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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Electrical Products (Energy Products) Amendment
Bill 2011
A BILL FOR
An Act to amend the Electrical
Products Act 2000; and to make related amendments to the Gas
Act 1997.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Electrical
Products Act 2000
4Amendment of long title
5Amendment of section 1—Short
title
6Amendment of
section 3—Interpretation
7Amendment of heading to
Part 2
8Amendment of section 5—Proclamation
for purposes of Part
9Amendment of section 6—Offences relating
to safety and performance, certification and information
10Insertion of
section 6A
6AOffences
relating to energy performance
11Amendment of
section 7—Offences relating to labels
12Amendment of
section 8—Prohibition of sale or use of unsafe energy
products
13Amendment of section 9—Mutual
recognition
14Insertion of
section 9A
9APublic warning statements about
unsafe energy products, practices etc
15Substitution of
Part 3
Part 3—Enforcement
10Appointment of authorised
officers
11General powers of authorised
officers
12Provisions
relating to seizure
13Recovery of costs
13AOffence to hinder etc authorised
officer
16Amendment of section 14—Power of
exemption
17Amendment of section
20—Evidence
18Amendment of
section 22—Delegation
19Amendment of
section 23—Confidential information
20Amendment of
section 26—Regulations
21Repeal of Schedule
Schedule 1—Related amendments and
transitional provisions
Part 1—Amendment of
Gas Act 1997
1Amendment of long title
2Amendment of section 8—Functions of
Technical Regulator
3Repeal of heading to Part 5 Division
1
4Repeal of Part 5 Division 2
5Amendment of section 67—General
investigative powers of authorised officers
6Amendment of
section 95—Regulations
Part 2—Transitional
provisions
7Authorised officers
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Electrical Products (Energy Products)
Amendment Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Electrical Products
Act 2000
Long title—delete "electrical products; to repeal the Electrical
Products Act 1988" and insert:
products powered by electricity, gas or some other energy source
5—Amendment
of section 1—Short title
Section 1—delete "Electrical Products" and
insert:
Energy Products (Safety and Efficiency)
6—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of authorised
person—delete the definition and substitute:
authorised officer—see Part 3;
certification body—see section 5;
(2) Section 3(1), definition of corresponding
law—delete "subsection (2)" and substitute:
section 5
(3) Section 3(1), definition of electrical
product—delete the definition and substitute:
energy efficiency labelling standard—see
section 5;
(4) Section 3(1)—after the definition of energy
performance standard insert:
energy product means—
(a) an electrical appliance or a component of an electrical appliance;
or
(b) a gas appliance or a component of a gas appliance; or
(c) an appliance powered by an energy source other than electricity or gas
(such as solar, wind or water) or a component of such an appliance; or
(d) an appliance powered by any combination of electricity, gas or other
energy source, or a component of such an appliance; or
(e) a device used for or in connection with the conveyance of electricity,
gas or other energy source or a component of such a device (including a meter
for measuring consumption); or
(f) an instrument for measuring a characteristic of electricity, gas or
other energy source,
but does not include an appliance, component, device or instrument excluded
from the ambit of this definition by regulation;
gas has the same meaning as in the Gas
Act 1997;
(5) Section 3(1), definitions of standard and to
sell—delete the definitions and substitute:
sell a product includes let the product on hire, advertise
the product for sale or hire, display or provide for inspection a sample of a
product that is for sale or hire and offer or expose the product for sale or
hire;
standard means—
(a) an Australian Standard; or
(b) a code or standard published by or under the authority of the
Technical Regulator or a body specified by regulation,
and includes any document called up by or under the code or
standard;
(6) Section 3(1), definition of trader—delete
"electrical" and substitute:
energy
(7) Section 3(2)—delete subsection (2)
7—Amendment
of heading to Part 2
Heading to Part 2—delete "electrical" and
substitute:
energy
8—Amendment
of section 5—Proclamation for purposes of Part
Section 5(1)—delete subsection (1) and
substitute:
(1) The Governor may, by proclamation, declare—
(a) a class of energy product to be a class to which a subsection of
section 6 or 6A applies; or
(b) for the purposes of section 6(1)—a standard or part of a
standard, with or without modification, to be a safety and performance standard
for a class of energy product; or
(c) for the purposes of section 6(2)—a body to be a
certification body; or
(d) for the purposes of section 6(3)—a standard or part of a
standard, with or without modification, to be an information standard for a
class of energy product; or
(e) for the purposes of section 6A(1)—a standard or part of a
standard, with or without modification, to be an energy performance standard for
a class of energy product; or
(f) for the purposes of regulations under section 6A(2)—a
standard or part of a standard, with or without modification, to be an energy
efficiency labelling standard for a class of energy product; or
(g) for the purposes of sections 6(1) and 6A(1)
and (2)—a law of another jurisdiction to be a corresponding
law.
9—Amendment
of section 6—Offences relating to safety and performance, certification
and information
(1) Section 6(1)—delete "electrical" and substitute:
energy
(2) Section 6(2) to (5)—delete subsections (2) to (5)
(inclusive) and substitute:
(2) A trader must not
sell an energy product of a class to which this subsection applies unless it is
labelled under the authority of a certification body or the Technical Regulator
so as to indicate its certification by that body or the Technical
Regulator.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) A trader must not
sell an energy product of a class to which this subsection applies unless the
trader provides information in respect of the product to the purchaser in
accordance with applicable information standards.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) No offence is committed against subsection (1),
(2) or
(3) if—
(a) the sale takes place within 6 months after the date the
subsection is applied to the relevant class of energy product; and
(b) the product was manufactured in or imported into the State before that
date.
(5) No offence is committed against subsection (1) or
(3) if—
(a) the sale takes place within 6 months after a change in the
labelling or information requirements that apply under that subsection;
and
(b) the product was manufactured in or imported into the State before the
change in the requirements; and
(c) at the time of the sale the product was labelled, or the information
provided, in accordance with requirements applicable at or after the time of
manufacture or import of the product.
After section 6 insert:
6A—Offences relating to energy
performance
(1) A trader must not
sell an energy product of a class to which this subsection applies unless it is
registered so as to indicate its compliance with applicable energy performance
standards—
(a) in accordance with the regulations; or
(b) in accordance with a corresponding law.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A trader must not
sell an energy product of a class to which this subsection applies unless it is
labelled so as to indicate its energy efficiency—
(a) under the
authority of the Technical Regulator in accordance with the regulations;
or
(b) under an authority conferred by a corresponding law in accordance with
that corresponding law.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) No offence is committed against
subsection (1)
or
(2) if—
(a) the sale takes place within 12 months after the date the
subsection is applied to the relevant class of energy product; and
(b) the product was manufactured in or imported into the State before that
date.
(4) No offence is committed against
subsection (1)
if—
(a) the sale takes place within 12 months after the cancellation of
the registration of the product on the grounds that the product no longer
complies with the applicable energy performance standards as a result of an
alteration in the standards; and
(b) the product was manufactured in or imported into the State before the
cancellation of the registration.
(5) No offence is committed against
subsection (2)
if—
(a) the sale takes place within 12 months after a change in the
labelling requirements that apply under that subsection; and
(b) the product was manufactured in or imported into the State before the
change in the requirements; and
(c) at the time of the sale, the product was labelled in accordance with
requirements applicable at or after the time of manufacture or import of the
product.
(6) This section does not apply to the sale of second-hand
goods.
11—Amendment
of section 7—Offences relating to labels
(1) Section 7(1)(a)—delete "or (3)" and
substitute:
or (2) or 6A(2)
(2) Section 7(1)(a)—delete "electrical" and
substitute:
energy
(3) Section 7(1)(b)—delete "electrical" and
substitute:
energy
(4) Section 7(2)—delete "electrical" first occurring and
substitute:
energy
(5) Section 7(2)(a)—delete "electrical"
(6) Section 7(3)—delete "electrical" first occurring and
substitute:
energy
(7) Section 7(3)—delete "electrical" second occurring
(8) Section 7(4)—delete "electrical" first occurring and
substitute:
energy
(9) Section 7(4)—delete "electrical" second occurring
12—Amendment
of section 8—Prohibition of sale or use of unsafe energy
products
(1) Section 8(1)—delete "electrical" first occurring and
substitute:
energy
(2) Section 8(1)(a)—delete "electrical"
(3) Section 8—after subsection (3) insert:
(4) The Crown incurs no liability for an act of the Technical Regulator in
good faith in the exercise or purported exercise of powers under this
section.
(5) A person incurs no liability for publishing in good faith a notice
under this section or a fair report or summary of such a notice.
13—Amendment
of section 9—Mutual recognition
(1) Section 9(1)—delete "electrical" and substitute:
energy
(2) Section 9(2)—delete "electrical" and substitute:
energy
(3) Section 9(3)—delete subsection (3)
After section 9 insert:
9A—Public warning statements about unsafe energy
products, practices etc
(1) If, in the
opinion of the Technical Regulator, it is in the public interest to do so, the
Technical Regulator may make a public statement identifying and giving warnings
or information about any of the following:
(a) energy products that, in the opinion of the Technical Regulator, are
or are likely to become unsafe in use and persons who supply the
products;
(b) uses of energy products, or installation practices, that, in the
opinion of the Technical Regulator, pose a danger to persons or
property;
(c) any other dangers to persons or property associated with energy
products.
(2) A statement under this section may identify particular energy
products, services, practices and persons.
(3) The Crown incurs
no liability for a statement made by the Technical Regulator in good faith in
the exercise or purported exercise of powers under this section.
(4) A person incurs no liability for publishing in good faith a statement
made by the Technical Regulator under this section or a fair report or summary
of such a statement.
Part 3—delete the Part and substitute:
Part 3—Enforcement
10—Appointment of authorised
officers
(1) The Minister may appoint suitable persons to be authorised officers
for the purposes of this Act.
(2) An appointment may be made subject to conditions specified in the
instrument of appointment.
(3) The Minister may,
at any time, revoke an appointment of an authorised officer or vary or revoke a
condition of appointment or impose a further condition of appointment.
(4) An authorised officer must be issued with an identity
card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer under this
Act.
(5) If the powers of an authorised officer have been limited by
conditions, the identity card issued to the authorised officer must indicate
those limitations.
(6) An authorised officer must, at the request of a person in relation to
whom the authorised officer intends to exercise powers under this Act, produce
for the inspection of the person his or her identity card.
11—General powers of authorised
officers
(1) Subject to this
section, an authorised officer may—
(a) require a trader—
(i) to make energy products of a class specified by the authorised officer
that are in the trader's possession available for examination by the authorised
officer; and
(ii) to inform the authorised officer of the date when the trader obtained
an energy product; and
(iii) to inform the authorised officer of the person from whom the trader
obtained an energy product; and
(iv) to produce to the authorised officer orders, invoices, accounts and
other documents that are in the trader's possession and relate to energy
products; and
(v) to sell to the authorised officer an energy product specified by the
authorised officer for the same price as the product is sold to other purchasers
(or, if that price cannot be identified, for a fair price offered by the
authorised officer); and
(b) enter and
inspect and, if necessary, use reasonable force to break into or
open—
(i) a place or vehicle to which this section applies; or
(ii) part of, or anything in or on, a place or vehicle to which this
section applies; and
(c) give directions with respect to the stopping or movement of a vehicle
to which this section applies; and
(d) take photographs, films or audio, video or other recordings;
and
(e) require a person who the authorised officer reasonably suspects has
committed, is committing, or is about to commit, a contravention of this Act to
state the person's full name and usual place of residence and to produce
evidence of the person's identity; and
(f) require a person who the authorised officer reasonably suspects has
knowledge of matters in respect of which information is required for the
administration or enforcement of this Act to answer questions in relation to
those matters, to state the person's full name and usual place of residence and
to produce evidence of the person's identity; and
(g) require a person who the authorised officer reasonably suspects has
possession of a document required for the administration or enforcement of this
Act to produce the document, to state the person's full name and usual place of
residence and to produce evidence of the person's identity; and
(h) examine any energy product made available to the authorised officer or
found in the course of an inspection; and
(i) examine, copy or take extracts from a document produced to the
authorised officer or found in the course of an inspection or require a person
to provide a copy of any such document; and
(j) seize and retain, or issue a seizure order in respect of, an energy
product that the authorised officer reasonably suspects has been used in, or may
constitute evidence of, a contravention of this Act; and
(k) cause tests to be carried out on an energy product that has been
purchased or seized or in respect of which a seizure order is in force;
and
(l) give a direction required in connection with the exercise of a power
conferred by a preceding paragraph.
(a) may only exercise the powers conferred by
subsection (1)
as reasonably required for the administration and enforcement of this Act;
and
(b) may only exercise the power to use force, or to enter a place of
residence, under
subsection (1)
on the authority of a warrant issued by a magistrate or in circumstances in
which the authorised officer reasonably believes that immediate action is
required on the grounds of safety.
(3) In the exercise of powers under this Act, an authorised officer may be
assisted by such persons as the authorised officer considers necessary in the
circumstances.
(4) An authorised
officer may require an occupier of a place or a person apparently in charge of a
vehicle to give to the authorised officer, or a person assisting the authorised
officer, such assistance as is reasonably required by the authorised officer for
the effective exercise of powers conferred by this Act.
(5) A magistrate must not issue a warrant for the purposes of this section
unless satisfied that the warrant is reasonably required in the
circumstances.
(6) Subject to
subsection (7),
a person is not required to give information or produce a document under this
section if the information or the contents of the document would tend to
incriminate the person of an offence.
(7) If an
authorised officer informs a person required to give information or produce a
document under this section that the requirement is made for the administration
or enforcement of section 8, the person must give the information or
produce the document despite the fact that the information or the contents of
the document would tend to incriminate the person of an offence,
but—
(a) if the person is a natural person, the information or document so
given or produced will not be admissible in evidence against the person in
proceedings for an offence (other than an offence relating to the making of a
false or misleading statement or declaration); and
(b) if the person is a body corporate—
(i) the information or document so given or produced will not be
admissible in evidence against a director of the body corporate in proceedings
for an offence (other than an offence relating to the making of a false or
misleading statement or declaration); and
(ii) a director will not be guilty of an offence (other than an offence
relating to the making of a false or misleading statement or declaration) as a
result of the body corporate having been found guilty of an offence in
proceedings in which the information or document so given or produced was
admitted in evidence against the body corporate.
(8) This section applies to a place or vehicle only if an authorised
officer reasonably suspects that—
(a) the place or vehicle is being used at the time in the course of a
trade or business involving the sale of energy products; or
(b) a contravention of this Act has been, is being, or is about to be,
committed in or on the place or vehicle; or
(c) something may be found in or on the place or vehicle that has been
used in, or constitutes evidence of, a contravention of this Act.
12—Provisions relating to
seizure
(1) A seizure order under
section 11—
(a) must be in the form of a written notice given to the owner or person
in control of the energy product to which the order relates; and
(b) may be varied or discharged by further such written notice.
(2) If a seizure order is issued, a person who, knowing of the order,
removes or interferes with the energy product to which the order relates without
the approval of an authorised officer before the product is dealt with under
this section or the seizure order discharged is guilty of an offence.
Maximum penalty: $10 000.
(3) If an energy
product has been seized or made the subject of a seizure order under
section 11, the
following provisions apply:
(a) the product
must, if it has been seized, be held pending proceedings for an offence against
this Act related to the product seized, unless the Minister, on application,
authorises its release to the person from whom it was seized, or to a person who
had legal title to it at the time of its seizure, subject to such conditions as
the Minister thinks fit (including conditions as to the giving of security for
satisfaction of an order under
paragraph (b)(ii));
(b) if proceedings
for an offence against this Act relating to the product are instituted within
the designated period after its seizure or the issuing of the seizure order and
the defendant is convicted or found guilty of the offence, the court
may—
(i) order that it be forfeited to the Minister; or
(ii) if it has been
released pursuant to
paragraph (a) or
is the subject of a seizure order—order that it be forfeited to the
Minister or that the person to whom it was released or the defendant pay to the
Minister an amount equal to its market value at the time of its seizure, as the
court thinks fit;
(i) proceedings are not instituted for an offence against this Act
relating to the product within the designated period after its seizure or the
issuing of the seizure order; or
(ii) proceedings have been so instituted and—
(A) the defendant is found not guilty of the offence; or
(B) the defendant is convicted or found guilty of the offence but no order
for forfeiture is made under
paragraph (b),
then—
(iii) in the case
of a product seized—the person from whom the thing was seized, or a person
with legal title to it, is entitled to recover from the Minister (if necessary,
by action in a court of competent jurisdiction) the product itself, or if it has
been damaged or destroyed, compensation of an amount equal to its market value
at the time of its seizure; or
(iv) in the case of a product subject to a seizure order—the order
is discharged.
(4) In this section—
designated period means 6 months or such longer period
as a magistrate may, on application by the Minister, allow.
13—Recovery of costs
If an energy product tested under this Act—
(a) does not conform with an applicable safety and performance standard or
an applicable energy performance standard; or
(b) does not conform with the information as to its energy efficiency
contained in a label affixed to the energy product in accordance with this
Act,
the Minister may (by application in proceedings for an offence against this
Act or by action in a court of competent jurisdiction) recover from the trader
by whom the energy product was sold the costs incurred in purchasing, seizing
and storing, or issuing a seizure order in respect of, the energy product (as
the case requires) and in having it tested.
13A—Offence to hinder etc authorised
officer
A person who—
(a) hinders or obstructs an authorised officer, or a person assisting an
authorised officer, in the exercise of powers conferred by this Act;
or
(b) refuses or fails to comply with a requirement or direction of an
authorised officer under this Act; or
(c) when required by an authorised officer under this Act to answer a
question, refuses or fails to answer the question to the best of the person's
knowledge, information and belief; or
(d) falsely represents, by words or conduct, that he or she is an
authorised officer,
is guilty of an offence.
Maximum penalty: $10 000.
16—Amendment
of section 14—Power of exemption
Section 14—after subsection (1) insert:
(1a) Except as otherwise provided in the exemption, an exemption under
subsection (1) may be varied or revoked by the Technical
Regulator.
17—Amendment
of section 20—Evidence
Section 20(1)(b)—delete "person" and substitute:
officer
18—Amendment
of section 22—Delegation
Section 22—before subsection (1) insert:
(a1) The Minister may delegate his or her powers under this Act to the
Technical Regulator or any other person.
19—Amendment
of section 23—Confidential information
Section 23—after its present contents (now to be designated as
subsection (1)) insert:
(2) Information classified by the Technical Regulator as of a commercially
sensitive or private confidential nature is not liable to disclosure under the
Freedom
of Information Act 1991.
20—Amendment
of section 26—Regulations
(1) Section 26(2)(a)—delete paragraph (a)
(2) Section 26(2)(b)—delete "electrical" and
substitute:
energy
(3) Section 26(2)(b)—delete "an electricity" and
substitute:
a
(4) Section 26(2)(c)—delete "electrical" wherever occurring and
substitute in each case:
energy
(5) Section 26(2)(d)—delete paragraph (d) and
substitute:
(d) fix, or provide for the Technical Regulator to fix, fees in respect of
any matter under this Act and provide for the payment, recovery, refund, waiver
or reduction of such fees: and
(6) Section 26(2)(e)—delete "electrical" and
substitute:
energy
Schedule—delete the Schedule
Schedule 1—Related
amendments and transitional provisions
Part 1—Amendment of Gas
Act 1997
Long title—delete "gas installations and gas appliances" and
substitute:
gas infrastructure, installations and fitting work
2—Amendment
of section 8—Functions of Technical Regulator
Section 8(1)(c)—delete "and gas appliances"
3—Repeal
of heading to Part 5 Division 1
Heading to Part 5 Division 1—delete the heading to
Division 1
Part 5 Division 2—delete Division 2
5—Amendment
of section 67—General investigative powers of authorised
officers
(1) Section 67(1)(b)—delete ", gas installation or gas
appliance" and substitute:
or gas installation
(2) Section 67(1)(b)—delete "infrastructure, installation or
appliance" and substitute:
infrastructure or installation
(3) Section 67(1)(g)—delete ", gas installation or gas
appliance" and substitute:
or gas installation
6—Amendment
of section 95—Regulations
Section 95(2)(f) and (g)—delete paragraphs (f)
and (g)
Part 2—Transitional
provisions
A person who held office as an authorised person under the Electrical
Products Act 2000 immediately before the commencement of this
clause continues to hold office under that Act (as amended by this Act) as an
authorised officer.