An Act to establish the Department of Energy; to constitute the Energy Corporation of New South Wales and define its functions; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Energy Administration Act 1987.
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
3 Definitions
(1) In this Act:Corporation means the Energy Corporation of New South Wales constituted by section 7.Department means the Department of Energy, Utilities and Sustainability.Director-General means the Director-General of the Department.employee, in relation to the Corporation, means a person employed by the Corporation under section 9 (5) as an employee of the Corporation.energy means energy, power or fuel.means a public or local authority constituted by or under an Act other than this Act, and includes any other body prescribed by the regulations.regulation means a regulation made under this Act.(2) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.(3) A reference in this Act to the allocation of energy or energy resources includes a reference to the allocation of energy or energy resources in the event that there is insufficient to meet demand.s 3: Am 1995 No 94, Sch 5.4 [1]; 2004 No 64, Sch 1 [1].
4 Act binds the Crown
This Act binds the Crown, not only in right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2 Objects
5 Objects
(1) The objects of this Act are:(a) to secure the best management of the supply and use of energy in the State,(b) to provide an authoritative source of advice to the Government and the community on energy matters and their co-ordination,(c) to apply the State’s energy resources, technologies and associated expertise to promote economic development and employment in the State,(d) to promote and maintain the efficiency and accountability of energy producers and suppliers and their responsiveness to community needs and expectations,(e) to promote the most cost-effective long term match of energy supply and demand, and(f) to promote the safe and effective utilisation of energy.(2) In the administration of Acts relating to energy, regard shall, to the maximum extent possible having regard to the needs of the State and available resources, and subject to any directions of the Minister, be had to the objects of this Act.
Part 3 Administration
6 Establishment of the Department
(1) There is established by this Act a Department of the Government with the name of the “Department of Energy”.(2) The Department shall be deemed to have been established under section 49 of the Constitution Act 1902, and nothing in this section affects the powers conferred by that section in relation to the Department.
7 Constitution of the Corporation
(1) There is constituted by this Act a corporation under the corporate name of the “Energy Corporation of New South Wales”.(2) The Department and the Corporation shall, to the maximum extent possible, so act in a complementary manner as to achieve a unified administration of this Act and other Acts conferring or imposing functions on the Corporation.
8 Management of the Corporation
(1) The affairs of the Corporation shall be managed by the Director-General.(2) A function of the Corporation may be exercised in the name of, or on behalf of, the Corporation by:(a) the Director-General, or(b) an officer or employee of the Department or of the Corporation with the authority of, and on behalf of, the Director-General.(3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, shall be deemed to have been done by the Corporation.(4) Functions of the Corporation may also be exercised in accordance with a delegation under this Act.(5) The Corporation is subject to the control and direction of the Minister.s 8: Am 2004 No 64, Sch 1 [2].
9 Staff
(1) Except as provided by subsection (5), such staff as may be necessary to enable the Corporation to exercise its functions shall be employed under the Public Sector Management Act 1988.(2) The Corporation may use the services of any staff or facilities of the Department.(3) The Corporation may:(a) with the approval of the Minister, andarrange for the use of the services of any staff or facilities of any other government department or administrative office.(b) on such terms and conditions as may be approved by the Public Service Board,(4) The Corporation may, with the approval of the Minister and of a public authority, arrange for the use of the services of any staff or facilities of the public authority.(5) The Corporation may appoint and employ, on such terms and conditions as it thinks fit, any person, body or organisation considered capable of providing services, information or advice required by the Corporation in exercising its functions, as an employee or consultant or in any other capacity.(6) The Minister may determine the maximum number of persons who may be appointed or employed under subsection (5) as employees.(7) If the instrument of appointment of an employee of the Corporation so provides, Schedule 1 has effect with respect to the employee.(8) Schedule 1 has effect with respect to the Corporation and its employees.s 9: Am 1995 No 94, Sch 5.4 [2].
10 Committees
(1) The Director-General may and shall, if directed to do so by the Minister, establish standing or special committees for the purpose of advising the Corporation in the exercise of its functions under this or any other Act.(2) The Director-General may appoint as a member of any such committee any person who, in the Director-General’s opinion, appears to be qualified to be a member of the committee.(3) The Director-General shall appoint one of the members of a committee to be chairperson of the committee.(4) A committee may, subject to this section and to any directions of the Director-General, regulate its procedure in such manner as it thinks fit.(5) The Director-General may specify the number of persons who shall constitute a quorum of a committee.s 10: Am 2004 No 64, Sch 1 [2].
Part 4 Functions of the Corporation
11 Objects and general functions
(1) The objects of the Corporation are:(a) to carry out such investigations relating to the locating and the development, extraction, provision, allocation, transportation, distribution, pricing, conservation, utilisation and conditions of supply of energy and energy resources as it considers appropriate or as the Minister directs,(b) to plan the locating and the development, extraction, provision, allocation, transportation, distribution, pricing, conservation, utilisation and conditions of supply of energy and energy resources in such manner as it considers appropriate or as the Minister directs,(c) to assist and advise, and make reports and recommendations to, the Minister in respect of matters relevant to this Act and any other Act administered by the Minister,(d) to review plans or draft plans for the development, extraction, provision, allocation, transportation, distribution, pricing, conservation, utilisation and conditions of supply of energy and energy resources prepared by any energy undertakings operating in the State, and(e) in accordance with this Act, to acquire and dispose of energy and energy resources or operations connected with the locating and the development, extraction, provision, transportation, distribution, conservation or utilisation of energy and energy resources, and(f) to promote energy conservation and measures to increase the efficiency of energy supply, transmission and use.(2) The Corporation:(a) has and may exercise the functions conferred or imposed on it by or under this or any other Act, and(b) without limiting any other provision conferring or imposing functions on it, may, subject to this Act, do all such things and engage in all such activities as are reasonably required for it to carry out its objects.(3) Nothing in this Act authorises the Corporation to engage in the generation of electricity or the supply of electricity except in connection with its own undertakings.(4) Except as provided by section 15, nothing in this Part authorises anything to be compulsorily acquired.s 11: Am 1991 No 63, Sch 2.
12 Functions
The Corporation may also do any or all of the following:(a) investigate the extent of the energy resources available within the State,(b) carry out, or commission the carrying out of, such inspections, tests, investigations, surveys, experiments, boring, drilling and exploration as it considers necessary or desirable to enable it to effectively exercise its functions under this or any other Act,(c) evaluate the future demands for energy and energy resources within the State and the capacity of the State to meet those demands, whether from internal resources or otherwise, and assess the impact of any lack of energy or energy resources on the development of the State or any part of the State,(d) promote the locating and the development, extraction, provision, transportation, distribution, conservation and utilisation of energy and energy resources,(e) (Repealed)(f) disseminate or promote the dissemination of information regarding the locating and the development, extraction, provision, allocation, transportation, distribution, pricing, conservation, utilisation and conditions of supply of energy and energy resources,(g) carry out, commission or co-ordinate research, development and demonstration with respect to any matter relating to energy or energy resources,(h) assist and co-operate with authorities of the Commonwealth and other States and Territories in the planning and co-ordination of policies related to energy and energy resources,(i) have consultations, and make arrangements, with any public authority in respect of the exercise or undertaking by that authority of anything within that authority’s functions that may affect energy or energy resources,(j) undertake negotiations on behalf of, or in co-operation with, persons who are interested in making energy or energy resources available for use by the community,(k) formulate proposals to assist with the provision by a gas producing, extracting or transporting undertaking of a bulk supply of gas to a gas distributing undertaking including a scheme to enable that gas to be provided,(l) acquire a gas producing or distributing undertaking by agreement,(m) undertake, or cause to be undertaken, the construction of works or apparatus to be used for or in connection with the locating or the development, extraction, provision, transportation, distribution, conservation or utilisation of energy or energy resources,(n) maintain and operate any undertaking constructed or acquired by it under this or any other Act.s 12: Am 1995 No 94, Sch 5.4 [3].
13 Review of plans and draft plans
(1) The Corporation shall review any plan or draft plan required to be submitted to the Corporation by or under any other Act.(2) In reviewing such a plan or draft plan, the Corporation may do any or all of the following:(a) advertise the plan or draft plan in such manner as it considers appropriate,(b) cause the plan or draft plan to be published in such manner as it considers appropriate,(c) invite comments on the plan or draft plan from the public or any persons or groups,(d) conduct an inquiry under section 21,(e) refer the whole or part of the plan or draft plan to a consultant for review or comment by the consultant,(f) exercise any other relevant functions conferred or imposed on it by or under this or any other Act.(3) Nothing in this section limits the exercise by the Corporation of any of its functions.
14 Purchase etc of certain shares
(1) The Corporation may, on behalf of the Crown, negotiate and enter into agreements for the purposes of, or in connection with, the acquisition, holding, dealing with, and disposal of shares in any company having (whether expressly or otherwise) among its objects:(a) the carrying out of investigations or research into energy or energy resources, or(b) the locating, development, extraction, transportation, distribution, conservation, utilisation, acquisition or disposal of energy or energy resources.(2) Such an agreement may be entered into by the Corporation only with the approval of the Governor given on the recommendation of the Minister with the concurrence of the Treasurer.(3) Such an agreement may be executed, on behalf of the Corporation, only by 2 or more persons authorised for the purpose by the Governor on that recommendation and with that concurrence.(4) The Corporation may do all things authorised or required by such an agreement to be done and all incidental things, and may also do such things as are necessary or convenient to be done for the purpose of carrying into effect and implementing the terms of any such agreement.(5) Without affecting the generality of subsection (4), the Corporation may:(a) acquire, hold, deal with and dispose of shares in a company to which an agreement entered into by it under this section relates, and(b) do all such things as are appropriate by reason of its being a holder of any such shares, including the appointment of any director or directors of any such company.(6) Any appointment of such a director shall not be made except with the approval of the Minister and the Treasurer.(7) The fact that any director of a company so appointed is accustomed to act in accordance with the directions or instructions of a Minister of the Crown does not constitute that Minister a director of the company.
15 Acquisition of land
(1) The Corporation may, for the purposes of this Act or any other Act administered by the Minister, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.(2) For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the Corporation is, in relation to that authorised work, taken to be the Constructing Authority.(3) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.s 15: Subst 1992 No 34, Sch 2.
16 Power to accept gifts etc of property
(1) The Corporation may acquire by gift, bequest or devise any property for any of the purposes of this Act or any other Act administered by the Minister and may agree to carry out the conditions of the gift, bequest or devise.(2) The rule of law relating to remoteness of vesting does not apply to any condition of a gift, bequest or devise to which the Corporation has agreed.
17 Disposal of and dealings with land vested in Corporation
(1) The Corporation shall not sell, lease, exchange or otherwise deal with or dispose of land acquired by or vested in the Corporation except with the approval of the Minister and subject to such terms and conditions as the Minister may impose.(2) The Minister’s approval is not required to a lease of land where the term of the lease is less than 3 years.
18 Contracts
(1) The Corporation may make and enter into contracts with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of its functions.(2) A contract under this section shall be deemed for the purposes of the Constitution Act 1902 to be a contract for or on account of the Public Service of New South Wales.
19 Arrangements with public authorities
(1) The Corporation may enter into an arrangement or agreement with any public authority that:(a) the public authority shall act as agent of the Corporation for the purposes of this Act or any other Act administered by the Minister, oron such terms and conditions as are agreed on between the Corporation and the public authority.(b) the Corporation shall act as agent of the public authority for the purposes of this Act or any other Act administered by the Minister,(2) Notwithstanding anything in any other Act, any public authority may enter into any such arrangements or agreements and may do or suffer anything necessary or expedient for carrying out any such arrangements or agreements.
20 Arrangements for investigation and research
The Corporation may enter into arrangements with:(a) a Minister of the Crown of any State, a Minister of State of the Commonwealth or a Department or instrumentality of any State or of the Commonwealth,(b) a university or another tertiary institution, orwith respect to the conduct of any investigation, study or research that may be necessary or desirable to enable the Corporation to exercise its functions.(c) any other body or person,
Part 5 Inquiries
21 Inquiries into energy matters
(1) The Minister or the Corporation may conduct an inquiry, and the Corporation shall conduct an inquiry if directed to do so by the Minister, into:(a) any matter relating to the locating or the development, extraction, provision, allocation, transportation, distribution, pricing, conservation, utilisation or conditions of supply of energy or energy resources, or(b) without affecting the generality of paragraph (a), any plan or draft plan referred to in section 11 or 13.(2) The Minister or the Corporation may, by order in writing, authorise, subject to the terms of the authorisation:(a) a committee established under section 10, orto examine, and report to the Minister or the Corporation on, any matter in connection with an inquiry.(b) any other person,(3) Nothing in this section limits the power of the Minister or the Corporation to conduct an examination in connection with an inquiry under this section, and the Minister or the Corporation may conduct such an examination even though another body or person has been authorised to do so.(4) No matter or thing done by:(a) a member of a committee, orauthorised under this section to examine, and report to the Minister or the Corporation on, any matter in connection with an inquiry shall, if the matter or thing was done in good faith for the purposes of the inquiry, subject the member or person personally to any action, liability, claim or demand.(b) any other person,
22 Royal Commission powers at inquiries
(1) For the purposes of an inquiry or examination under section 21:(a) the Minister, the person conducting it on behalf of the Corporation or the chairperson of the committee conducting it has the functions, protections and immunities conferred on a chairperson of a Royal Commission by Division 1 of Part 2 of the Royal Commissions Act 1923, and(b) a member of the committee conducting it has the functions, protections and immunities conferred on a commissioner by that Division.(2) The Royal Commissions Act 1923 (except section 13 and Division 2 of Part 2) applies to and in respect of an inquiry or examination under section 21.s 22: Subst 1990 No 27, Sch 3. Am 1994 No 32, Sch 3.
Part 6 Emergency provisions
23 Definitions
In this Part:inspector means a person authorised, for the time being, under section 31.place includes a building, structure and mine.proclaimed form of energy means a form of energy or energy resources specified in an unrevoked proclamation referred to in section 24.
24 Proclamation in respect of a form of energy
(1) Whenever it appears to the Governor that from any cause the available supply of any form of energy or energy resources is or is likely to become less than is sufficient for the reasonable requirements of the community, the Governor may:(a) exercise all or any of the functions conferred on the Governor by or under this section, and(b) do and perform all such acts, matters and things as are necessary or expedient for carrying into effect the purposes of this section.(2) The Governor may from time to time, by proclamation published in the Gazette, declare that, on and after the date of its publication or a later date specified in it, the provisions of this section have effect in respect of the form of energy or energy resources specified in the proclamation.(3) A proclamation published under this section shall take effect from its publication or from a later date specified in it, and shall (unless sooner revoked) continue in force for a period not exceeding 30 days from the date of its being published.(4) A proclamation under this section may be amended, varied or revoked by a later proclamation.
25 Regulations in respect of emergencies
(1) So long as a proclamation referred to in section 24 (2) remains in force, the Governor may make a regulation:(a) controlling, directing, restricting or prohibiting the sale, supply, use or consumption of the proclaimed form of energy, whether generally or for any purpose or purposes specified in the regulation,(b) authorising the Director-General or a person specified in the regulation to exercise such functions as to the Governor appear to be necessary or expedient to carry into effect the purposes of this section or the regulation, and in particular (but without limiting the foregoing provisions of this subsection) authorising the Director-General or that person:(i) to control, direct, restrict and prohibit the sale, supply, use or consumption of the proclaimed form of energy, whether generally or for any purpose or purposes specified in the regulation,(ii) to direct a person who extracts, provides, supplies, transports or distributes the proclaimed form of energy to extract it for or provide, supply, transport or distribute it to a person specified in the regulation,(iii) to specify the terms and conditions on which the proclaimed form of energy shall be extracted, produced, provided, supplied, transported or distributed,(iv) to direct that a person to whom the proclaimed form of energy is provided, supplied, transported or distributed accept the proclaimed form of energy so provided, supplied, transported or distributed, and(v) to make such orders, take such measures, give such directions and do such things as are in the opinion of the Director-General or the person specified in the regulation necessary or expedient to carry into effect the purposes of this section and any regulation made under this section, or(c) generally, prescribing all such matters or things as are necessary or expedient to be prescribed for carrying into effect the purposes of this section and the regulation.(2) Any such regulation may be made before the proclamation under the authority of which it is made has taken effect, but any such regulation shall not take effect before that proclamation has taken effect.(3) Any such regulation and any order or direction made or given under the authority of the regulation:(a) may be made or given so as to apply to or have operation throughout the whole or any specified part of the State,(b) may be made or given so as to operate for any period or periods or for any time or times or for any occasion or occasions specified in it,(c) may be of general operation or of specially limited operation according to any specified times, places, circumstances, conditions or restrictions, or(d) may authorise a person specified in the regulation, order or direction:(i) to enter any land, building or structure, orused for or in connection with the extraction, production, provision, supply, transportation or distribution of the proclaimed form of energy.(ii) to take possession or control of or use any property, undertaking, equipment, goods, vehicles, articles or things of any kind,(4) Any order or direction referred to in subsection (3):(a) shall if published in the Gazette be deemed to have been sufficiently served on or brought to the notice of all persons concerned or affected by it, andor in the case of a direction may be given orally or by telegram.(b) may be made or given so as to apply to any particular person and may be served on the person by delivering a copy of it to the person by hand, or by sending the copy to the person by post,(5) A regulation made under this section shall, unless it sooner expires or is revoked, continue in operation until the proclamation under the authority of which it was made is revoked or ceases to remain in force.(6) A regulation made under this section may provide that a person who contravenes or fails to comply with a provision of the regulation is guilty of an offence against the regulation, and, in particular, may provide that a person who refuses or fails to comply with an order or direction made or given under the regulation is guilty of such an offence.(7) An order or direction referred to in subsection (3) shall, unless it sooner expires or is revoked, continue in operation until the regulation under the authority of which it was made or given is revoked.s 25: Am 2004 No 64, Sch 1 [2].
26 State of emergency in respect of certain forms of energy
(1) This section applies in respect of a form of energy or energy resources other than gas or electricity.(2) Whenever it appears to the Governor that:(a) from any cause the available supply of a form of energy or energy resources to which this section applies is or is likely to become less than is sufficient for the reasonable requirements of the community, andthe Governor may, by order in writing, declare that a state of emergency exists in relation to that form of energy or energy resources, either in the whole State, or in any part of the State specified or described in the declaration, in respect of the emergency.(b) an emergency situation exists or is likely to exist in relation to that form of energy or energy resources,(3) An order under this section shall take effect from its making or from a later date specified in it and shall (unless sooner revoked) continue in force for such period not exceeding 28 days as is specified in it.(4) More than one order may be made under this section in respect of an emergency.(5) An order under this section shall be published in the Gazette as soon as practicable.
27 Minister’s powers in respect of state of emergency
(1) If an order is in force under section 26 in respect of a form of energy or energy resources, the Minister may, by notice in writing:(a) give such directions as are necessary to control, direct, restrict or prohibit the sale, supply, use or consumption of that form of energy or energy resources,(b) direct a person who extracts, produces, provides, supplies, transports or distributes that form of energy or energy resources to extract it for or provide, supply, transport or distribute it to a person specified in the direction,(c) direct a person to comply with such terms and conditions as the Minister determines relating to the extracting, producing, providing, supplying, transporting or distributing of that form of energy or energy resources,(d) direct that a person to whom that form of energy or energy resources is provided, supplied, transported or distributed accept the energy or energy resources so provided, supplied, transported or distributed, and(e) give such direction as the Minister considers necessary to give effect to any recommendation made by a qualified person under section 28.(2) Such a direction:(a) may apply to or have operation throughout the whole or any specified part of the State,(b) may, while an order referred to in section 26 is in force, operate for any period or periods or for any time or times or for any occasion or occasions specified in the direction, or(c) may be of general operation or of specially limited operation according to any times, places, circumstances, conditions or restrictions specified in the direction.(3) Such a notice:(a) may be published in the Gazette and when so published any direction contained therein shall be deemed to have been sufficiently served on or brought to the notice of all persons concerned or affected by it, and(b) may, without affecting the provisions of paragraph (a), where it applies to any particular person, be served on the person by delivering a copy thereof to the person by hand, or by sending a copy to the person by post or telegram.
28 Appointment of qualified person to investigate certain industrial matters
(1) In this section:industrial matter has the same meaning as in the Industrial Relations Act 1996.qualified person means a Member of the Industrial Relations Commission of New South Wales or other person having qualifications which the Minister considers appropriate to carry out the functions under this section of a person appointed under this section.(2) If an order is in force under section 26, the Minister may, by order published in the Gazette, appoint a qualified person to investigate any industrial matter specified or described in the order, being an industrial matter with respect to any one or more of the following:(a) the extraction, production, provision, supply, transportation or distribution of any form of energy or energy resources in relation to which the order under section 26 is in force when the qualified person is so appointed,(b) persons engaged in the extraction, production, provision, supply, transportation or distribution of any form of energy or energy resources in relation to which the order under section 26 is in force when the qualified person is so appointed,(c) the utilisation of any form of energy or energy resources in relation to which the order under section 26 is in force when the qualified person is so appointed.(3) A qualified person appointed under this section may carry out the functions given to the person under subsection (4) even though the order under section 26 that was in force when the person was so appointed has ceased to be in force.(4) A qualified person appointed under this section shall, as soon as practicable after being appointed, investigate the industrial matter specified or described in the order and make a report and recommendation to the Minister with respect to that industrial matter.(5) For the purposes of any investigation under this section:(a) a qualified person appointed under this section has the powers, authorities, protections and immunities conferred on the chairperson of a Royal Commission by Division 1 of Part 2 of the Royal Commissions Act 1923, and(b) sections 27A and 27B of the Local Courts Act 1982 apply to or in respect of a witness or person summoned by or appearing before a qualified person in the same way as they apply to or in respect of a person appearing before a Local Court.(6) The provisions of the Royal Commissions Act 1923 (section 13 and Division 2 of Part 2 excepted) apply to and in respect of any witness or person summoned by or appearing before a qualified person appointed under subsection (2) in the same way as they apply to and in respect of a witness or person summoned by or appearing before the chairperson of a Royal Commission under that Act.s 28: Am 1994 No 32, Sch 3; 1995 No 94, Sch 5.4 [4]; 1996 No 121, Sch 4.19 [1] [2]; 2001 No 121, Sch 2.98 [1].
29 Offence and penalty
(1) A person who commits an offence against a regulation made under section 25 is liable to a penalty of 10 penalty units.(2) A person shall not refuse or fail to comply with:(a) a direction given under section 27, or(b) an order or direction made or given under section 30.Maximum penalty: 10 penalty units.s 29: Am 1992 No 112, Sch 1.
30 Discontinuance of supply
(1) If a person is convicted:(a) of an offence against a regulation made under section 25—the person authorised in the regulation or in the order or direction, ormay make such orders or give such directions in respect of the discontinuance of supply of the proclaimed form of energy, or the form of energy or energy resources, as the case may be, to that firstmentioned person, during such period as that authorised person or the Minister, as the case may be, thinks fit.(b) of failing to comply with a direction given by the Minister under section 27—the Minister,(2) An order made or direction given under this section has no further force or effect if the regulation, order or direction referred to in subsection (1) (a) or (b) is no longer in force.
31 Appointment of inspectors
(1) The Minister may authorise a person to carry out inspections and tests for the purposes of this Part.(2) The Minister shall provide an inspector with a certificate of the inspector’s authority in the prescribed form.(3) An inspector, in exercising in any place any function conferred or imposed under this Part, shall, if so required by a person apparently in charge of that place, produce the certificate of authority to that person.
32 Functions of inspectors
(1) The functions conferred under this section on an inspector shall not be exercised or performed except:(a) where a proclamation has been made by the Governor under section 24:(i) during the period for which the proclamation remains in force, and(ii) in relation to the form of energy or energy resource specified in the proclamation, or(b) where the Governor has by order under section 26 declared that a state of emergency exists:(i) during the period for which the order remains in force, and(ii) in relation to the form of energy or energy resource specified in the order.(2) An inspector may:(a) enter and inspect any land or place on, in or from which a form of energy or energy resource is or may reasonably be believed by the inspector to be extracted, developed, produced, provided, supplied, stored, transported, distributed or utilised,(b) inspect and test any plant or equipment on or in any such land or place, being plant or equipment which is or may reasonably be believed by the inspector to be used for or in connection with the extraction, development, production, provision, supply, storage, transportation, distribution or utilisation of a form of energy or energy resource,(c) conduct such tests as the inspector considers appropriate to determine any matter relating to the extraction, development, production, provision, supply, storage, transportation, distribution or utilisation of a form of energy or energy resource,(d) take samples of a form of energy or energy resource or any substance used in connection with the extraction, development, production, provision, supply, storage, transportation, distribution or utilisation of a form of energy or energy resource,(e) require any person on any such land or place to produce any accounts, records, books or other documents relating to the extraction, development, production, provision, supply, storage, transportation, distribution or utilisation of a form of energy or energy resource,(f) take copies of, or extracts or notes from, any such accounts, records, books or other documents,(g) require any person on any such land or place to answer questions or otherwise furnish information relating to the extraction, development, production, provision, supply, storage, transportation, distribution or utilisation of a form of energy or energy resource on, in or from the land or place, and(h) require the owner or occupier of any such land or place to provide the inspector with such assistance and facilities as are reasonably necessary to enable the inspector to exercise the inspector’s functions under this section.(3) The functions conferred under this section are in aid of and not in derogation from any other functions exercisable apart from this section.
33 Obstruction etc of inspectors
(1) A person shall not:(a) prevent an inspector from exercising or performing any function conferred on the inspector under section 32,(b) hinder or obstruct an inspector in the exercise of any such functions,(c) refuse or fail to comply with any requirement or answer any question of an inspector,(d) furnish an inspector with information knowing that it is false or misleading in a material particular, or(e) impersonate an inspector.Maximum penalty: 10 penalty units.(2) It is a sufficient defence to a prosecution for an offence under subsection (1) (c) by reason of the failure of the defendant to answer a question of an inspector under section 32 if the defendant proves that the defendant did not know, and could not with reasonable diligence ascertain, the answer to the question.(3) A person is not excused from answering any question of an inspector under section 32 on the ground that the answer might tend to incriminate the person or make the person liable to a penalty, but the information furnished by the person is not admissible against the person in any proceedings, civil or criminal, except for an offence under subsection (1).(4) If:(a) an answer to a question of an inspector under section 32, oris given to an inspector by an officer of a corporation within the meaning of the Corporations Act 2001 of the Commonwealth, the answer and information are, for the purposes of any proceedings against the corporation under this Act, binding on and admissible in evidence against the corporation.(b) any information whatever,(5) Subsection (4) does not apply if it is proved that the answer or information was given in relation to a matter in respect of which the officer had no authority to bind the corporation.s 33: Am 1988 No 20, Sch 20; 1992 No 112, Sch 1; 2001 No 34, Sch 2.13.
34 Miscellaneous matters
(1) This Part has effect notwithstanding anything whether expressed or implied in any other Part of this Act or in any other Act or in any judgment or order or in any contract or agreement, whether oral or in writing, or in any deed, document, security or writing.(2) All powers given by or under this Part or in any proclamation or regulation made or any notice or direction given under this Part shall be in aid of and not in derogation from any other powers exercisable apart from this Part.(3) No action, claim or demand shall lie or be made or allowed by or in favour of any person against the Crown or any responsible Minister or any person acting in the execution of this Part or any proclamation, regulation, notice, order or direction made or given thereunder for or in respect of any damage, loss or injury sustained or alleged to be sustained by reason of the enactment of this Part or of its operation or of anything done or purporting to be done under this Part or under any such proclamation, regulation, notice, order or direction.
Part 7 Finance
35 Energy Administration Account
(1) There shall be established in the Special Deposits Account in the Treasury an Energy Administration Account.(2) There shall be paid into the Account:(a) all money received by the Corporation and the Department,(b) such amounts from the Consolidated Fund as the Treasurer determines, subject to any necessary appropriation by Parliament, and(c) (Repealed)(3) There shall be paid out of the Account all amounts required to meet expenditure incurred in connection with the functions of the Department and the Corporation under this or any other Act.s 35: Am 1990 No 27, Sch 3; 1995 No 94, Sch 5.4 [5]; 1996 No 38, Sch 1.4 [1].
35A State Energy Research and Development Fund
(1) There is to be established in the Special Deposits Account in the Treasury a State Energy Research and Development Fund.(2) There is to be paid into the Fund:(a) (Repealed)(b) any money payable into the Fund by or under this or any other Act.(3) There is to be paid out of the Fund such amounts as the Minister may direct for or with respect to:(a) research concerning, and the development of, energy resources for the State,(b) such other purposes as may be prescribed in connection with the supply and use of energy resources for the State, and related technological development.(4) The regulations may make provision for and with respect to the application of the Fund.(5) The Fund is, subject to this Act and the regulations, under the direction, control and management of the Corporation.s 35A: Ins 1990 No 27, Sch 3. Am 1996 No 38, Sch 1.4 [2] [3].
35B (Repealed)
s 35B: Ins 1990 No 27, Sch 3. Rep 1996 No 38, Sch 1.4 [4].
Part 8 Miscellaneous
36 Provisions relating to the Corporation
(1) The Corporation:(a) has perpetual succession,(b) shall have a corporate seal,(c) may take proceedings, and be proceeded against, in its corporate name,(d) may do and suffer all other things that a corporation may, by law, do and suffer and that are necessary for or incidental to the purposes for which it is constituted, and(e) is, for the purposes of any Act, a statutory body representing the Crown.(2) All courts and persons acting judicially:(a) shall take judicial notice of the seal of the Corporation that has been affixed to any instrument or document, and(b) shall, unless the contrary is proved, presume that the seal was properly affixed.(3) No matter or thing done by the Corporation or any person acting under the direction of the Corporation shall, if the matter or thing was done in good faith for the purpose of executing this or any other Act, subject a person so acting personally to any action, liability, claim or demand.
37 Operation of certain other Acts
(1) Nothing in this Act limits or otherwise affects the State Emergency and Rescue Management Act 1989.(2) Nothing in this Act affects the operation of the Mining Act 1992 or the Offshore Minerals Act 1999, and the Corporation is bound by both of those Acts.s 37: Am 1992 No 29, Sch 5; 1995 No 94, Sch 5.4 [6]; 1999 No 42, Sch 3.6.
38 Testing and labelling of appliances
(1) The regulations may make provision for or with respect to:(a) the prescribing of standards for, or the tests to be carried out in relation to, appliances that consume energy, or both,(b) the marking, labelling or tagging of appliances that consume energy,(c) without limiting paragraph (b):(i) the information to appear on any such mark, label or tag (including information as to any tests carried out in relation to the appliance), and(ii) the manner of making or affixing any such mark, label or tag,(d) prohibiting the fraudulent or improper use of marks, labels or tags similar to those required by the regulations or of marks, labels or tags so nearly resembling those required by the regulations as to be likely to deceive, and(e) the fees payable in relation to the labelling of appliances that consume energy.(2) The power to make regulations under this section does not limit the power to make regulations under any other Act.s 38: Am 1988 No 92, Sch 6.
39 Power of entry
(1) In this section, place includes building, structure and mine.(2) For the purpose of enabling the Corporation to exercise its functions under this or any other Act, the Corporation may:(a) by a person authorised in writing by the Corporation for the purpose enter:(i) any land or any place (not being a dwelling-place) on any land used in connection with the locating or the development, extraction, production, provision, supply, transportation, distribution or utilisation of energy or energy resources, at any time when that land or place is being used for any of those purposes, andand may there carry out such inspections, tests, investigations, surveys, experiments, boring, drilling and exploration, and take such samples and such photographs, as the person considers necessary in connection with the exercise, by the Corporation, of its functions, and(ii) any other land or any other place (not being a dwelling-place) on any land at any reasonable time,even though an easement to enter the land or a right to enter the place may not have been granted or acquired.(b) by its employees or agents or by officers or employees of the Department, enter any land and do all such things as are required:(i) for the purpose of maintaining and operating any undertaking acquired by it under this or any other Act,(ii) for the purpose of investigating any matter in respect of which it intends to make a proposal referred to in section 12, or(iii) for any other purpose connected with or related or incidental to the exercise of its functions under this or any other Act,(3) The Corporation shall not exercise any of its powers under this section unless it gives at least 7 days’ notice to the owner or occupier of the land or place concerned.(4) In exercising a power under this section, the Corporation shall ensure that no more damage than is necessary in the circumstances is inflicted and shall fully compensate any person who sustains damage in the course of the exercise of the power.(5) A power under this section is in addition to any other power of entry conferred by or under this or any other Act.
40 Persons may be required to furnish information
(1) The Corporation may, by notice in writing, require any person to furnish to it such information in connection with any matter relating to its functions as may be specified in the notice.(2) A person shall not neglect or fail to comply with a requirement under this section.Maximum penalty: 10 penalty units.(3) Information furnished pursuant to such a requirement is not, if the person furnishing it objected, at the time, to doing so on the ground that it might tend to incriminate the person, admissible in evidence in any prosecution against the person for an offence (not being an offence under this section).s 40: Am 1992 No 112, Sch 1.
41 Disclosure of information
A person shall not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:(a) with the consent of the person from whom the information was obtained,(b) in connection with the administration or execution of this Act,(c) for the purposes of any legal proceedings arising out of this Act,(d) in accordance with a requirement of the Ombudsman Act 1974, or(e) with other lawful excuse.Maximum penalty: 10 penalty units.s 41: Am 1992 No 112, Sch 1.
42 Authentication of process
Every summons, process, demand, order, notice, statement, direction or other document requiring authentication by the Corporation may be sufficiently authenticated without the seal of the Corporation if signed by:(a) the Director-General, or(b) any officer of the Department or Corporation authorised to do so by the Director-General.s 42: Am 2004 No 64, Sch 1 [2].
43 Service of process
Any notice, summons, writ or other proceeding to be served on the Corporation may be served:(a) by being left, orat the office of the Corporation or the Director-General.(b) in the case of a notice, by posting it addressed to the Corporation,s 43: Am 2004 No 64, Sch 1 [2].
44 Co-operation by other authorities
(1) Subject to any direction given by the Premier, if a function is conferred or imposed on a person by or under an Act, the person shall co-operate with the Corporation by exercising the function in a manner that, in the opinion of the Corporation, promotes the objects of this Act and the purposes for which the Corporation is constituted.(2) The Minister may establish a standing committee to advise the Minister and the Premier on matters arising under this section.(3) A standing committee established under this section:(a) shall consist of such persons,as are from time to time directed by the Minister with the concurrence of the Premier.(b) shall follow such procedures,
45 Delegation
(1) The Corporation may delegate the exercise of any of its functions, other than this power of delegation.(2) The Director-General may delegate the exercise of any of the Director-General’s functions under this Act or any other Act administered by the Minister, other than this power of delegation.(3) The Director-General may delegate the exercise of any of the functions delegated to the Director-General by the Corporation, unless the Corporation otherwise provides in its instrument of delegation to the Director-General.(4) A delegation may be made only to:(a) a public servant or an employee of the Corporation by name,(b) the holder of a particular office by reference to the title of the office, or(c) a committee established under section 10.(5) A delegation:(a) shall be in writing,(b) may be general or limited, and(c) may be revoked, wholly or partly, by the delegator.(6) A delegate is, in the exercise of a delegated function, subject to such conditions as are specified in the instrument of delegation.(7) A delegated function, when exercised by the delegate, shall be deemed to have been exercised by the delegator.(8) A delegation does not prevent the exercise of a function by the delegator.(9) A function purporting to have been exercised by a delegate shall, until the contrary is proved, be deemed to have been duly exercised by a delegate under this section.s 45: Am 2004 No 64, Sch 1 [2].
46 Recovery of money
Any charge, fee or money due to the Corporation may be recovered by the Corporation as a debt in a court of competent jurisdiction.
47 Proceedings for offences
Proceedings for an offence against this Act or the regulations shall be dealt with summarily before a Local Court.s 47: Am 2001 No 121, Sch 2.98 [2].
48 Annual report
A report under the Annual Reports (Departments) Act 1985 in respect of the Department may include any report required to be made annually in respect of the Corporation under the Annual Reports (Statutory Bodies) Act 1984.
49–52 (Repealed)
ss 49–52: Rep 1994 No 82, Sch 6.
53 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Without limiting subsection (1), the regulations may make provision for or with respect to:(a) the travelling expenses and the compensation to be paid to persons attending or giving evidence at an inquiry or examination referred to in section 21,(b) the fees or travelling or other allowances to be paid to members of a committee established under section 10, and(c) the custody and use of the seal of the Corporation.(3) A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.(4) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,s 53: Am 1992 No 112, Sch 1.
54 Savings, transitional and other provisions
Schedule 2 has effect.s 54: Ins 2004 No 64, Sch 1 [3].
Schedule 1 Superannuation and other rights of employees of the Corporation
(Section 9 (7))
1 Definitions
In this Schedule:statutory body means any body declared under clause 5 to be a statutory body for the purposes of this Schedule.superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under any Act.
2 Superannuation
(1) The Corporation:(a) may, with the concurrence of the Minister administering the Public Authorities Superannuation Act 1985, grant, or make provision for the grant of, pensions, gratuities, retirement benefits and other benefits to or in respect of its employees, and(b) may for that purpose establish, manage and control, or enter into an arrangement with any body corporate for the establishment, management and control by the body corporate, either alone or jointly with the Corporation, of any fund or scheme providing any such pensions, gratuities and benefits.(2) The Corporation may make contributions to any such fund or scheme.(3) In this clause, employee includes former employees and the dependants of employees and former employees.
3 Preservation of rights of employees previously public servants etc
(1) Subject to subclause (2) and to the terms of appointment, where a person was, immediately before being appointed as an employee of the Corporation:(a) an officer of the Public Service or the Teaching Service,(b) a contributor to a superannuation scheme,(c) an officer employed by a statutory body, orhe or she:(d) a person in respect of whom provision was made by any Act for the retention of any rights accrued or accruing to the person as an officer or employee,(e) shall retain any rights accrued or accruing to him or her as such an officer, contributor or person,(f) may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before being appointed as an employee of the Corporation, andas if he or she had continued to be such an officer, contributor or person during his or her service as an employee of the Corporation and:(g) is entitled to receive any deferred or extended leave and any payment, pension or gratuity,(h) his or her service as an employee of the Corporation shall be deemed to be service as an officer or employee for the purpose of any law under which those rights accrued or were accruing, under which he or she continues to contribute or by which that entitlement is conferred, and(i) he or she shall be deemed to be an officer or employee, and the Corporation shall be deemed to be the employer, for the purposes of the superannuation scheme to which he or she is entitled to contribute under this clause.(2) If an employee of the Corporation would, but for this subclause, be entitled under subclause (1) to contribute to a superannuation scheme or to receive any payment, pension or gratuity under the scheme:(a) he or she shall not be so entitled on becoming (whether on appointment as an employee of the Corporation or at any later time while such an employee) a contributor to any other superannuation scheme, and(b) the provisions of subclause (1) (i) cease to apply to or in respect of him or her and the Corporation in any case where he or she becomes a contributor to any such other superannuation scheme.(3) Subclause (2) does not prevent the payment to an employee of the Corporation on his or her ceasing to be a contributor to a superannuation scheme of such amount as would have been payable to him or her if he or she had ceased, by reason of resignation, to be an officer or employee for the purposes of the scheme.(4) An employee of the Corporation is not, in respect of the same period of service, entitled to claim a benefit under this Act and another Act.
4 Employees entitled to re-appointment to former employment in certain cases
(1) A person who:(a) ceases to be an employee of the Corporation by reason of the expiration of the period for which the person was appointed or by reason of resignation, or(b) was, immediately before being appointed as such an employee:(i) an officer of the Public Service or the Teaching Service, or(ii) an officer or employee of a statutory body,is entitled to be appointed to some position in the Public Service, the Teaching Service or the service of that statutory body, as the case may be, not lower in classification and salary than that which the person held immediately before being appointed as an employee of the Corporation.(c) (Repealed)(2) If subclause (1) does not apply to a person who:(a) was, immediately before being appointed to a full-time office constituted by an Act, an officer or employee referred to in subclause (1) (b), andthe person shall have such rights (if any) to appointment as such an officer or employee, in the event of ceasing to be an employee of the Corporation, as are specified in the instrument of appointment as an employee of the Corporation or as are agreed on by the person and by or on behalf of the Government.(b) is after that appointment appointed as an employee of the Corporation,
5 Declaration of statutory bodies
The Governor may, by proclamation published in the Gazette, declare any body constituted by or under any Act to be a statutory body for the purposes of this Schedule.
sch 1: Am 1991 No 17, Sch 1; 2004 No 114, Sch 2.4.
Schedule 2 Savings, transitional and other provisions
(Section 54)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of Sustainable Energy Development Repeal Act 2004
2 Definitions
In this Part:repealing Act means the Sustainable Energy Development Repeal Act 2004.SEDA means the Sustainable Energy Development Authority constituted by the Sustainable Energy Development Act 1995, as in force before its repeal by the repealing Act.
3 Abolition of SEDA
(1) On the commencement of the repealing Act:(a) SEDA is abolished, and(b) any assets, rights and liabilities of SEDA become the assets, rights and liabilities of the Crown.(2) In this clause:assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent).rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
4 Executive Director of SEDA
(1) On the commencement of the repealing Act, the person who, immediately before that commencement, held office as the Executive Director of SEDA ceases to hold that office.(2) A person who, under this clause, ceases to hold office is not entitled to any remuneration or compensation because of the loss of that office.
5 Staff of SEDA
(1) On the commencement of the repealing Act, the staff of SEDA are transferred to the Department.(2) The transfer of such staff is taken to have been done under section 87 of the Public Sector Employment and Management Act 2002.
6 Annual report of SEDA for year ending 30 June 2004
The annual report of SEDA for the year ending 30 June 2004 may be included in the annual report of the Department for that year.
7 References to SEDA
A reference in any other Act or in an instrument made under an Act or in any document to SEDA or to the Executive Director of SEDA is to be read as a reference to the Director-General.
sch 2: Rep 1992 No 34, Sch 2. Ins 2004 No 64, Sch 1 [4].