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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Electricity Supply Amendment (Energy
Savings) Bill 2009
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Electricity Supply Act 1995 No 94 3
b2009-026-40.d13
New South Wales
Electricity Supply Amendment (Energy
Savings) Bill 2009
No , 2009
A Bill for
An Act to amend the Electricity Supply Act 1995 to establish an energy savings
scheme.
Clause 1 Electricity Supply Amendment (Energy Savings) Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Electricity Supply Amendment (Energy Savings) 3
Act 2009. 4
2 Commencement 5
This Act commences, or is taken to have commenced, on 1 July 2009. 6
Page 2
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
Schedule 1 Amendment of Electricity Supply Act 1
1995 No 94 2
[1] Section 97EC When certificates may be created 3
Omit section 97EC (4) and the note to the subsection. 4
[2] Part 9 5
Insert after Part 8A: 6
Part 9 Energy savings scheme 7
Division 1 Preliminary 8
98 Objects of Part 9
(1) The principal object of this Part is to create a financial incentive 10
to reduce the consumption of electricity by encouraging energy 11
saving activities. 12
(2) The other objects of this Part are: 13
(a) to assist households and businesses to reduce electricity 14
consumption and electricity costs, and 15
(b) to complement any national scheme for carbon pollution 16
reduction by making the reduction of greenhouse gas 17
emissions achievable at a lower cost, and 18
(c) to reduce the cost of, and the need for, additional energy 19
generation, transmission and distribution infrastructure. 20
99 Definitions 21
(1) In this Part: 22
accredited certificate provider means a person accredited as an 23
energy savings certificate provider under this Part and whose 24
accreditation is in force. 25
base penalty rate--see section 113. 26
carbon dioxide equivalent of greenhouse gas emissions means 27
the mass of carbon dioxide measured in tonnes that has the same 28
global warming potential as those greenhouse gas emissions. 29
carried forward shortfall--see section 116. 30
certificate conversion factor--see section 130. 31
consumer price index means the Consumer Price Index (All 32
Groups Index) for Sydney issued by the Australian Statistician. 33
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
direct supplier of electricity has the meaning given by 1
section 101. 2
end user of electricity means a person who acquires, or proposes 3
to acquire, electricity for consumption purposes. 4
energy conversion factor--see section 108. 5
energy savings certificate means an energy savings certificate 6
created under this Part. 7
energy savings scheme or scheme means the energy savings 8
scheme established by this Part. 9
energy savings scheme target--see section 103. 10
energy savings shortfall--see section 111. 11
energy savings shortfall penalty--see section 112. 12
energy savings statement--see section 123. 13
greenhouse gas means carbon dioxide, methane, nitrous oxide, a 14
perfluorocarbon gas or any other gas prescribed by the 15
regulations for the purposes of this definition. 16
individual energy savings target--see section 106. 17
liable acquisition--see section 107. 18
Market Operator means the entity that has the function of 19
operating and administering the wholesale exchange under the 20
National Electricity (NSW) Law. 21
penalty conversion factor--see section 113. 22
recognised energy saving activity means an activity in respect of 23
which an energy savings certificate may be created under this 24
Part. 25
register means a register kept by the Scheme Administrator under 26
this Part. 27
related body corporate of a person has the same meaning as it has 28
in the Corporations Act 2001 of the Commonwealth. 29
Scheme Administrator means the person or body required to 30
exercise the functions of Scheme Administrator under this Part. 31
scheme participant means a person who is required by this Part 32
to participate in the energy savings scheme. 33
scheme penalty rate--see section 113. 34
Scheme Regulator means the person or body required to exercise 35
the functions of Scheme Regulator under this Part. 36
scheme rule means a rule approved by the Minister under 37
Division 13 of this Part. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(2) In this Part, a reference to a particular year is a reference to the 1
period of 12 months commencing on 1 January of that year, 2
except in relation to the year 2009. A reference to the year 2009 3
is a reference to the period of 6 months commencing on 4
1 July 2009. 5
Division 2 Energy savings scheme 6
100 Establishment of scheme 7
There is established by this Part an energy savings scheme. 8
101 Persons required to participate in scheme 9
(1) The following persons are required to participate in the energy 10
savings scheme: 11
(a) a retail supplier, 12
(b) a direct supplier of electricity, 13
(c) a market customer. 14
(2) In this section: 15
direct supplier of electricity means an electricity generator 16
prescribed by the regulations, or any other person prescribed by 17
the regulations, who supplies electricity directly to a customer 18
under an electricity supply arrangement to which section 179 19
does not apply. 20
market customer means a customer that has classified any of its 21
electricity loads as a market load and that is registered with the 22
Market Operator as a market customer under the National 23
Electricity Rules (within the meaning of the National Electricity 24
(NSW) Law). 25
102 Scheme participants required to meet individual energy savings 26
targets 27
Each scheme participant is required to meet its individual energy 28
savings target for each year, in accordance with this Part. 29
Note. Failure to meet an individual energy savings target will result in a 30
penalty being payable. 31
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
Division 3 Energy savings scheme targets 1
103 Energy savings scheme targets 2
(1) The energy savings scheme targets are to be used as the basis for 3
the calculation of each scheme participant's individual energy 4
savings target. 5
(2) The energy savings scheme targets are set out in Schedule 5. 6
(3) The energy savings scheme target for a year specified in 7
column 1 of Schedule 5 is the amount specified for that year in 8
column 2 of that Schedule. 9
Note. The energy savings scheme target is applied to the liable 10
acquisitions made by a scheme participant to calculate an individual 11
energy savings target for the scheme participant. This is explained in 12
Division 4. 13
104 Changes to energy savings scheme targets 14
(1) The Governor may, by regulation made on the recommendation 15
of the Minister, amend Schedule 5 to change the energy savings 16
scheme target for a specified year or years. 17
(2) Accordingly, any such regulation may omit an amount specified 18
in column 2 of Schedule 5 and substitute a new amount. 19
(3) Any such regulation does not affect the energy savings scheme 20
target for any year that commences on or before the date the 21
regulation is made or within 12 months after the date the 22
regulation is made. 23
Note. For example, a regulation to change the energy savings scheme 24
target for the year 2011 would have to be made on or before 25
31 December 2009. 26
105 Conditions under which energy savings scheme targets may be 27
changed 28
The Minister may recommend the making of a regulation to 29
change the energy savings scheme target for a year or years only 30
if the Minister has certified in writing to the Governor that, in the 31
Minister's opinion: 32
(a) the change to the energy savings scheme target is 33
appropriate to achieve greater uniformity or harmonisation 34
with a scheme in another jurisdiction with similar 35
objectives to the energy savings scheme, or for the 36
purposes of implementing a national scheme with similar 37
objectives to the energy savings scheme, or 38
(b) the change to the energy savings scheme target is 39
appropriate because of a sustained under supply of energy 40
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
savings certificates, as evidenced by scheme participants 1
being required to pay a substantial energy savings shortfall 2
penalty for 2 or more consecutive years, or 3
(c) the change to the energy savings scheme target is 4
appropriate because of a sustained over supply of energy 5
savings certificates, as evidenced by the total number of 6
certificates created substantially exceeding the total 7
number of certificates required to meet all individual 8
energy savings targets for 2 or more consecutive years, or 9
(d) the change to the energy savings scheme target is 10
appropriate because of significant changes to the rules 11
governing the creation of energy savings certificates, or 12
(e) the change to the energy savings scheme target is 13
otherwise appropriate because of significant changes to the 14
policy or regulatory framework, or the market conditions, 15
in which the energy savings scheme operates. 16
Division 4 Individual energy savings targets 17
106 Individual energy savings targets 18
(1) The individual energy savings target of a scheme participant for 19
a year is the amount (expressed in tonnes of carbon dioxide 20
equivalent of greenhouse gas emissions) calculated as follows: 21
(a) Step 1 22
Multiply the energy savings scheme target for the year by 23
the total value of all liable acquisitions made by the 24
scheme participant during that year to obtain an individual 25
energy savings target expressed in megawatt hours (the 26
megawatt hours target). 27
(b) Step 2 28
Multiply the megawatt hours target by the energy 29
conversion factor for that year. 30
(2) If the result obtained at the end of Step 2 includes a fraction of a 31
tonne, the fractional amount is to be rounded up or down to the 32
nearest whole tonne (and, if the amount to be rounded is half a 33
tonne, is to be rounded up). 34
Note. For example, a retail supplier has liable acquisitions in the 35
year 2010 of 75,000 megawatt hours. 36
To calculate the individual energy savings target, 75,000 must first be 37
multiplied by 0.015, the energy savings scheme target for the year 2010 38
(this is Step 1). 39
Accordingly, the retail supplier has a megawatt hours target of 1,125. 40
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
Next, at Step 2, 1,125 must be multiplied by the energy conversion factor 1
for the year 2010, which is 1.01. 2
The result is 1,136.25, which is then rounded down to 1,136. 3
The retail supplier has an individual energy savings target for the 4
year 2010 of 1,136 tonnes of carbon dioxide equivalent. 5
As will be explained further below, the retail supplier can meet this target 6
by surrendering 1,136 energy savings certificates to the Scheme 7
Regulator. 8
107 Liable acquisitions 9
(1) For the purposes of this Part, a liable acquisition is any purchase 10
of electricity by a scheme participant, from the Market Operator 11
or from a person who is not a registered participant under the 12
National Electricity (NSW) Law, where the electricity is 13
purchased for consumption by, or onsale to, end users in this 14
State, or for use in this State. 15
(2) A supply of electricity generated by a scheme participant is also 16
to be treated as a liable acquisition under this Part if: 17
(a) the scheme participant is a retail supplier and the 18
electricity is supplied by the retail supplier for 19
consumption by, or onsale to, end users in this State, or for 20
use in this State, or 21
(b) the scheme participant is a direct supplier of electricity and 22
the supply is of a kind specified by the regulations to be a 23
liable acquisition under the scheme. 24
(3) For the purposes of this Part: 25
(a) a liable acquisition is made by a scheme participant on the 26
date the electricity is purchased by the scheme participant 27
or, in the case of a supply of electricity treated as a liable 28
acquisition, supplied by the scheme participant, and 29
(b) the value of a purchase or supply of electricity is the 30
amount of electricity purchased or supplied, expressed in 31
megawatt hours. 32
(4) Electricity is taken to be purchased by a scheme participant on the 33
date the electricity is physically delivered to the scheme 34
participant (regardless of when the contract or other arrangement 35
for purchase of the electricity was entered into or made). 36
(5) This section is subject to Division 5 (which provides for 37
exemptions). 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
108 Energy conversion factors 1
(1) Energy conversion factors are set out in Schedule 5. 2
(2) The energy conversion factor for a year specified in column 1 of 3
Schedule 5 is the amount specified for that year in column 3 of 4
that Schedule. 5
(3) The Governor may, by regulation made on the recommendation 6
of the Minister, amend Schedule 5 to change the energy 7
conversion factor for a specified year or years. 8
(4) Accordingly, any such regulation may omit an amount specified 9
in column 3 of Schedule 5 and substitute a new amount. 10
(5) Any such regulation does not affect the energy conversion factor 11
for any year that commences on or before the date the regulation 12
is made or within 12 months after the date the regulation is made. 13
109 How does a scheme participant meet an individual energy savings 14
target? 15
(1) A scheme participant meets an individual energy savings target 16
for a year if the energy savings attributable to the scheme 17
participant for the year are equivalent to, or exceed, the 18
individual energy savings target of the scheme participant for that 19
year. 20
(2) A scheme participant fails to meet an individual energy savings 21
target for a year if the energy savings attributable to the scheme 22
participant for the year are less than the individual energy savings 23
target of the scheme participant for that year. 24
110 What are the energy savings attributable to a scheme participant? 25
For the purposes of this Part, the energy savings attributable to a 26
scheme participant for a year is the total value of all energy 27
savings certificates that the scheme participant elects to 28
surrender, in accordance with this Part, for the purpose of 29
meeting its individual energy savings target for that year. 30
Note. Energy savings certificates may be created in respect of activities 31
that reduce the consumption of electricity. See Division 7. 32
111 Failure to meet individual energy savings target--energy savings 33
shortfalls 34
(1) If a scheme participant fails to meet its individual energy savings 35
target for a year, the scheme participant has an energy savings 36
shortfall for that year. 37
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(2) The amount of the energy savings shortfall is the number of 1
tonnes of carbon dioxide equivalent of greenhouse gas emissions 2
by which the individual energy savings target of the scheme 3
participant for the year exceeds the energy savings attributable to 4
the scheme participant for that year. 5
112 Penalties for energy savings shortfalls 6
(1) A scheme participant who has an energy savings shortfall for a 7
year is liable to pay a penalty in respect of that year (an energy 8
savings shortfall penalty). 9
(2) The amount of the energy savings shortfall penalty is the amount 10
(in dollars) calculated by multiplying the amount of the energy 11
savings shortfall by the scheme penalty rate. 12
(3) If the result obtained from that calculation is not a whole number 13
of dollars, it is to be rounded down to the nearest whole number 14
of dollars. 15
113 Penalty rates 16
(1) The scheme penalty rate is the amount (expressed in dollars per 17
tonne of carbon dioxide equivalent of greenhouse gas emissions) 18
calculated by multiplying the base penalty rate for the year in 19
respect of which the energy savings shortfall penalty is payable 20
by the penalty conversion factor for that year. 21
(2) Base penalty rates and penalty conversion factors are set out in 22
Schedule 5A. 23
(3) The base penalty rate for a year specified in column 1 of 24
Schedule 5A is the amount (expressed in dollars per megawatt 25
hour) specified for that year in column 2 of that Schedule. 26
(4) The penalty conversion factor for a year specified in column 1 of 27
Schedule 5A is the amount specified for that year in column 3 of 28
that Schedule. 29
Note. For example, the scheme penalty rate for 2009 would be 30
calculated by multiplying $24.50 (the base penalty rate for that year) 31
by 0.94. Accordingly, the scheme penalty rate would be $23.03 per 32
tonne of carbon dioxide equivalent of greenhouse gas emissions. A 33
scheme participant who has an energy savings shortfall of 100 tonnes of 34
carbon dioxide equivalent of greenhouse gas emissions in 2009 would 35
be liable for an energy savings shortfall penalty of $2,303. 36
(5) The regulations may provide for the adjustment of base penalty 37
rates in accordance with movements in the consumer price index. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(6) If the regulations provide for the adjustment of a base penalty rate 1
in accordance with movements in the consumer price index, the 2
scheme penalty rate is to be calculated using the relevant base 3
penalty rate specified in Schedule 5A adjusted in the manner 4
provided for by the regulations. 5
(7) If a base penalty rate specified in Schedule 5A is adjusted for 6
movements in the consumer price index, the Scheme Regulator is 7
to cause notice of the adjusted rate to be published on its website 8
before the beginning of the year to which the adjusted rate 9
applies. 10
114 Changes to base penalty rates and penalty conversion factors 11
(1) The Governor may, by regulation made on the recommendation 12
of the Minister, amend Schedule 5A to change the base penalty 13
rate or the penalty conversion factor (or both) for a specified year 14
or years. 15
(2) Accordingly, any such regulation may omit an amount specified 16
in column 2 or 3 of Schedule 5A and substitute a new amount. 17
(3) Any such regulation does not affect the base penalty rate or 18
penalty conversion factor for any year that commences on or 19
before the date the regulation is made or within 12 months after 20
the date the regulation is made. 21
Note. For example, a regulation to prescribe a different base penalty 22
rate or penalty conversion factor for the year 2011 and subsequent years 23
would have to be made on or before 31 December 2009. 24
(4) The Minister may recommend the making of a regulation to 25
amend Schedule 5A to change the base penalty rate for a year or 26
years only if the Minister has certified in writing to the Governor 27
that, in the Minister's opinion: 28
(a) the change to the base penalty rate is appropriate to achieve 29
greater uniformity or harmonisation with a scheme in 30
another jurisdiction with similar objectives to the energy 31
savings scheme, or for the purposes of implementing a 32
national scheme with similar objectives to the energy 33
savings scheme, or 34
(b) the change to the base penalty rate is appropriate because 35
of a sustained under supply of energy savings certificates, 36
as evidenced by scheme participants being required to pay 37
a substantial energy savings shortfall penalty for 2 or more 38
consecutive years, or 39
(c) the change to the base penalty rate is appropriate because 40
of a sustained over supply of energy savings certificates, as 41
evidenced by the total number of certificates created 42
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
substantially exceeding the total number of certificates 1
required to meet all individual energy savings targets for 2
2 or more consecutive years, or 3
(d) the change to the base penalty rate is appropriate because 4
of significant changes to the rules governing the creation 5
of energy savings certificates, or 6
(e) the change to the base penalty rate is otherwise appropriate 7
because of significant changes to the policy or regulatory 8
framework, or the market conditions, in which the energy 9
savings scheme operates. 10
(5) To avoid doubt, subsection (4) does not apply to a regulation that 11
changes the penalty conversion factor for a year or years. 12
(6) This section does not apply to a regulation that provides for the 13
adjustment of base penalty rates for movements in the consumer 14
price index. 15
Note. The penalty rates specified in Schedule 5A are base rates only. 16
Adjustments for movements in the consumer price index do not 17
necessitate any change to Schedule 5A. 18
115 Payment of energy savings shortfall penalties 19
(1) An energy savings shortfall penalty payable by a scheme 20
participant in respect of a year is payable on 1 March in the 21
following year or on any later date determined by the Scheme 22
Regulator for the scheme participant. 23
(2) An energy savings shortfall penalty is payable to the Scheme 24
Regulator, for payment into the Consolidated Fund as public 25
money. 26
(3) An energy savings shortfall penalty payable by a scheme 27
participant may be recovered in any court of competent 28
jurisdiction as a debt due to the Crown. 29
116 Energy savings shortfalls may be carried forward 30
(1) A scheme participant may elect to carry forward an energy 31
savings shortfall, or part of an energy savings shortfall, for a year 32
to the next year in accordance with this section. 33
(2) If a scheme participant elects to carry forward an energy savings 34
shortfall, or part of an energy savings shortfall, the amount 35
carried forward is not subject to an energy savings shortfall 36
penalty for the year to which the shortfall relates. 37
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(3) The maximum amount of an energy savings shortfall that may be 1
carried forward to the year 2010 by a scheme participant is 20% 2
of the scheme participant's individual energy savings target for 3
the year 2009 or, if the regulations prescribe another amount as 4
the maximum amount that may be carried forward to year 2010, 5
the amount so prescribed. 6
(4) The maximum amount of an energy savings shortfall that may be 7
carried forward to any other year by a scheme participant is 10% 8
of the scheme participant's individual energy savings target in the 9
previous year or, if the regulations prescribe another amount as 10
the maximum amount that may be carried forward to the relevant 11
year, the amount so prescribed. 12
(5) An energy savings shortfall, or part of an energy savings 13
shortfall, may be carried forward to the next year only. 14
(6) However, an energy savings shortfall, or part of an energy 15
savings shortfall, for the year 2020 cannot be carried forward to 16
the next year. 17
Note. The scheme automatically terminates at the end of the year 2020. 18
It is also possible for the scheme to be terminated earlier under 19
Division 14, in which case the regulations may prohibit scheme 20
participants from carrying forward an energy savings shortfall to the next 21
year if the termination takes effect in that next year. 22
(7) The fact that a scheme participant elects to carry forward an 23
energy savings shortfall, or part of an energy savings shortfall, to 24
the next year does not prevent the scheme participant from 25
electing to carry forward an energy savings shortfall, or part of an 26
energy savings shortfall, for that next year to the following year. 27
(8) For the purposes of this Part, an energy savings shortfall, or part 28
of an energy savings shortfall, for a year that is carried forward to 29
the next year is a carried forward shortfall for that next year. 30
117 Carried forward shortfalls must be remedied 31
(1) A scheme participant who has a carried forward shortfall for a 32
year must remedy the carried forward shortfall in that year. 33
(2) A scheme participant remedies a carried forward shortfall if the 34
additional energy savings attributable to the scheme participant 35
for the year to which the energy savings shortfall is carried 36
forward are equivalent to, or exceed, the amount of the carried 37
forward shortfall. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(3) A scheme participant fails to remedy a carried forward shortfall 1
if the additional energy savings attributable to the scheme 2
participant for the year to which the energy savings shortfall is 3
carried forward are less than the amount of the carried forward 4
shortfall. 5
(4) For the purposes of this Part, the additional energy savings 6
attributable to a scheme participant for a year is the total value of 7
all energy savings certificates that the scheme participant elects 8
to surrender, in accordance with this Part, for the purpose of 9
remedying its carried forward shortfall for that year. 10
(5) If a scheme participant fails to remedy a carried forward shortfall, 11
the scheme participant is liable for a penalty in respect of the 12
non-remedied amount (that is, the amount by which the carried 13
forward shortfall exceeds the additional energy savings 14
attributable to the scheme participant for the year). 15
(6) The penalty is to be calculated as if the non-remedied amount 16
were an energy savings shortfall for the year to which the energy 17
savings shortfall is carried forward. 18
(7) The penalty is payable in the same manner as, and is taken to be, 19
an energy savings shortfall penalty. 20
(8) To avoid doubt, a penalty payable by a scheme participant in 21
respect of a failure to remedy a carried forward shortfall in a year 22
is additional to any penalty payable by the scheme participant in 23
respect of the participant's energy savings shortfall (if any) for 24
that year. 25
118 Elections by scheme participants 26
(1) An election by a scheme participant to surrender an energy 27
savings certificate for the purpose of meeting its individual 28
energy savings target or remedying a carried forward shortfall, or 29
to carry forward an energy savings shortfall, must be made to the 30
Scheme Regulator in accordance with this Part. 31
(2) An election has no effect unless it is accepted by the Scheme 32
Regulator. 33
Note. The election must accompany the scheme participant's annual 34
energy savings statement. See Division 6. 35
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
Division 5 Exemptions 1
119 Exemptions 2
(1) The Minister may, by order published in the Gazette, grant an 3
exemption from the scheme in respect of any electricity load: 4
(a) used by a specified person, or class of persons, or 5
(b) used in connection with a specified activity or class of 6
activities. 7
(2) An order granting an exemption may also specify the scheme 8
participant, or class of scheme participants, in respect of whom 9
the exemption applies. 10
(3) The Minister may grant an exemption under this section only if 11
satisfied that: 12
(a) the electricity load is used in connection with an industry 13
or activity that is both emissions intensive and trade 14
exposed, and 15
(b) the exemption is otherwise generally consistent with the 16
objects of this Part. 17
(4) An exemption is to specify whether it is a full exemption or a 18
partial exemption. 19
(5) If the exemption is a full exemption, the electricity load to which 20
the exemption applies is, for the purposes of this Part, fully 21
exempt electricity load. 22
(6) If the exemption is a partial exemption, the electricity load to 23
which the exemption applies is, for the purposes of this Part, 24
partially exempt electricity load. 25
(7) If an exemption is a partial exemption, the order granting the 26
exemption is to specify (as a percentage or otherwise) the 27
proportion of electricity load used by the relevant person or class 28
of persons, or in connection with the relevant activity or class of 29
activities, that is exempt from the scheme. The proportion 30
specified is referred to in this Division as the exempt proportion. 31
120 Effect of exemption 32
(1) A scheme participant is entitled to deduct from the total value of 33
its liable acquisitions the value of any purchase of electricity that 34
is to be used by a person or in connection with an activity and 35
which, when so used, is fully exempt electricity load. 36
(2) A scheme participant is entitled to deduct from the total value of 37
its liable acquisitions a proportion of the value of any purchase of 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
electricity that is to be used by a person or in connection with an 1
activity and which, when so used, is partially exempt electricity 2
load. The proportion that may be deducted is the exempt 3
proportion. 4
(3) An order granting an exemption may specify any allowances that 5
may be made by scheme participants, in applying the exemption, 6
for electricity losses occurring between the purchase of the 7
electricity by the scheme participant and its use by an end user. 8
(4) Electricity the subject of such an allowance may also be deducted 9
from the total value of liable acquisitions made by a scheme 10
participant, in accordance with the exemption. 11
(5) An order granting an exemption may authorise the Scheme 12
Regulator to make rules with respect to the exemption (including 13
rules relating to assessment of deductions under this Division). 14
(6) Any deductions made by scheme participants under this Division 15
must be made in accordance with the provisions of the relevant 16
exemption, and any such rules. 17
(7) In any proceedings under this Act involving a scheme participant, 18
the burden of establishing that the scheme participant was 19
entitled to deduct any particular amount of electricity purchased 20
by it from the total value of its liable acquisitions lies on the 21
scheme participant. 22
(8) In this section, a reference to a purchase of electricity includes a 23
reference to a supply of electricity that is treated as a liable 24
acquisition under this Part. 25
121 Determination of whether industry or activity is emissions 26
intensive and trade exposed 27
(1) The regulations may make further provision with respect to the 28
determination of whether an industry or activity is emissions 29
intensive or trade exposed. 30
(2) Subject to any such regulations, the Minister may determine the 31
basis on which an industry or activity is to be considered 32
emissions intensive or trade exposed. 33
122 General provisions with respect to exemptions 34
(1) An exemption does not take effect until the beginning of the year 35
after the order granting the exemption is made. 36
(2) An exemption may be revoked by order of the Minister published 37
in the Gazette. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(3) If an exemption is revoked, the revocation does not take effect 1
until the beginning of the year after the order revoking the 2
exemption is made. 3
(4) The Minister is to provide a copy of any order made under this 4
Division to the Scheme Regulator. 5
(5) The Scheme Regulator is to make particulars of any exemption 6
under this Division, and any rules it makes with respect to an 7
exemption, available to scheme participants, including by 8
publishing particulars of the exemptions and rules on its website. 9
Division 6 Assessment of compliance of scheme 10
participants 11
123 Annual energy savings statements 12
(1) A scheme participant must lodge with the Scheme Regulator a 13
statement (an energy savings statement) on or before 1 March in 14
each year or on or before any later day specified in respect of the 15
scheme participant by the Scheme Regulator. 16
(2) An energy savings statement is to contain the following: 17
(a) an assessment of the scheme participant's individual 18
energy savings target for the previous year, including 19
particulars of liable acquisitions made by the scheme 20
participant during the previous year and of any deductions 21
made in respect of fully exempt or partially exempt 22
electricity load, 23
(b) an assessment of the participant's liability (if any) for an 24
energy savings shortfall penalty for the previous year, 25
including liability for an energy savings shortfall penalty 26
in respect of a carried forward shortfall, 27
(c) any other matters required by the Scheme Regulator. 28
(3) If the scheme participant seeks to elect to surrender one or more 29
energy savings certificates for the purposes of meeting its 30
individual energy savings target for the year to which the energy 31
savings statement relates, or to remedy a carried forward shortfall 32
for the year, the election is to accompany the energy savings 33
statement and is to contain details of the energy savings 34
certificates proposed to be surrendered. 35
(4) If a scheme participant seeks to elect to carry forward an energy 36
savings shortfall for the year to which the statement relates, or 37
any part of that shortfall, the election is to accompany the 38
statement. 39
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(5) An energy savings statement, and any election that accompanies 1
the statement, must be in a form approved by the Scheme 2
Regulator. 3
(6) A scheme participant that fails to lodge an energy savings 4
statement in accordance with this section is guilty of an offence. 5
Maximum penalty: 6
(a) in the case of a corporation--250 penalty units, or 7
(b) in the case of an individual--100 penalty units. 8
124 Restrictions on surrender of energy savings certificates 9
(1) An energy savings certificate cannot be surrendered by a scheme 10
participant for the purposes of meeting its individual energy 11
savings target or remedying a carried forward shortfall unless: 12
(a) the certificate is registered in the register of energy savings 13
certificates kept under this Part and the registration is in 14
force, and 15
(b) the participant is recorded in the register of energy savings 16
certificates as the owner of the certificate, and 17
(c) the certificate was created in relation to energy savings that 18
occurred before the end of the year to which the energy 19
savings statement relates. 20
(2) The Scheme Regulator may, by notice in writing to a scheme 21
participant, refuse to accept an election to surrender an energy 22
savings certificate: 23
(a) if, in the opinion of the Scheme Regulator, the certificate 24
cannot be surrendered under this section, or 25
(b) if, in the opinion of the Scheme Regulator, the certificate 26
is surplus to the number required to be surrendered for the 27
purpose of meeting the participant's individual energy 28
savings target or to remedy a carried forward shortfall. 29
(3) If the Scheme Regulator accepts the surrender of an energy 30
savings certificate, and the Scheme Regulator is not the Scheme 31
Administrator, the Scheme Regulator must give the Scheme 32
Administrator notice in writing of the decision, including details 33
of the certificates surrendered. 34
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125 Regulations relating to assessments 1
Regulations may be made for or with respect to the following 2
matters: 3
(a) the assessment of the liability of a scheme participant for 4
an energy savings shortfall penalty, including 5
self-assessment or assessment by the Scheme Regulator, 6
(b) the date on which an assessment is taken to have been 7
made and the date on which an assessment takes effect, 8
(c) default assessments where an energy savings statement is 9
not lodged by a scheme participant, 10
(d) amendment of assessments, at the request of a scheme 11
participant or on the Scheme Regulator's own motion, 12
(e) revocation of the cancellation of energy savings 13
certificates in connection with amended assessments and 14
the revival of the certificates, 15
(f) payments resulting from amended assessments, 16
(g) notice of assessments. 17
126 Validity of assessment 18
The validity of an assessment of a liability to pay an energy 19
savings shortfall penalty is not affected by any failure to comply 20
with a provision of this Act, the regulations or the scheme rules. 21
Division 7 Creation of energy savings certificates 22
127 Activities in respect of which energy savings certificates may be 23
created 24
(1) The scheme rules may make provision for or with respect to the 25
creation of energy savings certificates in respect of any activity, 26
or class of activities, that reduces the consumption of electricity 27
in this State. 28
(2) The scheme rules may also make provision for or with respect to 29
the creation of energy savings certificates in respect of any 30
activity, or class of activities, that reduces the consumption of 31
electricity in another jurisdiction, if an approved corresponding 32
scheme is in operation in that jurisdiction. 33
(3) An approved corresponding scheme is a scheme approved by the 34
Minister for the purposes of this section, by order in writing. 35
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(4) The Minister may approve a scheme for the purposes of this 1
section only if the Minister is satisfied that: 2
(a) the scheme is intended to promote the reduced 3
consumption of electricity and the objectives of the 4
scheme are consistent with the objectives of the energy 5
savings scheme established by this Part, and 6
(b) the monitoring and enforcement of compliance with the 7
scheme to be approved is no less stringent than that 8
applicable to the energy savings scheme established by this 9
Part. 10
(5) An energy savings certificate cannot be created in respect of an 11
activity unless the activity commenced or commences on or after 12
1 July 2008. 13
Note. However, energy savings certificates may be created only in 14
respect of energy savings occurring on or after 1 July 2009. For 15
example, a project that results in energy savings that commenced in 16
September 2008 may be eligible for accreditation under the scheme, but 17
energy savings certificates may be created only in respect of energy 18
savings arising from the project that occur on or after 1 July 2009. 19
(6) An activity in respect of which an energy savings certificate may 20
be created under this Part is a recognised energy saving activity. 21
128 Energy savings represented by certificates 22
(1) An energy savings certificate may be created for each whole 23
tonne of carbon dioxide equivalent of greenhouse gas emissions 24
attributable to energy savings arising from a recognised energy 25
saving activity. 26
(2) Accordingly, each energy savings certificate has a value of 27
1 tonne of carbon dioxide equivalent of greenhouse gas 28
emissions. 29
129 Calculation of energy savings attributable to recognised energy 30
saving activities 31
(1) The number of tonnes of carbon dioxide equivalent of 32
greenhouse gas emissions attributable to energy savings arising 33
from a recognised energy saving activity is to be calculated by 34
multiplying the number of megawatt hours of energy savings 35
arising from that activity by the certificate conversion factor for 36
the year in which the energy savings for which that certificate is 37
created occurred. 38
(2) The scheme rules may provide for the methodology for 39
calculating the number of megawatt hours of energy savings 40
arising from a recognised energy saving activity. 41
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130 Certificate conversion factor 1
(1) Certificate conversion factors are set out in Schedule 5B. 2
(2) The certificate conversion factor for a year specified in column 1 3
of Schedule 5B is the amount specified for that year in column 2 4
of that Schedule. 5
(3) The Governor may, by regulation made on the recommendation 6
of the Minister, amend Schedule 5B to change the certificate 7
conversion factor for a specified year or years. 8
(4) Accordingly, any such regulation may omit an amount specified 9
in column 2 of Schedule 5B and substitute a new amount. 10
(5) Any such regulation does not affect the certificate conversion 11
factor for any year that commences on or before the date the 12
regulation is made or within 12 months after the date the 13
regulation is made. 14
131 When energy savings certificates may be created 15
(1) An energy savings certificate may be created by an accredited 16
certificate provider in respect of the energy savings arising from 17
a recognised energy saving activity immediately after those 18
energy savings occur. 19
(2) An energy savings certificate may be created in respect of energy 20
savings only if the energy savings occur on or after 1 July 2009. 21
(3) An energy savings certificate may be created in respect of energy 22
savings that occur during a particular year no later than 6 months 23
after the end of that year. 24
(4) The regulations or scheme rules may specify when the energy 25
savings arising from a recognised energy saving activity are 26
considered to have occurred for the purposes of this Part. 27
(5) Without limiting the above, the regulations or scheme rules may 28
provide that energy savings are taken to have occurred on the date 29
on which the recognised energy saving activity is first 30
commenced. Accordingly, energy savings certificates may be 31
created in respect of the energy savings arising from the activity 32
immediately after the activity is first commenced. 33
Note. Subsection (5) makes it clear that the regulations or scheme rules 34
may allow certificates to be created in respect of an activity that has 35
ongoing energy saving effects as soon as the activity is commenced. It 36
will not be necessary to wait until all the energy savings arising from the 37
activity actually occur before creating a certificate in respect of the 38
activity. Such provisions may apply, for example, if the regulations or 39
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scheme rules allow for the creation of certificates in respect of the 1
installation of energy efficient lighting, which has ongoing energy 2
savings. 3
132 No double counting of energy savings 4
An energy savings certificate cannot be created in respect of 5
energy savings arising from a recognised energy saving activity 6
if an abatement certificate under Part 8A has already been created 7
in respect of those energy savings. 8
133 Improper creation of energy savings certificates 9
(1) A person must not create or purport to create an energy savings 10
certificate in contravention of this Act, the regulations or the 11
scheme rules (including any conditions of accreditation imposed 12
by or under this Act). 13
Maximum penalty: 2,000 penalty units. 14
(2) For avoidance of doubt, a person may be found guilty of an 15
offence against this section whether or not the certificate 16
concerned is registered in the register of energy savings 17
certificates kept under this Part. 18
Division 8 Accreditation of certificate providers 19
134 Certificates may be created by accredited certificate providers 20
only 21
(1) Energy savings certificates may be created by accredited 22
certificate providers only. 23
(2) A person who is an accredited certificate provider may create 24
energy savings certificates in accordance with this Part, the 25
regulations, the scheme rules and the conditions (if any) of the 26
person's accreditation as a certificate provider. 27
(3) A person who is an accredited certificate provider may create 28
energy savings certificates only in relation to those activities in 29
relation to which the person has been accredited as a certificate 30
provider. 31
135 Eligibility for accreditation 32
(1) The regulations and scheme rules may make provision for or with 33
respect to the eligibility of a person for accreditation as a 34
certificate provider. 35
(2) Without limiting the above, a person who is engaged in an 36
industry, or carries out an activity, that benefits from a full 37
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exemption from the scheme, or is a related body corporate of 1
such a person, is not eligible for accreditation as a certificate 2
provider in respect of an activity that reduces the consumption of 3
electricity used in that industry or activity. 4
(3) For the purposes of this section, an industry or activity benefits 5
from a full exemption from the scheme if the electricity load used 6
in that industry or activity is fully exempt electricity load. 7
136 Application for accreditation 8
(1) Any person who is eligible for accreditation as a certificate 9
provider in relation to an activity may apply to the Scheme 10
Administrator for accreditation. 11
(2) The Scheme Administrator is to determine an application for 12
accreditation as a certificate provider: 13
(a) by accrediting the applicant as a certificate provider in 14
relation to specified activities, or 15
(b) by refusing the application. 16
(3) The Scheme Administrator may refuse an application for 17
accreditation as a certificate provider on such grounds as may be 18
specified in the regulations. 19
(4) The regulations may make provision for or with respect to 20
applications for accreditation, including by requiring an 21
application fee to be paid to the Scheme Administrator. 22
(5) The Scheme Administrator may charge a fee (in addition to any 23
application fee) in respect of the investigation and determination 24
of an application for accreditation. The fee is to be determined by 25
the Scheme Administrator on a cost recovery basis. 26
137 Duration of accreditation 27
(1) Accreditation of a person as a certificate provider in relation to an 28
activity remains in force until suspended or cancelled by the 29
Scheme Administrator. 30
(2) The Scheme Administrator may suspend or cancel the 31
accreditation of a person as a certificate provider on such grounds 32
as may be specified in the regulations. 33
(3) The suspension or cancellation of the accreditation of a person as 34
a certificate provider is subject to such conditions as the Scheme 35
Administrator imposes. Any such conditions may include (but 36
are not limited to) any condition to which the accreditation was 37
subject immediately before it was suspended or cancelled. 38
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(4) The regulations may provide for the variation or revocation of 1
any conditions that are imposed by the Scheme Administrator on 2
the suspension or cancellation of accreditation as a certificate 3
provider. 4
138 Conditions of accreditation 5
(1) Accreditation as a certificate provider is subject to the following 6
conditions: 7
(a) such conditions as may be imposed from time to time by 8
the regulations, 9
(b) such conditions as may be imposed by the Scheme 10
Administrator at the time of accreditation, or during the 11
period in which the accreditation remains in force, in 12
accordance with the regulations. 13
(2) Without limiting the above, the following are examples of the 14
types of conditions that may be imposed on the accreditation of a 15
person as a certificate provider: 16
(a) a condition that requires the person not to create an energy 17
savings certificate in respect of the energy savings arising 18
from an activity if an energy savings certificate has already 19
been created in respect of that energy saving or if that 20
energy saving has already been used for the purposes of 21
compliance with a scheme or arrangement with similar 22
objectives to the scheme established by this Part, 23
(b) a condition that requires the person not to use the energy 24
savings arising from a recognised energy saving activity 25
for the purposes of compliance with a scheme or 26
arrangement with similar objectives to the scheme 27
established by this Part, if an energy savings certificate has 28
already been created in respect of those energy savings, 29
(c) a condition that requires the person to provide financial 30
assurances to secure or guarantee the person's compliance 31
with this Part, 32
(d) a condition that requires the person to take out and 33
maintain a policy of insurance in connection with the 34
person's functions as an accredited certificate provider, 35
(e) a condition that requires the person to provide information, 36
assistance and access to the Scheme Administrator (or 37
persons appointed by the Scheme Administrator) for the 38
purposes of monitoring and auditing compliance by the 39
person with this Part. 40
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(3) A person must not contravene any of the conditions of the 1
person's accreditation as a certificate provider. 2
Maximum penalty: 2,000 penalty units. 3
(4) Subsection (3) extends to any conditions to which the suspension 4
or cancellation of the accreditation of a person is subject under 5
this Part. 6
139 Variation or revocation of conditions of accreditation 7
(1) An accredited certificate provider may apply to the Scheme 8
Administrator for the variation or revocation of any condition of 9
the certificate provider's accreditation imposed by the Scheme 10
Administrator (not being a condition imposed by this Act or the 11
regulations). 12
(2) The regulations may make provision for or with respect to the 13
variation or revocation of any conditions of accreditation that are 14
imposed by the Scheme Administrator, including the fee (if any) 15
to be paid to the Scheme Administrator in respect of an 16
application for variation or revocation of a condition. 17
(3) The Scheme Administrator may charge a fee (in addition to any 18
application fee) in respect of the investigation and determination 19
of an application for variation or revocation of a condition of 20
accreditation. The fee is to be determined by the Scheme 21
Administrator on a cost recovery basis. 22
140 Transfer of accreditation 23
(1) Accreditation as a certificate provider is not transferable, except 24
as otherwise provided by this section. 25
(2) A person who is accredited as a certificate provider may, with the 26
approval of the Scheme Administrator, transfer that accreditation 27
to a related body corporate of the person. 28
(3) The Scheme Administrator may approve the transfer of 29
accreditation only if satisfied that the person to whom the 30
accreditation is proposed to be transferred is or will be eligible for 31
accreditation and will fulfil the obligations that the accredited 32
certificate provider is required to fulfil in respect of the 33
recognised energy saving activity or activities for which 34
accreditation is to be transferred. 35
(4) The regulations may make further provision with respect to the 36
transfer of accreditation, including by requiring a fee to be paid 37
to the Scheme Administrator in connection with an application 38
for approval of a transfer of accreditation. 39
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141 Records to be kept by accredited certificate providers 1
The regulations may make provision for or with respect to the 2
records to be kept by accredited certificate providers and the 3
information required to be provided to the Scheme Administrator 4
in connection with the creation of energy savings certificates. 5
142 Scheme Administrator may require surrender of certificates 6
(1) The Scheme Administrator may, by order in writing to a person, 7
require the person to surrender to the Scheme Administrator, 8
within a period specified in the order, a number of energy savings 9
certificates specified in the order. 10
(2) An order may be made against a person under this section only if: 11
(a) the person is found guilty of an offence of contravening 12
any condition of the person's accreditation as a certificate 13
provider, or 14
(b) the person is found guilty of an offence involving the 15
improper creation of energy savings certificates (that is, an 16
offence under section 133). 17
(3) In the case of an order made against a person found guilty of an 18
offence involving the improper creation of energy savings 19
certificates, the Scheme Administrator is to require the surrender 20
of a number of certificates that is equivalent to the number of 21
energy savings certificates that, in the opinion of the Scheme 22
Administrator, were improperly created by the person and 23
registered under this Part. 24
Note. The purpose of the order is to remove from circulation a number 25
of energy savings certificates that is equivalent to the number of 26
certificates improperly created by a person, so that the improper creation 27
of those certificates does not result in energy savings that have not 28
actually been achieved from being attributed to a scheme participant. 29
(4) In any other case, the Scheme Administrator is to determine the 30
number of energy savings certificates to be surrendered in 31
accordance with the regulations. 32
(5) A person must not fail to comply with an order under this section. 33
Maximum penalty: 1,000 penalty units, and an additional 34
1 penalty unit for each energy savings certificate the person fails 35
to surrender in accordance with the order. 36
(6) The value of any energy savings certificates surrendered for the 37
purposes of compliance with an order under this section cannot 38
be counted towards meeting a scheme participant's individual 39
energy savings target or remedying a carried forward shortfall. 40
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(7) If a person fails to comply with an order under this section, the 1
Scheme Administrator may cancel any energy savings 2
certificates in respect of which the person is registered under this 3
Part as the owner. 4
(8) For avoidance of doubt, it is not an excuse for a failure to comply 5
with an order under this section that the person who is the subject 6
of the order does not, at the time the order is made, hold a 7
sufficient number of energy savings certificates to comply with 8
the order. 9
Note. If the person who is the subject of the order does not hold a 10
sufficient number of certificates to comply with the order, the person may 11
obtain the required number by purchasing them. 12
(9) The regulations may make further provision for or with respect to 13
orders under this section. 14
Division 9 Registration, form and duration of energy 15
savings certificates 16
143 Creation of certificate must be registered 17
(1) An energy savings certificate has no force or effect until the 18
creation of the certificate is registered by the Scheme 19
Administrator in the register of energy savings certificates kept 20
under this Part. 21
(2) An application for registration of the creation of an energy 22
savings certificate may be made to the Scheme Administrator by 23
an accredited certificate provider. 24
(3) The Scheme Administrator is to determine an application for 25
registration of the creation of an energy savings certificate by: 26
(a) granting the application and registering the creation of the 27
energy savings certificate in the register of energy savings 28
certificates kept under this Part, or 29
(b) refusing the application. 30
(4) The Scheme Administrator registers the creation of an energy 31
savings certificate by creating an entry for the certificate in the 32
register of energy savings certificates and recording the name of 33
the person who created the certificate as the owner of the 34
certificate. 35
(5) The Scheme Administrator may refuse an application for 36
registration of the creation of an energy savings certificate on 37
such grounds as may be specified in the regulations. 38
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(6) The regulations may make provision for or with respect to 1
applications for registration of the creation of an energy savings 2
certificate, including by requiring an application fee to be paid to 3
the Scheme Administrator. 4
144 Form of certificate 5
The regulations may make provision for or with respect to the 6
form in which energy savings certificates are to be created. 7
145 Duration of certificate 8
(1) An energy savings certificate, when registered by the Scheme 9
Administrator, remains in force until it is cancelled by the 10
Scheme Administrator. 11
(2) An energy savings certificate may be cancelled by the Scheme 12
Administrator: 13
(a) if the person registered as the owner of the energy savings 14
certificate is a scheme participant who elects to surrender 15
the certificate for the purpose of meeting its individual 16
energy savings target or remedying a carried forward 17
shortfall, and the Scheme Regulator accepts the surrender 18
of the certificate, or 19
(b) if the person registered as the owner of the energy savings 20
certificate, by notice in writing, surrenders the certificate 21
to the Scheme Administrator, and the Scheme 22
Administrator accepts the surrender of the certificate, or 23
(c) in any other circumstances authorised by this Part. 24
(3) The Scheme Administrator must cancel any energy savings 25
certificate that is surrendered by the owner of the certificate if the 26
owner is surrendering the certificate for the purposes of 27
compliance with an order made under this Part by the Scheme 28
Administrator requiring the person to surrender energy savings 29
certificates. 30
(4) The Scheme Administrator cancels an energy savings certificate 31
by altering the entry relating to the certificate in the register of 32
energy savings certificates kept under this Part to show that the 33
certificate is cancelled. 34
Division 10 Transfers and other dealings in certificates 35
146 Certificates are transferable 36
An energy savings certificate is transferable in accordance with 37
this Division. 38
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147 Application for registration of transfer 1
(1) The transfer of an energy savings certificate does not have effect 2
until the transfer is registered by the Scheme Administrator under 3
this Part. 4
(2) An application for registration of a transfer of an energy savings 5
certificate is to be made to the Scheme Administrator by the 6
parties to the transfer. 7
(3) The Scheme Administrator must: 8
(a) grant the application by registering the transfer of the 9
energy savings certificate in the register of energy savings 10
certificates kept under this Part, or 11
(b) refuse the application. 12
(4) The Scheme Administrator registers the transfer of an energy 13
savings certificate by altering the entry relating to that certificate 14
in the register of energy savings certificates so as to record the 15
new owner of the certificate. 16
(5) The Scheme Administrator may refuse an application for 17
registration of a transfer of an energy savings certificate on such 18
grounds as may be specified in the regulations. 19
(6) The regulations may make provision for or with respect to 20
applications for the registration of transfers of energy savings 21
certificates, including by requiring an application fee to be paid 22
to the Scheme Administrator. 23
148 Other dealings in certificates 24
The regulations may make provision for or with respect to the 25
registration of any mortgage, assignment, transmission or other 26
dealing in an energy savings certificate. 27
149 Holder of certificate may deal with certificate 28
(1) The person registered as the owner of an energy savings 29
certificate may, subject to this Part, deal with the certificate as its 30
absolute owner and give good discharges for any consideration 31
for any such dealing. 32
(2) This section is subject to any rights appearing in the register of 33
energy savings certificates to belong to another person, being 34
rights that are registered in accordance with any regulations made 35
under this Part. 36
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(3) This section only protects a person who deals with the person 1
registered as the owner of the energy savings certificate as a 2
purchaser in good faith for value and without notice of any fraud 3
on the part of the registered owner. 4
(4) Despite subsection (3), a person who purchases an energy 5
savings certificate in good faith for value does not lose the 6
protection provided by this section because the person has notice 7
that a person has been found guilty of an offence against this Part 8
in respect of the creation of an energy savings certificate. 9
Note. This Part makes it an offence to improperly create an energy 10
savings certificate. The Scheme Administrator may require a person 11
who has been convicted of such an offence to "make good" the improper 12
creation of the certificates by surrendering to the Scheme Administrator 13
an equivalent number of certificates to those improperly created. It is not 14
necessary for those certificates to be the actual certificates improperly 15
created (as those certificates may already have been sold). 16
150 Scheme Administrator not concerned as to legal effect of 17
transaction 18
The Scheme Administrator is not concerned with the effect in law 19
of any transaction registered under this Part or the regulations and 20
the registration of the transaction does not give to the transaction 21
any effect that it would not have if this Division had not been 22
enacted. 23
Division 11 Administration of scheme 24
151 Scheme Regulator 25
(1) The Minister may, by order in writing, appoint a person or body 26
as the Scheme Regulator. 27
(2) The functions of the Scheme Regulator under this Part are to be 28
exercised by the person or body appointed by the Minister as 29
Scheme Regulator or, in the absence of such an appointment, the 30
Tribunal. 31
(3) The regulations may make provision for or with respect to the 32
appointment of a Scheme Regulator by the Minister. 33
152 Functions of Scheme Regulator 34
(1) The Scheme Regulator has the following functions: 35
(a) to assess and determine, in accordance with this Part, the 36
regulations and the scheme rules, whether scheme 37
participants have complied with individual energy savings 38
targets, 39
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(b) if appropriate, to assess and determine, in accordance with 1
this Part, the regulations and the scheme rules, any energy 2
savings shortfall penalty payable by a scheme participant, 3
(c) to conduct audits, or require the conduct of audits, for the 4
purposes of this Part, 5
(d) to monitor, and report to the Minister on, the extent to 6
which scheme participants comply, or fail to comply, with 7
obligations imposed by or under this Part, 8
(e) such other functions as are conferred or imposed on it by 9
or under this Act. 10
(2) If the Scheme Regulator is appointed by the Minister, the Scheme 11
Regulator also has such other functions as are conferred or 12
imposed on it by the Minister under the terms of its appointment 13
as Scheme Regulator. 14
(3) For the purpose of enabling the Scheme Regulator to exercise its 15
functions, the Minister must furnish the Scheme Regulator with 16
such information in the possession of the Minister as the Scheme 17
Regulator may request in relation to the compliance by scheme 18
participants with this Part. 19
(4) The Scheme Regulator may, with the approval of the Minister, 20
delegate the exercise of its functions under this Part, other than 21
this power of delegation, to any other person or body. 22
(5) If the Tribunal is the Scheme Regulator, section 10 of the 23
Independent Pricing and Regulatory Tribunal Act 1992 does not 24
apply to its functions as Scheme Regulator. 25
153 Scheme Administrator 26
(1) The Minister may, by order in writing, appoint a person or body 27
as the Scheme Administrator. 28
(2) The functions of the Scheme Administrator under this Part are to 29
be exercised by the person or body appointed by the Minister as 30
Scheme Administrator or, in the absence of such an appointment, 31
the Tribunal. 32
(3) In determining whether to appoint a person or body as Scheme 33
Administrator, the Minister must consider the following matters: 34
(a) the costs of any such appointment, 35
(b) the efficiency of administrative arrangements relating to 36
the energy savings scheme, 37
(c) ability to meet objectives of the energy savings scheme, 38
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Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(d) proposed governance arrangements, 1
(e) arrangements proposed to manage liabilities associated 2
with carrying out the Scheme Administrator's functions. 3
(4) The regulations may make provision for or with respect to the 4
appointment of a Scheme Administrator by the Minister. 5
(5) The Minister may limit the appointment of a person or body as 6
Scheme Administrator to particular specified functions of the 7
Scheme Administrator. In such a case, a reference in this Act to 8
the Scheme Administrator, in relation to any functions of the 9
Scheme Administrator, is a reference to the person or body 10
appointed to exercise those functions (or, in the absence of such 11
an appointment, the Tribunal). 12
154 Functions of Scheme Administrator 13
(1) The Scheme Administrator has the following functions: 14
(a) the functions conferred by this Part relating to the energy 15
savings scheme, 16
(b) to monitor, and to report to the Minister on, the extent to 17
which accredited certificate providers comply with this 18
Part, the regulations, the scheme rules and any conditions 19
of accreditation, 20
(c) to conduct audits, or require the conduct of audits, for the 21
purposes of this Part, 22
(d) such other functions as are conferred or imposed on it by 23
or under this Act or any other Act or law. 24
(2) If the Scheme Administrator is appointed by the Minister, the 25
Scheme Administrator also has such other functions as are 26
conferred or imposed on it by the Minister under the terms of its 27
appointment as Scheme Administrator. 28
(3) For the purpose of enabling the Scheme Administrator to exercise 29
its functions, the Minister must furnish the Scheme 30
Administrator with such information in the possession of the 31
Minister as the Scheme Administrator may request in relation to 32
the compliance by accredited certificate providers with this Part. 33
(4) The Scheme Administrator may, with the approval of the 34
Minister, delegate the exercise of its functions under this Part, 35
other than this power of delegation, to any other person or body. 36
(5) If the Tribunal is the Scheme Administrator, section 10 of the 37
Independent Pricing and Regulatory Tribunal Act 1992 does not 38
apply to its functions as Scheme Administrator. 39
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
155 Conduct of audits 1
(1) The regulations may make provision for or with respect to the 2
conduct of audits by the Scheme Regulator, the Scheme 3
Administrator or other persons for the purposes of this Part. 4
(2) Without limiting the above, the regulations may provide for the 5
following matters: 6
(a) the matters that may be the subject of an audit, 7
(b) the persons who may conduct an audit, 8
(c) the functions that may be exercised by persons who 9
conduct an audit, 10
(d) offences relating to obstructing or hindering persons, or 11
refusing or failing to comply with requirements made by 12
persons, who conduct audits. 13
(3) Each scheme participant and accredited certificate provider is 14
liable to pay to the Treasurer the reasonable cost (as certified by 15
the Scheme Regulator or Scheme Administrator) involved in and 16
in connection with carrying out the audit functions of the Scheme 17
Regulator or Scheme Administrator in relation to the participant 18
or provider. 19
(4) Without limitation, a licence or accreditation may include terms 20
and conditions relating to the determination of the cost of 21
carrying out those functions. 22
156 Provision of information, documents and evidence 23
(1) For the purposes of exercising its functions under this Part, the 24
Scheme Regulator or Scheme Administrator may, by notice in 25
writing served on any relevant person, require the person to do 26
any one or more of the following: 27
(a) to send to the Scheme Regulator or Scheme Administrator, 28
on or before a day specified in the notice, a statement 29
setting out the information specified in the notice, 30
(b) to send to the Scheme Regulator or Scheme Administrator, 31
on or before a day specified in the notice, any document or 32
type of document specified in the notice. 33
(2) If the Tribunal is the Scheme Regulator or Scheme 34
Administrator, the Tribunal may, in such a notice, in addition to 35
or instead of requiring any of the above, require a relevant person 36
to attend a meeting of the Tribunal to give evidence. 37
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(3) A person must not, without reasonable excuse: 1
(a) refuse or fail to comply with a notice served under this 2
section, or 3
(b) refuse or fail to answer a question that the person is 4
required to answer by the Chairperson of the Tribunal at 5
any meeting of the Tribunal, acting as Scheme Regulator 6
or Scheme Administrator, that the person is required to 7
attend under this section. 8
Maximum penalty: 9
(a) in the case of a corporation--250 penalty units, or 10
(b) in the case of an individual--100 penalty units or 6 months 11
imprisonment, or both. 12
(4) It is a reasonable excuse for the purposes of subsection (3) that to 13
comply with the notice or to answer the question might tend to 14
incriminate a natural person or make the person liable to any 15
forfeiture or penalty. 16
(5) If documents are given to the Scheme Regulator or Scheme 17
Administrator under this section, the Scheme Regulator or 18
Scheme Administrator: 19
(a) may take possession of, and make copies of or take 20
extracts from, the documents, and 21
(b) may keep possession of the documents for the period 22
necessary for those purposes, and 23
(c) during that period must permit them to be inspected at all 24
reasonable times by persons who would be entitled to 25
inspect them if they were not in the possession of the 26
Scheme Regulator or Scheme Administrator. 27
(6) This section does not affect the law relating to client legal 28
privilege (or other legal professional privilege). 29
(7) In this section, a relevant person means: 30
(a) an officer of a scheme participant or former scheme 31
participant, or 32
(b) an officer of an accredited certificate provider or former 33
accredited certificate provider, or 34
(c) any other person whom the Scheme Regulator or Scheme 35
Administrator (as the case requires) has reason to believe 36
is able to provide information relevant to its functions as 37
Scheme Regulator or Scheme Administrator. 38
Page 34
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
157 Obstruction of Scheme Regulator or Scheme Administrator 1
A person must not hinder, obstruct or interfere with the Scheme 2
Regulator, the Scheme Administrator or any member or officer of 3
the Scheme Regulator or the Scheme Administrator in the 4
exercise of functions under this Part. 5
Maximum penalty: 6
(a) in the case of a corporation--250 penalty units, or 7
(b) in the case of an individual--100 penalty units or 6 months 8
imprisonment, or both. 9
158 False or misleading information 10
A person must not, for the purposes of this Part: 11
(a) give to the Scheme Regulator or Scheme Administrator, 12
whether orally or in writing, information or a document 13
that the person knows to be false or misleading in a 14
material particular (unless the person informs the Scheme 15
Regulator or Scheme Administrator of that fact), or 16
(b) at a meeting of the Tribunal acting as Scheme Regulator or 17
Scheme Administrator, give evidence that the person 18
knows to be false or misleading in a material particular. 19
Maximum penalty: 100 penalty units or 6 months imprisonment, 20
or both. 21
159 Confidential information 22
(1) If a person provides information to the Scheme Regulator or 23
Scheme Administrator in connection with the functions of the 24
Scheme Regulator or Scheme Administrator under this Part on 25
the understanding that the information is confidential and will not 26
be divulged, the Scheme Regulator or Scheme Administrator is 27
required to ensure that the information is not divulged by it to any 28
person, except: 29
(a) with the consent of the person who provided the 30
information, or 31
(b) in the case of information provided to the Tribunal while 32
acting as Scheme Regulator or Scheme Administrator, to 33
the extent that the Tribunal is satisfied that the information 34
is not confidential in nature, or 35
(c) to a member or officer of the Scheme Regulator or Scheme 36
Administrator, as the case requires, or 37
(d) as required by any other law. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(2) If the Scheme Regulator or Scheme Administrator is satisfied that 1
it is desirable to do so because of the confidential nature of any 2
information provided to the Scheme Regulator or Scheme 3
Administrator in connection with its functions under this Part, it 4
may give directions prohibiting or restricting the divulging of the 5
information. 6
(3) A person must not contravene a direction given under 7
subsection (2). 8
Maximum penalty: 100 penalty units or imprisonment for 9
6 months, or both. 10
(4) A reference in this section to information includes information 11
given at a meeting of the Scheme Regulator or Scheme 12
Administrator and information contained in any documents given 13
to the Scheme Regulator or Scheme Administrator. 14
160 Cabinet documents and proceedings 15
(1) This Part does not enable the Scheme Regulator or Scheme 16
Administrator: 17
(a) to require any person to give any statement of information 18
or answer any question that relates to confidential 19
proceedings of Cabinet, or 20
(b) to require any person to produce a Cabinet document, or 21
(c) to inspect a Cabinet document. 22
(2) For the purposes of this section, a certificate of the 23
Director-General of the Department of Premier and Cabinet, or 24
the Deputy Director-General (General Counsel) of that 25
Department, that any information or question relates to 26
confidential proceedings of Cabinet or that a document is a 27
Cabinet document is conclusive of the matter certified. 28
(3) In this section: 29
Cabinet includes a committee of Cabinet or a subcommittee of 30
such a committee. 31
Cabinet document means a document that is a restricted 32
document by virtue of clause 1 of Part 1 of Schedule 1 to the 33
Freedom of Information Act 1989. 34
Page 36
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
Division 12 Registers 1
161 Establishment and keeping of registers 2
(1) The Scheme Administrator is required to establish and keep the 3
following registers for the purposes of this Part: 4
(a) a register of accredited certificate providers, 5
(b) a register of energy savings certificates. 6
(2) A register is to be kept in such form as the Scheme Administrator 7
considers appropriate. 8
(3) A register may be kept wholly or partly by electronic means. 9
162 Register of accredited certificate providers 10
(1) The register of accredited certificate providers is to contain the 11
following information in relation to each accredited certificate 12
provider: 13
(a) the name of the accredited certificate provider, 14
(b) any other information required to be included in the 15
register by this Part or the regulations. 16
(2) The register of accredited certificate providers may also contain 17
such information as the regulations may prescribe in relation to a 18
person whose accreditation as a certificate provider is suspended 19
or cancelled. 20
(3) Copies of the register of accredited certificate providers are to be 21
made available for public inspection (free of charge) at the 22
principal office of the Scheme Administrator during ordinary 23
business hours. 24
(4) However, the information required to be included in the register 25
by the regulations is required to be made available to the public 26
under this section only if the regulations require it to be made so 27
available. 28
163 Register of energy savings certificates 29
(1) The register of energy savings certificates is to contain the 30
following information in relation to each energy savings 31
certificate that is created under this Part: 32
(a) the name of the person who created the energy savings 33
certificate, 34
(b) the name of the current registered owner, and any previous 35
registered owners, of the energy savings certificate, 36
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(c) whether the certificate is in force, or has been cancelled, 1
(d) any other information required to be included in the 2
register by this Part or the regulations. 3
(2) Copies of the register of energy savings certificates are to be 4
made available for public inspection (free of charge) at the 5
principal office of the Scheme Administrator during ordinary 6
business hours. 7
(3) However, the information required to be included in the register 8
by the regulations is required to be made available to the public 9
under this section only if the regulations require it to be made so 10
available. 11
164 Information from registers 12
The Scheme Administrator may compile the following 13
information from a register and make that information available 14
for public inspection (free of charge) in such form as the Scheme 15
Administrator thinks fit: 16
(a) information concerning the creation or cancellation of 17
energy savings certificates under this Part, 18
(b) information concerning current and previous registered 19
owners of energy savings certificates, 20
(c) information concerning the transfer of energy savings 21
certificates, 22
(d) other information of a kind prescribed by the regulations. 23
165 Evidentiary provisions 24
(1) A register kept under this Division is evidence of any particulars 25
registered in it. 26
(2) If a register is wholly or partly kept by electronic means, a 27
document issued by the Scheme Administrator producing in 28
writing particulars included in the register, or the part kept by 29
electronic means, is admissible in legal proceedings as evidence 30
of those particulars. 31
166 Correction of register 32
The Scheme Administrator may correct any error in, or omission 33
from, a register. 34
Page 38
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
Division 13 Scheme rules 1
167 Scheme rules 2
(1) The Minister may approve rules for or with respect to the 3
following matters: 4
(a) any matter for which a scheme rule may be made under 5
this Part, 6
(b) any other matter prescribed by the regulations. 7
Note. Under Division 7, the scheme rules may make provision for: 8
(a) the activities in respect of which energy savings certificates may 9
be created, and 10
(b) the methodology for calculating the number of megawatt hours of 11
energy savings arising from a recognised energy saving activity. 12
(2) A rule may make provision for or with respect to a matter by 13
applying, adopting or incorporating, with or without 14
modification, the provisions of any Act or statutory rule or any 15
other publication, whether of the same or of a different kind. 16
(3) A rule may: 17
(a) apply generally or be limited in its application by reference 18
to specified exceptions or factors, or 19
(b) apply differently according to different factors of a 20
specified kind, or 21
(c) authorise any matter or thing to be from time to time 22
agreed, determined, applied or regulated by any specified 23
person or body. 24
(4) The Minister may from time to time approve amendments to the 25
rules or a revocation of rules. 26
(5) If a rule, or a rule amending or revoking a rule, is approved by the 27
Minister: 28
(a) written notice of the approval of the rule must be published 29
in the Gazette, and 30
(b) the rule takes effect on the day on which notice is so 31
published or, if a later day is specified in the rule for 32
commencement, on the later day so specified, and 33
(c) the Minister must make available a copy of the rule to each 34
scheme participant and make copies available to the 35
public. 36
(6) A rule must be consistent with this Act and the regulations. 37
Page 39
Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
168 Obligations under scheme rules 1
A person who is a scheme participant or an accredited certificate 2
provider must not contravene a provision of a scheme rule. 3
Maximum penalty: 4
(a) in the case of a corporation--250 penalty units, or 5
(b) in the case of an individual--100 penalty units. 6
Division 14 Miscellaneous 7
169 Licence condition for retail suppliers 8
(1) It is a condition of a retail supplier's licence that the retail 9
supplier comply with this Part, the regulations under this Part and 10
the scheme rules. 11
(2) This section does not limit the power of the Minister to impose 12
conditions on the licence of a retail supplier under this Act, 13
including conditions (not inconsistent with this Part) relating to 14
greenhouse gas emissions, energy efficiency, the provision of 15
information to the Scheme Regulator or Scheme Administrator 16
about matters related to this Part and other matters related to the 17
scheme. 18
(3) A monetary penalty cannot be imposed on a retail supplier under 19
clause 8 or 8A of Schedule 2, and no other action can be taken 20
against a retail supplier under Schedule 2, in respect of an energy 21
savings shortfall or carried forward shortfall if an energy savings 22
shortfall penalty is payable in respect of the relevant shortfall 23
under this Part. 24
Note. Under clauses 8 and 8A of Schedule 2, the Minister and the 25
Tribunal may impose monetary penalties for breaches of the 26
requirements of this Act and the regulations, as well as breaches of 27
licence conditions. Other penalties may also be imposed under 28
Schedule 2. 29
170 Application of Part to persons who cease to be scheme 30
participants 31
(1) If a person ceases to be a scheme participant, this Part and the 32
regulations under this Part continue to apply to the person in 33
respect of the period during which the person was a scheme 34
participant and, for that purpose, a reference to a scheme 35
participant includes a reference to a former scheme participant. 36
(2) In particular, the former scheme participant continues to be 37
required to lodge an energy savings statement in respect of the 38
year during which the person ceased to be a scheme participant, 39
and the requirements of this Part with respect to the conduct of 40
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
audits and the provision of information, documents and evidence 1
to the Scheme Regulator or Scheme Administrator continue to 2
apply in respect of the person as if the person were a scheme 3
participant. 4
(3) The Minister may, by notice in writing to the former scheme 5
participant, bring forward the date on which the person would 6
otherwise be required to lodge an energy savings statement with 7
the Scheme Regulator in respect of the year during which the 8
person ceased to be a scheme participant. 9
(4) The notice may specify a date (a submission date) on which the 10
former scheme participant is required to lodge the energy savings 11
statement with the Scheme Regulator, being a date that is earlier 12
than the date on which the person would otherwise be required to 13
lodge the statement. 14
(5) The submission date must not be earlier than 28 days after the 15
person ceased to be a scheme participant. 16
(6) If the Minister brings forward the date for submission of an 17
energy savings statement under this section, the provisions of this 18
Act regarding the lodgment of an energy savings statement and 19
the payment of an energy savings shortfall penalty apply as if a 20
reference to the date of 1 March were a reference to the 21
submission date. 22
171 Appeals to Administrative Decisions Tribunal 23
(1) A scheme participant or former scheme participant who is 24
aggrieved by any of the following decisions of the Scheme 25
Regulator may apply to the Administrative Decisions Tribunal 26
for a review of the decision: 27
(a) a determination as to the individual energy savings target 28
for the scheme participant or former scheme participant for 29
a year, 30
(b) a decision to refuse to accept the surrender of an energy 31
savings certificate for the purposes of meeting the scheme 32
participant's or former scheme participant's individual 33
energy savings target or remedying a carried forward 34
shortfall, 35
(c) an assessment of the amount of any energy savings 36
shortfall penalty payable by the scheme participant or 37
former scheme participant for a year, 38
(d) any other decision of the Scheme Regulator of a kind 39
prescribed by the regulations. 40
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(2) A person who is or was accredited, or who has applied to be 1
accredited, under this Part as a certificate provider and who is 2
aggrieved by any of the following decisions of the Scheme 3
Administrator may apply to the Administrative Decisions 4
Tribunal for a review of the decision: 5
(a) a decision to refuse accreditation of the person as a 6
certificate provider, 7
(b) a decision to cancel or suspend the accreditation of the 8
person as a certificate provider, 9
(c) a decision to refuse registration of the creation of an energy 10
savings certificate, 11
(d) any other decision of the Scheme Administrator of a kind 12
prescribed by the regulations. 13
(3) A person who has applied for the registration of a transfer of an 14
energy savings certificate under this Part and who is aggrieved by 15
a decision of the Scheme Administrator to refuse registration of 16
the transfer may apply to the Administrative Decisions Tribunal 17
for a review of the decision. 18
(4) A person who is the subject of an order by the Scheme 19
Administrator under this Part requiring the person to surrender 20
energy savings certificates to the Scheme Administrator and who 21
is aggrieved by a decision of the Scheme Administrator to impose 22
that order may apply to the Administrative Decisions Tribunal for 23
a review of the decision. 24
172 Certificate evidence 25
A certificate of the Scheme Regulator certifying that, on a date or 26
during a period specified in the certificate: 27
(a) a person was or was not a scheme participant, or 28
(b) the individual energy savings target for a scheme 29
participant was the amount specified in the certificate, or 30
(c) the energy savings shortfall for a scheme participant for a 31
year, or the carried forward shortfall for a year, was the 32
amount specified in the certificate, or 33
(d) the energy savings shortfall penalty payable by a scheme 34
participant was the amount specified in the certificate, 35
is admissible in evidence in proceedings before any court or 36
tribunal and is prima facie evidence of the matters stated in the 37
certificate. 38
Page 42
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
173 Personal liability 1
A matter or thing done or omitted to be done by the Scheme 2
Regulator, the Scheme Administrator, or a member or officer of, 3
or a person acting under the direction of, the Scheme Regulator 4
or Scheme Administrator does not, if the matter or thing was 5
done or omitted in good faith for the purpose of executing this or 6
any other Act, subject the member, officer or person so acting 7
personally to any action, liability, claim or demand. 8
174 Annual report by Scheme Regulator 9
(1) As soon as practicable after 1 March (but on or before 31 July) in 10
each year, the Scheme Regulator must prepare and forward to the 11
Minister a report on the extent to which scheme participants have 12
complied, or failed to comply, with individual energy savings 13
targets during the previous year. 14
(2) Without limiting the above, the report is to contain the following: 15
(a) the name of each scheme participant and the performance 16
of the participant in relation to the participant's individual 17
energy savings target in the year to which the report 18
relates, 19
(b) the total number of energy savings certificates surrendered 20
in the year to which the report relates, 21
(c) the total number of energy savings certificates created in 22
the year to which the report relates, 23
(d) an estimate, prepared by the Scheme Administrator, of the 24
actual energy savings that have been realised under the 25
scheme in the year to which the report relates (having 26
regard to the number of energy savings certificates that 27
have been created), 28
(e) an estimate, prepared by the Scheme Administrator, of the 29
actual energy savings that will be realised under the 30
scheme in the next 10 years (having regard to the number 31
of energy savings certificates that have been created). 32
(3) The report must also set out the functions delegated by the 33
Scheme Regulator or Scheme Administrator and the person or 34
body to whom they were delegated. 35
(4) The Minister must lay the report or cause it to be laid before both 36
Houses of Parliament as soon as practicable after receiving the 37
report. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(5) For the purposes of enabling the Scheme Regulator to compile a 1
report under this section, the Scheme Administrator must furnish 2
the Scheme Regulator with: 3
(a) the estimates the Scheme Administrator is required to 4
prepare for inclusion in the report, and 5
(b) such other information as the Scheme Regulator 6
reasonably requires to complete the report. 7
(6) The first report under this section is to be made in the year 2010. 8
175 Five-yearly reviews of scheme 9
(1) The Minister is to review the operation of the scheme to 10
determine whether the policy objectives of the scheme remain 11
valid and whether the terms of this Part remain appropriate for 12
securing those objectives. 13
(2) The first review is to be undertaken as soon as possible after the 14
end of the period of 5 years from 1 July 2009. 15
(3) After that, a review is to be undertaken at the end of each 16
subsequent period of 5 years. 17
(4) A report on the outcome of the review is to be tabled in each 18
House of Parliament within 12 months after the end of the period 19
to which the review relates. 20
176 Waiver or suspension of obligations in emergencies 21
(1) The Minister may, by order published in the Gazette, waive, or 22
suspend for a specified period, the obligation of a scheme 23
participant to meet its individual energy savings target or remedy 24
a carried forward shortfall, but only if it appears to the Minister 25
that a scheme participant is or will be unable to meet the 26
individual energy savings target or remedy the carried forward 27
shortfall because of: 28
(a) a systems or other failure of the register of energy savings 29
certificates kept under this Part, or 30
(b) any other emergency affecting the integrity of the register 31
or the energy savings scheme. 32
(2) An order may: 33
(a) be made subject to conditions, and 34
(b) apply to all scheme participants or to a specified class of 35
participants, and 36
(c) specify the effect of the waiver or suspension on any other 37
rights conferred or obligations imposed under this Part. 38
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(3) An order takes effect on the day on which it is published in the 1
Gazette or, if a later day is specified in the order, on that day. 2
177 Termination of scheme on establishment of national scheme 3
(1) The Governor may, by proclamation published on the NSW 4
legislation website, terminate the operation of any or all of the 5
provisions of this Part. 6
(2) A proclamation may be made only if the Minister has certified to 7
the Governor that the Minister is satisfied that New South Wales 8
is, or will be, a participant in a scheme that: 9
(a) has been or will be established either nationally or in this 10
State and at least one or more other States or Territories, 11
and 12
(b) is designed to achieve outcomes that include a reduction in 13
the consumption of electricity and the encouragement of 14
participation in activities that result in energy savings. 15
(3) The termination of the operation of the provisions concerned 16
takes effect on the day (not being a day earlier than the day on 17
which the proclamation is published on the NSW legislation 18
website) specified in the proclamation. 19
(4) The day specified in the proclamation must not be a day that is 20
earlier than the day on which New South Wales becomes, or will 21
become, a participant in the scheme concerned. 22
(5) Regulations may be made for or with respect to the effect of the 23
termination of any provisions on rights conferred or obligations 24
imposed under this Part. 25
(6) Without limiting the above, the regulations may: 26
(a) prohibit scheme participants from carrying forward an 27
energy savings shortfall, or part of an energy savings 28
shortfall, for a year to the following year as a consequence 29
of the termination of the operation of all or any of the 30
provisions of this Part in respect of that following year, and 31
(b) specify any other conditions that must be complied with 32
respect to termination of all or any of the provisions of this 33
Part. 34
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
178 Automatic termination of scheme at end of year 2020 1
(1) The scheme terminates at the end of the year 2020. 2
(2) This Part continues to have effect with respect to matters arising 3
(including obligations incurred) before the termination of the 4
scheme. 5
(3) In particular, persons who are scheme participants in the 6
year 2020 continue to be required to lodge an energy savings 7
statement in respect of that year in accordance with this Part, and 8
the requirements of this Part with respect to the conduct of audits 9
and the provision of information, documents and evidence to the 10
Scheme Regulator and Scheme Administrator continue to apply, 11
even though the scheme is terminated. 12
(4) A reference in this Part to a scheme participant includes, after the 13
scheme is terminated, a reference to a former scheme participant. 14
[3] Section 103 Recovery of fees and penalties (before its renumbering by 15
item [6]) 16
Insert "or 9" after "Part 8A". 17
[4] Section 106 Regulations (before its renumbering by item [6]) 18
Omit section 106 (1) (h1). Insert instead: 19
(h1) information and returns to be provided by benchmark 20
participants under Part 8A and scheme participants under 21
Part 9, 22
[5] Section 106 (1) (h2) (before its renumbering by item [6]) 23
Insert "or by the Minister, the Scheme Regulator or the Scheme Administrator 24
under Part 9" after "Part 8A". 25
[6] Part 9 Miscellaneous 26
Renumber existing Part 9 as Part 10 and renumber the sections in that Part with 27
consecutive section numbers starting from section 179. Cross-references in the 28
Act to sections in the new Part 10 are to be renumbered accordingly. 29
Page 46
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
[7] Schedules 55B 1
Insert after Schedule 4: 2
Schedule 5 Energy savings scheme--targets 3
and energy conversion factors 4
(Sections 103, 104 and 108) 5
Column 1 Column 2 Column 3
Year Energy savings Energy conversion
scheme target factor
2009 0.01 1.01
2010 0.015 1.01
2011 0.025 1.01
2012 0.035 1.01
2013 0.045 1.01
2014 0.05 1.01
2015 0.05 1.01
2016 0.05 1.01
2017 0.05 1.01
2018 0.05 1.01
2019 0.05 1.01
2020 0.05 1.01
Schedule 5A Energy savings scheme-- 6
calculation of penalties 7
(Sections 113 and 114) 8
Column 1 Column 2 Column 3
Year Base penalty rate ($) Penalty conversion
per megawatt hour factor
2009 24.50 0.94
2010 24.50 0.94
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
Column 1 Column 2 Column 3
Year Base penalty rate ($) Penalty conversion
per megawatt hour factor
2011 24.50 0.94
2012 24.50 0.94
2013 24.50 0.94
2014 24.50 0.94
2015 24.50 0.94
2016 24.50 0.94
2017 24.50 0.94
2018 24.50 0.94
2019 24.50 0.94
2020 24.50 0.94
Note. The base penalty rates set out in column 2 are the base penalty rates prior to any 1
adjustment for movements in the consumer price index. If the regulations provide for 2
the adjustment of the base penalty rate for movements in the consumer price index, the 3
scheme penalty rate is to be calculated using the base penalty rate as so adjusted. 4
Schedule 5B Energy savings scheme--certificate 5
conversion factors 6
(Section 130) 7
Column 1 Column 2
Year Certificate conversion factor
2009 1.06
2010 1.06
2011 1.06
2012 1.06
2013 1.06
2014 1.06
2015 1.06
2016 1.06
2017 1.06
Page 48
Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
Column 1 Column 2
Year Certificate conversion factor
2018 1.06
2019 1.06
2020 1.06
[8] Schedule 6 Savings, transitional and other provisions 1
Insert at the end of clause 1 (1): 2
Electricity Supply Amendment (Energy Savings) Act 2009 3
[9] Schedule 6, Part 9 4
Insert after Part 8: 5
Part 9 Provisions consequent on enactment of 6
Electricity Supply Amendment (Energy 7
Savings) Act 2009 8
52 Definitions 9
(1) In this Part: 10
abatement certificate means an abatement certificate under 11
Part 8A. 12
demand side abatement activity means an activity that, 13
immediately before the commencement of the energy savings 14
scheme: 15
(a) is a demand side abatement activity under the greenhouse 16
gas benchmark rules for Part 8A, and 17
(b) is an activity in respect of which abatement certificates can 18
be created under Part 8A. 19
energy savings scheme means the energy savings scheme 20
established by Part 9. 21
recognised energy saving activity has the same meaning as it has 22
in Part 9. 23
(2) In this Part, a reference to the commencement of the energy 24
savings scheme is a reference to the commencement of Part 9, as 25
inserted by the Electricity Supply Amendment (Energy Savings) 26
Act 2009. 27
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
53 Accreditation of abatement certificate providers as energy savings 1
certificate providers 2
(1) A person who, immediately before the commencement of the 3
energy savings scheme, was an accredited abatement certificate 4
provider under Part 8A in respect of a demand side abatement 5
activity, or an applicant for accreditation under Part 8A in respect 6
of a demand side abatement activity, is eligible for accreditation 7
as a certificate provider under the energy savings scheme in 8
respect of that activity if: 9
(a) the activity is a recognised energy saving activity, and 10
(b) the Scheme Administrator under Part 9 is satisfied the 11
person is otherwise eligible for accreditation as a 12
certificate provider in respect of the activity concerned 13
under Part 9. 14
(2) A person to whom this clause applies is eligible for accreditation 15
in respect of an activity and, on accreditation, may create energy 16
savings certificates in respect of an activity, even if the activity 17
commenced before 1 July 2008 (despite section 127 (5)). 18
(3) The Scheme Administrator under Part 9 may grant such 19
accreditation without requiring the person to apply for 20
accreditation under Part 9. 21
(4) If the person is engaged in an industry or activity that benefits 22
from a full exemption under the energy savings scheme, or is a 23
related body corporate of a person who is so engaged, the Scheme 24
Administrator may grant accreditation to the person as a 25
certificate provider in respect of an activity that reduces 26
consumption of electricity in the industry or activity concerned 27
(despite section 135) subject to a condition that the person must 28
not create energy savings certificates in respect of the relevant 29
activity if the activity commences on or after 1 January 2013. 30
(5) Section 171 (Appeals to Administrative Decisions Tribunal) does 31
not apply in respect of the condition of accreditation referred to 32
in subclause (4). 33
54 Creation of abatement certificates in respect of demand side 34
abatement activities 35
(1) On the commencement of the energy savings scheme, an 36
abatement certificate cannot be created in respect of a demand 37
side abatement activity that is a recognised energy saving 38
activity, unless the activity took place before the commencement 39
of the energy savings scheme. 40
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Electricity Supply Amendment (Energy Savings) Bill 2009
Amendment of Electricity Supply Act 1995 No 94 Schedule 1
(2) On the commencement of the energy savings scheme, the 1
accreditation of any person as an abatement certificate provider 2
under Part 8A is taken to be subject to a condition that the person 3
must not create abatement certificates in respect of a demand side 4
abatement activity that is a recognised energy saving activity, 5
unless the activity took place before the commencement of the 6
energy savings scheme. 7
(3) The Scheme Administrator under Part 8A may, by notice in 8
writing to an accredited abatement certificate provider, cancel the 9
accreditation of the person as an abatement certificate provider in 10
respect of any demand side abatement activity that, on the 11
commencement of the energy savings scheme, is a recognised 12
energy saving activity. 13
(4) The regulations and greenhouse gas benchmark rules under 14
Part 8A apply in relation to this clause in the same way as they 15
apply to Part 8A. 16
Note. The regulations and greenhouse gas benchmark rules under 17
Part 8A can specify when an activity is considered to have "taken place". 18
55 Exemptions for year 2009 19
(1) An exemption for the year 2009 may be granted under Division 5 20
of Part 9 at any time before the beginning of the year 2010. 21
(2) Any such exemption is taken to have effect in respect of the 22
whole of the year 2009. 23
(3) This clause has effect despite section 122. 24
56 Amendments by other Acts to renumbered provisions 25
(1) An amendment made by another Act to a provision of this Act 26
that is renumbered by the Electricity Supply Amendment (Energy 27
Savings) Act 2009 has effect as if the amendment were referring 28
to the provision of this Act as renumbered. 29
(2) If an amendment made by another Act to this Act inserts a 30
provision in a Part of this Act that is renumbered by the 31
Electricity Supply Amendment (Energy Savings) Act 2009, the 32
inserted provision is to be appropriately renumbered. 33
(3) If an amendment made by another Act to this Act contains a 34
reference to a provision of this Act that is renumbered by the 35
Electricity Supply Amendment (Energy Savings) Act 2009, the 36
reference to the provision is also to be appropriately renumbered. 37
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Electricity Supply Amendment (Energy Savings) Bill 2009
Schedule 1 Amendment of Electricity Supply Act 1995 No 94
(4) This clause applies only in respect of an amendment enacted, but 1
not commenced, before the commencement of Schedule 1 [6] to 2
the Electricity Supply Amendment (Energy Savings) Act 2009. 3
57 References in other Acts to renumbered provisions 4
(1) A reference in any provision of another Act to a provision of this 5
Act that is renumbered by the Electricity Supply Amendment 6
(Energy Savings) Act 2009 is, from the commencement of 7
Schedule 1 [6] to the Electricity Supply Amendment (Energy 8
Savings) Act 2009, to be read as a reference to the provision as 9
renumbered. 10
(2) This clause applies only in respect of a provision of another Act 11
that commenced before the commencement of Schedule 1 [6] to 12
the Electricity Supply Amendment (Energy Savings) Act 2009. 13
Page 52
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