Commonwealth Consolidated Acts Commonwealth Consolidated ActsBuilding Energy Efficiency Disclosure Act 2010
1 Section 3 (definition of civil penalty order )
Repeal the definition.
2 Section 3 (definition of civil penalty provision )
Repeal the definition, substitute:
"civil penalty provision" has the same meaning as in the Regulatory Powers Act.
3 Section 3
Insert:
"Regulatory Powers Act" means the Regulatory Powers (Standard Provisions) Act 2014 .
4 Subsection 8(2)
Omit "to a pecuniary penalty or".
5 Subsections 11(5) and 15(5)
After "civil penalty order", insert "under the Regulatory Powers Act".
6 Subsection 18(7)
Repeal the subsection, substitute:
(7) If a person contravenes subsection ( 6) by failing to give access at a day and time on which access is required under a notice, the person commits a separate contravention of that subsection in respect of each day after the day required under the notice, including a day of the making of the relevant civil penalty order and any subsequent day.
Note: If a person contravenes subsection ( 6) by failing to give information within the period specified in the notice, under section 93 of the Regulatory Powers Act, the person commits a separate contravention of that subsection in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).
7 Subsection 49(1)
After "civil penalty provision", insert "of this Act".
8 Divisions 2 and 3 of Part 5
Repeal the Divisions, substitute:
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.
(3) The Secretary may, in writing, delegate to an SES employee or acting SES employee in the Department the Secretary's powers and functions as an authorised applicant in relation to the civil penalty provisions of this Act.
(4) In exercising powers or performing functions delegated under subsection ( 3), the delegate must comply with any directions of the Secretary.
Relevant court
(5) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
Maximum amount of pecuniary penalty
(6) Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty payable under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, must not be more than the amount worked out under section 52 of this Act.
Extension to external Territories
(7) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.
Liability of Crown
(8) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not make the Crown liable to a pecuniary penalty.
(9) The protection in subsection ( 8) does not apply to an authority of the Crown.
52 Maximum amount of pecuniary penalty
(1) Subject to this section, the pecuniary penalty payable by a person under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to a civil penalty provision of this Act, must not exceed the pecuniary penalty specified for the civil penalty provision in this Act.
(2) If:
(a) the contravention is of a requirement under section 11 in relation to a continuing offer or a continuing invitation; and
(b) the contravention is in respect of one or more days that fall after the first day on which the offer or invitation is made;
the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day.
(3) If:
(a) the contravention is of a requirement under section 15 in relation to a continuing advertisement; and
(b) the contravention is in respect of one or more days that fall after the first day on which advertising began;
the pecuniary penalty must not exceed 100 penalty units for each day that falls after the first day.
(4) If:
(a) the contravention is of a requirement under section 18 in relation to giving information within a period specified in a notice; and
(b) the contravention is in respect of one or more days that fall after the end of that period;
the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the end of that period.
(5) If:
(a) the contravention is of a requirement under section 18 in relation to giving access to a place at a day and time specified in a notice; and
(b) the contravention is in respect of one or more days that fall after the day specified;
the pecuniary penalty must not exceed 20 penalty units for an individual and 50 penalty units for a body corporate for each day that falls after the day specified.
Division 3 -- Infringement notices
Provisions subject to an infringement notice
(1) A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is an infringement officer in relation to the provisions mentioned in subsection ( 1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection ( 1).
Delegation by the Secretary
(4) The Secretary may, in writing, delegate to an SES employee or acting SES employee in the Department the Secretary's powers and functions as an infringement officer or as the relevant chief executive in relation to the provisions mentioned in subsection ( 1).
(5) In exercising powers or performing functions delegated under subsection ( 4), the delegate must comply with any directions of the Secretary.
Single infringement notice dealing with multiple contraventions
(6) Despite subsection 103(3) of the Regulatory Powers Act, an infringement officer may give a person a single infringement notice relating to multiple contraventions of subsection 18(6) that are alleged to have occurred because the person failed to give access to a place at a particular day and time specified in a notice under subsection 18(4) and continued to fail to do so after that day and time.
Amount payable under an infringement notice
(7) Despite subsections 104(2) and (3) of the Regulatory Powers Act, the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of that Act in relation to a civil penalty provision of this Act must not exceed an amount equal to:
(a) if the notice relates to only one alleged contravention of the provision by the person--one - tenth of the maximum penalty that a Court could impose on the person for that contravention; or
(b) if the notice relates to more than one alleged contravention of the provision by the person--one - tenth of the amount worked out by adding together the maximum penalty that a Court could impose on the person for each alleged contravention.
Time limits on representations seeking withdrawal of notice
(8) If a person to whom an infringement notice has been given in relation to a provision mentioned in subsection ( 1) wishes to make written representations to the Secretary under subsection 106(1) of the Regulatory Powers Act:
(a) the person must do so within 28 days after the infringement notice is given; and
(b) despite paragraph 106(3)(a) of the Regulatory Powers Act, the Secretary need not take into account any representations in relation to the infringement notice made after the end of that period.
Extension to external Territories
(9) Part 5 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection ( 1), extends to every external Territory.
9 Paragraph 65(3)(a)
Omit "Division 3", substitute "Part 5 of the Regulatory Powers Act in relation to a civil penalty provision of this Act".
10 Paragraph 65(3)(b)
After "order", insert "under the Regulatory Powers Act".
11 Subparagraph 70(1)(a)(iii)
Omit "; and", substitute "; or".
12 At the end of paragraph 70(1)(a)
Add:
(iv) obtains or generates information in the course of exercising powers or performing function under the Regulatory Powers Act, as it applies in relation to this Act; and
Part 2 -- Application and saving provisions
13 Application and saving provision--civil penalties
(1) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 2 of Part 5 of the Building Energy Efficiency Disclosure Act 2010 , applies in relation to contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.
(2) Division 2 of Part 5 of the Building Energy Efficiency Disclosure Act 2010 , as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to contraventions of civil penalty provisions occurring before the commencement of this Schedule.
14 Application and saving provision--infringement notices
(1) Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 , as that Part applies under Division 3 of Part 5 of the Building Energy Efficiency Disclosure Act 2010 , applies in relation to alleged contraventions of civil penalty provisions occurring on or after the commencement of this Schedule.
(2) Division 3 of Part 5 of the Building Energy Efficiency Disclosure Act 2010 , as in force immediately before the commencement of this Schedule, continues to apply on and after that commencement in relation to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule.
15 Saving provision--Energy Efficiency Non - disclosure Register
(1) An infringement notice given to a person under Division 3 of Part 5 of the Building Energy Efficiency Disclosure Act 2010 , as it applies to alleged contraventions of civil penalty provisions occurring before the commencement of this Schedule, is taken to be an instance of non - disclosure under section 65 of that Act as amended by this Schedule.
(2) A civil penalty order made by a Court under subsection 53(2) of the Building Energy Efficiency Disclosure Act 2010 before, on or after the commencement of this Schedule for a contravention of section 11, subsection 12(6) or section 15 of that Act is taken to be an instance of non - disclosure under section 65 of that Act as amended by this Schedule.