) a constitutional
corporation (the prospective purchaser) has an interest, in good
faith, in accepting the offer or making an offer in response to the invitation;
the prospective purchaser may give notice
in writing to the owner at any time while the offer or invitation continues,
requiring the owner to give the prospective purchaser a current building energy
efficiency certificate for the building that has been registered.
(2) If:
(a) a person (the owner)
owns a disclosure affected building; and
(b) the owner offers
to let the building, or invites offers to lease the building; and
(c) a constitutional
corporation (the prospective lessee) has an interest, in good
faith, in accepting the offer or making an offer in response to the invitation;
the prospective lessee may give notice in
writing to the owner at any time while the offer or invitation continues,
requiring the owner to give the prospective lessee a copy of a current building
energy efficiency certificate for the building that has been registered.
(3) If:
(a) a person (the lessee)
leases a disclosure affected building; and
(b) the lessee offers
to sublet the building, or invites offers to sublease the building; and
(c) a constitutional
corporation (the prospective sublessee) has an interest, in good
faith, in accepting the offer or making an offer in response to the invitation;
the prospective sublessee may give notice
in writing to the lessee at any time while the offer or invitation continues,
requiring the lessee to give the prospective sublessee a copy of a current
building energy efficiency certificate for the building that has been
registered.
(4) If:
(a) a person (the owner)
owns a building; and
(b) the owner offers
to let a disclosure affected area of the building, or invites offers to lease such
an area; and
(c) a constitutional
corporation (the prospective lessee) has an interest, in good
faith, in accepting the offer or making an offer in response to the invitation;
the prospective lessee may give notice in
writing to the owner at any time while the offer or invitation continues,
requiring the owner to give the prospective lessee a copy of a current building
energy efficiency certificate for the area that has been registered.
(5) If:
(a) a person (the lessee)
leases a disclosure affected area of a building; and
(b) the lessee offers
to sublet the area, or invites offers to sublease the area; and
(c) a constitutional
corporation (the prospective sublessee) has an interest, in good
faith, in accepting the offer or making an offer in response to the invitation;
the prospective sublessee may give notice
in writing to the lessee at any time while the offer or invitation continues,
requiring the lessee to give the prospective sublessee a copy of a current
building energy efficiency certificate for the area that has been registered.
(5A) Despite subsections (2)
to (5), a person may not give notice in writing under any of those subsections
if:
(a) the term proposed
for the lease or sublease at the time the offer or invitation is made is 12
months or less, including any options to extend the lease or sublease; and
(b) at no time while
the offer or invitation is continuing is a term of more than 12 months
proposed.
(6) If a person is, by notice
given in accordance with this section, required to give another person a copy
of a current building energy efficiency certificate for a building or an area
of a building that has been registered, the person must do so as soon as is
reasonably practicable.
Civil penalty:
(a) for an individual—350
penalty units; and
(b) for a body
corporate—1,000 penalty units.
13 Building energy efficiency
certificates—applications
(1) In this Act:
issue day, in relation to a building energy efficiency
certificate for a building or an area of a building, means the day on which the
certificate is issued under subsection 13A(1).
start day, in relation to a building energy efficiency certificate for a
building or an area of a building, means:
(a) the issue day for
the certificate; or
(b) a later day
specified in the certificate as the start day.
(2) A person may apply to an
issuing authority for a building energy efficiency certificate for a building
or an area of a building.
(3) The application must:
(a) be in writing, in
a form approved by the Secretary; and
(b) include the
following:
(i) an
energy efficiency rating for the building (or the building in which the area is
located);
(ii) a
lighting energy efficiency assessment for the building or the area;
(iii) the
start day the person seeks; and
(c) meet any other
requirements determined by the Secretary under subsection (6).
(4) The energy efficiency
rating must satisfy one of the following conditions:
(a) the rating was
worked out by an accredited assessor by applying the assessment methods and
standards determined under section 21;
(b) an auditing
authority:
(i) provided
or approved the rating; and
(ii) is
satisfied that the rating was worked out by applying the assessment methods and
standards determined under section 21.
(5) The lighting energy
efficiency assessment must satisfy one of the following conditions:
(a) the assessment
was performed by an accredited assessor by applying the assessment methods and
standards determined under section 21;
(b) an auditing
authority:
(i) provided
or approved the assessment; and
(ii) is
satisfied that the assessment was performed by applying the assessment methods
and standards determined under section 21.
(6) The Secretary may, by
legislative instrument, make a determination for the purposes of paragraph (3)(c).
Note: For who is an issuing
authority, see section 71A.
13A Building energy efficiency
certificates—issue
(1) An issuing authority
may, on application under section 13, issue a building energy efficiency
certificate for a building or an area of a building if the issuing authority is
satisfied that:
(a) the application
meets the requirements of subsections 13(3), (4) and (5); and
(b) the energy
efficiency rating is appropriate for the building (or the building in which the
area is located), applying the methods and standards determined under section 21;
and
(c) the lighting
energy efficiency assessment is appropriate for the building or the area,
applying the methods and standards determined under section 21.
(2) The certificate must set
out the following:
(a) the energy
efficiency rating for the building (or the building in which the area is
located);
(b) the lighting
energy efficiency assessment for the building or the area;
(c) the start day for
the certificate (which may be different from the start day sought by the
applicant);
(d) the period for
which the certificate is current;
(e) any other
information determined by the Secretary under subsection (4).
(3) For paragraph (2)(d),
the period set out in the certificate must be a period of no more than 12
months beginning on the start day set out in the certificate.
(4) The Secretary may, by
legislative instrument, make a determination for the purposes of paragraph (2)(e).
14 Building Energy Efficiency
Register
(1) The Secretary is to
maintain, or cause to be maintained, a register, to be known as the Building
Energy Efficiency Register, in which the Secretary includes particulars of
building energy efficiency certificates.
(2) The Register may include
information about the following:
(a) current building
energy efficiency certificates and those that are no longer current;
(b) current
exemptions under section 17 and those that are no longer current;
(c) variations and
revocations of such exemptions.
(3) The Secretary must
delete, or cause to be deleted, the particulars of a building energy efficiency
certificate from the Register if the Secretary is notified in writing by an
auditing authority that:
(a) in the case of a
building energy efficiency certificate for a building:
(i) the
energy efficiency rating specified in the certificate for the building is not
that which, applying the assessment methods and standards determined under
section 21, is appropriate for the building; or
(ii) the
assessment of the energy efficiency of the lighting for the building that might
reasonably be expected to remain if the building is sold, let or sublet is not that
which, applying the assessment methods and standards determined under section 21,
is appropriate for the building; or
(b) in the case of a
building energy efficiency certificate for an area of a building:
(i) the
energy efficiency rating specified in the certificate for the building in which
the area is located is not that which, applying the assessment methods and
standards determined under section 21, is appropriate for the building; or
(ii) the
assessment of the energy efficiency of the lighting for the area that might
reasonably be expected to remain if the area is let or sublet is not that
which, applying the assessment methods and standards determined under section 21,
is appropriate for the area.
(4) If particulars of a
building energy efficiency certificate for a building are deleted from the
Register, the Secretary may notify any person who the Secretary reasonably
believes is currently the owner of the building, or a lessee or sublessee of
the building or an area of the building, of that fact.
(5) If particulars of a
building energy efficiency certificate for an area of a building are deleted
from the Register, the Secretary may notify any person who the Secretary
reasonably believes is currently the lessee or sublessee of the area of that
fact.
(6) The Register must be
maintained by electronic means and be made available for inspection on the
internet.
(7) The Register is not a
legislative instrument.
15 Advertisements to include energy
efficiency ratings
(1) If a constitutional
corporation owns a disclosure affected building, the corporation must not
advertise or continue to advertise the building for sale or lease unless:
(a) a current energy
efficiency rating for the building is included in the advertisement; and
(b) the rating is
expressed in the advertisement in a manner determined by the Secretary by
legislative instrument.
Civil penalty: 1,000 penalty units.
(2) If a constitutional
corporation leases a disclosure affected building, the corporation must not
advertise or continue to advertise the building for sublease unless:
(a) a current energy
efficiency rating for the building is included in the advertisement; and
(b) the rating is
expressed in the advertisement in a manner determined by the Secretary by
legislative instrument.
Civil penalty: 1,000 penalty units.
(3) If a constitutional
corporation owns a building, the corporation must not advertise or continue to
advertise a disclosure affected area of the building for lease unless:
(a) a current energy
efficiency rating for the building is included in the advertisement; and
(b) the rating is
expressed in the advertisement in a manner determined by the Secretary by
legislative instrument.
Civil penalty: 1,000 penalty units.
(4) If a constitutional
corporation leases a disclosure affected area of a building, the corporation
must not advertise or continue to advertise the area for sublease unless:
(a) a current energy
efficiency rating for the building is included in the advertisement; and
(b) the rating is
expressed in the advertisement in a manner determined by the Secretary by
legislative instrument.
Civil penalty: 1,000 penalty units.
(5) A constitutional
corporation that contravenes a requirement of this section in relation to a continuing
advertisement commits a separate contravention in respect of each day during
which the person fails to comply with that requirement, including the day of
the making of a relevant civil penalty order and any subsequent day.
(6) Subsections (1) to
(4) do not apply if:
(a) a constitutional
corporation advertises or continues to advertise a building or an area of a
building for lease or sublease; and
(b) the term proposed
for the lease or sublease in the advertisement is 12 months or less, including
any options to extend the lease or sublease; and
(c) at no time while
the advertisement is continuing is a term of more than 12 months proposed.
17 Exemptions on application
Application for an exemption
(1) A person may apply to
the Secretary for a building or an area of a building to be exempt from the
operation of section 11, 12 or 15.
(2) The application must:
(a) be in writing in
a form approved by the Secretary; and
(b) include
information of a kind prescribed by regulation; and
(c) be accompanied by
the fee (if any) prescribed by regulation.
Granting an exemption
(3) The Secretary may grant
the exemption:
(a) if the Secretary
is satisfied that the building or the area is used for police or security
operations; or
(b) if the Secretary
is satisfied that the building or the area is non‑assessable (see subsections (7)
and (8)); or
(c) in circumstances
prescribed by regulation for the purposes of this paragraph.
(4) The Secretary must give
the applicant written notice of the Secretary’s decision under subsection (3).
Varying or revoking an exemption
(5) The Secretary may vary or revoke an exemption
by giving notice in writing to:
(a) the applicant;
and
(b) any other person
whose interest in the building or the area is registered with a land titles
office (however described).
(6) Subsection (5) does
not limit subsection 33(3) of the Acts Interpretation Act 1901.
Meaning of non‑assessable
(7) A building is non‑assessable
if it is not possible to work out an energy efficiency rating for the building,
or perform a lighting energy efficiency assessment for the building, because of
the characteristics of the building.
(8) An area of a building is
non‑assessable if it is not possible to work out an energy
efficiency rating for the building in which the area is located, or perform a
lighting energy efficiency assessment for the area, because of the
characteristics of the building or the area.
17A Automatic exemptions
A building or an area
of a building is exempt from the operation of section 11, 12 or 15 if
circumstances specified in a determination under paragraph 21(1)(d) apply
to the building or the area.
18 Information gathering
(1) This section applies if:
(a) a person asks an
accredited assessor to assess a building or an area of a building for the
purposes of applying for a building energy efficiency certificate for the
building or area; and
(b) the person does
so in order to satisfy an energy efficiency disclosure obligation.
(2) The accredited assessor may,
by written notice, request the Secretary to require an owner, lessee or
sublessee of the building or area to give the assessor information that is:
(a) necessary for the
purposes of the assessment; and
(b) of a kind
specified in the notice;
if the assessor reasonably believes that
the person possesses the information.
(3) At the written request
of the accredited assessor, the Secretary may, by written notice, require the
owner, lessee or sublessee of the building or the area to give the information
to the assessor within the period specified in the notice. The period must end
at least 14 days after the day on which the notice is given.
(4) At the written request
of the accredited assessor, the Secretary may, by written notice, require an
owner, lessee or sublessee of the building or area of a building to give the
assessor access to a place in or associated with the building or area if access
to the place is necessary for the purposes of the assessment.
(5) A notice given under subsection (4)
to an owner, lessee or sublessee must specify the day and time on which access
by the accredited assessor is required. However, the day and time on which
access is required under the notice must be reasonable.
Civil penalty provision
(6) An owner, lessee or
sublessee to whom notice is given in accordance with this section must comply
with the notice.
Civil penalty:
(a) for an
individual—200 penalty units; and
(b) for a body
corporate—500 penalty units.
(7) A person who contravenes
subsection (6) commits a separate contravention of that subsection in
respect of:
(a) where the person
fails to give information within the period specified in the notice—each day
after the end of that period during which the failure continues, including a
day of the making of a relevant civil penalty order and any subsequent day; and
(b) where the person
fails to give access at a day and time on which access is required under the
notice—each day after the day specified, including a day of the making of a
relevant civil penalty order and any subsequent day.
19 Offences relating to information
obtained or generated in applying for a certificate
(1) A person commits an
offence if:
(a) the person:
(i) is
given information in response to a notice given or purportedly given under subsection 18(3);
or
(ii) otherwise
obtains or generates information for the purposes of obtaining a building
energy efficiency certificate; and
(b) the person does
any of the following:
(i) copies,
or makes a record of, the information;
(ii) uses
the information;
(iii) discloses
the information to any person.
Penalty: Imprisonment for 2 years.
(2) Subsection (1) does
not apply if:
(a) the information
is copied, recorded, used or disclosed for the purposes of obtaining a building
energy efficiency certificate; or
(b) the information
is copied, recorded, used or disclosed in, or in connection with, an audit
conducted under Part 4; or
(c) the information
is copied, recorded, used or disclosed in circumstances in which the conduct is
permitted, either expressly or by implication, under this Act; or
(d) the information
is copied, recorded, used or disclosed for the purposes of proceedings for an
offence against section 137.1 or 137.2 of the Criminal Code (false or
misleading information or documents) that relates to this Act; or
(e) the information
is copied, recorded, used or disclosed for the purposes of proceedings for an
offence against section 149.1 of the Criminal Code (obstruction of
Commonwealth public officials) that relates to this Act; or
(f) the information
is copied, recorded, used or disclosed with the consent of:
(i) in
the case of information given in response to a notice given or purportedly
given under subsection 18(3)—the person who gave the information; and
(ii) in
the case of information otherwise obtained for the purposes of obtaining a
building energy efficiency certificate—the person from whom the information was
obtained; and
(iii) in
the case of information generated for the purposes of obtaining a building
energy efficiency certificate—the person on whose behalf the accredited
assessor made an application for the certificate; or
(g) the information
is already publicly available.
Note: A defendant bears an
evidential burden in relation to the matter in this subsection (see
subsection 13.3(3) of the Criminal Code).
20 Damages for failure to properly
carry out assessments
(1) An accredited assessor
who carries out an assessment of a disclosure affected building for the purposes
of applying for a building energy efficiency certificate must, in doing so:
(a) work out the
proposed energy efficiency rating for the building by applying the assessment
methods and standards determined under section 21; and
(b) perform a
lighting energy efficiency assessment for the building by applying the
assessment methods and standards determined under section 21; and
(c) comply with the
assessor’s conditions of accreditation.
(2) An accredited assessor
who carries out an assessment of a disclosure affected area of a building for
the purposes of applying for a building energy efficiency certificate must, in
doing so:
(a) work out the
proposed energy efficiency rating for the building by applying the assessment
methods and standards determined under section 21; and
(b) perform a
lighting energy efficiency assessment for the area by applying the assessment
methods and standards determined under section 21; and
(c) comply with the
assessor’s conditions of accreditation.
(3) If one of the following
persons suffers damage as a result of a failure to comply with a duty under
this section, the person may recover damages for any loss suffered as a result
of that failure in a Court:
(a) if the certificate
is sought for a disclosure affected building:
(i) the
owner of the building; and
(ii) if
all or part of the building is let—the lessor and lessee under the lease; and
(iii) if
all or part of the building is sublet—the sublessor and sublessee under the sublease;
(b) if the rating or
certificate is sought for a disclosure affected area of a building:
(i) the
owner of the building; and
(ii) the
lessor and lessee under a lease of the area; and
(iii) if the
area is sublet—the sublessor and sublessee under the sublease.
Note: This section does not provide
for recovery of damages in relation to approval by an auditing authority of
energy efficiency ratings or lighting energy efficiency assessments.
21 Methods and standards of
assessment
(1) The Secretary may, by
legislative instrument, determine:
(a) the assessment
methods and standards to be applied in working out the energy efficiency rating
for a building; and
(b) the assessment
methods and standards to be applied in performing a lighting energy efficiency
assessment for the building; and
(c) the assessment
methods and standards to be applied in performing a lighting energy efficiency
assessment for the area; and
(d) the circumstances
in which a building or an area of a building is exempt for the purposes of
section 17A.
(2) Without limiting subsection (1),
the Secretary may determine an assessment method or standard by applying,
adopting or incorporating, with or without modification, any matter contained
in any other instrument or writing as in force at a particular time or as in
force from time to time.
Part 3—Accreditation of assessors
Division 1—Accreditation
24 Application for accreditation
(1) A person may apply to
the Secretary to become an accredited assessor.
(2) The application must:
(a) be in writing in
a form approved by the Secretary; and
(b) include
information of the prescribed kind; and
(c) be accompanied by
the prescribed fee.
25 Accreditation of assessors
(1) The Secretary must
refuse to accredit a person as an assessor if:
(a) the person has
been convicted of an offence against Division 137 of the Criminal Code
for the provision of false or misleading information or documents in, or in
connection with, an application for a building energy efficiency certificate;
or
(b) the person has
been convicted of an offence against Division 137 of the Criminal Code for
the provision of false or misleading information in, or in connection with, an
audit conducted under Part 4; or
(c) the Secretary is
satisfied that the person has otherwise provided false or misleading
information in, or in connection with, a rating of the energy efficiency of a
building on which another person might rely for any purpose; or
(d) the person has
been convicted of an offence against Division 137 of the Criminal Code for
the provision of false or misleading information in, or in connection with, an
application for accreditation or renewal of accreditation; or
(e) the person has
not successfully completed the prescribed training.
(2) The Secretary may refuse
to accredit a person as an assessor if:
(a) in a case where
the person has previously been accredited as an assessor:
(i) the
person has been found in proceedings for damages brought under section 20
not to have properly applied the assessment methods and standards determined
under section 21 for the purposes of working out a proposed energy
efficiency rating or performing a lighting energy efficiency assessment for a
building or an area of a building; or
(ii) the
Secretary is otherwise reasonably satisfied that the person has not properly
applied the assessment methods and standards determined under section 21
for the purposes of working out a proposed energy efficiency rating or performing
a lighting energy efficiency assessment for a building or an area of a building;
or
(iii) the
person has failed to comply with a condition of accreditation; or
(b) in any case:
(i) the
Secretary is satisfied that the person needs to undertake further training
before the person can properly apply the assessment methods and standards determined
under section 21 and the person has not successfully completed that
training; or
(ii) the
Secretary is satisfied that the person does not have the qualifications or
experience necessary to properly apply the assessment methods and standards determined
under section 21; or
(c) the Secretary is
satisfied that the person will not be able to satisfy a condition of
accreditation prescribed under subsection 27(1) that is relevant to the
person.
(3) Otherwise, the Secretary
must accredit the person.
(4) The Secretary must
notify the person in writing of the Secretary’s decision on the application.
26 Period of accreditation
The Secretary may
accredit a person as an assessor for a period of no less than 12 months and no
more than 3 years.
27 Conditions of accreditation
(1) The regulations may
prescribe conditions to be imposed on the accreditation of all or a specified
class of assessors.
(2) The Secretary may impose
additional conditions on the accreditation of an assessor.
(3) Without limiting subsection (2),
those conditions may include:
(a) a condition that
the assessor may work out energy efficiency ratings or perform lighting energy
efficiency assessments only under the supervision of an auditor; and
(b) a condition that
the assessor is to undertake specified further training while accredited.
(4) The Secretary may, at
any time, vary or revoke a condition imposed under subsection (2).
(5) The Secretary must
notify a person in writing of any condition imposed under subsection (2) on
the person’s accreditation as an assessor, and the variation or revocation of
such a condition.
(6) A notice given under subsection (5)
is not a legislative instrument.
Division 2—Suspension and revocation of accreditation
28 Suspension of accreditation
(1) The Secretary may
suspend the accreditation of a person as an assessor if:
(a) the person has
been found in proceedings for damages brought under section 20 not to have
properly applied the assessment methods and standards determined under section 21
for the purposes of working out a proposed energy efficiency rating or
performing a lighting energy efficiency assessment for a building or an area of
a building; or
(b) the Secretary is
otherwise reasonably satisfied that the person has not properly applied the
assessment methods and standards determined under section 21 for the
purposes of working out a proposed energy efficiency rating or performing a
lighting energy efficiency assessment for a building or an area of a building;
or
(c) the person has
failed to comply with a condition of accreditation.
(2) The Secretary must
notify a person in writing of a decision to suspend the person’s accreditation
29 Lift of suspension
(1) The Secretary may lift
the suspension of the accreditation of a person if the Secretary is satisfied
that:
(a) the issues that
resulted in accreditation being suspended have been addressed; and
(b) any other action
necessary to ensure the person will properly apply the assessment methods and
standards determined under section 21 and comply with the conditions of
accreditation has been or will be taken.
(2) If the accreditation of
a person expires before a suspension of that accreditation is lifted, the
Secretary may waive all or a specified part of:
(a) the requirement
under paragraph 24(2)(b) to produce information on the application by the
person for accreditation; and
(b) the requirement under
paragraph 24(2)(c) to pay a fee on the application by the person for accreditation.
(3) The Secretary must
notify a person in writing of:
(a) a decision to
lift the suspension of the person’s accreditation; and
(b) a decision to
waive all or part of a requirement under paragraph 24(2)(b) or (c).
30 Revocation of accreditation
(1) The Secretary must
revoke the accreditation of a person as an assessor if:
(a) the person has
been convicted of an offence against Division 137 of the Criminal Code
for the provision of false or misleading information or documents in, or in
connection with, an application for a building energy efficiency certificate;
or
(b) the person has
been convicted of an offence against Division 137 of the Criminal Code for
the provision of false or misleading information in, or in connection with, an
audit conducted under Part 4; or
(c) the Secretary is
satisfied that the person has otherwise provided false or misleading
information in, or in connection with, a rating of the energy efficiency of a
building on which another person might rely for any purpose; or
(d) the person has been
convicted of an offence against Division 137 of the Criminal Code for
the provision of false or misleading information in, or in connection with, an
application for accreditation or renewal of accreditation.
(2) The Secretary may revoke
the accreditation of a person as an assessor in the following circumstances:
(a) the person has
been found in proceedings for damages brought under section 20 not to have
properly applied the assessment methods and standards determined under section 21
for the purposes of working out an energy efficiency rating or performing a
lighting energy efficiency assessment for a building or an area of a building;
(b) the Secretary is
otherwise reasonably satisfied that the person has not properly applied the
assessment methods and standards determined under section 21 for the
purposes of working out an energy efficiency rating or performing a lighting
energy efficiency assessment for a building or an area of a building;
(c) the person has
failed to comply with a condition of the person’s accreditation.
(3) The Secretary must
notify a person in writing of a decision to revoke the person’s accreditation.
Division 3—General provisions relating to accreditation
31 Register of Accredited Assessors
(1) The Secretary must
maintain, or cause to be maintained, a register, to be known as the Register of
Accredited Assessors.
(2) The Register is to
contain:
(a) the name of each
accredited assessor; and
(b) the registration
number for each accredited assessor; and
(c) any other
information that the Secretary considers relevant in assisting a person in
engaging an accredited assessor to work out an energy efficiency rating or
perform a lighting energy efficiency assessment for the purposes of applying
for a building energy efficiency certificate.
(3) The Register must be
maintained by electronic means and be available for inspection on the internet.
(4) The Register is not a
legislative instrument.
32 Offence—holding out to be an
accredited assessor
A person commits an
offence if:
(a) the person (the defendant)
makes a statement (whether orally, in a document or in any other way); and
(b) the statement
might reasonably lead another person to believe that, at a particular time, the
defendant is or was an accredited assessor; and
(c) at that time, the
defendant is not or was not an accredited assessor.
Penalty: 60 penalty units.
Part 4—Auditing accredited assessors
Division 1—Appointment of auditing authority and auditors
33 Auditing authority
(1) The Secretary may, by written
instrument, appoint a person or body as an auditing authority.
(2) An auditing authority
has the following functions:
(a) to direct
auditors in performing their work to ensure that:
(i) accredited
assessors properly apply the assessment methods and standards determined under
section 21 in working out ratings and performing assessments for the
purposes of applying for building energy efficiency certificates; and
(ii) the
ratings and assessments are not influenced by any conflict of interest;
(b) to provide or
approve ratings and assessments for building energy efficiency certificates;
(c) such other
functions as are conferred by this Act or the regulations.
(3) An
auditing authority must perform its functions in accordance with any policies
notified to the auditing authority in writing by the Secretary.
(4) An auditing authority
must notify the Secretary in writing as soon as is reasonably practicable if it
becomes apparent as a result of an audit of an assessment carried out by an
accredited assessor that:
(a) in relation to a
building for which a building energy efficiency certificate is current:
(i) the
energy efficiency rating specified in the certificate for the building is not
that which, applying the assessment methods and standards determined under
section 21, is appropriate for the building; or
(ii) the lighting
energy efficiency assessment for the building is not that which, applying the
assessment methods and standards determined under section 21, is
appropriate for the building; and
(b) in relation to an
area of a building for which a building energy efficiency certificate is
current:
(i) the
energy efficiency rating specified in the certificate for the building in which
the area is located is not that which, applying the assessment methods and
standards determined under section 21, is appropriate for the building; or
(ii) the lighting
energy efficiency assessment for the area is not that which, applying the
assessment methods and standards determined under section 21, is
appropriate for the area.
(5) A policy made under subsection (3)
is not a legislative instrument.
34 Auditors
(1) The Secretary may, by written
instrument, appoint any of the following persons as an auditor:
(a) an APS employee;
(b) a member of the
civil or public service of a State or Territory;
(c) a person engaged
by the Commonwealth as an auditor under contract or otherwise.
(2) The Secretary may only
appoint a person as an auditor if the Secretary is satisfied that the person
has the skills and experience necessary to perform the functions described in subsection (3).
(3) The functions of an
auditor are to:
(a) conduct audits
of:
(i) energy
efficiency ratings and lighting energy efficiency assessments worked out or
performed by accredited assessors for the purposes of applying for building
energy efficiency certificates; and
(ii) such
ratings and assessments provided or approved by auditing authorities; and
(iii) applications
for exemptions under section 17; and
(iv) the
documentation and record keeping of accredited assessors and other persons in
relation to such ratings, assessments and applications; and
(b) supervise ratings
and assessments by accredited assessors to ensure that:
(i) the
assessment methods and standards determined under section 21 are properly
applied; and
(ii) the
ratings and assessments are properly documented; and
(iii) the
records of ratings and assessments are properly kept.
(3A) Without limiting subsection (3),
an auditor may conduct an audit of a rating, assessment or application by doing
no more than reviewing documents relating to the assessment, rating or
application.
(4) An auditor must perform
his or her functions in accordance with any directions given by an auditing authority.
(5) If a direction is given
in writing, the direction is not a legislative instrument.
35 Identity cards
(1) The Secretary must issue
an identity card to an auditor.
Form of identity card
(2) The identity card must:
(a) be in the form
prescribed by the regulations; and
(b) contain a recent
photograph of the auditor.
Offence
(3) A person commits an
offence if:
(a) the person has
been issued with an identity card; and
(b) the person ceases
to be an auditor; and
(c) the person does
not, as soon as practicable after so ceasing, return the identity card to the Secretary.
Penalty: 1 penalty unit.
(4) An offence against subsection (3)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Defence—card lost or destroyed
(5) Subsection (3) does
not apply if the identity card was lost or destroyed.
Note: A defendant bears an
evidential burden in relation to the matter in this subsection (see subsection 13.3(3)
of the Criminal Code).
Auditor must carry card
(6) An auditor must carry
his or her identity card at all times when exercising powers as an auditor.
Division 2—Powers of auditors
36 Auditor may enter a building, an area
of a building or an associated place by consent or under warrant
(1) An auditor may exercise
the powers under this section for the purpose of determining whether an
accredited assessor has properly applied the assessment methods and standards determined
under section 21 for the purposes of working out a proposed energy
efficiency rating or performing a lighting energy efficiency assessment for a
building or an area of a building.
(2) The auditor may:
(a) enter the
building or area, and any place associated with the building or area (an associated
place); and
(b) exercise the
monitoring powers set out in section 37.
(3) However, an auditor is not authorised to enter a building, an area or an associated
place unless:
(a) the occupier of
the building, area or associated place has consented to the entry and the auditor
has shown his or her identity card if required by the occupier; or
(b) the entry is made
under a monitoring warrant.
Note: If entry to a building, an area
or an associated place is with the occupier’s consent, the auditor must leave the
building, area or associated place if the consent ceases to have effect: see
section 40.
37 Monitoring powers of auditors
(1) The following are the monitoring
powers that an auditor may exercise in relation to a building, an area or
an associated place under section 36:
(a) the power to observe
any activity conducted in the building, area or associated place;
(b) the power to
inspect, or take measurements of, any thing in the building, area or associated
place;
(c) the power to make
any still or moving image or any recording of the building, area or associated
place or any thing in the building, area or associated place;
(d) the power to inspect
any document in the building, area or associated place;
(e) the power to take
extracts from, or make copies of, any such document;
(f) the power to
take into the building, area or associated place such equipment and materials
as the auditor requires for the purpose of exercising powers in relation to the
building, area or associated place;
(g) the powers set
out in subsections (2) and (3).
Operating electronic equipment
(2) The monitoring
powers include the power to operate electronic equipment in the building,
area or associated place to see whether:
(a) the equipment; or
(b) a disk, tape or
other storage device that:
(i) is in
the building, area or associated place; and
(ii) can
be used with the equipment or is associated with it;
contains information that is relevant to determining
whether an accredited assessor has properly applied the assessment methods and
standards determined under section 21.
(3) The monitoring
powers include 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 electronic equipment in the building, area or associated place to put
the information in documentary form and remove the documents so produced from
the building, area or associated place;
(b) the power to
operate electronic equipment in the building, area or associated place to
transfer the information to a disk, tape or other storage device that:
(i) is
brought to the building, area or associated place for the exercise of the
power; or
(ii) is in
the building, area or associated place and the use of which for that purpose
has been agreed in writing by the occupier of the building, area or associated
place;
and remove the disk, tape or other storage device from the building, area or
associated place.
(4) An auditor may operate
electronic equipment as mentioned in subsection (2) or (3) only if he or
she believes on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
38 Persons assisting auditors
Auditors may be assisted by other
persons
(1) An auditor may, in
entering a building, an area or an associated place under section 36 and
in exercising monitoring powers in relation to the building, area or associated
place, be assisted by other persons if that assistance is necessary and
reasonable. A person giving such assistance is a person assisting the
auditor.
Powers of a person assisting the
auditor
(2) A person assisting the
auditor may:
(a) enter the building,
area or associated place; and
(b) exercise
monitoring powers in relation to the building, area or associated place, but
only in accordance with a direction given to the person by the auditor.
(3) A power exercised by a
person assisting the auditor as mentioned in subsection (2) is taken for
all purposes to have been exercised by the auditor.
(4) If a direction is given
under paragraph (2)(b) in writing, the direction is not a legislative
instrument.
39 Auditor may ask questions and seek
production of documents
Entry with consent
(1) If an auditor is
authorised to enter a building, an area or an associated place because the
occupier has consented to the entry, the auditor may ask the occupier to:
(a) answer any
questions that are put by the auditor and that relate to determining whether an
accredited assessor has properly applied the assessment methods and standards determined
under section 21; and
(b) produce any
document that is requested by the auditor and that relates to whether an accredited
assessor has properly applied the assessment methods and standards determined
under section 21.
Entry under a monitoring warrant
(2) If an auditor is
authorised to enter a building, an area or an associated place by a monitoring
warrant, the auditor may require any person in the building, area or associated
place to:
(a) answer any
questions that are put by the auditor and that relate to determining whether an
accredited assessor has properly applied the assessment methods and standards determined
under section 21; and
(b) produce any
document that is requested by the auditor and that relates to whether an accredited
assessor has properly applied the assessment methods and standards determined
under section 21.
Offence
(3) A person commits an
offence if:
(a) the person is
subject to a requirement under subsection (2); and
(b) the person fails
to comply with the requirement.
Penalty: 30 penalty units.
(4) An individual is not
required to answer a question or produce a document if the answer or document
might tend to incriminate the individual or expose the individual to a penalty.
(5) Subsection (3) does
not apply to the extent that the person is not capable of complying with the requirement.
Note: The defendant bears an
evidential burden in relation to the matters in subsections (4) and (5)
(see subsection 13.3(3) of the Criminal Code).
Division 3—Obligations of auditors
40 Consent
(1) An auditor must, before
obtaining the consent of an occupier of a building, an area
or an associated place for the purposes of paragraph 36(3)(a), inform the
occupier that the occupier may refuse consent.
(2) A consent has no effect
unless the consent is voluntary.
(3) A consent may be
expressed to be limited to entry during a particular period. If so, the consent
has effect for that period unless the consent is withdrawn before the end of
that period.
(4) A consent that is not
limited as mentioned in subsection (3) has effect until the consent is
withdrawn.
(5) If an auditor entered a
building, an area or an associated place because of the consent of the occupier,
the auditor and any person assisting the auditor must leave the building, area
or associated place if the consent ceases to have effect.
41 Announcement before entry under
warrant
(1) An auditor must, before
entering a building, an area or an associated place under a monitoring warrant:
(a) announce that he
or she is authorised to enter the building, area or
associated place; and
(b) show his or her
identity card to the occupier of the building, area or
associated place, or to another person who apparently represents the occupier,
if the occupier or other person is present in the building, area or associated
place; and
(c) give any person
in the building, area or associated place an opportunity
to allow entry to the building, area or associated place.
(2) However, an auditor is
not required to comply with subsection (1) if he or she believes on reasonable
grounds that immediate entry to the building, area or
associated place is required to ensure that the effective execution of the
warrant is not frustrated.
(3) If:
(a) an auditor does
not comply with subsection (1) because of subsection (2); and
(b) the occupier of
the building, area or associated place, or another person who apparently
represents the occupier, is present in the building, area or associated place;
the auditor must, as soon as practicable
after entering the building, area or associated place, show his or her identity
card to the occupier or other person.
42 Auditor to be in possession of
warrant
If a monitoring warrant is being executed in relation to the building,
area or associated place, an auditor executing the warrant must be in
possession of the warrant or a copy of the warrant.
43 Details of warrant etc. to be
given to occupier
If:
(a) a monitoring warrant is being executed in relation to a building, an area
or an associated place; and
(b) the occupier of
the building, area or associated place, or another
person who apparently represents the occupier, is present in the building, area
or associated place;
an auditor executing the warrant must, as
soon as practicable:
(c) make a copy of
the warrant available to the occupier or other person (which need not include
the signature of the magistrate who issued it); and
(d) inform the occupier or other person of the rights and
responsibilities of the occupier or other person under Division 4.
44 Compensation for damage to
electronic equipment
(1) This section applies if:
(a) as a result of
electronic equipment being operated as mentioned in this Part:
(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 Federal Court of Australia 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 building,
area or associated place, 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) In this section:
damage, in relation to data, includes damage by erasure of data or
addition of other data.
Division 4—Occupier’s rights and responsibilities
45 Occupier entitled to observe
execution of warrant
(1) If:
(a) a monitoring
warrant is being executed in relation to a building, an
area or an associated place; and
(b) the occupier of
the building, area or associated place, or another
person who apparently represents the occupier, is present in the building, area
or associated place;
the occupier or other person is entitled
to observe the execution of the warrant.
(2) The right to observe the
execution of the warrant ceases if the occupier or other person impedes that
execution.
(3) This section does not
prevent the execution of the warrant in 2 or more areas at the same time.
46 Occupier to provide auditor with
facilities and assistance
(1) The occupier of a building, an area or an associated place to which a monitoring
warrant relates, or another person who apparently represents the occupier, must
provide:
(a) an auditor
executing the warrant; and
(b) any person
assisting the auditor;
with all reasonable facilities and
assistance for the effective exercise of their powers.
(2) A person commits an
offence if:
(a) the person is
subject to subsection (1); and
(b) the person fails
to comply with that subsection.
Penalty: 30 penalty units.
Division 5—Monitoring warrants
47 Monitoring warrants
Application for warrant
(1) An auditor may apply to
a magistrate for a warrant under this section in relation to a building, an
area of a building or any place associated with a building or an area of a
building (an associated place).
Issue of warrant
(2) 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 auditors should
have access to the building, area or associated place
for the purpose of determining whether an accredited assessor has properly
applied the assessment methods and standards determined under section 21
for the purposes of working out a proposed energy efficiency rating for the
building or performing a lighting energy efficiency assessment for the building
or an area of the building.
(3) However, the magistrate
must not issue the warrant unless the auditor 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.
Content of warrant
(4) The warrant must:
(a) describe the building,
area or associated place to which the warrant relates; and
(b) state that the
warrant is issued under this section; and
(c) state that the
warrant is issued for the purpose of determining
whether an accredited assessor has properly applied the assessment methods and
standards determined under section 21 for the purposes of working out a
proposed energy efficiency rating for the building or performing a lighting
energy efficiency assessment for the building or an area of the building; and
(d) authorise one or
more auditors (whether or not named in the warrant) from time to time while the
warrant remains in force:
(i) to
enter the building, area or associated place; and
(ii) to
exercise the powers set out in Division 2 in relation to the building,
area or associated place; and
(e) state whether the
entry is authorised to be made at any time of the day or during specified hours
of the day; and
(f) specify the day
(not more than 6 months after the issue of the warrant) on which the warrant
ceases to be in force.
Division 6—Powers of magistrates
48 Powers of magistrates
Powers conferred personally
(1) A power conferred on a
magistrate by this Part is conferred on the magistrate:
(a) in a personal
capacity; and
(b) not as a court or
a member of a court.
Powers need not be accepted
(2) The magistrate need not
accept the power conferred.
Powers to be exercised in accordance
with an agreement
(3) The magistrate must not
exercise a power conferred by this Part unless the conferral of the power is in
accordance with an agreement between the Commonwealth and the State or
Territory concerned.
Protection and immunity
(4) A magistrate exercising
a power conferred by this Part has the same protection and immunity as if he or
she were exercising the power:
(a) as the court of
which the magistrate is a member; or
(b) as a member of
the court of which the magistrate is a member.
Part 5—Enforcement
Division 1—Obtaining information and documents
49 Secretary may obtain information
or documents
(1) If the Secretary reasonably
believes that a person has:
(a) knowledge of
information; or
(b) custody or
control of documents;
relating to whether a civil penalty
provision has been complied with, the Secretary may give a written notice to the
person requiring the person to provide the information or produce the documents
to the Secretary.
(2) The notice must specify:
(a) the period within
which the person must comply with the notice; and
(b) the manner in
which the person must comply with the notice.
(3) The specified period
mentioned in paragraph (2)(a) must end at least 14 days after the notice
is given.
50 Failure to comply with a notice
(1) A person commits an
offence if the person fails to comply with a notice given under section 49.
Penalty: 30 penalty units.
(2) An offence under subsection (1)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) An individual is not
required to provide the information or produce a document if the information or
document might tend to incriminate the individual or expose the individual to a
penalty.
(4) Subsection (1) does
not apply to the extent that the person is not capable of complying with the
notice.
Note: The defendant bears an
evidential burden in relation to the matters in subsections (3) and (4)
(see subsection 13.3(3) of the Criminal Code).
Division 2—Civil penalties
51 Civil penalty provisions
A subsection of this
Act (or a section of this Act that is not divided into subsections) is a civil
penalty provision if the words “civil penalty” and one or more amounts
in penalty units are set out at the foot of the subsection (or section).
52 Ancillary contravention of civil
penalty provisions
(1) A person must not:
(a) attempt to
contravene a civil penalty provision; or
(b) aid, abet,
counsel or procure a contravention of a civil penalty provision; or
(c) induce (by
threats, promises or otherwise) a contravention of a civil penalty provision;
or
(d) be in any way,
directly or indirectly, knowingly concerned in, or party to, a contravention of
a civil penalty provision; or
(e) conspire with
others to effect a contravention of a civil penalty provision.
Civil penalty
(2) This Act applies to a
person who contravenes subsection (1) in relation to a civil penalty provision
as if the person had contravened the provision.
53 Civil penalty orders
Application for order
(1) Within 6 years of a
person contravening a civil penalty provision, the Secretary may apply, on
behalf of the Commonwealth, to a Court for an order that the person pay the
Commonwealth a pecuniary penalty.
Court may order person to pay
pecuniary penalty
(2) If the Court is
satisfied that the person has contravened a civil penalty provision, the Court
may order the person to pay the Commonwealth a pecuniary penalty.
(3) An order under subsection (2)
is to be known as a civil penalty order.
Determining amount of pecuniary
penalty
(4) In determining the
pecuniary penalty, the Court must have regard to all relevant matters,
including:
(a) the nature and extent
of the contravention; and
(b) the nature and
extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances
in which the contravention took place; and
(d) whether the
person has previously been found by a Court in proceedings under this Act to
have engaged in any similar conduct; and
(e) the extent to
which the person has cooperated with the authorities.
Maximum pecuniary penalty
(5) Subject to subsections (5A)
to (5D), the pecuniary penalty must not exceed the relevant amount specified
for the provision.
(5A) Where:
(a) the contravention
is of a requirement under section 11 in relation to a continuing offer or
a continuing invitation; and
(b) the contravention
is in respect of one or more days that fall after the first day on which
the offer or invitation is made;
the pecuniary penalty must not exceed 100
penalty units for each day that falls after the first day.
(5B) Where:
(a) the contravention
is of a requirement under section 15 in relation to a continuing
advertisement; and
(b) the contravention
is in respect of one or more days that fall after the first day on which
advertising began;
the pecuniary penalty must not exceed 100
penalty units for each day that falls after the first day.
(5C) Where:
(a) the contravention
is of a requirement under section 18 in relation to giving information
within a period specified in a notice; and
(b) the contravention
is in respect of one or more days that fall after the end of that period;
the pecuniary penalty must not exceed 20
penalty units for an individual and 50 penalty units for a body corporate for
each day that falls after the end of that period.
(5D) Where:
(a) the contravention
is of a requirement under section 18 in relation to giving access to a
place at a day and time specified in a notice; and
(b) the contravention
is in respect of one or more days that fall after the day specified;
the pecuniary penalty must not exceed 20
penalty units for an individual and 50 penalty units for a body corporate for
each day that falls after the day specified.
Continuing and multiple contraventions
(6) The Court may make a
single civil penalty order against a person for multiple contraventions of a
civil penalty provision if proceedings for the contraventions are founded on
the same facts, or if the contraventions form or are part of a series of
contraventions of the same or a similar character. However, the penalty must
not exceed the sum of the maximum penalties that could be ordered if a separate
penalty were ordered for each of the contraventions.
Conduct contravening more than one
civil penalty provision
(7) If
conduct constitutes a contravention of 2 or more civil penalty provisions,
proceedings may be instituted under this section against a person in relation
to the contravention of any one or more of those provisions. However, the
person is not liable to a pecuniary penalty under this section in respect of more
than one civil penalty provision for the same conduct.
Civil enforcement of penalty
(8) The pecuniary penalty is
a civil debt payable to the Commonwealth. The Commonwealth may enforce the
civil penalty order as if it were an order made in civil proceedings against
the person to recover a debt due by the person. The debt arising from the order
is taken to be a judgment debt.
54 2 or more proceedings may be
heard together
The Court may direct
that 2 or more proceedings for civil penalty orders are to be heard together.
55 Contravening a civil penalty
provision is not an offence
A contravention of a
civil penalty provision is not an offence.
56 Civil evidence and procedure
rules for civil penalty orders
The Court must apply
the rules of evidence and procedure for civil matters when hearing proceedings
for a civil penalty order.
57 Mistake of fact
(1) A person is not liable
to have a civil penalty order made against the person for a contravention of a
civil penalty provision if:
(a) at or before the
time of the conduct constituting the contravention, the person:
(i) considered
whether or not facts existed; and
(ii) was
under a mistaken but reasonable belief about those facts; and
(b) had those facts
existed, the conduct would not have constituted a contravention of the civil
penalty provision.
(2) For the purposes of subsection (1),
a person may be regarded as having considered whether or not facts existed if:
(a) the person had
considered, on a previous occasion, whether those facts existed in the
circumstances surrounding that occasion; and
(b) the person
honestly and reasonably believed that the circumstances surrounding the present
occasion were the same, or substantially the same, as those surrounding the
previous occasion.
(3) A person who wishes to
rely on subsection (1) or (2) in proceedings for a civil penalty order
bears an evidential burden in relation to that matter.
Division 3—Infringement notices
58 When an infringement notice can
be given
(1) If the Secretary has
reasonable grounds to believe that a person has contravened a civil penalty
provision, the Secretary may give the person an infringement notice relating to
the contravention.
(2) The infringement notice
must be given within 12 months after the day on which the contravention is
alleged to have taken place.
(3) A single infringement
notice may be given to a person in respect of:
(a) 2 or more alleged
contraventions of a civil penalty provision; and
(b) alleged
contraventions of 2 or more civil penalty provisions.
59 Matters to be included in an
infringement notice
(1) An infringement notice
must:
(a) be identified by
a unique number; and
(b) state the day on
which the notice is given; and
(c) state the name of
the person to whom the notice is given; and
(d) state the name of
the person who is giving the notice; and
(e) give brief
details of the alleged contravention of the civil penalty provision, including:
(i) the
provision of this Act that was allegedly contravened; and
(ii) the
maximum penalty that a Court could impose for the contravention; and
(iii) the
day on which the civil penalty provision was allegedly contravened; and
(f) state the
penalty that is payable under the notice; and
(g) give an
explanation of how payment of the penalty is to be made; and
(h) state that, if
the person pays the penalty within 28 days after the day the notice is given,
civil proceedings will not be brought against the person under this Act in
respect of the conduct to which the notice relates, unless the notice is
withdrawn; and
(i) state that
payment of the penalty is not an admission of liability; and
(j) state how the
Secretary may be contacted; and
(k) state that the
person may apply to the Secretary to have the period in which to pay the
penalty extended; and
(l) state that the
person may choose not to pay the penalty and that, if the person does so, proceedings
may be brought under this Act in relation to the alleged contravention; and
(m) set out how the
notice can be withdrawn; and
(n) state that if the
notice is withdrawn:
(i) any
amount of penalty paid under the notice must be refunded; and
(ii) civil
proceedings may be brought against the person in respect of the conduct to
which the notice relates; and
(o) state that the
person may make written representations to the Secretary seeking the withdrawal
of the notice; and
(p) set out such
other matters (if any) as are specified by the regulations.
(2) For the purposes of paragraph (1)(f),
the penalty to be stated in the notice for the alleged contravention of the
civil penalty provision must not exceed an amount equal to one‑tenth of the
maximum penalty that a Court could impose on the person for that contravention.
60 Extension of time to pay penalty
(1) A person to whom an
infringement notice has been given may apply to the Secretary for an extension
of the period referred to in paragraph 59(1)(h).
(2) If the application is
made before the end of that period, the Secretary may, in writing, extend that
period. The Secretary may do so before or after the end of that period.
(3) If the Secretary extends
that period, a reference in this Division, or in a notice or other instrument
under this Division, to the period referred to in paragraph 59(1)(h) is
taken to be a reference to that period so extended.
(4) If the Secretary does
not extend that period, a reference in this Division, or in a notice or other
instrument under this Division, to the period referred to in paragraph 59(1)(h)
is taken to be a reference to the period that ends on the later of the
following days:
(a) the day that is
the last day of the period referred to in paragraph 59(1)(h);
(b) the day that is 7
days after the day the person was given notice of the Secretary’s decision not
to extend.
(5) The Secretary may extend
the period more than once under subsection (2).
61 Withdrawal of an infringement
notice
Representations seeking withdrawal of
notice
(1) If an infringement
notice has been given to a person, the person may, within 28 days, make written
representations to the Secretary seeking the withdrawal of the notice.
(2) Evidence or information
that the person, or a representative of the person, gives to the Secretary in
the course of making representations under subsection (1) is not
admissible in evidence against the person or representative in any proceedings
(other than proceedings for an offence based on the evidence or information
given being false or misleading).
Withdrawal of notice (whether or not
representations have been made)
(3) The Secretary may
withdraw an infringement notice given to a person (whether or not the person
has made written representations seeking the withdrawal).
(4) When deciding whether or
not to withdraw an infringement notice, the Secretary:
(a) must take into
account any written representations seeking the withdrawal that were given by
the person to the Secretary; and
(b) may take into
account the matters set out in subsection (5).
(5) The matters which the
Secretary may take into account are the following:
(a) whether the
person has previously been ordered to pay a pecuniary penalty for the
contravention of a civil penalty provision;
(b) the circumstances
in which the civil penalty provision specified in the notice is alleged to have
been contravened;
(c) whether the
person has previously been given an infringement notice relating to a civil
penalty provision of the same type as the civil penalty provision specified in
the notice and in relation to which the person paid the penalty stated in the
notice;
(d) any other matter
the Secretary considers relevant.
Notice of withdrawal
(6) Notice of the withdrawal
of the infringement notice must be given to the person. The withdrawal notice
must state:
(a) the person’s name
and address; and
(b) the day the
infringement notice was given; and
(c) the identifying
number of the infringement notice; and
(d) that the
infringement notice is withdrawn; and
(e) that civil
proceedings may be brought against the person in respect of the conduct to
which the infringement notice relates.
Refund of penalty if infringement
notice withdrawn
(7) If:
(a) the Secretary
withdraws the infringement notice; and
(b) the person has
already paid the penalty stated in the notice;
the Commonwealth must refund to the
person an amount equal to the amount paid.
62 Effect of payment of penalty
(1) If an infringement
notice relates to a contravention of a civil penalty provision and the person
to whom the notice is given pays the penalty stated in the notice before the
end of the period referred to in paragraph 59(1)(h):
(a) any liability of
the person for the alleged contravention is discharged; and
(b) civil proceedings
in respect of the alleged contravention may not be brought against the person;
and
(c) the person is not
regarded as having admitted liability for the alleged contravention.
(2) Subsection (1) does
not apply if the notice has been withdrawn.
63 Effect of this Division
This Division does not:
(a) require an
infringement notice to be given to a person; or
(b) affect the
liability of a person to be subject to civil proceedings for the contravention
of a civil penalty provision if:
(i) the
person does not comply with an infringement notice given to the person; or
(ii) an
infringement notice is not given to the person for the contravention; or
(iii) an
infringement notice is given to the person and is subsequently withdrawn; or
(c) limit a Court’s
discretion to determine the amount of a penalty to be imposed on a person who
has contravened a civil penalty provision.
64 Regulations
The regulations may
make further provision in relation to infringement notices.
Division 4—Other matters
65 Energy Efficiency Non‑disclosure
Register
(1) The Secretary is to
maintain, or cause to be maintained, a register, to be known as the Energy
Efficiency Non‑disclosure Register.
(2) Where there are 2 or
more instances of non‑disclosure by a person in a period of 12 months, the
Secretary must record the number of instances of non‑disclosure by the person
on the Register and the date on which each instance of non‑disclosure occurred
or began unless the Secretary exercises the discretion under subsection (4).
(3) Each of the following is
an instance of non‑disclosure by a person:
(a) the person is given
an infringement notice under Division 3;
(b) a Court makes a
civil penalty order against the person for a contravention of section 11,
subsection 12(6) or section 15.
(4) The Secretary may
withhold or delete an instance of non‑disclosure from the Register if the
Secretary is satisfied that the instance is not part of a continuing pattern of
conduct demonstrating a disregard for the requirements of this Act in relation
to the disclosure of building energy efficiency information.
(5) The Secretary must
remove, or cause to be removed, an instance of non‑disclosure by a person from
the Register if:
(a) the instance was
included on the Register because the person was given an infringement notice
and the notice is subsequently withdrawn; or
(b) the instance was
included on the Register because a Court made a civil penalty order against the
person and that order is overturned on appeal.
(6) The Register must be
maintained by electronic means and be made available for inspection on the
internet.
(7) The Register is not a
legislative instrument.
66 Evidentiary certificate relating
to the Building Energy Efficiency Register
(1) The Secretary may issue
a written evidentiary certificate stating:
(a) whether or not a
current building energy efficiency certificate for a building or an area of a
building was registered on a day specified; and
(b) the energy
efficiency rating for the building or area that was specified in the
certificate; and
(c) the lighting
energy efficiency assessment for the building or area that was specified in the
certificate.
(2) In any proceedings, an
evidentiary certificate issued under subsection (1) is prima facie
evidence of the matters stated in it.
(3) A document purporting to
be a certificate issued under subsection (1) must, unless the contrary is
established, be taken to be such a certificate and to have been properly given.
Part 6—Miscellaneous
67 Reviewable decisions
Each of the following
decisions is a reviewable decision:
|
Reviewable
decisions
|
|
Item
|
Decision
|
Provision
under which decision is made
|
|
1A
|
To refuse to issue a building energy
efficiency certificate
|
Section 13A
|
|
1B
|
To issue a building energy efficiency
certificate with a start day other than the start day included in the
application for the certificate
|
Section 13A
|
|
1
|
To refuse to grant an exemption from the
operation of section 11, 12 or 15
|
Subsection 17(3)
|
|
2
|
To revoke or vary the grant of an
exemption from the operation of section 11, 12 or 15
|
Subsection 17(5)
|
|
7
|
To refuse to accredit a person as an
assessor
|
Section 25
|
|
8
|
To impose additional conditions on the
accreditation of an assessor
|
Subsection 27(2)
|
|
9
|
To vary or revoke a condition on the
accreditation of an assessor
|
Subsection 27(4)
|
|
10
|
To suspend the accreditation of a person
as an assessor
|
Subsection 28(1)
|
|
11
|
To refuse to lift the suspension of
accreditation of a person as an assessor
|
Subsection 29(1)
|
|
12
|
To refuse to waive all or a specified
part of the requirement under paragraph 24(2)(b) to produce information
or under paragraph 24(2)(c) to pay a fee
|
Subsection 29(2)
|
|
13
|
To revoke the accreditation of a person
as an assessor
|
Section 30
|
68 Internal review of certain
decisions
(1) A person may apply in
writing to the Secretary for review of a reviewable decision if:
(a) the decision was
made by:
(i) a
delegate of the Secretary; or
(ii) an
issuing authority other than the Secretary; and
(b) the person’s
interests are affected by the decision.
(2) An application for
review of a decision must be made within:
(a) 28 days after the
person is notified of the decision; or
(b) such longer
period as the Secretary allows.
(3) An application for
review of a decision must:
(a) set out the
reasons for making the application; and
(b) be in a form
approved by the Secretary.
(4) After receiving an
application for review of a decision, the Secretary must review the decision
and:
(a) affirm the
decision under review; or
(b) vary the decision
under review; or
(c) set aside the
decision under review and make a decision in substitution for it.
(5) A decision of the
Secretary under subsection (4) takes effect:
(a) on a day,
provided in the decision, that is after the decision was made; or
(b) if a day is not
so provided—on the day on which the decision was made.
69 Administrative review of certain
decisions
An application may be
made to the Administrative Appeals Tribunal for review of the following
decisions:
(a) a reviewable
decision made by the Secretary personally;
(b) a decision of the
Secretary under subsection 68(4).
70 Protection of information
obtained or generated by issuing authorities, auditors etc.
(1) A person commits an
offence if:
(a) the person:
(i) obtains
or generates information in the course of making a decision whether to issue a
building energy efficiency certificate; or
(ii) obtains
or generates information in, or in connection with, an audit conducted under Part 4;
or
(iii) obtains
or generates information in the course of exercising powers or performing
functions under this Act; and
(b) the person does
any of the following:
(i) copies,
or makes a record of, the information;
(ii) uses
the information;
(iii) discloses
the information to any person.
Penalty: Imprisonment for 2 years.
(2) Subsection (1) does
not apply if:
(a) the information
is copied, recorded, used or disclosed for the purposes of issuing a building
energy efficiency certificate; or
(b) the information
is copied, recorded, used or disclosed in, or in connection with, an audit
conducted under Part 4; or
(c) the information
is copied, recorded, used or disclosed for the purposes of ensuring compliance
with this Act; or
(d) the information
is copied, recorded, used or disclosed in circumstances in which the conduct is
permitted, either expressly or by implication, under this Act; or
(e) the information
is copied, recorded, used or disclosed for the purposes of proceedings for an
offence against section 137.1 or 137.2 of the Criminal Code (false
or misleading information or documents) that relates to this Act; or
(f) the information
is copied, recorded, used or disclosed for the purposes of proceedings for an
offence against section 149.1 of the Criminal Code (obstruction of
Commonwealth public officials) that relates to this Act; or
(g) the information
is copied, recorded, used or disclosed for the purposes of producing de‑identified
information for the purposes of research or planning; or
(h) the information
is already publicly available.
Note: A defendant bears an
evidential burden in relation to the matters in this subsection (see
subsection 13.3(3) of the Criminal Code).
71 Delegations
(1A) The Secretary may, in
writing, delegate to an APS employee who holds or performs the duties of an
Executive Level 2 position, or an equivalent position, in the Department, any
or all of the Secretary’s powers or functions under the following:
(a) section 13A
(issuing building energy efficiency certificates);
(b) section 17
(granting exemptions);
(c) section 18
(information gathering);
(d) section 25
(accrediting or refusing to accredit assessors);
(e) paragraph 33(2)(b)
(providing or approving ratings and assessments for building energy efficiency
certificates).
(1) The Secretary may, in
writing, delegate to an SES employee, or acting SES employee, in the Department
any or all of the Secretary’s powers or functions under this Act, other than
the following:
(a) this power of
delegation;
(e) the Secretary’s
powers under section 15 (determining manner of advertisement);
(f) the Secretary’s
powers under section 21 (determining assessment methods and standards);
(g) the Secretary’s
power under subsection 33(1) (appointment of auditing authority);
(h) the Secretary’s
power under subsection 33(3) (policies for auditing authority);
(i) the Secretary’s
power under subsection 65(4) (withholding or deleting an instance of non‑disclosure);
(j) the Secretary’s
power under subsection 66(1) (issue of evidentiary certificate);
(k) the Secretary’s
power under subsection 68(4) (internal review of certain decisions);
(l) the Secretary’s
power under section 71A (approving an issuing authority).
(2) The Secretary may, in
writing, delegate to an issuing authority approved under section 71A:
(a) the Secretary’s
powers under subsections 14(4) and (5); and
(b) any of the
Secretary’s powers and functions under Part 3.
(3) In exercising powers or performing
functions delegated under subsection (1) or (2), the delegate must comply
with any directions of the Secretary.
71A Issuing authorities
(1) The Secretary may, by
written instrument, approve a person or body as an issuing authority.
(2) The Secretary must not
approve a person or body as an issuing authority unless the Secretary is
satisfied that:
(a) the person or
body has the competencies necessary to apply the assessment methods and
standards determined under section 21 to decide whether energy efficiency
ratings or lighting energy efficiency assessments are appropriate; and
(b) the person or
body has systems in place to ensure that building energy efficiency
certificates are issued in good faith.
(3) An instrument under subsection (1)
is not a legislative instrument.
72 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.