Bills

Statutes Amendment (Electricity and Gas) Bill

Introduction and First Reading

The Hon. A. KOUTSANTONIS (West Torrens—Treasurer, Minister for Finance, Minister for State Development, Minister for Mineral Resources and Energy) (15:36): Obtained leave and introduced a bill for an act to amend the Electricity Act 1996 and the Gas Act 1997. Read a first time.

Second Reading

The Hon. A. KOUTSANTONIS (West Torrens—Treasurer, Minister for Finance, Minister for State Development, Minister for Mineral Resources and Energy) (15:37): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill that I am introducing today is an 'omnibus' Bill designed to address a wide range of safety, administrative and legal issues that have become apparent over time, to enable more effective administration and enforcement of the Electricity Act 1996 and Gas Act 1997 (the Acts).

The objects of both of the Acts are expanded to clarify that safety and technical standards for electrical and gas installations include standards relating to the design of electrical and gas installations. The Bill provides that electrical and gas installations must be designed in accordance with technical and safety requirements under the regulations.

The Bill enables, but does not require, electricity entities to prune or remove 'hazard trees' which are outside the currently prescribed clearance and buffer zones around powerlines in the bushfire risk area, but could nevertheless fall onto powerlines, thereby creating the risk of bushfire, electric shock or interruption of the electricity supply. This follows from recommendations of the Victorian Royal Commission into Bushfires. Such pruning will require a report from an arborist on the extent of clearance necessary to prevent the tree from falling onto the powerline. The Bill also enables an electricity entity or council and landowner to agree on a period less than the prescribed 30 days written notice for entry onto land for vegetation clearance purposes.

The Bill strengthens bushfire prevention measures by enabling electricity officers (appointed by an electricity entity) to enter land that is not public land in the bushfire risk area at any reasonable time and without prior notice for the purpose of inspecting infrastructure. This will assist in the identification of hazards, including hazard trees.

In any other case, the electricity officer may only enter the land after giving reasonable written notice to the owner or occupier of the land stating the reason, the date and, if practicable, the time, of the proposed entry. A similar provision applies with respect to gas infrastructure.

Authorised officers are granted further powers under the Acts, including power to stop and inspect vehicles, to require infrastructure, installations or equipment to be tested for safety, to require persons to identify themselves and to require persons to attend for interview and answer questions. These powers, and existing powers, may only be exercised as reasonably required for the administration or enforcement of the Acts. The further powers have been identified as necessary, as electricians and gas fitters have been suspected of hiding evidence of offences against the Acts in their vans, and authorised officers have found unidentified persons working on infrastructure, but have not had power to ask them to identify themselves or to present evidence of their authorisation to perform such work. This will contribute to the safety and security of electricity and gas infrastructure and installations.

Authorised officers will also be granted power to issue enforcement notices for the purpose of securing compliance with the Acts. These notices enable authorised officers to require persons to take specified action, comply with standards, undertake specified tests or monitoring, provide reports or stop faulty work from proceeding.

The Bill provides for an increased expiation fee of $1,000 for the offence of reconnecting the electricity or gas supply, or a cathodic protection system, without the written approval of an authorised officer after the supply has been disconnected by an authorised officer or the Technical Regulator for safety reasons. This addresses the serious risks associated with unauthorised reconnections, including those that follow police drug raids on properties.

The Bill aligns the maximum penalty for maintaining an electrical or gas installation with that for performing work that might make the installation unsafe, and sets different maximum penalties for bodies corporate and natural persons. At present the maximum penalty for maintaining a dangerous electrical or gas installation or infrastructure is $250,000 while that for performing unsafe work that could have the effect of making an installation unsafe is $10,000 for electrical and $5,000 for gas installations. A consistent maximum penalty of $50,000 for bodies corporate and $10,000 for natural persons, is set for both offences. The present maximum penalty of $250,000, is retained, but applied only to infrastructure owned by bodies corporate that act intentionally or recklessly.

The Bill streamlines accident reporting and enables more thorough investigation of accidents. It clarifies the circumstances in which accidents must be reported to the Technical Regulator. It also enables the Technical Regulator to restrict access to infrastructure, installation or equipment involved in an accident during investigations, and prohibits interference with such infrastructure, installations or equipment except with the approval of the Technical Regulator or where this is necessary to maintain the integrity of the network or avert an immediate and serious danger, or also, in the case of an accident involving gas, to maintain the gas supply.

The Bill modifies the privilege against self-incrimination for natural persons by requiring them to provide information relating to safety. Such information will, however, not be admissible in evidence in proceedings against the person. This will, for example, require electricians who have performed faulty work in installing downlights, which increases the risk of fire, to disclose where else they have installed downlights. This is consistent with other legislation recently passed by Parliament.

The Bill enables better protection of electricity and gas infrastructure and installations. It increases penalties for persons who, without proper authority, enter enclosures where electrical or gas infrastructure is situated. This will apply in particular to persons who steal copper wire from electrical substations, as such theft can lead to major disruptions of the electricity supply. The Bill also prohibits the burning of materials in proximity to electricity and gas infrastructure without the written authorisation of the owner or operator.

The Bill streamlines administrative processes by transferring responsibility for approving safety, reliability, maintenance and technical management plans (SRMTMPs) under the Acts and the electricity switching manual, from the Essential Services Commission of South Australia (ESCOSA) to the Technical Regulator. This transfer is appropriate as the Technical Regulator has the technical expertise required to assess SRMTMPs and switching manuals, while ESCOSA's expertise is in economic regulation. At present ESCOSA approves SRMTMPs on the recommendation of the Technical Regulator. The Technical Regulator may require a person exempted from the requirement to hold a licence under the Acts to prepare and periodically revise a SRMTMP. The Bill also clarifies that a SRMTMP must be approved prior to the operation of the relevant transmission or distribution system.

The Bill establishes a revised regime for assurances and enforcement orders, similar to that in the Fair Trading Act 1987, to enable more effective and flexible enforcement of the Acts. Under the regime ESCOSA or the Technical Regulator may accept an assurance given by a person regarding matters in relation to which they have a power or function under the Acts. Once an assurance has been accepted, ESCOSA or the Technical Regulator must not proceed against the person in respect of the conduct specified in the assurance, unless the person fails to comply with the assurance. In the event of proceedings for a breach of the assurance, the District Court, if satisfied, on the balance of probabilities, that the person has failed to comply with the assurance may make any or all of a range of orders, including prohibition of specified conduct, compensating persons who have suffered loss or other orders that it considers appropriate.

At present a direction to rectify defective electrical or gas installations or equipment may only be given to the person in charge of the installation, or the occupier of the place in which the installation is situated. The Bill enables the Technical Regulator or an authorised officer to give such a direction directly to the electrician or gas fitter who performed the work if the work was carried out within the last 2 years, and the person in charge of the installation agrees.

The Bill enables prosecutions for non-compliant work on electrical or gas installations to be brought within 3 years (in place of the current 2 years) after the date on which the offence is alleged to have been committed. This is required because non-compliant work is often not identified within 2 years.

Provisions concerning bodies corporate that have become standard in recent legislation have been incorporated into the Bill. One specifies the internal reporting procedures that a body corporate will need to prove if it seeks to establish the general defence available under the Acts by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of the Act. Another is that the conduct and state of mind of persons such as employees acting for bodies corporate within the scope of their usual or ostensible authority, will be imputed to the body corporate.

The Bill will assist the Minister in making more informed decisions on directions to be issued during periods of gas rationing by enabling the Minister to require information to be provided (usually by gas entities and large users) at specified times, for example daily, rather than, as at present, only each time in response to a specific notice.

The Bill clarifies that metering providers are authorised to temporarily disconnect the electricity supply while installing or replacing a meter, and reconnect the supply after the meter has been installed or replaced.

The Bill clarifies that if the Technical Regulator considers that urgent action to issue a public warning statement about unsafe electrical or gas equipment or installation practices is required, the Technical Regulator is not required to conduct a hearing or invite submissions. As a result of this, urgent public warnings which might, for example, be based on information received from regulators in other States, will not be delayed by hearings and the evaluation of submissions. The Bill also applies the existing immunity of the Technical Regulator and the Crown to outside the State to the full extent of the extra-territorial legislative capacity of the Parliament.

Some changes based on provisions of the Water Industry Act 2012 have been incorporated in the Bill. The maximum penalty for breach of a regulation is increased to $10,000, and authorised officers or electricity or gas officers authorised in writing by the Technical Regulator are enabled to give expiation notices for alleged offences against the Acts.

The Bill enables documents required or authorised to be given to a person to be transmitted by email, thereby modernising the day to day administration of the Acts.

The Department of State Development has consulted with the electricity and gas industries and relevant Government Departments and agencies Those which have commented on the proposals have indicated their support.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Electricity Act 1996

4—Amendment of section 3—Objects

This amendment is consequential on the insertion of proposed section 61B relating to design of electrical installations.

5—Amendment of section 4—Interpretation

Definitions are inserted for the purposes of the measure.

6—Amendment of section 10—Technical Regulator's power to require information

The Technical Regulator's power to require information is amended.

7—Amendment of section 22—Licences authorising generation of electricity

1 amendment relates to the transfer of regulatory functions relating to the internal switching manual from the Commission to the Technical Regulator. The other amendments relate to the approval of safety, reliability, maintenance and technical management plans.

8—Amendment of section 23—Licences authorising operation of transmission or distribution network

1 amendment relates to the transfer of regulatory functions relating to the internal switching manual from the Commission to the Technical Regulator. The other amendments relate to the approval of safety, reliability, maintenance and technical management plans.

9—Amendment of section 24A—Licences authorising system control

This amendment relates to the approval of safety, reliability, maintenance and technical management plans.

10—Insertion of Part 4 Division 1A

This amendment inserts new Division 1A into Part 4:

Division 1A—General investigative powers of electricity officers

44A—General investigative powers of electricity officers

Electricity officers are authorised to take photographs, films or audio, video or other recordings as reasonably required in connection with the exercise of their powers under Part 4.

11—Amendment of section 48—Entry for purposes related to infrastructure

The power of electricity officers to enter land for inspection purposes or under statutory easement rights is amended to provide for different notice requirements for land in the bushfire risk area and other land.

12—Amendment of heading to Part 5 Division 1

This amendment is consequential on the amendments to Part 5.

13—Insertion of section 55AA

This amendment inserts new section 55AA:

55AA—Powers of electricity entity in relation to vegetation clearance

An electricity entity with a duty under Part 5 to keep vegetation clear of powerlines is authorised to clear vegetation within the bushfire risk area in certain circumstances.

14—Amendment of section 57—Power to enter for vegetation clearance purposes

This amendment allows an occupier to consent to a reduced notice period for entry to land.

15—Amendment of section 59—Requirements relating to electrical installation connection and meter installation

The penalty provision in section 59(1d) is amended.

The definition of the work of installing or replacing a meter is amended to include the temporary disconnection of the electricity supply while the work is carried out.

16—Amendment of section 60—Responsibility of owner or operator of infrastructure or installation

This amendment provides for a hierarchy of penalties for owners and operators of electricity infrastructure and electrical installations.

17—Insertion of section 60B

This amendment inserts new section 60B:

60B—Safety, reliability, maintenance and technical management plans

The requirements for certain persons in relation to safety, reliability, maintenance and technical management plans, currently in the Electricity (General) Regulations 2012, are elevated to the Act so that a higher penalty for contravention may be prescribed.

18—Amendment of section 61—Electrical installation work

The first amendment increases the penalty for a contravention of section 61(1). Another amendment increases the period within which a prosecution for an offence against section 61(1) may be brought from 2 years to 3 years.

The other amendments are technical.

19—Insertion of section 61B

This amendment inserts new section 61B:

61B—Design of electrical installations

New section 61B provides that an electrical installation must be designed in accordance with technical and safety requirements under the regulations.

20—Amendment of section 62—Power to require rectification etc. in relation to infrastructure, installations or equipment

This clause makes various amendments relating to the Technical Regulator's power to require rectification in relation to infrastructure, installations or equipment.

21—Amendment of section 62A—Public warning statements

This amendment clarifies the circumstances in which the Technical Regulator is not obliged to conduct a hearing or invite submissions in connection with the exercise of certain powers under the section.

22—Amendment of section 62B—Immunity from liability

New subsection (3) provides that it is the intention of the Parliament that the immunity from liability provided for in section 62B apply within the State and outside the State to the full extent of the extra-territorial legislative capacity of the Parliament.

23—Substitution of section 63

This amendment substitutes section 63:

63—Reporting of accidents

Substituted section 63 involves a range of amendments to existing section 63 in relation to the reporting of accidents.

24—Substitution of section 63A

Existing section 63A, relating to warning notices and assurances, is substituted with 2 new sections, sections 63A and 63B:

63A—Warning notices

The existing provisions of section 63A in relation to warning notices are prescribed in the substituted section. Matters relating to assurances are omitted from the section (as new section 63B deals with assurances).

63B—Assurances

New section 63B provides for the Commission and Technical Regulator to accept assurances (currently, assurances are provided for in existing section 63A of the Act).

25—Redesignation of section 63B

Section 63B is redesignated as section 63BA (this redesignation is for numbering purposes).

26—Insertion of sections 63BB and 63BC

This amendment inserts new sections 63BB and 63BC:

63BB—Offence to act contrary to assurance

New section 63BB makes it an offence to act contrary to an assurance.

63BC—Enforcement orders in relation to assurances

The District Court is authorised to make certain orders if satisfied that a person has acted contrary to, or failed to comply with, an assurance.

27—Insertion of Part 7 Division A3

This amendment inserts new Division A3 into Part 7:

Division A3—Enforcement notices

63D—Enforcement notices

An authorised officer may issue an enforcement notice for the purpose of securing compliance with a requirement imposed by or under the Act. The scheme is equivalent to that for enforcement notices under the Water Industry Act 2012.

28—Amendment of section 68—Power of entry

This amendment provides for authorised officers to exercise their power of entry (currently applicable to 'places') in a vehicle.

29—Substitution of section 69

This amendment substitutes section 69:

69—General investigative powers of authorised officers

Substituted section 69 involves various amendments to the existing provision concerning general investigative powers of authorised officers. In particular, powers in relation to examination and testing of infrastructure, installations or equipment are amended, along with provision relating to seizure of objects that may be evidence of an offence.

30—Amendment of section 70—Disconnection of electricity supply

Section 70(3) is amended to require the written consent of an authorised officer before the reconnection of supply after disconnection under section 70. An expiation fee for a breach of the provision is fixed at $1,000.

31—Amendment of section 71—Power to require disconnection of cathodic protection system

The offence provision in section 71(3) is amended to specify that a person to whom a direction is given under the section must not reconnect or permit the reconnection of supply without the written approval of an authorised officer.

32—Amendment of section 72—Power to make infrastructure, installation or equipment safe

A range of amendments related to the administration of section 72 by the Technical Regulator are made.

33—Amendment of section 73—Power to require information or documents

This amendment is consequential on the insertion of Part 7 Division 3.

34—Insertion of Part 7 Division 3

This amendment inserts new Division 3 into Part 7:

Division 3—Related matters

74—Self-incrimination

The privilege against self-incrimination is relocated (from section 73) to section 74 and the privilege is extended so that a natural person is not required to give information or produce a document pursuant to a requirement under Part 7 if the answer to the question or the contents of the document would tend to incriminate the person of an offence.

The privilege is modified to enable authorised officers to obtain information or documents relating to the administration or enforcement of Part 6 relating to the safety of electricity infrastructure, an electrical installation or electrical equipment (but the information or document given or produced is not admissible in evidence against the person in proceedings for an offence).

35—Amendment of section 75—Review of decisions by Commission or Technical Regulator

The insertion of section 75(1a) is consistent with the review provisions relating to enforcement notices in the Water Industry Act 2012.

36—Substitution of section 76

This amendment substitutes section 76:

76—Appeals

Section 76 is substituted so that the section allows for an appeal to the District Court by a person to whom an enforcement notice has been issued (in addition to the appeals already provided for under section 76).

37—Amendment of section 80—Power of exemption

This amendment is consequential on the transfer of regulatory functions relating to the internal switching manual from the Commission to the Technical Regulator.

38—Amendment of section 84—Unlawful interference with electricity infrastructure or electrical installation

The first amendment increases the penalty for an offence against subsection (2). The other amendment increases the penalty for an offence against subsection (3), includes the word 'substance' in the provision and elevates to the Act (in subsection (4)) an offence provision currently located in the Electricity (General) Regulations 2012.

39—Insertion of section 91B

This amendment inserts new section 91B:

91B—Offences

Authorised officers are empowered to issue expiation notices.

40—Amendment of section 92—General defence

New subsection (2a) makes provision related to the establishment of the defence provided for by the section.

41—Insertion of section 93A

This amendment inserts new section 93A:

93A—Imputing conduct to bodies corporate

New section 93A is necessary in connection with the introduction of a mental element into certain 'aggravated' offence provisions by other amendments in the Bill (see, for example, the amendments to section 60).

42—Amendment of section 97—Service

Service by email is provided for.

43—Amendment of section 98—Regulations

The limit on the maximum penalty for a breach of a regulation is raised to $10,000 (from $5,000).

44—Transitional provisions

This clause provides for transitional provisions for the purposes of the measure.

Part 3—Amendment of Gas Act 1997

45—Amendment of section 3—Objects

This amendment is consequential on the insertion of proposed section 56A relating to design of gas installations.

46—Amendment of section 8—Functions of Technical Regulator

An additional paragraph is included in section 8(1) to allow functions to be conferred on the Technical Regulator by the regulations or by or under the Act or any other Act. An equivalent paragraph exists in the equivalent provision in the Electricity Act 1996.

47—Amendment of section 10—Technical Regulator's power to require information

The Technical Regulator's power to require information is amended.

48—Amendment of section 26—Licences authorising operation of distribution system

This amendment relates to the approval of safety, reliability, maintenance and technical management plans.

49—Amendment of section 37A—Minister's power to require information or documents

The Minister's power to require information or documents is amended.

50—Insertion of Part 4 Division 1A

This amendment inserts new Division 1A into Part 4:

Division 1A—General investigative powers of gas officers

45A—General investigative powers of gas officers

Gas officers are authorised to take photographs, films or audio, video or other recordings as reasonably required in connection with the exercise of their powers under Part 4.

51—Amendment of section 48—Power to enter for purposes related to gas entity's infrastructure

Gas officer's power to enter for purposes related to a gas entity's infrastructure is amended.

52—Amendment of section 55—Responsibility of owner or operator of infrastructure or installation

This amendment provides for a hierarchy of penalties for owners and operators of gas infrastructure and installations.

53—Insertion of section 55A

This amendment inserts new section 55A:

55A—Safety, reliability, maintenance and technical management plans

The requirements for certain persons in relation to safety, reliability, maintenance and technical management plans, currently in the regulations, are elevated to the Act so that a higher penalty for contravention may be prescribed.

54—Amendment of section 56—Certain gas fitting work

The first amendment increases the penalty for a contravention of section 56(1). Another amendment increases the period within which a prosecution for an offence against section 56(1) may be brought from 2 years to 3 years.

The other amendments are technical.

55—Insertion of section 56A

This amendment inserts new section 56A:

56A—Design of gas installations

New section 56A provides that a gas installation must be designed in accordance with technical and safety requirements under the regulations.

56—Amendment of section 57—Power to require rectification etc. in relation to infrastructure or installations

This clause makes various amendments relating to the Technical Regulator's power to require rectification in relation to infrastructure, installations or appliances.

57—Amendment of section 57B—Public warning statements about unsafe gas installations, components, practices etc.

This amendment clarifies the circumstances in which the Technical Regulator is not obliged to conduct a hearing or invite submissions in connection with the exercise of certain powers under the section.

58—Amendment of section 57C—Immunity from liability

New subsection (3) provides that it is the intention of the Parliament that the immunity from liability provided for in section 57B apply within the State and outside the State to the full extent of the extra-territorial legislative capacity of the Parliament.

59—Substitution of section 58

This amendment substitutes section 58:

58—Reporting of accidents

Substituted section 58 involves a range of amendments to existing section 58 in relation to the reporting of accidents.

60—Substitution of section 61A

Existing section 61A, relating to warning notices and assurances, is substituted with 2 new sections, sections 61A and 61AB

61A—Warning notices

The existing provisions of section 61A in relation to warning notices are prescribed in the substituted section. Matters relating to assurances are omitted from the section (as new section 61AB deals with assurances).

61AB—Assurances

New section 61AB provides for the Commission and Technical Regulator to accept assurances (currently, assurances are provided for in existing section 61A of the Act).

61—Insertion of sections 61BA and 61BB

This amendment inserts new sections 61BA and 61BB:

61BA—Offence to act contrary to assurance

New section 61BA makes it an offence to act contrary to an assurance.

61BB—Enforcement orders in relation to assurances

The District Court is authorised to make certain orders if satisfied that a person has acted contrary to, or failed to comply with, an assurance.

62—Insertion of Part 6 Division A3

This amendment inserts new Division A3 into Part 6:

Division A3—Enforcement notices

61D—Enforcement notices

An authorised officer may issue an enforcement notice for the purpose of securing compliance with a requirement imposed by or under the Act. The scheme is equivalent to that for enforcement notices under the Water Industry Act 2012.

63—Amendment of section 66—Power of entry

This amendment provides for authorised officers to exercise their power of entry (currently applicable to 'places') in a vehicle.

64—Substitution of section 67

This amendment substitutes section 67:

67—General investigative powers of authorised officers

Substituted section 67 involves various amendments to the existing provision concerning general investigative powers of authorised officers. In particular, powers in relation to examination and testing of infrastructure, installations or appliances are amended, along with provision relating to seizure of objects that may be evidence of an offence.

65—Amendment of section 68—Disconnection of gas supply

Section 68(3) is amended to require the written consent of an authorised officer before the reconnection of supply after disconnection under section 68. An expiation fee for a breach of the provision is fixed at $1,000.

66—Amendment of section 69—Power to make infrastructure or installation safe

A range of amendments related to the administration of section 69 by the Technical Regulator are made.

67—Amendment of section 70—Power to require information or documents

This amendment is consequential on the insertion of Part 6 Division 3.

68—Insertion of Part 6 Division 3

This amendment inserts new Division 3 into Part 6:

Division 3—Related matters

70A—Self-incrimination

The privilege against self-incrimination is relocated (from section 70) to section 70A and the privilege is extended so that a natural person is not required to give information or produce a document pursuant to a requirement under Part 6 if the answer to the question or the contents of the document would tend to incriminate the person of an offence.

The privilege is modified to enable authorised officers to obtain information or documents relating to the administration or enforcement of Part 5 relating to the safety of gas infrastructure, installations or appliances or for the enforcement of Part 3 Division 5 (but the information or document given or produced is not admissible in evidence against the person in proceedings for an offence).

69—Amendment of section 71—Review of decisions by Commission or Technical Regulator

The insertion of section 71(1a) is consistent with the review provisions relating to enforcement notices in the Water Industry Act 2012.

70—Substitution of section 72

This amendment substitutes section 72:

72—Appeals

Section 72 is substituted so that the section allows for an appeal to the District Court by a person to whom an enforcement notice has been issued (in addition to the appeals already provided for under section 72).

71—Amendment of section 81—Unlawful interference with distribution system or gas installation

New subsections (2), (3) and (4) will result in consistency with the equivalent provision relating to electricity infrastructure and electrical installations (as amended by the Bill).

72—Insertion of section 87A

This amendment inserts new section 87A:

87A—Offences

Authorised officers are empowered to issue expiation notices.

73—Amendment of section 88—General defence

New subsection (2a) makes provision related to the establishment of the defence provided for by the section.

74—Amendment of section 89—Offences by bodies corporate

This amendment removes the reference to section 34D (which was repealed by the Statutes Amendment (National Energy Retail Law Implementation) Act 2012).

75—Insertion of section 89A

This amendment inserts new section 89A:

89A—Imputing conduct to bodies corporate

New section 89A is necessary in connection with the introduction of a mental element into certain 'aggravated' offence provisions by other amendments in the Bill (see, for example, the amendments to section 55).

76—Amendment of section 94—Service

Service by email is provided for.

77—Amendment of section 95—Regulations

The limit on the maximum penalty for a breach of a regulation is raised to $10,000 (from $5,000).

78—Transitional provisions

This clause provides for transitional provisions for the purposes of the measure.

Debate adjourned on motion of Dr McFetridge.