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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-07 Daily Xml
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ELECTRICAL PRODUCTS (ENERGY PRODUCTS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (16:03): 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 I am introducing today is a key step in implementing South Australia's commitment to improving residential and business energy efficiency and reducing greenhouse gas emissions.

The purpose of this Bill is to amend and rename the Electrical Products Act 2000 and make consequential amendments to the Gas Act 1997 to enable Minimum Energy Performance Standards (MEPS) to be applied to gas and other energy products, and thereby reduce greenhouse gas emissions.

The Electrical Products Act 2000, which is administered by the Technical Regulator, provides for certain electrical products to display labelling to indicate their compliance with applicable safety and performance standards and energy efficiency (the 'star rating system'). It also provides for registration of products to indicate their compliance with MEPS before they may be sold, as well as the power to prohibit the sale or use of unsafe electrical products.

The MEPS and labelling program is a national program to implement measures to address energy efficiency requirements in the residential and commercial/industrial sectors. MEPS is an energy performance measure that a given product type must meet while an energy label is for the benefit of consumers to compare the energy efficiency/performance of appliances prior to purchase. Any MEPS and labelling is subject to public consultation, requiring public meetings, publishing of technical reports, fact sheets and culminating in a publicly released Regulatory Impact Statement.

The products to which this Act applies, and the standards that are to apply to particular products, are established once these rigorous regulatory assessments and consultations are completed, and then implemented through proclamation by the Governor.

The Gas Act 1997 enables the Technical Regulator to declare particular classes of gas appliances, thereby requiring them to be safety approved and labelled by a declared body or the Technical Regulator before sale, but does not specifically provide for MEPS or energy rating for gas appliances.

The impetus for the Bill came from the decision of the Ministerial Council on Energy (MCE) to bring the existing industry sponsored gas labelling scheme within a consistent regulatory framework. This required the development of MEPS and energy efficiency labelling for gas products similar to that for electrical products. The first gas appliances to which this will apply are gas water heaters. Other gas appliances are likely to follow after MEPS and labelling requirements have been developed for them.

The Bill extends the scope of the Electrical Products Act 2000 to cover gas appliances (natural gas and LPG) and also, in the future, further products powered by other energy sources (such as solar powered products or products powered by more than one energy source), and renames it the Energy Products (Safety and Efficiency) Act. This creates a single Act able to cover all appliances.

The requirements relating to energy performance and energy efficiency labelling are addressed in a new and separate section to those relating to safety.

The Bill extends the Governor's power to make proclamations from electrical products to energy products and also to declare a body to be a certification body which is able to certify energy products. The range of standards that may be proclaimed has also been expanded to include energy efficiency labelling standards and information standards.

The Bill enables the Technical Regulator to issue public warning statements about unsafe energy products and uses of such products or installation practices that, in the opinion of the Technical Regulator, are likely to pose a danger to persons or property.

The Bill extends the existing administrative framework of the Electrical Products Act 2000 to gas and other products, but also makes some significant improvements.

The 'authorised persons' under the Electrical Products Act 2000 are renamed as 'authorised officers.' This is the term used in numerous other Acts including the Electricity Act 1996 and Gas Act 1997. The information gathering powers of authorised officers have been expanded to bring them more into line with the powers of authorised officers under other Acts. Such new powers include power to stop and inspect vehicles and to require persons reasonably expected to have committed a contravention of the Act to identify themselves. This will discourage the loading of unsafe energy products onto vehicles to prevent authorised officers from inspecting them. Another power is to seize energy products pursuant to a seizure order and have them tested, where the authorised officer reasonably suspects that they may constitute evidence of a contravention of the Act. This expands the more limited power in the existing power in the Electrical Products Act 2000 to seize stocks of electrical products that are suspected to have been prohibited from sale, and also formalises a clear procedure for their disposal or return.

The Bill modifies the privilege against self incrimination. The existing privilege against self incrimination in section 11 of the Act has been used by traders to avoid answering questions and providing information, thereby making it difficult to enforce the requirements of the Act and regulations. In view of this, it is proposed to modify the privilege with respect to safety issues, so that it is retained for natural persons including directors of bodies corporate, but removed for bodies corporate. It is proposed that incriminating information must be provided, but cannot be used in legal proceedings (except with respect to an offence relating to the making of a false or misleading statement or declaration) against a natural person. The proposal is based on section 70(5) of the Gas Act 1997, which applies to gas rationing.

The Bill provides that 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. This brings the Act into line with the Gas Act 1997 and the Electricity Act 1996. The aim of this change is to maximise the ability to elicit critical information by ensuring that commercially sensitive or private confidential information that has been provided to the Technical Regulator will be protected from disclosure to third parties such as competitors.

The Bill contains 'grace period' and 'grandfathering' provisions that enable traders, within a certain time, to clear stocks of energy products manufactured in or imported into the State before compliance with requirements or changes in requirements become applicable to them. The existing 6 month grace period in the Electrical Products Act 2000 is retained for applicable safety and performance standards, certification and information standards. A 12 months 'grandfathering' arrangement is established for energy performance standards and energy efficiency labelling. These aim to addresses industry concerns about the risk of retailers being left with stocks of unsold 'old' stock.

The Bill also exempts the Crown from liability for an act of the Technical Regulator in good faith in the exercise of powers with respect to the prohibition of sale or use of unsafe energy products and with respect to the making of public warning statements.

The Bill makes consequential amendments to the Gas Act 1997, the most notable of which is to repeal provisions dealing with the approval and labelling of gas appliances, as this will be dealt with in the Energy Products (Safety and Efficiency) Act 2000. The installation of all gas appliances, and the commissioning or modifying of industrial and commercial appliances will continue to be regulated under the Gas Act 1997.

The Department for Transport, Energy and Infrastructure (DTEI) has consulted with the gas industry, including manufacturers and retailers of gas appliances and the industry association. The participants indicated general support for the proposals and their concerns have been addressed in this new legislation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

Clauses 1, 2 and 3 are formal.

Part 2—Amendment of Electrical Products Act 2000

4—Amendment of long title

Clause 4 is consequential on the proposed inclusion of gas and other energy products in the principal Act.

5—Amendment of section 1—Short title

Clause 5 proposes to amend the short title of the principal Act, resulting in the Act being known as the Energy Products (Safety and Efficiency) Act 2000 rather than the Electrical Products Act 2000. This is to reflect the proposed inclusion of gas and other energy products in the principal Act.

6—Amendment of section 3—Interpretation

Clause 6 proposes to insert various definitions into the principal Act deemed necessary for the measure. In particular, it includes a definition of energy product. This is defined as—

an electrical appliance or a component of an electrical appliance; or

a gas appliance or a component of a gas appliance; or

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

an appliance powered by any combination of electricity, gas or other energy source, or a component of such an appliance; or

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

an instrument for measuring a characteristic of electricity, gas or other energy source,

but does not include an appliance, component, device or instrument excluded by regulation.

7—Amendment of heading to Part 2

Clause 7 is consequential on the proposed change to the principal Act from being an Act about electrical products to an Act about energy products.

8—Amendment of section 5—Proclamation for purposes of Part

Clause 8 proposes to amend section 5 of the Act to provide that the Governor can make proclamations with respect to energy products rather than only electrical products. It also provides for the Governor to declare, by proclamation, a body to be a certification body and includes energy efficiency labelling standards and information standards as standards to be declared by proclamation.

9—Amendment of section 6—Offences relating to safety and performance, certification and information

Section 6 of the principal Act makes it an offence for a trader to sell declared products unless those products are labelled or registered to indicate compliance with safety and performance standards or energy performance standards, or labelled to indicate energy efficiency. Clause 9 proposes removing the subsections dealing with energy efficiency from section 6 in order that it be dealt with in proposed new section 6A. It also creates 2 new offences. Firstly, a trader must not sell an energy product of a particular class 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. Secondly, a trader must not sell a particular energy product unless the trader provides information in respect of the product to the purchaser in accordance with applicable information standards. For both offences the proposed maximum penalty is $5,000 with an expiation fee of $315.

10—Insertion of section 6A

Clause 10 proposes to insert a new section 6A into the principal Act to deal with offences relating to energy performance. It is proposed that the offences with respect to energy performance that are currently in section 6 of the principal Act be moved to this new section.

11—Amendment of section 7—Offences relating to labels

Clause 11 is consequential on the proposed change to the principal Act from being an Act about electrical products to an Act about energy products.

12—Amendment of section 8—Prohibition of sale or use of unsafe energy products

Section 8 of the principal Act provides, amongst other things, that if the Technical Regulator is of the opinion that an energy product of a particular class is unsafe, the Technical Regulator may prohibit the sale or use of energy products of that class. The proposed amendment provides that 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. Section 8 also provides that a prohibition or requirement under the section may be imposed by notice in writing to a particular person or by public notice. The proposed amendment provides that 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

Clause 13 is consequential on the proposed change to the principal Act from being an Act about electrical products to an Act about energy products.

14—Insertion of section 9A

Clause 14 proposes to insert a new section 9A into the principal Act to deal with public warning statements about unsafe energy products. It provides that the Technical Regulator may make a public statement identifying and giving warnings or information about any of the following:

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;

uses of energy products, or installation practices, that, in the opinion of the Technical Regulator, pose a danger to persons or property;

any other dangers to persons or property associated with energy products.

Under this proposed clause 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 the clause and a person incurs no liability for publishing in good faith a statement made by the Technical Regulator under the clause or a fair report or summary of such a statement.

15—Substitution of Part 3

Clause 15 proposes to substitute Part 3 of the principal Act, constituting of sections 10 to 13 inclusive. Both section 10 of the principal Act, and the proposed new clause 10 provide for the appointment of authorised officers. Under section 10, the Technical Regulator appoints a person to be an authorised person for the purposes of the Act. The proposed new clause 10 provides that the Minister appoints a person as an authorised officer.

Both section 11 of the principal Act and the proposed new clause 11 deal with the general powers of authorised officers. The proposed new clause 11 gives authorised officers new powers to—

enter and inspect;

give directions with respect to the stopping or movement of a vehicle to which the clause applies;

take photographs, films or audio, video or other recordings;

examine any energy product made available to the authorised officer or found in the course of an inspection;

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;

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 the Act;

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;

give a direction required in connection with the exercise of a power.

The proposed new clause 12 contains provisions relating to seizure. The provision provides that 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 the section or the seizure order discharged is guilty of an offence. There is a maximum penalty of $10,000.

The proposed new clause 13 provides for the recovery of costs. It provides that if an energy product tested under the Act does not conform with an applicable safety and performance standard or an applicable energy performance standard, or does not conform with the information as to its energy efficiency contained in a label affixed to the energy product in accordance with the Act, the Minister may 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 and in having it tested.

Section 13 of the principal Act contains an offence for the hindering or obstructing of an authorised person. The proposed new clause 13A also makes this an offence and adds the extra offences of—

refusing or failing to comply with a requirement or direction of an authorised officer under the Act;

refusing or failing to answer a question to the best of the person's knowledge, information and belief when required to do so by an authorised officer under the Act;

falsely representing, by words or conduct, that he or she is an authorised officer.

A maximum penalty of $10,000 is proposed.

16—Amendment of section 14—Power of exemption

Section 14 of the principal Act provides that the Technical Regulator may exempt a person from the Act, or specified provisions of the Act. Clause 16 proposes to provide that such an exemption may be varied or revoked by the Technical Regulator.

17—Amendment of section 20—Evidence

Clause 17 is consequential on the proposed change in the principal Act from a person being appointed as an authorised person to a person being appointed as an authorised officer.

18—Amendment of section 22—Delegation

Section 22 of the principal Act provides for the Technical Regulator to delegate his or her powers under the Act. Clause 18 proposes a new subclause to allow the Minister to delegate his or her powers under the Act to the Technical Regulator or any other person.

19—Amendment of section 23—Confidential information

Clause 19 proposes a new subclause to section 23 to provide that 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

Clause 20 is consequential on the proposed change to the principal Act from being an Act about electrical products to an Act about energy products.

21—Repeal of Schedule

Clause 21 is a drafting amendment.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Gas Act 1997

1—Amendment of long title

Clause 1 is consequential on the proposal that gas appliances be dealt with in the Electrical Products Act 2000 (as amended by this measure) rather than in the Gas Act 1997.

2—Amendment of section 8—Functions of Technical Regulator

Clause 2 is consequential on the proposal that gas appliances be dealt with in the Electrical Products Act 2000 (as amended by this measure) rather than in the Gas Act 1997.

3—Repeal of heading to Part 5 Division 1

Clause 3 is consequential on the proposal that gas appliances be dealt with in the Electrical Products Act 2000 (as amended by this measure) rather than in the Gas Act 1997.

4—Repeal of Part 5 Division 2

Clause 4 proposes to remove gas appliances (other than fixed gas appliances) from the Gas Act 1997.

5—Amendment of section 67—General investigative powers of authorised officers

Clause 5 is consequential on the proposal that gas appliances be dealt with in the Electrical Products Act 2000 (as amended by this measure) rather than in the Gas Act 1997.

6—Amendment of section 95—Regulations

Clause 6 is consequential on the proposal that gas appliances be dealt with in the Electrical Products Act 2000 (as amended by this measure) rather than in the Gas Act 1997.

Part 2—Transitional provisions

7—Authorised officers

The proposed transitional provision provides that 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 measure) as an authorised officer.

Debate adjourned on motion of Hon. D.W. Ridgway.

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