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Safe Climate (Energy Efficient Non-Residential Buildings Scheme) Bill 2009

Part 7 Monitoring compliance

Division 1 Authorised officers

43   Appointment of authorised officers

             (1)  The Greenhouse and Energy Data Officer may, in writing, appoint:

                     (a)  an APS employee; or

                     (b)  an employee of a State or a Territory or of an authority of a State or a Territory;

to be an authorised officer for the purposes of this Division.

             (2)  In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Greenhouse and Energy Data Officer.

Note:          Section 70 of the Crimes Act 1914 creates an offence where Commonwealth officers (including persons performing services for or on behalf of the Commonwealth) disclose information in breach of a duty of confidentiality.

44   Identity cards

             (1)  The Greenhouse and Energy Data Officer must issue an identity card to an authorised officer in the form specified by the regulations. The identity card must contain a recent photograph of the authorised officer.

             (2)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the Greenhouse and Energy Data Officer.

Penalty:  1 penalty unit.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.

Division 2 Powers of authorised officers

45   Entering premises to monitor compliance

             (1)  For the purposes of determining whether this Act has been complied with, an authorised officer may:

                     (a)  enter any premises:

                              (i)  during normal business hours; or

                             (ii)   if the entry is made under a warrant—at any time specified in the warrant; and

                     (b)  exercise the powers set out in section 46.

             (2)  An authorised officer is not authorised to enter premises under subsection (1) unless:

                     (a)  if the premises are business premises—the occupier of the premises has consented to the entry and the officer has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a warrant.

             (3)  If an authorised officer is on the premises with the consent of the occupier, the authorised officer must leave the premises if the occupier asks the authorised officer to do so.

46   Powers of authorised officers in monitoring compliance

             (1)  The following are the powers that an authorised officer may exercise in relation to premises under section 45:

                     (a)  the power to search the premises for any thing on the premises that may relate to compliance with this Act;

                     (b)  the power to examine any activity conducted on the premises that may relate to information provided for the purposes of this Act;

                     (c)  the power to examine any thing on the premises that may relate to information provided for the purposes of this Act;

                     (d)  the power to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

                     (e)  the power to inspect any document on the premises that may relate to information provided for the purposes of this Act;

                      (f)  the power to take extracts from, or make copies of, any such document;

                     (g)  the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;

                     (h)  the power to secure a thing that:

                              (i)  is found during the exercise of monitoring powers on the premises; and

                             (ii)  an authorised officer believes on reasonable grounds affords evidence of a contravention of this Act or of the commission of an offence against the Crimes Act 1914 ;

                            until a warrant is obtained to seize the thing;

                      (i)  the powers in subsections (2) and (3).

             (2)  The powers that an authorised officer may exercise in relation to premises under section 45 include the power to operate equipment at premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is at the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information that is relevant to assessing the correctness of information provided under this Act.

             (3)  The powers that an authorised officer may exercise in relation to premises under section 45 include the following powers in relation to information described in subsection (2) found in the exercise of the power under that subsection:

                     (a)  the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;

                     (b)  the power to operate facilities at the premises to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;

                     (c)  the power to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).

47   Authorised officer may request persons to answer questions

             (1)  If the authorised officer was only authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (2)  If the authorised officer was authorised to enter the premises by a warrant, the authorised officer has power to require the occupier (if the occupier is in or on the premises), or another person who apparently represents the occupier (if that person is in or on the premises), to:

                     (a)  answer any questions related to the operation of this Act that are put by the authorised officer; and

                     (b)  produce any document requested by the authorised officer that is so related.

             (3)  A person commits an offence if the person refuses or fails to comply with a requirement under subsection (2).

Penalty:  10 penalty units.

             (4)  An individual is excused from complying with a requirement of subsection (2) if the answer to the question or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code .

Division 3 Obligations and incidental powers of authorised officers

48   Authorised officer must produce identity card on request

                   An authorised officer is not entitled to exercise any powers under this Act in relation to premises if:

                     (a)  the occupier of the premises requires the authorised officer to produce his or her identity card for inspection by the occupier; and

                     (b)  the authorised officer fails to comply with the requirement.

49   Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 45(2)(a), the authorised officer must inform the person that he or she may refuse consent.

             (2)  An entry of an authorised officer because of the consent of a person is not lawful unless the person voluntarily consented to the entry.

50   Announcement before entry

                   An authorised officer executing a warrant must, before entering premises under the warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

51   Details of warrant to be given to occupier etc. before entry

             (1)  If a warrant is being executed and the occupier of the premises in respect of which it is being executed or another person who apparently represents the occupier is present at the premises, the authorised officer must make available to that person a copy of the warrant.

             (2)  The authorised officer must identify himself or herself to that person.

             (3)  The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

Note:          Monitoring warrants are issued under section 56.

52   Use of electronic equipment in exercising monitoring powers

             (1)  An authorised officer or a person assisting that officer may operate electronic equipment already at premises in order to exercise the powers set out in section 46 if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.

             (2)  If the authorised officer or a person assisting believes, on reasonable grounds, that:

                     (a)  there is on the premises material relating to information supplied under this Act that may be accessible by operating electronic equipment on the premises; and

                     (b)  expert assistance is required to operate the equipment; and

                     (c)  if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard, or otherwise.

             (3)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

             (4)  The equipment may be secured:

                     (a)  for a period not exceeding 24 hours; or

                     (b)  until the equipment has been operated by the expert;

whichever first happens.

             (5)  If an authorised officer or a person assisting believes, on reasonable grounds, that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of the period.

             (6)  The magistrate may extend the period of time, up to a maximum of a further 48 hours.

             (7)  The authorised officer or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension and the occupier is entitled to be heard in relation to that application.

             (8)  The provisions of this Part relating to the issue of warrants apply, with such modifications as are necessary, to the issue of an extension.

             (9)  In this section:

premises means:

                     (a)  premises that an authorised officer has entered, and remains on, with the consent of the occupier; and

                     (b)  warrant premises.

53   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 52:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a Court for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1):

damage , in relation to data, includes damage by erasure of data or addition of other data.

Division 4 Occupier’s rights and responsibilities

54   Occupier entitled to be present during execution of warrant

             (1)  If a warrant is being executed and the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the premises, the person is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the warrant ceases if the person impedes that execution.

             (3)  This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

55   Occupier to provide authorised officer with all facilities and assistance

             (1)  The occupier of warrant premises, or another person who apparently represents the occupier, must provide the officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if the person fails to comply with the obligation set out in subsection (1).

Penalty:  10 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 5 Warrants

56   Monitoring warrants

             (1)  An authorised officer may apply to a magistrate for a warrant under this section in relation to premises.

             (2)  Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised officers should have access to the premises for the purposes of substantiating information provided under this Act or of determining whether this Act has been complied with.

             (3)  The magistrate must not issue the warrant unless the authorised officer or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  authorise one or more authorised officers (whether or not named in the warrant), with such assistance as is necessary and reasonable:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in section 56 in relation to the premises; and

                     (b)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                     (c)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

                     (d)  state the purpose for which the warrant is issued.

Division 6 Information gathering

57   Power to request information

             (1)  This section applies to a person if the Greenhouse and Energy Data Officer has reason to believe that information (the compellable information ) relating to whether this Act has been complied with is in a person’s possession, custody or control (whether held electronically or in any other form).

             (2)  The Greenhouse and Energy Data Officer may, in writing, require the person to give specified compellable information to the Greenhouse and Energy Data Officer:

                     (a)  within a specified period of time; and

                     (b)  in a specified form or manner.

             (3)  The person must not fail to comply with a requirement under this section.

Civil penalty:          50 penalty units.

             (4)  The person must not, in purported compliance with a requirement under this section, give to the Greenhouse and Energy Data Officer information that is false or misleading in a material particular.

Civil penalty:          20 penalty units.

             (5)  Subsection (3) does not apply to the extent that the person has a reasonable excuse. However, a person does not have a reasonable excuse merely because the information in question is:

                     (a)  of a commercial nature; or

                     (b)  subject to an obligation of confidentiality arising from a commercial relationship; or

                     (c)  commercially sensitive.

             (6)  Subsection (3) does not apply in relation to compellable information if giving the information might tend to incriminate the person or expose the person to a penalty.

58   Prohibitions on disclosure of information do not apply

                   This Division has effect despite any law of the Commonwealth, a State or a Territory prohibiting disclosure of the information.

Division 7 External audits

59   External audits—compliance

             (1)  This section applies if the Greenhouse and Energy Data Officer has reasonable grounds to suspect that the owner of a non-residential building has contravened, is contravening, or is proposing to contravene, this Act or the regulations.

             (2)  The Greenhouse and Energy Data Officer may, by written notice given to the owner, require the owner to:

                     (a)  appoint:

                              (i)  an external auditor of his or her choice; or

                             (ii)  if the Greenhouse and Energy Data Officer specifies an external auditor in the notice—that external auditor; and

                     (b)  arrange for the external auditor to carry out an external audit on one or more aspects of the owner’s compliance with this Act or the regulations; and

                     (c)  arrange for the external auditor to give the owner a written report setting out the results of the audit; and

                     (d)  give the Greenhouse and Energy Data Officer a copy of the audit report on or before the day specified in the notice.

             (3)  The notice must specify the:

                     (a)  matters to be covered by the audit; and

                     (b)  form of the audit report and the kinds of details it is to contain.

             (4)  The owner must provide an external auditor with all reasonable facilities and assistance necessary for the effective exercise of the external auditor’s duties under this Act.

Civil penalty:          50 penalty units.

             (5)  If the Greenhouse and Energy Data Officer gives the owner written notice under subsection (2), the owner must comply with the requirements of the notice.

Civil penalty:          100 penalty units.

Note:          Under section 28 a person may be liable for an additional civil penalty for each day after the day mentioned in paragraph (2)(d) for which the person fails to provide an audit report in accordance with this section.

60   External audits—other

             (1)  The Greenhouse and Energy Data Officer may appoint an external auditor to carry out an external audit of the compliance of the owner of a non-residential building with one or more aspects of this Act or the regulations.

             (2)  The Greenhouse and Energy Data Officer must give written notice to the owner of a decision to appoint an auditor under subsection (1). The notice must:

                     (a)  specify the external auditor; and

                     (b)  specify the period within which the audit is to be undertaken; and

                     (c)  specify the matters to be covered by the audit; and

                     (d)  be given to the owner at a reasonable time before the audit is to be undertaken.

          (2A)  The owner must provide the external auditor with all reasonable facilities and assistance necessary for the effective exercise of the external auditor’s duties under this Act.

Civil penalty:          50 penalty units.

             (3)  If the owner is given a notice under subsection (2), the owner must arrange for the external auditor to carry out the external audit.

Civil penalty:          50 penalty units.

61   Requirements for external auditors

             (1)  An external auditor must conduct an audit and prepare a report in accordance with guidelines determined by the Greenhouse and Energy Data Officer under subsection (2).

             (2)  The Greenhouse and Energy Data Officer may determine, by legislative instrument, guidelines to be followed by external auditors when conducting audits and preparing reports under this Division.