Electricity Supply Act 1995 No 94



An Act to regulate the supply of electricity in the retail market; to set out the functions of persons engaged in the conveyance and supply of electricity; to make provision with respect to the management of electricity supply emergencies; and for other purposes.
long title: Am 1997 No 20, Sch 1.3 [1]; 2017 No 59, Sch 1 [1].
Part 1 Preliminary
1   Name of Act
This Act is the Electricity Supply Act 1995.
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
3   Objects
The objects of this Act are—
(a)  to promote the efficient and environmentally responsible production and use of electricity and to deliver a safe and reliable supply of electricity, and
Note—
Customer choice and rights in relation to electricity connections and electricity supply are provided for by the National Energy Retail Law (NSW).
(b)  to confer on network operators such powers as are necessary to enable them to construct, operate, repair and maintain their electricity works, and
(c)    (Repealed)
(d)  to promote and encourage the safety of persons and property in relation to the generation, transmission, distribution and use of electricity, and
(e)  to ensure that any significant disruption to the supply of electricity in an emergency is managed effectively.
s 3: Am 1997 No 20, Sch 1.3 [2] [3]; 2004 No 4, Sch 2 [1]; 2012 No 38, Sch 1 [1] [2]; 2017 No 59, Sch 1 [2].
4   Definitions and notes
(1)  Expressions used in this Act that are defined in the dictionary at the end of this Act have the meanings set out in the dictionary.
(2)  Notes included in this Act do not form part of this Act.
(3)  Words and expressions used in this Act have the same meaning as they have in the National Energy Retail Law (NSW) but (unless otherwise expressly provided) have that meaning only in relation to the supply of electricity.
s 4: Am 2000 No 109, Sch 1 [2]; 2012 No 38, Sch 1 [3].
5   Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2
6–12   (Repealed)
pt 2: Rep 1997 No 20, Sch 1.3 [4].
s 6: Rep 1997 No 20, Sch 1.3 [4].
s 7: Rep 1997 No 20, Sch 1.3 [4].
s 8: Subst 1997 No 21, Sch 1 [1]. Rep 1997 No 20, Sch 1.3 [4].
ss 9–11: Rep 1997 No 20, Sch 1.3 [4].
s 12: Am 1997 No 21, Sch 1 [2]. Rep 1997 No 20, Sch 1.3 [4].
Part 3 Network operations in the retail market
Division 1 Network operations
12A   Meaning of “distribution system”
(1)  In this Act—
distribution system means—
(a)  the electricity power lines and associated equipment and electricity structures used to convey and control the conveyance of electricity—
(i)  to the premises of wholesale and retail customers, up to the connection point for the premises, whether or not the connection point is on the building or land comprising the premises, or
(ii)  to, from and along the rail network electricity system operated by, for or on behalf of Sydney Metro, Sydney Trains, Transport Asset Holding Entity of New South Wales or Transport for NSW, or
(b)  a regulated stand-alone power system.
(2)  A distribution system does not include the following—
(a)  a transmission system,
(b)  any of the following excluded by the regulations—
(i)  specified electricity power lines,
(ii)  specified electricity structures,
(iii)  specified equipment.
s 12A: Ins 2021 No 34, Sch 1[1].
13   Operation of distribution systems for retail supply
A person must not operate a distribution system for the purpose of conveying electricity, for or on behalf of retailers, otherwise than under the authority of a distributor’s licence.
Maximum penalty—5,000 penalty units.
s 13: Am 2012 No 38, Sch 1 [4]; 2015 No 5, Sch 8.7 [1].
14   Licences
(1)  The Minister may grant distributors’ licences for the purposes of this Act.
(2)  Schedule 2 has effect with respect to the granting, variation, transfer and cancellation of distributors’ licences.
s 14: Am 2000 No 109, Sch 1 [3].
15, 15A   (Repealed)
s 15: Am 1996 No 56, Sch 2.8 [1]. Rep 2012 No 38, Sch 1 [5].
s 15A: Ins 2009 No 101, Sch 1 [1]. Am 2010 No 82, Sch 1 [1]–[5]; 2012 No 38, Sch 1 [6]–[14]; 2012 No 46, Sch 7 [1] [2]; 2014 No 88, Sch 1.6 [2]; 2015 No 36, Sch 3 [1]–[4]. Rep 1995 No 94, sec 15A (9).
16   Distributors to convey electricity for certain persons only
It is a condition of a distributor’s licence that the distributor must not operate a distribution system for the purpose of conveying electricity for or on behalf of any person unless the person is—
(a)  a retailer, or
(b)  a Registered participant within the meaning of the National Electricity (NSW) Law, or
(c)  a person prescribed by the regulations, or a member of a class of persons prescribed by the regulations.
(d)    (Repealed)
s 16: Subst 1997 No 21, Sch 1 [3]. Am 1997 No 20, Sch 1.3 [5] [6]; 2012 No 38, Sch 1 [15]; 2021 No 34, Sch 1[2] [3].
17, 18   (Repealed)
s 17: Rep 2000 No 109, Sch 1 [4].
s 18: Subst 2000 No 109, Sch 1 [5]. Rep 2012 No 38, Sch 1 [16].
Divisions 2, 3
19–23  (Repealed)
pt 3, div 2: Rep 2012 No 38, Sch 1 [17].
s 19: Am 1997 No 21, Sch 1 [4]. Rep 2012 No 38, Sch 1 [17].
s 20: Am 1997 No 21, Sch 1 [5]. Rep 2012 No 38, Sch 1 [17].
s 21: Rep 2012 No 38, Sch 1 [17].
s 22: Rep 2012 No 38, Sch 1 [17].
pt 3, div 3: Rep 2012 No 38, Sch 1 [17].
s 23: Am 1997 No 21, Sch 1 [6] [7]. Rep 2012 No 38, Sch 1 [17].
Division 4 Requirements relating to customer connection services
24   Application
(1)  This Division applies to any person who applies to a distributor for the provision of customer connection services or to whom customer connection services are provided.
(2)  A distributor may refuse to provide customer connection services to a person who fails to comply with a requirement under this Division.
(3)  In this Division, customer connection services means connection services within the meaning of Chapter 5A of the National Electricity Rules, except as may be provided by the regulations.
s 24: Am 2012 No 38, Sch 1 [18].
25   (Repealed)
s 25: Am 1997 No 21, Sch 1 [8]; 2000 No 109, Sch 1 [6]. Rep 2012 No 38, Sch 1 [19].
26   Service lines
(1)  A distributor may require the installation of such service lines, and provision for their attachment, as it considers necessary to provide a supply of electricity to or from a customer.
(2)  The type, construction and route of a service line and its point of connection are to be as determined by the distributor.
(3)  A distributor may require premises to be provided with more than one point of connection if the distributor considers it necessary to avoid interference with the supply of electricity to or from any other premises.
s 26: Am 2009 No 101, Sch 1 [2].
27   Service equipment
(1)  A distributor may require the installation of such service equipment, and provision for its mounting, as it considers necessary for the provision of a safe and efficient supply of electricity to or from a customer.
(2)  The position and standards of installation of service equipment are to be as determined by the distributor.
s 27: Am 2009 No 101, Sch 1 [2].
28   Transformers
(1)  This section applies if, in the opinion of the distributor, the supply of electricity required by a customer—
(a)  exceeds that which can be provided by a service line from its street mains, and
(b)  can best be given by installing transformers, switchgear or other equipment on the premises to be supplied.
(2)  In such a case, the distributor may require the customer to provide for use by the distributor, free of cost, a place within those premises to accommodate the transformers, switchgear or other equipment that the distributor considers should be installed.
(3)  The place provided must be approved by, and must be enclosed in a manner approved by, the distributor.
29   (Repealed)
s 29: Am 2009 No 101, Sch 1 [3]. Rep 2016 No 8, Sch 1 [1].
30   Requirements as to installation and use of apparatus
(1)  A distributor—
(a)  may impose such requirements as to the installation and use of electrical appliances and equipment by the customer as the distributor considers necessary to prevent or minimise adverse effects on the supply of electricity to or from other customers, and
(b)  may impose requirements relating to loading of, and the balancing of the load over, the phases of the customer’s electricity supply, and
(c)  may impose requirements as to the minimum rupture rating or minimum breaking capacity of the customer’s main protective devices, and
(d)  may require the customer to install relays, current transformers and other protective equipment having characteristics to suit the distributor’s protective system.
(2)  A customer must comply with any requirement imposed on the customer under this section.
s 30: Am 2009 No 101, Sch 1 [2].
31   Customer may choose supplier and contractor
(1)  For the purpose of complying with any requirement imposed under this Division, a customer may elect—
(a)  to have any required electrical or other goods provided by the distributor (in the case of goods that are available from the distributor) or by any other person, and
(b)  to have any required electrical or other services provided by the distributor (in the case of services that are available from the distributor) or by an accredited service provider.
(2)    (Repealed)
s 31: Am 2012 No 38, Sch 1 [20]; 2014 No 88, Sch 1.6 [3]; 2016 No 8, Sch 1 [2] [3].
31A   Accredited service providers
(1)  A person must not provide a contestable network service unless the person is accredited to provide services in accordance with the regulations (an accredited service provider) and the person’s accreditation authorises the person to provide the contestable network service concerned.
Maximum penalty—500 penalty units.
(2)  The regulations may exempt the provision of specified, or a specified class of, contestable network services from the requirement that the services must be provided by an accredited service provider.
(3)  The exemption may be unconditional or subject to conditions.
(4)  The regulations may make provision for or with respect to the following—
(a)  the accreditation of accredited service providers (including the imposition of conditions on accreditation),
(b)  different classes of accredited service providers,
(c)  the payment of fees in connection with the accreditation of accredited service providers (including the imposition of fees for applications for accreditation and renewal of accreditation).
(5)  In this section—
contestable network service means—
(a)  a service provided for the purpose of complying with a requirement imposed by a distributor under this Division, and
(b)  any other distribution service (within the meaning of the National Electricity Rules) prescribed by the regulations.
s 31A: Ins 2016 No 8, Sch 1 [4].
32   (Repealed)
s 32: Rep 2016 No 8, Sch 1 [5].
Division 5 Levy
pt 3, div 5: Ins 1997 No 36, Sch 1 [1].
32A   Definitions
In this Division—
licensee means the holder of a distributor’s licence.
network income of a licensee means the income derived by the licensee from the use of the distribution system of the licensee in the provision of electricity network services.
s 32A: Ins 1997 No 36, Sch 1 [1]. Am 2000 No 109, Sch 1 [7] [8].
32AA   Exemption for transacted distribution system
This Division does not apply to a licensee in respect of a transacted distribution system under the Electricity Network Assets (Authorised Transactions) Act 2015.
s 32AA: Ins 2015 No 5, Sch 8.7 [2].
32B   Distributor’s levy
(1)  A licensee must pay to the Treasurer, in respect of each financial year during which the licensee holds a distributor’s licence, the levy determined in respect of that year by order of the Governor, on the recommendation of the Treasurer, applying to the licensee and published in the Gazette.
(2)  The Treasurer, in recommending the amount of a levy for a financial year payable by a licensee, must be satisfied that the amount reasonably represents the amount by which the network income (as estimated by the Treasurer) of the licensee in that year is likely to exceed the sum of the amounts (as estimated by the Treasurer) to be—
(a)  the costs of deriving the income, and
(b)  the taxes payable in deriving that income, and
(c)  a reasonable return on the capital of the licensee used in deriving that income,
having regard to—
(d)  the likely consumption of electricity in that financial year by customers (other than customers who are specified or described in an order made under section 43E (6)) who are connected to the licensee’s distribution system, and
(e)  such other matters as the Treasurer determines after consultation with the licensee.
(3)  The levy is payable for the financial year commencing on 1 July 1997 and later financial years.
(4)  Despite the other provisions of this section, no levy is to be determined in respect of the year commencing on 1 July 2001, or any subsequent year, unless the Treasurer, by order published in the Gazette, approves the determination of a levy.
(5)  An approval of the Treasurer under subsection (4)—
(a)  must be published in the Gazette before the beginning of a year to which it applies, and
(b)  may apply to one or more years as specified or described in the approval.
s 32B: Ins 1997 No 36, Sch 1 [1]. Am 1998 No 78, Sch 1 [1]; 2000 No 109, Sch 1 [9]; 2001 No 39, Sch 3 [1].
32C   Variation of levy
(1)  The amount of a levy payable by a licensee in respect of a financial year may be varied by order of the Governor applying to the licensee and published in the Gazette.
(2)  Such an order may be made before or during the financial year concerned or during the following financial year, but not later.
(3)  The Treasurer, in recommending a variation of a levy for a financial year payable by a licensee, must be satisfied of the matters referred to in section 32B (2).
ss 32C–32E: Ins 1997 No 36, Sch 1 [1].
32D   Becoming a licensee during a year
(1)  If a person becomes a licensee during a financial year, a levy may be determined under this Division for the licensee in respect of the remaining part of that financial year.
(2)  The other sections of this Division apply to the licensee in respect of that financial year as if references in those sections to a financial year were references to the remaining part of that financial year.
ss 32C–32E: Ins 1997 No 36, Sch 1 [1].
32E   Ceasing to be a licensee during a year
(1)  If a person ceases to be a licensee during a financial year, the amount of levy payable by the licensee may be adjusted by order of the Governor, applying to the licensee and published in the Gazette, having regard to the length of the portion of that financial year that the distributor’s licence was in force.
(2)  Such a person is entitled to a refund of any money paid in excess of the amount of the levy as so adjusted.
(3)  However, a person does not, by ceasing to be a licensee, cease to be liable to a levy, or to a variation of a levy under section 32C, in respect of any period during which the person was a licensee.
(4)  Accordingly, a reference in this Division to a licensee includes a reference to a former licensee, but without making the former licensee liable to a levy in respect of any period after the person ceased to be the holder of a distributor’s licence.
(5)  The other sections of this Division apply for the purpose of calculating an adjustment referred to in subsection (1) or a variation referred to in subsection (3) as if references in those sections to a financial year were references to the portion of the financial year during which the distributor’s licence was in force.
ss 32C–32E: Ins 1997 No 36, Sch 1 [1].
32F   Payment and recovery of levy
(1)  The levy in respect of a financial year is payable at such times (whether during or after that year) and in such manner as are—
(a)  determined in the order imposing, varying or adjusting it (subject to any agreement referred to in paragraph (b)), or
(b)  agreed on between the Treasurer and the licensee under section 182.
(2)  A levy under this Division is recoverable as a debt due to the Crown in any court of competent jurisdiction.
s 32F: Ins 1997 No 36, Sch 1 [1]. Am 2009 No 36, Sch 1 [6].
32G   Operation of Division
(1)  It is a condition of a distributor’s licence that the licensee must pay the levy in accordance with this Division.
(2)  Nothing in this Division affects the operation of section 5.4 (Payment of financial distributions to Treasurer) of the Government Sector Finance Act 2018.
s 32G: Ins 1997 No 36, Sch 1 [1]. Am 2018 No 70, Sch 4.31.
Part 4 Retail pricing for electricity
pt 4, hdg: Am 2012 No 38, Sch 1 [21].
Divisions 1–3A
33–43  (Repealed)
pt 4, div 1, hdg: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 33: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 33A: Ins 2000 No 109, Sch 1 [10]. Am 2005 No 17, Sch 1 [1] [2]. Rep 2012 No 38, Sch 1 [22].
s 33B: Ins 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 33C: Ins 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
pt 4, div 1A, hdg: Ins 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 34: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 34A: Ins 2009 No 101, Sch 1 [4]. Am 2012 No 46, Sch 7 [3]. Rep 2012 No 38, Sch 1 [22].
ss 35–38: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
pt 4, div 2, hdg: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 38A: Ins 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
pt 4, div 3, hdg: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 39: Am 1997 No 21, Sch 1 [9]. Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 40: Am 1997 No 21, Sch 1 [10]. Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 41: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
s 42: Subst 2000 No 109, Sch 1 [10]. Rep 2012 No 38, Sch 1 [22].
pt 4, div 3A: Ins 2005 No 18, Sch 2.4 [1]. Rep 2012 No 38, Sch 1 [22].
pt 4, div 3A, hdg: Ins 2005 No 18, Sch 2.4 [1]. Am 2007 No 35, Sch 2 [1]. Rep 2012 No 38, Sch 1 [22].
s 42A: Ins 2005 No 18, Sch 2.4 [1]. Am 2007 No 35, Sch 2 [2] [3]. Rep 2012 No 38, Sch 1 [22].
s 42B: Ins 2005 No 18, Sch 2.4 [1]. Rep 2012 No 38, Sch 1 [22].
s 42C: Ins 2005 No 18, Sch 2.4 [1]. Rep 2012 No 38, Sch 1 [22].
s 43: Am 1997 No 21, Sch 1 [11] [12]; 2000 No 53, Sch 3.7. Rep 2000 No 109, Sch 1 [10].
Division 4 Pricing of electricity
pt 4, div 4: Ins 1997 No 36, Sch 1 [2].
43A   Definitions
In this Division—
electricity network pricing determination means a determination of the distribution network service pricing in accordance with the National Electricity Rules for the provision of electricity network services by a licensee.
licensee means the holder of a distributor’s licence but does not include an authorised distributor under the Electricity Network Assets (Authorised Transactions) Act 2015.
s 43A: Ins 1997 No 36, Sch 1 [2]. Am 1999 No 85, Sch 1.11 [1] [2]; 2000 No 109, Sch 1 [11] [12]; 2012 No 38, Sch 1 [23]; 2015 No 5, Sch 8.7 [3].
43B   Pricing of electricity for customers other than exempt customers
(1)  The price for electricity network services that are the subject of an electricity network pricing determination and that are provided by a licensee with respect to customers (other than customers who are specified or described in an order made under section 43E (6)) is increased by an amount determined by an order made by the Governor on the recommendation of the Treasurer and published in the Gazette that does not exceed 0.550 cents per kilowatt hour of the electricity supplied.
(2)  An electricity network pricing determination increased in accordance with this section has effect under the National Electricity Rules as if the determination included the increase.
(3)  An electricity network pricing determination that includes an amount determined by an order made as referred to in subsection (1) is not to be further increased in accordance with this section.
s 43B: Ins 1997 No 36, Sch 1 [2]. Am 1998 No 78, Sch 1 [1] [2]; 1999 No 85, Sch 1.11 [3]–[5]; 2000 No 109, Sch 1 [13]; 2012 No 38, Sch 1 [23].
43C   (Repealed)
s 43C: Ins 1997 No 36, Sch 1 [2]. Am 1998 No 78, Sch 1 [3]. Rep 2000 No 109, Sch 1 [14].
43D   Returns
(1)  A licensee is, within such periods as are specified or described from time to time by the Treasurer by notice to the licensee or by notice published in the Gazette, required to furnish to the Treasurer a return setting out—
(a)  such information relating to forecast and actual consumption of electricity by customers (other than customers who are specified or described in an order made under section 43E (6)) as is specified or described in such a notice, and
(b)  such other information as is specified or described in such a notice, being information that is relevant to the licensee’s obligations under this Division.
(2)  The information in such a return is to be furnished in such manner and form as is specified or described in such a notice.
(3)  The Treasurer may, by notice to the licensee or by notice published in the Gazette, require supplementary or further information from the licensee at any time.
s 43D: Ins 1997 No 36, Sch 1 [2]. Am 1998 No 78, Sch 1 [1]; 2000 No 109, Sch 1 [15].
43E   Operation of Division
(1)  It is a condition of a distributor’s licence that the licensee must comply with the requirements of this Division.
(2)  This Division applies to customers provided with electricity network services under any contract.
(3)  The regulations may make provision for or with respect to phasing in the increase effected by section 43B (1) in relation to any class or classes of customers, in cases where it is not practicable to ascertain the exact amount of electricity supplied for any period commencing with the commencement of this section.
(4)  This Division does not apply to electricity network services provided to a customer under a contract that—
(a)  was entered into before 6 May 1997, and
(b)  contains a provision in force before that date that expressly precludes payment of additional charges for electricity network services provided under it.
(5)  This Division does not apply in relation to electricity network services provided during any period specified or described in an order made by the Governor on the recommendation of the Treasurer and published in the Gazette.
(6)  This Division does not apply in relation to electricity network services provided to customers of a class specified or described in an order made by the Governor on the recommendation of the Treasurer and published in the Gazette.
(6A)  This Division does not apply to transmission services within the meaning of the National Electricity Rules.
(7)  Nothing in this Division gives rise to any rights that are justiciable by a customer of a licensee or to any grounds that constitute a defence to proceedings for the recovery of any amount from a customer of a licensee.
s 43E: Ins 1997 No 36, Sch 1 [2]. Am 1998 No 78, Sch 1 [1] [4]; 1999 No 85, Sch 1.11 [6]; 2000 No 109, Sch 1 [16]; 2012 No 38, Sch 1 [24].
Divisions 5, 6
43EA–43ES  (Repealed)
pt 4, div 5, hdg: Subst 2012 No 46, Sch 7 [4]. Rep 2021 No 34, Sch 1[4].
pt 4, div 5: Ins 2000 No 109, Sch 1 [17]. Rep 2021 No 34, Sch 1[4].
s 43EA: Ins 2000 No 109, Sch 1 [17]. Rep 2015 No 36, Sch 3 [5].
s 43EB: Ins 2000 No 109, Sch 1 [17]. Am 2012 No 38, Sch 1 [25]. Rep 2015 No 36, Sch 3 [6].
s 43EC: Ins 2000 No 109, Sch 1 [17]. Am 2012 No 46, Sch 7 [6]. Rep 2021 No 34, Sch 1[4].
s 43ECA: Ins 2012 No 46, Sch 7 [5]. Rep 2021 No 34, Sch 1[4].
s 43ECB: Ins 2012 No 46, Sch 7 [5]. Rep 2021 No 34, Sch 1[4].
s 43ED: Ins 2000 No 109, Sch 1 [17]. Rep 2021 No 34, Sch 1[4].
s 43EE: Ins 2000 No 109, Sch 1 [17]. Am 2012 No 38, Sch 1 [26]; 2015 No 36, Sch 3 [7]. Rep 2021 No 34, Sch 1[4].
s 43EF: Ins 2000 No 109, Sch 1 [17]. Am 2012 No 38, Sch 1 [27] [28]; 2015 No 36, Sch 3 [8]. Rep 2021 No 34, Sch 1[4].
s 43EG: Ins 2000 No 109, Sch 1 [17]. Rep 2021 No 34, Sch 1[4].
s 43EH: Ins 2000 No 109, Sch 1 [17]. Rep 2021 No 34, Sch 1[4].
s 43EI: Ins 2000 No 109, Sch 1 [17]. Am 2009 No 54, Sch 2.17 [1]–[5]; 2014 No 88, Sch 2.19 [2]. Rep 2021 No 34, Sch 1[4].
s 43EJ: Ins 2000 No 109, Sch 1 [17]. Subst 2012 No 46, Sch 7 [7]. Am 2015 No 36, Sch 3 [9] [10]. Rep 2021 No 34, Sch 1[4].
pt 4, div 6 (ss 43EK–43ES): Ins 2000 No 109, Sch 1 [17]. Rep 2012 No 38, Sch 1 [29].
Part 4A
43F–43P  (Repealed)
pt 4A, div 1: Ins 1998 No 78, Sch 1 [5]. Rep 2015 No 5, Sch 8.7 [4].
s 43F: Ins 1998 No 78, Sch 1 [5]. Rep 2015 No 5, Sch 8.7 [4].
s 43G: Ins 1998 No 78, Sch 1 [5]. Am 2001 No 39, Sch 3 [2]. Rep 2015 No 5, Sch 8.7 [4].
ss 43H–43L: Ins 1998 No 78, Sch 1 [5]. Rep 2015 No 5, Sch 8.7 [4].
pt 4A, div 2: Ins 1998 No 78, Sch 1 [5]. Rep 2015 No 5, Sch 8.7 [4].
s 43M: Ins 1998 No 78, Sch 1 [5]. Subst 1999 No 35, Sch 1 [1]. Am 1999 No 85, Sch 1.11 [7] [8]; 2012 No 38, Sch 1 [30]. Rep 2015 No 5, Sch 8.7 [4].
s 43N: Ins 1998 No 78, Sch 1 [5]. Am 1999 No 35, Sch 1 [2]–[4]; 1999 No 85, Sch 1.11 [9] [10]; 2012 No 38, Sch 1 [31]. Rep 2015 No 5, Sch 8.7 [4].
s 43O: Ins 1998 No 78, Sch 1 [5]. Rep 2015 No 5, Sch 8.7 [4].
s 43P: Ins 1998 No 78, Sch 1 [5]. Am 1999 No 85, Sch 1.11 [11]; 2012 No 38, Sch 1 [24]. Rep 2015 No 5, Sch 8.7 [4].
Part 5 Powers and duties of network operators and retailers
pt 5, hdg: Subst 2000 No 109, Sch 1 [18]. Am 2012 No 38, Sch 1 [32].
Division 1 Acquisition of land
44   Acquisition of land
(1)  A network operator may acquire land (including an interest in land) for the purpose of exercising its functions under this or any other Act or law.
(2)  Land that a network operator is authorised to acquire under this section may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of this Act.
(3)  A network operator may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.
(4)    (Repealed)
s 44: Am 1997 No 20, Sch 1.3 [7]; 2000 No 88, Sch 2 [1]; 2015 No 5, Sch 8.7 [5].
Division 2 Powers and duties relating to electricity works
45   Erection and placement of electricity works
(1)  For the purpose of exercising its functions under this or any other Act or law, a network operator may carry out any of the following work—
(a)  work comprising the erection, installation or extension of electricity works on public land,
(b)  work on any land comprising or connected with the alteration, maintenance or removal of existing electricity works on any land,
(c)  work on public land that is connected with the erection, installation, extension, alteration, maintenance or removal of electricity works on any land.
(2)  Work carried out by a network operator for the purpose of exercising its functions under this or any other Act or law and comprising the erection, installation, extension, alteration, maintenance or removal of electricity works on any land is exempt from the requirement for an approval under the Local Government Act 1993, except in relation to buildings.
(3)    (Repealed)
(4)  However, no such work (other than routine repairs or maintenance work) may be carried out unless—
(a)  written notice of the proposal to carry out the work has been given to the local council, and
(b)  the local council has been given a reasonable opportunity (being not less than 40 days from the date on which the notice was given, or a shorter period agreed to in writing by the council) to make submissions to the network operator in relation to the proposal, and
(c)  the network operator has given due consideration to any submissions so made.
(5)  Subsection (4) does not apply to the carrying out of work to cope with emergencies.
(6)  In this section—
public land means—
(a)  a public road, or
(b)  a public reserve, or
(c)  Crown land or Crown managed land within the meaning of the Crown Land Management Act 2016, or
(d)  State forest, or
(e)  land under the control and management of a public or local authority,
but does not include—
(f)  any land (other than State forest) that is occupied under any lease or other arrangement for private purposes that confers a right to exclusive possession of the land, or
(g)    (Repealed)
s 45: Am 1997 No 20, Sch 1.3 [8]; 2015 No 5, Sch 8.7 [6] [7]; 2017 No 17, Sch 4.26 [1] [2]; 2021 No 34, Sch 1[5] [6].
46   Damage to be made good
(1)  If a public road or public reserve is damaged by any work carried out by a network operator, the local council or roads authority may require the network operator to make good the damage without delay.
(2)  If the network operator fails to carry out appropriate work in accordance with any such requirement, the local council or roads authority may carry out the work itself.
(3)  The cost of carrying out the work may be recovered by the local council or roads authority in a court of competent jurisdiction as a debt owed to it by the network operator.
47   Altering position of conduit
(1)  A network operator may serve a written notice on a person if—
(a)  the network operator needs an alteration to be made in the position of a conduit owned by the person, and
(b)  the alteration would not permanently damage the conduit or adversely affect its operation.
(2)  The notice—
(a)  must specify the work to be carried out, and
(b)  must specify a reasonable time within which the work is to be carried out, and
(c)  must include an undertaking by the network operator to pay the reasonable cost of carrying out the work.
(3)  If the work is not carried out as required by the notice, the network operator may carry out the work in a manner that does not permanently damage the conduit or adversely affect its operation.
(4)  In this section, conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals.
48   Interference with electricity works by trees
(1)  This section applies if a network operator has reasonable cause to believe that a tree situated on any premises—
(a)  could destroy, damage or interfere with its electricity works, or
(b)  could make its electricity works become a potential cause of bush fire or a potential risk to public safety.
(2)  In those circumstances, a network operator—
(a)  may serve a written notice on the owner or occupier of the premises requiring the owner to trim or remove the tree, or
(b)  in an emergency, may, at its own expense, trim or remove the tree itself.
(3)  A notice under subsection (2) (a)—
(a)  must specify the work to be carried out, and
(b)  must specify a reasonable time within which the work is to be carried out, and
(c)  must include an undertaking by the network operator to pay the reasonable cost of carrying out the work.
(4)  Subsection (3) (c) does not apply in either of the following circumstances—
(a)  if, after the electricity works were first laid or installed, an owner or occupier of the premises planted the tree, or caused or permitted the tree to be planted, in circumstances in which the owner or occupier ought reasonably to have known that destruction of, damage to or interference with the works would result,
(b)  the land in or on which the tree is located, and on or over which the works are located, was the subject of an easement for the benefit of the network operator (or a predecessor of the network operator) when the tree was planted.
(5)  If the work is not carried out as required by the notice, the network operator may carry out the work itself.
(6)  The cost of carrying out the work may be recovered by the network operator in a court of competent jurisdiction as a debt owed to it by the owner of the premises on which the tree is situated, but only in the circumstances referred to in subsection (4).
(7)  This section applies despite the existence of a tree preservation order or environmental planning instrument (other than a State environmental planning policy), but does not apply to any tree within a protected area or to any tree that is the subject of or is within an area that is the subject of—
(a)  an interim heritage order, or a listing on the State Heritage Register, under the Heritage Act 1977, or
(b)  an order in force under section 136 of the Heritage Act 1977, or
(c)  an interim protection order under the National Parks and Wildlife Act 1974, or
(d)  a protection conferred by any similar law.
(8)  Nothing done for the purpose of carrying out the work required by a notice under this section constitutes an offence against any law under which a tree preservation order or environmental planning instrument (other than a State environmental planning policy) relating to the land is made.
(9)  In this section—
protected area means an area that is within—
(a)  a national park or nature reserve within the meaning of the National Parks and Wildlife Act 1974, or
(b)  land that is reserved or zoned for environmental protection purposes under the Environmental Planning and Assessment Act 1979, or
(c)  a public reserve within the meaning of the Local Government Act 1993.
tree includes shrub and plant.
s 48: Am 1997 No 21, Sch 1 [13]; 1998 No 138, Sch 2.1 [1] [2]; 2015 No 5, Sch 8.7 [8].
49   Obstruction of electricity works
(1)  This section applies if a network operator has reasonable cause to believe that any structure or thing situated in, on or near its electricity works—
(a)  could destroy, damage or interfere with those works, or
(b)  could make those works become a potential cause of bush fire or a potential risk to public safety.
(2)  The network operator may serve a written notice on the person having control of the structure or thing requiring the person to—
(a)  modify or remove the structure or thing, or
(b)  do either of the following—
(i)  modify or remove the structure or thing,
(ii)  engage an accredited service provider to move the electricity works away from the structure or thing.
(2A)  Work undertaken in accordance with a requirement in a notice served under subsection (2) is at the expense of the person served with the notice.
(2B)  The network operator may, in an emergency, modify or remove the structure or thing itself, instead of serving a notice under subsection (2).
(3)  A notice under subsection (2)—
(a)  must specify the work to be carried out, and
(b)  must specify a reasonable time within which the work is to be carried out.
(4)  If the person fails to carry out the work in accordance with the requirement, the network operator may carry out the work itself.
(5)  If the network operator carries out the work after issuing a notice under subsection (2), the costs of—
(a)  carrying out the work, and
(b)  repairing any damage done to the network operator’s electricity works by the structure or thing,
may be recovered by the network operator in a court of competent jurisdiction as a debt owed to it by the person.
(6)  A network operator may apply for an injunction to prevent a structure or thing being placed in, on or near its electricity works.
(7)  A network operator may take action under this section even if the person having control of the structure or thing owns or occupies the land in, on or over which the network operator’s electricity works are situated.
(8)  Subsection (5) does not enable the network operator to recover costs from a person referred to in subsection (7) if the structure or thing was lawfully placed in its present position—
(a)  before the installation of the electricity works, or
(b)  with the agreement of the operator, or
(c)  in the case of electricity works to which section 53 applies—before 26 May 2006.
(9)  In the circumstances referred to in subsection (8)—
(a)  the costs referred to in subsection (5) are to be borne by the network operator, and
(b)  the network operator is liable to the owner of the structure or thing for any loss or damage suffered by the owner as a consequence of the work referred to in subsection (4).
s 49: Am 1996 No 121, Sch 1.3 [1]; 2006 No 28, Sch 1 [1] [2]; 2021 No 34, Sch 1[7]–[10].
49A   Excavation work affecting electricity works
(1)  This section applies if a network operator has reasonable cause to believe that the carrying out or proposed carrying out of excavation work in, on or near its electricity works—
(a)  could destroy, damage or interfere with those works, or
(b)  could make those works become a potential cause of bush fire or a potential risk to public safety.
(2)  In those circumstances, a network operator may serve a written notice on the person carrying out or proposing to carry out the excavation work requiring the person—
(a)  to modify the excavation work, or
(b)  not to carry out the excavation work, but only if the network operator is of the opinion that modifying the excavation work will not be effective in preventing the destruction or damage of, or interference with, the electricity works concerned or in preventing those works becoming a potential cause of bush fire or a potential risk to public safety.
(3)  A notice under subsection (2) must specify the excavation work that is to be modified or not carried out.
(4)  A network operator may recover the following costs in a court of competent jurisdiction as a debt owed to it by a person who carried out excavation work the subject of a notice under subsection (2)—
(a)  the costs incurred in replacing any of the network operator’s electricity works destroyed by the excavation work,
(b)  the costs incurred in repairing any damage to the network operator’s electricity works caused by the excavation work,
(c)  the costs incurred in remedying or mitigating any interference with the network operator’s electricity works caused by the excavation work.
(5)  A network operator may apply for an injunction to prevent the carrying out of excavation work in, on or near its electricity works.
(6)  A network operator may take action under this section even if the person carrying out the excavation work owns or occupies the land in, on or over which the network operator’s electricity works are situated.
s 49A: Ins 2009 No 31, Sch 1 [1].
50   Charges for placement of electricity works
No annual or other periodic or special charge is payable by a network operator to a local council or roads authority in respect of any electricity works located in a public reserve or public road or in respect of the space in a public reserve or public road that is occupied by any such works.
51   Ownership of electricity works
(1)  Electricity works are owned separately from the land in, on or over which they are situated and ownership of land in, on or over which electricity works are situated does not constitute ownership of those works.
(2)  Electricity works are not to be taken in execution of any judgment against a person under any process of a court other than a judgment against the owner of those works.
(3)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.
s 51: Am 2000 No 109, Sch 1 [19] [20]; 2009 No 17, Sch 3.6 [1]; 2012 No 38, Sch 1 [33] [34]; 2015 No 5, Sch 8.7 [9].
52   Interruption to electricity supply for maintenance
A network operator or retailer may interrupt the supply of electricity to a customer, at such reasonable times as the network operator or retailer determines—
(a)  for the purpose of inspecting, testing or carrying out repairs or maintenance work on its electricity works, or
(b)  for such other purpose as the network operator or retailer considers necessary for the safe and efficient operation of its electricity works.
s 52: Am 2000 No 109, Sch 1 [21]; 2012 No 38, Sch 1 [33].
53   Protection of certain electricity works
(1)  This section applies to all electricity works that, immediately before the commencement of the Electricity Supply Amendment (Protection of Electricity Works) Act 2006, were situated in, on or over land not owned by the network operator having control of those works, whether or not their presence, operation or use is supported by an agreement or other authority—
(a)  including any electricity works that, since that commencement, have been erected or installed on the same site for the purpose of repairing, replacing, modifying or upgrading those works, and
(b)  excluding any electricity works whose presence in, on or over the land is supported by a registered easement for the benefit of the network operator.
(2)  No action by the owner or occupier of the land lies against the network operator by reason of—
(a)  the presence in, on or over the land of electricity works to which this section applies, or
(b)  the operation or use of electricity works to which this section applies that are present in, on or over the land,
and, as between the owner or occupier of the land and the network operator, the presence of those works, and their operation and use, are taken to be lawful for all purposes.
(3)  Nothing in subsection (2) relieves a person from any civil liability for negligence (as defined by section 5 of the Civil Liability Act 2002) to which the person becomes subject as a consequence of the way in which any electricity works to which this section applies are operated or used, are maintained, repaired, replaced, modified or upgraded or are removed.
(4)  In this section, registered easement means an easement that is registered—
(a)  in the Register kept under the Real Property Act 1900, in the case of land under the provisions of that Act, or
(b)  in the General Register of Deeds kept under the Conveyancing Act 1919, in the case of any other land.
(5)  The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.
s 53: Rep 1997 No 20, Sch 1.3 [9]. Ins 2006 No 28, Sch 1 [3]. Am 2009 No 17, Sch 3.6 [2]; 2015 No 5, Sch 8.7 [10].
Division 2A Special powers for bush fire prevention
pt 5, div 2A: Ins 2014 No 70, Sch 1 [1].
53A   Definitions
In this Division—
aerial consumers mains means that part of an electrical installation consisting of overhead conductors and support structures between the main switchboard of an electrical installation and a support structure that is the connection point with the distribution system.
bush fire prone land means land that is bush fire prone land under the Environmental Planning and Assessment Act 1979 in any area of the State.
private land means any land that is not—
(a)  dedicated, or acquired for the purpose of dedication, under the Forestry Act 2012 or in respect of which the Forestry Corporation has obtained the benefit of a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919, or
(b)  dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or
(c)  vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Sydney Trains or Transport for NSW, or
(d)  within the catchment area of a water authority, or
(e)  unoccupied Crown land (being Crown land that is not held under a lease or licence or not vested in, or under the control of, trustees), or
(f)  land prescribed by the regulations as public land for the purposes of this definition.
vegetation means a tree, shrub or plant.
s 53A: Ins 2014 No 70, Sch 1 [1]. Am 2017 No 12, Sch 1.4 [1]; 2018 No 18, Sch 2.7 [1]; 2020 No 30, Sch 4.16.
53B   Application of Division
This Division applies only to bush fire prone land but does not prevent the taking of action under section 48 in relation to premises on bush fire prone land.
s 53B: Ins 2014 No 70, Sch 1 [1].
53C   Power to give directions for bush fire risk mitigation work on private land
(1)  A network operator may by a written notice given to the owner or occupier of any premises on bush fire prone land that is private land direct the owner of the premises to do bush fire risk mitigation work on vegetation or aerial consumers mains on the premises if the network operator has determined that—
(a)  the vegetation could make the network operator’s electricity works become a potential cause of bush fire, or
(b)  the vegetation fails to satisfy the requirements of any standard (adopted by the network operator for the purposes of reducing the risk of bush fire) as to required clearances between vegetation and electricity works or aerial consumers mains, or
(c)  the vegetation could make aerial consumers mains on the premises become a potential cause of bush fire, or
(d)  a fault or defect in the aerial consumers mains could make them become a potential cause of bush fire.
(2)  The work that can be directed to be done as bush fire risk mitigation work is—
(a)  for vegetation, the trimming or removal of the vegetation, or
(b)  for a fault or defect in aerial consumers mains, the repair of the fault or defect.
s 53C: Ins 2014 No 70, Sch 1 [1].
53D   Responsibility for cost of bush fire risk mitigation work under direction
(1)  The owner of premises is responsible for the cost of bush fire risk mitigation work that is the subject of a direction to the owner under this Division unless the network operator is responsible for the cost of the work.
(2)  The network operator is responsible for the cost of the following bush fire risk mitigation work that is the subject of a direction under this Division—
(a)  work on vegetation that the network operator has determined could make the network operator’s electricity works become a potential cause of bush fire,
(b)  work on vegetation that the network operator has determined fails to satisfy the requirements of any standard (adopted by the network operator for the purposes of reducing the risk of bush fire) as to required clearances between vegetation and the network operator’s electricity works.
(3)  The network operator is not responsible for the cost of work in either of the following circumstances—
(a)  if, after the electricity works were first laid or installed, an owner or occupier of the premises planted the vegetation, or caused or permitted the vegetation to be planted, in circumstances in which the owner or occupier ought reasonably to have known that destruction of, damage to or interference with the works would result,
(b)  the land in or on which the vegetation is located, and on or over which the works are located, was the subject of an easement for the benefit of the network operator (or a predecessor of the network operator) when the vegetation was planted.
s 53D: Ins 2014 No 70, Sch 1 [1]. Am 2015 No 5, Sch 8.7 [11].
53E   Contents of direction
(1)  A direction under this Division to the owner of premises to do bush fire risk mitigation work is to specify the following—
(a)  the particular work required to be done (the required work) and a statement of the reason the work is required to be done,
(b)  that the owner must do the required work within 60 days after the direction is given and must within 30 days after the direction is given notify the network operator (in the manner required by the direction) that the required work will be done within that 60 days,
(c)  that the owner may (as an alternative to doing the required work) comply with the direction by requesting the network operator within 30 days after the direction is given to disconnect the supply of electricity to the premises,
(d)  that the network operator is authorised to enter the premises and do the required work on behalf of the owner if the direction is not complied with,
(e)  if the network operator is responsible for the cost of the work—that the network operator undertakes to pay the reasonable cost of doing the work,
(f)  if the network operator is not responsible for the cost of the work—that the network operator can recover the reasonable cost of doing the work if it is not done by the owner.
(2)  The direction must also include the following—
(a)  to the extent that any standard adopted by the network operator is relevant to the required work—information sufficient to identify the standard and facilitate access to its contents,
(b)  a statement that the network operator has a policy for assisting persons who are experiencing difficulties due to hardship in connection with payment of the cost of doing the work required by the direction,
(c)  information that explains how a dispute or complaint about the direction can be referred to the Energy and Water Ombudsman NSW.
(3)  The regulations can make provision for or with respect to the form and contents of a direction, including provision for or with respect to—
(a)  prescribing a standard form of direction, or
(b)  specifying standard wording for any aspect of the direction, or
(c)  requiring the inclusion in a direction of matter in addition to the matter required by this section.
ss 53E–53G: Ins 2014 No 70, Sch 1 [1].
53F   Compliance with direction
(1)  To comply with a direction under this Division, the owner of the premises must—
(a)  within 30 days after the direction was given either notify the network operator that the required work will be done within 60 days after the direction was given or request the network operator to disconnect the supply of electricity to the premises, and
(b)  (having notified the network operator that the work will be done within 60 days after the direction was given) do the required work within that 60 days.
Note—
The owner must within 30 days after the direction is given either notify the network operator that the required work will be done or request disconnection. If the owner does neither of those things within that 30 days, the network operator can take action immediately for a failure to comply with the direction.
(2)  If the owner of premises does not comply with the direction, the network operator may do the required work and (unless the network operator is responsible for the cost of the work) may recover as a debt owed by the owner the reasonable cost of doing the work in an efficient and competent manner.
(3)  Any dispute about the reasonable cost of doing the work may be referred to the Energy and Water Ombudsman NSW for resolution.
(4)  A network operator can by notice in writing to the owner or occupier of premises, increase any period for compliance with a direction.
ss 53E–53G: Ins 2014 No 70, Sch 1 [1].
53G   Compensation
No compensation is payable by a network operator for or in connection with the exercise in good faith and without negligence of a function under this Division.
ss 53E–53G: Ins 2014 No 70, Sch 1 [1].
53H   Effect of other laws
(1)  An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the doing on any land of work that is required to be done by a direction under this Division.
(2)  Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of the doing on any land of work that is required to be done by a direction under this Division.
(3)  Work that is required to be done by a direction under this Division may be done on land despite any requirement for an approval, consent or other authorisation for the work made by the Biodiversity Conservation Act 2016, Part 5A of the Local Land Services Act 2013, the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act.
s 53H: Ins 2014 No 70, Sch 1 [1]. Am 2018 No 25, Sch 3.6.
53I   Hardship policy for cost recovery
(1)  A network operator must have and implement a hardship policy that has been approved by the Tribunal for assisting persons who are experiencing difficulties due to hardship in connection with payment of the cost of works done by the network operator when the person fails to comply with a direction under this Division.
(2)  The policy must provide flexible payment options for the payment of the cost of works that the network operator is entitled to recover from a person under this Division.
(3)  The policy must be publicly available on the network operator’s website.
s 53I: Ins 2014 No 70, Sch 1 [1]. Am 2015 No 5, Sch 8.7 [12].
Division 3 Powers of entry
54   Powers of entry
(1)  An authorised officer of a network operator may enter any premises for the purpose of exercising any function conferred or imposed on a network operator by or under this or any other Act or law, including—
(a)  carrying out preliminary investigations in connection with the proposed installation or extension of electricity works, or
(b)  installing, extending, maintaining, repairing or removing electricity works, or
(c)  reading electricity meters, or
(d)  checking if the network operator’s conditions relating to tariffs and the use of electricity are being complied with, or
(e)  ascertaining whether an offence against this Act or the regulations has been committed, or
(f)  inspecting or disconnecting an electrical installation that the network operator is required or permitted to inspect or disconnect by or under this or any other Act or law, or
(g)  monitoring any excavation work in accordance with regulations under section 63Z, or
(h)  exercising any function conferred on the network operator by section 48, 49 or 49A or Division 2A.
(1A)  An authorised officer of a retailer may enter the premises of a customer for the following purposes—
(a)  reading, testing, maintaining, inspecting or altering any meter installed at the premises,
(b)  calculating or measuring energy supplied or taken at the premises,
(c)  checking the accuracy of metered consumption at the premises,
(d)  replacing meters,
(e)  any other purpose prescribed by the regulations relating to metering.
(2)  A power of entry to premises under this section may be exercised only during daylight hours except—
(a)  in an emergency, or
(b)  in the case of an authorised officer of a retailer—if there is a problem with a meter on the premises that poses a risk to safety.
s 54: Am 1997 No 20, Sch 1.3 [10]; 2000 No 109, Sch 1 [22] [23]; 2004 No 4, Sch 2 [2]; 2009 No 31, Sch 1 [2]; 2012 No 38, Sch 1 [35] [36]; 2014 No 70, Sch 1 [2]; 2016 No 8, Sch 1 [6] [7].
55   Notice of entry
(1)  Before an authorised officer of a network operator or retailer exercises a power of entry under this Division, the network operator or retailer concerned must give the owner or occupier of the land written notice of the intention to enter the land.
(2)  The notice must specify the day on which the authorised officer intends to enter the land and must be given before that day.
(3)  This section does not require notice to be given—
(a)  if entry to the land is made with the consent of the owner or occupier of the land, or
(b)  if entry is required for the sole purpose of reading an electricity meter, or
(c)  if entry is required in an emergency, or
(d)  if entry is for the purpose of doing work in the exercise of a function under Division 2A.
s 55: Am 2000 No 109, Sch 1 [24] [25]; 2012 No 38, Sch 1 [37]; 2014 No 70, Sch 1 [3].
56   Use of force
(1)  Reasonable force may be used for the purpose of gaining entry to any land (other than such part of a building as is being used for residential purposes) under a power conferred by this Division, but only if authorised by the network operator or retailer concerned in accordance with this section.
(2)  The authority—
(a)  must be in writing, and
(b)  must be given in respect of the particular entry concerned, and
(c)  must specify the circumstances that must exist before force may be used.
s 56: Am 2000 No 109, Sch 1 [26]; 2012 No 38, Sch 1 [38].
57   Notification of use of force or urgent entry
(1)  An authorised officer—
(a)  who uses force for the purpose of gaining entry to land, or
(b)  who enters land in an emergency without giving written notice to the owner or occupier of the land,
must promptly advise the network operator or retailer concerned of that fact.
(2)  The network operator or retailer must give notice of the entry to such persons or authorities as appear to the network operator or retailer to be appropriate in the circumstances.
s 57: Am 2000 No 109, Sch 1 [27] [28]; 2012 No 38, Sch 1 [39].
58   Care to be taken
(1)  In the exercise of a power under this Division, an authorised officer must do as little damage as possible.
(2)  As far as practicable, entry onto fenced land is to be made through an existing opening in the enclosing fence or, if entry through an existing opening is not practicable, through a new opening.
(3)  Any new opening is to be properly closed when the need for entry ceases.
(4)  If, in the exercise of a power under this Division, any pit, trench, hole or bore is made, the network operator or retailer concerned must, if the owner or occupier of the land so requires—
(a)  fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and
(b)  without unnecessary delay, fill it up or level it or sufficiently slope it down.
s 58: Am 2000 No 109, Sch 1 [29]; 2012 No 38, Sch 1 [40].
59   Recovery of cost of entry and inspection
If an authorised officer enters any land for the purpose of making an inspection and, as a result of the inspection, the network operator or retailer concerned requires any work to be carried out on the land, the network operator or retailer may recover the reasonable costs of the entry and inspection from the owner or occupier of the land.
s 59: Am 2000 No 109, Sch 1 [30] [31]; 2012 No 38, Sch 1 [41].
60   Compensation
The network operator or retailer concerned must pay compensation to the owner or occupier of any land in respect of which a power has been exercised under this Division for any loss or damage arising from the exercise of the power but is not so liable to the extent to which the loss or damage arises from—
(a)  work done for the purposes of an inspection which reveals that there has been a contravention by the owner or occupier, as the case requires, of any provision of this Act or the regulations, or
(b)  work done in the exercise of a function under Division 2A.
s 60: Am 1997 No 21, Sch 1 [14] [15]; 2000 No 109, Sch 1 [32]; 2012 No 38, Sch 1 [42]. Subst 2014 No 70, Sch 1 [4].
61   Certificates of authority to enter land
(1)  A power of entry under this Division may not be exercised by an authorised officer unless the authorised officer—
(a)  is in possession of a certificate of authority issued by the network operator or retailer concerned, and
(b)  produces the certificate when required to do so by the owner or occupier of the land.
(2)  The certificate of authority—
(a)  must state that it is issued under this Act, and
(b)  must give the name of the person to whom it is issued, and
(c)  must describe the nature of the powers conferred and the source of those powers, and
(d)  must state the date (if any) on which it expires, and
(e)  must describe the kind of land to which the power extends, and
(f)  must be under the seal of the network operator or retailer or must bear the signature of the principal officer of the network operator or retailer, of a prescribed officer of the network operator or retailer or of an officer belonging to a prescribed class of officers of the network operator or retailer.
s 61: Am 2000 No 109, Sch 1 [33] [34]; 2012 No 38, Sch 1 [43].
62   Entry to residential premises
A power of entry conferred by this Division is not exercisable in relation to such part of a building as is used for residential purposes except—
(a)  with the consent of the occupier of that part of the premises, or
(b)  for the sole purpose of reading an electricity meter, or
(c)  under the authority conferred by a warrant of entry.
63   Warrants of entry
(1)  A network operator or retailer may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 if it is of the opinion that it is necessary for an authorised officer within the meaning of this Act to enter and inspect any land (including any building used for residential purposes) for the purposes of this Act.
(2)  An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant of entry authorising an authorised officer named in the warrant to enter and inspect the land for the purposes of this Act.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a warrant of entry under this section in the same way as it applies to a search warrant under that Act.
(4)    (Repealed)
s 63: Am 2000 No 109, Sch 1 [35]; 2002 No 103, Sch 4.27 [1]–[4]; 2012 No 38, Sch 1 [44].
63A   Other powers of entry unaffected
This Division does not apply to any power of entry that an authorised officer has apart from this Division, such as a power arising under a customer connection contract or customer retail contract.
s 63A: Ins 1997 No 21, Sch 1 [16]. Am 2000 No 109, Sch 1 [36]; 2012 No 38, Sch 1 [45].
Part 5A Market operations
pt 5A: Ins 2000 No 109, Sch 1 [37].
63B   Definition
In this Part—
market operations rule means a rule approved under section 63C.
s 63B: Ins 2000 No 109, Sch 1 [37].
63C   Market operations rules
(1)  The Minister may approve rules for or with respect to the following matters—
(a)    (Repealed)
(b)  procedures for measuring electricity consumption or generation of customers,
(c)    (Repealed)
(d)  provision of services and equipment relating to the measurement and control of customers’ electricity consumption or generation and persons who may or may not provide such services,
(e)  requirements for equipment used to measure and control customers’ electricity consumption or generation,
(f)  the circumstances in which ownership of any such equipment may be transferred and the procedures for the transfer,
(g), (h)    (Repealed)
(i)  any other matter prescribed by the regulations,
(j)  matters ancillary to or consequential on the matters set out in paragraphs (b), (d)–(f) and (i).
(2)  A rule may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or any other publication, whether of the same or of a different kind.
(3)  A rule may—
(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body.
(4)  The Minister may from time to time approve amendments to the rules or the revocation of rules.
(5)  If a rule, or a rule amending or revoking a rule, is approved by the Minister—
(a)  written notice of the approval of the rule must be published in the Gazette, and
(b)  the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and
(c)  the Minister must make available a copy of the rule to each retailer or distributor.
(6)  A rule must be consistent with this Act and the regulations. A rule is unenforceable to the extent of any such inconsistency.
(7)  Subject to subsection (6), a rule may be approved for the purposes of both this Act and any other Act or law.
s 63C: Ins 2000 No 109, Sch 1 [37]. Am 2001 No 18, Sch 2 [1]; 2009 No 101, Sch 1 [5]; 2012 No 38, Sch 1 [46]–[48].
63D   Obligations under rules
(1)  A person must not contravene the market operations rules.
Maximum penalty—200 penalty units.
(2)    (Repealed)
(3)  It is a condition of a distributor’s licence that the distributor must comply with the market operations rules.
(4)  Subsection (1) does not apply to a person in the person’s capacity as a customer of a retailer.
s 63D: Ins 2000 No 109, Sch 1 [37]. Am 2012 No 38, Sch 1 [49] [50].
63E   (Repealed)
s 63E: Ins 2000 No 109. Sch 1 [37]. Am 2012 No 38, Sch 1 [51].
Part 5B
63F–63J
pt 5B: Ins 2000 No 109, Sch 1 [37]. Rep 2012 No 38, Sch 1 [52].
s 63F: Ins 2000 No 109, Sch 1 [37]. Rep 2012 No 38, Sch 1 [52].
s 63G: Ins 2000 No 109, Sch 1 [37]. Am 2001 No 18, Sch 2 [2]. Rep 2012 No 38, Sch 1 [52].
ss 63H–63J: Ins 2000 No 109, Sch 1 [37]. Rep 2012 No 38, Sch 1 [52].
Part 5C Removal of electricity structures
pt 5C: Ins 2004 No 4, Sch 2 [3].
63K   Secretary may direct distributor to remove structure
(1)  The Secretary may, by notice in writing served on a distributor, direct the distributor to remove or relocate an electricity structure specified in the notice if—
(a)  the structure is erected within the distributor’s distribution district, and
(b)  the structure is on or adjacent to a public road that is—
(i)  a traffic route, or
(ii)  a public road that the Secretary has, for the purpose of traffic safety and having regard to the volume and nature of the vehicular traffic carried on it, determined requires the removal or relocation of the structure.
(2)  A distributor must comply with a notice served on it under subsection (1).
(3)  In this section—
electricity structure means a structure erected or maintained by a distributor for 1 or more of the following purposes—
(a)  the generation of electricity,
(b)  the storage, transmission or distribution of electricity,
(c)  public lighting.
s 63K: Ins 2004 No 4, Sch 2 [3]. Am 2014 No 88, Sch 1.6 [4]; 2021 No 34, Sch 1[11].
Part 5D Electricity safety
pt 5D: Ins 2004 No 4, Sch 2 [4].
pt 5D, divs 1 (s 63L): Ins 2004 No 4, Sch 2 [4].
Division 1 General
63L   Interpretation
(1)  For the purposes of this Part, place includes land (whether or not covered with water), premises, buildings and other structures.
(2)  For the purposes of this Part, a person or thing is in a place if the person or thing is located in, on, over or under the place.
Division 2 Inspectors
pt 5D, div 2: Ins 2004 No 4, Sch 2 [4].
63M   Inspectors
(1)  The Tribunal may appoint any person as an inspector for the purposes of any or all of the provisions of this Act or the regulations.
(1A)    (Repealed)
(2)  The Tribunal may at any time and for any reason revoke a person’s appointment under subsection (1).
(3)  An inspector is to be provided by the Tribunal with a certificate of identification.
(4)  An inspector must, when exercising in any place any function of the inspector under this Act or the regulations, produce the inspector’s certificate of identification to any person apparently in charge of the place who requests its production.
s 63M: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13] [14]; 2016 No 8, Sch 1 [8].
63N   Obstruction of inspectors
(1)  A person must not—
(a)  without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an inspector under this Act or the regulations, or
(b)  provide information or give evidence in purported compliance with a requirement made or question asked by an inspector under this Act or the regulations knowing the information or evidence to be false or misleading in a material particular, or
(c)  wilfully delay, hinder or obstruct an inspector in the exercise of the inspector’s functions under this Act or the regulations, or
(d)  falsely represent himself or herself to be an inspector.
Maximum penalty—500 penalty units (in the case of a corporation) and 150 penalty units (in any other case).
(2)    (Repealed)
(3)  It is sufficient defence to a prosecution for an offence arising under subsection (1) (a) by reason of the failure of a defendant to answer a question asked by an inspector under a power conferred by this Act or the regulations if the defendant satisfies the court that the defendant did not know, and could not with reasonable diligence ascertain, the answer to the question.
s 63N: Ins 2004 No 4, Sch 2 [4]. Am 2016 No 8, Sch 1 [9].
Division 3 Electrical equipment
pt 5D, div 3: Ins 2004 No 4, Sch 2 [4].
63O   (Repealed)
s 63O: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13] [15]. Rep 2016 No 8, Sch 1 [10].
63P   Examination and testing of electricity delivery equipment
(1)  The Tribunal may from time to time cause any electricity delivery equipment, and the operation of that equipment, to be examined and tested by an inspector for the purpose of determining whether the equipment can be, and is being, operated—
(a)  safely, and
(b)  in accordance with any relevant safety management system.
(2)  A relevant safety management system is any system of the network operator concerned that is for the purpose of ensuring the safe operation of the network operator’s transmission or distribution system.
(3)  An inspector may enter any place at any reasonable time for the purpose of exercising functions under this section in connection with electricity delivery equipment that is in the place.
s 63P: Ins 2004 No 4, Sch 2 [4]. Subst 2015 No 5, Sch 8.7 [16].
63Q   Orders prohibiting the unsafe operation of electricity delivery equipment
(1)  If the Minister is satisfied that electricity delivery equipment cannot be operated safely, the Minister may, by order served on the network operator that operates or proposes to operate the equipment, prohibit the operation of the equipment.
(2)  An order under this section may permanently prohibit the operation of the electricity delivery equipment concerned or prohibit the operation of the equipment until such time as it is repaired or altered, or its operation is rectified, to the satisfaction of the Minister.
(3)  The Minister may make an order under this section only on the recommendation of the Tribunal.
(4)  A person must not use or operate any electricity delivery equipment in contravention of an order made under this section.
Maximum penalty—7,500 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case).
s 63Q: Ins 2004 No 4, Sch 2 [4]. Am 2012 No 38, Sch 1 [53]. Subst 2015 No 5, Sch 8.7 [16]. Am 2016 No 8, Sch 1 [11].
Division 4 Accident reporting and investigation
pt 5D, div 4: Ins 2004 No 4, Sch 2 [4].
63R   Notification of serious electricity works accidents
(1)  A serious electricity works accident must be notified in accordance with subsection (2) to the Tribunal by the distributor or transmission operator that owns, controls or operates the distribution system or transmission system of which the electricity works concerned forms part.
Maximum penalty—500 penalty units.
(2)  A notice of an accident must be given within 7 days after the accident in such manner as may be prescribed by the regulations.
(3)  The regulations may exclude a person, or a person belonging to a class of persons, prescribed by the regulations from any requirement under this section to notify the Tribunal of a serious electricity works accident.
(4)  This section does not apply to a serious electricity works accident involving a motor vehicle accident on land not owned or controlled by a network operator if—
(a)  a fault or failure in electricity works did not contribute to the motor vehicle accident, and
(b)  electricity did not contribute to an injury or death.
s 63R: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13] [17]; 2021 No 34, Sch 1[12].
63S   Investigation of serious electricity works accidents
The Tribunal may arrange for an inspector to investigate and report to the Tribunal concerning a serious electricity works accident, whether or not notice of the accident is given to the Tribunal.
s 63S: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13].
63T   Powers of inspectors
(1)  For the purposes of this Division, an inspector may, in any place where a serious electricity works accident has or may reasonably be expected to have occurred do any one or more of the following—
(a)  enter and inspect the place,
(b)  examine and test any electrical installation or other electrical equipment,
(c)  take photographs,
(d)  take for analysis a sample of any substance or thing that in the inspector’s opinion may relate to the accident,
(e)  require any person in the place to produce any record that may be of relevance to the occurrence of the accident,
(f)  take copies of, or extracts or notes from, any such record,
(g)  require any person in the place to answer questions or otherwise furnish information relating to the accident,
(h)  require the owner or occupier of the 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.
(2)  If the Tribunal believes on reasonable grounds that there are in any place documents evidencing conduct in connection with a serious electricity works accident in contravention of this Act or the regulations, an inspector may, with the written authority of the Tribunal, enter the place, inspect any documents and make copies of them or take extracts from them.
(3)  An inspector may not exercise the inspector’s functions under this section in relation to a part of any premises being used for residential purposes except—
(a)  with the permission of the occupier of that part of the premises, or
(b)  under the authority conferred by a search warrant issued under this Part.
s 63T: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13].
63U   Interference with site of serious electricity works accident
(1)  A person must not disturb or interfere with the site of a serious electricity works accident before it has been inspected by an inspector except—
(a)  to make it safe, or
(b)  with the permission of an inspector, or
(c)  as provided by the regulations.
(2)  This section does not apply to a serious electricity works accident involving a motor vehicle accident on land not owned or controlled by a network operator if—
(a)  a fault or failure in electricity works did not contribute to the motor vehicle accident, and
(b)  electricity did not contribute to an injury or death.
Maximum penalty—500 penalty units (in the case of corporations) and 250 penalty units (in any other case).
s 63U: Ins 2004 No 4, Sch 2 [4]. Am 2021 No 34, Sch 1[13].
63V   Publication of details of serious electricity works accidents
(1)  The Tribunal may publish such details of serious electricity works accidents as the Tribunal considers necessary in the interests of public information and safety.
(2)  The Minister, the Tribunal, a member or officer of the Tribunal or an inspector is not liable to any claim or action arising from any matter published under this section.
s 63V: Ins 2004 No 4, Sch 2 [4]. Am 2015 No 5, Sch 8.7 [13] [18].
Division 5 Enforcement
pt 5D, div 5: Ins 2004 No 4, Sch 2 [4].
63W   Search warrants
(1)  An inspector may apply to an authorised officer for a search warrant in respect of any place if the inspector has reasonable grounds for believing that—
(a)    (Repealed)
(b)  a serious electricity works accident has occurred in the place, or
(c)  a provision of this Part or the regulations made for the purposes of this Part has been or is being contravened in the place.
(2)  An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an inspector named in the warrant—
(a)  to enter the place, and
(b)  to search the place for evidence of the occurrence of a serious electricity works accident.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  In this section—
authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002.
s 63W: Ins 2004 No 4, Sch 2 [4]. Am 2004 No 4, Sch 4.4 [1]–[3]; 2016 No 8, Sch 1 [12].
Part 5E Protection of underground electricity power lines
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63X   Definitions
In this Part, designated information provider means—
(a)  Dial Before You Dig NSW/ACT Incorporated, or
(b)  if another person or body is prescribed by the regulations for the purposes of this definition, that other person or body.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63Y   Provision of information on underground electricity power lines by network operators
(1)  It is a condition of a distributor’s licence that the distributor must—
(a)  be a member of the designated information provider, and
(b)  comply with any obligations imposed by that membership.
(2)  The regulations may make provision for or with respect to the provision of information by network operators in respect of underground electricity power lines, including (but not limited to) the provision of such information in connection with a request for information under section 63Z.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63Z   Requirements in relation to carrying out of certain excavation work
(1)  A person must not commence to carry out excavation work to which this section applies, or authorise such excavation work to be commenced, unless the person has first—
(a)  contacted the designated information provider and requested information as to the location and type of any underground electricity power lines in the vicinity of the proposed work, and
(b)  complied with any reasonable procedures of the designated information provider as to the manner of contacting the designated information provider and the information to be provided by the person in connection with the person’s request for information, and
(c)  allowed a reasonable period for the requested information to be provided.
Maximum penalty—20 penalty units.
(2)  Subsection (1) does not require a person to whom that subsection applies to comply with the requirements of that subsection in relation to excavation work if another person to whom that subsection applies has already complied with those requirements in relation to that excavation work.
(3)  A person must not carry out excavation work to which this section applies, or authorise such excavation work to be carried out, unless the person has ensured that any requirements of the regulations in relation to the carrying out of the work are complied with.
Maximum penalty—20 penalty units.
(4)  The regulations may make provision for or with respect to the following—
(a)  prescribing requirements in relation to the carrying out of excavation work to which this section applies,
(b)  requiring notification to be given to a specified person or body, or person or body of a specified class, in relation to the carrying out of excavation work to which this section applies,
(c)  the monitoring of excavation work to which this section applies,
(d)  what constitutes reasonable procedures for the purposes of subsection (1),
(e)  what constitutes a reasonable period for requested information to be provided for the purposes of subsection (1).
(5)  This section applies to excavation work in an area, and of a kind, prescribed by the regulations.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63ZA   Notification of damage to underground electricity power lines
(1)  A person must, as soon as practicable after becoming aware that any action of the person or any action authorised by the person has damaged an underground electricity power line, notify the network operator that owns the power line of the damage.
Maximum penalty—20 penalty units.
(2)  The regulations may make provision for the manner in which a person must notify for the purposes of subsection (1).
(3)  Subsection (1) does not require a person to notify the network operator of the damage concerned if another person to whom that subsection applies has already notified the network operator of the damage.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63ZB   Orders for costs, expenses and compensation at time offence proved
(1)  This section applies where a court convicts a person of an offence against this Part or section 65.
(2)  The court may, if it appears to the court that a network operator has, by reason of the commission of the offence—
(a)  suffered loss or damage to its electricity works, or
(b)  incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,
order the offender to pay to the network operator the costs and expenses so incurred, or compensation for the loss or damage so suffered, as the case may be, in such amount as is fixed by the order.
(3)  A court may not make an order under subsection (2) for the payment of an amount that exceeds the amount for which an order may be made by the court when exercising jurisdiction under the Civil Procedure Act 2005. An order made by the court is enforceable as if it were an order made by the court when exercising jurisdiction under that Act.
(4)  Orders may be made under this section in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence concerned.
(5)  Orders may be made under this section regardless of whether any penalty is imposed, or other action taken, in relation to the offence concerned.
(6)  In this section—
the court means the court that convicts a person of the offence concerned.
the offender means the person who is convicted of the offence.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
63ZC   Civil liability of designated information provider
(1)  This section applies to the following persons—
(a)  the designated information provider, any officer or employee of the designated information provider or any person acting on behalf of the designated information provider,
(b)  a network operator, any officer or employee of the network operator or any person acting on behalf of the network operator.
(2)  A person to whom this section applies does not incur any civil monetary liability for any act or omission in connection with a request for information under section 63Z or the provision of information in compliance or purported compliance with the regulations under section 63Y unless the act or omission is done or made in bad faith or through negligence.
(3)  The civil monetary liability for an act or omission of a kind referred to in subsection (2) done or made through negligence may not exceed the maximum amount prescribed by the regulations.
(4)  For the purposes of subsection (3), the regulations may—
(a)  prescribe maximum amounts that are limited in their application to persons, events, circumstances, losses or periods specified in the regulations, and
(b)  prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply, and
(c)  prescribe the manner in which a maximum amount is to be divided amongst claimants.
(5)  A person to whom this section applies may enter into an agreement with another person varying or excluding the operation of a provision of this section and, to the extent of that agreement, that provision does not apply.
(6)  This section does not apply to any liability of an officer or employee of a person to whom this section applies to the person.
(7)  In this section—
civil monetary liability means liability to pay damages or compensation or any other amount in a civil proceeding, but does not include the costs of proceedings.
pt 5E (ss 63X–63ZC): Ins 2009 No 31, Sch 1 [3].
Part 6 Offences
Division 1 General offences
64   Theft of electricity
(1)  A person must not divert or use electricity from a generating, transmission or distribution system unless authorised to do so by 1 or more of the following—
(a)  a wholesale supply agreement,
(b)  a customer retail contract,
(c)  a contract, agreement or other arrangement prescribed by the regulations.
Maximum penalty—
(a)  for a corporation—2,000 penalty units, or
(b)  for an individual—100 penalty units or 5 years imprisonment, or both.
(2)  An offence under this section that is committed by an individual is an indictable offence.
(3)  Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an indictable offence under this section.
(4)  Section 185 does not apply to an indictable offence under this section.
Note—
Offences by corporations are to be dealt with summarily (see section 185 (1) and (2)).
s 64: Am 2006 No 57, Sch 2.1; 2008 No 2, Sch 1 [1] [2]; 2009 No 36, Sch 1 [6]; 2012 No 38, Sch 1 [54]; 2021 No 34, Sch 1[14].
65   Interference with electricity works
(1)  A person must not interfere with a network operator’s or retailer’s electricity works unless authorised to do so by the network operator or retailer concerned.
Maximum penalty—
(a)  in the case of a corporation—4,000 penalty units, or
(b)  in any other case—200 penalty units or imprisonment for 5 years (or both).
(2)  An offence under this section that is committed by an individual is an indictable offence.
(3)  Chapter 5 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an indictable offence under this section.
(4)  Section 185 does not apply to an indictable offence under this section.
Note—
Offences by corporations are to be dealt with summarily (see section 185 (1) and (2)).
s 65: Am 2000 No 109, Sch 1 [38] [39]; 2006 No 57, Sch 2.1; 2009 No 31, Sch 1 [4] [5]; 2010 No 119, Sch 2.18 [1] [2]; 2012 No 38, Sch 1 [55] [56].
65A   Entering, climbing or being on electricity works
(1)  A person must not enter, climb or be on a network operator’s or retailer’s electricity works unless authorised to do so by the network operator or retailer concerned.
Maximum penalty—10 penalty units or 3 months imprisonment (or both).
(2)  A person is not guilty of an offence under this section if the person establishes that he or she had a reasonable excuse for entering, climbing or being on the electricity works or entered, climbed or was on the electricity works for a lawful purpose.
s 65A: Ins 2008 No 2, Sch 1 [3]. Am 2012 No 38, Sch 1 [57] [58].
66   Interference with electricity meters
A person must not alter or otherwise interfere with a meter that is connected to a distributor’s distribution system unless authorised to do so under this Act, the regulations or any other energy laws (within the meaning of the National Energy Retail Law (NSW)).
Maximum penalty—
(a)  in the case of a corporation—2,000 penalty units, or
(b)  in any other case—100 penalty units or imprisonment for 2 years (or both).
s 66: Am 2006 No 57, Sch 2.1; 2016 No 8, Sch 1 [13].
67   Interference with distributor’s seals
A person must not alter or otherwise interfere with any seal that has been attached to an electrical installation by a distributor unless authorised to do so by the distributor.
Maximum penalty—
(a)  in the case of a corporation—2,000 penalty units, or
(b)  in any other case—100 penalty units or imprisonment for 2 years (or both).
ss 67–70: Am 2006 No 57, Sch 2.1.
68   Unauthorised connections
A person must not connect an electrical installation to a distributor’s distribution system unless authorised to do so by the distributor.
Maximum penalty—
(a)  in the case of a corporation—2,000 penalty units, or
(b)  in any other case—100 penalty units or imprisonment for 2 years (or both).
ss 67–70: Am 2006 No 57, Sch 2.1.
69   Unauthorised increase in capacity of connections
A person must not increase the capacity of an existing connection to a distributor’s distribution system unless authorised to do so by the distributor.
Maximum penalty—
(a)  in the case of a corporation—2,000 penalty units, or
(b)  in any other case—100 penalty units or imprisonment for 2 years (or both).
ss 67–70: Am 2006 No 57, Sch 2.1.
70   Unauthorised alterations and additions to electrical installations
A person must not alter or add to an electrical installation that is connected to a distributor’s distribution system so as to cause the supply of electricity to the installation or any part of it to be incorrectly metered unless authorised to do so by the distributor.
Maximum penalty—
(a)  in the case of a corporation—2,000 penalty units, or
(b)  in any other case—100 penalty units or imprisonment for 2 years (or both).
ss 67–70: Am 2006 No 57, Sch 2.1.
71   Obstruction of authorised officers
A person must not—
(a)  prevent an authorised officer from exercising any function conferred or imposed on the authorised officer under this Act, or
(b)  hinder or obstruct an authorised officer in the exercise of any such function, or
(c)  impersonate an authorised officer.
Maximum penalty—200 penalty units (in the case of a corporation) and 50 penalty units (in any other case).
Division 2
72  (Repealed)
pt 6, div 2: Rep 2012 No 38, Sch 1 [59].
s 72: Am 2000 No 109, Sch 1 [40] [41]. Rep 2012 No 38, Sch 1 [59].
Division 3 Supplementary orders
73   Local Court may order disconnection and discontinuance of electricity supply
(1)  If the Local Court finds a person guilty of an offence under Division 1, the Local Court may make either or both of the following orders—
(a)  an order that the premises to which the offence relates be disconnected from the distribution system of the distributor concerned, or
(b)  an order that the supply of electricity to those premises be discontinued.
(2)  An order under this section has effect regardless of the provisions of any customer connection contract, customer retail contract or wholesale supply arrangement.
(3)  An order under this section has effect despite any other law.
s 73: Am 2007 No 94, Sch 1.36 [1]; 2012 No 38, Sch 1 [60] [61].
74   (Repealed)
s 74: Am 2007 No 94, Sch 1.36 [2]. Rep 2012 No 38, Sch 1 [62].
75   Court may order payment
If the Local Court finds a person guilty of an offence under section 64, the Court may make an order directing the person to pay the amount the Court considers appropriate for the electricity diverted or used in the commission of the offence.
s 75: Am 2007 No 94, Sch 1.36 [3]; 2012 No 38, Sch 1 [63]. Subst 2021 No 34, Sch 1[15].
76   Orders for payment operate as judgments
(1)  An order under this Division for the payment of money—
(a)  may be made by the Local Court on its own motion, or on the application of the wholesale supplier or retailer concerned, at any time within 6 months after the date of the finding, and
(b)  may be enforced in the Local Court in its exercise of jurisdiction under Part 3 of the Local Court Act 2007.
(2)  Part 8 of the Civil Procedure Act 2005 applies to and in respect of an order under this Division as if—
(a)  the order were a judgment of the Local Court in civil proceedings, and
(b)  the amount ordered to be paid were a judgment debt, and
(c)  the person against whom the order is made were a judgment debtor, and
(d)  the person in whose favour the order is made were a judgment creditor.
(3)  The remedy provided by this section is an alternative to any other remedy that may be available apart from this section.
s 76: Am 1996 No 30, Sch 1.16 [1]; 2005 No 28, Sch 5.16 [1] [2]; 2007 No 94, Schs 1.36 [4], 2; 2012 No 38, Sch 1 [63].
Part 6A Step-in rights—Network Administration Orders
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76A   Definition
In this Part—
network operations means any activity carried on for or in connection with the operation, or control of the operation, of a distribution or transmission system.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76B   Grounds for issue of Network Administration Order
(1)  The Minister may issue a Network Administration Order for a network operator’s distribution or transmission system if—
(a)  the network operator’s licence has been cancelled, or
(b)  the Minister is satisfied that the network operator has contravened a provision of this Act or the regulations or a condition of the network operator’s licence and the contravention requires the issue of a Network Administration Order.
(2)  A contravention by a network operator of a provision of this Act or the regulations or a condition of the network operator’s licence is considered to require the issue of a Network Administration Order only if the Minister is satisfied that—
(a)  the contravention threatens the safe, secure or reliable supply of electricity and it is necessary to take control of the distribution or transmission system concerned under such an Order to ensure the continued safe, secure and reliable supply of electricity, and
(b)  alternative action to remedy the contravention that could reasonably be taken by or at the direction of the Minister either would not adequately remedy the contravention or has been taken but has failed to adequately remedy the contravention.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76C   What a Network Administration Order authorises
(1)  A Network Administration Order authorises the Tribunal to take control, in accordance with the terms of the Order, of the operation of the distribution or transmission system concerned for the purpose of ensuring the continued safe, secure and reliable supply of electricity.
(2)  The Tribunal is to appoint a step-in operator on terms and conditions determined by the Tribunal to operate the distribution or transmission system concerned in accordance with the terms and conditions of the step-in operator’s appointment and the directions of the Tribunal.
(3)  Neither the Tribunal nor the step-in operator is required to hold a licence to operate a distribution or transmission system under the authority of a Network Administration Order.
(4)  The Tribunal or the Minister may revoke the appointment of a step-in operator at any time.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76D   Powers of step-in operator
(1)  The step-in operator of a distribution or transmission system has power to do all things that are necessary or convenient for the exercise of the step-in operator’s functions under this Part.
(2)  Without limitation, the step-in operator may enter and remain on any land or premises where network operations are carried on.
(3)  A relevant person must provide all reasonable assistance to the step-in operator for the purpose of facilitating the exercise of the functions of the step-in operator.
Maximum penalty—7,500 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case).
(4)  A person must not hinder or obstruct the step-in operator in the exercise of functions under this Part.
Maximum penalty—10,000 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case).
(5)  In this section—
relevant person means a person who is an occupier of land or premises where network operations are carried on or who in their capacity as an officer or employee of the network operator concerned has functions in connection with network operations.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76E   Obligations of network operator
(1)  A network operator of the distribution or transmission system for which a Network Administration Order is in force must co-operate with the Tribunal and step-in operator to facilitate the exercise of functions under the Order.
(2)  In particular, the network operator must—
(a)  provide all reasonable assistance to the Tribunal and its officers and step-in operator to facilitate the carrying on of network operations under the Order, and
(b)  facilitate access by the Tribunal and its officers and step-in operator to any land or premises where network operations are carried on, and
(c)  provide any information requested by the Tribunal or step-in operator and that is reasonably required to facilitate the carrying on of network operations under the Order.
Maximum penalty—5,000 penalty units (in the case of a corporation) and 2,500 penalty units (in any other case).
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76F   Costs of administration
(1)  Costs reasonably incurred by or on behalf of the Tribunal and the step-in operator in the exercise of functions under a Network Administration Order are payable by a network operator of the distribution or transmission system concerned and are recoverable from a network operator by the Tribunal as a debt due to the Crown.
(2)  Those costs may also be recovered by being deducted by the step-in operator from the revenues from network operations.
(3)  Revenues from network operations by the step-in operator are (after deduction of any amount authorised by this section) payable to the person who would be entitled to the revenues arising from operation by the network operator.
(4)  A certificate of the Minister as to the amount of the costs recoverable from a network operator under this section is evidence of the matters certified.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76G   Liability under Network Administration Order
(1)  A person concerned in the operation of a distribution or transmission system under a Network Administration Order is not liable for any act or omission of the Tribunal or step-in operator in the exercise or purported exercise in good faith of functions under the Order.
(2)  A liability that this section prevents from attaching to a person attaches instead to the network operator.
(3)  Each of the following is a person concerned in the operation of a distribution or transmission system under a Network Administration Order—
(a)  the Minister,
(b)  the Tribunal,
(c)  the step-in operator,
(d)  a person acting under the direction or control of the Tribunal or step-in operator.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
76H   Procedure for Network Administration Order
(1)  A Network Administration Order is to be issued in writing and the Minister is to notify the Tribunal and the network operator of the issuing of the Order.
(2)  A Network Administration Order may include directions to the Tribunal as to the exercise of the Tribunal’s functions under the Order.
(3)  A Network Administration Order remains in force until it is revoked.
(4)  The Minister may revoke a Network Administration Order at any time by notice in writing to the Tribunal and the network operator concerned.
(5)  This Part can apply to part of a distribution or transmission system and for that purpose a Network Administration Order can be issued for part of a distribution or transmission system.
pt 6A (ss 76A–76H): Ins 2015 No 5, Sch 8.7 [19].
Part 7 Administration
Division 1 Regulatory functions of Tribunal
pt 7, div 1: Rep 1997 No 20, Sch 1.3 [11]. Ins 2000 No 60, Sch 1.2 [1].
77   Regulatory functions of Tribunal
(1)  The regulatory functions of the Tribunal under this Act (including under the regulations) are—
(a)  the function of making recommendations under subsection (2), and
(a1)  the functions relating to electricity safety conferred by Part 5D, and
(b)  the function of monitoring and reporting under section 87, and
(c)  the function of imposing monetary penalties, or requiring other action to be taken, under clause 8A of Schedule 2, and
(d)  such other functions of the Tribunal under this Act (including under the regulations) as are specified by the regulations for the purposes of this section.
(2)  The Tribunal has the function of making recommendations to the Minister for or with respect to—
(a)  the granting, variation, transfer or cancellation of a licence, and
(b)  the imposition, variation or cancellation of conditions in relation to a licence, and
(c)  action to be taken, and sanctions to be applied, in respect of a contravention of the conditions of a licence, and
(d)  any remedial action that may be warranted as a result of a contravention of the conditions of a licence.
(3)  Part 4B of the Independent Pricing and Regulatory Tribunal Act 1992 applies in relation to the Tribunal’s regulatory functions under this Act.
(4)  The Tribunal may establish one or more committees to assist the Tribunal in the exercise of its regulatory functions, and the following provisions apply in respect of such a committee—
(a)  a committee may consist of members of the Tribunal, officers of the Tribunal or other persons,
(b)  section 26 (Personal liability) of the Independent Pricing and Regulatory Tribunal Act 1992 extends to a member of a committee as if the member were acting under the direction of the Tribunal.
(5)  The Tribunal may delegate any regulatory function of the Tribunal to—
(a)  any member or officer of the Tribunal, or
(b)  any committee of the Tribunal but only if at least one member of the committee is a member of the Tribunal and despite section 10 (Delegation of Tribunal’s functions) of the Independent Pricing and Regulatory Tribunal Act 1992.
s 77: Rep 1997 No 20, Sch 1.3 [11]. Ins 2000 No 60, Sch 1.2 [1]. Am 2005 No 17, Sch 1 [3]–[5]; 2012 No 38, Sch 1 [64]; 2015 No 5, Sch 8.7 [20]–[22].
78–82   (Repealed)
s 78: Am 1997 No 21, Sch 1 [17] [18]. Rep 1997 No 20, Sch 1.3 [11].
ss 79–81: Rep 1997 No 20, Sch 1.3 [11].
s 82: Am 1997 No 21, Sch 1 [19] [20]. Rep 1997 No 20, Sch 1.3 [11].
Division 2 Distribution districts
83   Distribution districts of distributors
(1)  Each distributor listed in Schedule 3 has a distribution district comprising the local government areas, or parts of local government areas, described in that Schedule.
(1A)  When network infrastructure assets that form part of the distribution system of a distributor are leased for the purposes of an authorised transaction under the Electricity Network Assets (Authorised Transactions) Act 2015, a reference to the distributor in Schedule 3 is to be read (after completion of the authorised transaction) as a reference to the entity that operates that distribution system after completion.
(2)  The boundaries of a distributor’s distribution district are unaffected by any change in the boundaries of a local government area and, for that purpose, the boundaries of the local government area are taken to remain the same as they were when the reference to the local government area was included in Schedule 3.
(3)  A reference in Schedule 3 to a part of a local government area is (if that part is not described in that Schedule) a reference to such part of the local government area as is described by the regulations for the purposes of that reference.
s 83: Am 1996 No 30, Sch 1.16 [2]; 2000 No 109, Sch 1 [42]; 2015 No 5, Sch 8.7 [23].
84   Variation of distribution districts
(1)  The Governor may, by regulation, amend Schedule 3 so as—
(a)  to vary the boundaries of an existing distributor’s distribution district, or
(b)  to include the boundaries of the distribution district of an additional distributor.
(2)  The regulations may contain provisions of a savings or transitional nature consequent on the variation or inclusion of any such boundaries.
(3)  Any such provision may, if the regulations so provide, take effect from the day on which the variation or inclusion of boundaries occurs or a later day.
(4)  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.
s 84: Am 2000 No 109, Sch 1 [43] [44].
85   Transfer of staff, assets, rights and liabilities
(1)  The Minister may direct, by order in writing, that any specified staff, assets, rights or liabilities of a distributor whose distribution district is varied be transferred to such other distributor as is specified in the order.
(2)  Such an order may be made on such terms and conditions as are specified in the order.
(3)  Schedule 4 applies to the transfer of staff, assets, rights or liabilities under this section.
s 85: Am 2000 No 109, Sch 1 [45].
Division 3 Licence auditing
pt 7, div 3, hdg: Am 2000 No 60, Sch 1.2 [2].
86   (Repealed)
s 86: Rep 2000 No 60, Sch 1.2 [3].
87   Licence auditing functions of Tribunal
(1)  The functions of the Tribunal under this Division are to monitor, and report to the Minister on, the extent to which network operators comply, or fail to comply, with the conditions imposed on licences held by them.
(1A)  The regulations may make provision for or with respect to conferring functions on network operators in connection with the Tribunal’s functions under this Division, including provision for or with respect to—
(a)  conferring functions (licence auditing functions) requiring a network operator to monitor and report to the Tribunal on any matter that the Tribunal is required to monitor and report on under this section in connection with the conditions of the network operator’s licence, and
(b)  regulating the selection and appointment of persons to exercise functions in connection with the licence auditing functions of a network operator.
(1B)    (Repealed)
(2)  For the purpose of enabling the Tribunal to exercise its functions, the Minister must furnish the Tribunal with such information in the possession of the Minister as the Tribunal may request in relation to the compliance by distributors with the conditions imposed on the licences held by them.
(2A)    (Repealed)
(3)  This section does not apply to a condition referred to in section 32G or 43E.
s 87: Am 1997 No 36, Sch 1 [3]; 2000 No 60, Sch 1.2 [4] [5]; 2000 No 109, Sch 1 [46]; 2005 No 17, Sch 1 [6] [7]; 2012 No 38, Sch 1 [65]–[68]; 2015 No 5, Sch 8.7 [24]; 2015 No 36, Sch 3 [11] [12].
87A   Cost of audit
(1)  Each holder of a licence is required to pay to the Treasurer the cost (as certified by the Tribunal) involved in and in connection with carrying out the Tribunal’s functions under section 87 in relation to the holder of the licence.
(2)  Without limitation, a licence may include terms and conditions relating to the determination of the cost of carrying out those functions.
s 87A: Ins 2000 No 60, Sch 1.2 [6]. Am 2012 No 38, Sch 1 [69]; 2015 No 36, Sch 3 [13].
87B   Provision and maintenance of information, documents and evidence
(1)  For the purposes of monitoring and reporting under section 87, the Chairperson of the Tribunal may, by notice in writing served on a relevant person, require the person to do any one or more of the following—
(a)  to furnish specified information to the Tribunal within a period specified in the notice,
(b)  to provide specified documents to the Tribunal within a period specified in the notice,
(c)  to keep specified records including any documents specified in the notice,
(d)  to attend a meeting of the Tribunal to give evidence.
(2)  Each of the following is a relevant person for the purposes of this section—
(a)  the holder of a licence,
(b)  an officer of the holder of a licence,
(c)  any other person (except in relation to a requirement to keep records).
(3)  If documents are provided to the Tribunal under this section, the Tribunal—
(a)  may take possession of, and make copies of or take extracts from, the documents, and
(b)  may keep possession of the documents for such period as is necessary for those purposes, and
(c)  during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Tribunal.
s 87B: Ins 2000 No 109, Sch 1 [47]. Am 2005 No 17, Sch 1 [8]; 2012 No 38, Sch 1 [70]–[72]. Subst 2015 No 5, Sch 8.7 [25]. Am 2015 No 36, Sch 3 [14].
87C   Offences
(1)  A person must not, without reasonable excuse—
(a)  refuse or fail to comply with a notice served under section 87B, or
(b)  refuse or fail to answer a question that the person is required to answer by the Chairperson at any meeting of the Tribunal under section 87B.
(2)  It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate a natural person or make the person liable to any forfeiture or penalty.
(3)  A person must not—
(a)  give to the Tribunal, whether orally or in writing, information that the person knows to be false or misleading in a material particular (unless the person informs the Tribunal of that fact), or
(b)  at a meeting of the Tribunal, give evidence that the person knows to be false or misleading in a material particular.
(4)  A person must not hinder, obstruct or interfere with the Chairperson or any other member of the Tribunal in the exercise of functions for the purposes of section 87 or 87B as Chairperson or other member.
(5)  A person must not take any action that detrimentally affects the employment of another person, or threaten to do so, because that other person has assisted the Tribunal in any investigation.
Maximum penalty—2,000 penalty units in the case of a corporation and 500 penalty units or imprisonment for 6 months, or both, in any other case.
s 87C: Ins 2000 No 109, Sch 1 [47]. Am 2012 No 38, Sch 1 [73]; 2015 No 5, Sch 8.7 [26] [27].
87D   (Repealed)
s 87D: Ins 2000 No 109, Sch 1 [47]. Rep 2012 No 38, Sch 1 [74].
88   Annual reports
(1)  As soon as practicable after 30 June (but on or before 31 October) in each year, the Tribunal must prepare and forward to the Minister a report on the extent to which network operators have complied, or failed to comply, with the conditions imposed on the licences held by them during the 12 months ending on 30 June in that year.
(2)  The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
s 88: Am 2000 No 60, Sch 1.2 [7]; 2005 No 17, Sch 1 [9]; 2012 No 38, Sch 1 [75]; 2015 No 5, Sch 8.7 [28]; 2015 No 36, Sch 3 [15].
Division 4 Customer consultative groups
89   Appointment of customer consultative groups
(1)  A distributor must appoint at least one customer consultative group to act as a forum for consultation between the distributor and its customers.
(2), (3)    (Repealed)
s 89: Am 2000 No 109, Sch 1 [48] [49]; 2012 No 38, Sch 1 [76].
90   Constitution of customer consultative groups
(1)  Except to the extent to which the regulations otherwise provide, a customer consultative group must include members representing each of the following sections of the community—
(a)  consumer groups,
(b)  low-income households,
(c)  persons living in rural and remote areas,
(d)  domestic customers,
(e)  industrial and commercial customers.
(2)  Except to the extent to which the regulations otherwise provide, a customer consultative group must meet at least twice a year.
(3)  In all other respects, the constitution and procedure of a customer consultative group are to be as determined by the regulations.
s 90: Am 2000 No 109, Sch 1 [50]; 2001 No 18, Sch 2 [3].
91   Functions of customer consultative groups
(1)  A customer consultative group has such functions as are conferred or imposed on it by this Act or the regulations.
(2)  Except to the extent to which the regulations otherwise provide, the function of a customer consultative group appointed by a distributor is to provide information and advice on the following matters to the distributor—
(a)    (Repealed)
(b)  the effect on retail customers within its distribution district of any proposed changes in the way in which the distributor operates,
(c)  any improvements in the way in which the distributor operates that the customer consultative group believes would benefit retail customers within its distribution district,
(d)  such other matters as the distributor and the customer consultative group agree should be the subject of such advice.
(3)    (Repealed)
s 91: Am 2000 No 109, Sch 1 [51]; 2012 No 38, Sch 1 [77] [78]; 2014 No 88, Sch 1.6 [4].
Division 5 General
92   Enforceable undertakings
(1)  The Tribunal may accept a written undertaking given by the holder of a licence for the purposes of this section in connection with the contravention by the holder of a requirement of this Act, the regulations under this Act or the conditions of the licence.
(2)  A person may withdraw or vary the undertaking at any time, but only with the consent of the Tribunal.
(3)  A person must not breach any term of an undertaking given by the person for the purposes of this section.
Maximum penalty—5,000 penalty units.
(4)  If the Tribunal considers that a person has breached any term of an undertaking given by the person for the purposes of this section, the Tribunal may apply to the Supreme Court for an order under this section.
(5)  If the Supreme Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders—
(a)  an order directing the person to comply with that term of the undertaking,
(b)  an order directing the person to pay the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach,
(c)  an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,
(d)  any other order that the Court considers appropriate.
(6)  A person may be proceeded against and convicted for an offence under this section whether or not an order under this section has been applied for or made in connection with the breach concerned.
(7)  The Tribunal must keep a register on its website of undertakings given for the purposes of this section.
s 92: Am 1996 No 30, Sch 1.16 [3]; 1996 No 121, Sch 1.3 [2]. Subst 2000 No 109, Sch 1 [52]. Am 2001 No 18, Sch 2 [4]. Rep 2012 No 38, Sch 1 [79]. Ins 2015 No 5, Sch 8.7 [29].
93   Transmission systems
(1)  The Minister may, by order published in the Gazette, declare any specified electricity power lines and associated equipment and electricity structures to be a transmission system for the purposes of this Act.
(2)  An order under this section takes effect on the day on which it is published in the Gazette or on such later day as is specified in the order.
93A   Operation of transacted transmission system
(1)  A person must not operate a transmission system that is a transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015 otherwise than under the authority of a transmission operator’s licence.
Maximum penalty—5,000 penalty units.
(2)  The Minister may grant transmission operators’ licences for the purposes of this Act.
(3)  Schedule 2 has effect with respect to the granting, variation, transfer and cancellation of transmission operators’ licences.
s 93A: Ins 2015 No 5, Sch 8.7 [30].
94   Authorised officers
(1)  A network operator or retailer may, in accordance with any guidelines in force under this section, appoint authorised officers for the purposes of this Act.
(2)  An authorised officer appointed by a network operator has such of the functions of the network operator by which he or she is appointed as are specified in the authorised officer’s instrument of appointment.
(3)  An authorised officer appointed by a distributor may exercise those functions only within the distribution district of the distributor by which he or she is appointed.
(3A)  If a distributor does not have a distribution district, an authorised officer appointed by the distributor may exercise those functions only on land that is occupied by the distributor’s distribution system and on land on which premises connected to that distribution system are situated.
(3B)  An authorised officer appointed by a retailer—
(a)  has the functions of an authorised officer under this Act specified in the authorised officer’s instrument of appointment, and
(b)  may exercise those functions only with respect to the premises of customers of the retailer.
(4)  The Minister may, by order published in the Gazette, establish guidelines for the appointment of authorised officers.
(5)  An order under this section takes effect on the day on which it is published in the Gazette or on such later day as is specified in the order.
s 94: Am 1996 No 56, Sch 2.8 [2]; 2000 No 109, Sch 1 [53]–[55]; 2012 No 38, Sch 1 [80].
Part 7A Management of electricity supply emergencies
pt 7A: Ins 2017 No 59, Sch 1 [3].
94A   Declaration of electricity supply emergency
(1)  The Premier may, by order in writing, declare an electricity supply emergency if the Premier is satisfied—
(a)  that the supply of electricity to all or any part of the State is disrupted to a significant degree, or
(b)  that there is a real risk that the supply of electricity to all or any part of the State may be disrupted to a significant degree, or
(c)  there is a cyber security incident that affects or is likely to affect 1 or more of the following that is responsible for a significant supply of electricity to all or part of the State—
(i)  a distribution system,
(ii)  a distributor,
(iii)  an electricity generator,
(iv)  a transmission operator,
(v)  a transmission system, or
(d)  there is a cyber security incident of a type prescribed by the regulations.
(2)  An order declaring an electricity supply emergency has effect immediately on the making of the order.
(3)  The declaration of an electricity supply emergency remains in force—
(a)  for the period (if any) specified in the declaration, or
(b)  until such time as the declaration is revoked by the Premier by order in writing.
(4)  As soon as practicable after making or revoking a declaration of an electricity supply emergency, the Premier must—
(a)  cause notice of the declaration or revocation to be made public in such manner as the Premier considers appropriate, and
(b)  cause a copy of the relevant order to be published in the Gazette or on the NSW legislation website.
(5)  Subsection (4) does not apply to an electricity supply emergency declared under subsection (1)(c) or (d).
s 94A: Ins 2017 No 59, Sch 1 [3]. Am 2021 No 34, Sch 1[16] [17].
94B   Electricity supply emergency directions
(1A)  This section applies to an electricity supply emergency declared by the Premier under section 94A(1)(a) or (b).
(1)  While the declaration of an electricity supply emergency to which this section applies is in force, the Minister may give directions (referred to in this Part as electricity supply emergency directions) that the Minister considers are reasonably necessary to respond to the electricity supply emergency.
(2)  Without limiting subsection (1), electricity supply emergency directions may be given for any of the following purposes—
(a)  to restrict the use of electricity in order to reduce demand,
(b)  to require large users of electricity to wholly or partly turn off or shut down any plant or equipment for a specified period of time,
(c)  to impose requirements relating to the carrying out of activities that may affect the production or supply of electricity,
(d)  to impose other requirements that relate directly to the production, use or supply of electricity.
(3)  An electricity supply emergency direction that is to apply to the general public or a specified sector of the community is to be given by means of a notice published in the Gazette.
(4)  An electricity supply emergency direction that is to apply to a particular person is to be given to the person verbally or by instrument in writing. If the direction is given verbally it must be confirmed by instrument in writing given to the person as soon as it is practicable to do so.
(5)  The Minister must, as soon as practicable after giving an electricity supply emergency direction that applies to a particular person, cause the direction to be published in the Gazette.
(6)  An electricity supply emergency direction—
(a)  operates for such period as is specified in the direction (but only while the declaration of the electricity supply emergency is in force), and
(b)  may be varied or revoked by a subsequent direction under this section.
(7)  In giving an electricity supply emergency direction, the Minister is to endeavour to act, so far as is reasonably practicable, in a way that is complementary to, and not inconsistent with, the operation and administration of the national electricity market within the meaning of the National Electricity (NSW) Law.
s 94B: Ins 2017 No 59, Sch 1 [3]. Am 2021 No 34, Sch 1[18] [19].
94BA   Electricity supply emergency—cyber security directions
(1)  While the declaration of an electricity supply emergency under section 94A(1)(c) or (d) is in force, the Minister may, by written order, give a direction (a cyber security direction) to a relevant person requiring the person to take the action the Minister considers reasonably necessary to—
(a)  respond to the impact of the incident on the person’s information technology systems, or
(b)  prevent the incident having an impact on the person’s information technology systems.
(2)  A cyber security direction—
(a)  has effect for the period specified in the direction, and
(b)  may be varied or revoked by a subsequent direction under this section.
(3)  The Minister’s written order under subsection (1) must include a copy of the Premier’s declaration of the electricity supply emergency under which the cyber security direction is given.
(4)  A person given a cyber security direction must comply with the direction.
Maximum penalty—
(a)  for a corporation—2,000 penalty units, or
(b)  for an individual—100 penalty units.
(5)  In this section—
relevant person means the following—
(a)  a network operator,
(b)  an electricity generator,
(c)  a person who is a member of a class of persons prescribed by the regulations.
s 94BA: Ins 2021 No 34, Sch 1[20].
94C   Requirement to comply with electricity supply emergency directions
(1)  A person who fails to comply with an electricity supply emergency direction applying to the person is guilty of an offence.
Maximum penalty—2,000 penalty units in the case of a corporation or 100 penalty units in the case of an individual.
(2)  The requirement to comply with an electricity supply emergency direction has effect despite any other Act or law.
s 94C: Ins 2017 No 59, Sch 1 [3].
94D   Requirement to provide information in connection with electricity supply emergency
(1)  The Minister may, by notice in writing given to a person (referred to in this Part as an information notice), require the person to provide such information as the Minister requires for any one or more of the following purposes—
(a)  to determine whether the supply of electricity to all or any part of the State has been, or is likely to be, disrupted to a significant degree,
(a1)  to determine whether there is, or is likely to be, a cyber security incident affecting the supply of electricity to all or any part of the State,
(b)  to plan and prepare for the exercise of powers under this Part in the event that the supply of electricity is disrupted to a significant degree,
(c)  to otherwise administer or enforce this Part.
(2)  Without limiting the information that an information notice may require to be provided, the information so required may include the following—
(a)  information (including location and operational status) about electricity structures, electricity works and other electricity infrastructure such as transmission substations,
(a1)  information about 1 or more of the following—
(i)  a cyber security incident reasonably believed to affect the person,
(ii)  the person’s plan to respond to cyber security incidents,
(iii)  the actions the person has taken, or intends to take, in response to a cyber security incident,
(b)  information (including location and operational status) about non-electricity infrastructure such as gas pipelines, data storage or server facilities and telecommunications towers,
(c)  information that may be relevant to the supply of electricity in an emergency, including information about the location and availability of the following—
(i)  coal supplies and stockpiles,
(ii)  gas and liquid fuel stocks,
(iii)  water storage reserves,
(iv)  any relevant infrastructure or facilities with back-up power generation.
(3)  An information notice must specify—
(a)  the manner in which the information required by the notice is to be provided to the Minister, and
(b)  a reasonable time by which the information is to be provided.
(4)  For the avoidance of doubt, an information notice may be given whether or not the declaration of an electricity supply emergency is in force.
(5)  A person must not—
(a)  without lawful excuse fail to comply with an information notice given to the person, or
(b)  provide any information in purported compliance with an information notice that is false or misleading in a material respect.
Maximum penalty—2,000 penalty units in the case of a corporation or 100 penalty units in the case of an individual.
(6)  An information notice may be given to a person by any of the following methods—
(a)  in the case of an individual—by personal delivery to the person,
(b)  by post to the address specified by the person for the giving of information notices,
(c)  in the case of an individual who has not specified such an address—by post to the residential or business address of the person last known to the Minister,
(d)  in the case of a corporation—by post to the registered office or any other office of the corporation or by leaving it at any such office with a person apparently over the age of 16 years,
(e)  by email to an email address specified by the person for the giving of information notices,
(f)  by any other method authorised by the regulations for the giving of information notices.
s 94D: Ins 2017 No 59, Sch 1 [3]. Am 2021 No 34, Sch 1[21] [22].
94E   Disclosure of information provided to Minister
(1)  Any information provided to the Minister in accordance with an information notice may be divulged by the Minister—
(a)  to any person with the consent of the person who provided the information, or
(b)  to any person if the Minister is satisfied that the information is not confidential in nature, or
(c)  to any person who is engaged in the administration of this Part, or
(d)  to AEMO, or
(e)  in accordance with a requirement under any Act or other law, or
(f)  to a person prescribed by the regulations for the purposes of this section.
(2)  If the Minister divulges any information to a person that has been provided to the Minister in accordance with an information notice, the Minister may give the person a direction prohibiting or restricting the person from divulging the information if the Minister is satisfied that it is appropriate to give the direction because of the confidential nature of the information.
(3)  A person who contravenes a direction under subsection (2) is guilty of an offence.
Maximum penalty—100 penalty units.
s 94E: Ins 2017 No 59, Sch 1 [3]. Am 2021 No 34, Sch 1[23].
94F   Provisions relating to requirement to provide information
(1)  A person is not guilty of an offence of failing to comply with an information notice unless the person was warned on that occasion that a failure to comply is an offence.
(2)  A person is not excused from the requirement under an information notice to provide information on the ground that the information might incriminate the person or make the person liable to a penalty.
(3)  However, any information provided by a natural person in compliance with an information notice is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if—
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to providing the information on the ground that it might incriminate the person.
s 94F: Ins 2017 No 59, Sch 1 [3].
94G   Appointment of authorised officers
(1)  The Minister may appoint any person (referred to in this Part as an authorised officer) as an authorised officer for the purposes of this Part.
(2)  An authorised officer is, in exercising the functions of an authorised officer, subject to the control and direction of the Minister.
(3)  The Minister is to cause each authorised officer to be issued with a means of identification in the form approved by the Minister.
s 94G: Ins 2017 No 59, Sch 1 [3].
94H   Powers of authorised officers
(1)  An authorised officer may enter any premises at any reasonable time for the purposes of determining whether there has been a failure to comply with an electricity supply emergency direction or a cyber security direction.
(2)  However, an authorised officer is not empowered to enter any part of premises used only for residential purposes without the permission of the occupier of the premises.
(3)  An authorised officer may, at any premises lawfully entered, do anything that, in the opinion of the authorised officer, is necessary to be done for the purposes of determining whether there has been a failure to comply with an electricity supply emergency direction or a cyber security direction.
(4)  Without limiting subsection (3), the authorised officer may—
(a)  carry out such inspections on those premises as the authorised officer considers necessary, and
(b)  examine and test any plant or equipment on the premises, and
(c)  take such photographs, films, audio, video and other recordings as the authorised officer considers necessary.
(5)  A person must not—
(a)  prevent an authorised officer from exercising any function conferred or imposed on the authorised officer under this section, or
(b)  hinder or obstruct an authorised officer in the exercise of any such function.
Maximum penalty—200 penalty units in the case of a corporation or 50 penalty units in the case of an individual.
(6)  A person is not guilty of an offence under subsection (5) because of any act of hindrance or obstruction unless it is established that the authorised officer identified himself or herself as an authorised officer.
s 94H: Ins 2017 No 59, Sch 1 [3]. Am 2021 No 34, Sch 1[24].
94I   Exclusion of personal liability
Any matter or thing done or omitted to be done by the Minister, an authorised officer or a person acting under the direction of the Minister does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Part, subject the Minister, authorised officer or person so acting personally to any action, liability, claim or demand.
s 94I: Ins 2017 No 59, Sch 1 [3].
Part 8 Appeals and resolution of disputes
95   Appeals against decisions concerning licences
(1)  An applicant under Schedule 2 or the holder of a licence who is aggrieved by any of the following decisions of the Minister under that Schedule may appeal to the Supreme Court against the decision—
(a)  a decision cancelling a licence,
(b)  a decision imposing a condition on a licence (other than a condition imposed when the licence is granted),
(c)  a decision varying the conditions of a licence,
(d)  a decision refusing an application for the transfer of a licence,
(e)  a decision imposing a monetary penalty on the holder of a licence.
(2)  An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, may be given on the appeal.
(3)  For the purposes of an appeal, the Minister may certify in writing that a specified policy applies to the subject matter of the appeal.
(4)  In deciding an appeal to which such a certificate relates, the Supreme Court is required to apply the policy so certified, except to the extent to which the application of that policy would be contrary to law.
(5)  The decision of the Supreme Court in respect of an appeal is taken to be the decision of the Minister and is to be given effect to accordingly.
s 95: Am 1997 No 20, Sch 1.3 [12]–[14]; 2002 No 122, Sch 1 [1].
95A   Administrative review of certain decisions concerning licences
(1)  The holder of a licence who is aggrieved by a decision of the Tribunal to take action under clause 8A of Schedule 2 in relation to the holder of the licence may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(2)  Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of the Tribunal.
s 95A: Ins 2000 No 60, Sch 1.2 [8]. Am 2013 No 95, Sch 2.52 [1] [2].
96   (Repealed)
s 96: Am 1998 No 162, Sch 2.3. Subst 2000 No 109, Sch 1 [56]. Rep 2012 No 38, Sch 1 [81].
96A   Review of certain decisions under energy ombudsman scheme
(1)  A small customer, and any other person of a class prescribed by the regulations, may apply to an energy ombudsman under an approved energy ombudsman scheme for review of a decision in a dispute or complaint to which the scheme relates.
(2)    (Repealed)
(3)  A review under this section is to be free of charge to small customers and to other persons of such classes as are prescribed by the regulations.
(4)  This section does not affect the jurisdiction of the Civil and Administrative Tribunal.
(5)  The energy ombudsman may decline to deal with a matter if it has been, is being or should be dealt with by another person or tribunal or there are, in the ombudsman’s opinion, not sufficient grounds for further investigation.
(6)  Without limiting subsection (5), the energy ombudsman may deal with a matter by making arrangements for it to be referred to another person or tribunal.
(7)  In this section—
small customer includes a small customer within the meaning of the Gas Supply Act 1996.
s 96A: Ins 2000 No 109, Sch 1 [56]. Am 2001 No 82, Sch 7.8; 2012 No 38, Sch 1 [82]–[86]; 2013 No 95, Sch 4.13; 2015 No 36, Schs 3 [16], 6.2 [1]–[3].
96B   Energy ombudsman scheme
(1)  The Minister may approve an energy ombudsman scheme for the purposes of this Act, the National Energy Retail Law (NSW), the Gas Supply Act 1996, regulations or rules under those Acts or that Law and any other law prescribed by the regulations for the purposes of this section.
(1A)  The scheme may provide for the appointment of an energy ombudsman to deal with the following—
(a)  matters that are to be dealt with by the energy ombudsman under the National Energy Retail Law (NSW),
(b)  disputes and complaints between small customers and exempt sellers or other persons exempted from the National Energy Retail Law (NSW), this Act or the Gas Supply Act 1996 in relation to the supply of electricity or gas,
(c)  disputes and complaints between small customers and retailers or distributors under this Act,
(d)  disputes and complaints between small customers and reticulators under the Gas Supply Act 1996,
(e)    (Repealed)
(f)  any other disputes and complaints of such classes as are prescribed by the regulations or specified under any other Act or law.
(2)  Before approving such a scheme, the Minister must be satisfied that the scheme meets the following objectives—
(a)  that all licence holders, exempt sellers and retailers who are required to be members of the scheme are members of the scheme, have agreed to be bound by decisions of the energy ombudsman under the scheme and, as members, are so bound,
(b)  that the scheme has satisfactory arrangements in place to deal with all disputes and complaints referred to in subsection (1A),
(c)  that the energy ombudsman will be able to operate independently of all licence holders, exempt sellers and retailers in exercising functions under the scheme,
(d)  that the scheme will be accessible to small customers and other customers prescribed by the regulations,
(e)  that membership of the scheme will be accessible to all potential members and will provide appropriate representation for all members in relation to the scheme’s governing body,
(f)  that, without limiting any other application of the scheme, the scheme will apply to all disputes and complaints arising under customer connection contracts and customer retail contracts relating to small customers,
(g)  that the scheme will operate expeditiously and without cost to small customers and to other persons of such classes as are prescribed by the regulations,
(h)  that the scheme will allow customers to choose whether or not they wish to be bound by determinations under the scheme,
(i)  that the scheme will satisfy best practice benchmarks for schemes of a similar kind, both in terms of its constitution and procedure and in terms of its day to day operations,
(j)  that the scheme will provide for a monetary limit on claims covered by the scheme of an amount or amounts approved by the Minister,
(k)  that the scheme will maintain the capacity of the energy ombudsman, where appropriate, to refer disputes or complaints to other forums,
(l)  that the scheme will require the energy ombudsman to inform the Minister of substantial breaches of licence or other authorisation conditions under, or breaches of, this or any other Act or other law covered by the scheme,
(m)  such other objectives as are prescribed by the regulations.
(3)  A scheme may treat a failure to make a decision within a specified period as a decision of a particular kind.
(4)  The Minister may at any time revoke an approval under this section.
(5)  If a dispute or complaint involving a person other than the holder of the licence or retailer is prescribed as a dispute or complaint to which an approved scheme may apply, the regulations may make it an offence for the person to fail to comply with a decision of the energy ombudsman under the scheme.
(6)  Notice of any approval given by the Minister under this section, and of the revocation of any such approval, is to be published in the Gazette.
(7)  Subject to this section, the same scheme may be approved for the purposes of both this Act and any other Act or law.
(8)  In subsections (2) and (5)—
retailer includes a reticulator within the meaning of the Gas Supply Act 1996.
small customer includes a small customer within the meaning of the Gas Supply Act 1996.
s 96B: Ins 2000 No 109, Sch 1 [56]. Am 2001 No 18, Sch 2 [5]–[7]; 2012 No 38, Sch 1 [87]–[97]; 2015 No 36, Schs 3 [17]–[19], 6.2 [4]–[9].
96C   Licence conditions relating to approved energy ombudsman scheme
It is a condition of a distributor’s licence that—
(a)  the licence holder must be a member of an approved energy ombudsman scheme, and
(b)  the licence holder is bound by, and must comply with, any decision of the energy ombudsman under the scheme relating to a dispute or complaint involving the licence holder and a small customer.
s 96C: Ins 2000 No 109, Sch 1 [56]. Am 2012 No 38, Sch 1 [98]–[100]; 2015 No 36, Sch 3 [20].
96D   Obligations of retailers under energy ombudsman scheme
(1)  This section applies to the following decisions by an energy ombudsman under an approved energy ombudsman scheme of which a retailer or other exempt person is a member—
(a)  a decision relating to a matter concerning the retailer’s or exempt person’s functions under this Act or the Gas Supply Act 1996, or under any instrument under those Acts,
(b)  a decision relating to a dispute or complaint involving the retailer or exempt person and a small customer, if that dispute or complaint arises under any such Act or instrument.
(2)  A retailer or exempt person is bound by a decision to which this section applies and must not fail to comply with any such decision.
Maximum penalty—
(a)  in the case of a corporation—100 penalty units, or
(b)  in any other case—25 penalty units.
(3)  In this section—
exempt person means an exempt seller under the National Energy Retail Law (NSW) or a person exempted (under section 3B of that Law) from the requirement to hold a retailer authorisation.
s 96D: Ins 2000 No 109, Sch 1 [56]. Subst 2012 No 38, Sch 1 [101]. Am 2015 No 36, Sch 6.2 [10].
97   Resolution of disputes between public authorities
(1)  Any dispute arising under this Act between 2 or more public authorities may be resolved by agreement between the Ministers responsible for those authorities or, if agreement cannot be reached, by the Premier.
(2)  A public authority must comply with any direction arising out of the resolution of the dispute under this section.
(3)  This section does not apply while any other remedy is available under this Act for the resolution of the dispute.
Part 8A Reduction of greenhouse gas emissions
pt 8A: Ins 2002 No 122, Sch 1 [2].
Division 1 Preliminary
pt 8A, div 1: Ins 2002 No 122, Sch 1 [2].
97A   Objects of Part
(1)  The objects of this Part are to reduce greenhouse gas emissions associated with the production and use of electricity and to encourage participation in activities to offset the production of greenhouse gas emissions.
(2)  For those objects, this Part—
(a)  establishes State greenhouse gas benchmarks and individual greenhouse gas benchmarks for the reduction of greenhouse gas emissions that are to be met by retailers, market customers and certain other persons who supply or consume electricity, and
(b)  provides for greenhouse gas benchmarks to be complied with by acquiring certificates relating to the carrying out of activities that promote the reduction of greenhouse gas emissions, and
(c)  provides an economic incentive to undertake activities resulting in the reduction of greenhouse gas emissions by imposing a penalty on greenhouse gas emissions above the specified benchmark.
s 97A: Ins 2002 No 122, Sch 1 [2]. Am 2012 No 38, Sch 1 [102].
97AB   Definitions
In this Part—
abatement certificate means an abatement certificate created under this Part, being a transferable abatement certificate or a non-transferable abatement certificate.
accredited abatement certificate provider means a person accredited as an abatement certificate provider under this Part and whose accreditation is in force.
AEMO means the Australian Energy Market Operator Limited ACN 072 010 327.
benchmark participant means a person referred to in section 97BB (1) who is subject to a greenhouse gas benchmark.
carbon dioxide equivalent of greenhouse gas emissions means the mass of carbon dioxide measured in tonnes that has the same global warming potential as the gas emissions.
category A generation means category A generation, as referred to in the Emissions Workbook.
compliance period means—
(a)  for a year occurring before the start of the final compliance period, the period of one year commencing on 1 January in that year, or
(b)  the final compliance period.
elective participant means a benchmark participant referred to in section 97BB (1) (d) or (e).
electricity sector benchmark means the electricity sector benchmark referred to in section 97BC (1) (a).
Emissions Workbook means the document entitled Greenhouse Gas Emissions from Electricity Supplied in NSW: Emissions Workbook published by the Ministry of Energy and Utilities in October 2000.
final compliance period means the period ending on the day immediately preceding the termination day and commencing on 1 January in the same year as the termination day.
greenhouse gas means carbon dioxide, methane, nitrous oxide, a perfluorocarbon gas or any other gas prescribed by the regulations for the purposes of this definition.
greenhouse gas benchmark for a benchmark participant means the benchmark for a compliance period, in tonnes of carbon dioxide equivalent of greenhouse gas emissions, determined for the participant under this Part.
greenhouse gas benchmark rule means a rule approved under section 97K.
greenhouse penalty means the penalty payable under this Part by a benchmark participant who fails to comply with the participant’s greenhouse gas benchmark for reduction of greenhouse gas emissions.
greenhouse shortfall means the amount, in tonnes of carbon dioxide equivalent, by which a benchmark participant fails to comply with the participant’s greenhouse gas benchmark for a compliance period, as determined under this Part.
large customer means—
(a)  a customer (other than a retailer) that on its own account, or together with one or more other such customers (who are related entities), uses—
(i)  100 gigawatt hours or more of electricity at a single site in this State in any year, or
(ii)  100 gigawatt hours or more of electricity at more than one site in this State in any year, at least one of which uses 50 gigawatt hours or more of electricity in that year, or
(b)  a related entity of a customer referred to in paragraph (a), whether or not the entity is a customer.
market customer means a customer that has classified any of its electricity loads as a market load and that is registered with AEMO as a market customer under the National Electricity Rules.
NSW pool coefficient means the average greenhouse gas emissions intensity of electricity sent out to customers in the State, expressed in tonnes of carbon dioxide equivalent per megawatt hour, as determined by the Tribunal under this Part.
register means a register required to be kept by the Scheme Administrator under this Part.
register of abatement certificates means the register of abatement certificates required to be kept by the Scheme Administrator under this Part.
register of accredited abatement certificate providers means the register of accredited abatement certificate providers required to be kept by the Scheme Administrator under this Part.
related body corporate of a person has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.
related entity of a customer means a person (whether or not a customer) who is—
(a)  a related body corporate of the customer, or
(b)  a beneficiary of a trust of which the customer is or has at any time been a trustee, or
(c)  a trustee of a trust under which a person is a beneficiary, if the person is a related entity of the customer because of any other application or applications of this definition, or
(d)  engaged in a joint venture with the customer or a related entity of a customer.
renewable energy certificate means a certificate created under the Renewable Energy (Electricity) Act 2000 of the Commonwealth.
Scheme Administrator means the person or body on whom the functions of Scheme Administrator are conferred by or under this Part.
State greenhouse gas benchmark—see section 97B (1).
State population for a compliance period means the population of the State for the compliance period, as determined by the Tribunal under this Part.
State significant development has the same meaning as it has in the Environmental Planning and Assessment Act 1979.
termination day means the day prescribed by proclamation under section 97KB (1) (a).
s 97AB: Ins 2002 No 122, Sch 1 [2]. Am 2005 No 17, Sch 1 [10] [11]; 2009 No 56, Sch 1.12 [1] [2]; 2009 No 100, Sch 1 [1]–[4]; 2012 No 38, Sch 1 [103] [104].
Division 2 Greenhouse gas benchmarks
pt 8A, div 2: Ins 2002 No 122, Sch 1 [2].
97B   State greenhouse gas benchmark
(1)  The State greenhouse gas benchmark is 7.27 tonnes of carbon dioxide equivalent of greenhouse gas emissions per head of State population per year.
(2)  The State greenhouse gas benchmark is to be the basis for the calculation of the greenhouse gas benchmark for each benchmark participant.
s 97B: Ins 2002 No 122, Sch 1 [2]. Am 2006 No 83, Sch 1 [1]. Subst 2009 No 100, Sch 1 [5].
97BA   Greenhouse gas benchmarks to apply to benchmark participants
(1)  A greenhouse gas benchmark for the reduction of greenhouse gas emissions applies, in accordance with this Part, the regulations and the greenhouse gas benchmark rules, to each benchmark participant.
(2)  The greenhouse gas benchmark for a benchmark participant is to be calculated in accordance with this Part, the regulations and the greenhouse gas benchmark rules.
Note—
Failure to comply with a greenhouse gas benchmark will result in a greenhouse penalty being payable (see Division 3).
s 97BA: Ins 2002 No 122, Sch 1 [2].
97BB   Benchmark participants
(1)  The following persons are benchmark participants for the purposes of this Part—
(a)  a retailer,
(b)  an electricity generator prescribed by the regulations or any other person prescribed by the regulations, being an electricity generator or other person that supplies electricity directly to a customer under an electricity supply arrangement,
(c)  a market customer (other than a retailer), but only in respect of an electricity load it has classified as a market load and that is electricity supplied for use in this State,
(d)  a large customer who has made an election, that is in force, to be subject to a greenhouse gas benchmark,
(e)  a person who is engaged in carrying out State significant development and who has made an election, that is in force, to be subject to a greenhouse gas benchmark.
(2)  Regulations may be made for or with respect to the following matters—
(a)  the making of elections to be subject to greenhouse gas benchmarks,
(b)  the circumstances in which an election to be subject to a greenhouse gas benchmark takes effect or ceases to be in force,
(c)  the greenhouse penalty payable by a customer or person whose election to be subject to a greenhouse gas benchmark ceases to be in force,
(d)  the circumstances when a person is taken to be a large customer or a large customer who uses electricity at more than one site,
(e)  the circumstances when a related entity of a customer is entitled to make an election to be subject to a greenhouse gas benchmark as a large customer,
(f)  the circumstances when a person is taken to be engaged in a joint venture with a customer or a related entity of a customer,
(g)  the electricity purchases to be taken into account for the purpose of applying section 97BD (2) (a) to a benchmark participant that is a large customer and is not the purchaser of the whole or part of the electricity that qualifies it (either in its own right or as a related entity of a customer) as a large customer.
s 97BB: Ins 2002 No 122, Sch 1 [2]. Am 2005 No 17, Sch 1 [12]; 2009 No 36, Sch 1 [6]; 2012 No 38, Sch 1 [105] [106].
97BC   Principles for determining greenhouse gas benchmarks for benchmark participants
(1)  The greenhouse gas benchmark for a benchmark participant for a compliance period is to be determined as follows—
(a)  by multiplying the State population for the compliance period by the State greenhouse gas benchmark to determine the electricity sector benchmark,
(b)  by determining the proportion of the total State electricity demand (as determined by the Tribunal) for the year commencing on the same day as the compliance period that is applicable to the participant during that year,
(c)  by applying that proportion to the electricity sector benchmark to calculate the number of tonnes of carbon dioxide equivalent of greenhouse gas emissions comprising the benchmark for that participant.
(2)  If the compliance period is the final compliance period, the number of tonnes of carbon dioxide equivalent of greenhouse gas emissions comprising the benchmark for a participant is to be reduced by dividing that number by 365 and then multiplying it by the number of days in the final compliance period.
Note—
The methodology for determining the matters set out in this section is set out in the greenhouse gas benchmark rules.
s 97BC: Ins 2002 No 122, Sch 1 [2]. Subst 2009 No 100, Sch 1 [6].
97BD   Principles for determining compliance with greenhouse gas benchmarks
(1) General principle The compliance of a benchmark participant with the participant’s greenhouse gas benchmark in any compliance period is determined by subtracting the participant’s greenhouse gas benchmark from the number of tonnes of carbon dioxide equivalent of greenhouse gas emissions in that compliance period for which the participant is responsible.
(2) Number of tonnes of emissions for which participant responsible The number of tonnes of carbon dioxide equivalent of greenhouse gas emissions in that compliance period for which a benchmark participant is responsible is determined—
(a)  by multiplying the total number of megawatt hours of electricity supplied or purchased by the participant in that compliance period by the NSW pool coefficient for greenhouse gas emissions arising out of that electricity for that compliance period, and
(b)  by subtracting from that number the number of tonnes of carbon dioxide equivalent of greenhouse gas emissions abated by the participant in that compliance period.
Note—
The methodology provided by the greenhouse gas benchmark rules for determining electricity supplied or purchased by a benchmark participant may take into account electricity lost in transmission or distribution (see section 97K (1) (c)).
(3) Number of tonnes of emissions abated by participant The number of tonnes of carbon dioxide equivalent of greenhouse gas emissions abated by a benchmark participant in a compliance period is the total number of tonnes attributable to any abatement certificates surrendered by the participant for that compliance period and any renewable energy certificates of the participant counted for that compliance period for the purposes of compliance with the participant’s greenhouse gas benchmark.
(4)  If the result obtained under subsection (1) is more than zero (a greenhouse shortfall), the benchmark participant has failed to comply with the participant’s greenhouse gas benchmark.
(5)  If the result obtained under subsection (1) is zero or less than zero, the benchmark participant has complied with the participant’s greenhouse gas benchmark.
(6)  In determining the total megawatt hours of electricity supplied by a retailer or an electricity generator in each compliance period for the purposes of subsection (2), electricity supplied by the retailer or generator to another benchmark participant is not to be taken into account.
Note—
The methodology for applying the principles in this section is set out in the greenhouse gas benchmark rules.
s 97BD: Ins 2002 No 122, Sch 1 [2]. Am 2005 No 17, Sch 1 [13]; 2009 No 100, Sch 1 [3]; 2012 No 38, Sch 1 [107] [108].
97BE   Greenhouse shortfalls may be carried forward
(1)  Despite any other provision of this Part, an amount of tonnes of carbon dioxide equivalent of greenhouse gas emissions of greenhouse shortfall in any compliance period (other than the compliance period commencing 1 January 2007 or the final compliance period) may, subject to the greenhouse gas benchmark rules, be carried forward to the next compliance period.
(2)  If an amount of greenhouse shortfall is carried forward, the amount of that shortfall is, to the extent to which it is not abated by the benchmark participant, subject to the greenhouse penalty at the end of the next compliance period and a greenhouse penalty is not payable for the shortfall amount at the end of the compliance period from which it was carried forward.
(3)  Any such penalty is payable at the same time as any greenhouse penalty for the next compliance period is payable (or would be payable, if owed).
(4)  A greenhouse shortfall that is carried forward may be abated at the end of the next compliance period by surrendering abatement certificates or counting renewable energy certificates.
(5)  For that purpose, the greenhouse shortfall after abatement is calculated by subtracting from the amount of the shortfall the total number of tonnes of carbon dioxide equivalent of greenhouse gas emissions attributable to any certificates surrendered or counted for the purpose of abating the greenhouse shortfall.
(6)  The amount of greenhouse shortfall carried forward in respect of a compliance period may not exceed 10% of the benchmark participant’s greenhouse gas benchmark for that compliance period.
(7)  An amount of greenhouse shortfall may be carried forward whether or not a shortfall was carried forward in the previous compliance period.
s 97BE: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3] [7]; 2009 No 106, Sch 2.10.
97BF   Factors to be determined and published before commencement of each compliance period
(1)  The Tribunal must, not later than 30 November in each year, determine and publish by notice in the Gazette the following matters for the purpose of determining greenhouse gas benchmarks for benchmark participants for the compliance period commencing on 1 January immediately following that notice (the next compliance period)—
(a)  the NSW pool coefficient for greenhouse gas emissions,
(b)  the total State electricity demand for a year,
(c)  the total State population,
(d)  the electricity sector benchmark.
(2)  A determination under this section is to be made in accordance with any requirements of the greenhouse gas benchmark rules.
(3)  The matters determined under subsection (1) are to apply to the calculation of greenhouse gas benchmarks and the assessment of compliance with those benchmarks for the next compliance period.
s 97BF: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3] [8] [9].
97BG   Evidentiary provisions relating to benchmarks
A certificate of the Tribunal certifying that, on a date or during a period specified in the certificate—
(a)  a person was or was not a benchmark participant, or
(b)  the NSW pool coefficient, State electricity demand or State population for a compliance period or electricity sector benchmark was the value or amount specified in the certificate, or
(c)  the greenhouse gas benchmark for a benchmark participant was the amount specified in the certificate, or
(d)  the greenhouse shortfall for a benchmark participant for a compliance period, or an amount of greenhouse shortfall carried forward by a benchmark participant for a compliance period, was the amount specified in the certificate, or
(e)  the greenhouse penalty payable by a benchmark participant was the amount specified in the certificate,
is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated in the certificate.
s 97BG: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3].
Division 3 Enforcement of greenhouse gas benchmarks
pt 8A, div 3: Ins 2002 No 122, Sch 1 [2].
97C   (Repealed)
s 97C: Ins 2002 No 122, Sch 1 [2]. Rep 2012 No 38, Sch 1 [109].
97CA   Greenhouse penalties
(1)  A benchmark participant who fails to comply with the participant’s greenhouse gas benchmark for reduction of greenhouse gas emissions for a compliance period is liable to pay the greenhouse penalty in respect of the excess emissions.
(2)  The amount of the greenhouse penalty per tonne of carbon dioxide equivalent of greenhouse shortfall determined under this Part is the following amount, as adjusted in accordance with any regulations made under subsection (3)—
(a)  for the compliance period concerned before the compliance period commencing 1 January 2010—$11.50,
(b)  for the compliance period commencing 1 January 2010—$12.50,
(c)  for the compliance period commencing 1 January 2011—$13.50,
(d)  for the compliance period commencing 1 January 2012—$14.50,
(e)  for the compliance period commencing 1 January 2013 and each subsequent compliance period—$15.50.
(3)  The regulations may provide for the adjustment of the amount of greenhouse penalty in accordance with movements in the consumer price index.
(4)  A greenhouse penalty payable for a compliance period (other than the final compliance period) by a benchmark participant is payable on 1 March in the following year or on any later date determined by the Tribunal for a benchmark participant.
(4A)  A greenhouse penalty payable for the final compliance period by a benchmark participant is payable within 3 months after the termination day or on any later day determined by the Tribunal for a benchmark participant.
(5)  A greenhouse penalty imposed under this Part may be recovered in any court of competent jurisdiction as a debt due to the Crown.
(6)  It is the wish of the Parliament that any greenhouse penalties payable to the Crown under this Part be used for the promotion of greenhouse gas reduction activities and programs nominated from time to time by the Minister.
(7)  In this section—
consumer price index means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.
Note—
Section 97BE sets out when a greenhouse penalty is payable for a greenhouse shortfall that is carried forward.
s 97CA: Ins 2002 No 122, Sch 1 [2]. Am 2006 No 83, Sch 1 [2]; 2009 No 100, Sch 1 [3] [10] [11].
97CB   Annual greenhouse gas benchmark statements
(1)  A benchmark participant must lodge with the Tribunal a greenhouse gas benchmark statement—
(a)  in respect of a compliance period (other than the final compliance period), not later than 1 March in the year immediately following the end of that compliance period, or
(b)  in respect of the final compliance period, not later than 3 months after the termination day.
(1A)  The Tribunal may permit a benchmark participant to lodge a greenhouse gas benchmark statement on a later day.
(2)  A greenhouse gas benchmark statement is to contain the following—
(a)  an assessment of the benchmark participant’s greenhouse gas benchmark for the previous compliance period,
(b)  an assessment of the participant’s liability (if any) for the greenhouse penalty for the previous compliance period,
(c)  an assessment of the participant’s liability (if any) for a greenhouse penalty payable in respect of a greenhouse shortfall carried forward from the compliance period before the previous compliance period,
(d)  any other matters required by the Tribunal.
(3)  A greenhouse gas benchmark statement must be in the form approved by the Tribunal.
(4)  A greenhouse gas benchmark statement must be accompanied by details of all abatement certificates sought to be surrendered for that compliance period and all renewable energy certificates sought to be counted for that compliance period or sought to be surrendered or counted to abate a greenhouse shortfall carried forward from the previous compliance period.
(5)  A benchmark participant that fails to lodge a greenhouse gas benchmark statement in accordance with this section is guilty of an offence.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units,
(b)  in the case of an individual—100 penalty units.
s 97CB: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3] [12].
97CC   Restrictions on surrender of abatement certificates for benchmark purposes
(1)  An abatement certificate cannot be surrendered by a benchmark participant for the purposes of compliance with the participant’s greenhouse gas benchmark unless—
(a)  the certificate is registered under this Part and the registration is in force, and
(b)  the certificate was created in relation to an activity that took place before the end of the compliance period to which the greenhouse gas benchmark statement relates, and
(c)  the participant is recorded in the register of abatement certificates as the owner of the certificate.
(2)  The Tribunal may, by notice in writing to a benchmark participant, refuse to accept the surrender of an abatement certificate by the benchmark participant—
(a)  if, in the opinion of the Tribunal, the certificate cannot be surrendered under this section, or
(b)  if, in the opinion of the Tribunal, the certificate is surplus to the number required to be surrendered for compliance with the participant’s greenhouse gas benchmark or to abate a greenhouse shortfall.
(3)  If the Tribunal accepts the surrender of an abatement certificate, and the Tribunal is not the Scheme Administrator, the Tribunal must give the Scheme Administrator notice in writing of the decision, including details of the abatement certificate surrendered.
s 97CC: Ins 2002 No 122, Sch 1 [2]. Am 2005 No 17, Sch 1 [14]; 2009 No 100, Sch 1 [3].
97CD   Assessment of compliance with greenhouse gas benchmarks
(1)  Regulations may be made for or with respect to the following matters—
(a)  the circumstances in which a renewable energy certificate may or may not be counted by a benchmark participant towards a greenhouse gas benchmark or to abate a greenhouse shortfall that has been carried forward,
(b)  the number of renewable energy certificates that may be counted for a compliance period (including for a greenhouse shortfall that was carried forward),
(c)  the assessment of the greenhouse shortfall (if any) and of liability for greenhouse penalty of a benchmark participant, including self-assessment and assessment by the Tribunal,
(d)  the date on which an assessment is taken to have been made and the date on which an assessment takes effect,
(e)  default assessments where a greenhouse gas benchmark statement is not lodged by a benchmark participant,
(f)  amendment of assessments, at the request of a benchmark participant or on the Tribunal’s own motion,
(g)  revocation of the cancellation of abatement certificates in connection with amended assessments and the revival of the certificates,
(h)  payments resulting from amended assessments,
(i)  notice of assessments.
(2)  The regulations are to include provisions that limit the number of renewable energy certificates that may be counted towards a greenhouse gas benchmark by reference to relevant acquisitions that are attributable to sales of electricity in New South Wales.
(3)  In this section—
relevant acquisition has the meaning given by the Renewable Energy (Electricity) Act 2000 of the Commonwealth.
s 97CD: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3].
97CE   Validity of assessment
The validity of an assessment of a liability to pay a greenhouse penalty is not affected because any provision of this Act, the regulations or the greenhouse gas benchmark rules has not been complied with.
s 97CE: Ins 2002 No 122, Sch 1 [2].
97CF   Waiver or suspension of obligations in emergencies
(1)  The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a benchmark participant to comply with the participant’s greenhouse gas benchmark, but only if it appears to the Minister that a benchmark participant is or will be unable to comply with the benchmark because of—
(a)  a systems or other failure of the register of abatement certificates, or
(b)  any other emergency affecting the integrity of the register or the abatement certificate scheme established under this Part.
(2)  An order may—
(a)  be made subject to conditions, and
(b)  apply to all benchmark participants or to a specified class of participants, and
(c)  specify the effect of the waiver or suspension on any other rights conferred or obligations imposed under this Part.
(3)  An order takes effect on the day on which it is published in the Gazette or, if a later day is specified in the order, on that day.
(4)  An order may be amended or revoked by a later order.
s 97CF: Ins 2002 No 122, Sch 1 [2].
Division 4 Accreditation of abatement certificate providers
pt 8A, div 4: Ins 2002 No 122, Sch 1 [2].
97D   Accredited persons may create abatement certificates
(1)  A person may create an abatement certificate under this Part only if the person is an accredited abatement certificate provider.
(2)  A person who is an accredited abatement certificate provider may create abatement certificates only in relation to those activities in relation to which the person has been accredited as an abatement certificate provider.
s 97D: Ins 2002 No 122, Sch 1 [2].
97DA   Eligibility for accreditation
(1)  The regulations and greenhouse gas benchmark rules may make provision for or with respect to the eligibility of a person for accreditation as an abatement certificate provider.
(2)  The regulations and greenhouse gas benchmark rules may make provision for accreditation as an abatement certificate provider in respect of any activities or class of activities that promote the reduction of greenhouse gas emissions.
(3)  Without limiting subsection (2), the regulations and the greenhouse gas benchmark rules may make provision for or with respect to eligibility for accreditation in respect of the following activities—
(a)  the generation of electricity in a manner that results in reduced emissions of greenhouse gases,
(b)  activities that result in reduced consumption of electricity,
(c)  activities of elective participants, associated with production processes that use electricity in this State, that result in reduced emissions of greenhouse gases.
(4)  The regulations and greenhouse gas benchmark rules may make provision for or with respect to eligibility for accreditation in respect of carbon sequestration by the planting of forests or other means, but only if—
(a)  the activity occurs in this State, or
(b)  the activity occurs in another jurisdiction in which a mandatory scheme intended to promote the reduction of greenhouse gas emissions, approved by the Minister for the purposes of this subsection, is in operation.
(5)  The Minister may approve a scheme for the purposes of subsection (4) only if the Minister is satisfied that—
(a)  the reduction of greenhouse gas emissions proposed to be achieved by the scheme is not less than the reduction proposed to be achieved by the scheme established under this Part, and
(b)  the monitoring and enforcement of compliance with the scheme to be approved is no less stringent than that applicable to the scheme established under this Part.
(6)  The regulations and greenhouse gas benchmark rules are to include provision for the recognition of the arrangements in place before the commencement of this Part relating to category A generation, under which energy in certain circumstances is deemed to be assigned to a retailer, so as to ensure that the retailer is entitled (subject to accreditation as an abatement certificate provider under this Part) to create abatement certificates in respect of any abatement of greenhouse gas emissions associated with that energy.
(7)    (Repealed)
s 97DA: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [13] [14]; 2012 No 38, Sch 1 [110].
97DB   Application for accreditation
(1)  Any person who is eligible for accreditation as an abatement certificate provider in relation to any activity may apply to the Scheme Administrator for accreditation.
(1A)  An application cannot be made on or after 1 January 2010 or such later day as may be prescribed by the regulations.
(2)  The Scheme Administrator is to determine an application for accreditation as an abatement certificate provider—
(a)  by accrediting the applicant as an abatement certificate provider in relation to specified activities, or
(b)  by refusing the application.
(3)  The Scheme Administrator may refuse an application for accreditation as an abatement certificate provider on such grounds as may be specified in the regulations.
(4)  The regulations may make provision for or with respect to applications for accreditation, including by requiring an application fee to be paid to the Scheme Administrator.
(5)  The Scheme Administrator may charge a fee (in addition to any application fee) in respect of the investigation and determination of an application for accreditation. The fee is to be determined by the Scheme Administrator on a cost recovery basis.
s 97DB: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [15].
97DC   Duration of accreditation
(1)  Accreditation of a person as an abatement certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2)  The Scheme Administrator may suspend or cancel the accreditation of a person as an abatement certificate provider on such grounds as may be specified in the regulations.
(3)  The cancellation or suspension of the accreditation of a person as an abatement certificate provider is subject to such conditions as the Scheme Administrator imposes. Any such conditions may include (but are not limited to) any condition to which the accreditation was subject immediately before it was suspended or cancelled.
(4)  The regulations may provide for the variation or revocation of any conditions that are imposed by the Scheme Administrator on the suspension or cancellation of accreditation as an abatement certificate provider.
s 97DC: Ins 2002 No 122, Sch 1 [2].
97DD   Conditions of accreditation
(1)  Accreditation as an abatement certificate provider is subject to the following conditions—
(a)  such conditions as may be imposed from time to time by the regulations,
(b)  such conditions as may be imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2)    (Repealed)
(3)  The following are examples of the types of conditions that may be imposed on the accreditation of a person as an abatement certificate provider—
(a)  a condition that requires the person not to create an abatement certificate in respect of the greenhouse gas emissions abated by an activity if an abatement certificate or a renewable energy certificate has already been created in respect of that abatement or if that abatement has already been used for the purposes of compliance with another scheme (whether mandatory or voluntary and whether or not imposed by or under a law of this State or another jurisdiction or otherwise), or in accordance with any agreement, arrangement or undertaking of any kind, intended to promote the reduction of greenhouse gas emissions,
(b)  a condition that requires the person not to create a renewable energy certificate in respect of the greenhouse gas emissions abated by an activity, or to use that abatement for the purposes of compliance with another scheme (whether mandatory or voluntary and whether or not imposed by or under a law of this State or another jurisdiction or otherwise), or in accordance with any agreement, arrangement or undertaking of any kind, intended to promote the reduction of greenhouse gas emissions, if an abatement certificate has already been created in respect of that abatement,
(c)  a condition that requires the person to provide financial assurances to secure or guarantee the person’s compliance with this Part,
(d)  a condition that requires the person to take out and maintain a policy of insurance in connection with the person’s functions as an accredited abatement certificate provider,
(e)  a condition that requires the person to maintain the greenhouse gas abatement secured by carbon sequestration activities for 100 years,
(f)  a condition that requires the person to enter into or arrange for a restriction or public positive covenant under section 88E of the Conveyancing Act 1919, and to arrange for its registration, for the purpose of ensuring that specified requirements of a condition run with the land concerned,
(g)  a condition that requires the person to provide information, assistance and access to the Scheme Administrator (or persons appointed by the Scheme Administrator) for the purposes of monitoring and auditing compliance by the person with this Part.
(4)  Subsection (3) does not prevent other conditions being imposed on the accreditation of a person as an abatement certificate provider.
(5)  A person must not contravene any of the conditions of the person’s accreditation as an abatement certificate provider.
Maximum penalty—2,000 penalty units.
(6)  Subsection (5) extends to any conditions to which the suspension or cancellation of the accreditation of a person is subject under section 97DC.
s 97DD: Ins 2002 No 122, Sch 1 [2]. Am 2006 No 83, Sch 1 [3] [4].
97DDA   Variation or revocation of conditions of accreditation
(1)  An accredited abatement certificate provider may apply to the Scheme Administrator for the variation or revocation of any condition of accreditation imposed by the Scheme Administrator under section 97DD (1) (b).
(2)  The regulations may make provision for or with respect to the variation or revocation of any conditions of accreditation that are imposed by the Scheme Administrator, including the fee (if any) to be paid to the Scheme Administrator in respect of an application under subsection (1).
(3)  The Scheme Administrator may charge a fee (in addition to any application fee) in respect of the investigation and determination of an application under subsection (1). The fee is to be determined by the Scheme Administrator on a cost recovery basis.
s 97DDA: Ins 2006 No 83, Sch 1 [5].
97DE   Accreditation not transferable
Accreditation as an abatement certificate provider is not transferable.
s 97DE: Ins 2002 No 122, Sch 1 [2].
Division 5 Creation of abatement certificates
pt 8A, div 5: Ins 2002 No 122, Sch 1 [2].
97E   Accredited abatement certificate provider may create certificates
(1)  A person who is an accredited abatement certificate provider may create abatement certificates in accordance with this Part, the regulations, the greenhouse gas benchmark rules and the conditions (if any) of the person’s accreditation as an abatement certificate provider.
(2)  The regulations may make provision for or with respect to the form in which abatement certificates are to be created.
ss 97E–97EB: Ins 2002 No 122, Sch 1 [2].
97EA   Value of certificate
Each abatement certificate represents 1 tonne of carbon dioxide equivalent of greenhouse gas emissions abated by the activity in respect of which it was created.
ss 97E–97EB: Ins 2002 No 122, Sch 1 [2].
97EB   Entitlement to create abatement certificates
(1)  The regulations and greenhouse gas benchmark rules may make provision for or with respect to the entitlement of accredited abatement certificate providers to create abatement certificates in respect of the activities, or classes of activities, for which they are accredited as abatement certificate providers.
(2)  Without limiting subsection (1), the regulations and greenhouse gas benchmark rules may provide for the following—
(a)  the number of abatement certificates that may be created in respect of any activity, or class of activities, on the basis of the carbon dioxide equivalent of greenhouse gas emissions abated or to be abated by the activity,
(b)  the establishment of a point or level from which electricity generating activities give rise to an entitlement to create abatement certificates under this Part.
(3)  A regulation or rule made for the purposes of subsection (2) (b) is to establish the point or level from which electricity generating activities relating to a generator having a nameplate rating exceeding 30 megawatts that was commissioned before 1 January 2002 give rise to an entitlement to create abatement certificates in one or more of the following ways—
(a)  the point or level may be the point or level that is equivalent to the usual level of output of the generator, as determined in accordance with the regulation or rule,
(b)  the point or level may be the point or level which reflects the usual greenhouse gas emissions intensity, expressed in tonnes of carbon dioxide equivalent per megawatt hour, of the output of the generator, as determined in accordance with the regulation or rule.
ss 97E–97EB: Ins 2002 No 122, Sch 1 [2].
97EC   When certificates may be created
(1)  An abatement certificate may be created by an accredited abatement certificate provider immediately after the activity in respect of which it was created takes place.
(2)  An abatement certificate cannot be created in relation to an activity later than 6 months after the end of the compliance period in which the activity takes place.
(2A)  An abatement certificate cannot be created in relation to category A generation occurring on or after 1 July 2010 or such later day as may be prescribed by the regulations.
(2B)  An abatement certificate cannot be created in relation to category A generation after 1 October 2010, or if a later day is prescribed under subsection (2A), more than 3 months after that later day.
(2C)  If a later day is prescribed under subsection (2A), the regulations may also provide for transitional arrangements in relation to any category A generation occurring after 1 July 2010 and before that later day, including by providing an exemption from subsection (2).
(2D)  An abatement certificate cannot be created in relation to an activity occurring on or after the termination day.
(2E)  An abatement certificate cannot be created later than 2 months after the termination day.
(3)  The regulations or greenhouse gas benchmark rules may specify when an activity is considered to have taken place for the purposes of this Part.
(4)    (Repealed)
s 97EC: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 36, Sch 1 [1]; 2009 No 100, Sch 1 [16].
97ED   Creation of certificate must be registered
(1)  An abatement certificate has no force or effect until the creation of the certificate is registered by the Scheme Administrator under this Part.
(2)  An application for registration of the creation of an abatement certificate may be made to the Scheme Administrator by an accredited abatement certificate provider.
(3)  The Scheme Administrator is to determine an application for registration of the creation of an abatement certificate by—
(a)  accepting the application and registering the creation of the certificate in the register of abatement certificates in accordance with this Part, or
(b)  refusing the application.
(4)  The Scheme Administrator registers the creation of a certificate by creating an entry for the certificate in the register of abatement certificates and recording the name of the person who created the certificate as the owner of the certificate.
(5)  The Scheme Administrator may refuse an application for registration of the creation of an abatement certificate on such grounds as may be specified in the regulations.
(6)  The regulations may make provision for or with respect to applications for registration of the creation of an abatement certificate, including by requiring an application fee to be paid to the Scheme Administrator.
s 97ED: Ins 2002 No 122, Sch 1 [2].
97EE   Duration of certificate
(1)  An abatement certificate, when registered by the Scheme Administrator, remains in force until it is cancelled by the Scheme Administrator.
(2)  An abatement certificate may be cancelled by the Scheme Administrator in the following circumstances—
(a)  if the person registered as the owner of the abatement certificate surrenders the certificate to the Tribunal, by indicating in the person’s greenhouse gas benchmark statement that the certificate is sought to be surrendered, and the Tribunal accepts the surrender of the certificate,
(b)  in the circumstances set out in section 97EF,
(c)  if the person registered as the owner of the abatement certificate, by notice in writing, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate.
(3)  The Scheme Administrator cancels an abatement certificate by altering the entry relating to the abatement certificate in the register of abatement certificates to show that the certificate is cancelled.
s 97EE: Ins 2002 No 122, Sch 1 [2]. Am 2005 No 17, Sch 1 [15].
97EF   Scheme Administrator may require surrender of certificates
(1)  The Scheme Administrator may, by order in writing to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, a number of abatement certificates specified in the order.
(2)  An order may be made against a person under this section only if the person is found guilty of—
(a)  an offence against section 97DD (5), or
(b)  an offence against section 97J (1).
(3)  In the case of an order made against a person found guilty of an offence against section 97J (1), the Scheme Administrator is to require the surrender of a number of certificates that is equivalent to the number of abatement certificates that, in the opinion of the Scheme Administrator, were created by the person in contravention of section 97J and registered under this Part.
Note—
The purpose of the order is to remove from circulation a number of abatement certificates that is equivalent to the number of certificates improperly created by a person, so that the improper creation of those certificates does not result in the State greenhouse gas benchmarks being exceeded.
(4)  In any other case where an order is made under this section, the Scheme Administrator is to determine the number of certificates to be surrendered in accordance with the regulations.
(5)  Abatement certificates surrendered by the person for the purpose of compliance with an order under this section are to be cancelled by the Scheme Administrator.
(6)  A certificate surrendered under an order under this section is not to be counted toward compliance with a person’s greenhouse gas benchmark or greenhouse shortfall. Accordingly, sections 97BD and 97BE do not apply in respect of certificates surrendered for the purpose of compliance with an order under this section.
(7)  A person must not fail to comply with an order under this section.
Maximum penalty—1,000 penalty units, and an additional 1 penalty unit for each certificate the person fails to surrender in accordance with the order.
(8)  If a person fails to comply with an order under this section, the Scheme Administrator may cancel any abatement certificates in respect of which the person is registered under this Part as the owner.
(9)  For avoidance of doubt, it is not an excuse for a failure to comply with an order under this section that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of abatement certificates to comply with the order.
Note—
If the person who is the subject of the order does not hold a sufficient number of certificates to comply with the order, the person may obtain the required number by purchasing them.
(10)  The regulations may make provision for or with respect to orders under this section.
s 97EF: Ins 2002 No 122, Sch 1 [2].
97EG   Records to be kept by accredited abatement certificate providers
The regulations may make provision for or with respect to the records to be kept by accredited abatement certificate providers and the information required to be provided to the Scheme Administrator in connection with the creation of abatement certificates.
s 97EG: Ins 2002 No 122, Sch 1 [2].
Division 6 Transfers and other dealings in abatement certificates
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97F   Types of abatement certificate
(1)  Two types of abatement certificate may be created—
(a)  transferable abatement certificates, and
(b)  non-transferable abatement certificates.
(2)  The regulations and greenhouse gas benchmark rules may make provision for or with respect to the entitlement of accredited abatement certificate providers to create transferable or non-transferable abatement certificates.
(3)  Subject to the regulations and greenhouse gas benchmark rules, an elective participant is entitled to create non-transferable abatement certificates only in respect of any activities of the elective participant, associated with production processes that use electricity in this State, that give rise to an entitlement to accreditation as an abatement certificate provider.
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97FA   Transferability of certificates
(1)  A transferable abatement certificate may be transferred to any person.
(2)  A non-transferable abatement certificate is not transferable, except as provided by this Division.
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97FB   Application for registration of transfer
(1)  The transfer of an abatement certificate does not have effect until the transfer is registered by the Scheme Administrator under this Part.
(2)  An application for registration of a transfer of an abatement certificate is to be made to the Scheme Administrator by the parties to the transfer.
(3)  The Scheme Administrator must—
(a)  accept the application by registering the transfer of the certificate in the register of abatement certificates, or
(b)  refuse the application.
(4)  The Scheme Administrator registers the transfer of an abatement certificate by altering the entry relating to that certificate in the register of abatement certificates so as to record the new owner of the certificate.
(5)  The Scheme Administrator may refuse an application for registration of a transfer of an abatement certificate on such grounds as may be specified in the regulations.
(6)  The Scheme Administrator must refuse an application for registration of a transfer of a non-transferable abatement certificate unless—
(a)  the Scheme Administrator is satisfied that the transfer is associated with the sale of the business, or part of the business, in connection with which the abatement certificate was created to the person to whom the certificate is to be transferred, or
(b)  the Scheme Administrator is authorised by the regulations to register the transfer.
(7)  The regulations may make provision for or with respect to applications for the registration of transfers of abatement certificates, including by requiring an application fee to be paid to the Scheme Administrator.
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97FC   Other dealings in certificates
The regulations may make provision for or with respect to the registration of any mortgage, assignment, transmission or other dealing in an abatement certificate.
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97FD   Holder of certificate may deal with certificate
(1)  The person registered as the owner of an abatement certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for any consideration for any such dealing.
(2)  Subsection (1)—
(a)  is subject to any rights appearing in the register of abatement certificates to belong to another person, being rights that are registered in accordance with any regulations made under section 97FC, and
(b)  only protects a person who deals with the person registered as the owner of the abatement certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(3)  Despite subsection (2) (b), a person who purchases an abatement certificate in good faith for value does not lose the protection provided by subsection (1) because the person has notice that a person has been found guilty of an offence against section 97J in respect of the abatement certificate.
Note—
Section 97J makes it an offence to improperly create an abatement certificate. Section 97EF allows the Scheme Administrator to require a person who has been convicted of an offence against section 97J to “make good” the improper creation of the abatement certificates by surrendering an equivalent number of abatement certificates to those improperly created to the Scheme Administrator. It is not necessary for those certificates to be the actual certificates improperly created (as those certificates may already have been sold).
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
97FE   Scheme Administrator not concerned as to legal effect of transaction
The Scheme Administrator is not concerned with the effect in law of any transaction registered under this Part or the regulations and the registration of the transaction does not give to the transaction any effect that it would not have if this Division had not been enacted.
pt 8A, div 6 (ss 97F–97FE): Ins 2002 No 122, Sch 1 [2].
Division 7 Registers
pt 8A, div 7: Ins 2002 No 122, Sch 1 [2].
97G   Establishment and keeping of registers
(1)  The Scheme Administrator is required to establish and keep the following registers for the purposes of this Part—
(a)  a register of accredited abatement certificate providers,
(b)  a register of abatement certificates.
(2)  A register may be kept wholly or partly by electronic means.
ss 97G–97GB: Ins 2002 No 122, Sch 1 [2].
97GA   Register of accredited abatement certificate providers
(1)  The register of accredited abatement certificate providers is to contain the following information in relation to each accredited abatement certificate provider—
(a)  the name of the accredited abatement certificate provider,
(b)  the type of certificates the accredited abatement certificate provider is entitled to create under this Part,
(c)  any other information required to be included in the register by this Part or the regulations.
(2)  The register of accredited abatement certificate providers may also contain such information as the regulations may prescribe in relation to a person whose accreditation as an abatement certificate provider is suspended or cancelled.
(3)  Copies of the register of accredited abatement certificate providers are to be made available for public inspection (free of charge) at the principal office of the Scheme Administrator during ordinary business hours.
(4)  Only the following information in the register of accredited abatement certificate providers is to be made available for public inspection under subsection (3)—
(a)  the information referred to in subsection (1) (a) and (b), and
(b)  any other information in the register that is required by the regulations to be made available for public inspection.
ss 97G–97GB: Ins 2002 No 122, Sch 1 [2].
97GB   Register of abatement certificates
(1)  The register of abatement certificates is to contain the following information in relation to each abatement certificate that is created under this Part—
(a)  the name of the person who created the abatement certificate,
(b)  the name of the current registered owner, and any previous registered owners, of the abatement certificate,
(c)  whether the certificate is a transferable certificate or a non-transferable certificate,
(d)  any other information required to be included in the register by this Part or the regulations.
(2)  Copies of the register of abatement certificates are to be made available for public inspection (free of charge) at the principal office of the Scheme Administrator during ordinary business hours.
(3)  Only the following information in the register of abatement certificates is to be made available to the public under subsection (2)—
(a)  the information referred to in subsection (1) (a), (b) and (c), and
(b)  any other information in the register that is required by the regulations to be made available for public inspection.
ss 97G–97GB: Ins 2002 No 122, Sch 1 [2].
97GBA   Information from registers
(1)  The Scheme Administrator may compile information concerning the following from the register of accredited abatement certificate providers and the register of abatement certificates—
(a)  the creation or cancellation of abatement certificates under this Part,
(b)  current and previous registered owners of abatement certificates,
(c)  the transfer of abatement certificates,
(d)  other information of a kind prescribed by the regulations.
(2)  The Scheme Administrator may make information compiled under subsection (1) available for public inspection (free of charge) in such form as the Administrator thinks fit.
s 97GBA: Ins 2006 No 83, Sch 1 [6].
97GC   Evidentiary provisions
(1)  A register kept under this Division is evidence of any particulars registered in it.
(2)  If a register is wholly or partly kept by electronic means, a document issued by the Scheme Administrator producing in writing particulars included in the register, or the part kept by electronic means, is admissible in legal proceedings as evidence of those particulars.
s 97GC: Ins 2002 No 122, Sch 1 [2].
97GD   Correction of register
The Scheme Administrator may correct any error in or omission from a register.
s 97GD: Ins 2002 No 122, Sch 1 [2].
Division 8 Functions of Tribunal and Scheme Administrator
pt 8A, div 8: Ins 2002 No 122, Sch 1 [2].
97H   Functions of Tribunal
(1)  The Tribunal has the following functions—
(a)  to determine, in accordance with the greenhouse gas benchmark rules, the NSW pool coefficient for greenhouse gas emissions, the State population, the estimated total electricity demand in each year for the State and the electricity sector benchmark,
(b)  to assess and determine, in accordance with this Act, the regulations and the greenhouse gas benchmark rules, the greenhouse gas benchmark for a benchmark participant and whether or not the benchmark has been complied with,
(c)  if appropriate, to assess and determine, in accordance with this Act, the regulations and the greenhouse gas benchmark rules, the greenhouse shortfall and any liability for greenhouse penalty payable by a benchmark participant,
(d)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(e)    (Repealed)
(f)  such other functions as are conferred or imposed on it by or under this Act.
(2)  For the purpose of enabling the Tribunal to exercise its functions, the Minister must furnish the Tribunal with such information in the possession of the Minister as the Tribunal may request in relation to the compliance by retailers and other benchmark participants with this Part.
(3)  The Tribunal may, with the approval of the Minister, delegate the exercise of its functions under this Part, other than this power of delegation, to any other person or body.
(4)  Section 10 of the Independent Pricing and Regulatory Tribunal Act 1992 does not apply to the Tribunal’s functions under this Part.
s 97H: Ins 2002 No 122, Sch 1 [2]. Am 2012 No 38, Sch 1 [111] [112].
97HA   Scheme Administrator
(1)  The functions of the Scheme Administrator under this Part are to be exercised by a person or body appointed by the Minister to exercise those functions or, in the absence of such an appointment, the Tribunal.
(2)  In determining whether to appoint a person or body to exercise the functions of Scheme Administrator, the Minister must consider the following matters—
(a)  the efficient costs of any such appointment,
(b)  the efficiency of administrative arrangements relating to the abatement certificate scheme,
(c)  ability to meet greenhouse objectives,
(d)  proposed governance arrangements,
(e)  arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator’s functions.
(3)  The Scheme Administrator has the following functions—
(a)  the functions conferred by this Act relating to the abatement certificate scheme established by this Part,
(b)  to monitor, and to report to the Minister on, the extent to which accredited abatement certificate providers comply with this Act, the regulations, the greenhouse gas benchmark rules and any conditions of accreditation,
(c)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d)  such other functions as are conferred or imposed on it by or under this Act or any other Act or law.
(4)  If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has such other functions as are conferred or imposed on it by the Minister under the terms of its appointment as Scheme Administrator.
(5)  For the purpose of enabling the Scheme Administrator to exercise its functions, the Minister must furnish the Scheme Administrator with such information in the possession of the Minister as the Scheme Administrator may request in relation to the compliance by accredited abatement certificate providers with this Part.
(6)  The Scheme Administrator may, with the approval of the Minister, delegate the exercise of its functions under this Part, other than this power of delegation, to any other person or body.
(7)  The Scheme Administrator, and any person acting under the direction of the Scheme Administrator, is not liable in any civil proceedings for anything done or omitted to be done in good faith in the exercise or purported exercise of any function conferred or imposed by or under this Act.
(8)  The regulations may make provision for or with respect to the appointment of a Scheme Administrator by the Minister.
(9)  The Minister may appoint more than one person or body to exercise the functions of the Scheme Administrator and may appoint different persons or bodies to exercise particular functions of the Scheme Administrator. In such a case, a reference in this Act to the Scheme Administrator, in relation to any functions of the Scheme Administrator, is a reference to the person or body appointed to exercise those functions (or, in the absence of such an appointment, the Tribunal).
ss 97HA–97HC: Ins 2002 No 122, Sch 1 [2].
97HB   Conduct of audits
(1)  The regulations may make provision for or with respect to the conduct of audits by the Tribunal, the Scheme Administrator or other persons for the purposes of this Part.
(2)  Without limiting subsection (1), the regulations may provide for the following matters—
(a)  the matters that may be the subject of an audit,
(b)  the persons who may conduct an audit,
(c)  the functions that may be exercised by persons who conduct an audit,
(d)  offences relating to obstructing or hindering persons, or refusing or failing to comply with requirements made by persons, who conduct audits.
(3)  Each benchmark participant or accredited abatement certificate provider is liable to pay to the Treasurer the cost (as certified by the Tribunal or Scheme Administrator) involved in and in connection with carrying out the Tribunal’s or Scheme Administrator’s audit functions in relation to the participant or provider.
(4)  Without limitation, a licence or accreditation may include terms and conditions relating to the determination of the cost of carrying out those functions.
ss 97HA–97HC: Ins 2002 No 122, Sch 1 [2].
97HC   Provision of information, documents and evidence
(1)  For the purposes of exercising the Tribunal’s functions under this Part (whether as the Tribunal or the Scheme Administrator), the Chairperson of the Tribunal may, by notice in writing served on an officer of a benchmark participant, an accredited abatement certificate provider or any other person, require the officer or person to do any one or more of the following—
(a)  to send to the Tribunal, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b)  to send to the Tribunal, on or before a day specified in the notice, the documents specified in the notice,
(c)  to attend a meeting of the Tribunal to give evidence.
(2)  For the purposes of exercising the Scheme Administrator’s functions under this Part, the Scheme Administrator (not being the Tribunal) may, by notice in writing served on an officer of a benchmark participant or an accredited abatement certificate provider, require the officer to do any one or more of the following—
(a)  to send to the Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b)  to send to the Scheme Administrator, on or before a day specified in the notice, the documents specified in the notice.
(3)  If documents are given to the Tribunal or Scheme Administrator under this section, the Tribunal or Scheme Administrator—
(a)  may take possession of, and make copies of or take extracts from, the documents, and
(b)  may keep possession of the documents for the period necessary for those purposes, and
(c)  during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Tribunal or Scheme Administrator.
ss 97HA–97HC: Ins 2002 No 122, Sch 1 [2].
97HD   Cabinet information and proceedings
(1)  This Part does not enable the Tribunal or Scheme Administrator—
(a)  to require any person to give any statement of information or answer any question that relates to confidential proceedings of Cabinet, or
(b)  to require any person to disclose Cabinet information, or
(c)  to inspect Cabinet information.
(2)  For the purposes of this section, a certificate of the Secretary or General Counsel of the Department of Premier and Cabinet that—
(a)  any information or question relates to confidential proceedings of Cabinet, or
(b)  information is Cabinet information,
is conclusive of that fact.
(3)  In this section—
Cabinet includes a committee of Cabinet or a subcommittee of such a committee.
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
s 97HD: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 54, Sch 2.17 [2] [6]–[9]; 2014 No 88, Sch 2.19 [2].
97HE   Confidential information
(1)  If a person provides information to the Tribunal or Scheme Administrator in connection with the Tribunal’s or Scheme Administrator’s functions under this Part on the understanding that the information is confidential and will not be divulged, the Tribunal or Scheme Administrator is required to ensure that the information is not divulged by it to any person, except—
(a)  with the consent of the person who provided the information, or
(b)  in the case of information provided to the Tribunal (whether or not acting as Scheme Administrator), to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c)  to a member or officer of the Tribunal or to an officer of the Scheme Administrator, as the case requires.
(2)  If the Tribunal or Scheme Administrator is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Tribunal or Scheme Administrator in connection with its functions under this Part, it may give directions prohibiting or restricting the divulging of the information.
(3)  A person must not contravene a direction given under subsection (2).
Maximum penalty—100 penalty units or imprisonment for 6 months, or both.
(4)  A reference in this section to information includes information given at a meeting of the Tribunal and information contained in any documents given to the Tribunal or Scheme Administrator.
s 97HE: Ins 2002 No 122, Sch 1 [2].
97HF   Annual report by Tribunal
(1)  The Tribunal must prepare and forward to the Minister a report on the extent to which benchmark participants have complied, or failed to comply, with greenhouse gas benchmarks during a compliance period.
(1A)  If the report relates to a compliance period other than the final compliance period, it is to be forwarded to the Minister as soon as practicable after 1 March (but on or before 31 July) in the following year.
(1B)  If the report relates to the final compliance period, it is to be forwarded to the Minister as soon as practicable after the day occurring 3 months after the termination day (but on or before the day occurring 7 months after the termination day).
(2)  Without limiting subsection (1), the report is to contain the following—
(a)  the identity of each benchmark participant and the performance of the participant in relation to the participant’s greenhouse gas benchmark,
(b)  the total number of abatement certificates surrendered in each category of certificate.
(3)  The report must also set out the functions delegated by the Tribunal under section 97H (3) and the person or body to whom they were delegated.
(4)  The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
s 97HF: Ins 2002 No 122, Sch 1 [2]. Am 2006 No 83, Sch 1 [7]; 2009 No 100, Sch 1 [17].
Division 9 Reviews
pt 8A, div 9: Ins 2002 No 122, Sch 1 [2].
97I   Administrative review by Civil and Administrative Tribunal of decisions about certificates and related matters
(1)  A benchmark participant or former benchmark participant who is aggrieved by any of the following decisions of the Tribunal may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a determination as to the greenhouse gas benchmark for the participant or former participant for a compliance period,
(b)  a decision to refuse to accept the surrender of an abatement certificate for the purposes of complying with the participant’s or former participant’s greenhouse gas benchmark or abating a greenhouse shortfall,
(c)  a decision to refuse to count a renewable energy certificate for the purposes of complying with the participant’s or former participant’s greenhouse gas benchmark or abating a greenhouse shortfall,
(d)  an assessment of the amount of greenhouse penalty payable by the participant or former participant for a compliance period,
(e)  any other decision of the Tribunal of a kind prescribed by the regulations.
(2)  A person who is or was accredited, or who has applied to be accredited, under this Part as an abatement certificate provider and who is aggrieved by any of the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a decision to refuse accreditation of the person as an abatement certificate provider,
(b)  a decision to cancel or suspend the accreditation of the person as an abatement certificate provider,
(c)  a decision to refuse registration of the creation of an abatement certificate,
(d)  any other decision of the Scheme Administrator of a kind prescribed by the regulations.
(3)  A person who has applied for the registration of a transfer of an abatement certificate under this Part and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4)  A person who is the subject of an order by the Scheme Administrator under this Part requiring the person to surrender abatement certificates to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
s 97I: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3]; 2013 No 95, Sch 2.52 [3].
Division 10 Offences
Note—
Under section 184 directors and managers of corporations that commit offences may be proceeded against if they knowingly authorise or permit the commission of the offence.
pt 8A, div 10: Ins 2002 No 122, Sch 1 [2].
pt 8A, div 10, note: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 36, Sch 1 [6].
97J   Improper creation of certificates
(1)  A person must not create or purport to create an abatement certificate in contravention of this Act, the regulations or the greenhouse gas benchmark rules, or the conditions (if any) of the person’s accreditation as an abatement certificate provider.
Maximum penalty—100 penalty units, and an additional 1 penalty unit in respect of each certificate created.
(2)  For avoidance of doubt, a person may be found guilty of an offence against subsection (1) whether or not the abatement certificate concerned is registered in the register of abatement certificates.
ss 97J–97JB: Ins 2002 No 122, Sch 1 [2].
97JA   Obstruction of Tribunal or Scheme Administrator
(1)  A person must not, without reasonable excuse—
(a)  refuse or fail to comply with a notice served under section 97HC, or
(b)  refuse or fail to answer a question that the person is required to answer by the Chairperson at any meeting of the Tribunal under section 97HC.
(2)  A person must not hinder, obstruct or interfere with the Chairperson or any other member of the Tribunal in the exercise of functions for the purposes of this Part as Chairperson or other member.
(3)  A person must not hinder, obstruct or interfere with the Scheme Administrator in the exercise of functions for the purposes of this Part.
(4)  It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate a natural person or make the person liable to any forfeiture or penalty.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units,
(b)  in the case of an individual—100 penalty units or 6 months imprisonment, or both.
ss 97J–97JB: Ins 2002 No 122, Sch 1 [2].
97JB   False or misleading information
A person must not, for the purposes of this Part—
(a)  give to the Tribunal or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular (unless the person informs the Tribunal or Scheme Administrator of that fact), or
(b)  at a meeting of the Tribunal, give evidence that the person knows to be false or misleading in a material particular.
Maximum penalty—2,000 penalty units or 6 months imprisonment, or both.
ss 97J–97JB: Ins 2002 No 122, Sch 1 [2].
97JC   (Repealed)
s 97JC: Ins 2002 No 122, Sch 1 [2]. Rep 2012 No 38, Sch 1 [113].
Division 11 Greenhouse gas benchmark rules
pt 8A, div 11: Ins 2002 No 122, Sch 1 [2].
97K   Greenhouse gas benchmark rules
(1)  The Minister may approve rules for or with respect to the following matters—
(a)  the methodology for calculating the number of tonnes of carbon dioxide equivalent of greenhouse gas emissions abated or to be abated by an activity, including activities the subject of renewable energy certificates,
(b)  the methodology for determining the greenhouse gas benchmark for a benchmark participant,
(c)  the methodology for determining the total number of megawatt hours of electricity supplied or purchased by a benchmark participant in a compliance period, including allowances for electricity losses from transmission or distribution to the point of use and allowances where a participant is responsible for a specified electricity load,
(d)  the methodology for determining the NSW pool coefficient for greenhouse gas emissions,
(e)  the methodology for determining the estimated State demand for electricity for a year and the proportion of that demand applicable to a benchmark participant,
(f)  the methodology for determining the State population for a compliance period,
(g)  the methodology for determining whether a benchmark participant has complied with the participant’s greenhouse gas benchmark in any compliance period,
(h)  any other matter for which a greenhouse gas benchmark rule may be made under this Part,
(i)  any other matter prescribed by the regulations.
(2)  A rule may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or any other publication, whether of the same or of a different kind.
(3)  A rule may—
(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body.
(4)  The Minister may from time to time approve amendments to the rules or a revocation of rules.
(5)  If a rule, or a rule amending or revoking a rule, is approved by the Minister—
(a)  written notice of the approval of the rule must be published in the Gazette, and
(b)  the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and
(c)  the Minister must make available a copy of the rule to each benchmark participant and make copies available to the public.
(6)  A rule must be consistent with this Act and the regulations.
Editorial note—
For notices of approval of rules under this section see Gazettes No 161 of 3.10.2003, pp 9738, 9765, 9819, 9876, 9907; No 95 of 11.6.2004, pp 3562, 3651; No 154 of 9.12.2005, p 10316; No 164 of 23.12.2005, p 11541; No 106 of 25.8.2006, p 6726; No 155 of 5.12.2008, p 11790; No 93 of 26.6.2009, p 3621; No 66 of 21.5.2010, p 2235 (see also No 69 of 28.5.2010, p 2281) and No 111 of 3.9.2010, p 4362. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
s 97K: Ins 2002 No 122, Sch 1 [2]. Am 2009 No 100, Sch 1 [3].
97KA   Obligations under greenhouse gas benchmark rules
(1)  A benchmark participant or an accredited abatement certificate provider must not contravene a greenhouse gas benchmark rule.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units,
(b)  in the case of an individual—100 penalty units.
(2)    (Repealed)
s 97KA: Ins 2002 No 122, Sch 1 [2]. Am 2012 No 38, Sch 1 [114].
Division 12 Termination of operation of Part
pt 8A, div 12: Ins 2006 No 83, Sch 1 [8].
97KB   Termination of scheme
(1)  The Governor may, by proclamation published on the NSW legislation website, do either or both of the following—
(a)  prescribe a termination day for the scheme set out in this Part,
Editorial note—
For proclamation prescribing a termination day see 2012 (179) LW 11.5.2012.
(b)  repeal any or all of the provisions of this Part.
(2)  A proclamation may be made only if the Minister has certified to the Governor that the Minister is satisfied that a scheme will apply in New South Wales that—
(a)  has been or will be established (either nationally or in this State and at least one or more other States or Territories), and
(b)  is designed to achieve outcomes that include the reduction of greenhouse gas emissions associated with the production and use of electricity and encouragement of participation in activities to offset the production of greenhouse gas emissions nationally or in the participating jurisdictions.
(3)  The repeal of any provisions of this Part takes effect on the day (being a day not earlier than the day on which the proclamation is published on the NSW legislation website) specified in the proclamation.
(4)  The termination day, or any day specified in the proclamation for the repeal of a provision of this Part, must not be a day that is earlier than the day on which the relevant scheme applies in New South Wales.
(5)  If the termination day is on 1 January in any year there is no final compliance period.
(6)  Regulations may be made for or with respect to the effect of the repeal of any provisions on rights conferred or obligations imposed under this Part.
(7)  Without limiting subsection (6), the regulations may specify conditions that must be complied with in respect of the repeal of a provision.
s 97KB: Ins 2006 No 83, Sch 1 [8]. Subst 2009 No 100, Sch 1 [18].
Part 8B Energy security safeguard
pt 8B: Ins 2020 No 5, Sch 1.10[1].
Division 1 Preliminary
pt 8B, div 1: Ins 2020 No 5, Sch 1.10[1].
98A   Definitions
In this Part—
energy activity—see section 98C.
safeguard—see section 98B.
scheme object—see section 98D(1).
pt 8B, div 2 (ss 98A–98C): Ins 2020 No 5, Sch 1.10[1].
Division 2 Constitution and object of safeguard
pt 8B, div 2 (ss 98A–98C): Ins 2020 No 5, Sch 1.10[1].
98B   Constitution of safeguard
The energy security safeguard (the safeguard) is constituted by the schemes provided for in Schedule 4A.
pt 8B, div 2 (ss 98A–98C): Ins 2020 No 5, Sch 1.10[1].
98C   Object of safeguard
The object of the safeguard is to improve the affordability, reliability and sustainability of energy through the creation of financial incentives that encourage the consumption, contracting or supply of energy in particular ways (that consumption, contracting or supply of energy being an energy activity).
pt 8B, div 2 (ss 98A–98C): Ins 2020 No 5, Sch 1.10[1].
Division 3 Schemes to give effect to object of safeguard
pt 8B, div 3: Ins 2020 No 5, Sch 1.10[1].
98D   Giving effect to object of safeguard through schemes
(1)  The object of the safeguard may be given effect to by the establishment, by a regulation that amends Schedule 4A (other than Part 1 of Schedule 4A), of a scheme whose object is to encourage a specified energy activity (the scheme object).
(2)  A scheme so established may deal with the following matters—
(a)  the persons who may or are required to participate in the scheme (scheme participants) and the classes of scheme participants,
(b)  the scheme’s annual target or targets in respect of or related to energy activities for each class of scheme participant (the scheme target or scheme targets),
(c)  annual individual targets (individual targets), which may involve contingencies,
(d)  the requirement for scheme participants to meet individual targets,
(e)  the penalty payable per certificate which is not surrendered as required to satisfy an individual target,
(f)  the carrying forward, to a later year, of an individual target shortfall,
(g)  exemptions from the scheme, and the effect of those exemptions,
(h)  the lodging, by a scheme participant, of an annual statement regarding the scheme participant’s individual target and the estimated penalty payable in respect of an individual target shortfall,
(i)  the assessment of a scheme participant’s liability for the payment of penalties under the scheme,
(j)  certificates in respect of energy activities, including the circumstances in which, and terms upon which, certificates may be or are created, allocated, traded, transferred, sold, forfeited, or surrendered (including the specific energy activities in respect of which those certificates may be created, and the circumstances in which, and terms upon which, the energy activity needs to occur for certificates to be created), the persons by whom certificates may be created (certificate providers), offences for the improper creation of certificates, and the surrender of certificates by scheme participants to a scheme regulator to meet an individual target,
(k)  the accreditation of certificate providers and accreditation in respect of energy activities including eligibility and applications for accreditation, duration and conditions of accreditation, the transfer of accreditation, and information and records of accredited certificate providers and accreditation in respect of energy activities,
(l)  the registration, form and duration of certificates,
(m)  transfers and other dealings in certificates, including the purchase, transfer, sale, surrender or forfeiture of certificates and the price of certificates (including by a scheme administrator),
(n)  administration of the scheme, including the appointment, functions (including functions with respect to contracting), entitlements and removal or replacement of a scheme regulator and a scheme administrator, the establishment, custody and keeping of accounts, the maintenance and custody of records, application of funds from the scheme administrator’s sale of certificates, novation or transfer of a scheme regulator or administrator’s rights, powers and obligations to a replacement scheme regulator or scheme administrator, and the conduct of audits and the provision of information in connection with the scheme (including the requirements made by the scheme regulator or scheme administrator for a person to provide information in connection with the scheme),
(o)  the establishment and keeping of registers in connection with the scheme, including a register of certificates and of accredited certificate providers, and the information in those registers,
(p)  the application of the scheme to a person who ceases to be a scheme participant,
(q)  administrative review under the Administrative Decisions Review Act 1997 of a decision by the scheme regulator or the scheme administrator,
(r)  the periodic review of the scheme by the Minister,
(s)  waiver or suspension by the Minister of a scheme participant’s obligations,
(t)  the termination of the scheme,
(u)  the functions of the Minister.
s 98D: Ins 2020 No 5, Sch 1.10[1].
98E   Regulations to amend Schedule 4A
In establishing a scheme, the regulations may amend Schedule 4A (other than Part 1 of Schedule 4A) to make provision for or with respect to any matter that is necessary or convenient for carrying out or giving effect to the object of the safeguard and, in particular, for or with respect to the following—
(a)  a matter referred to in section 98D,
(b)  any other matter that is consequent on, or ancillary or incidental to, a matter referred to in section 98D,
(c)  the subdelegation, to rules approved by the Minister (scheme rules), of provision with respect to a matter referred to in section 98D or paragraph (b) (but only if the scheme rules are not inconsistent with this Act or the regulations),
(d)  the creation of an offence punishable by a penalty not exceeding 10,000 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case).
s 98E: Ins 2020 No 5, Sch 1.10[1].
98EA   Regulations for schemes established by regulations amending Schedule 4A
(1)  The regulations may make provision for or with respect to a scheme established under section 98D.
(2)  Subsection (1) is limited to matters for which regulations may be made under Schedule 4A, Part 1 for the energy savings scheme, with necessary modifications for the scheme concerned.
s 98EA: Ins 2020 No 44, Sch 2.1[1].
Division 4 Limitations on schemes
pt 8B, div 4: Ins 2020 No 5, Sch 1.10[1].
98F   Schemes must have scheme objects consistent with object of safeguard
The regulations cannot amend Schedule 4A to establish a scheme unless the scheme includes a scheme object that is consistent with the object of the safeguard.
s 98F: Ins 2020 No 5, Sch 1.10[1].
98G   No further provision for schemes after 2021
(1)  The regulations cannot amend Schedule 4A after 31 December 2021.
(2)  Despite subsection (1), regulations may be made under section 98EA after 31 December 2021.
s 98G: Ins 2020 No 5, Sch 1.10[1]. Am 2020 No 44, Sch 2.1[2].
Part 9
Renumbered as Part 1 of Schedule 4A
pt 9: Ins 2009 No 36, Sch 1 [2]. Renumbered as Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 1: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 1 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 98: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [1]. Renumbered as cl 1 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 99: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [2]–[4]. Renumbered as cl 2 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 2: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 2 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 100: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 3 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 101: Ins 2009 No 36, Sch 1 [2]. Am 2012 No 38, Sch 1 [115] [116]. Renumbered as cl 4 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 102: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 5 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 3: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 3 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 103: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 6, 7 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 104: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 6, 7 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 105: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [5]. Renumbered as cl 8 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 4: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 4 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 106: Ins 2009 No 36, Sch 1 [2]. Am 2012 No 38, Sch 1 [117]; 2015 No 35, Sch 1 [6]–[9]. Renumbered as cl 9 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 107: Ins 2009 No 36, Sch 1 [2]. Am 2012 No 38, Sch 1 [118]; 2013 No 47, Sch 1.11; 2015 No 35, Sch 1 [10]. Renumbered as cl 10 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 108: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 11, 12 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 109: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 11, 12 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 110: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [11]. Renumbered as cl 13 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 111: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [12]. Renumbered as cl 14 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 112: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 15 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 113: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [13] [14]. Renumbered as cl 16 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 114: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [15]–[19]. Renumbered as cl 17 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 115: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 18 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8]. Renumbered as cl 18 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 116: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [20]; 2020 No 5, Sch 1.10[2]. Renumbered as cl 19 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 117: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 20, 21 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 118: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 20, 21 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 5: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 5 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
ss 119–121: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 22–24 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 122: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [21]. Renumbered as cl 25 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 6: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 6 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 123: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 26 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 124: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [22]. Renumbered as cl 27 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 125: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 28, 29 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 126: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 28, 29 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 7: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 7 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 127: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [23] [24]. Renumbered as cl 30 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 128: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [25]. Renumbered as cl 31 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 129: Ins 2009 No 36, Sch 1 [2]. Subst 2015 No 35, Sch 1 [26]. Renumbered as cl 32 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 130: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [27]–[31]. Renumbered as cl 33 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
ss 131–133: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 34–36 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 8: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 8 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 134: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 37 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 135: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [32]. Renumbered as cl 38 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
ss 136–141: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 39–44 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 142: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [33] [34]; 2017 No 22, Sch 1.5 [1]. Renumbered as cl 45 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 9: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 9 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 143: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [35] [36]; 2017 No 22, Sch 1.5 [2]. Renumbered as cl 46 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 144: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 47, 48 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 145: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 47, 48 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 10 (ss 146–150): Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 10 (cll 49–53) of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 11: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 11 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 151: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 54 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 152: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [37]. Renumbered as cl 55 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 153: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 56 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 154: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [38]. Renumbered as cl 57 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 155: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 58 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 156: Ins 2009 No 36, Sch 1 [2]. Am 2017 No 22, Sch 1.5 [3]. Renumbered as cl 59 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
ss 157–159: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 60–62 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 160: Ins 2009 No 36, Sch 1 [2]. Am 2010 No 119, Sch 2.18 [3]–[5]; 2014 No 88, Sch 2.19 [3]. Renumbered as cl 63 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 12: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 12 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 161: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 64, 65 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 162: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 64, 65 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 163: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [39]. Renumbered as cl 66 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
ss 164–166: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 67–69 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 13: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 13 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 167: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [40]. Renumbered as cl 70 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 168: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 71 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
pt 9, div 14: Ins 2009 No 36, Sch 1 [2]. Renumbered as Div 14 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 169: Ins 2009 No 36, Sch 1 [2]. Rep 2012 No 38, Sch 1 [119].
s 170: Ins 2009 No 36, Sch 1 [2]. Renumbered as cl 72 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 171: Ins 2009 No 36, Sch 1 [2]. Am 2013 No 95, Sch 2.52 [4]. Renumbered as cl 73 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 172: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 74, 75 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 173: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 74, 75 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 174: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [41]–[44]. Renumbered as cl 76 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 175–177: Ins 2009 No 36, Sch 1 [2]. Renumbered as cll 77–79 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
s 178: Ins 2009 No 36, Sch 1 [2]. Am 2015 No 35, Sch 1 [45]; 2020 No 5, Sch 1.10[3] [4]. Renumbered as cl 80 of Part 1 of Sch 4A 2020 No 5, Sch 1.10[8].
Part 10 Miscellaneous
pt 10 (previously Part 9): Renumbered 2009 No 36, Sch 1 [6].
179A   Compensation not payable
(1)  Compensation is not payable by or on behalf of the State—
(a)  because of the enactment, making or operation of any of the following—
(i)  Part 8A,
(ii)  the Electricity Supply Amendment (GGAS) Act 2009 or any other Act that amends Part 8A,
(iii)  any instrument under Part 8A, or
(b)  because of any consequence of any such enactment, making or operation, or
(c)  because of any statement or conduct relating to any such enactment, making or operation, or
(d)  because of any statement or conduct relating to accreditation as an abatement certificate provider under Part 8A or to abatement certificates within the meaning of that Part.
(1A)  Compensation is not payable by or on behalf of the State—
(a)  because of the enactment, making or operation of the Electricity Supply Amendment (Solar Bonus Scheme) Act 2009 or the Electricity Supply Amendment (Solar Bonus Scheme) Act 2010 (including a provision inserted in this Act by either of those Acts and an instrument made under any such provision), or
(b)  because of any consequence of any such enactment, making or operation, or
(c)  because of any statement or conduct relating to any such enactment, making or operation, or
(d)  because of any statement or conduct relating to the rate at which a credit would be recorded under the solar bonus scheme (being the scheme for the payment of electricity supplied to the network by former regulated offer customers using complying generators within the meaning of section 15A), the persons who would be eligible to receive a credit under the scheme or the duration of the scheme.
(1B)  Compensation is not payable by or on behalf of the State—
(a)  because of the enactment, making or operation of Part 7A (including the giving of an electricity supply emergency direction under that Part), or
(b)  because of any consequence of any such enactment, making or operation, or
(c)  because of any statement or conduct relating to any such enactment, making or operation.
(2)  This section extends to statements, conduct and any other matter occurring before the commencement of this section.
(3)  In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
statement includes a representation of any kind—
(a)  whether made verbally or in writing, and
(b)  whether negligent, false, misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988 or an officer, employee or agent of the Crown.
s 179A: Ins 2009 No 100, Sch 1 [19]. Am 2010 No 82, Sch 1 [6]; 2012 No 38, Sch 1 [120]; 2015 No 36, Sch 3 [21] [22]; 2017 No 59, Sch 1 [4].
179   Exercise of functions where more than one network operator
When a distribution system or transmission system has more than one network operator, any function of the network operator under this Act or the regulations (including a function conferred on a distributor or transmission operator) may be exercised by any one of the network operators (subject to any agreement between the network operators) and when exercised by any one of them is taken to have been exercised by each of them.
s 179 (previously s 98): Am 1997 No 20, Sch 1.3 [15] [16]; 1997 No 21, Sch 1 [21]. Renumbered 2009 No 36, Sch 1 [6]. Rep 2012 No 38, Sch 1 [121]. Ins 2015 No 5, Sch 8.7 [31].
180   Confidentiality of information provided to Tribunal
(1)  If a person provides information to the Tribunal in connection with the functions of the Tribunal under this Act on the understanding that the information is confidential and will not be divulged, the Tribunal is required to ensure that the information is not divulged by it to any person, except—
(a)  with the consent of the person who provided the information, or
(b)  to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c)  to a member or officer of the Tribunal, or
(d)  as required by any other law.
(2)  If the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Tribunal in connection with its functions under this Act, it may give directions prohibiting or restricting the divulging of the information.
(3)  A person must not contravene a direction given under this section.
Maximum penalty—1000 penalty units or imprisonment for 6 months, or both.
(4)  A reference in this section to information includes information furnished in compliance with a requirement under this Act, information given in evidence to the Tribunal and information contained in any documents provided to the Tribunal.
s 180 (previously s 99): Am 2001 No 18, Sch 2 [8]. Renumbered 2009 No 36, Sch 1 [6]. Rep 2012 No 38, Sch 1 [122]. Ins 2015 No 5, Sch 8.7 [31].
181   Electricity network pricing determinations
An electricity network pricing determination referred to in Division 4 of Part 4 or Division 2 of Part 4A is to be made under the National Electricity Rules as if Division 5 of Part 3, Division 4 of Part 4 and Part 4A of this Act had not been enacted.
s 181 (previously s 99A): Ins 1997 No 36, Sch 1 [4]. Am 1998 No 78, Sch 1 [6]; 1999 No 85, Sch 1.11 [12]. Renumbered 2009 No 36, Sch 1 [6]. Am 2012 No 38, Sch 1 [123].
181A   Cyber security requirements
(1)  The regulations may make provision for the following—
(a)  the adoption and implementation by a relevant person of policies and procedures for managing cyber security risks and responding to cyber security incidents,
(b)  the external review and accreditation of a relevant person’s policies and procedures for managing cyber security risks and responding to cyber security incidents.
(2)  Without limiting subsection (1), the regulations may require a relevant person’s policies and procedures to address the following matters—
(a)  notifying the Secretary of cyber security incidents,
(b)  the process for auditing the relevant person’s implementation and compliance with the policies and procedures and the reporting of the audit result to the Secretary.
(3)  In this section—
relevant person means the following—
(a)  a network operator,
(b)  an electricity generator,
(c)  a person who is a member of a class of persons prescribed by the regulations.
s 181A: Ins 2010 No 50, Sch 1.1 [1]. Rep 2012 No 38, Sch 1 [124]. Ins 2021 No 34, Sch 1[25].
182   Agreement with licensed distributors
The Treasurer, on behalf of the Government, may enter into an agreement in writing with one or more of the licensed distributors relating to distributors’ levies and such other matters as the Treasurer determines.
s 182 (previously s 99B): Ins 1997 No 36, Sch 1 [4]. Am 2000 No 109, Sch 1 [57] [58]. Renumbered 2009 No 36, Sch 1 [6].
183   Delegation of Minister’s functions
(1)  The Minister may delegate to any eligible person any of the functions conferred or imposed on the Minister by or under this Act, other than this power of delegation or functions under section 94B.
(1A)    (Repealed)
(2)  In this section, eligible person means—
(a)  any public authority, or
(a1)  any Public Service employee, or
(a2)  a committee established under section 34W of the Energy and Utilities Administration Act 1987, or
(b)  any person prescribed by the regulations or belonging to a class of persons prescribed by the regulations.
s 183 (previously s 100): Am 2000 No 109, Sch 1 [59]. Renumbered 2009 No 36, Sch 1 [6]. Am 2012 No 38, Sch 1 [125]; 2017 No 59, Sch 1 [5] [6]; 2020 No 44, Sch 2.1[3].
183A   Personal liability of authorised officers
(1)  A matter or thing done or omitted to be done by an authorised officer appointed by a network operator or retailer does not, if the matter or thing was done or omitted in good faith for the purpose of exercising a function under this Act, subject any such officer personally to any action, liability, claim or demand.
(2)  However, any such liability attaches instead to the network operator or retailer concerned.
s 183A: Ins 2009 No 31, Sch 1 [6]. Am 2016 No 8, Sch 1 [14].
184   Directors and managers liable for offences committed by corporations
(1)  If a corporation contravenes a provision of this Act or the regulations, each person who—
(a)  is a director of the corporation, or
(b)  is concerned in the management of the corporation,
is to be treated as having contravened that provision if the person knowingly authorised or permitted the contravention.
(2)  A person may, under this section, be proceeded against and convicted for a contravention of that provision whether or not the corporation has been proceeded against or convicted for a contravention of that provision.
(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
s 184 (previously s 101): Renumbered 2009 No 36, Sch 1 [6].
185   Proceedings for offences
(1)  Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court.
(2)  Proceedings for an offence against this Act or the regulations may instead be dealt with summarily before the Supreme Court in its summary jurisdiction.
(3)  Proceedings for an offence against this Act or the regulations may be instituted at any time within 2 years after the commission of the offence.
(3A)  Proceedings for an offence under Schedule 4A or a regulation made under Schedule 4A may be commenced at any time within 2 years after the date on which evidence of the alleged offence first came to the attention of the Scheme Administrator or the Scheme Regulator.
(3B)  If subsection (3A) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of the Scheme Administrator or Scheme Regulator and need not contain particulars of the date on which the offence was committed.
(3C)  The date on which evidence first came to the attention of the Scheme Administrator or Scheme Regulator is the date specified in the court attendance notice or application, unless the contrary is established.
(4)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations is 100 penalty units (in the case of a corporation) and 50 penalty units (in any other case).
(5)  The maximum penalty that may be imposed by the Supreme Court in proceedings for an offence against this Act or the regulations is the maximum penalty specified by the relevant section of this Act, or relevant clause of the regulations, in respect of the offence.
s 185 (previously s 102): Am 1999 No 85, Sch 2.16 [1]; 2001 No 121, Sch 2.95; 2003 No 40, Sch 2.10 [1]–[3]. Renumbered 2009 No 36, Sch 1 [6]. Am 2007 No 94, Sch 2; 2021 No 34, Sch 1[26].
186   Recovery of fees and penalties
Any fee payable under a condition of a licence or payable under Part 8A or 9, and any monetary penalty imposed by the Minister on the holder of a licence or a director or person concerned in the management of the holder of a licence, may be recovered in any court of competent jurisdiction as a debt due to the Crown.
s 186 (previously s 103): Subst 1997 No 21, Sch 1 [22]. Am 1997 No 20, Sch 1.3 [17]; 2002 No 122, Sch 1 [3]; 2009 No 36, Sch 1 [3]. Renumbered 2009 No 36, Sch 1 [6]. Am 2015 No 5, Sch 8.7 [32].
187   Penalty notices
(1)  An enforcement officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this section.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(6)  In this section, enforcement officer means—
(a)  a police officer, or
(b)  a person employed in a government sector agency (within the meaning of the Government Sector Employment Act 2013) who is authorised in writing by the Minister to act as an enforcement officer for the purposes of this section.
s 187 (previously s 103A): Ins 2002 No 122, Sch 1 [4]. Renumbered 2009 No 36, Sch 1 [6]. Am 2015 No 35, Sch 1 [46] [47]. Subst 2017 No 22, Sch 3.18.
188   Recovery of charges by network operators, wholesale suppliers and retailers
Any money due to a network operator or a wholesale supplier or retailer may be recovered by it as a debt in any court of competent jurisdiction.
s 188 (previously s 104): Renumbered 2009 No 36, Sch 1 [6]. Am 2012 No 38, Sch 1 [126].
189   Application of Act outside local government areas
(1)  This Act applies to the unincorporated area as if—
(a)  references to a local government area were references to the unincorporated area, and
(b)  references to a local council were references to the Minister administering the Crown Land Management Act 2016.
(2)  This Act applies to Lord Howe Island as if—
(a)  references to a local government area were references to Lord Howe Island, and
(b)  references to a local council were references to the Lord Howe Island Board.
(3)  The regulations may exempt the Lord Howe Island Board, and any matter relating to this Act in its application to Lord Howe Island, from the operation of any specified provision of this Act.
s 189 (previously 105): Renumbered 2009 No 36, Sch 1 [6]. Am 2017 No 17, Sch 4.26 [3].
190   Provision of information to Minister
(1)  The Minister may, by notice in writing, require AEMO to provide to the Minister the information specified in the notice.
(2)  The Minister may only require information to be provided if satisfied that it is required for the exercise by the Minister of functions under this Act or the regulations.
(3)  AEMO must provide information if requested to do so by the Minister in accordance with this section.
(4)  The Minister must consult with AEMO before disclosing information obtained under this section.
s 190 (previously s 105A): Ins 2005 No 17, Sch 1 [16]. Renumbered 2009 No 36, Sch 1 [6]. Am 2009 No 56, Sch 1.12 [1]; 2012 No 38, Sch 1 [127].
190A   Reports to Parliament
(1)  If a House of Parliament is not sitting when the Minister seeks to table a report required by this Act to be laid before the House, the Minister may present copies of the report to the Clerk of the House.
(2)  The report—
(a)  on presentation and for all purposes is taken to have been laid before the House, and
(b)  may be printed by authority of the Clerk of the House, and
(c)  if printed by authority of the Clerk, is for all purposes taken to be a report published by or under the authority of the House, and
(d)  is to be recorded—
(i)  in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council, and
(ii)  in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by the Clerk.
s 190A: Ins 2012 No 38, Sch 1 [128].
191   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 and, in particular, for or with respect to the following matters—
(a)    (Repealed)
(b)  the functions of customer consultative groups,
(c)–(c3)    (Repealed)
(d)  the conditions that may be imposed on licences,
(e)  the functions of authorised officers,
(e1)  requirements for the marking or labelling of the connection point in relation to the premises of wholesale or retail customers,
(e2)  distributor service standards for distributors, including enforcement of such standards,
(f)  the obligations of an energy ombudsman under an approved energy ombudsman scheme to provide copies of reports to the Minister and to report to the Minister on the operation of the scheme,
(f1)  facilitating the Government’s social programs for electricity, including—
(i)  the adoption of Codes with respect to the implementation of any such program in relation to a specified class or specified classes of customers, and
(ii)  the payment and assessment of implementation and enforcement costs, and
(iii)  the publication of Codes, and
(iv)  the application of such programs to distributors, retailers, exempt sellers and other persons, and
(v)  the enforcement of Codes, in particular the giving and enforcement of undertakings with respect to compliance with Codes, and
(vi)  the conferral of jurisdiction on the Local Court with respect to the enforcement of undertakings,
(g)  the procedures to be observed by network operators in connection with calling for tenders and the matters in respect of which network operators must call for tenders,
(g1)  the development and implementation by network operators of plans designed to ensure the safe operation of their transmission or distribution systems (including plans relating to the provision of safe electrical installations for connection to distribution systems),
(g2)  the development and implementation by network operators of plans designed to ensure that their transmission or distribution systems are adequate for the demand placed on them and that the supply of electricity by those systems is of an appropriate quality and level of reliability,
(h)  the removal or trimming of trees by distributors,
(h1)  information and returns to be provided by benchmark participants under Part 8A and scheme participants under Schedule 4A,
(h2)  fees for audits and other monitoring or accreditation activities or services provided by the Tribunal or Scheme Administrator under Part 8A or by the Minister, a scheme regulator or scheme administrator under Schedule 4A,
(i)    (Repealed)
(j)  the manner in which a notice or other document that is authorised or required to be given by or under this Act is to be given.
(1A)  Without limiting subsection (1), regulations may be made for or with respect to any of the following matters—
(a)  the installation, use, maintenance and removal of corrosion protection systems and stray current sources, including but not limited to the following matters—
(i)  the examination or testing of such systems or sources,
(ii)  the approval or registration of such systems or sources,
(iii)  the stamping or labelling of such systems or sources,
(iv)  standards for such systems or sources,
(v)  fees for the approval, registration, examination or testing of such systems or sources,
(vi)  the provision of documents, reports or other information concerning such systems or sources,
(b)  the keeping by network operators of books, accounts or other records,
(c)  interference by persons with electrical installations or other electrical equipment,
(d)  standards for the voltages to be maintained at the terminals of consumers of electricity,
(e)  safety in connection with the generation, transmission or distribution of electricity,
(f)  the fees to be charged by network operators for the inspection and testing of an electrical installation,
(g)  the connection and disconnection of an electrical installation to a supply of electricity,
(h)  the carrying out of work to remove a danger or to remedy a defect relating to the distribution or transmission of electricity,
(i)  standards for electrical installations and other equipment used for or in connection with the generation or supply of electricity and for materials used in the manufacture of such equipment, and the adoption of engineering standards for such installations, equipment and materials,
(j)  the supply of electricity to the distribution network by customers using renewable energy generators, including but not limited to, requiring retailers to acquire such electricity from customers or classes of customers.
(k)    (Repealed)
(2)  The regulations may, either unconditionally or subject to conditions, exempt—
(a)  any specified person or class of persons, or
(b)  any specified matter or class of matters,
from the operation of any one or more of sections 13, 16, 63Y and 63Z.
(2A)  The regulations may exempt Rail Corporation New South Wales, Sydney Metro, Sydney Trains or Transport for NSW (or any person who operates a distribution system for or on behalf of any of those entities) from the operation of any one or more of sections 89–91.
(3)  A regulation may create an offence punishable by a penalty not exceeding 10,000 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case).
(3A)  The regulations may apply, adopt or incorporate (with or without modification) any publication as in force at a particular time or from time to time.
(3B)  A regulation made for the purposes of subsection (1A) prevails over a regulation made under the Local Government Act 1993, to the extent of any inconsistency.
(3C)  A regulation made for the purposes of subsection (1A) binds the Crown if expressed so to do.
(4)  Regulations may not be made with respect to any of the matters referred to in subsection (1) (b) unless the Minister certifies to the Governor that the Minister has consulted with the Minister for Innovation and Better Regulation and the Tribunal in connection with those regulations.
s 191 (previously s 106): Am 1996 No 56, Sch 2.8 [3]; 1996 No 121, Sch 1.3 [3]; 1997 No 20, Sch 1.3 [18]–[20]; 1997 No 21, Sch 1 [23] [24]; 1998 No 8, Sch 2.4 [1]; 1999 No 85, Sch 1.11 [13]; 2000 No 60, Sch 1.2 [9]; 2000 No 109, Sch 1 [60]–[62]; 2002 No 122, Sch 1 [5]–[7]; 2003 No 96, Sch 3.3 [1]; 2004 No 4, Sch 2 [5] [6]; 2005 No 17, Sch 1 [17] [18]; 2008 No 115, Sch 2.1 [1]; 2009 No 31, Sch 1 [7]; 2009 No 36, Sch 1 [4]–[6]. Renumbered 2009 No 36, Sch 1 [6]. Am 2009 No 101, Sch 1 [6]; 2010 No 31, Sch 4.2; 2012 No 38, Sch 1 [129]–[136]; 2014 No 70, Sch 1 [5]; 2014 No 88, Sch 1.6 [5] [6]; 2015 No 5, Sch 8.7 [33] [34]; 2015 No 58, Sch 1.5 [2]; 2016 No 27, Sch 2.15; 2017 No 12, Sch 1.4 [2] [3]; 2018 No 18, Sch 2.7 [2]; 2020 No 5, Sch 1.10[5] [6]; 2021 No 34, Sch 1[27].
192   Recovery of distribution and transmission charges from green hydrogen producers
(1)  The regulations may provide for limitations on the recovery by a network service provider of charges from a person who buys electricity to produce green hydrogen that the network service provider is otherwise entitled to recover from the person under a determination.
(2)  The regulations may modify the application of, or disapply, a provision of the National Electricity (NSW) Law or the National Electricity Rules to the extent reasonably necessary to give effect to regulations made under subsection (1).
(3)  The regulations may not have the effect of reducing the total revenue earned by a network service provider under a determination.
(4)  The regulations may make further provision in relation to whether electricity is taken to be used to produce green hydrogen.
(5)  In this section—
determination means a distribution determination or transmission determination under the National Electricity (NSW) Law.
green hydrogen means hydrogen produced using renewable energy.
network service provider means a distribution network service provider or transmission network service provider within the meaning of the National Electricity Rules.
s 192 (previously s 107): Renumbered 2009 No 36, Sch 1 [6]. Rep 2012 No 38, Sch 1 [137]. Ins 2021 No 34, Sch 1[28].
192A   Regulations relating to community-scale batteries
(1)  The regulations may provide for the construction and use of community-scale batteries, including provisions that deal with the following—
(a)  authorising and facilitating the ownership and operation of community-scale batteries, or classes of community batteries, by specified persons,
Example—
Regulations could authorise and facilitate the ownership and operation of community-scale batteries by the following—
(a)  local councils,
(b)  distribution network service providers,
(c)  incorporated associations,
(d)  co-operatives.
(b)  regulating service tariffs for energy flows between connection points where a community-scale battery scheme operates,
(c)  exempting community-scale batteries from fees, charges or tariffs under this or any other Act,
(d)  ensuring community-scale batteries do not compromise the energy security and reliability of the distribution and transmission systems.
(2)  The regulations may modify the application of, or disapply, a provision of the National Electricity (NSW) Law or the National Electricity Rules to the extent reasonably necessary to give effect to regulations made under subsection (1).
(3)  In this section, community-scale battery is a battery or series of inter-connected batteries with a storage capacity not exceeding 30 megawatts.
s 192A: Ins 2021 No 34, Sch 1[28].
s 108 (as originally enacted): Rep 2006 No 58, Sch 4.
193   Savings, transitional and other provisions
Schedule 6 has effect.
s 193 (previously s 109): Renumbered 2009 No 36, Sch 1 [6].
194, 195   (Repealed)
s 194 (previously s 110): Am 2000 No 109, Sch 1 [63]. Renumbered 2009 No 36, Sch 1 [6]. Subst 2009 No 101, Sch 1 [7]. Rep 2012 No 38, Sch 1 [138].
s 195: Ins 2009 No 101, Sch 1 [7]. Am 2010 No 82, Sch 1 [7] [8]; 2015 No 36, Sch 3 [23]. Rep 2021 No 34, Sch 1[29].
196   Power of entry by metering coordinator and metering provider
(1)  A metering coordinator or metering provider may enter the premises of a customer for the following purposes—
(a)  reading, testing, maintaining, inspecting or altering any metering installation at the premises,
(b)  calculating or measuring energy supplied or taken at the premises,
(c)  checking the accuracy of metered consumption at the premises,
(d)  replacing meters.
(2)  A power of entry to premises under this section may be exercised only during daylight hours except—
(a)  in an emergency, or
(b)  if there is a problem with a meter on the premises that poses a risk to safety.
(3)  Sections 55, 58–60 and 62 apply to the power of entry conferred on a metering coordinator or metering provider under this section in the same way as they apply to a power of entry conferred on an authorised officer under Division 3 of Part 5.
(4)  In this section—
metering coordinator has the same meaning as in the National Electricity Rules.
metering provider has the same meaning as in the National Electricity Rules.
s 196: Ins 2016 No 8, Sch 1 [15]. Am 2021 No 23, Sch 1.7; 2021 No 34, Sch 1[30]–[33].
Schedule 1 (Repealed)
sch 1: Rep 1997 No 20, Sch 1.3 [21].
Schedule 2 Licences
(Sections 14 and 33)
1   Licences
(1)  Subject to any conditions imposed by or under this Act, a distributor’s licence authorises its holder, and any other person specified in the licence, to operate the distribution system so specified for the purpose of conveying electricity for or on behalf of retailers.
(2)  Subject to any conditions imposed by or under this Act, a transmission operator’s licence authorises its holder, and any other person specified in the licence, to operate the transmission system so specified.
2   Applications
An application for a licence or for the transfer of a licence—
(a)  must be accompanied by such fee as may be determined by the Minister, and
(b)  must contain such information as may be determined by the Minister, and
(c)  must be lodged at the office of the Tribunal.
3   Public consultation
(1)  Before determining an application for a licence or for the transfer of a licence, the Minister must cause notice of the application to be published in the Gazette and in such other manner as the Minister is satisfied is likely to bring the notice to the attention of members of the public.
(2)  The notice must indicate—
(a)  the nature of the licence to which the application relates, and
(b)  the identity of the proposed holder of the licence, and
(c)  the area in which the licence, if granted or transferred, would operate, and
(d)  where submissions on the application should be lodged, and
(e)  the time (being not less than 40 days from the date on which the notice is published) within which any such submissions should be lodged, and
(f)  such other matters as may be prescribed by the regulations.
(3)  The Minister must give due consideration to matters arising from any submissions under this clause.
(4)  The Minister must cause a report summarising the substance of any submissions received with respect to an application for a licence to be prepared.
(5)  The report—
(a)  must indicate the Minister’s decision with respect to the application, and
(b)  must contain such other information as may be prescribed by the regulations, and
(c)  must be kept available at the office of the Tribunal for inspection by members of the public, free of charge, during normal office hours.
4   Determination of applications
(1)  The Minister may determine an application for a licence or for the transfer of a licence by granting or transferring the licence (either unconditionally or subject to conditions of the kind referred to in clause 6) or by refusing the application.
(2)  An application for a distributor’s licence may be refused on the following grounds—
(a)  that the proposed holder of the licence fails to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a distributor,
(b)  such grounds as may be prescribed by the regulations,
(c)  such grounds as the Minister considers relevant, having regard to the need to promote a competitive retail market for electricity, to prevent misuse of market power and to ensure the security and reliability of the State electricity supply system.
(2A)  An application for a transmission operator’s licence may be refused on the following grounds—
(a)  such grounds as may be prescribed by the regulations,
(b)  such grounds as the Minister considers relevant, having regard to the need to ensure the security and reliability of the State electricity supply system.
(3)  The Minister must consult with such other Ministers as the Minister considers appropriate before granting a licence under this clause.
5   Duration of licences
Subject to the conditions imposed on it, a licence remains in force until it is cancelled.
6   Conditions of licences
(1)  A licence is subject to the following conditions—
(a)  the conditions imposed by this Act and the regulations or by or under any other Act,
(b)  such other conditions (not inconsistent with those imposed by this Act and the regulations) as the Minister may from time to time impose in relation to the licence.
(2)  Without limitation, the Minister may impose the following kinds of conditions on a licence—
(a)  a condition specifying the period for which the licence is to remain in force,
(b)  a condition requiring the holder of the licence to exercise its functions under this Act in accordance with specified guidelines or subject to specified restrictions,
(c)  a condition requiring the holder of the licence to continue to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a distributor or transmission operator,
(d)  a condition requiring the holder of the licence to maintain specified insurance cover in respect of specified risks,
(e)  a condition requiring the affairs of the holder of the licence in relation to the operation of a distribution system to be kept separate, to the extent specified in the condition, from the affairs of the holder of the licence in relation to the supply of electricity,
(f)  a condition requiring the holder of the licence—
(i)  to prepare, and submit to the Minister, a plan setting out (in accordance with guidelines established by the Minister) the holder’s policies, practices and procedures with respect to the conduct of its affairs under the licence, and
(ii)  to conduct its affairs under the licence in accordance with the plan so prepared,
(g)  a condition requiring the holder of the licence to furnish to the Minister (at such times and in respect of such periods as the Minister may determine) such information as the Minister may determine to enable the Minister to ascertain whether or not the holder is complying with the other conditions of the licence,
(h)  a condition requiring the holder of the licence to pay an annual licence fee of such amount as may be determined by the Minister.
(3)  A condition referred to in subclause (2) (e) may require separate affairs to be conducted by separate divisions of the same legal entity or by separate legal entities.
(4)    (Repealed)
(5)  Without limitation, the Minister must impose the following conditions on each licence—
(a)  conditions that impose specified performance standards for the reliability of operation of a transmission system and provide for reliability performance monitoring and reporting,
(b)  conditions for ensuring that a network operator has arrangements in place to identify, assess and manage business continuity risks and manage business disruptions,
(c)  conditions for ensuring that a network operator maintains a substantial operational presence in Australia.
(6)–(8)    (Repealed)
(9)  The Minister must consult with such other Ministers as the Minister considers appropriate before imposing conditions on a licence under this clause.
6A   Condition requiring compliance with environmental assessment obligations
It is a condition of a licence that the licensee must, in the exercise of functions under section 111 (Duty to consider environmental impact) of the Environmental Planning and Assessment Act 1979, comply with requirements imposed by or under regulations made pursuant to section 111A of that Act.
7   Variation of conditions of licences
(1)  The Minister may vary the conditions of a licence.
(2)  The Minister must consult with such other Ministers as the Minister considers appropriate before varying the conditions of a licence under this clause.
8   Enforcement of Act and licences by the Minister
(1)  If the Minister is satisfied that the holder of a licence has contravened a requirement of this Act, the regulations or the conditions of the licence, the Minister may do any one or more of the following things—
(a)  notify the licensee of the contravention and direct the licensee to take specified action, within a period specified in the notice, to remedy or mitigate the consequences of the contravention or to prevent the continuance or recurrence of the contravention,
(b)  impose a monetary penalty not exceeding $250,000 on the licensee, but only if the Minister is satisfied that the licensee knowingly contravened the requirement concerned,
(c)  impose a monetary penalty not exceeding $50,000 on a person who is a director of or concerned in the management of the licensee, but only if the Minister is satisfied that the person knowingly authorised or permitted the contravention,
(d)  cancel the licence.
(2)  The holder of a licence must comply with a direction of the Minister under this clause.
Maximum penalty—5,000 penalty units (in the case of a corporation) or 2,500 penalty units (in any other case).
(3)  Nothing in this clause prevents a licence from being cancelled at the request of the licensee.
8A   Enforcement of licences by Tribunal
(1)  If the Tribunal is satisfied that the holder of a licence has contravened a requirement of the conditions of the licence, the Tribunal may do any one or more of the following things—
(a)  notify the licensee of the contravention and direct the licensee to take specified action, within a period specified in the notice, to remedy or mitigate the consequences of the contravention or to prevent the continuance or recurrence of the contravention,
(b)  impose a monetary penalty on the licensee not exceeding $20,000 for the first day on which the contravention occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues, but only if the Tribunal is satisfied that the licensee knowingly contravened the requirement concerned,
(c)  impose a monetary penalty on a person who is a director of or concerned in the management of the licensee not exceeding $20,000 for the first day on which the contravention occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues, but only if the Tribunal is satisfied that the person knowingly authorised or permitted the contravention,
(d)  cancel the licence.
(2)  Without limiting the power to give a direction under this clause requiring the taking of specified action, such a direction may—
(a)  require the licensee to publish notice of any matter, or
(b)  require an audit and compliance program to be undertaken, or
(c)  require a training program to be undertaken.
(3)  The holder of a licence must comply with a direction of the Tribunal under this clause.
Maximum penalty—5,000 penalty units (in the case of a corporation) or 2,500 penalty units (in any other case).
(4)  The Tribunal must not take action under this clause unless—
(a)  the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this clause, and
(b)  the Tribunal has considered the action that the licensee has taken or is likely to take in respect of the contravention and the cost to the licensee in taking that action, and is satisfied that it is nevertheless appropriate to take action under this clause.
(5)  The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this clause.
(6)  The Tribunal must not take action under this clause in respect of a contravention if the Minister has already taken action under clause 8 in respect of the contravention.
(7)  Nothing in this clause affects the Minister’s powers under clause 8 in respect of a contravention, whether or not the Tribunal has already taken action under this clause in respect of the contravention.
9   Holder of licence to be notified of proposed action
(1)  The Minister must not take action under clause 6, 7 or 8, or the Tribunal must not take action under clause 8A, unless—
(a)  notice of the proposed action has been given to the holder of the licence, and
(b)  the holder of the licence has been given a reasonable opportunity to make submissions with respect to the proposed action, and
(c)  the Minister or Tribunal has given due consideration to any such submissions.
(2)  This clause does not apply to action taken at the request of the holder of the licence.
10   Register of licences
(1)  A register of licences is to be kept at the office of the Tribunal.
(2)  The register is to be kept available for inspection by members of the public, free of charge, during normal office hours.
(3)  Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours.
11   Review of licences
(1)  The Tribunal must, within 6 months after the end of each successive 5-year period (a review period), report to the Minister on whether the results of the Tribunal’s compliance monitoring during the review period indicate that a review of the licences in force under this Act should be conducted.
(2)  The Minister is to consider the Tribunal’s report and may direct the Tribunal to conduct a review of the licences in force under this Act.
(3)  The first review period under this clause commences on the commencement of this clause.
sch 2: Am 1997 No 21, Sch 1 [25] [26]; 1999 No 85, Schs 1.11 [14]–[16], 2.16 [2] [3]; 1999 No 96, Sch 1 [1]–[4]; 2000 No 60, Sch 1.2 [10]–[17]; 2002 No 122, Sch 1 [8]–[10]; 2005 No 17, Sch 1 [19] [20]; 2012 No 38, Sch 1 [139]–[146]; 2015 No 5, Sch 8.7 [35]–[46]; 2018 No 25, Sch 2.6.
Schedule 3 Distribution districts
(Sections 83 and 84)
Note—
Section 83 (1A) provides for a reference in this Schedule to Ausgrid or Endeavour Energy to be read as a reference to the entity that operates the distribution system concerned after completion of an authorised transaction under the Electricity Network Assets (Authorised Transactions) Act 2015.
Name
Distribution district
Essential Energy
Albury
Armidale Dumaresq
Ballina
Balranald
Barraba
Bathurst
Bega Valley
Bellingen
Berrigan
Bingara
Bland
Blayney
Bogan
Bombala
Boorowa
Bourke
Brewarrina
Broken Hill
Byron
Cabonne
Carrathool
Central Darling
Cobar
Coffs Harbour
Conargo
Coolah
Coolamon
Cooma-Monaro
Coonabarabran
Coonamble
Cootamundra
Copmanhurst
Corowa
Cowra
Crookwell
Culcairn
Deniliquin
Dubbo
Dungog
Eurobodalla
Evans
Forbes
Gilgandra
Glen Innes
Gloucester
Goulburn
Grafton
Great Lakes
Greater Taree
Griffith
Gundagai
Gunnedah
Gunning
Guyra
Harden
Hastings
Hay
Holbrook
Hume
Inverell
Jerilderie
Junee
Kempsey
Kyogle
Lachlan
Leeton
Lismore
Lockhart
Maclean
Manilla
Merriwa (part)
Moree Plains
Mudgee
Mulwaree
Murray
Murrumbidgee
Murrurundi
Nambucca
Narrabri
Narrandera
Narromine
Nundle
Oberon
Orange
Parkes
Parry
Pristine Waters
Queanbeyan
Quirindi
Richmond Valley
Severn
Snowy River
Tallaganda
Tamworth
Temora
Tenterfield
Tumbarumba
Tumut
Tweed
Uralla
Urana
Wagga Wagga
Wakool
Walcha
Walgett
Warren
Weddin
Wellington
Wentworth
Windouran
Yallaroi
Yarrowlumla
Yass
Young
Unincorporated area
Ausgrid
Ashfield
Auburn
Bankstown
Botany
Burwood
Canterbury
Cessnock
Concord
Drummoyne
Gosford
Hornsby
Hunters Hill
Hurstville
Kogarah
Ku-ring-gai
Lake Macquarie
Lane Cove
Leichhardt
Maitland
Manly
Marrickville
Merriwa (part)
Mosman
Muswellbrook
Newcastle
North Sydney
Pittwater
Port Stephens
Randwick
Rockdale
Ryde
Scone
Singleton
South Sydney
Strathfield
Sutherland
Sydney
Warringah
Waverley
Willoughby
Woollahra
Wyong
Endeavour Energy
Baulkham Hills
Blacktown
Blue Mountains
Camden
Campbelltown
Fairfield
Greater Lithgow
Hawkesbury
Holroyd
Kiama
Liverpool
Parramatta
Penrith
Rylstone
Shellharbour
Shoalhaven
Wingecarribee
Wollondilly
Wollongong
Lord Howe Island Board
Lord Howe Island
 
sch 3: Am 1999 No 85, Sch 1.11 [17]; 2000 No 102, Sch 3.2; GG No 89 of 25.5.2001, p 2872; 2005 (128), cl 4; 2012 No 38, Sch 1 [147]–[149]; 2015 No 5, Sch 8.7 [47].
Schedule 3A Transferred provisions—variation of distribution districts
(1)  On and from 1 July 2005, Essential Energy—
(a)  may act for and on behalf of Australian Inland Energy Water Infrastructure, and
(b)  may exercise any of the functions of Australian Inland Energy Water Infrastructure,
in relation to the transfer of any staff, assets, rights and liabilities under section 85 arising from the variation of distribution districts effected by clause 4 of the Electricity Supply (Country Energy) Regulation 2005.
Note—
The name of Country Energy was changed to Essential Energy by the Energy Services Corporations Amendment (Change of Name) Regulation 2011.
(2)  Subclause (1) applies for all purposes, including for the purpose of the rules of private international law.
(3)  Without limiting subclause (1), Essential Energy may act in the name of Australian Inland Energy Water Infrastructure if it is necessary to do so under the law of any country—
(a)  to perfect the transfer of any asset, right or liability of Australian Inland Energy Water Infrastructure, or
(b)  to take, defend or maintain legal proceedings in connection with any such asset, right or liability.
(4)  For the purposes of this clause, Essential Energy is authorised to use the seal of Australian Inland Energy Water Infrastructure.
(5)  In this clause, asset, right and liability have the same meanings as they have in Schedule 4.
(6)  Subclauses (1)–(5) re-enact (with minor modifications) clause 5 of the Electricity Supply (Country Energy) Regulation 2005 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
sch 3A: Ins 2015 No 15, Sch 5.1 [1]. Am 2015 No 15, Sch 5.1 [2]–[9].
Schedule 4 Transfer of staff, assets, rights and liabilities
(Section 85)
1   Application and interpretation
(1)  This Schedule applies to any transfer of staff, assets, rights or liabilities under section 85.
(2)  In this Schedule, the person or body from which any staff, assets, rights or liabilities are transferred is called the transferor and the person or body to whom they are transferred is called the transferee.
2   Transfer of staff
A member of staff who is transferred by a transfer to which this Schedule applies is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person not been transferred but remained a member of staff of the transferor.
3   Vesting of undertaking in transferee
(1)  When any assets, rights or liabilities are transferred by a transfer to which this Schedule applies, the following provisions have effect—
(a)  the assets of the transferor vest in the transferee by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,
(b)  the rights or liabilities of the transferor become by virtue of this clause the rights or liabilities of the transferee,
(c)  all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,
(d)  any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,
(e)  a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent to which it relates to those assets, rights or liabilities) taken to include a reference to the transferee.
(2)  The operation of this clause is not to be regarded—
(a)  as a breach of contract or confidence or otherwise as a civil wrong, or
(b)  as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or
(c)  as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.
(3)  The operation of this clause is not to be regarded as an event of default under any contract or other instrument.
(4)  No attornment to the transferee by a lessee from the transferor is required.
(5)  A transfer is subject to the terms and conditions of the order by which it is effected.
(6)  No compensation is payable to any person or body in connection with a transfer to which this Schedule applies except to the extent (if any) to which the order giving rise to the transfer so provides.
(7)  Subclause (6) does not affect the rights of any member of staff who is the subject of a transfer to which this Schedule applies.
4   Date of vesting
A transfer to which this Schedule applies takes effect on the date specified in the order by which it is effected.
5   Consideration for vesting
The Minister may, by order in writing, specify the consideration on which a transfer to which this Schedule applies is made and the value or values at which the assets, rights or liabilities are transferred.
6   Stamp duty
Stamp duty is not chargeable for or in respect of—
(a)  a transfer to which this Schedule applies, or
(b)  anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or conveyance of an interest in land).
7   Confirmation of vesting
(1)  The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities by operation of this Schedule.
(2)  Such a notice is conclusive evidence of that transfer.
8   Definitions
In this Schedule—
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 any liabilities, debts or obligations (whether present or future and whether vested or contingent).
rights means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent).
Schedule 4A Energy security safeguard schemes
sch 4A, hdg: Ins 2020 No 5, Sch 1.10[7].
Part 1 Energy savings scheme
Division 1 Preliminary
1   Objects of Part
(1)  The principal object of this Part is to create a financial incentive to reduce the consumption of energy by encouraging energy saving activities.
(2)  The other objects of this Part are—
(a)  to assist households and businesses to reduce energy consumption and energy costs, and
(b)  to complement any national scheme for carbon pollution reduction by making the reduction of greenhouse gas emissions achievable at a lower cost, and
(c)  to reduce the cost of, and the need for, additional energy generation, transmission and distribution infrastructure.
2   Definitions
(1)  In this Part—
accredited certificate provider means a person accredited as an energy savings certificate provider under this Part and whose accreditation is in force.
base penalty rate—see clause 16.
carried forward shortfall—see clause 19.
certificate conversion factors—see clause 33.
compliance officer means a compliance officer appointed under clause 71A.
consumer price index means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.
direct supplier of electricity has the meaning given by clause 4.
end user of electricity means a person who acquires, or proposes to acquire, electricity for consumption purposes.
energy conversion factor—see clause 11.
energy savings certificate means an energy savings certificate created under this Part.
energy savings scheme or scheme means the energy savings scheme established by this Part.
energy savings scheme target—see clause 6.
energy savings shortfall—see clause 14.
energy savings shortfall penalty—see clause 15.
energy savings statement—see clause 26.
green hydrogen means hydrogen produced using renewable energy.
individual energy savings target—see clause 9.
liable acquisition—see clause 10.
Market Operator means the entity that has the function of operating and administering the wholesale exchange under the National Electricity (NSW) Law.
notional megawatt hours—see clause 9(1).
penalty conversion factor—see clause 16.
recognised energy saving activity means an activity in respect of which an energy savings certificate may be created under this Part.
recognised form of energy means the following—
(a)  electricity,
(b)  a type of gas,
(c)  a form of energy prescribed by the regulations.
register means a register kept by the Scheme Administrator under this Part.
related body corporate of a person has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.
Scheme Administrator means the person or body required to exercise the functions of Scheme Administrator under this Part.
scheme participant means a person who is required by this Part to participate in the energy savings scheme.
scheme penalty rate—see clause 16.
Scheme Regulator means the person or body required to exercise the functions of Scheme Regulator under this Part.
scheme rule means a rule approved by the Minister under Division 13 of this Part.
(2)  In this Part, a reference to a particular year is a reference to the period of 12 months commencing on 1 January of that year, except in relation to the year 2009. A reference to the year 2009 is a reference to the period of 6 months commencing on 1 July 2009.
Division 2 Energy savings scheme
3   Establishment of scheme
There is established by this Part an energy savings scheme.
4   Persons required to participate in scheme
(1)  The following persons are required to participate in the energy savings scheme—
(a)  a retailer,
(b)  a direct supplier of electricity,
(c)  a market customer.
(2)  In this clause—
direct supplier of electricity means an electricity generator prescribed by the regulations, or any other person prescribed by the regulations, who supplies electricity directly to a customer.
market customer means a customer that has classified any of its electricity loads as a market load and that is registered with the Market Operator as a market customer under the National Electricity Rules (within the meaning of the National Electricity (NSW) Law).
5   Scheme participants required to meet individual energy savings targets
Each scheme participant is required to meet its individual energy savings target for each year, in accordance with this Part.
Note—
Failure to meet an individual energy savings target will result in a penalty being payable.
Division 3 Energy savings scheme targets
6   Energy savings scheme targets
(1)  The energy savings scheme targets are to be used as the basis for the calculation of each scheme participant’s individual energy savings target.
(2)  The energy savings scheme targets are set out in Schedule 5.
Note—
Clause 8A enables energy savings scheme targets to be inserted into Schedule 5 for the year 2026 and following years.
(3)  The energy savings scheme target for a year specified in column 1 of Schedule 5 is the amount specified for that year in column 2 of that Schedule.
Note—
The energy savings scheme target is applied to the liable acquisitions made by a scheme participant to calculate an individual energy savings target for the scheme participant. This is explained in Division 4.
7   Changes to energy savings scheme targets
(1)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 5 to change the energy savings scheme target for a specified year or years.
(2)  Accordingly, any such regulation may omit an amount specified in column 2 of Schedule 5 and substitute a new amount.
(3)  Any such regulation does not affect the energy savings scheme target for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
Note—
For example, a regulation to change the energy savings scheme target for the year 2011 would have to be made on or before 31 December 2009.
8   Conditions under which energy savings scheme targets may be changed
The Minister may recommend the making of a regulation to change the energy savings scheme target for a year or years only if the Minister has certified in writing to the Governor that, in the Minister’s opinion—
(a)  the change to the energy savings scheme target is appropriate to achieve greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the energy savings scheme, or for the purposes of implementing a national scheme with similar objectives to the energy savings scheme, or
(b)  the change to the energy savings scheme target is appropriate because of an under supply or over supply of energy savings certificates that may be surrendered under this Part, as evidenced in the manner set out in the regulations, or
(c)  the change to the energy savings scheme target is appropriate because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020, or
(d)  the change to the energy savings scheme target is appropriate because of significant changes to the rules governing the creation of energy savings certificates, or
(e)  the change to the energy savings scheme target is otherwise appropriate because of significant changes to the policy or regulatory framework, or the market conditions, in which the energy savings scheme operates.
8A   Energy savings scheme targets and energy conversion factors for 2026 onwards
(1)  The regulations may amend Schedule 5 to insert an energy savings scheme target and energy conversion factor for the year 2026 or a following year.
(2)  To avoid doubt—
(a)  an energy savings scheme target or energy conversion factor inserted by a regulation under subclause (1) may be changed under clause 7 or 11 respectively, and
(b)  clause 8 does not apply to the making of a regulation made under subclause (1).
Division 4 Individual energy savings targets
9   Individual energy savings targets
(1)  The individual energy savings target of a scheme participant for a year is the amount (expressed in units referred to as notional megawatt hours) calculated as follows—
(a)  Step 1
Multiply the total value of all liable acquisitions made by the scheme participant during that year (expressed in megawatt hours) by the energy savings scheme target for the year (the megawatt hours target).
(b)  Step 2
Multiply the megawatt hours target by the energy conversion factor for that year.
(2)  If the result obtained at the end of Step 2 includes a fraction of a notional megawatt hour, the fractional amount is to be rounded up or down to the nearest whole notional megawatt hour (and, if the amount to be rounded is half a notional megawatt hour, is to be rounded up).
Note—
For example, if a scheme participant has liable acquisitions in the year 2016 of 75,050 megawatt hours, to calculate the scheme participant’s individual energy savings target under subclause (1)—
(a)  Step 1 requires the 75,050 megawatt hours to be multiplied by 0.07 (the energy savings scheme target for 2016), resulting in a megawatt hours target of 5,253.5, and
(b)  Step 2 requires the figure of 5,253.5 to be multiplied by 1.00 (the energy conversion factor for 2016), resulting in an individual energy savings target of 5,253.5 notional megawatt hours.
The result is then rounded up to 5,254 in accordance with subclause (2).
The scheme participant has an individual energy savings target for the year 2016 of 5,254 notional megawatt hours.
The scheme participant can meet this target by surrendering energy savings certificates to the Scheme Regulator in accordance with this Part. Since each certificate has a value of 1 notional megawatt hour (see clause 31), the scheme participant can meet this target by surrendering 5,254 certificates.
Energy savings certificates may be created in respect of activities that involve the consumption of a recognised form of energy. Certificate conversion factors are applied to the actual energy savings of end users resulting from an energy saving activity to produce energy savings expressed in notional megawatt hours for the purposes of energy savings targets. See Division 7.
Consequently, the number of notional megawatt hours of individual energy savings targets of scheme participants will not be the same as the number of actual megawatt hours saved by end users as a result of energy saving activities for which energy savings certificates are created.
10   Liable acquisitions
(1)  For the purposes of this Part, a liable acquisition is any purchase of electricity by a scheme participant, from the Market Operator or from any other person, whether or not a registered participant under the National Electricity (NSW) Law, where the electricity is purchased for consumption by, or onsale to, end users in this State, or for use in this State.
(2)  A supply of electricity generated by a scheme participant is also to be treated as a liable acquisition under this Part if—
(a)  the scheme participant is a retailer and the electricity is supplied by the retailer for consumption by, or onsale to, end users in this State, or for use in this State, or
(b)  the scheme participant is a direct supplier of electricity and the supply is of a kind specified by the regulations to be a liable acquisition under the scheme.
(2A)  However, if a scheme participant purchases electricity from another scheme participant, the purchase is not a liable acquisition if the purchase of the electricity is, or the supply of the electricity is to be treated as, a liable acquisition for that other scheme participant or for a scheme participant who is further up the chain of supply of the electricity.
(3)  For the purposes of this Part—
(a)  a liable acquisition is made by a scheme participant on the date the electricity is purchased by the scheme participant or, in the case of a supply of electricity treated as a liable acquisition, supplied by the scheme participant, and
(b)  the value of a purchase or supply of electricity is the amount of electricity purchased or supplied, expressed in megawatt hours.
(4)  Electricity is taken to be purchased by a scheme participant on the date the electricity is physically delivered to the scheme participant (regardless of when the contract or other arrangement for purchase of the electricity was entered into or made).
(5)  This clause is subject to Division 5 (which provides for exemptions).
11   Energy conversion factors
(1)  Energy conversion factors are set out in Schedule 5.
Note—
Clause 8A enables energy conversion factors to be inserted into Schedule 5 for the year 2026 and following years.
(2)  The energy conversion factor for a year specified in column 1 of Schedule 5 is the amount specified for that year in column 3 of that Schedule.
(3)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 5 to change the energy conversion factor for a specified year or years.
(4)  Accordingly, any such regulation may omit an amount specified in column 3 of Schedule 5 and substitute a new amount.
(5)  Any such regulation does not affect the energy conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
12   How does a scheme participant meet an individual energy savings target?
(1)  A scheme participant meets an individual energy savings target for a year if the energy savings attributable to the scheme participant for the year are equivalent to, or exceed, the individual energy savings target of the scheme participant for that year.
(2)  A scheme participant fails to meet an individual energy savings target for a year if the energy savings attributable to the scheme participant for the year are less than the individual energy savings target of the scheme participant for that year.
13   What are the energy savings attributable to a scheme participant?
For the purposes of this Part, the energy savings attributable to a scheme participant for a year is the total value of all energy savings certificates that the scheme participant elects to surrender, in accordance with this Part, for the purpose of meeting its individual energy savings target for that year.
Note—
Energy savings certificates may be created in respect of activities that reduce the consumption of a recognised form of energy. See Division 7.
14   Failure to meet individual energy savings target—energy savings shortfalls
(1)  If a scheme participant fails to meet its individual energy savings target for a year, the scheme participant has an energy savings shortfall for that year.
(2)  The amount of the energy savings shortfall is the number of notional megawatt hours by which the individual energy savings target of the scheme participant for the year exceeds the energy savings attributable to the scheme participant for that year.
15   Penalties for energy savings shortfalls
(1)  A scheme participant who has an energy savings shortfall for a year is liable to pay a penalty in respect of that year (an energy savings shortfall penalty).
(2)  The amount of the energy savings shortfall penalty is the amount (in dollars) calculated by multiplying the amount of the energy savings shortfall by the scheme penalty rate.
(3)  If the result obtained from that calculation is not a whole number of dollars, it is to be rounded down to the nearest whole number of dollars.
16   Penalty rates
(1)  The scheme penalty rate is the amount (expressed in dollars per notional megawatt hour) calculated by multiplying the base penalty rate for the year in respect of which the energy savings shortfall penalty is payable by the penalty conversion factor for that year.
(2)  Subject to clause 17—
(a)  the base penalty rate is as follows—
(i)  for 2009 and 2010—$24.50 per notional megawatt hour,
(ii)  for each subsequent year—the base penalty rate for a previous year specified in the regulations and adjusted for movements in the consumer price index in accordance with the regulations, and
(b)  the penalty conversion factor for a year is 0.94.
(3)  The Scheme Regulator is to cause notice of the adjusted base penalty rate for a year to be published on its website before the beginning of that year.
(4)–(7)    (Repealed)
17   Changes to base penalty rates and penalty conversion factors
(1)  The Governor may, by regulation made on the recommendation of the Minister, change the base penalty rate or the penalty conversion factor (or both) for a specified year or years.
(2)    (Repealed)
(3)  Any such regulation does not affect the base penalty rate or penalty conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
Note—
For example, a regulation to prescribe a different base penalty rate or penalty conversion factor for the year 2011 and subsequent years would have to be made on or before 31 December 2009.
(4)  The Minister may recommend the making of a regulation to change the base penalty rate for a year or years only if the Minister has certified in writing to the Governor that, in the Minister’s opinion—
(a)  the change to the base penalty rate is appropriate to achieve greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the energy savings scheme, or for the purposes of implementing a national scheme with similar objectives to the energy savings scheme, or
(b)  the change to the base penalty rate is appropriate because of an under supply or over supply of energy savings certificates that may be surrendered under this Part, as evidenced in the manner set out in the regulations, or
(c)    (Repealed)
(d)  the change to the base penalty rate is appropriate because of significant changes to the rules governing the creation of energy savings certificates, or
(e)  the change to the base penalty rate is otherwise appropriate because of significant changes to the policy or regulatory framework, or the market conditions, in which the energy savings scheme operates.
(5)  To avoid doubt, subclause (4) does not apply to a regulation that changes the penalty conversion factor for a year or years.
(6)  This clause does not apply to a regulation that provides for the adjustment of base penalty rates for movements in the consumer price index.
18   Payment of energy savings shortfall penalties
(1)  An energy savings shortfall penalty payable by a scheme participant in respect of a year is payable on 1 March in the following year or on any later date determined by the Scheme Regulator for the scheme participant.
(2)  An energy savings shortfall penalty is payable to the Scheme Regulator, for payment into the Consolidated Fund as public money.
(3)  An energy savings shortfall penalty payable by a scheme participant may be recovered in any court of competent jurisdiction as a debt due to the Crown.
19   Energy savings shortfalls may be carried forward
(1)  A scheme participant may elect to carry forward an energy savings shortfall, or part of an energy savings shortfall, for a year to the next year in accordance with this clause.
(2)  If a scheme participant elects to carry forward an energy savings shortfall, or part of an energy savings shortfall, the amount carried forward is not subject to an energy savings shortfall penalty for the year to which the shortfall relates.
(3)  The maximum amount of an energy savings shortfall that may be carried forward to the year 2010 by a scheme participant is 20% of the scheme participant’s individual energy savings target for the year 2009 or, if the regulations prescribe another amount as the maximum amount that may be carried forward to year 2010, the amount so prescribed.
(4)  The maximum amount of an energy savings shortfall that may be carried forward to any other year by a scheme participant is 10% of the scheme participant’s individual energy savings target in the previous year or, if the regulations prescribe another amount as the maximum amount that may be carried forward to the relevant year, the amount so prescribed.
(5)  An energy savings shortfall, or part of an energy savings shortfall, may be carried forward to the next year only.
(6)  However, an energy savings shortfall, or part of an energy savings shortfall, for the year 2050 cannot be carried forward to the next year.
Note—
The scheme automatically terminates at the end of the year 2050. It is also possible for the scheme to be terminated earlier under Division 14, in which case the regulations may prohibit scheme participants from carrying forward an energy savings shortfall to the next year if the termination takes effect in that next year.
(7)  The fact that a scheme participant elects to carry forward an energy savings shortfall, or part of an energy savings shortfall, to the next year does not prevent the scheme participant from electing to carry forward an energy savings shortfall, or part of an energy savings shortfall, for that next year to the following year.
(8)  For the purposes of this Part, an energy savings shortfall, or part of an energy savings shortfall, for a year that is carried forward to the next year is a carried forward shortfall for that next year.
20   Carried forward shortfalls must be remedied
(1)  A scheme participant who has a carried forward shortfall for a year must remedy the carried forward shortfall in that year.
(2)  A scheme participant remedies a carried forward shortfall if the additional energy savings attributable to the scheme participant for the year to which the energy savings shortfall is carried forward are equivalent to, or exceed, the amount of the carried forward shortfall.
(3)  A scheme participant fails to remedy a carried forward shortfall if the additional energy savings attributable to the scheme participant for the year to which the energy savings shortfall is carried forward are less than the amount of the carried forward shortfall.
(4)  For the purposes of this Part, the additional energy savings attributable to a scheme participant for a year is the total value of all energy savings certificates that the scheme participant elects to surrender, in accordance with this Part, for the purpose of remedying its carried forward shortfall for that year.
(5)  If a scheme participant fails to remedy a carried forward shortfall, the scheme participant is liable for a penalty in respect of the non-remedied amount (that is, the amount by which the carried forward shortfall exceeds the additional energy savings attributable to the scheme participant for the year).
(6)  The penalty is to be calculated as if the non-remedied amount were an energy savings shortfall for the year to which the energy savings shortfall is carried forward.
(7)  The penalty is payable in the same manner as, and is taken to be, an energy savings shortfall penalty.
(8)  To avoid doubt, a penalty payable by a scheme participant in respect of a failure to remedy a carried forward shortfall in a year is additional to any penalty payable by the scheme participant in respect of the participant’s energy savings shortfall (if any) for that year.
21   Elections by scheme participants
(1)  An election by a scheme participant to surrender an energy savings certificate for the purpose of meeting its individual energy savings target or remedying a carried forward shortfall, or to carry forward an energy savings shortfall, must be made to the Scheme Regulator in accordance with this Part.
(2)  An election has no effect unless it is accepted by the Scheme Regulator.
Note—
The election must accompany the scheme participant’s annual energy savings statement. See Division 6.
Division 5 Exemptions
22   Exemptions
(1)  The Minister may, by order published in the Gazette, grant an exemption from the scheme in respect of any electricity load—
(a)  used by a specified person, or class of persons, or
(b)  used in connection with a specified activity or class of activities.
(2)  An order granting an exemption may also specify the scheme participant, or class of scheme participants, in respect of whom the exemption applies.
(3)  The Minister may grant an exemption under this clause only if satisfied that the electricity is used—
(a)  in connection with an industry or activity that is both emissions intensive and trade exposed, or
(b)  to produce green hydrogen.
(3A)  The Minister may grant an exemption under this clause only if satisfied that the exemption is otherwise generally consistent with the objects of this Part.
(4)  An exemption is to specify whether it is a full exemption or a partial exemption.
(5)  If the exemption is a full exemption, the electricity load to which the exemption applies is, for the purposes of this Part, fully exempt electricity load.
(6)  If the exemption is a partial exemption, the electricity load to which the exemption applies is, for the purposes of this Part, partially exempt electricity load.
(7)  If an exemption is a partial exemption, the order granting the exemption is to specify (as a percentage or otherwise) the proportion of electricity load used by the relevant person or class of persons, or in connection with the relevant activity or class of activities, that is exempt from the scheme. The proportion specified is referred to in this Division as the exempt proportion.
23   Effect of exemption
(1)  A scheme participant is entitled to deduct from the total value of its liable acquisitions the value of any purchase of electricity that is to be used by a person or in connection with an activity and which, when so used, is fully exempt electricity load.
(2)  A scheme participant is entitled to deduct from the total value of its liable acquisitions a proportion of the value of any purchase of electricity that is to be used by a person or in connection with an activity and which, when so used, is partially exempt electricity load. The proportion that may be deducted is the exempt proportion.
(3)  An order granting an exemption may specify any allowances that may be made by scheme participants, in applying the exemption, for electricity losses occurring between the purchase of the electricity by the scheme participant and its use by an end user.
(4)  Electricity the subject of such an allowance may also be deducted from the total value of liable acquisitions made by a scheme participant, in accordance with the exemption.
(5)  An order granting an exemption may authorise the Scheme Regulator to make rules with respect to the exemption (including rules relating to assessment of deductions under this Division).
(6)  Any deductions made by scheme participants under this Division must be made in accordance with the provisions of the relevant exemption, and any such rules.
(7)  In any proceedings under this Act involving a scheme participant, the burden of establishing that the scheme participant was entitled to deduct any particular amount of electricity purchased by it from the total value of its liable acquisitions lies on the scheme participant.
(8)  In this clause, a reference to a purchase of electricity includes a reference to a supply of electricity that is treated as a liable acquisition under this Part.
24   Grounds on which electricity load may be exempt
(1)  The regulations may make further provision with respect to the determination of whether—
(a)  an industry or activity is emissions intensive or trade exposed, and
(b)  electricity is taken to be used to produce green hydrogen.
(2)  Subject to the regulations, the Minister may determine the basis on which—
(a)  an industry or activity is considered to be emissions intensive or trade exposed, and
(b)  electricity is taken to be used to produce green hydrogen.
25   General provisions with respect to exemptions
(1)  An exemption takes effect on the day the order granting the exemption is published in the Gazette or, if a later day is specified in the order, on that later day.
(2)  An exemption may be revoked by order of the Minister published in the Gazette.
(3)  If an exemption is revoked, the revocation takes effect on the day the order revoking the exemption is published in the Gazette or, if a later day is specified in the order, on that later day.
(4)  The Minister is to provide a copy of any order made under this Division to the Scheme Regulator.
(5)  The Scheme Regulator is to make particulars of any exemption under this Division, and any rules it makes with respect to an exemption, available to scheme participants, including by publishing particulars of the exemptions and rules on its website.
Division 6 Assessment of compliance of scheme participants
26   Annual energy savings statements
(1)  A scheme participant must lodge with the Scheme Regulator a statement (an energy savings statement) on or before 1 March in each year or on or before any later day specified in respect of the scheme participant by the Scheme Regulator.
(2)  An energy savings statement is to contain the following—
(a)  an assessment of the scheme participant’s individual energy savings target for the previous year, including particulars of liable acquisitions made by the scheme participant during the previous year and of any deductions made in respect of fully exempt or partially exempt electricity load,
(b)  an assessment of the participant’s liability (if any) for an energy savings shortfall penalty for the previous year, including liability for an energy savings shortfall penalty in respect of a carried forward shortfall,
(c)  any other matters required by the Scheme Regulator.
(3)  If the scheme participant seeks to elect to surrender one or more energy savings certificates for the purposes of meeting its individual energy savings target for the year to which the energy savings statement relates, or to remedy a carried forward shortfall for the year, the election is to accompany the energy savings statement and is to contain details of the energy savings certificates proposed to be surrendered.
(4)  If a scheme participant seeks to elect to carry forward an energy savings shortfall for the year to which the statement relates, or any part of that shortfall, the election is to accompany the statement.
(5)  An energy savings statement, and any election that accompanies the statement, must be in a form approved by the Scheme Regulator.
(6)  A scheme participant that fails to lodge an energy savings statement in accordance with this clause is guilty of an offence.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units, or
(b)  in the case of an individual—100 penalty units.
27   Restrictions on surrender of energy savings certificates
(1)  An energy savings certificate cannot be surrendered by a scheme participant for the purposes of meeting its individual energy savings target or remedying a carried forward shortfall unless—
(a)  the certificate is registered in the register of energy savings certificates kept under this Part and the registration is in force, and
(b)  the participant is recorded in the register of energy savings certificates as the owner of the certificate, and
(c)  the certificate was created in relation to energy savings that occurred before the end of the year to which the energy savings statement relates, and
(d)  in the case of a certificate that relates to an energy saving activity that occurred in a State or Territory for which there is an approved corresponding scheme under clause 30—the Minister has, by the order approving the corresponding scheme or by a subsequent order published in the Gazette, approved the surrender of such certificates by a scheme participant for those purposes.
(2)  The Scheme Regulator may, by notice in writing to a scheme participant, refuse to accept an election to surrender an energy savings certificate—
(a)  if, in the opinion of the Scheme Regulator, the certificate cannot be surrendered under this clause, or
(b)  if, in the opinion of the Scheme Regulator, the certificate is surplus to the number required to be surrendered for the purpose of meeting the participant’s individual energy savings target or to remedy a carried forward shortfall.
(3)  If the Scheme Regulator accepts the surrender of an energy savings certificate, and the Scheme Regulator is not the Scheme Administrator, the Scheme Regulator must give the Scheme Administrator notice in writing of the decision, including details of the certificates surrendered.
28   Regulations relating to assessments
Regulations may be made for or with respect to the following matters—
(a)  the assessment of the liability of a scheme participant for an energy savings shortfall penalty, including self-assessment or assessment by the Scheme Regulator,
(b)  the date on which an assessment is taken to have been made and the date on which an assessment takes effect,
(c)  default assessments where an energy savings statement is not lodged by a scheme participant,
(d)  amendment of assessments, at the request of a scheme participant or on the Scheme Regulator’s own motion,
(e)  revocation of the cancellation of energy savings certificates in connection with amended assessments and the revival of the certificates,
(f)  payments resulting from amended assessments,
(g)  notice of assessments.
29   Validity of assessment
The validity of an assessment of a liability to pay an energy savings shortfall penalty is not affected by any failure to comply with a provision of this Act, the regulations or the scheme rules.
Division 7 Creation of energy savings certificates
30   Activities in respect of which energy savings certificates may be created
(1)  The scheme rules may make provision for or with respect to the creation of energy savings certificates in respect of any activity, or class of activities, that reduces the consumption of a recognised form of energy in this State.
(2)  The scheme rules may also make provision for or with respect to the creation of energy savings certificates in respect of any activity, or class of activities, that reduces the consumption of a recognised form of energy in another jurisdiction, if an approved corresponding scheme is in operation in that jurisdiction.
(3)  An approved corresponding scheme is a scheme approved by the Minister for the purposes of this clause, by order published in the Gazette.
(4)  The Minister may approve a scheme for the purposes of this clause only if the Minister is satisfied that—
(a)  the scheme is intended to promote the reduced consumption of a recognised form of energy and the objectives of the scheme are consistent with the objectives of the energy savings scheme established by this Part, and
(b)  the monitoring and enforcement of compliance with the scheme to be approved is no less stringent than that applicable to the energy savings scheme established by this Part.
(5)  An energy savings certificate cannot be created in respect of an activity unless the activity commenced or commences on or after 1 July 2008.
Note—
However, energy savings certificates may be created only in respect of energy savings occurring on or after 1 July 2009. For example, a project that results in energy savings that commenced in September 2008 may be eligible for accreditation under the scheme, but energy savings certificates may be created only in respect of energy savings arising from the project that occur on or after 1 July 2009.
(6)  An activity in respect of which an energy savings certificate may be created under this Part is a recognised energy saving activity.
31   Energy savings represented by certificates
(1)  An energy savings certificate may be created for each whole notional megawatt hour attributable to energy savings arising from a recognised energy saving activity.
(2)  Accordingly, each energy savings certificate has a value of 1 notional megawatt hour.
32   Calculation of energy savings attributable to recognised energy saving activities
(1)  The number of notional megawatt hours attributable to energy savings arising from a recognised energy savings activity is to be calculated by applying the certificate conversion factor or factors for the year in which the energy savings for which the certificate is created occurred to the number of megawatt hours of energy savings arising from the activity.
(2)  Depending on the nature of the energy saving activity and the scheme rules, the calculation may require the application of the certificate conversion factor for the recognised form of energy.
(3)  The scheme rules may provide for the methodology for calculating the number of megawatt hours of energy savings arising from a recognised energy saving activity and for applying the certificate conversion factors.
33   Certificate conversion factor—electricity
(1)  Subject to this clause, the certificate conversion factor for a year for electricity is 1.06.
(2)    (Repealed)
(3)  The Governor may, by regulation made on the recommendation of the Minister, change a certificate conversion factor for a specified year or years.
(4)    (Repealed)
(5)  Any such regulation does not affect a certificate conversion factor for any year that commences on or before the date the regulation is made or within 12 months after the date the regulation is made.
33A   Certificate conversion factor—forms of energy other than electricity
(1)  The certificate conversion factor for a form of energy other than electricity for a year is the factor prescribed by the regulations for the form of energy.
(2)  If the regulations do not prescribe a certificate conversion factor for a year for a type of gas, the certificate conversion factor for a year for the type of gas is 0.39.
34   When energy savings certificates may be created
(1)  An energy savings certificate may be created by an accredited certificate provider in respect of the energy savings arising from a recognised energy saving activity immediately after those energy savings occur.
(2)  An energy savings certificate may be created in respect of energy savings only if the energy savings occur on or after 1 July 2009.
(3)  An energy savings certificate may be created in respect of energy savings that occur during a particular year no later than 6 months after the end of that year.
(4)  The regulations or scheme rules may specify when the energy savings arising from a recognised energy saving activity are considered to have occurred for the purposes of this Part.
(5)  Without limiting the above, the regulations or scheme rules may provide that energy savings are taken to have occurred on the date on which the recognised energy saving activity is first commenced. Accordingly, energy savings certificates may be created in respect of the energy savings arising from the activity immediately after the activity is first commenced.
Note—
Subclause (5) makes it clear that the regulations or scheme rules may allow certificates to be created in respect of an activity that has ongoing energy saving effects as soon as the activity is commenced. It will not be necessary to wait until all the energy savings arising from the activity actually occur before creating a certificate in respect of the activity. Such provisions may apply, for example, if the regulations or scheme rules allow for the creation of certificates in respect of the installation of energy efficient lighting, which has ongoing energy savings.
35   No double counting of energy savings
An energy savings certificate cannot be created in respect of energy savings arising from a recognised energy saving activity if an abatement certificate under Part 8A has already been created in respect of those energy savings.
36   Improper creation of energy savings certificates
(1)  A person must not create or purport to create an energy savings certificate in contravention of this Act, the regulations or the scheme rules (including any conditions of accreditation imposed by or under this Act).
Maximum penalty—2,000 penalty units.
(2)  For avoidance of doubt, a person may be found guilty of an offence against this clause whether or not the certificate concerned is registered in the register of energy savings certificates kept under this Part.
Division 8 Accreditation of certificate providers
37   Certificates may be created by accredited certificate providers only
(1)  Energy savings certificates may be created by accredited certificate providers only.
(2)  A person who is an accredited certificate provider may create energy savings certificates in accordance with this Part, the regulations, the scheme rules and the conditions (if any) of the person’s accreditation as a certificate provider.
(3)  A person who is an accredited certificate provider may create energy savings certificates only in relation to those activities in relation to which the person has been accredited as a certificate provider.
38   Eligibility for accreditation
(1)  The regulations and scheme rules may make provision for or with respect to the eligibility of a person for accreditation as a certificate provider.
(2)  Without limiting the above, a person who is engaged in an industry, or carries out an activity, that benefits from a full exemption from the scheme, or is a related body corporate of such a person, is not eligible for accreditation as a certificate provider in respect of an activity that reduces the consumption of a recognised form of energy used in that industry or activity.
(3)  For the purposes of this clause, an industry or activity benefits from a full exemption from the scheme if the electricity load used in that industry or activity is fully exempt electricity load.
39   Application for accreditation
(1)  Any person who is eligible for accreditation as a certificate provider in relation to an activity may apply to the Scheme Administrator for accreditation.
(2)  The Scheme Administrator is to determine an application for accreditation as a certificate provider—
(a)  by accrediting the applicant as a certificate provider in relation to specified activities, or
(b)  by refusing the application.
(3)  The Scheme Administrator may refuse an application for accreditation as a certificate provider on such grounds as may be specified in the regulations.
(4)  The regulations may make provision for or with respect to applications for accreditation, including by requiring an application fee to be paid to the Scheme Administrator.
(5)  The Scheme Administrator may charge a fee (in addition to any application fee) in respect of the investigation and determination of an application for accreditation. The fee is to be determined by the Scheme Administrator on a cost recovery basis.
40   Duration of accreditation
(1)  Accreditation of a person as a certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2)  The Scheme Administrator may suspend or cancel the accreditation of a person as a certificate provider on such grounds as may be specified in the regulations.
(3)  The suspension or cancellation of the accreditation of a person as a certificate provider is subject to such conditions as the Scheme Administrator imposes. Any such conditions may include (but are not limited to) any condition to which the accreditation was subject immediately before it was suspended or cancelled.
(4)  The regulations may provide for the variation or revocation of any conditions that are imposed by the Scheme Administrator on the suspension or cancellation of accreditation as a certificate provider.
41   Conditions of accreditation
(1)  Accreditation as a certificate provider is subject to the following conditions—
(a)  such conditions as may be imposed from time to time by the regulations,
(b)  such conditions as may be imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2)  Without limiting the above, the following are examples of the types of conditions that may be imposed on the accreditation of a person as a certificate provider—
(a)  a condition that requires the person not to create an energy savings certificate in respect of the energy savings arising from an activity if an energy savings certificate has already been created in respect of that energy saving or if that energy saving has already been used for the purposes of compliance with a scheme or arrangement with similar objectives to the scheme established by this Part,
(b)  a condition that requires the person not to use the energy savings arising from a recognised energy saving activity for the purposes of compliance with a scheme or arrangement with similar objectives to the scheme established by this Part, if an energy savings certificate has already been created in respect of those energy savings,
(c)  a condition that requires the person to provide financial assurances to secure or guarantee the person’s compliance with this Part,
(d)  a condition that requires the person to take out and maintain a policy of insurance in connection with the person’s functions as an accredited certificate provider,
(e)  a condition that requires the person to provide information, assistance and access to the Scheme Administrator (or persons appointed by the Scheme Administrator) for the purposes of monitoring and auditing compliance by the person with this Part.
(3)  A person must not contravene any of the conditions of the person’s accreditation as a certificate provider.
Maximum penalty—2,000 penalty units.
(4)  Subclause (3) extends to any conditions to which the suspension or cancellation of the accreditation of a person is subject under this Part.
42   Amendment of accreditation
(1)  An accredited certificate provider may apply to the Scheme Administrator to amend the provider’s accreditation by—
(a)  varying the activities for which the provider is accredited, or
(b)  varying or revoking a condition of the accreditation imposed by the Scheme Administrator.
(2)  Subclause (1)(b) does not apply to a condition imposed by this Act or the regulations.
(3)  The Scheme Administrator must determine an application to amend a provider’s accreditation by—
(a)  granting the application, or
(b)  refusing the application.
(4)  The regulations may make provision for the amendment of a provider’s accreditation, including by requiring an application fee to be paid to the Scheme Administrator for an application to amend an accreditation.
(5)  The Scheme Administrator may refuse an application to amend a provider’s accreditation on grounds specified in the regulations.
(6)  In addition to an application fee referred to in subclause (4), the Scheme Administrator may recover from an accredited certificate provider the costs reasonably incurred by the Administrator in investigating and determining an application to amend the provider’s accreditation.
43   Transfer of accreditation
(1)  Accreditation as a certificate provider is not transferable, except as otherwise provided by this clause.
(2)  A person who is accredited as a certificate provider may, with the approval of the Scheme Administrator, transfer that accreditation to a related body corporate of the person.
(3)  The Scheme Administrator may approve the transfer of accreditation only if satisfied that the person to whom the accreditation is proposed to be transferred is or will be eligible for accreditation and will fulfil the obligations that the accredited certificate provider is required to fulfil in respect of the recognised energy saving activity or activities for which accreditation is to be transferred.
(4)  The regulations may make further provision with respect to the transfer of accreditation, including by requiring a fee to be paid to the Scheme Administrator in connection with an application for approval of a transfer of accreditation.
44   Records to be kept by accredited certificate providers
The regulations may make provision for or with respect to the records to be kept by accredited certificate providers and the information required to be provided to the Scheme Administrator in connection with the creation of energy savings certificates.
45   Scheme Administrator may require surrender of certificates
(1)  The Scheme Administrator may, by order in writing to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, a number of energy savings certificates specified in the order.
(2)  An order may be made against a person under this clause only if the Scheme Administrator is satisfied, on the balance of probabilities, that—
(a)  the person is guilty of an offence involving the improper creation of energy savings certificates (that is, an offence under clause 36), or
(b)  the person is guilty of an offence of contravening a condition of the person’s accreditation as a certificate provider (that is, an offence under clause 41).
(3)  In the case of an order made against a person on grounds involving the improper creation of energy savings certificates, the Scheme Administrator is to require the surrender of a number of certificates that is no more than the number of energy savings certificates that, in the opinion of the Scheme Administrator, were improperly created by the person and registered under this Part.
(4)  In any other case, the Scheme Administrator is to determine the number of energy savings certificates to be surrendered in accordance with the regulations.
(5)  A person must not fail to comply with an order under this clause.
Maximum penalty—1,000 penalty units, and an additional 1 penalty unit for each energy savings certificate the person fails to surrender in accordance with the order.
(6)  The value of any energy savings certificates surrendered for the purposes of compliance with an order under this clause cannot be counted towards meeting a scheme participant’s individual energy savings target or remedying a carried forward shortfall.
(7)  If a person fails to comply with an order under this clause, the Scheme Administrator may cancel any energy savings certificates in respect of which the person is registered under this Part as the owner.
(8)  For avoidance of doubt, it is not an excuse for a failure to comply with an order under this clause that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of energy savings certificates to comply with the order.
Note—
If the person who is the subject of the order does not hold a sufficient number of certificates to comply with the order, the person may obtain the required number by purchasing them.
(9)  The regulations may make further provision for or with respect to orders under this clause.
Division 9 Registration, form and duration of energy savings certificates
46   Creation of certificate must be registered
(1)  An energy savings certificate has no force or effect until the creation of the certificate is registered by the Scheme Administrator in the register of energy savings certificates kept under this Part.
(2)  An application for registration of the creation of an energy savings certificate may be made to the Scheme Administrator by an accredited certificate provider.
(3)  The Scheme Administrator is to determine an application for registration of the creation of an energy savings certificate by—
(a)  granting the application and registering the creation of the energy savings certificate in the register of energy savings certificates kept under this Part, or
(b)  refusing the application.
(4)  The Scheme Administrator registers the creation of an energy savings certificate by creating an entry for the certificate in the register of energy savings certificates and recording the name of the person who created the certificate as the owner of the certificate.
(5)  The Scheme Administrator may refuse an application for registration of the creation of an energy savings certificate on such grounds as may be specified in the regulations.
(6)  The regulations may make provision for or with respect to applications for registration of the creation of an energy savings certificate, including by requiring an application fee (adjusted for movements in the consumer price index for each year in accordance with the regulations) to be paid to the Scheme Administrator.
(7)  The Scheme Administrator is to cause notice of any adjusted application fee to be published on its website before the beginning of the year to which the application fee applies.
47   Form of certificate
The regulations may make provision for or with respect to the form in which energy savings certificates are to be created.
48   Duration of certificate
(1)  An energy savings certificate, when registered by the Scheme Administrator, remains in force until it is cancelled by the Scheme Administrator.
(2)  An energy savings certificate may be cancelled by the Scheme Administrator—
(a)  if the person registered as the owner of the energy savings certificate is a scheme participant who elects to surrender the certificate for the purpose of meeting its individual energy savings target or remedying a carried forward shortfall, and the Scheme Regulator accepts the surrender of the certificate, or
(b)  if the person registered as the owner of the energy savings certificate, by notice in writing, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate, or
(c)  in any other circumstances authorised by this Part.
(3)  The Scheme Administrator must cancel any energy savings certificate that is surrendered by the owner of the certificate if the owner is surrendering the certificate for the purposes of compliance with an order made under this Part by the Scheme Administrator requiring the person to surrender energy savings certificates.
(4)  The Scheme Administrator cancels an energy savings certificate by altering the entry relating to the certificate in the register of energy savings certificates kept under this Part to show that the certificate is cancelled.
Division 10 Transfers and other dealings in certificates
49   Certificates are transferable
An energy savings certificate is transferable in accordance with this Division.
50   Application for registration of transfer
(1)  The transfer of an energy savings certificate does not have effect until the transfer is registered by the Scheme Administrator under this Part.
(2)  An application for registration of a transfer of an energy savings certificate is to be made to the Scheme Administrator by the parties to the transfer.
(3)  The Scheme Administrator must—
(a)  grant the application by registering the transfer of the energy savings certificate in the register of energy savings certificates kept under this Part, or
(b)  refuse the application.
(4)  The Scheme Administrator registers the transfer of an energy savings certificate by altering the entry relating to that certificate in the register of energy savings certificates so as to record the new owner of the certificate.
(5)  The Scheme Administrator may refuse an application for registration of a transfer of an energy savings certificate on such grounds as may be specified in the regulations.
(6)  The regulations may make provision for or with respect to applications for the registration of transfers of energy savings certificates, including by requiring an application fee to be paid to the Scheme Administrator.
51   Other dealings in certificates
The regulations may make provision for or with respect to the registration of any mortgage, assignment, transmission or other dealing in an energy savings certificate.
52   Holder of certificate may deal with certificate
(1)  The person registered as the owner of an energy savings certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for any consideration for any such dealing.
(2)  This clause is subject to any rights appearing in the register of energy savings certificates to belong to another person, being rights that are registered in accordance with any regulations made under this Part.
(3)  This clause only protects a person who deals with the person registered as the owner of the energy savings certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(4)  Despite subclause (3), a person who purchases an energy savings certificate in good faith for value does not lose the protection provided by this clause because the person has notice that a person has been found guilty of an offence against this Part in respect of the creation of an energy savings certificate.
Note—
This Part makes it an offence to improperly create an energy savings certificate. The Scheme Administrator may require a person who has been convicted of such an offence to “make good” the improper creation of the certificates by surrendering to the Scheme Administrator an equivalent number of certificates to those improperly created. It is not necessary for those certificates to be the actual certificates improperly created (as those certificates may already have been sold).
53   Scheme Administrator not concerned as to legal effect of transaction
The Scheme Administrator is not concerned with the effect in law of any transaction registered under this Part or the regulations and the registration of the transaction does not give to the transaction any effect that it would not have if this Division had not been enacted.
Division 11 Administration of scheme
54   Scheme Regulator
(1)  The Minister may, by order in writing, appoint a person or body as the Scheme Regulator.
(2)  The functions of the Scheme Regulator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Regulator or, in the absence of such an appointment, the Tribunal.
(3)  The regulations may make provision for or with respect to the appointment of a Scheme Regulator by the Minister.
55   Functions of Scheme Regulator
(1)  The Scheme Regulator has the following functions—
(a)  to assess and determine, in accordance with this Part, the regulations and the scheme rules, whether scheme participants have complied with individual energy savings targets,
(b)  if appropriate, to assess and determine, in accordance with this Part, the regulations and the scheme rules, any energy savings shortfall penalty payable by a scheme participant,
(c)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d)  to monitor, and report to the Minister on, the extent to which scheme participants comply, or fail to comply, with obligations imposed by or under this Part,
(d1)  to provide advice to the Minister on request about the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part,
(e)  such other functions as are conferred or imposed on it by or under this Act.
(2)  If the Scheme Regulator is appointed by the Minister, the Scheme Regulator also has such other functions as are conferred or imposed on it by the Minister under the terms of its appointment as Scheme Regulator.
(3)  For the purpose of enabling the Scheme Regulator to exercise its functions, the Minister must furnish the Scheme Regulator with such information in the possession of the Minister as the Scheme Regulator may request in relation to the compliance by scheme participants with this Part.
(4)  The Scheme Regulator may delegate the exercise of its functions under this Part, other than this power of delegation, to—
(a)  with the approval of the Minister—another person or body, and
(b)  a person who is a member of a class of persons approved by the Minister.
(5)  If the Tribunal is the Scheme Regulator, section 10 of the Independent Pricing and Regulatory Tribunal Act 1992 does not apply to its functions as Scheme Regulator.
56   Scheme Administrator
(1)  The Minister may, by order in writing, appoint a person or body as the Scheme Administrator.
(2)  The functions of the Scheme Administrator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Administrator or, in the absence of such an appointment, the Tribunal.
(3)  In determining whether to appoint a person or body as Scheme Administrator, the Minister must consider the following matters—
(a)  the costs of any such appointment,
(b)  the efficiency of administrative arrangements relating to the energy savings scheme,
(c)  ability to meet objectives of the energy savings scheme,
(d)  proposed governance arrangements,
(e)  arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator’s functions.
(4)  The regulations may make provision for or with respect to the appointment of a Scheme Administrator by the Minister.
(5)  The Minister may limit the appointment of a person or body as Scheme Administrator to particular specified functions of the Scheme Administrator. In such a case, a reference in this Act to the Scheme Administrator, in relation to any functions of the Scheme Administrator, is a reference to the person or body appointed to exercise those functions (or, in the absence of such an appointment, the Tribunal).
57   Functions of Scheme Administrator
(1)  The Scheme Administrator has the following functions—
(a)  the functions conferred by this Part relating to the energy savings scheme,
(b)  to monitor, and to report to the Minister on, the extent to which accredited certificate providers comply with this Part, the regulations, the scheme rules and any conditions of accreditation,
(c)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(c1)  to provide advice to the Minister on request about the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part,
(d)  such other functions as are conferred or imposed on it by or under this Act or any other Act or law.
(2)  If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has such other functions as are conferred or imposed on it by the Minister under the terms of its appointment as Scheme Administrator.
(3)  For the purpose of enabling the Scheme Administrator to exercise its functions, the Minister must furnish the Scheme Administrator with such information in the possession of the Minister as the Scheme Administrator may request in relation to the compliance by accredited certificate providers with this Part.
(4)  The Scheme Administrator may delegate the exercise of its functions under this Part, other than this power of delegation, to—
(a)  with the approval of the Minister—another person or body, and
(b)  a person who is a member of a class of persons approved by the Minister.
(5)  If the Tribunal is the Scheme Administrator, section 10 of the Independent Pricing and Regulatory Tribunal Act 1992 does not apply to its functions as Scheme Administrator.
58   Conduct of audits
(1)  The regulations may make provision for or with respect to the conduct of audits by the Scheme Regulator, the Scheme Administrator or other persons for the purposes of this Part.
(2)  Without limiting the above, the regulations may provide for the following matters—
(a)  the matters that may be the subject of an audit,
(b)  the persons who may conduct an audit,
(c)  the functions that may be exercised by persons who conduct an audit,
(d)  offences relating to obstructing or hindering persons, or refusing or failing to comply with requirements made by persons, who conduct audits.
(3)  Each scheme participant and accredited certificate provider is liable to pay to the Treasurer the reasonable cost (as certified by the Scheme Regulator or Scheme Administrator) involved in and in connection with carrying out the audit functions of the Scheme Regulator or Scheme Administrator in relation to the participant or provider.
(4)  Without limitation, a licence or accreditation may include terms and conditions relating to the determination of the cost of carrying out those functions.
59   Provision of information, documents and evidence
(1)  For the purposes of exercising its functions under this Part, the Scheme Regulator or Scheme Administrator may, by notice in writing served on any relevant person, require the person to do any one or more of the following—
(a)  to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b)  to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, any document or type of document specified in the notice.
(2)  If the Tribunal is the Scheme Regulator or Scheme Administrator, the Tribunal may, in such a notice, in addition to or instead of requiring any of the above, require a relevant person to attend a meeting of the Tribunal to give evidence.
(3)  A person must not, without reasonable excuse—
(a)  refuse or fail to comply with a notice served under this clause, or
(b)  refuse or fail to answer a question that the person is required to answer at any meeting of the Tribunal that the person is required to attend under this clause.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units, or
(b)  in the case of an individual—100 penalty units or 6 months imprisonment, or both.
(4)  An individual has a reasonable excuse for the purposes of subclause (3) if complying with the notice or answering the question might tend to incriminate the individual or make the individual liable to any forfeiture or penalty.
(5)  If documents are given to the Scheme Regulator or Scheme Administrator under this clause, the Scheme Regulator or Scheme Administrator—
(a)  may take possession of, and make copies of or take extracts from, the documents, and
(b)  may keep possession of the documents for the period necessary for those purposes, and
(c)  during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Scheme Regulator or Scheme Administrator.
(6)  This clause does not affect the law relating to client legal privilege (or other legal professional privilege).
(7)  In this clause, a relevant person means—
(a)  an officer of a scheme participant or former scheme participant, or
(b)  an officer of an accredited certificate provider or former accredited certificate provider, or
(c)  any other person whom the Scheme Regulator or Scheme Administrator (as the case requires) has reason to believe is able to provide information relevant to its functions as Scheme Regulator or Scheme Administrator.
60   Obstruction of Scheme Regulator or Scheme Administrator
A person must not hinder, obstruct or interfere with the Scheme Regulator, the Scheme Administrator or any member or officer of the Scheme Regulator or the Scheme Administrator in the exercise of functions under this Part.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units, or
(b)  in the case of an individual—100 penalty units or 6 months imprisonment, or both.
61   False or misleading information
A person must not, for the purposes of this Part—
(a)  give to the Scheme Regulator or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular (unless the person informs the Scheme Regulator or Scheme Administrator of that fact), or
(b)  at a meeting of the Tribunal acting as Scheme Regulator or Scheme Administrator, give evidence that the person knows to be false or misleading in a material particular.
Maximum penalty—100 penalty units or 6 months imprisonment, or both.
62   Confidential information
(1)  If a person provides information to the Scheme Regulator or Scheme Administrator in connection with the functions of the Scheme Regulator or Scheme Administrator under this Part on the understanding that the information is confidential and will not be divulged, the Scheme Regulator or Scheme Administrator is required to ensure that the information is not divulged by it to any person, except—
(a)  with the consent of the person who provided the information, or
(b)  in the case of information provided to the Tribunal while acting as Scheme Regulator or Scheme Administrator, to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c)  to a member or officer of the Scheme Regulator or Scheme Administrator, as the case requires, or
(d)  as required by any other law.
(2)  If the Scheme Regulator or Scheme Administrator is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Scheme Regulator or Scheme Administrator in connection with its functions under this Part, it may give directions prohibiting or restricting the divulging of the information.
(3)  A person must not contravene a direction given under subclause (2).
Maximum penalty—100 penalty units or imprisonment for 6 months, or both.
(4)  A reference in this clause to information includes information given at a meeting of the Scheme Regulator or Scheme Administrator and information contained in any documents given to the Scheme Regulator or Scheme Administrator.
62A   Identity of person providing information to be confidential
(1)  This clause applies if a person (an information provider) provides information to the Scheme Regulator or Scheme Administrator about another person’s non-compliance with an obligation under this Part.
(2)  The Scheme Regulator or Scheme Administrator must ensure that the identity of an information provider, and anything that may reasonably identify the information provider, is not disclosed to any person except—
(a)  with the consent of the information provider, or
(b)  if ordered by a court or tribunal, or
(c)  if required by another law.
(3)  If the identity of an information provider cannot be disclosed under subclause (2), the information provided by the information provider cannot be used as evidence in proceedings against another person for an offence under this Act.
(4)  Subclause (3) does not prevent the Scheme Regulator or Scheme Administrator using information, including in proceedings for an offence under this Act, obtained as a result of the information received from an information provider.
63   Cabinet documents and proceedings
(1)  This Part does not enable the Scheme Regulator or Scheme Administrator—
(a)  to require any person to give any statement of information or answer any question that relates to confidential proceedings of Cabinet, or
(b)  to require any person to produce Cabinet information, or
(c)  to inspect Cabinet information.
(2)  For the purposes of this clause, a certificate of the Secretary of the Department of Premier and Cabinet, or the General Counsel of that Department, that any information or question relates to confidential proceedings of Cabinet or that information is Cabinet information is conclusive of the matter certified.
(3)  In this clause—
Cabinet includes a committee of Cabinet or a subcommittee of such a committee.
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
Division 11A Civil penalties
63A   Definitions
In this Division—
civil penalty order—see clause 63B.
civil penalty provision means a provision prescribed by the regulations as a civil penalty provision.
scheme entity means—
(a)  the Scheme Administrator, or
(b)  the Scheme Regulator.
63B   Monetary penalty
(1)  If a person has contravened a civil penalty provision, a scheme entity may, by written order (a civil penalty order), require the person to pay a monetary penalty of no more than the penalty notice amount for the provision.
(2)  If a corporation is liable to a monetary penalty under this clause, each of the following persons may be ordered to pay a monetary penalty if the person knowingly authorised or permitted the contravention—
(a)  a director of the corporation,
(b)  a person concerned in the management of the corporation.
63C   Process
(1)  A scheme entity may not issue a civil penalty order to a person unless—
(a)  the scheme entity has given the person notice of the proposed order and the reasons for it, and
(b)  the person has been given a reasonable opportunity to make a submission about the proposed order, and
(c)  the scheme entity has considered a submission made by the person, and
(d)  the scheme entity is satisfied on the balance of probabilities that the person—
(i)  contravened the relevant civil penalty provision, or
(ii)  knowingly authorised or permitted the contravention.
(2)  A scheme entity must provide written reasons for a decision to issue a civil penalty order to the person.
(3)  A civil penalty order must be issued within 3 years after the date on which evidence of the alleged offence first came to the attention of the scheme entity.
(4)  A civil penalty order must include the date, not less than 28 days after the date the order is issued, by which the monetary penalty imposed by the order must be paid.
63D   Double jeopardy
(1)  A scheme entity may not issue a civil penalty order to a person if—
(a)  another civil penalty order has been issued to a person for the contravention, or
(b)  the person has been found guilty, whether a conviction is recorded or not, of an offence under this Act or the regulations for the contravention.
(2)  If criminal proceedings are taken against a person for a contravention after the person pays the monetary penalty imposed by a civil penalty order, a court that finds the person guilty of an offence must discount any penalty imposed by the court by the civil penalty amount paid by the person.
63E   Payment not an admission of guilt or liability
The payment of a monetary penalty under this Division cannot be taken to be an admission of—
(a)  a breach of a civil penalty provision, or
(b)  liability for civil or criminal proceedings arising from substantially the same conduct.
63F   Withdrawal of order
(1)  A scheme entity may withdraw a civil penalty order by written notice to the person the subject of the order.
(2)  A civil penalty order may be withdrawn under this clause at any time before it is complied with.
(3)  A civil penalty order issued to a person is automatically withdrawn on the commencement against the person of criminal proceedings for the contravention.
(4)  A civil penalty order withdrawn under this clause may, subject to clause 63D, be reissued.
63G   Internal review of order
(1)  A person who is the subject of a civil penalty order may apply to the scheme entity that issued the order for a review of—
(a)  the decision to issue the order, or
(b)  the monetary penalty imposed by the order.
(2)  An application must be made within 28 days of the issuing of the order.
(3)  A person issued a civil penalty order is not required to pay the monetary penalty imposed by the order while an application is being considered.
(4)  The scheme entity’s decision on the application must be given to the applicant—
(a)  by written notice that includes the reasons for the decision, and
(b)  within 90 days of the making of the application.
(5)  If the written notice of the scheme entity’s decision is not given to the applicant within 90 days of the making of the application, the application is taken to have been refused.
(6)  If the scheme entity affirms the decision to issue the civil penalty order, including with a different monetary penalty, the written notice of the decision must include the date, not less than 28 days after the date of the notice, by which the monetary penalty must be paid.
63H   External review of order
(1)  A person who is not satisfied with the result of an internal review under clause 63G may make an application to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 for administrative review of the internal review decision.
(2)  The Administrative Decisions Review Act 1997, section 53 does not apply to a decision under clause 63G that may be reviewed by the Tribunal.
63I   Recovery of monetary penalty
The monetary penalty imposed by a civil penalty order may be recovered by a scheme entity in a court of competent jurisdiction as a debt owing to the Crown.
Division 12 Registers
64   Establishment and keeping of registers
(1)  The Scheme Administrator is required to establish and keep the following registers for the purposes of this Part—
(a)  a register of accredited certificate providers,
(b)  a register of energy savings certificates,
(c)  a register of persons who have applied for and been refused accreditation as accredited certificate providers.
(2)  A register is to be kept in such form as the Scheme Administrator considers appropriate.
(3)  A register may be kept wholly or partly by electronic means.
65   Register of accredited certificate providers
(1)  The register of accredited certificate providers is to contain the following information in relation to each accredited certificate provider—
(a)  the name of the accredited certificate provider,
(b)  any other information required to be included in the register by this Part or the regulations.
(2)  The register of accredited certificate providers may also contain such information as the regulations may prescribe in relation to a person whose accreditation as a certificate provider is suspended or cancelled.
(3)  The register of accredited certificate providers must be published on the Scheme Administrator’s website.
(4)  However, the information required to be included in the register by the regulations is required to be made available to the public under this clause only if the regulations require it to be made so available.
65A   Register of persons refused accreditation as accredited certificate providers
The register of persons who have applied for and been refused accreditation as an accredited certificate provider must contain the following information about each person—
(a)  the name of the person and, if the person is a corporation, the corporation’s ACN,
(b)  the reasons the person’s application was refused,
(c)  other information required to be included in the register by this Part or the regulations.
66   Register of energy savings certificates
(1)  The register of energy savings certificates is to contain the following information in relation to each energy savings certificate that is created under this Part—
(a)  the name of the person who created the energy savings certificate,
(b)  the name of the current registered owner, and any previous registered owners, of the energy savings certificate,
(b1)  if the Minister has approved a corresponding scheme for a State or Territory for the purposes of clause 30 and the energy saving activity to which the certificate relates occurred in such a State or Territory—the State or Territory in which the activity occurred,
(c)  whether the certificate is in force, or has been cancelled,
(d)  any other information required to be included in the register by this Part or the regulations.
(2)  The register of energy savings certificates must be published on the Scheme Administrator’s website.
(3)  However, the information required to be included in the register by the regulations is required to be made available to the public under this clause only if the regulations require it to be made so available.
67   Information from registers
The Scheme Administrator may compile the following information from a register and make that information available for public inspection (free of charge) in such form as the Scheme Administrator thinks fit—
(a)  information concerning the creation or cancellation of energy savings certificates under this Part,
(b)  information concerning current and previous registered owners of energy savings certificates,
(c)  information concerning the transfer of energy savings certificates,
(d)  other information of a kind prescribed by the regulations.
68   Evidentiary provisions
(1)  A register kept under this Division is evidence of any particulars registered in it.
(2)  If a register is wholly or partly kept by electronic means, a document issued by the Scheme Administrator producing in writing particulars included in the register, or the part kept by electronic means, is admissible in legal proceedings as evidence of those particulars.
69   Correction of register
The Scheme Administrator may correct any error in, or omission from, a register.
69A   Information sharing
(1)  The Scheme Administrator may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information about the following held by the Scheme Administrator or the agency—
(a)  offences and alleged offences under this Part, including investigations,
(b)  the administration of the energy savings scheme,
(c)  other matters of a type prescribed by the regulations.
(2)  Under an information sharing arrangement, the Scheme Administrator and the relevant agency are, despite any other Act or law of the State, authorised—
(a)  to request and receive information held by the other party to the arrangement, and
(b)  to disclose information to the other party.
(3)  In this clause—
relevant agency means the following—
(a)  a government sector agency within the meaning of the Government Sector Employment Act 2013,
(b)  another person or body prescribed by the regulations.
Division 13 Scheme rules
70   Scheme rules
(1)  The Minister may approve rules for or with respect to the following matters—
(a)  any matter for which a scheme rule may be made under this Part,
(b)  any other matter prescribed by the regulations.
Note—
Under Division 7, the scheme rules may make provision for—
(a)  the activities in respect of which energy savings certificates may be created, and
(b)  the methodology for calculating the number of megawatt hours of energy savings arising from a recognised energy saving activity and for applying the certificate conversion factors.
(2)  A rule may make provision for a matter by applying, adopting or incorporating the provisions of an Act or statutory rule or another publication as follows—
(a)  with or without modification,
(b)  as in force on a particular day or from time to time.
(3)  A rule may—
(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body.
(4)  The Minister may from time to time approve amendments to the rules or a revocation of rules.
(5)  If a rule, or a rule amending or revoking a rule, is approved by the Minister—
(a)  written notice of the approval of the rule must be published in the Gazette, and
(b)  the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and
(c)  the Minister must make available a copy of the rule to each scheme participant and make copies available to the public.
(6)  A rule must be consistent with this Act and the regulations.
Editorial note—
For approved rules published in the Gazette under this clause, see Gazettes No 99 of 3.7.2009, p 3897; No 140 of 24.12.2010, p 6178; No 49 of 30.5.2014, pp 1851, 1854; No 50 of 19.6.2015, p 1703; No 66 of 7.8.2015, p 2376 (and see errata in Gazettes No 84 of 29.9.2015, p 3042 and No 88 of 9.10.2015, p 3171); No 26 of 8.4.2016, p 603 (and see erratum in Gazette No 35 of 13.5.2016, p 1048); No 80 of 30.9.2016, p 2700; No 42 of 31.3.2017, p 831; No 45 of 20.4.2018, p 2429 and No 7 of 10.1.2020, n2020-52. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
71   Obligations under scheme rules
A person who is a scheme participant or an accredited certificate provider must not contravene a provision of a scheme rule.
Maximum penalty—
(a)  in the case of a corporation—250 penalty units, or
(b)  in the case of an individual—100 penalty units.
Division 13A Compliance officers and penalty notices
71A   Appointment of compliance officers
(1)  The Scheme Administrator may, in accordance with any guidelines in force under this clause, appoint compliance officers for the purposes of this Part.
(2)  The Minister may, by written order, issue guidelines for the appointment of compliance officers.
(3)  An order under this clause must be published on the Scheme Administrator’s website and takes effect on—
(a)  the day on which it is published, or
(b)  a later day specified in the order.
71B   Powers of compliance officers
(1)  The powers of a compliance officer may be exercised for the purposes of investigating an accredited certificate provider’s compliance with the following—
(a)  this Part,
(b)  the regulations,
(c)  the scheme rules,
(d)  a condition of the provider’s accreditation.
(2)  A compliance officer may at a reasonable time enter—
(a)  premises that are used in connection with an energy savings activity for which a certificate has been created, and
(b)  the principal place of business of an accredited certificate provider.
(3)  A compliance officer may not enter a part of premises used only for residential purposes without the permission of the occupier of the premises.
(4)  A compliance officer may, at premises lawfully entered, do anything that, in the opinion of the authorised officer, is necessary to be done for the purposes of the investigation, including the following—
(a)  examine and test plant or equipment on the premises,
(b)  take photographs, films, audio, video and other recordings,
(c)  take copies of records or documents on the premises,
(d)  seize anything the authorised officer believes on reasonable grounds is connected with an offence under this Part.
(5)  A person must not hinder or obstruct a compliance officer in the exercise of a power.
Maximum penalty—
(a)  in the case of a corporation—200 penalty units, or
(b)  for an individual—50 penalty units.
(6)  A person is not guilty of an offence under subclause (5) unless it is established that the authorised officer identified themselves as a compliance officer.
71C   Penalty notices
(1)  A compliance officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence in this Part, or a regulation under this Part, that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this clause.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this clause is the amount prescribed for the alleged offence by the regulations, which must not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(5)  This clause does not limit the operation of another provision of, or made under, this or another Act relating to proceedings that may be taken for offences.
Division 14 Miscellaneous
72   Application of Part to persons who cease to be scheme participants
(1)  If a person ceases to be a scheme participant, this Part and the regulations under this Part continue to apply to the person in respect of the period during which the person was a scheme participant and, for that purpose, a reference to a scheme participant includes a reference to a former scheme participant.
(2)  In particular, the former scheme participant continues to be required to lodge an energy savings statement in respect of the year during which the person ceased to be a scheme participant, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in respect of the person as if the person were a scheme participant.
(3)  The Minister may, by notice in writing to the former scheme participant, bring forward the date on which the person would otherwise be required to lodge an energy savings statement with the Scheme Regulator in respect of the year during which the person ceased to be a scheme participant.
(4)  The notice may specify a date (a submission date) on which the former scheme participant is required to lodge the energy savings statement with the Scheme Regulator, being a date that is earlier than the date on which the person would otherwise be required to lodge the statement.
(5)  The submission date must not be earlier than 28 days after the person ceased to be a scheme participant.
(6)  If the Minister brings forward the date for submission of an energy savings statement under this clause, the provisions of this Act regarding the lodgment of an energy savings statement and the payment of an energy savings shortfall penalty apply as if a reference to the date of 1 March were a reference to the submission date.
73   Administrative reviews by Civil and Administrative Tribunal
(1)  A scheme participant or former scheme participant who is aggrieved by any of the following decisions of the Scheme Regulator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a determination as to the individual energy savings target for the scheme participant or former scheme participant for a year,
(b)  a decision to refuse to accept the surrender of an energy savings certificate for the purposes of meeting the scheme participant’s or former scheme participant’s individual energy savings target or remedying a carried forward shortfall,
(c)  an assessment of the amount of any energy savings shortfall penalty payable by the scheme participant or former scheme participant for a year,
(d)  any other decision of the Scheme Regulator of a kind prescribed by the regulations.
(2)  A person who is or was accredited, or who has applied to be accredited, under this Part as a certificate provider and who is aggrieved by any of the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a decision to refuse accreditation of the person as a certificate provider,
(b)  a decision to cancel or suspend the accreditation of the person as a certificate provider,
(c)  a decision to refuse registration of the creation of an energy savings certificate,
(d)  any other decision of the Scheme Administrator of a kind prescribed by the regulations.
(3)  A person who has applied for the registration of a transfer of an energy savings certificate under this Part and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4)  A person who is the subject of an order by the Scheme Administrator under this Part requiring the person to surrender energy savings certificates to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(5)  A person who, under a scheme rule, is approved by the Scheme Administrator to undertake a function and who is aggrieved by a decision of the Scheme Administrator to revoke the person’s approval may apply to the Civil and Administrative Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997.
74   Certificate evidence
A certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate—
(a)  a person was or was not a scheme participant, or
(b)  the individual energy savings target for a scheme participant was the amount specified in the certificate, or
(c)  the energy savings shortfall for a scheme participant for a year, or the carried forward shortfall for a year, was the amount specified in the certificate, or
(d)  the energy savings shortfall penalty payable by a scheme participant was the amount specified in the certificate,
is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated in the certificate.
74A   Ancillary offences
(1)  This clause applies to a person who, for an offence under this Part or the regulations under this Part—
(a)  causes or permits another person to commit the offence, or
(b)  aids, abets, counsels or procures another person to commit the offence, or
(c)  conspires with another person to commit the offence.
(2)  A person to whom this clause applies is guilty of the offence and is liable to the same penalty applicable to an offence against the other provision.
75   Personal liability
(1)  A protected person is not personally subject to any liability for anything done—
(a)  in good faith, and
(b)  for the purpose of exercising functions under this Act or another Act.
(2)  The liability instead attaches to the Crown.
(3)  In this clause—
done includes omitted to be done.
liability means civil liability and includes action, claim or demand.
protected person means—
(a)  the Scheme Regulator, or
(b)  the Scheme Administrator, or
(c)  a member or officer of, or a person acting under the direction of, the Scheme Regulator or Scheme Administrator, or
(d)  a compliance officer.
76   Annual report by Scheme Regulator
(1)  As soon as practicable after 1 March in each year, the Scheme Regulator must prepare a report on the extent to which scheme participants have complied, or failed to comply, with individual energy savings targets during the previous year.
(1A)  The report must be forwarded to the Minister on or before—
(a)  the date prescribed by the regulations, or
(b)  if the regulations do not prescribe a date—31 August in the same year.
(2)  Without limiting the above, the report is to contain the following—
(a)  the name of each scheme participant and the performance of the participant in relation to the participant’s individual energy savings target in the year to which the report relates,
(b)  the total number of energy savings certificates surrendered in the year to which the report relates,
(c)  the total number of energy savings certificates created in the year to which the report relates,
(c1)  the total number of energy savings certificates created in previous years and not surrendered under this Part before the beginning of the year to which the report relates,
(c2)  an assessment of the extent of any under supply or over supply of energy savings certificates that may be surrendered under this Part in the year to which the report relates,
(d)  an estimate, prepared by the Scheme Administrator, of the actual savings in each recognised form of energy that have been realised by end users under the scheme in the year to which the report relates (having regard to the number of energy savings certificates that have been created),
(e)  an estimate, prepared by the Scheme Administrator, of the actual savings in each recognised form of energy that will be realised by end users under the scheme in the next 10 years (having regard to the number of energy savings certificates that have been created).
(2A)  For the purposes of subclause (2), any energy savings certificates created under an approved corresponding scheme that are not able to be surrendered by a scheme participant for the purpose of meeting its annual energy savings target or remedying a carried forward shortfall are to be disregarded.
(3)  The report must also set out the functions delegated by the Scheme Regulator or Scheme Administrator and the person or body to whom they were delegated.
(4)  The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
(5)  For the purposes of enabling the Scheme Regulator to compile a report under this clause, the Scheme Administrator must furnish the Scheme Regulator with—
(a)  the estimates the Scheme Administrator is required to prepare for inclusion in the report, and
(b)  such other information as the Scheme Regulator reasonably requires to complete the report.
(6)  The first report under this clause is to be made in the year 2010.
77   Five-yearly reviews of scheme
(1)  The Minister is to review the operation of the scheme to determine whether the policy objectives of the scheme remain valid and whether the terms of this Part remain appropriate for securing those objectives.
(2)  The first review is to be undertaken as soon as possible after the end of the period of 5 years from 1 July 2009.
(3)  After that, a review is to be undertaken at the end of each subsequent period of 5 years.
(4)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period to which the review relates.
78   Waiver, suspension or reduction of obligations in emergencies
(1)  The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a scheme participant to meet its individual energy savings target or remedy a carried forward shortfall, but only if it appears to the Minister that a scheme participant is or will be unable to meet the individual energy savings target or remedy the carried forward shortfall because of—
(a)  a systems or other failure of the register of energy savings certificates kept under this Part, or
(b)  any other emergency affecting the integrity of the register or the energy savings scheme.
(2)  An order may—
(a)  be made subject to conditions, and
(b)  apply to all scheme participants or to a specified class of participants, and
(c)  specify the effect of the waiver or suspension on any other rights conferred or obligations imposed under this Part.
(2A)  The Minister may, by order published in the Gazette, reduce the individual energy savings target of a small retailer by a specified percentage for a specified year if it appears to the Minister that small retailers generally are, or will be, unable to meet the individual energy savings target because of an emergency affecting the State or part of the State.
(2B)  If the reduction under subclause (2A) results in a fraction of a notional megawatt hour, the fractional amount is to be rounded up or down to the nearest whole notional megawatt hour (and, if the amount to be rounded is half a notional megawatt hour, is to be rounded up).
(2C)  An order made under subclause (2A) may—
(a)  be made subject to conditions, and
(b)  apply to all small retailers or to a specified class of small retailers.
(3)  An order takes effect on the day on which it is published in the Gazette or, if a later day is specified in the order, on that day.
(4)  In this clause—
small retailer means a scheme participant who, in the year specified in an order made under subclause (2A)—
(a)  supplies electricity to no more than 5,000 end users in this State, and
(b)  makes liable acquisitions not exceeding 30,000 megawatt hours of electricity.
78A   Exchange of information
(1)  Despite another provision of this Act, the Scheme Administrator may keep the following information—
(a)  information about offences or alleged offences under this Part,
(b)  information collected in the administration of this Act.
(2)  The Scheme Administrator may give the information kept under this clause to the following—
(a)  a person or body undertaking functions, similar to those undertaken by the Scheme Administrator, in another State or Territory or for the Commonwealth,
(b)  a a government sector agency within the meaning of the Government Sector Employment Act 2013.
79   Termination of scheme on establishment of national scheme
(1)  The Governor may, by proclamation published on the NSW legislation website, terminate the operation of any or all of the provisions of this Part.
(2)  A proclamation may be made only if the Minister has certified to the Governor that the Minister is satisfied that New South Wales is, or will be, a participant in a scheme that—
(a)  has been or will be established either nationally or in this State and at least one or more other States or Territories, and
(b)  is designed to achieve outcomes that include a reduction in the consumption of electricity and the encouragement of participation in activities that result in energy savings.
(3)  The termination of the operation of the provisions concerned takes effect on the day (not being a day earlier than the day on which the proclamation is published on the NSW legislation website) specified in the proclamation.
(4)  The day specified in the proclamation must not be a day that is earlier than the day on which New South Wales becomes, or will become, a participant in the scheme concerned.
(5), (6)    (Repealed)
80   Automatic termination of scheme at end of year 2050
(1)  The scheme terminates at the end of the year 2050.
(2)  This Part continues to have effect with respect to matters arising (including obligations incurred) before the termination of the scheme.
(3)  In particular, persons who are scheme participants in the year 2050 continue to be required to lodge an energy savings statement in respect of that year in accordance with this Part, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator and Scheme Administrator continue to apply, even though the scheme is terminated.
(4)  A reference in this Part to a scheme participant includes, after the scheme is terminated, a reference to a former scheme participant.
80A   Termination of scheme—regulations
(1)  On termination of the scheme under clause 79 or 80, regulations may be made about the effect of the termination on rights conferred or obligations imposed under this Part.
(2)  Without limiting subclause (1), the regulations may—
(a)  prohibit scheme participants from carrying forward an energy savings shortfall, or part of an energy savings shortfall, for a year to the following year, and
(b)  specify other conditions that must be complied with following the termination.
Part 2 Peak demand reduction scheme
Division 1 Preliminary
81   Definitions
In this Part—
accredited certificate provider means a person accredited as a certificate provider under Division 7 and whose accreditation is in force.
annual statement—see clause 103(1).
approved corresponding scheme means a scheme approved by the Minister, for the purposes of clause 107, by order published in the Gazette.
carried forward shortfall—see clause 101(8).
certificate means a certificate created under clause 106.
compliance officer means a compliance officer appointed under clause 136B.
compliance period means the period commencing on 1 November and ending on 31 March the following year.
Example—
The 2022–2023 compliance period means the compliance period commencing on 1 November 2022 and ending on 31 March 2023.
consumer price index means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.
direct supplier of electricity means an electricity generator prescribed by the regulations, or other person prescribed by the regulations, who supplies electricity directly to a customer.
end user of electricity means a person who acquires, or proposes to acquire, electricity for consumption purposes.
forecast peak demand for a compliance period is the forecast maximum demand for megawatts of electricity used by NSW electricity customers during the compliance period, as determined by the Scheme Regulator under clause 86.
green hydrogen means hydrogen produced using renewable energy.
individual certificate target—see clause 92(1).
individual liable demand—see clause 89(1).
peak demand reduction capacity means the capacity to reduce demand for electricity during the peak demand reduction period.
peak demand reduction period—see clause 85(1).
peak demand reduction scheme means the peak demand reduction scheme established by this Part.
peak demand reduction target for a compliance period means the target prescribed by the regulations for the period under clause 84.
register means the register of accredited certificate providers or the register of certificates kept by the Scheme Administrator under Division 11.
related body corporate of a person has the same meaning as in the Corporations Act 2001 of the Commonwealth.
Scheme Administrator means the person or body required to exercise the functions of Scheme Administrator under this Part.
scheme certificate target—see clause 87(1).
scheme liable demand—see clause 91(1).
scheme participant means a person who is required to participate in the peak demand reduction scheme under clause 83(3).
scheme penalty rate—see clause 99(1).
Scheme Regulator means the person or body required to exercise the functions of Scheme Regulator under this Part.
scheme rule means a rule approved by the Minister under clause 137.
shortfall—see clause 97(4).
shortfall penalty—see clause 98(1).
82   Regulations
(1)  A reference in this Part to regulations is a reference to regulations made under section 98EA.
Note—
Section 98EA provides that regulations may be made in relation to the peak demand reduction scheme for matters for which regulations may be made under Schedule 4A, Part 1 for the energy savings scheme. Necessary modifications for the peak demand reduction scheme may also be made.
(2)  This Part does not limit the operation of section 98EA.
83   Establishment of peak demand reduction scheme
(1)  The principal object of this Part is to create a financial incentive to reduce peak demand for electricity by encouraging activities that create peak demand reduction capacity.
(2)  The other objects of this Part are as follows—
(a)  to improve the reliability of electricity supply,
(b)  to reduce the cost of electricity for customers,
(c)  to improve the sustainability of electricity generation.
(3)  The following persons are required to participate in the peak demand reduction scheme—
(a)  a retailer,
(b)  a direct supplier of electricity,
(c)  a market customer within the meaning of the National Electricity Rules.
(4)  A scheme participant is required to surrender certificates in relation to each compliance period in accordance with this Part.
84   Peak demand reduction targets
(1)  The peak demand reduction targetfor a compliance period is the target prescribed by the regulations—
(a)  on the commencement of this clause, or
(b)  as amended in accordance with this clause.
Example—
A peak demand reduction target of 1% for the 2023–2024 compliance period means a target of creating the capacity to reduce demand for electricity during the peak demand reduction period in the 2023–2024 compliance period by 1%.
(2)  The peak demand reduction target for a compliance period is to be used as the basis for the calculation of the scheme certificate target for the compliance period.
(3)  A regulation to amend a prescribed peak demand reduction target for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example—
An amendment to the peak demand reduction target for the 2023–2024 compliance period must be made on or before 31 October 2022.
(4)  A regulation to amend a prescribed peak demand reduction target for a compliance period may be made only if the Minister is satisfied that the change to the peak demand reduction target is appropriate—
(a)  for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b)  for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c)  because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d)  because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020, or
(e)  because of significant changes to the scheme rules relating to the creation of certificates, or
(f)  because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.
85   Peak demand reduction period
(1)  The peak demand reduction period for a compliance period is the period prescribed by the regulations—
(a)  on the commencement of this clause, or
(b)  as amended in accordance with this clause.
(2)  A regulation to amend a prescribed peak demand reduction period for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example—
An amendment to the peak demand reduction period for the 2023–2024 compliance period must be made on or before 31 October 2022.
(3)  A regulation to amend a prescribed peak demand reduction period for a compliance period may be made only if the Minister is satisfied that the change to the peak demand reduction period is appropriate—
(a)  for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b)  for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c)  because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d)  because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020, or
(e)  because of significant changes to the scheme rules relating to the creation of certificates, or
(f)  because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.
Division 2 Determination of scheme certificate targets and individual certificate targets
86   Scheme Regulator to determine forecast peak demand
The Scheme Regulator must, before the beginning of each compliance period, determine the forecast peak demand for the compliance period—
(a)  based on a 10% probability of exceedance (POE) forecast specified in a statement of opportunities published by AEMO under the National Electricity Rules, and
(b)  in accordance with the scheme rules.
87   Scheme Regulator to determine scheme certificate target
(1)  The Scheme Regulator must, before the beginning of each compliance period, calculate the total number of certificates required to be surrendered for the compliance period by all scheme participants (the scheme certificate target) using the following formula—
 
where—
n is the number of hours within the peak demand reduction period in one day.
Example—
Assuming the following apply for the 2024–2025 compliance period—
(a)   the forecast peak demand is 14,000 megawatts,
(b)   the regulations prescribe 0.03 as the peak demand reduction target,
(c)   the regulations prescribe 6 hours as the peak demand reduction period.
The scheme certificate target is calculated by multiplying 14,000 by 0.03 by 10,000 by 6 to give the result of 25.2 million certificates.
(2)  The number of certificates must be rounded up or down to the nearest whole number and an amount of 0.5 must be rounded up.
(3)  The Scheme Regulator must, before the beginning of each compliance period, publish on its website the scheme certificate target for the compliance period.
88   Information about exemptions and liable acquisitions
(1)  A scheme participant must, in the form approved by the Scheme Regulator, notify the Scheme Regulator of the following in relation to the previous compliance period—
(a)  whether the scheme participant intends to rely on an exemption granted in relation to fully or partially exempt electricity load that applies to the scheme participant,
(b)  whether the scheme participant has made a liable acquisition that is a purchase of electricity from a person other than AEMO.
(2)  The scheme participant must give the notice to the Scheme Regulator by—
(a)  31 May, or
(b)  a later day specified by the Scheme Regulator for the scheme participant.
Maximum penalty (subclauses (1) and (2))—250 penalty units for a corporation or 100 penalty units for an individual.
89   Scheme participant to determine individual liable demand
(1)  A scheme participant must, after the end of a compliance period, calculate the scheme participant’s individual liable demand for the compliance period using the following formula—
 
where—
LA means the total of the scheme participant’s liable acquisitions, in megawatt hours, for the hours occurring in the peak demand reduction period on each of the 4 days nominated by the Scheme Regulator under subclause (2) for the compliance period.
n is the number of hours in the peak demand reduction period in one day.
(2)  The Scheme Regulator must, by 30 April each year, nominate and publish on its website the 4 days that had the highest maximum demand for megawatts of electricity during the compliance period.
(3)  The Scheme Regulator must nominate the 4 days by—
(a)  considering the demand for electricity over the whole of each day during the compliance period, not only during the peak demand reduction period, and
(b)  using information published by AEMO.
(4)  A scheme participant must, in the form approved by the Scheme Regulator, notify the Scheme Regulator of the scheme participant’s individual liable demand for the previous compliance period by—
(a)  30 September, or
(b)  a later day specified by the Scheme Regulator for the scheme participant.
Maximum penalty (subclause (4))—250 penalty units for a corporation or 100 penalty units for an individual.
(5)  If the scheme participant fails to notify the Scheme Regulator of the scheme participant’s individual liable demand in accordance with subclause (4), the Scheme Regulator must calculate the scheme participant’s individual liable demand for the compliance period in accordance with the regulations.
(6)  The Scheme Regulator’s calculation is taken to be the scheme participant’s individual liable demand.
90   Meaning of “liable acquisitions”
(1)  In this Part, a liable acquisition for a scheme participant is a purchase of electricity by the scheme participant, from AEMO or another person whether or not a registered participant under the National Electricity (NSW) Law, where the electricity is purchased for—
(a)  consumption by or onsale to end users in this State, or
(b)  use in this State.
(2)  A supply of electricity generated by a scheme participant is also to be treated as a liable acquisition if—
(a)  the scheme participant is a retailer and the electricity is supplied by the retailer for—
(i)  consumption by or onsale to end users in this State, or
(ii)  use in this State, or
(b)  the scheme participant is a direct supplier of electricity and the supply is of a kind specified by the regulations to be a liable acquisition.
(3)  However, if a scheme participant purchases electricity from another scheme participant, the purchase is not a liable acquisition if the purchase of the electricity is, or the supply of the electricity is to be treated as, a liable acquisition for the other scheme participant or for a scheme participant who is further up the chain of supply of the electricity.
(4)  For the purposes of this Part—
(a)  a liable acquisition is made by a scheme participant on the date the electricity is purchased by the scheme participant or, in the case of a supply of electricity treated as a liable acquisition, supplied by the scheme participant, and
(b)  the value of a purchase or supply of electricity is the amount of electricity purchased or supplied, expressed in megawatt hours.
(5)  Electricity is taken to be purchased by a scheme participant on the date the electricity is physically delivered to the scheme participant, regardless of when the contract or other arrangement for purchase of the electricity was entered into or made.
(6)  The scheme rules may make further provision in relation to determining when a scheme participant is taken to have purchased electricity, for the purposes of determining which liable acquisitions are to be used under clause 89 to calculate the scheme participant’s individual liable demand.
(7)  This clause is subject to Division 3.
91   Scheme Regulator to determine scheme liable demand
(1)  The Scheme Regulator must, after 30 September each year, determine the scheme liable demand for the previous compliance period by adding together each scheme participant’s individual liable demand for the previous compliance period.
(2)  The Scheme Regulator must publish on its website the scheme liable demand for the previous compliance period by—
(a)  15 November, or
(b)  a later day notified by the Scheme Regulator on its website before 15 November.
(3)  The Scheme Regulator may not amend the scheme liable demand for the previous compliance period after it has been published under subclause (2).
92   Scheme participant to determine individual certificate target
(1)  A scheme participant must, after 15 November in each year, calculate the number of certificates the scheme participant is required to surrender in relation to the previous compliance period (the individual certificate target) using the following formula—
 
where—
ILD is the individual liable demand for the compliance period.
SLD is the scheme liable demand for the compliance period.
SCT is the scheme certificate target for the compliance period.
(2)  The number of certificates must be rounded up or down to the nearest whole number, and an amount of 0.5 must be rounded up.
Division 3 Exemptions
93   Exemptions
(1)  The Minister may, by order published in the Gazette, grant an exemption from the peak demand reduction scheme in relation to electricity load—
(a)  used by a specified person, or class of persons, or
(b)  used in connection with a specified activity or class of activities.
(2)  An order granting an exemption may also specify the scheme participant, or class of scheme participants, in relation to whom the exemption applies.
(3)  The Minister may grant an exemption under this clause only if satisfied that the electricity is used—
(a)  in connection with an industry or activity that is both emissions intensive and trade exposed, or
(b)  to produce green hydrogen.
(4)  The Minister may grant an exemption under this clause only if satisfied that the exemption is otherwise generally consistent with the objects of this Part.
(5)  An exemption must specify whether it is a full or partial exemption.
(6)  If the exemption is a full exemption, the electricity load to which the exemption applies is, for the purposes of this Part, fully exempt electricity load.
(7)  If the exemption is a partial exemption, the electricity load to which the exemption applies is, for the purposes of this Part, partially exempt electricity load.
(8)  If an exemption is a partial exemption, the order granting the exemption must specify the proportion of electricity load used by the person, or class of persons, or in connection with a specified activity or class of activities, that is exempt from the peak demand reduction scheme (referred to in clause 94 as the exempt proportion).
94   Effect of exemption
(1)  A scheme participant is entitled to deduct from the total value of its liable acquisitions the value of each purchase of electricity that—
(a)  is to be used by a person or in connection with an activity, and
(b)  when so used, is fully exempt electricity load.
(2)  A scheme participant is entitled to deduct from the total value of its liable acquisitions a proportion of the value of each purchase of electricity that—
(a)  is to be used by a person or in connection with an activity, and
(b)  when so used, is partially exempt electricity load.
(3)  The proportion that may be deducted under subclause (2) is the exempt proportion.
(4)  An order granting an exemption may specify the allowances that may be made by scheme participants, in applying the exemption, for electricity losses occurring between the purchase of the electricity by the scheme participant and its use by an end user.
(5)  Electricity the subject of an allowance may also be deducted from the total value of liable acquisitions made by a scheme participant, in accordance with the exemption.
(6)  An order granting an exemption may authorise the Scheme Regulator to make rules relating to the exemption, including rules relating to assessment of deductions under this Division.
(7)  A scheme participant must make a deduction under this Division in accordance with the provisions of the relevant exemption and rules made under subclause (6).
(8)  In proceedings under this Act involving a scheme participant, the burden of establishing that the scheme participant was entitled to deduct the exempt liable demand lies on the scheme participant.
(9)  In this clause, a reference to a purchase of electricity includes a reference to a supply of electricity that is treated as a liable acquisition under this Part.
95   Grounds on which electricity load may be exempt
(1)  The regulations may make further provision with respect to the determination of whether—
(a)  an industry or activity is emissions intensive or trade exposed, and
(b)  electricity is taken to be used to produce green hydrogen.
(2)  Subject to the regulations, the Minister may determine the basis on which—
(a)  an industry or activity is considered to be emissions intensive or trade exposed, and
(b)  electricity is taken to be used to produce green hydrogen.
96   General provisions about exemptions
(1)  An exemption takes effect on—
(a)  the day on which the order granting the exemption is published in the Gazette, or
(b)  a later day specified in the order.
(2)  An exemption may be revoked by order of the Minister published in the Gazette.
(3)  If an exemption is revoked, the revocation takes effect on—
(a)  the day on which the order revoking the exemption is published in the Gazette, or
(b)  a later day specified in the order.
(4)  The Minister must provide a copy of an order made under this Division to the Scheme Regulator.
(5)  The Scheme Regulator must publish the following on its website—
(a)  particulars of an exemption under this Division, and
(b)  rules made under clause 94(6) about an exemption.
Division 4 Compliance of scheme participants
97   Surrender of certificates
(1)  A scheme participant is required to surrender the number of certificates calculated as the scheme participant’s individual certificate target for a compliance period.
(2)  An election by a scheme participant to surrender a certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, or to carry forward a shortfall, must be made to the Scheme Regulator in accordance with this Part.
(3)  An election has no effect unless it is accepted by the Scheme Regulator.
(4)  If a scheme participant surrenders less than the number of certificates in its individual certificate target for a compliance period, the scheme participant has a shortfall for the compliance period, consisting of the number of certificates the scheme participant failed to surrender.
98   Penalties for shortfalls
(1)  A scheme participant who has a shortfall for a compliance period must pay a penalty for the compliance period (a shortfall penalty).
(2)  The amount of the shortfall penalty is the amount, in dollars, calculated by multiplying the shortfall by the scheme penalty rate.
(3)  The amount must be rounded down to the nearest whole number of dollars.
(4)  Regulations may be made in relation to the assessment of the amount of a shortfall penalty payable by a scheme participant, including self-assessment or assessment by the Scheme Regulator.
99   Penalty rates
(1)  The scheme penalty rate for a compliance period is the rate prescribed by the regulations—
(a)  on the commencement of this clause, or
(b)  as amended in accordance with this clause.
(2)  A regulation to amend a prescribed scheme penalty rate for a compliance period must be made at least 12 months before the commencement of the compliance period.
Example—
An amendment to the scheme penalty rate for the 2023–2024 compliance period must be made on or before 31 October 2022.
(3)  A regulation to amend a prescribed scheme penalty rate for a compliance period may be made only if the Minister is satisfied that the change to the prescribed scheme penalty rate is appropriate—
(a)  for the purposes of achieving greater uniformity or harmonisation with a scheme in another jurisdiction with similar objectives to the peak demand reduction scheme, or
(b)  for the purposes of implementing a national scheme with similar objectives to the peak demand reduction scheme, or
(c)  because of an under supply or over supply of certificates that may be surrendered, as evidenced in the way set out in the regulations, or
(d)  because of a target breach identified in an energy security target monitor report under the Electricity Infrastructure Investment Act 2020, or
(e)  because of significant changes to the scheme rules relating to the creation of certificates, or
(f)  because of significant changes to the policy or regulatory framework, or the market conditions, in which the peak demand reduction scheme operates.
(4)  Subclauses (2) and (3) do not apply to a regulation that provides for the adjustment of scheme penalty rates for movements in the consumer price index.
100   Payment of shortfall penalties
(1)  A shortfall penalty payable by a scheme participant is, for a compliance period, payable—
(a)  within 12 months of the end of the compliance period, or
(b)  on a later day determined by the Scheme Regulator for the scheme participant.
(2)  A shortfall penalty is payable to the Scheme Regulator, for payment into the Consolidated Fund as public money.
(3)  A shortfall penalty payable by a scheme participant may be recovered in a court of competent jurisdiction as a debt due to the Crown.
101   Shortfalls may be carried forward
(1)  A scheme participant may elect to carry forward a shortfall, or part of a shortfall, for a compliance period to the next compliance period in accordance with this clause.
(2)  If a scheme participant elects to carry forward a shortfall, or part of a shortfall, the amount carried forward is not subject to a shortfall penalty for the compliance period to which the shortfall relates.
(3)  The maximum amount of a shortfall that may be carried forward to the 2023–2024 compliance period by a scheme participant is—
(a)  20% of the scheme participant’s individual certificate target for the 2022–2023 compliance period, or
(b)  another amount prescribed by the regulations.
(4)  The maximum amount of a shortfall that may be carried forward to another compliance period by a scheme participant is—
(a)  10% of the scheme participant’s individual certificate target in the previous period, or
(b)  another amount prescribed by the regulations.
(5)  A shortfall, or part of a shortfall, may be carried forward to the next compliance period only.
(6)  A shortfall, or part of a shortfall, for the 2049–2050 compliance period cannot be carried forward.
(7)  A scheme participant who elects to carry forward a shortfall, or part of a shortfall, to the next compliance period is not prevented from electing to carry forward a shortfall, or part of a shortfall, for that next compliance period to the following compliance period.
(8)  For the purposes of this Part, a shortfall, or part of a shortfall, for a compliance period that is carried forward to the next period is a carried forward shortfall.
102   Carried forward shortfalls must be remedied
(1)  A scheme participant who has a carried forward shortfall in a compliance period must remedy the carried forward shortfall in the compliance period to which the shortfall is carried forward.
(2)  A scheme participant remedies a carried forward shortfall if the participant surrenders the number of certificates required for the carried forward shortfall.
(3)  A scheme participant fails to remedy a carried forward shortfall if the participant does not surrender the number of certificates required for the carried forward shortfall.
(4)  If a scheme participant fails to remedy a carried forward shortfall, the scheme participant must pay a penalty for the amount by which the carried forward shortfall exceeds the certificates surrendered by the scheme participant for the compliance period (the non-remedied amount).
(5)  The penalty must be calculated as if the non-remedied amount were a shortfall for the compliance period to which the shortfall is carried forward.
(6)  The penalty is payable in the same way as, and is taken to be, a shortfall penalty.
(7)  To avoid doubt, a penalty payable by a scheme participant for a failure to remedy a carried forward shortfall in a compliance period is additional to a penalty payable by the scheme participant for a shortfall in the compliance period.
Division 5 Assessment of compliance of scheme participants
103   Annual statements
(1)  A scheme participant must lodge with the Scheme Regulator a statement (an annual statement) each year on or before—
(a)  15 December, or
(b)  a later day specified by the Scheme Regulator for the scheme participant.
(2)  An annual statement must contain the following—
(a)  an assessment of the scheme participant’s individual certificate target for the previous compliance period,
(b)  an assessment of the amount of any shortfall penalty payable by the scheme participant for the previous compliance period, including any shortfall penalty for a carried forward shortfall,
(c)  other matters required by the Scheme Regulator.
(3)  If the scheme participant seeks to elect to surrender one or more certificates for the purposes of meeting its individual certificate target for the compliance period to which the annual statement relates, the election must—
(a)  accompany the annual statement, and
(b)  contain details of the certificates proposed to be surrendered.
(4)  If a scheme participant seeks to elect to carry forward a shortfall, or part of a shortfall, for the compliance period to which the annual statement relates, the election must accompany the annual statement.
(5)  An annual statement, and any election that accompanies the statement, must be in a form approved by the Scheme Regulator.
(6)  A scheme participant who fails to lodge an annual statement in accordance with this clause is guilty of an offence.
Maximum penalty (subclause (6))—250 penalty units for a corporation or 100 penalty units for an individual.
(7)  Regulations may be made in relation to the following—
(a)  assessments by the Scheme Regulator of the matters referred to in subclause (2)(a) and (b), if a scheme participant does not lodge an annual statement as required under this clause,
(b)  the amendment of assessments of the matters referred to in subclause (2)(a) and (b), at the request of a scheme participant or on the Scheme Regulator’s own motion.
104   Restrictions on surrender of certificates
(1)  A certificate cannot be surrendered by a scheme participant for the purposes of meeting its individual certificate target or remedying a carried forward shortfall unless—
(a)  the certificate is registered as active in the register of certificates, and
(b)  the participant is recorded in the register of certificates as the owner of the certificate, and
(c)  for a certificate that relates to an activity that occurred in a jurisdiction for which there is an approved corresponding scheme—the Minister has, by the order approving the corresponding scheme or a subsequent order published in the Gazette, approved the surrender of certificates of that kind by a scheme participant for those purposes.
(2)  The Scheme Regulator may, by written notice to a scheme participant, refuse to accept an election to surrender a certificate if, in the opinion of the Scheme Regulator—
(a)  the certificate cannot be surrendered under this clause, or
(b)  the certificate is surplus to the number required to be surrendered for the purposes of meeting the scheme participant’s individual certificate target or remedying a carried forward shortfall.
(3)  If the Scheme Regulator accepts the surrender of a certificate, and the Scheme Regulator is not the Scheme Administrator, the Scheme Regulator must give the Scheme Administrator written notice of the decision, including details of the certificate surrendered.
105   Validity of assessment
The validity of an assessment of the amount of a shortfall penalty payable by a scheme participant is not affected by a failure to comply with a provision of this Act, the regulations or the scheme rules.
Division 6 Certificates
106   Creation of certificates
(1)  The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that creates peak demand reduction capacity.
(2)  A certificate may be created by an accredited certificate provider, in accordance with the scheme rules, in relation to an activity that creates peak demand reduction capacity.
(3)  Subject to the scheme rules, one certificate may be created for an activity that creates peak demand reduction capacity of 0.1 kilowatt averaged over 1 hour.
(4)  One certificate may be created for each 0.1 kilowatt averaged over 1 hour on 1 day only within the compliance period.
Example—
An air conditioner is installed that creates the capacity to reduce demand for electricity by an average of 0.2 kilowatt for each of the 6 hours of the peak demand reduction period between 2:30pm and 8:30pm. The installation of the air conditioner will create 12 certificates for the whole compliance period.
(5)  A certificate may be created in relation to an activity no later than 6 months after the end of the compliance period in which the peak demand reduction capacity is made available.
(6)  The scheme rules may specify—
(a)  the date after which an activity must have occurred for a certificate to be created in relation to the activity, and
(b)  when peak demand reduction capacity is taken to have been created or made available.
(7)  The number of certificates arising from an activity must be calculated in accordance with the scheme rules.
(8)  To avoid doubt, an activity may create peak demand reduction capacity in one or more compliance periods.
(9)  Regulations may be made in relation to—
(a)  the revocation of the cancellation of certificates in connection with an amendment to a scheme participant’s individual liable demand or annual statement, and
(b)  the revival of certificates.
107   Creation of certificates for activities outside NSW
(1)  The scheme rules may make provision about the creation of certificates in relation to an activity, or class of activity, that creates peak demand reduction capacity in another jurisdiction, if an approved corresponding scheme is in operation in the jurisdiction.
(2)  The Minister may approve a corresponding scheme for the purposes of this clause only if the Minister is satisfied that—
(a)  the corresponding scheme is intended to promote activities that create peak demand reduction capacity, and
(b)  the objectives of the corresponding scheme are consistent with the objectives of the peak demand reduction scheme established by this Part, and
(c)  the monitoring and enforcement of compliance with the corresponding scheme to be approved is no less stringent than the monitoring and enforcement of compliance with the peak demand reduction scheme established by this Part.
108   Improper creation of certificates
(1)  A person must not create or purport to create a certificate in contravention of—
(a)  this Part or the regulations, or
(b)  the scheme rules, or
(c)  a condition of accreditation imposed by or under this Act.
Maximum penalty (subclause (1))—2,000 penalty units.
(2)  To avoid doubt, a person may be found guilty of an offence against this clause whether or not the certificate is registered in the register of certificates.
Division 7 Accreditation of certificate providers
109   Certificates may be created by accredited certificate providers only
(1)  A certificate may be created by an accredited certificate provider only.
(2)  A person who is an accredited certificate provider may create a certificate in accordance with this Part, the regulations, the scheme rules and the conditions, if any, of the person’s accreditation as a certificate provider.
(3)  A person who is an accredited certificate provider may create a certificate only in relation to the activities in relation to which the person has been accredited as a certificate provider.
(4)  Regulations may be made in relation to—
(a)  the records that must be kept by accredited certificate providers, and
(b)  the information required to be provided to the Scheme Administrator in connection with the creation of certificates.
110   Eligibility for accreditation
(1)  The regulations and scheme rules may make provision about the eligibility of a person for accreditation as a certificate provider.
(2)  Without limiting subclause (1), the following persons are not eligible for accreditation as a certificate provider—
(a)  a person who is engaged in an industry, or carries out an activity, that benefits from a full exemption from the peak demand reduction scheme,
(b)  a related body corporate of a person specified in paragraph (a).
111   Application for accreditation
(1)  A person who is eligible for accreditation as a certificate provider in relation to an activity may apply to the Scheme Administrator for accreditation.
(2)  The Scheme Administrator must determine an application for accreditation as a certificate provider by—
(a)  accrediting the applicant as a certificate provider in relation to specified activities, or
(b)  refusing the application.
(3)  The Scheme Administrator may refuse an application for accreditation as a certificate provider on any grounds specified in the regulations.
(4)  The Scheme Administrator may charge a fee for the investigation and determination of an application, in addition to an application fee required to be paid under the regulations.
(5)  The fee for the investigation and determination of an application must be determined by the Scheme Administrator on a cost recovery basis.
112   Accreditation of certificate providers under energy savings scheme
(1)  This clause applies to a person who—
(a)  is an accredited certificate provider for the energy savings scheme under Schedule 4A, Part 1 in relation to a specified activity, or
(b)  has applied for accreditation as a certificate provider for the energy savings scheme under Schedule 4A, Part 1 in relation to a specified activity and the Scheme Administrator under that scheme has not yet determined the application.
(2)  A person to whom this clause applies is eligible for accreditation as a certificate provider under the peak demand reduction scheme in relation to the specified activity if—
(a)  the specified activity is an activity in relation to which a certificate may be created under the peak demand reduction scheme, and
(b)  the Scheme Administrator is satisfied that the person is otherwise eligible for accreditation as a certificate provider under the peak demand reduction scheme.
(3)  The Scheme Administrator may accredit a person who is eligible under this clause without requiring the person to apply for accreditation under clause 111.
113   Duration of accreditation
(1)  Accreditation of a person as a certificate provider in relation to an activity remains in force until suspended or cancelled by the Scheme Administrator.
(2)  The Scheme Administrator may suspend or cancel the accreditation of a person on any grounds specified in the regulations.
(3)  The suspension or cancellation of the accreditation of a person is subject to any conditions imposed by the Scheme Administrator.
(4)  The conditions may include, but are not limited to, a condition to which the accreditation was subject immediately before it was suspended or cancelled.
(5)  The regulations may provide for the variation or revocation of a condition imposed by the Scheme Administrator on the suspension or cancellation of accreditation as a certificate provider.
114   Conditions of accreditation
(1)  Accreditation as a certificate provider is subject to the following conditions—
(a)  a condition imposed from time to time by the regulations,
(b)  a condition imposed by the Scheme Administrator at the time of accreditation, or during the period in which the accreditation remains in force, in accordance with the regulations.
(2)  A person must not contravene a condition of the person’s accreditation as a certificate provider.
Maximum penalty (subclause (2))—2,000 penalty units.
(3)  Subclause (2) extends to a condition to which the suspension or cancellation of the accreditation of a person is subject under this Part.
115   Amendment of accreditation
(1)  An accredited certificate provider may apply to the Scheme Administrator to amend the provider’s accreditation by—
(a)  varying the activities for which the provider is accredited, or
(b)  varying or revoking a condition of the accreditation imposed by the Scheme Administrator.
(2)  Subclause (1)(b) does not apply to a condition imposed by this Act or the regulations.
(3)  The Scheme Administrator must determine an application to amend a provider’s accreditation by—
(a)  granting the application, or
(b)  refusing the application.
(4)  The regulations may make provision for the amendment of a provider’s accreditation, including by requiring an application fee to be paid to the Scheme Administrator for an application to amend an accreditation.
(5)  The Scheme Administrator may refuse an application to amend a provider’s accreditation on grounds specified in the regulations.
(6)  In addition to an application fee referred to in subclause (4), the Scheme Administrator may recover from an accredited provider the costs reasonably incurred by the Administrator in investigating and determining an application to amend the provider’s accreditation.
116   Transfer of accreditation
(1)  Accreditation as a certificate provider is not transferable, except as otherwise provided by this clause.
(2)  A person who is accredited as a certificate provider may, with the approval of the Scheme Administrator, transfer the accreditation to a related body corporate of the person.
(3)  The Scheme Administrator may approve the transfer of accreditation only if satisfied that the person to whom the accreditation is proposed to be transferred—
(a)  is or will be eligible for accreditation, and
(b)  will fulfil the obligations that the accredited certificate provider is required to fulfil in relation to the activity.
(4)  Regulations may be made in relation to the transfer of accreditation, including to require a fee to be paid to the Scheme Administrator for an application for approval of a transfer of accreditation.
117   Scheme Administrator may require surrender of certificates
(1)  The Scheme Administrator may, by written order to a person, require the person to surrender to the Scheme Administrator, within a period specified in the order, the number of certificates specified in the order.
(2)  An order may be made against a person only if the Scheme Administrator is satisfied, on the balance of probabilities, that the person is guilty of—
(a)  an offence under clause 108 involving the improper creation of certificates, or
(b)  an offence under clause 114(2) of contravening a condition of the person’s accreditation as a certificate provider.
(3)  The number of certificates required to be surrendered by an order is—
(a)  for an order made under subclause (2)(a)—the number of certificates that is no more than the number of certificates that, in the opinion of the Scheme Administrator, were improperly created, and
(b)  for an order made under subclause (2)(b)—the number determined by the Scheme Administrator in accordance with the regulations.
(4)  A person must not fail to comply with an order.
Maximum penalty (subclause (4))—1,000 penalty units, and an additional 1 penalty unit for each certificate the person fails to surrender in accordance with the order.
(5)  The value of a certificate surrendered for the purposes of compliance with an order cannot be counted towards meeting a scheme participant’s individual certificate target or remedying a carried forward shortfall.
(6)  If a person fails to comply with an order, the Scheme Administrator may cancel a certificate in relation to which the person is registered as the owner.
(7)  To avoid doubt, it is not an excuse for a failure to comply with an order that the person who is the subject of the order does not, at the time the order is made, hold a sufficient number of certificates to comply with the order.
(8)  Regulations may be made in relation to the orders made by the Scheme Administrator under this clause.
Division 8 Registration and duration of certificates
118   Creation of certificate must be registered
(1)  A certificate has no effect until the creation of the certificate is registered by the Scheme Administrator in the register of certificates.
(2)  An application for registration of the creation of a certificate may be made to the Scheme Administrator by an accredited certificate provider.
(3)  The Scheme Administrator must determine an application for registration of the creation of a certificate by—
(a)  granting the application and registering the creation of the certificate in the register of certificates, or
(b)  refusing the application.
(4)  The Scheme Administrator registers the creation of a certificate by—
(a)  creating an entry for the certificate in the register of certificates, and
(b)  recording the name of the person who created the certificate as the owner of the certificate.
(5)  The Scheme Administrator must, when registering the creation of a certificate, specify—
(a)  whether the certificate is active, and
(b)  if the certificate is not active—the date on which the certificate will be taken to be active, if known.
(6)  The Scheme Administrator may alter the entry for a certificate in the register of certificates at any time to show—
(a)  the certificate is active, or
(b)  the date on which the certificate will be taken to be active.
(7)  The scheme rules may make provision about the circumstances in which a certificate is or is not taken to be active.
(8)  A certificate may be registered as active before the beginning of the compliance period during which the peak demand reduction capacity is made available.
(9)  The Scheme Administrator may refuse an application for registration of the creation of a certificate on any grounds specified in the regulations.
(10)  Regulations may be made in relation to applications for registration of certificates, including—
(a)  to require an application fee to be paid to the Scheme Administrator, and
(b)  to adjust the amount of the fee for movements in the consumer price index.
(11)  The Scheme Administrator must publish the adjusted application fees on its website before the beginning of the compliance period to which the application fee applies.
119   Duration of certificate
(1)  A certificate remains in force from the date on which the certificate is active until the end of the period of 3 years from the beginning of the compliance period during which the peak demand reduction capacity is made available, unless sooner cancelled.
(2)  A certificate may be cancelled by the Scheme Administrator—
(a)  if the person registered as the owner of the certificate is a scheme participant who elects to surrender the certificate for the purposes of meeting its individual certificate target or remedying a carried forward shortfall, and the Scheme Regulator accepts the surrender of the certificate, or
(b)  if the person registered as the owner of the certificate, by written notice, surrenders the certificate to the Scheme Administrator, and the Scheme Administrator accepts the surrender of the certificate, or
(c)  in other circumstances authorised by this Part.
(3)  The Scheme Administrator must cancel a certificate that is surrendered by the owner of the certificate if the owner is surrendering the certificate for the purposes of compliance with an order made by the Scheme Administrator requiring the person to surrender a certificate.
(4)  The Scheme Administrator cancels a certificate by altering the entry relating to the certificate in the register of certificates to show that the certificate is cancelled.
Division 9 Transfers and other dealings in certificates
120   Transfer of certificates
(1)  A certificate is transferable in accordance with this Division.
(2)  A certificate is transferable only if—
(a)  the certificate is registered as active in the register of certificates, or
(b)  the date on which the certificate will be taken to be active is specified in the register of certificates.
(3)  The transfer of a certificate does not have effect until the transfer is registered by the Scheme Administrator.
(4)  An application for registration of a transfer of a certificate must be made to the Scheme Administrator by the parties to the transfer.
(5)  The Scheme Administrator must—
(a)  grant the application by registering the transfer of the certificate in the register of certificates, or
(b)  refuse the application.
(6)  The Scheme Administrator registers the transfer of a certificate by altering the entry relating to that certificate in the register of certificates to record the new owner of the certificate.
(7)  The Scheme Administrator may refuse an application for registration of a transfer of a certificate on any grounds specified in the regulations.
(8)  Regulations may be made in relation to applications for registration of a transfer, including to require an application fee to be paid to the Scheme Administrator.
121   Holder of certificate may deal with certificate
(1)  The person registered as the owner of a certificate may, subject to this Part, deal with the certificate as its absolute owner and give good discharges for a consideration for the dealing.
(2)  This clause is subject to any rights appearing in the register of certificates to belong to another person, being rights that are registered in accordance with the regulations.
(3)  This clause only protects a person who deals with the person registered as the owner of the certificate as a purchaser in good faith for value and without notice of any fraud on the part of the registered owner.
(4)  Despite subclause (3), a person who purchases a certificate in good faith for value does not lose the protection provided by this clause because the person has notice that a person has been found guilty of an offence against this Part in respect of the creation of a certificate.
122   Scheme Administrator not concerned as to legal effect of transaction
(1)  The Scheme Administrator is not concerned with the effect in law of a transaction registered under this Part or the regulations.
(2)  The registration of a transaction does not give to the transaction an effect that it would not have if this Part had not been enacted.
Division 10 Administration of peak demand reduction scheme
123   Scheme Regulator
(1)  The Minister may, by written order, appoint a person or body as the Scheme Regulator.
(2)  The functions of the Scheme Regulator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Regulator or, in the absence of an appointment, the Tribunal.
(3)  Regulations may be made in relation to the appointment of a Scheme Regulator by the Minister.
124   Functions of Scheme Regulator
(1)  The Scheme Regulator has the following functions—
(a)  to assess and determine, in accordance with this Part, the regulations and the scheme rules, whether scheme participants have complied with individual certificate targets,
(b)  if appropriate, to assess and determine, in accordance with this Part, the regulations and the scheme rules, any shortfall penalty payable by a scheme participant,
(c)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d)  to monitor, and report to the Minister on, the extent to which scheme participants comply, or fail to comply, with obligations imposed by or under this Part,
(e)  to provide advice to the Minister on request about the extent of an under supply or over supply of certificates that may be surrendered,
(f)  other functions conferred or imposed on it by or under this Act.
(2)  If the Scheme Regulator is appointed by the Minister, the Scheme Regulator also has any other functions conferred or imposed on it by the Minister under the terms of its appointment as Scheme Regulator.
(3)  For the purposes of enabling the Scheme Regulator to exercise its functions, the Minister must provide the Scheme Regulator with information in the Minister’s possession in relation to the compliance by scheme participants with this Part, if requested by the Scheme Regulator.
(4)  The Scheme Regulator may delegate the exercise of its functions under this Part, other than this power of delegation, to—
(a)  with the approval of the Minister—another person or body, and
(b)  a person who is a member of a class of persons approved by the Minister.
(5)  If the Tribunal is the Scheme Regulator, the Independent Pricing and Regulatory Tribunal Act 1992, section 10 does not apply to the Tribunal’s functions as Scheme Regulator.
125   Scheme Administrator
(1)  The Minister may, by written order, appoint a person or body as the Scheme Administrator.
(2)  The functions of the Scheme Administrator under this Part are to be exercised by the person or body appointed by the Minister as Scheme Administrator or, in the absence of an appointment, the Tribunal.
(3)  In determining whether to appoint a person or body as Scheme Administrator, the Minister must consider the following matters—
(a)  the costs of the appointment,
(b)  the efficiency of administrative arrangements relating to the peak demand reduction scheme,
(c)  ability to meet objectives of the peak demand reduction scheme,
(d)  proposed governance arrangements,
(e)  arrangements proposed to manage liabilities associated with carrying out the Scheme Administrator’s functions.
(4)  The Minister may limit the appointment of a person or body as Scheme Administrator to particular specified functions of the Scheme Administrator.
(5)  Regulations may be made in relation to the appointment of a Scheme Administrator by the Minister.
126   Functions of Scheme Administrator
(1)  The Scheme Administrator has the following functions—
(a)  the functions conferred by this Part relating to the peak demand reduction scheme,
(b)  to monitor, and to report to the Minister on, the extent to which accredited certificate providers comply with this Part, the regulations, the scheme rules and conditions of accreditation,
(c)  to conduct audits, or require the conduct of audits, for the purposes of this Part,
(d)  to provide advice to the Minister on request about the extent of an under supply or over supply of certificates that may be surrendered,
(e)  other functions conferred or imposed on it by or under this Act or another Act or law.
(2)  If the Scheme Administrator is appointed by the Minister, the Scheme Administrator also has the other functions conferred or imposed on it by the Minister under the terms of the appointment.
(3)  For the purposes of enabling the Scheme Administrator to exercise its functions, the Minister must provide the Scheme Administrator with information in the Minister’s possession that relates to compliance by accredited certificate providers with this Part, if requested by the Scheme Administrator.
(4)  The Scheme Administrator may delegate the exercise of its functions under this Part, other than this power of delegation, to—
(a)  with the approval of the Minister—another person or body, and
(b)  a person who is a member of a class of persons approved by the Minister.
(5)  If the Tribunal is the Scheme Administrator, the Independent Pricing and Regulatory Tribunal Act 1992, section 10 does not apply to its functions as Scheme Administrator.
127   Conduct of audits
(1)  Regulations may be made in relation to the conduct of audits by the Scheme Regulator, the Scheme Administrator or other persons.
(2)  Each scheme participant and accredited certificate provider is liable to pay to the Treasurer the reasonable costs, as certified by the Scheme Regulator or Scheme Administrator, involved in and in connection with carrying out the audit functions of the Scheme Regulator or Scheme Administrator in relation to the participant or provider.
(3)  An accreditation may include terms and conditions relating to the determination of the cost of carrying out audit functions under subclause (1).
128   Provision of information, documents and evidence
(1)  For the purposes of exercising its functions under this Part, the Scheme Regulator or Scheme Administrator may, by written notice served on a relevant person, require the person to do one or more of the following—
(a)  to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a statement setting out the information specified in the notice,
(b)  to send to the Scheme Regulator or Scheme Administrator, on or before a day specified in the notice, a document or type of document specified in the notice.
(2)  If the Tribunal is the Scheme Regulator or Scheme Administrator, the Tribunal may, in the notice, in addition to or instead of requiring a relevant person to do something specified in subclause (1), require the relevant person to attend a meeting of the Tribunal to give evidence.
(3)  A person must not, without reasonable excuse—
(a)  refuse or fail to comply with a notice served under this clause, or
(b)  refuse or fail to answer a question the person is required to answer at a meeting of the Tribunal the person is required to attend under this clause.
Maximum penalty (subclause (3))—250 penalty units for a corporation or 100 penalty units for an individual.
(4)  An individual has a reasonable excuse for the purposes of subclause (3) if complying with the notice or answering the question might tend to incriminate the individual or make the individual liable to any forfeiture or penalty.
(5)  If documents are given to the Scheme Regulator or Scheme Administrator under this clause, the Scheme Regulator or Scheme Administrator—
(a)  may take possession of, and make copies of or take extracts from, the documents, and
(b)  may keep possession of the documents for the period necessary for those purposes, and
(c)  during that period must permit the documents to be inspected at all reasonable times by persons who would be entitled to inspect them if the documents were not in the possession of the Scheme Regulator or Scheme Administrator.
(6)  This clause does not affect the law relating to client legal privilege or other legal professional privilege.
(7)  In this clause—
relevant person means—
(a)  an officer of a scheme participant or former scheme participant, or
(b)  an officer of an accredited certificate provider or former accredited certificate provider, or
(c)  another person whom the Scheme Regulator or Scheme Administrator, as the case requires, reasonably believes is able to provide information relevant to its functions as Scheme Regulator or Scheme Administrator.
129   Obstruction of Scheme Regulator or Scheme Administrator
A person must not hinder, obstruct or interfere with the following in the exercise of functions under this Part—
(a)  the Scheme Regulator,
(b)  the Scheme Administrator,
(c)  a member or officer of the Scheme Regulator or Scheme Administrator.
Maximum penalty—250 penalty units for a corporation or 100 penalty units for an individual.
130   False or misleading information
A person must not, for the purposes of this Part—
(a)  give to the Scheme Regulator or Scheme Administrator, whether orally or in writing, information or a document that the person knows to be false or misleading in a material particular, unless the person informs the Scheme Regulator or Scheme Administrator, or
(b)  at a meeting of the Tribunal acting as Scheme Regulator or Scheme Administrator, give evidence that the person knows to be false or misleading in a material particular.
Maximum penalty—100 penalty units.
131   Confidential information
(1)  If a person provides information to the Scheme Regulator or Scheme Administrator in connection with the functions of the Scheme Regulator or Scheme Administrator under this Part on the understanding that the information is confidential and will not be divulged, the Scheme Regulator or Scheme Administrator must ensure that the information is not divulged by the Scheme Regulator or the Scheme Administrator, as the case requires, to another person.
(2)  Despite subclause (1), the Scheme Regulator or the Scheme Administrator may divulge the information to another person—
(a)  with the consent of the person who provided the information, or
(b)  for information provided to the Tribunal while acting as Scheme Regulator or Scheme Administrator, to the extent that the Tribunal is satisfied that the information is not confidential in nature, or
(c)  to a member or officer of the Scheme Regulator or Scheme Administrator, as the case requires, or
(d)  as required by another law.
(3)  The Scheme Regulator or Scheme Administrator may give a direction prohibiting or restricting the divulging of information provided to the Scheme Regulator or Scheme Administrator under this Part if satisfied that the direction is desirable because of the confidential nature of the information.
(4)  A person must not contravene a direction given under subclause (3).
Maximum penalty (subclause (4))—100 penalty units.
(5)  A reference in this clause to information includes information—
(a)  given at a meeting of the Scheme Regulator or Scheme Administrator, and
(b)  contained in a document given to the Scheme Regulator or Scheme Administrator.
131A   Identity of person providing information to be confidential
(1)  This clause applies if a person (an information provider) provides information to the Scheme Regulator or Scheme Administrator about another person’s non-compliance with an obligation under this Part
(2)  The Scheme Regulator or Scheme Administrator must ensure that the identity of an information provider, and anything that may reasonably identify the information provider, is not disclosed to any person except—
(a)  with the consent of the information provider, or
(b)  if ordered by a court or tribunal, or
(c)  if required by another law.
(3)  If the identity of an information provider cannot be disclosed under subclause (2), the information provided by the information provider cannot be used as evidence in proceedings against another person for an offence under this Act.
(4)  Subclause (3) does not prevent the Scheme Regulator or Scheme Administrator using information, including in proceedings for an offence under this Act, obtained as a result of the information received from an information provider.
132   Cabinet documents and proceedings
(1)  This Part does not enable the Scheme Regulator or Scheme Administrator—
(a)  to require a person to give a statement of information or answer a question that relates to confidential proceedings of Cabinet, or
(b)  to require a person to produce Cabinet information, or
(c)  to inspect Cabinet information.
(2)  For the purposes of this clause, a certificate of the Secretary of the Department of Premier and Cabinet, or the General Counsel of the Department, that information or a question relates to confidential proceedings of Cabinet or that information is Cabinet information is conclusive of the matter certified.
(3)  In this clause—
Cabinet includes a committee of Cabinet or a subcommittee of a committee of Cabinet.
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
Division 10A Civil penalties
132A   Definitions
In this Division—
civil penalty order—see clause 132B.
civil penalty provision means a provision prescribed by the regulations as a civil penalty provision.
scheme entity means—
(a)  the Scheme Administrator, or
(b)  the Scheme Regulator.
132B   Monetary penalty
(1)  If a person has contravened a civil penalty provision, a scheme entity may by written order (a civil penalty order) require the provider to pay a monetary penalty of no more than the penalty notice amount for the provision.
(2)  If a corporation is liable to a monetary penalty under this clause, each of the following persons may be ordered to pay a monetary penalty if the person knowingly authorised or permitted the contravention—
(a)  a director of the corporation,
(b)  a person concerned in the management of the corporation.
132C   Process
(1)  A scheme entity may not issue a civil penalty order to a person unless—
(a)  the scheme entity has given the person notice of the proposed order and the reasons for it, and
(b)  the person has been given a reasonable opportunity to make a submission about the proposed order, and
(c)  the scheme entity has considered a submission made by the person, and
(d)  the scheme entity is satisfied on the balance of probabilities that the person—
(i)  contravened the relevant civil penalty provision, or
(ii)  knowingly authorised or permitted the contravention.
(2)  A scheme entity must provide written reasons for a decision to issue a civil penalty order to the person.
(3)  A civil penalty order must be issued within 3 years after the date on which evidence of the alleged offence first came to the attention of the scheme entity.
(4)  A civil penalty order must include the date, not less than 28 days after the date the order is issued, by which the monetary penalty imposed by the order must be paid.
132D   Double jeopardy
(1)  A scheme entity may not issue a civil penalty order to a person if—
(a)  another civil penalty order has been issued to a person for the contravention, or
(b)  the person has been found guilty, whether a conviction is recorded or not, of an offence under this Act or the regulations for the contravention.
(2)  If criminal proceedings are taken against a person for a contravention after the person pays the monetary penalty imposed by a civil penalty order, a court that finds the person guilty of an offence must discount any penalty imposed by the civil penalty amount paid by the person.
132E   Payment not an admission of guilt or liability
The payment of a monetary penalty under this Division cannot be taken to be an admission of—
(a)  a breach of a civil penalty provision, or
(b)  liability for civil or criminal proceedings arising from substantially the same conduct.
132F   Withdrawal of order
(1)  A scheme entity may withdraw a civil penalty order by written notice to the person the subject of the order.
(2)  A civil penalty order may be withdrawn under this clause at any time before it is complied with.
(3)  A civil penalty order issued to a person is automatically withdrawn on the commencement against the person of criminal proceedings for the contravention.
(4)  A civil penalty order withdrawn under this clause may, subject to clause 132D, be reissued.
132G   Internal review of order
(1)  A person who is the subject of a civil penalty order may apply to the scheme entity that issued the order for a review of—
(a)  the decision to issue the order, or
(b)  the monetary penalty imposed by the order.
(2)  An application must be made within 28 days of the issuing of the order.
(3)  A person issued a civil penalty order is not required to pay the monetary penalty imposed while an application is being considered.
(4)  The scheme entity’s decision on the application must be given to the applicant—
(a)  by written notice that includes the reasons for the decision, and
(b)  within 90 days of the making of the application.
(5)  If the written notice of the scheme entity’s decision is not given to the applicant within 90 days of the making of the application, the application is taken to have been refused.
(6)  If the scheme entity affirms the decision to issue the civil penalty order, including with a different monetary penalty, the written notice of the decision must include the date, not less than 28 days after the date of the notice, by which the monetary penalty must be paid.
132H   External review of order
(1)  A person who is not satisfied with the result of an internal review under clause 132G may make an application to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 for administrative review of the internal review decision.
(2)  The Administrative Decisions Review Act 1997, section 53 does not apply to a decision under clause 132G that may be reviewed by the Tribunal.
132I   Recovery of monetary penalty
The monetary penalty imposed by a civil penalty order may be recovered by a scheme entity in a court of competent jurisdiction as a debt owing to the Crown.
Division 11 Registers
133   Keeping of registers
(1)  The Scheme Administrator must establish and keep the following registers for the purposes of this Part—
(a)  a register of accredited certificate providers,
(b)  a register of certificates,
(c)  a register of persons who have applied for and been refused accreditation as accredited certificate providers.
(2)  A register must be kept in the form the Scheme Administrator considers appropriate.
(3)  A register may be kept wholly or partly by electronic means.
(4)  A register must be published on the Scheme Administrator’s website.
(5)  The Scheme Administrator may correct an error in, or omission from, a register.
134   Register of accredited certificate providers
The register of accredited certificate providers must contain—
(a)  the name of each accredited certificate provider, and
(b)  other information in relation to each accredited certificate provider required to be included in the register by this Part or the regulations.
134A   Register of persons refused accreditation as accredited certificate providers
The register of persons who have applied for and been refused accreditation as an accredited certificate provider must contain the following information about each person—
(a)  the name of the person and, if the person is a corporation, the corporation’s ACN,
(b)  the reasons the person’s application was refused,
(c)  other information required to be included in the register by this Part or the regulations.
135   Register of certificates
The register of certificates must contain the following information in relation to each certificate—
(a)  the name of the person who created the certificate,
(b)  the name of the current registered owner, and any previous registered owners, of the certificate,
(c)  if there is an approved corresponding scheme in another jurisdiction and the activity to which the certificate relates occurred in the other jurisdiction—the jurisdiction in which the activity occurred,
(d)  the date from which the certificate will be taken to be active, if known,
(e)  the period for which the certificate is in force,
(f)  the compliance period during which the peak demand reduction capacity is made available by the activity for which the certificate is created,
(g)  other information required to be included in the register by this Part or the regulations.
136   Evidentiary provisions
(1)  A register is evidence of the particulars registered in it.
(2)  If a register is wholly or partly kept by electronic means, a written document issued by the Scheme Administrator containing particulars included in the register, or the part of the register kept by electronic means, is admissible in legal proceedings as evidence of the particulars.
136A   Information sharing
(1)  The Scheme Administrator may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information about the following held by the Scheme Administrator or the agency—
(a)  offences and alleged offences under this Part, including investigations,
(b)  the administration of the peak demand reduction scheme,
(c)  other matters of a type prescribed by the regulations.
(2)  Under an information sharing arrangement, the Scheme Administrator and the relevant agency are, despite any other Act or law of the State, authorised—
(a)  to request and receive information held by the other party to the arrangement, and
(b)  to disclose information to the other party.
(3)  In this clause—
relevant agency means the following—
(a)  a government sector agency within the meaning of the Government Sector Employment Act 2013,
(b)  another person or body prescribed by the regulations.
Division 11A Compliance officers and penalty notices
136B   Appointment of compliance officers
(1)  The Scheme Administrator may, in accordance with any guidelines in force under this clause, appoint compliance officers for the purposes of this Part.
(2)  The Minister may, by written order, issue guidelines for the appointment of compliance officers.
(3)  An order must be published on the Scheme Administrator’s website and takes effect on—
(a)  the day on which it is published, or
(b)  a later day specified in the order.
136C   Powers of compliance officers
(1)  The powers of a compliance officer may be exercised for the purposes of investigating an accredited certificate provider’s compliance with the following—
(a)  this Part,
(b)  the regulations,
(c)  the scheme rules,
(d)  a condition of the provider’s accreditation.
(2)  A compliance officer may at a reasonable time enter—
(a)  premises that are used in connection with an energy savings activity for which a certificate has been created, and
(b)  the principal place of business of an accredited certificate provider.
(3)  A compliance officer may not enter a part of premises used only for residential purposes without the permission of the occupier of the premises.
(4)  A compliance officer may, at premises lawfully entered, do anything that, in the opinion of the authorised officer, is necessary to be done for the purposes of the investigation, including the following—
(a)  examine and test plant or equipment on the premises,
(b)  take photographs, films, audio, video and other recordings,
(c)  take copies of records or documents on the premises,
(d)  seize anything that the authorised officer believes on reasonable grounds is connected with an offence under this Part.
(5)  A person must not hinder or obstruct a compliance officer in the exercise of a power.
Maximum penalty—
(a)  in the case of a corporation—200 penalty units, or
(b)  for an individual—50 penalty units.
(6)  A person is not guilty of an offence under subclause (5) unless it is established that the authorised officer identified themselves as a compliance officer.
136D   Penalty notices
(1)  A compliance officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence in this Part, or a regulation under this Part, that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this clause.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this clause is the amount prescribed for the alleged offence by the regulations, which must not exceed the maximum amount of penalty that could be imposed for the offence by a court.
(5)  This clause does not limit the operation of another provision of, or made under, this or another Act relating to proceedings that may be taken for offences.
Division 12 Miscellaneous
137   Scheme rules
(1)  The Minister may approve rules that make provision about—
(a)  matters for which a scheme rule may be made under this Part, and
(b)  other matters prescribed by the regulations.
(2)  A rule may make provision for a matter by applying, adopting or incorporating the provisions of an Act or statutory rule or another publication as follows—
(a)  with or without modification,
(b)  as in force on a particular day or from time to time.
(3)  A rule may—
(a)  apply generally or be limited in its application by reference to specified exceptions or factors, or
(b)  apply differently according to different factors of a specified kind, or
(c)  authorise a matter or thing to be from time to time agreed, determined, applied or regulated by a specified person or body.
(4)  The Minister may from time to time approve a rule that amends a rule or revokes a rule.
(5)  Notice of a rule approved by the Minister must be published in the Gazette.
(6)  A rule takes effect on—
(a)  the day on which the written notice is published in the Gazette, or
(b)  the later day specified in the rule.
(7)  The Minister must make copies of each rule available to each scheme participant and the public.
(8)  A rule must be consistent with this Act and the regulations.
(9)  A person who is a scheme participant or an accredited certificate provider must not contravene a provision of a scheme rule.
Maximum penalty (subclause (9))—250 penalty units for a corporation or 100 penalty units for an individual.
138   Application of Part to persons who cease to be scheme participants
(1)  If a person ceases to be a scheme participant, this Part and the regulations continue to apply to the person in relation to the period during which the person was a scheme participant.
(2)  For that purpose, a reference to a scheme participant includes a reference to a former scheme participant.
(3)  A former scheme participant continues to be required to lodge an annual statement for the compliance period during which the person ceased to be a scheme participant.
(4)  The requirements of this Part in relation to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in relation to the person as if the person were a scheme participant.
(5)  The Minister may, by written notice to the former scheme participant, bring forward the date on which the person would otherwise have to—
(a)  lodge an annual statement with the Scheme Regulator for the compliance period during which the person ceased to be a scheme participant, and
(b)  pay a shortfall penalty for the compliance period during which the person ceased to be a scheme participant.
(6)  The notice may specify—
(a)  the date (the lodgment date) by which the former scheme participant must lodge the annual statement, and
(b)  the date by which the former scheme participant must pay the shortfall penalty.
(7)  The lodgment date must not be earlier than 28 days after the person ceased to be a scheme participant.
(8)  The provisions of this Part relating to the lodgment of an annual statement and the payment of a shortfall penalty apply as if a reference to 15 December were a reference to the lodgment date.
139   Administrative reviews by Civil and Administrative Tribunal
(1)  A scheme participant or former scheme participant who is aggrieved by the following decisions of the Scheme Regulator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a determination by the Scheme Regulator of whether a scheme participant has complied with the scheme participant’s individual certificate target,
(b)  a decision to refuse to accept the surrender of a certificate for the purposes of meeting the scheme participant’s or former scheme participant’s individual certificate target or remedying a carried forward shortfall,
(c)  an assessment of the amount of a shortfall penalty payable by the scheme participant or former scheme participant,
(d)  other decisions of the Scheme Regulator of a kind prescribed by the regulations.
(2)  A person who is or was accredited, or who has applied to be accredited, as a certificate provider and who is aggrieved by the following decisions of the Scheme Administrator may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision—
(a)  a decision to refuse accreditation of the person as a certificate provider,
(b)  a decision to cancel or suspend the accreditation of the person as a certificate provider,
(c)  a decision to refuse registration of the creation of a certificate,
(d)  other decisions of the Scheme Administrator of a kind prescribed by the regulations.
(3)  A person who has applied for the registration of a transfer of a certificate and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(4)  A person who is the subject of an order by the Scheme Administrator requiring the person to surrender a certificate to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(5)  A person who, under a scheme rule, is approved by the Scheme Administrator to undertake a function and who is aggrieved by a decision of the Scheme Administrator to revoke the person’s approval may apply to the Civil and Administrative Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997.
140   Certificate evidence
(1)  This clause applies to a certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate—
(a)  a person was or was not a scheme participant, or
(b)  the individual certificate target for a scheme participant was the amount specified in the certificate, or
(c)  the shortfall for a scheme participant for a compliance period, or the carried forward shortfall for a period, was the amount specified in the certificate, or
(d)  the shortfall penalty payable by a scheme participant was the amount specified in the certificate.
(2)  A certificate is admissible in evidence in proceedings before a court or tribunal and is prima facie evidence of the matters stated in the certificate.
140A   Ancillary offences
(1)  This clause applies to a person who, for an offence under this Part or the regulations under this Part—
(a)  causes or permits another person to commit the offence, or
(b)  aids, abets, counsels or procures another person to commit the offence, or
(c)  conspires