BUILDING ENERGY EFFICIENCY DISCLOSURE BILL 2010

i Building Energy Efficiency Disclosure Bill 2010 No. , 2010

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Definitions

.........................................................................................

Offering to sell and inviting offers to purchase a building ................ 4

Offering to let or sublet and inviting offers to lease or

sublease a building or an area of a building ....................................... 5

6 Further

subleases

...............................................................................

Relationship with State and Territory law ......................................... 6

Act binds the Crown .......................................................................... 6

9 External

Territories

............................................................................

Part 2--Obligations to disclose energy efficiency information

Buildings and areas of buildings affected by energy

efficiency disclosure obligations ........................................................ 8

No sale, lease or sublease without a building energy

efficiency certificate .......................................................................... 8

Rights of a prospective purchaser, lessee or sublessee ...................... 9

Building energy efficiency certificates ............................................ 11

Building Energy Efficiency Register ............................................... 13

Advertisements to include energy efficiency ratings ....................... 14

16 Energy

efficiency ratings ................................................................. 16

17 Exemptions

......................................................................................

18 Information

gathering

......................................................................

Offences relating to information obtained or generated in

applying for a certificate .................................................................. 19

Damages for failure to properly carry out assessments.................... 20

21 Methods

and

standards of assessment .............................................. 21

Application of energy efficiency disclosure obligations .................. 22

Satisfying energy efficiency disclosure obligations during

the transition period ......................................................................... 22

Part 3--Accreditation of assessors

Division 1--Accreditation

24 Application

for accreditation ........................................................... 24

25 Accreditation

of assessors ................................................................ 24

26 Period

accreditation

.....................................................................

27 Conditions

accreditation .............................................................. 26

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 ii

Division 2--Suspension and revocation of accreditation

28 Suspension

accreditation ............................................................. 27

Lift of suspension ............................................................................ 27

30 Revocation

accreditation ............................................................. 28

Division 3--General provisions relating to accreditation

31 Register

Accredited Assessors ..................................................... 30

Offence--holding out to be an accredited assessor ......................... 30

Part 4--Auditing accredited assessors

Division 1--Appointment of auditing authority and auditors

33 Auditing

authority

............................................................................

34 Auditors

...........................................................................................

35 Identity

cards

...................................................................................

Division 2--Powers of auditors

Auditor may enter a building, an area of a building or an

associated place by consent or under warrant .................................. 34

37 Monitoring

powers

of auditors ......................................................... 34

38 Persons

assisting auditors ................................................................ 36

Auditor may ask questions and seek production of

documents ........................................................................................ 36

Division 3--Obligations of auditors

40 Consent

............................................................................................

Announcement before entry under warrant ..................................... 38

Auditor to be in possession of warrant ............................................ 39

Details of warrant etc. to be given to occupier................................. 39

Compensation for damage to electronic equipment ......................... 39

Division 4--Occupier's rights and responsibilities

Occupier entitled to observe execution of warrant .......................... 41

Occupier to provide auditor with facilities and assistance ............... 41

Division 5--Monitoring warrants

47 Monitoring

warrants

........................................................................

Division 6--Powers of magistrates

48 Powers

magistrates

......................................................................

Part 5--Enforcement

Division 1--Obtaining information and documents

Secretary may obtain information or documents ............................. 45

50 Failure

comply with a notice ....................................................... 45

iii Building Energy Efficiency Disclosure Bill 2010 No. , 2010

Division 2--Civil penalties

51 Civil

penalty

provisions ................................................................... 46

Ancillary contravention of civil penalty provisions ......................... 46

Civil penalty orders .......................................................................... 46

2 or more proceedings may be heard together ................................. 48

Contravening a civil penalty provision is not an offence ................. 48

Civil evidence and procedure rules for civil penalty orders ............. 48

Mistake of fact ................................................................................. 48

Division 3--Infringement notices

When an infringement notice can be given ...................................... 50

Matters to be included in an infringement notice ............................. 50

Extension of time to pay penalty ..................................................... 51

Withdrawal of an infringement notice ............................................. 52

Effect of payment of penalty............................................................ 54

Effect of this Division ...................................................................... 54

64 Regulations

......................................................................................

Division 4--Other matters

Energy Efficiency Non-disclosure Register ..................................... 55

Evidentiary certificate relating to the Building Energy

Efficiency Register .......................................................................... 56

Part 6--Miscellaneous

67 Reviewable

decisions ....................................................................... 57

68 Internal

review

certain decisions ................................................. 58

Administrative review of certain decisions ...................................... 58

Protection of information obtained or generated by issuing

authorities, auditors etc. ................................................................... 59

71 Delegations

......................................................................................

72 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Building Energy Efficiency Disclosure Bill 2010 No. , 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.

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

1 July 2010.

1 July 2010

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

(1) 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 person or body appointed as an

auditing authority under section 33.

auditor means a person appointed as an auditor under section 34.

building energy efficiency certificate has the meaning given by

section 13.

Preliminary Part 1

Section 3

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 3

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 Magistrates Court.

current:

(a) a building energy efficiency certificate for a building or an

area of a building is current for the period specified in

subsection 13(4); and

(b) an energy efficiency rating for a building or an area of a

building is current as specified in subsection 16(2).

disclosure affected area of a building means an 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 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.

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.

issuing authority means a person or body recognised as an issuing

authority under subsection 13(7).

Part 1 Preliminary

Section 4

4 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

monitoring powers has the meaning given by section 37.

monitoring warrant is a warrant issued under section 47.

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.

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

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.

valid:

(a) a building energy efficiency certificate for a building is valid

in the circumstances specified in subsection 13(5); and

(b) a building energy efficiency certificate for an area of a

building is valid in the circumstances specified in subsection

13(6); and

building is valid as specified in subsection 16(2).

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.

Preliminary Part 1

Section 5

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 5

(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.

Part 1 Preliminary

Section 6

6 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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.

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.

Part 2 Obligations to disclose energy efficiency information

Section 10

8 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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 valid,

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;

(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 valid,

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.

Obligations to disclose energy efficiency information Part 2

Section 12

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 9

(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 valid, 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

valid, 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.

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

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 valid, current building

Part 2 Obligations to disclose energy efficiency information

Section 12

10 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

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 valid, 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

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 valid, 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

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

Obligations to disclose energy efficiency information Part 2

Section 13

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 11

owner to give the prospective lessee a copy of a valid, 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

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 valid, current

building energy efficiency certificate for the area that has been

registered.

(6) If a person is, by notice given in accordance with this section,

required to give another person a copy of a valid, 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

(1)

building energy efficiency certificate for a building is a

certificate issued by an issuing authority and setting out:

(a) the energy efficiency rating for the building; and

(b) 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; and

instrument on how energy efficiency might be improved.

Part 2 Obligations to disclose energy efficiency information

Section 13

12 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(2)

building energy efficiency certificate for an area of a building is

a certificate issued by an issuing authority and setting out:

(a) the energy efficiency rating for the building in which the area

is located; and

(b) 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; and

instrument on how energy efficiency might be improved.

(3) Other information may be included in a building energy efficiency

certificate if it is of a prescribed kind.

(4) A building energy efficiency certificate is current for a period of

no more than 12 months specified in the certificate and beginning

on the day on which the certificate is issued.

(5) A building energy efficiency certificate for a building is valid if the

issuing authority that issued it is satisfied, based on an application

by an accredited assessor or information provided by an auditing

authority, that:

(a) the energy efficiency rating specified in the certificate for the

building is that which, applying the assessment methods and

standards determined under section 21, is appropriate for the

building; and

(b) 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 that which, applying the

assessment methods and standards determined under

section 21, is appropriate for the building.

(6) A building energy efficiency certificate for an area of a building is

valid if the issuing authority that issued it is satisfied, based on an

application by an accredited assessor or information provided by

an auditing authority, that:

(a) the energy efficiency rating specified in the certificate for the

building in which the area is located is that which, applying

the assessment methods and standards determined under

section 21, is appropriate for the building; and

Obligations to disclose energy efficiency information Part 2

Section 14

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 13

(b) 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 that which, applying the assessment

methods and standards determined under section 21, is

appropriate for the area.

(7) The Secretary may, by instrument in writing, recognise a person or

body as an issuing authority.

(8) An instrument made under subsection (7) is not a legislative

instrument.

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 valid building energy

efficiency certificates.

(2) The Register may include particulars of both current building

energy efficiency certificates and those that are no longer current.

(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:

Part 2 Obligations to disclose energy efficiency information

Section 15

14 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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; and

(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 valid, 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.

Obligations to disclose energy efficiency information Part 2

Section 15

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 15

(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 valid, 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 valid, 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 valid, 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.

Part 2 Obligations to disclose energy efficiency information

Section 16

16 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

16 Energy efficiency ratings

(1)

The

energy efficiency rating for a building is the energy efficiency

rating specified in a building energy efficiency certificate for the

building.

(2) The energy efficiency rating for the building is valid and current if

the building energy efficiency certificate for the building is valid

and current.

17 Exemptions

Application for exemption

(1) A person who would otherwise be subject to an energy efficiency

disclosure obligation may apply to the Secretary for an exemption

from that obligation.

(2) The application must:

(a) be in writing in a form approved by the Secretary; and

(b) include information of a prescribed kind; and

Granting an exemption

(3) The Secretary may grant an exemption from an energy efficiency

disclosure obligation:

(a) if the building, or the area of the building, in relation to

which the obligation would otherwise apply is used for police

or security operations; or

(b) if, because of the characteristics of the building or the area of

the building in relation to which the obligation would

otherwise apply, it is not possible to assign an energy

efficiency rating to the building, or assess the energy

efficiency of lighting of the building or the area of the

building in accordance with assessment methods and

standards determined under section 21; or

Obligations to disclose energy efficiency information Part 2

Section 18

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 17

(4) The Secretary must give notice in writing of the Secretary's

decision to the applicant.

Varying or revoking an exemption

(5) The Secretary may, by notice in writing given to the person to

whom an exemption under subsection (3) relates, vary or revoke

the exemption. The notice is not a legislative instrument.

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 notice in writing 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) A notice given under subsection (2) must specify a period of no

less than 14 days within which the information must be given to

the accredited assessor.

(4) The accredited assessor may by notice in writing 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 and the assessor reasonably believes that the person

either occupies or controls access to the place.

(5) A notice given under subsection (4) 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.

Part 2 Obligations to disclose energy efficiency information

Section 18

18 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

Civil penalty provision

(6) A person 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.

Exemption

(8) An owner, lessee or sublessee of a building or an area of a building

may apply to the Secretary for an exemption from this section.

(9) The application must:

(a) be in writing in a form approved by the Secretary; and

(b) include information of a prescribed kind; and

(10) The Secretary may grant an exemption from this section in relation

to:

(a) access to a building specified in the exemption; or

(b) access to an area of a building specified in the exemption; or

exemption; or

(d) access to a building or an area of a building on a day or at a

time specified in the exemption; or

(e) a class of information specified in the exemption.

Obligations to disclose energy efficiency information Part 2

Section 19

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 19

(11) The Secretary must give notice in writing of the Secretary's

decision to the applicant.

Varying or revoking an exemption

(12) The Secretary may, by notice in writing given to the person to

whom an exemption under subsection (10) relates, vary or revoke

the exemption. The notice is not a legislative instrument.

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(2); 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;

(b) the information is copied, recorded, used or disclosed in, or

in connection with, an audit conducted under Part 4; or

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

Part 2 Obligations to disclose energy efficiency information

Section 20

20 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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(2)--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) assess the energy efficiency of the lighting for the building

that might reasonably be expected to remain if the building is

sold, let or sublet by applying the assessment methods and

standards determined under section 21; and

(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:

Obligations to disclose energy efficiency information Part 2

Section 21

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 21

(a) work out the proposed energy efficiency rating for the

building by applying the assessment methods and standards

determined under section 21; and

(b) assess the energy efficiency of the lighting for the area that

might reasonably be expected to remain if the area is let or

sublet by applying the assessment methods and standards

determined under section 21; and

(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.

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

assessing the energy efficiency of lighting for a building that

might reasonably be expected to remain if the building is

sold, let or sublet; and

assessing the energy efficiency of lighting for an area of a

Part 2 Obligations to disclose energy efficiency information

Section 22

22 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

building that might reasonably be expected to remain if the

area is let or sublet.

(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.

22 Application of energy efficiency disclosure obligations

(1) Sections 11 and 12 apply to:

(a) offers to sell a building; and

(b) invitations for offers to purchase a building; and

(d) invitations for offers to lease a building or an area of a

building; and

(e) offers to sublet a building or an area of a building; and

(f) invitations for offers to sublease a building or an area of a

building;

that are made or continue to be made on or after the

implementation day.

(2) Section 15 applies to advertisements that are either first published

or continue to be published on or after the implementation day.

(3)

The

implementation day is a day fixed by Proclamation.

(4) However, if the implementation day does not fall by Proclamation

within a period of 6 months beginning on the day this Act

commences, it falls on the day after the end of that period.

23 Satisfying energy efficiency disclosure obligations during the

transition period

(1)

The

transition period is a period of 12 months beginning on the

implementation day.

Obligations to disclose energy efficiency information Part 2

Section 23

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 23

(2) During the transition period, a valid, current building energy

efficiency certificate for a building, or an area of a building, is

taken to be registered if:

(a) a rating of the energy efficiency of the building has been

issued before the start of the transition period; and

(b) the rating was issued by a person or body that is recognised

as an issuing authority at the start of the transition period; and

for the building, based on assessment methods and standards

substantially similar to those determined under section 21 as

in force at the start of the transition period; and

(d) the rating has not expired; and

(e) the rating is included in a register maintained by the issuing

authority by electronic means and available for inspection on

the internet.

(3) A rating mentioned in paragraph (2)(a) is taken to expire on the

expiry date stated on the rating.

(4) If a valid, current building energy certificate for a building, or an

area of a building, is taken to be registered under subsection (2),

the rating mentioned in paragraph (2)(a) is taken to be a valid,

current energy efficiency rating for the purposes of section 15 until

the rating expires.

Part 3 Accreditation of assessors

Division 1 Accreditation

Section 24

24 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

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

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:

Accreditation of assessors Part 3

Accreditation Division 1

Section 25

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 25

(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 an assessment of

the energy efficiency of lighting 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 an assessment of the energy

efficiency of lighting 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

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.

Part 3 Accreditation of assessors

Division 1 Accreditation

Section 26

26 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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 is to perform one or more

assessments applying the assessment methods and standards

determined under section 21 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.

Accreditation of assessors Part 3

Suspension and revocation of accreditation Division 2

Section 28

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 27

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 an assessment of the energy

efficiency of lighting 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 a proposed energy efficiency rating or

performing an assessment of the energy efficiency of lighting

for a building or an area of a building; or

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:

Part 3 Accreditation of assessors

Division 2 Suspension and revocation of accreditation

Section 30

28 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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

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

Accreditation of assessors Part 3

Suspension and revocation of accreditation Division 2

Section 30

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 29

section 21 for the purposes of working out an energy

efficiency rating or an assessment of the energy efficiency of

lighting 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 an assessment of

the energy efficiency of lighting for a building or an area of a

building;

person's accreditation.

(3) The Secretary must notify a person in writing of a decision to

revoke the person's accreditation.

Part 3 Accreditation of assessors

Division 3 General provisions relating to accreditation

Section 31

30 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

assisting a person in engaging an accredited assessor to

conduct an assessment of a building or an area 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

assessor.

Penalty: 60 penalty units.

Auditing accredited assessors Part 4

Appointment of auditing authority and auditors Division 1

Section 33

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 31

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) The function of an auditing authority is to direct auditors in

performing their work to ensure that:

(a) accredited assessors properly apply the assessment methods

and standards determined under section 21 in carrying out

assessments for the purposes of applying for building energy

efficiency certificates; and

(b) the assessments are not influenced by any conflict of interest.

(3) The 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 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; and

(b) in relation to an area of a building for which a building

energy efficiency certificate is current:

Part 4 Auditing accredited assessors

Division 1 Appointment of auditing authority and auditors

Section 34

32 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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; and

(ii) the assessment of the energy efficiency of the lighting

for the area that might reasonably be expected to remain

if the building is let or sublet 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;

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) assessments carried out by accredited assessors for the

purposes of applying for building energy efficiency

certificates; and

(ii) the documentation and record keeping of accredited

assessors in relation to those assessments; and

(b) supervise such assessments to ensure that:

(i) the assessment methods and standards determined under

section 21 are properly applied; and

(ii) assessments are properly documented; and

(iii) records of assessments are properly kept.

Auditing accredited assessors Part 4

Appointment of auditing authority and auditors Division 1

Section 35

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 33

(4) An auditor must perform his or her functions in accordance with

any directions given by the 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

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.

Part 4 Auditing accredited assessors

Division 2 Powers of auditors

Section 36

34 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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 an assessment of the energy

efficiency of lighting 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;

recording of the building, area or associated place or any

thing in the building, area or associated place;

Auditing accredited assessors Part 4

Powers of auditors Division 2

Section 37

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 35

(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;

Part 4 Auditing accredited assessors

Division 2 Powers of auditors

Section 38

36 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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:

Auditing accredited assessors Part 4

Powers of auditors Division 2

Section 39

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 37

(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).

Part 4 Auditing accredited assessors

Division 3 Obligations of auditors

Section 40

38 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

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.

Auditing accredited assessors Part 4

Obligations of auditors Division 3

Section 42

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 39

(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:

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

Part 4 Auditing accredited assessors

Division 3 Obligations of auditors

Section 44

40 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

(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.

Auditing accredited assessors Part 4

Occupier's rights and responsibilities Division 4

Section 45

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 41

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.

Part 4 Auditing accredited assessors

Division 5 Monitoring warrants

Section 47

42 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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 an assessment of the energy efficiency of

lighting 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

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 an

Auditing accredited assessors Part 4

Monitoring warrants Division 5

Section 47

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 43

assessment of the energy efficiency of lighting 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.

Part 4 Auditing accredited assessors

Division 6 Powers of magistrates

Section 48

44 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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.

Enforcement Part 5

Obtaining information and documents Division 1

Section 49

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 45

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).

Part 5 Enforcement

Division 2 Civil penalties

Section 51

46 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

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.

Enforcement Part 5

Civil penalties Division 2

Section 53

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 47

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

(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) The pecuniary penalty must not exceed the relevant amount

specified for the provision.

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.

Part 5 Enforcement

Division 2 Civil penalties

Section 54

48 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

Enforcement Part 5

Civil penalties Division 2

Section 57

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 49

(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.

Part 5 Enforcement

Division 3 Infringement notices

Section 58

50 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

Division 3--Infringement notices

58 When an infringement notice can be given

(1)

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

(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

Enforcement Part 5

Infringement notices Division 3

Section 60

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 51

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

Part 5 Enforcement

Division 3 Infringement notices

Section 61

52 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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) A person to whom an infringement notice has been given may

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:

Enforcement Part 5

Infringement notices Division 3

Section 61

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 53

(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;

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

(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.

Part 5 Enforcement

Division 3 Infringement notices

Section 62

54 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

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

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.

Enforcement Part 5

Other matters Division 4

Section 65

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 55

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.

Part 5 Enforcement

Division 4 Other matters

Section 66

56 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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 valid, 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

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.

Miscellaneous Part 6

Section 67

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 57

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

To refuse to grant an exemption from an

energy efficiency disclosure obligation

Subsection 17(3)

To revoke or vary the grant of an

exemption from an energy efficiency

disclosure obligation

Subsection 17(5)

To grant an exemption from section 18

Subsection 18(10)

To revoke or vary the grant of an

exemption from section 18

Subsection 18(12)

To refuse to grant an exemption from

section 18

Subsection 18(10)

To refuse to revoke or vary the grant of an

exemption from section 18

Subsection 18(12)

To refuse to accredit a person as an

assessor

Section 25

To impose additional conditions on the

accreditation of an assessor

Subsection 27(2)

To vary or revoke a condition on the

accreditation of an assessor

Subsection 27(4)

To suspend the accreditation of a person as

an assessor

Subsection 28(1)

To refuse to lift the suspension of

accreditation of a person as an assessor

Subsection 29(1)

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)

To revoke the accreditation of a person as

Section 30

Part 6 Miscellaneous

Section 68

58 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

Reviewable decisions

Item

Decision

Provision under which

decision is made

an assessor

68 Internal review of certain decisions

(1) If a reviewable decision is made by a delegate of the Secretary, a

person whose interests are affected by the decision may apply in

writing to the Secretary for review of 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

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).

Miscellaneous Part 6

Section 70

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 59

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;

(b) the information is copied, recorded, used or disclosed in, or

in connection with, an audit conducted under Part 4; or

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

Part 6 Miscellaneous

Section 71

60 Building Energy Efficiency Disclosure Bill 2010 No. , 2010

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

(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;

(b) the Secretary's power under paragraph 13(1)(c) (guidance on

how energy efficiency might be improved);

(d) the Secretary's power under subsection 13(7) (recognising an

issuing authority);

(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).

(2) The Secretary may, in writing, delegate to the issuing authority:

Miscellaneous Part 6

Section 72

Building Energy Efficiency Disclosure Bill 2010 No. , 2010 61

(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.

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.

Commonwealth of Australia Bills

BUILDING ENERGY EFFICIENCY DISCLOSURE BILL 2010