Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Electricity Supply Act 1995 and the Gas Supply
Act 1996 to make further provision for the protection of electricity and gas
infrastructure.

The Bill amends the Electricity Supply Act 1995 (the Electricity Act) and the Gas
Supply Act 1996 (the Gas Act):

(a) to enable network operators to require persons carrying out excavation work
near electricity works or gas works to modify or cease the work if the
excavation work would cause damage to or interfere with the electricity or gas
works, and

(b) to enable network operators to recover compensation for damage to electricity
works and gas works in certain circumstances, and

(c) to place a condition on licences and authorisations held by network operators
that they belong to a designated information provider, and

(d) to enable regulations to be made in relation to the provision by network
operators of information relating to underground electricity power lines and
underground gas pipelines, and

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Energy Legislation Amendment (Infrastructure Protection) Bill 2009
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(e) to make it an offence for a person to carry out certain excavation work without
first contacting a designated information provider to obtain information as to
the location and type of underground electricity power lines or underground
gas pipelines in the vicinity of the proposed work, and

(f) to make it an offence for a person to carry out certain excavation work in
contravention of the requirements of the regulations in relation to the carrying
out of the excavation work, and

(g) to make it an offence for a person to fail to notify a network operator after
becoming aware that the person’s actions have caused damage to the
operator’s underground electricity power lines or underground gas pipelines,
and

(h) to increase the penalties for the offence of unauthorised interference with
electricity works or gas works.

The Bill also makes consequential amendments to the Criminal Procedure Act 1986.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
proclaimed.

Schedule 1 Amendment of Electricity Supply Act
1995 No 94
Schedule 1 [1] inserts proposed section 49A into the Electricity Act to enable a
network operator to require a person who is carrying out or proposing to carry out
excavation work in, on or near the operator’s electricity works to modify the
excavation work or not carry it out. The section will only apply in circumstances
where the network operator has reasonable cause to believe that the excavation work
could damage or interfere with the electricity works or make them a bush fire hazard
or a risk to public safety. If the network operator has made such a requirement, the
operator may recover the costs in relation to the destruction of, damage to or
interference with the electricity works caused by the carrying out of the excavation
work. The proposed section also enables a network operator to seek an injunction to
prevent the carrying out of the excavation work. Existing section 49 of the Electricity
Act contains similar provisions in relation to structures or things that are in, on or
near electricity works.

Schedule 1 [2] amends section 54 of the Electricity Act which specifies the purposes
for which an authorised officer of a network operator may enter premises. The
proposed amendment extends those purposes to include the monitoring of excavation
work in accordance with regulations under proposed section 63Z and exercising any
function under section 49 or proposed section 49A.

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Energy Legislation Amendment (Infrastructure Protection) Bill 2009
Explanatory note
Schedule 1 [3] inserts proposed Part 5E into the Electricity Act. The proposed Part
consists of the following sections:

Proposed section 63X defines a designated information provider for the purposes
of the proposed Part. It means Dial Before You Dig NSW/ACT Incorporated or
another person or body prescribed by the regulations.

Proposed section 63Y makes it a condition of a distribution network service
provider’s licence that the service provider be a member of the designated
information provider and comply with the obligations imposed by that membership.

The proposed section also enables regulations to be made as to the provision of
information by network operators in relation to underground electricity power lines.

Proposed section 63Z makes it an offence for a person to commence to carry out
excavation work to which the proposed section applies or authorise such work to be
commenced unless the person has contacted the designated information provider to
request information as to the location and type of any underground electricity power
lines in the vicinity of the proposed work, has complied with reasonable procedures
of the designated information provider to enable that information to be provided and
has waited a reasonable period for the information to be provided. Regulations will
be able to be made prescribing what constitutes reasonable procedures and a
reasonable waiting period.

The proposed section also makes it an offence for a person carrying out excavation
work to which the proposed section applies, or authorising it to be carried out, not to
comply with the requirements of the regulations in relation to the carrying out of the
work. Regulations will also be able to be made requiring notification of excavation
work and enabling monitoring of excavation work by network operators.

The proposed section will apply to excavation work in an area, and of a kind,
prescribed by the regulations.

Proposed section 63ZA makes it an offence for a person to fail to notify a network
operator as soon as practicable after becoming aware that the person’s actions or
actions authorised by the person have damaged the network operator’s underground
electricity power lines.

Proposed section 63ZB enables a court to order a person who has been convicted of
an offence against the proposed Part or existing section 65 to repay costs and
expenses incurred by a network operator in relation to its electricity works as a result
of the commission of the offence.

Proposed section 63ZC provides that the designated information provider, a
network operator, their officers or employees and persons acting on their behalf, do
not incur any civil monetary liability for acts or omissions in connection with
requests for information under proposed section 63Z and the provision of
information in compliance with regulations under proposed section 63Y unless the
acts or omissions were done or made in bad faith or negligently. The civil monetary
liability for negligent acts or omissions is not to exceed the prescribed maximum

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Energy Legislation Amendment (Infrastructure Protection) Bill 2009
Explanatory note
amount. A person to whom the proposed section applies may enter into an agreement
with another person varying or excluding the operation of a provision of the proposed
section.

Schedule 1 [4] amends section 65 of the Electricity Act to increase the maximum
penalty for unauthorised interference with electricity works to 4,000 penalty units in
the case of a corporation and 200 penalty units or imprisonment for 5 years (or both)
in any other case.

Schedule 1 [5] amends section 65 of the Electricity Act to provide that the offence
of unauthorised interference with electricity works if committed by an individual is
an indictable offence which may be dealt with summarily in accordance with
Chapter 5 of the Criminal Procedure Act 1986.

Schedule 1 [6] inserts proposed section 100A into the Electricity Act to exclude
authorised officers appointed by a network operator from personal liability for the
exercise in good faith of their functions under that Act. Any such liability will attach
instead to the network operator.

Schedule 1 [7] amends section 106 of the Electricity Act to enable the regulations to
provide for exemptions from the provisions of proposed sections 63Y and 63Z.

Schedule 1 [8] and [9] amend Schedule 6 to the Electricity Act to enable regulations
to be made of a savings or transitional nature consequent on the enactment of the
proposed Act and to include certain specific savings and transitional provisions.

Schedule 2 Amendment of Gas Supply Act 1996
No 38
Schedule 2 [1] inserts proposed section 50A into the Gas Act to enable a network
operator to require a person who is carrying out or proposing to carry out excavation
work in, on or near the operator’s gas works to modify the excavation work or not
carry it out. The section will only apply in circumstances where the network operator
has reasonable cause to believe that the excavation work could damage or interfere
with the gas works or make them a risk to public safety. If the network operator has
made such a requirement, the operator may recover the costs in relation to the
destruction of, damage to or interference with the gas works caused by the carrying
out of the excavation work. The proposed section also enables a network operator to
seek an injunction to prevent the carrying out of the excavation work. Existing
section 50 of the Gas Act contains similar provisions in relation to structures or
things that are in, on or near gas works.

Schedule 2 [2] amends section 55 of the Gas Act which specifies the purposes for
which an inspector of a network operator may enter premises. The proposed
amendment extends those purposes to include the monitoring of excavation work in
accordance with regulations under proposed section 64C and exercising any function
under section 50 or proposed section 50A.

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Energy Legislation Amendment (Infrastructure Protection) Bill 2009
Explanatory note
Schedule 2 [3] inserts proposed Part 4A into the Gas Act. The proposed Part consists
of the following sections:

Proposed section 64A defines a designated information provider for the purposes
of the proposed Part. It means Dial Before You Dig NSW/ACT Incorporated or
another person or body prescribed by the regulations.

Proposed section 64B makes it a condition of a distributor’s licence and a
reticulator’s authorisation that the distributor or reticulator be a member of the
designated information provider and comply with the obligations imposed by that
membership. The proposed section also enables regulations to be made as to the
provision of information by network operators in relation to underground gas
pipelines.

Proposed section 64C makes it an offence for a person to commence to carry out
excavation work to which the proposed section applies or authorise such work to be
commenced unless the person has contacted the designated information provider to
request information as to the location and type of any underground gas pipelines in
the vicinity of the proposed work, has complied with reasonable procedures of the
designated information provider to enable that information to be provided and has
waited a reasonable period for the information to be provided. Regulations will be
able to be made prescribing what constitutes reasonable procedures and a reasonable
waiting period.

The proposed section also makes it an offence for a person carrying out excavation
work to which the proposed section applies, or authorising it to be carried out, not to
comply with the requirements of the regulations in relation to the carrying out of the
work. Regulations will also be able to be made requiring notification of excavation
work and enabling monitoring of excavation work by network operators.

The proposed section will apply to excavation work in an area, and of a kind,
prescribed by the regulations.

Proposed section 64D makes it an offence for a person to fail to notify a network
operator as soon as practicable after becoming aware that the person’s actions or
actions authorised by the person have damaged the network operator’s underground
gas pipelines.

Proposed section 64E enables a court to order a person who has been convicted of
an offence against the proposed Part or existing section 66 to repay costs and
expenses incurred by a network operator in relation to its gas works as a result of the
commission of the offence.

Proposed section 64F provides that the designated information provider, a network
operator, their officers or employees and persons acting on their behalf, do not incur
any civil monetary liability for acts or omissions in connection with requests for
information under proposed section 64C and the provision of information in
compliance with regulations under proposed section 64B unless the acts or omissions
were done or made in bad faith or negligently. The civil monetary liability for
negligent acts or omissions is not to exceed the prescribed maximum amount. A

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Energy Legislation Amendment (Infrastructure Protection) Bill 2009
Explanatory note
person to whom the proposed section applies may enter into an agreement with
another person varying or excluding the operation of a provision of the proposed
section.

Schedule 2 [4] amends section 66 of the Gas Act to increase the maximum penalty
for unauthorised interference with gas works to 4,000 penalty units in the case of a
corporation and 200 penalty units or imprisonment for 5 years (or both) in any other
case.

Schedule 2 [5] amends section 66 of the Gas Act to provide that the offence of
unauthorised interference with gas works if committed by an individual is an
indictable offence which may be dealt with summarily in accordance with Chapter 5
of the Criminal Procedure Act 1986.

Schedule 2 [6] inserts proposed section 79A into the Gas Act to exclude inspectors
appointed by a network operator from personal liability for the exercise in good faith
of their functions under that Act. Any such liability will attach instead to the network
operator.

Schedule 2 [7] amends section 83 of the Gas Act to enable the regulations to provide
for exemptions from the provisions of proposed sections 64B and 64C.

Schedule 2 [8] and [9] amend Schedule 2 to the Gas Act to enable regulations to be
made of a savings or transitional nature consequent on the enactment of the proposed
Act and to include certain specific savings and transitional provisions.

Schedule 3 Amendment of Criminal Procedure Act
1986 No 209
Schedule 3 [1] amends section 268 of the Criminal Procedure Act 1986 to provide
the maximum penalties for offences under section 65 of the Electricity Supply Act
1995 and section 66 of the Gas Supply Act 1996 when dealt with summarily.

Schedule 3 [2] amends Table 2 in Schedule 1 to the Criminal Procedure Act 1986 to
include offences under section 65 of the Electricity Supply Act 1995 and section 66
of the Gas Supply Act 1996. The effect of the amendment is that such an offence will
be able to be dealt with summarily rather than on indictment unless the prosecutor
elects otherwise.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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