Division 14169 Licence condition for retail suppliers
(1) It is a condition of a retail supplier’s licence that the retail supplier comply with this Part, the regulations under this Part and the scheme rules.(2) This section does not limit the power of the Minister to impose conditions on the licence of a retail supplier under this Act, including conditions (not inconsistent with this Part) relating to greenhouse gas emissions, energy efficiency, the provision of information to the Scheme Regulator or Scheme Administrator about matters related to this Part and other matters related to the scheme.(3) A monetary penalty cannot be imposed on a retail supplier under clause 8 or 8A of Schedule 2, and no other action can be taken against a retail supplier under Schedule 2, in respect of an energy savings shortfall or carried forward shortfall if an energy savings shortfall penalty is payable in respect of the relevant shortfall under this Part.Note. Under clauses 8 and 8A of Schedule 2, the Minister and the Tribunal may impose monetary penalties for breaches of the requirements of this Act and the regulations, as well as breaches of licence conditions. Other penalties may also be imposed under Schedule 2.
170 Application of Part to persons who cease to be scheme participants
(1) If a person ceases to be a scheme participant, this Part and the regulations under this Part continue to apply to the person in respect of the period during which the person was a scheme participant and, for that purpose, a reference to a scheme participant includes a reference to a former scheme participant.(2) In particular, the former scheme participant continues to be required to lodge an energy savings statement in respect of the year during which the person ceased to be a scheme participant, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator or Scheme Administrator continue to apply in respect of the person as if the person were a scheme participant.(3) The Minister may, by notice in writing to the former scheme participant, bring forward the date on which the person would otherwise be required to lodge an energy savings statement with the Scheme Regulator in respect of the year during which the person ceased to be a scheme participant.(4) The notice may specify a date (a submission date) on which the former scheme participant is required to lodge the energy savings statement with the Scheme Regulator, being a date that is earlier than the date on which the person would otherwise be required to lodge the statement.(5) The submission date must not be earlier than 28 days after the person ceased to be a scheme participant.(6) If the Minister brings forward the date for submission of an energy savings statement under this section, the provisions of this Act regarding the lodgment of an energy savings statement and the payment of an energy savings shortfall penalty apply as if a reference to the date of 1 March were a reference to the submission date.
171 Appeals to Administrative Decisions Tribunal
(1) A scheme participant or former scheme participant who is aggrieved by any of the following decisions of the Scheme Regulator may apply to the Administrative Decisions Tribunal for a review of the decision:(a) a determination as to the individual energy savings target for the scheme participant or former scheme participant for a year,(b) a decision to refuse to accept the surrender of an energy savings certificate for the purposes of meeting the scheme participant’s or former scheme participant’s individual energy savings target or remedying a carried forward shortfall,(c) an assessment of the amount of any energy savings shortfall penalty payable by the scheme participant or former scheme participant for a year,(d) any other decision of the Scheme Regulator of a kind prescribed by the regulations.(2) A person who is or was accredited, or who has applied to be accredited, under this Part as a certificate provider and who is aggrieved by any of the following decisions of the Scheme Administrator may apply to the Administrative Decisions Tribunal for a review of the decision:(a) a decision to refuse accreditation of the person as a certificate provider,(b) a decision to cancel or suspend the accreditation of the person as a certificate provider,(c) a decision to refuse registration of the creation of an energy savings certificate,(d) any other decision of the Scheme Administrator of a kind prescribed by the regulations.(3) A person who has applied for the registration of a transfer of an energy savings certificate under this Part and who is aggrieved by a decision of the Scheme Administrator to refuse registration of the transfer may apply to the Administrative Decisions Tribunal for a review of the decision.(4) A person who is the subject of an order by the Scheme Administrator under this Part requiring the person to surrender energy savings certificates to the Scheme Administrator and who is aggrieved by a decision of the Scheme Administrator to impose that order may apply to the Administrative Decisions Tribunal for a review of the decision.
A certificate of the Scheme Regulator certifying that, on a date or during a period specified in the certificate:(a) a person was or was not a scheme participant, or(b) the individual energy savings target for a scheme participant was the amount specified in the certificate, or(c) the energy savings shortfall for a scheme participant for a year, or the carried forward shortfall for a year, was the amount specified in the certificate, or(d) the energy savings shortfall penalty payable by a scheme participant was the amount specified in the certificate,is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated in the certificate.
A matter or thing done or omitted to be done by the Scheme Regulator, the Scheme Administrator, or a member or officer of, or a person acting under the direction of, the Scheme Regulator or Scheme Administrator does not, if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act, subject the member, officer or person so acting personally to any action, liability, claim or demand.
174 Annual report by Scheme Regulator
(1) As soon as practicable after 1 March (but on or before 31 July) in each year, the Scheme Regulator must prepare and forward to the Minister a report on the extent to which scheme participants have complied, or failed to comply, with individual energy savings targets during the previous year.(2) Without limiting the above, the report is to contain the following:(a) the name of each scheme participant and the performance of the participant in relation to the participant’s individual energy savings target in the year to which the report relates,(b) the total number of energy savings certificates surrendered in the year to which the report relates,(c) the total number of energy savings certificates created in the year to which the report relates,(d) an estimate, prepared by the Scheme Administrator, of the actual energy savings that have been realised under the scheme in the year to which the report relates (having regard to the number of energy savings certificates that have been created),(e) an estimate, prepared by the Scheme Administrator, of the actual energy savings that will be realised under the scheme in the next 10 years (having regard to the number of energy savings certificates that have been created).(3) The report must also set out the functions delegated by the Scheme Regulator or Scheme Administrator and the person or body to whom they were delegated.(4) The Minister must lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.(5) For the purposes of enabling the Scheme Regulator to compile a report under this section, the Scheme Administrator must furnish the Scheme Regulator with:(a) the estimates the Scheme Administrator is required to prepare for inclusion in the report, and(b) such other information as the Scheme Regulator reasonably requires to complete the report.(6) The first report under this section is to be made in the year 2010.
175 Five-yearly reviews of scheme
(1) The Minister is to review the operation of the scheme to determine whether the policy objectives of the scheme remain valid and whether the terms of this Part remain appropriate for securing those objectives.(2) The first review is to be undertaken as soon as possible after the end of the period of 5 years from 1 July 2009.(3) After that, a review is to be undertaken at the end of each subsequent period of 5 years.(4) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period to which the review relates.
176 Waiver or suspension of obligations in emergencies
(1) The Minister may, by order published in the Gazette, waive, or suspend for a specified period, the obligation of a scheme participant to meet its individual energy savings target or remedy a carried forward shortfall, but only if it appears to the Minister that a scheme participant is or will be unable to meet the individual energy savings target or remedy the carried forward shortfall because of:(a) a systems or other failure of the register of energy savings certificates kept under this Part, or(b) any other emergency affecting the integrity of the register or the energy savings scheme.(2) An order may:(a) be made subject to conditions, and(b) apply to all scheme participants or to a specified class of participants, and(c) specify the effect of the waiver or suspension on any other rights conferred or obligations imposed under this Part.(3) An order takes effect on the day on which it is published in the Gazette or, if a later day is specified in the order, on that day.
177 Termination of scheme on establishment of national scheme
(1) The Governor may, by proclamation published on the NSW legislation website, terminate the operation of any or all of the provisions of this Part.(2) A proclamation may be made only if the Minister has certified to the Governor that the Minister is satisfied that New South Wales is, or will be, a participant in a scheme that:(a) has been or will be established either nationally or in this State and at least one or more other States or Territories, and(b) is designed to achieve outcomes that include a reduction in the consumption of electricity and the encouragement of participation in activities that result in energy savings.(3) The termination of the operation of the provisions concerned takes effect on the day (not being a day earlier than the day on which the proclamation is published on the NSW legislation website) specified in the proclamation.(4) The day specified in the proclamation must not be a day that is earlier than the day on which New South Wales becomes, or will become, a participant in the scheme concerned.(5) Regulations may be made for or with respect to the effect of the termination of any provisions on rights conferred or obligations imposed under this Part.(6) Without limiting the above, the regulations may:(a) prohibit scheme participants from carrying forward an energy savings shortfall, or part of an energy savings shortfall, for a year to the following year as a consequence of the termination of the operation of all or any of the provisions of this Part in respect of that following year, and(b) specify any other conditions that must be complied with respect to termination of all or any of the provisions of this Part.
178 Automatic termination of scheme at end of year 2020
(1) The scheme terminates at the end of the year 2020.(2) This Part continues to have effect with respect to matters arising (including obligations incurred) before the termination of the scheme.(3) In particular, persons who are scheme participants in the year 2020 continue to be required to lodge an energy savings statement in respect of that year in accordance with this Part, and the requirements of this Part with respect to the conduct of audits and the provision of information, documents and evidence to the Scheme Regulator and Scheme Administrator continue to apply, even though the scheme is terminated.(4) A reference in this Part to a scheme participant includes, after the scheme is terminated, a reference to a former scheme participant.