CLEAN ENERGY ACT 2008 Reprinted as in force on 17 March 2011 Reprint No. 1C > TABLE OF PROVISIONS Contents Part 1--Preliminary 1. Short title 2. Commencement 3. Main object Part 2--Interpretation 4. Definitions 5. Who is the regulator 6. Meaning of participating business 7. Meaning of energy use threshold 7A. Verification year for a business 7B. Commercial complexes Part 3--Energy use information 8. Energy provider must give regulator information about energy use 9. Obligation to record total energy consumption Part 4--Smart Energy Savings Register 10. Smart Energy Savings Register 11. Registration as a registered participating business 12. Exemption from registration 13. Deregistration 14. Change of information in register Part 5--Energy use audit 15. Participating business must carry out energy use audit Part 6--Energy Savings Plan 16. Participating business must give regulator energy savings plan 17. Participating business may change energy savings plan 18. Review of energy savings plan 19. Publication of energy savings plan implementation Part 7--Offences relating to documents and information 20. False or misleading information 21. False or misleading document 22. Offence of improper disclosure of information Part 8--Evidence and legal proceedings Division 1--Application 23. Application of part Division 2--Evidentiary aids 24. Appointments and authority 25. Signatures Division 3--Offence proceedings 26. Summary proceedings for offences 27. Executive officers must ensure corporation complies with Act Part 9--Review of decisions Division 1--Internal review 28. Application for internal review 29. How to apply for internal review 30. Review decision Division 2--External reviews 31. Who may apply for external review Part 10--Miscellaneous 36. Delegations 37. Approval of forms 38. Regulation-making power SCHEDULE 2 -- DICTIONARY Endnotes 1 Short title This Act may be cited as the Clean Energy Act 2008 . 2 Commencement The provisions of the Act, other than the following provisions, commence on a day to be fixed by proclamation— (a) part 11, other than sections 40, 41 and 48; (b) part 14, other than sections 108, 109 and 116. 3 Main object The main object of this Act is to improve the efficiency and management of the use of energy, and the conservation of energy, in relation to particular businesses and other activities. 4 Definitions The dictionary in schedule 2 defines particular words used in this Act. 5 Who is the regulator The regulator is the chief executive. 6 Meaning of participating business (1) A participating business is a person who— (a) operates a business or carries out another activity at a site that used an amount of energy within the energy use threshold for the most recently completed financial year stated in a notice given to the person under section 9(1); or (b) controls a commercial complex that used an amount of energy within the energy use threshold for the most recently completed financial year stated in a notice given to the person under section 9 (1). (2) To remove any doubt, it is declared that— (a) if a person is a participating business for 2 or more sites or commercial complexes, a provision of this Act that applies to a participating business applies to the person separately in relation to each site or complex; and (b) subsection(1)(b) does not prevent a person who is a tenant in a commercial complex from being a participating business. (3) Despite subsection (1), each of the following is not a participating business— (a) a person registered under the Energy Efficiency Opportunities Act 2006 (Cwlth), part 4; (b) a government entity within the meaning of the Government Owned Corporations Act 1993, section 5, other than a GOC issued with a generation authority under the Electricity Act 1994; (c) a department; (d) an authority or body, whether incorporated or not, established or continued in existence by or under a law of the Commonwealth. (4) In this section— commercial complex see section 7B(1). controls, in relation to a commercial complex, see section 7B(2). 7 Meaning of energy use threshold The energy use threshold for a financial year is— (a) for the financial year ending on 30 June 2010—100 terajoules of energy or more, but less than 500 terajoules of energy; or (b) for a financial year ending on 30 June 2011, 2012, 2013 or 2014—30 terajoules of energy or more, but less than 500 terajoules of energy; or (c) for a financial year ending on or after 30 June 2015—10 terajoules of energy or more, but less than 500 terajoules of energy. 7A Verification year for a business (1) The first verification year for a registered participating business is the 1 year period nominated by the business as its first verification year in its application for registration under section 11. (2) The second and each subsequent verification year for a registered participating business is the 1 year period that ends on the day that is 5 years after the end of the preceding verification year for the business. 7B Commercial complexes (1) A commercial complex is a cluster of premises having all of the following attributes— (a) the majority of the premises are used wholly or predominantly for commercial purposes; (b) all the premises— (i) are owned by 1 or more persons; or (ii) have 1 lessor or head lessor, or, if the premises were leased, would have 1 lessor or head lessor; or (iii) comprise lots within a single community titles scheme; (c) all the premises are located in— (i) 1 building; or (ii) 2 or more buildings that are adjoining or separated by common areas owned by an owner of the buildings. Examples— conference centre, office block or shopping centre (2) A person controls a commercial complex if the person— (a) owns or leases the commercial complex and the common areas of the complex; and (b) is an on-supplier for 1 or more premises in the complex. (3) For this Act, the amount of energy used at a commercial complex includes all energy used— (a) by the person in control of the complex; and (b) at common areas of the complex; and (c) at premises for which the person who controls the complex is the on-supplier. (4) In this section— common areas, of a commercial complex, means areas in or adjacent to the complex that are used, or intended for use— (a) by the public; or (b) in common by the lessees of premises in the complex in relation to the conduct of businesses in premises in the complex. Examples— parking areas, toilets, stairways and walkways community titles scheme means a community titles scheme under the Body Corporate and Community Management Act 1997. on-supplier see the Electricity Act 1994, section 20. 8 Energy provider must give regulator information about energy use (1) The regulator may give an energy provider a written notice requiring the provider to give the regulator the name and address of, and the amount of energy used by, any customer the energy provider has supplied with 10 terajoules or more of energy, but less than 500 terajoules of energy, at the site of the customer, in the 1 year period stated in the notice. (2) The energy provider must give the regulator the information within 14 days after the end of the period stated in the notice for that purpose, or 14 days after receiving the notice, whichever is later. Maximum penalty—200 penalty units. (3) An energy provider does not commit an offence under subsection (2) if compliance with the provision would be unlawful under another law of the State or a law of the Commonwealth. (4) In this section— energy provider means any of the following entities if the regulator has given the entity written notice that this section applies to the entity— (a) the holder of a distribution authority, generation authority or retail authority under the Electricity Act 1994; (b) a special approval holder under the Electricity Act 1994; (c) the holder of a distribution authority or retail authority under the Gas Supply Act 2003; (d) the holder of a pipeline licence under the Petroleum and Gas (Production and Safety) Act 2004. 9 Obligation to record total energy consumption (1) The regulator may give a person a written notice requiring the person to give the regulator sufficient information to establish the total amount of energy used by the person in the financial year stated in the notice if — (a) the person is a registered participating business; or (b) the regulator decides, on reasonable grounds, that the person is or may be a participating business. (2) The person must give the regulator the information within 2 months after the end of the financial year stated in the notice, or 2 months after receiving the notice, whichever is later. Maximum penalty—200 penalty units. (3) The regulator must give the person an information notice for the decision of the regulator that the person is or may be a participating business. 10 Smart Energy Savings Register (1) The regulator must keep a register (the Smart Energy Savings Register) of each participating business that is, or may be, registered under section 11. (2) The register must include the following information for each participating business— (a) the name of the participating business; (b) the address of the principal place of business of the participating business; (c) a phone number for the participating business; (d) if the participating business is a corporation— (i) the address of the corporation's registered office; and (ii) the Australian company number for the corporation; (e) the website, if any, of the participating business; (f) for a registered participating business—the total amount of energy used by the participating business in its most recently completed verification year. 11 Registration as a registered participating business (1) A person may apply to the regulator for registration under this section. (2) The application must— (a) be in writing; and (b) include the information mentioned in section 10(2)(a) to (e); and (c) state a 1 year period of energy use by the applicant that will be the applicant's first verification year. Note— The 1 year period nominated by the applicant does not need to be a financial year but would need to enable the applicant to be able to comply with its obligations under parts 5 and 6. (3) A person, other than a registered participating business, given a notice under section 9(1) must apply for registration no later than 3 months after the end of the financial year stated in the notice if— (a) the person is a participating business; and (b) the person does not have an exemption granted under section 12. Maximum penalty—100 penalty units. 12 Exemption from registration (1) A participating business given a notice under section 9(1) may apply to the regulator for an exemption from registration under section 11. (2) The application must be in writing and include— (a) the reason that the participating business is seeking an exemption; and (b) sufficient information to enable the regulator to decide the application. (3) The application must be made within 3 months after the end of the financial year stated in the notice given to the participating business under section 9 (1). (4) The regulator may exempt the participating business from registration if the regulator is satisfied— (a) the participating business does not ordinarily use an amount of energy within the energy use threshold for the financial year in which the application was made; or (b) that in the most recently completed financial year— (i) the participating business (the primary business) leased space to another participating business (a secondary business) at the site of, or in the commercial complex controlled by, the primary business; and (ii) the total amount of energy used by the primary business, less the total amount of energy used by all secondary businesses, is less than the lowest energy amount in the energy use threshold for the financial year. (5) If the regulator decides to refuse the application, the regulator must give the participating business an information notice for the decision. (6) An exemption granted under this section continues until the day the participating business is given another notice under section 9(1). 13 Deregistration (1) A participating business may apply to the regulator for deregistration as a participating business. (2) The application must be in writing and include— (a) the reason that the participating business is seeking to be deregistered; and (b) sufficient information to enable the regulator to decide the application. (3) The regulator must deregister the participating business if the regulator is satisfied— (a) the participating business is registered under the Energy Efficiency Opportunities Act 2006 (Cwlth), part 4; or (b) the participating business will not use an amount of energy within the energy use threshold for the current financial year or either of the following 2 financial years; or (c) that in the most recently completed financial year— (i) the participating business (the primary business) leased space to another participating business (a secondary business) at the site of, or in the commercial complex controlled by, the primary business; and (ii) the total amount of energy used by the primary business, less the total amount of energy used by all secondary businesses, is less than the lowest energy amount in the energy use threshold for the financial year. (4) If the regulator decides to refuse the application, the regulator must give the person an information notice for the decision. 14 Change of information in register A participating business must, within 14 days of any change to the information contained in the Smart Energy Savings Register under section 10(2) about the participating business, give the regulator written notice about the change. Maximum penalty—20 penalty units. 15 Participating business must carry out energy use audit (1) A registered participating business must carry out an energy audit no later than 12 months after the end of each verification year for the participating business. Maximum penalty—100 penalty units. Note— Given the length of an energy savings plan under section 16, a verification year could be expected to be established approximately every 5 years under section 9. (2) In this section— energy audit means an energy audit prescribed under a regulation, and if no energy audit is prescribed, an energy audit that complies with a level 2 energy audit under AS/NZS 3598:2000 (Energy Audits). 16 Participating business must give regulator energy savings plan (1) A registered participating business must give the regulator a plan (an energy savings plan) that complies with subsections (2) and (3), no later than 12 months after the end of each verification year for the participating business. Maximum penalty—200 penalty units. (2) The plan must be for a period that— (a) starts on the day the plan is given to the regulator; and (b) ends on the day that is 5 years after the end of the verification year. (3) The plan must— (a) be in the approved form; and (b) include a copy of a report about the energy audit carried out by the participating business under section 15(1); and (c) set out the measures the participating business intends to implement from the energy audit that are of the following type— (i) efficiency measures; (ii) conservation measures; (iii) management measures; and (d) state how the participating business intends to implement the measures. 17 Participating business may change energy savings plan (1) A participating business may change an energy savings plan of the participating business to the extent that it relates to a matter mentioned in section 16(3)(c) or (d). (2) The participating business must, within 14 days of the change, give the regulator written notice setting out the change. Maximum penalty—20 penalty units. 18 Review of energy savings plan (1) This section applies if a participating business gives an energy savings plan to the regulator under section 16. (2) The participating business must give the regulator a report, in the third year in the 5 year period of the plan, stating how the plan has been implemented by the participating business and the results of the implementation. Maximum penalty—100 penalty units. (3) In this section— 5 year period, of an energy savings plan, means the period of 5 years starting from the end of the most recent verification year to which the plan relates. 19 Publication of energy savings plan implementation (1) Within 28 days after a participating business gives the regulator an energy savings plan under section 16, the participating business must publish information, in the way stated in subsection (3), about the measures the participating business intends to implement under the plan that are of the following type— (a) efficiency measures; (b) conservation measures; (c) management measures. Maximum penalty—20 penalty units. (2) Within 28 days of the start of the second and each subsequent year in the 5 year period of the plan, the participating business must publish information, in the way stated in subsection (3), about the implementation, and the results of implementation, of the measures mentioned in subsection (1). Maximum penalty—20 penalty units. (3) Information under subsections (1) and (2) must be published in a way that is readily accessible to the public. Examples of how information may be published— publishing on a website publishing in a local newspaper (4) The participating business must, within 28 days after it complies with subsection (1) or (2)— (a) advise the regulator by written notice that the participating business has complied with the subsection; and (b) give the regulator proof of compliance. Maximum penalty—20 penalty units. Example of how a participating business may prove compliance— give the regulator a website address or a newspaper article (5) In this section— 5 year period, of an energy savings plan, means the period of 5 years starting from the end of the most recent verification year to which the plan relates. 20 False or misleading information (1) A person must not state anything to the regulator that the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units. (2) It is enough for a complaint for an offence against subsection (1) to state the statement made was 'false or misleading' to the person's knowledge, without specifying which. 21 False or misleading document (1) A person must not give to the regulator a document containing information the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units. (2) Subsection (1) does not apply to a person who, when giving the document— (a) informs the regulator, to the best of the person's ability, how it is false or misleading; and (b) gives the correct information to the regulator if the person has, or can reasonably obtain, the correct information. (3) It is enough for a complaint for an offence against subsection (1) to state the document made was 'false or misleading' to the person's knowledge, without specifying which. 22 Offence of improper disclosure of information (1) A person who, directly or indirectly, discloses information obtained in the administration of this Act commits an offence, unless the disclosure is— (a) made in connection with the administration of this Act; or (b) made with the consent of the person to whom the information relates; or (c) ordered by a court in relation to proceedings before it; or (d) made with other lawful excuse. Maximum penalty—100 penalty units. (2) In this section— court includes a tribunal, authority or person having power to require the production of documents or the answering of questions. 23 Application of part This part applies to a legal proceeding under this Act. 24 Appointments and authority The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it— (a) the regulator's appointment; (b) the authority of the Minister or the regulator to do anything under this Act. 25 Signatures A signature purporting to be the signature of the Minister or the regulator is evidence of the signature it purports to be. 26 Summary proceedings for offences (1) Proceedings for an offence against this Act are to be taken in a summary way under the Justices Act 1886. (2) A proceeding for an offence against this Act must start— (a) within 1 year after the commission of the offence; or (b) within 1 year after the offence comes to the complainant's knowledge, but within 2 years after the commission of the offence. 27 Executive officers must ensure corporation complies with Act (1) The executive officers of a corporation must ensure the corporation complies with this Act. (2) If a corporation commits an offence against a provision of this Act, each of the corporation's executive officers also commits an offence, namely, the offence of failing to ensure the corporation complies with the provision. Maximum penalty—the penalty for the contravention of the provision by an individual. (3) Evidence the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure the corporation complies with the provision. (4) However, it is a defence for an executive officer to prove— (a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the provision; or (b) the officer was not in a position to influence the conduct of the corporation in relation to the offence. (5) In this section— executive officer, of a corporation, means any person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation. 28 Application for internal review A person who is given, or is entitled to be given, an information notice about a decision of the regulator under this Act, may apply for an internal review of the decision. 29 How to apply for internal review (1) An application for internal review of a decision must be— (a) made— (i) in the approved form; and (ii) to the Minister; and (b) supported by enough information to enable the Minister to decide the application. (2) The application must be made within 20 business days after— (a) the day the person is given the information notice about the decision; or (b) if paragraph (a) does not apply—the day the person otherwise becomes aware of the decision. 30 Review decision (1) The Minister must, within 30 business days after receiving the application— (a) review the decision (the original decision); and (b) make a decision (the review decision) to— (i) confirm the original decision; or (ii) amend the original decision; or (iii) substitute another decision for the original decision; and (c) give the applicant notice (the review notice) of the review decision. (2) If the review decision is not the decision sought by the applicant, the review notice must comply with the QCAT Act, section 157(2). (3) If the Minister does not comply with subsection (1), the Minister is taken to have made a decision confirming the original decision. 31 Who may apply for external review A person who has applied for a review of a decision under division 1 and is dissatisfied with the decision (the dissatisfied person) may apply, as provided under the QCAT Act, to QCAT for a review of the decision. 36 Delegations (1) The Minister or the regulator may delegate his or her functions under this Act to an appropriately qualified officer or employee of the department. (2) In this section— appropriately qualified includes having the qualifications, experience or standing appropriate to perform the function. Example of standing for an employee of the department— the employee's classification level in the department functions includes powers. 37 Approval of forms The regulator may approve forms for use under this Act. 38 Regulation-making power (1) The Governor in Council may make regulations under this Act. (2) A regulation may provide for a maximum penalty of 20 penalty units for a contravention of the regulation. - SCHEDULE 2 -- DICTIONARY approved form means a form approved by the regulator under section 37. conservation measures mean measures that will result in a reduction of energy used. Example of a conservation measure— turning off stand-by power on electronic equipment dissatisfied person see section 31. efficiency measures mean measures that will result in a reduction of energy used for the same or a higher output. Example of an efficiency measure— installing new technology to make a process more efficient energy means electricity or processed natural gas, or electricity and processed natural gas. energy savings plan see section 16(1). energy use threshold see section 7. information notice, about a decision of the regulator, means a written notice stating each of the following— (a) the decision; (b) the reasons for the decision; (c) that the person to whom the notice is given may, within 20 business days after the day the notice is given, ask the Minister to review the decision; (d) how the person may have the decision reviewed. management measures mean measures that will result in an improvement in a participating business' ability to implement conservation measures and efficiency measures. Example of a management measure— making it the responsibility of each person in a senior management position in a participating business to ensure that conservation measures and efficiency measures are implemented by the participating business participating business see section 6. processed natural gas see the Gas Supply Act 2003. registered participating business means a participating business, or other person, that is registered under section 11. regulator see section 5. Smart Energy Savings Register see section 10(1). verification year, for a registered participating business, see section 7A. - NOTES Page Date to which amendments incorporated 24 Key 24 Table of reprints 25 List of legislation 25 List of annotations 25 This is the reprint date mentioned in the Reprints Act 1992, section 5(c). Accordingly, this reprint includes all amendments that commenced operation on or before 17 March 2011. Future amendments of the Clean Energy Act 2008 may be made in accordance with this reprint under the Reprints Act 1992, section 49. Key Explanation Key Explanation AIA = Acts Interpretation Act 1954 (prev) = previously amd = amended proc = proclamation amdt = amendment prov = provision ch = chapter pt = part def = definition pubd = published div = division R[X] = Reprint No. [X] exp = expires/expired RA = Reprints Act 1992 gaz = gazette reloc = relocated hdg = heading renum = renumbered ins = inserted rep = repealed lap = lapsed (retro) = retrospectively notfd = notified rv = revised edition num = numbered s = section o in c = order in council sch = schedule om = omitted sdiv = subdivision orig = original SIA = Statutory Instruments Act 1992 p = page SIR = Statutory Instruments Regulation 2002 para = paragraph SL = subordinate legislation prec = preceding sub = substituted pres = present unnum = unnumbered Reprint No. Amendments included Effective Notes 0A none 21 May 2008 certain provs commenced 0B none 1 July 2008 certain provs commenced 1 none 22 May 2009 pts 4–10 commenced 1A 2009 Act No. 24 1 December 2009 1B 2010 Act No. 17 21 April 2010 1C 2011 Act No. 2 17 March 2011 >