New South Wales Repealed Acts

This legislation has been repealed.

ELECTRICITY SAFETY ACT 1945 - SECT 21D

21D Guarantee to be a defence in certain circumstances

(1) Subject to this section, an information for an offence referred to in section 21A (1) shall be dismissed if it is proved that the defendant received a prescribed guarantee in respect of the electrical article to which the information relates from the person from whom the defendant obtained the electrical article and if it is also proved that the defendant had no reason to believe that, at the time of the alleged offence, the electrical article:

(a) was not of a type approved under section 21C or approved or registered by a relevant authority for another State or a Territory or certified in accordance with a certification scheme approved by the Minister for the purposes of this Part,

(b) was not marked as prescribed, and

(c) did not comply with the class specifications, the type specifications, if any, and the other prescribed requirements for the article, if any.

(2) For the purposes of subsection (1), a guarantee is a prescribed guarantee in respect of an electrical article only if:

(a) the guarantee is in writing,

(b) the matters guaranteed are that, when the guarantee is given:

(i) the electrical article is of a type approved under section 21C or of a class, description or type approved or registered by a relevant authority for another State or a Territory or certified in accordance with a certification scheme approved by the Minister for the purposes of this Part and complies with the class specifications, the type specifications, if any, and any other prescribed requirements for the article, and

(ii) the electrical article is marked as prescribed,

(c) the guarantor is:

(i) an individual who resides in New South Wales, or

(ii) a corporation that has a place of business within New South Wales,

(d) the guarantee specifies the name of the guarantor and:

(i) in the case of a guarantor who is an individual and who resides within the State-the address of the guarantor and of the place of business of the guarantor, or

(ii) in the case of a guarantor that is a corporation-an address of a place of business of the guarantor within New South Wales,

(e) the guarantee applies:

(i) generally to electrical articles of the type to which the prosecution relates, or

(ii) to the specific electrical article to which the prosecution relates,

and, in the latter case, refers to a sale note, bill of sale, invoice, bill of lading or other document describing the electrical article sold and the marking thereon, and

(f) the guarantee complies with any regulations applicable to it.

(3) Subsection (1) does not apply unless the defendant has, not later than 7 days after service on the defendant of the summons issued in response to the information:

(a) given notice in writing to the informant and the guarantor of intention to rely on the guarantee specifying, in the notice to the informant, the name of the guarantor, any name under which the guarantor trades and the address referred to in subsection (2) (d) in relation to the guarantor, and

(b) given the informant a copy of the guarantee.

(4) A guarantor given notice under subsection (3) is entitled to offer evidence at the hearing of the information to which the notice relates and the court may, if it thinks fit, adjourn the hearing to enable the guarantor to do so.

(5) Where an offence is proved under section 21A (1), but the information is dismissed under this section, the guarantor is, without prejudice to the guarantor’s liability to be prosecuted under subsection (6), liable to the same penalty as could have been imposed if the offence to which the information relates had been committed by the guarantor, unless the guarantor proves that, when the guarantee was given, the guarantor had reasonable grounds for believing that the statements and descriptions contained in the guarantee were true.

(6) A person is guilty of an offence against this Act if, in a guarantee referred to in subsection (2), the person makes or gives a false statement or description in relation to an electrical article or type of electrical article but shall not be found guilty of an offence under this subsection if the person proves that, when the person gave the guarantee, the person had reasonable grounds for believing that the statements and descriptions contained in the guarantee were true.

(7) The penalty for an offence referred to in subsection (6) is:

(a) in the case of a corporation-a penalty not exceeding 50 penalty units, and

(b) in every other case-a penalty not exceeding 20 penalty units.

(8) Notwithstanding anything in any other Act, proceedings for an offence under subsection (6) may be commenced at any time after the giving of the guarantee to which the proceedings relate.