The Order relies on two constitutional building blocks: (1) prescription by subordinate instrument of designated entities and (2) statutory plan preparation and Ministerial approval processes set out in the primary Act. The Order uses a simple regulatory mechanism: identification plus deadline. Key legal concepts in the instrument are:

• Designated energy user. The Order prescribes "each body listed in Schedule 1 that uses energy" as a designated energy user for the purposes of s 34B of the Act (cl 4). The Order does not itself define the term beyond importing the Act. The statutory meaning, and any consequences that follow from being a "designated energy user", are located in the Act at s 34B and associated provisions (the Order repeatedly cross-refers to those sections: cl 4, cl 5).
• Draft energy savings action plan. Clause 5 requires designated energy users to prepare and submit "draft energy savings action plans in accordance with section 34R of the Act". The Order therefore delegates specification of what a plan must contain, how it is to be prepared and the procedural steps for approval to s 34R. The Order does not set substantive content, targets, baselines or performance metrics itself.
• Ministerial approval. Clause 5 requires submission of draft plans "to the Minister for approval". The Order thus triggers a decision point within the executive branch: the Minister must receive and approve draft plans prepared pursuant to the Act. The Order does not specify criteria the Minister must apply to approve or refuse; those are in the Act.
• Temporal staging. The Order segments designated users into Parts A, B and C within Schedule 1 and a separate Schedule 2 for local councils, assigning staggered submission deadlines (cl 5(a)-(d)). The staging imposes different short-term administrative burdens depending on which Part an entity is listed.

Conceptually the Order is an administrative instrument that operationalises an Act-level scheme by (a) specifying who falls into the scheme and (b) determining when those entities must begin complying with the Act’s plan-related obligations. It is not, itself, a statement of policy objectives, technical methodology or enforcement mechanics; those reside in the referenced statutory provisions of the Act. Practically, the Order converts a general statutory power to designate into a concrete list of companies and councils with fixed compliance timetables.

The Order directly affects the bodies listed in Schedule 1 and the local councils listed in Schedule 2, and indirectly affects their officers, contractors, suppliers and stakeholders who will participate in preparing and implementing energy savings action plans. Clause 4 expressly prescribes "each body listed in Schedule 1 that uses energy" as a designated energy user for the purposes of s 34B of the Act. Clause 5 then requires each of those designated energy users to prepare and submit draft energy savings action plans to the Minister in accordance with the Act by specified dates.

Schedule 1 is extensive and lists private corporations and corporate groups from heavy industry, manufacturing, utilities, transport and large commercial property owners. Examples from the Schedule include, but are not limited to: aluminium smelters and rolling mills, steelworks, coal mines, refineries, paper mills, food processors and large printing operations (see Sch 1 Parts A, B and C). Many corporate entries include specific site addresses. Schedule 2 lists metropolitan and regional local councils, and cl 5(c) expressly applies to "each local council that is a designated energy user pursuant to section 34B(a) of the Act and listed in Schedule 2." The split between business Parts A, B and C in Sch 1 and the separate Schedule 2 for councils determines submission timing.

Who pays. The immediate financial burden of compliance falls on the designated energy users themselves. They must prepare draft plans (and, by implication, the internal technical work and administrative resources necessary to do so) and submit them to the Minister by the deadlines in cl 5. If the Act’s approval process requires implementation of measures, the costs of implementing energy efficiency measures will also fall on those bodies unless the Act provides for cost-sharing, assistance or exemptions; the Order does not allocate implementation funding.

Who decides. The Minister receives draft plans for approval (cl 5). The Order does not specify approval criteria or subsequent oversight arrangements; those are points of decision for the Minister under the Act’s provisions referenced (s 34R and s 34Q(2)). The Minister’s decision-making will therefore determine whether a draft plan is acceptable and whether further action is required.

What behaviour changes. Designation and the plan submission obligation will cause affected entities to undertake energy accounting, audits, technical and managerial planning for energy savings, and engagement with the Ministerial approval process. Those activities change internal resource allocation, procurement priorities and capital planning horizons for the named companies and councils. The Order’s segmented deadlines create incentives for staged mobilisation of compliance efforts, with Part A bodies required to act first.

Indirect effects. Contractors who provide energy audits, engineers who design retrofit works, consultants preparing submissions and vendors of energy-saving equipment will see demand from the listed entities. Tenants, customers and supply-chain partners of the designated bodies may experience negotiated operational changes if actions required by approved plans affect production or facilities. The Order itself does not reach third parties; it creates obligations for the listed bodies only.

The Order imposes two mandatory duties on those it designates and identifies institutional actors and timelines:

Duties imposed by the Order

• Designation. Under cl 4, each body listed in Schedule 1 that uses energy is prescribed as a designated energy user for the purposes of s 34B of the Act. That is an identifying duty: it places the body within the statutory category governed by the Act.
• Draft plan preparation and submission. Clause 5 requires each designated energy user listed in the relevant parts of the schedules to prepare a draft energy savings action plan "in accordance with section 34R of the Act" and to submit it to the Minister for approval by the specific date assigned to the Part in which they appear (cl 5(a)-(d)). For local councils listed in Schedule 2 that are designated pursuant to s 34B(a), the requirement and timing are similar (cl 5(c)).

Rights and decision points established by the Order

• Ministerial approval. Clause 5 states the plans are to be "submitted to the Minister for approval." That wording indicates the Minister has a decision-making role under the Act in respect of the draft plans. The Order does not state whether a designated energy user has a right to resubmit or to have reasons provided for refusal; those procedural rights and remedies are located in the Act and in general administrative law, not in the Order itself.
• Reliance on the Act. Because the Order imports the Act’s sections for the content and process (s 34R, s 34Q(2), s 34B), the designated bodies’ substantive obligations and any procedural protections (for example, consultation rights, review rights or appeal rights) will be governed by the Act. The Order does not create new substantive rights beyond bringing entities within the Act’s framework.

Operational implications of these duties and rights

• One plan per designated entity? Clause 4 prescribes "each body listed in Schedule 1 that uses energy" as a designated energy user. Clause 5 speaks of "each designated energy user listed in Part A/B/C" preparing a draft plan. The Order therefore contemplates plan preparation by the designated body as identified in the Schedule. However, Schedule 1 lists bodies with multiple site addresses. The Order does not itself resolve whether a single plan must cover all sites of a listed body, or whether separate plans are required for separate sites. The Act’s definition and s 34R will determine that issue; this is a consequential operational point for compliance teams.

• Timing and staging. The differentiated deadlines (30 June 2006, 30 September 2006, 31 December 2006) mean that legal non-compliance risk is front-loaded for entities in Part A. Entities in Parts B and C have more lead time. Local councils appear in a separate schedule and are timed with Part B (cl 5(c), Sch 2).

• No penalties specified in the Order. The Order does not itself impose sanctions or state enforcement procedures. Enforcement, penalties and compliance supervision, if any, will depend on the Act’s provisions around designated energy users and plan requirements (see cl 4 and cl 5 referencing s 34B, s 34Q(2), s 34R). Practitioners should consult the Act for the detailed legal consequence regime.

The Order does not set out specific penalties, sanctioning mechanisms or enforcement procedures in its text. It performs the administrative functions of designation and timetable setting and defers enforcement and sanctioning to the underlying statutory framework in the Energy and Utilities Administration Act 1987 by cross-reference (cl 4 and cl 5). The Order therefore creates a compliance obligation but leaves the question of repercussions for non-compliance to the Act.

What the Order says

• The instrument prescribes designated users and deadlines: cl 4 prescribes designation; cl 5 prescribes the obligation to prepare and submit draft plans by fixed dates "for the purposes of section 34Q(2) of the Act" and in accordance with s 34R. It requires submission to the Minister for approval, but does not specify consequences for late, incomplete or deficient submissions.

Where to find enforcement and penalties

• The Act contains the statutory machinery for dealing with designated energy users and plan approvals (the Order references s 34B, s 34Q(2) and s 34R). Any enforcement powers, administrative penalties, compliance notices, orders to implement measures, criminal penalties or civil sanctions must be located in those provisions of the Act, or elsewhere in the Act’s enforcement parts. The Order’s silence on penalties means that enforcement must be considered by reference to the Act; the Order alone does not subject entities to fines or criminal exposure.

Practical enforcement considerations for practitioners

• Administrative discretion. The Minister is the recipient of the draft plans and is the authorising decision maker for approval. The Act will define the Minister’s powers, including whether the Minister may compel modifications, issue compliance notices or accept variation. The Order’s instruction to "submit to the Minister for approval" identifies a point at which administrative discretion will be exercised, but the Order does not constrain how that discretion is to be exercised.
• Compliance risk. Although the Order does not state penalties, the deadlines create compliance risk. A designated energy user that fails to submit a draft plan by the prescribed date may be exposed to whatever enforcement consequences the Act provides. Entities should therefore assume that non-compliance is actionable under the Act and prepare submissions on time.
• Evidence and records. Because the Order requires submission "in accordance with section 34R", records demonstrating adherence to s 34R’s procedural and substantive requirements will be essential if enforcement action or challenges arise. Entities should preserve date-stamped drafts, audit reports and communications with the Minister.

Limitations in the instrument

• No independent enforcement mechanism in the Order. The Order does not create a separate enforcement office or monitoring regime. The instrument’s enforcement profile is entirely dependent on the Act’s powers and procedures. Practitioners must therefore map the Act’s enforcement provisions to understand risk and remedy.

The Order operates as a subordinate instrument that plugs named bodies into the statutory scheme of the Energy and Utilities Administration Act 1987. Its primary legal interaction is with the Act; secondary interactions are functional and arise from regulated entities’ obligations under other legal regimes. The Order itself references only the Act, but its practical effects will overlap with corporate law, local government law, planning approvals, environmental regulatory regimes, procurement rules and commercial contracts.

Direct statutory interaction

• The Order imports and depends on the Act. Clause 3 explicitly defines "the Act" as the Energy and Utilities Administration Act 1987. Clauses 4 and 5 operate by reference to sections of the Act (s 34B, s 34Q(2) and s 34R). The Order therefore interacts with the Act as an implementing instrument: it prescribes who is within the Act’s coverage and sets deadlines for statutory plan obligations. Any substantive requirements, procedural protections, enforcement powers and appeal rights will be found in the Act rather than in the Order itself.

Interactions with local government responsibilities

• Schedule 2 lists metropolitan and regional local councils and cl 5(c) requires those councils designated under s 34B(a) of the Act to prepare draft plans by 30 September 2006. For local councils, this Order imposes an additional statutory planning obligation that will need to be reconciled with local government duties, budgeting cycles, capital works programs and service delivery responsibilities. The Order may interact with local government legislation governing council budgets and rates if implementation of energy measures requires council spending.

Interactions with corporate obligations and commercial contracts

• Many corporate entities listed in Schedule 1 operate under corporate governance, safety and environmental regimes. The requirement to prepare energy savings action plans will interact with internal corporate duties of directors and officers, capital expenditure approvals, industrial work contracts and supply arrangements. For corporations with multiple sites listed, the Order’s scheduling and the Act’s content requirements may necessitate amendments to internal policies, budgeting and supplier contracts.

Planning, environmental and infrastructure approvals

• Some listed bodies are major industrial or infrastructure operators. Actions stemming from approved plans (for example, retrofits, new plant or operational changes) might require planning approvals, environmental permits or variation to existing licences. The Order itself does not address these overlap issues; entities will need to manage parallel regulatory processes when moves from planning to implementation occur.

Procurement and competitive effects

• The Order increases demand for energy-efficiency services and products among the listed entities. This demand will interact with procurement law and internal tendering requirements of the listed bodies and councils. Procurement cycles and public procurement rules (for councils and public entities) could influence the pace at which energy measures are implemented after plans are approved.

Administrative law and review

• Because the Order requires plans to be submitted to the Minister for approval, the Minister’s decisions under the Act will be amenable to administrative law review. The Order does not remove or alter statutory review pathways in the Act, nor does it specify a distinct appeal mechanism. Practical interplay therefore involves the Act, general administrative law principles and any judicial review or statutory appeal channels that the Act preserves.

Conclusion on interaction

• The Order is not a freestanding regime. Its legal and practical consequences are realised through its relationship with the Act and through the operational reality of the entities listed. Compliance therefore requires a coordinated approach that maps the Act’s requirements, local government obligations, environmental and planning approvals and corporate governance and procurement rules.

The Order itself contains a brief amendment notation for Schedule 1. At the end of Schedule 1 the instrument records: "sch 1: Am 2006 No 58, Sch 2.12 [1]-[3]." That entry indicates that Schedule 1 was amended by a subsequent instrument, namely an amending regulation or order in 2006 (No 58), schedule 2.12 paragraphs [1]-[3]. The Order as presented otherwise shows its original clauses 1-5 and Schedules 1 and 2.

Items to note about amendment and legal effect

• The Order was made to commence on 28 October 2005 (cl 2). The amendment reference in the Schedule indicates that the list of designated energy users was adjusted in 2006. The Schedule annotation is the only textual indication of an amendment within this instrument as provided.
• Because the Order is a statutory instrument that prescribes entities by name, changes to the universe of designated entities are likely to be effected by amending the relevant schedule. The recorded amendment suggests that at least one such update occurred relatively soon after commencement.
• The precise scope of the 2006 amendment (which entries were added, removed or modified) is not shown within the text provided here. To examine what changed and whether entities were added or removed it will be necessary to inspect the amending instrument identified ("2006 No 58, Sch 2.12 [1]-[3]") in the official legislative database or consolidated version of the Order.

Practical implications of the amendment mechanism

• Named lists are administratively precise but inflexible. Adding or removing a designated entity requires a formal amendment to the Order. The recorded amendment indicates the legislative process was used to modify the schedule rather than relying on any delegated administrative list-making power within the Act.
• For compliance and risk management, affected parties should always consult the current consolidated version of the Order and the Act to ensure they rely on the up-to-date list of designated users. The presence of an amendment note in Sch 1 is a reminder that the list is subject to change.
• Amendments may affect timing. If an entity was added after the Order’s commencement, the amending instrument may have provided transitional arrangements or new deadlines. The Order as provided does not show transitional wording; the amending instrument must be checked.

Record-keeping and due diligence

• Parties should keep an audit trail of successive versions of the Order and any amending instruments. When advising clients, check the consolidated legislative record and the specific amending instrument details to determine effective dates for any additions or removals, and whether those changes were backdated or included special transitional terms.

The Order itself does not contain any case law, judicial decisions or citations of litigation. It is a listing and timetable instrument. No litigation history is recorded within the instrument’s text. There are several practical observations to make about the litigation profile that flows from such an instrument.

Where litigation might arise

• Challenge to designation. A body named in the schedule that disputes its inclusion, or disputes the basis on which the Act permits designation, could seek review of the designation. The Order does not provide an internal appeal or review mechanism for designation; any challenge would need to be mounted under the Act or by means of a judicial review in the appropriate court or tribunal.
• Challenge to Ministerial decisions. Clause 5 requires submission of draft plans to the Minister for approval. If the Minister exercises discretion in approving, refusing or imposing conditions on a plan, those administrative decisions are potentially subject to challenge on standard administrative law grounds, such as procedural unfairness, irrationality or error of law. The Order does not specify the Minister’s decision-making standard; the Act governs that.
• Enforcement action. If the Act contains enforcement or penalty provisions for failure to submit plans or to implement approved measures, litigation could arise from enforcement notices or sanctions. The Order itself does not create a penalty regime but constitutes the trigger for statutory obligations under the Act.

Practical litigation considerations

• Standing and remedies. The Order’s prescriptive nature suggests parties directly affected (the listed bodies) would have standing to challenge their designation or a Ministerial approval decision. Interested third parties (for example, environmental groups) may have more limited standing depending on jurisdictional rules and the nature of the decision being challenged.
• Time sensitivity. The Order imposes tight submission timetables for some entities. Litigation that seeks to stay or quash a designation or a Ministerial requirement will likely be time-critical. Applicants would need to move promptly to preserve rights.
• Evidence. Because the Order requires submission of technical plans in accordance with s 34R of the Act, disputes may involve expert evidence as to technical feasibility, cost-benefit, and reasonableness of measures proposed or required. Litigation could therefore be document- and expert-heavy.

What the Order shows and what it does not

• The Order contains no explicit litigation history and no examples of judicial interpretation of its terms. It does not provide dispute resolution mechanisms. Any litigation history of the Order would therefore be external to the instrument and must be searched in court databases, government records or consolidated legislative materials.
• Practitioners should search for case law involving the Energy and Utilities Administration Act 1987 and any Ministerial decisions made under s 34R or s 34Q(2) to find litigation that interprets the Act’s plan approval or designation powers. The Order itself is only the gateway instrument; substantive legal contests will pivot on the Act’s provisions and on the Minister’s exercise of powers under the Act.

The Order is straightforward in form but contains practical ambiguities and compliance traps that counsel, compliance officers and clients must watch for. The principal "gotchas" are procedural ambiguity, site versus body scope, timing and amendment risk.

1. Scope ambiguity: body versus site

• Clause 4 prescribes "each body listed in Schedule 1 that uses energy" as a designated energy user. Schedule 1 lists bodies and often specifies a site address or multiple site addresses. The Order does not explicitly state whether a single draft energy savings action plan should cover the entire body and all its listed sites, or whether separate plans are required per site. Because cl 5 refers generically to "each designated energy user" preparing "a draft energy savings action plan", the most direct reading is one plan per listed designated body. Nevertheless, operationally, corporations with multiple discrete facilities may find that a single plan is unwieldy or inconsistent with s 34R’s possible requirements. The Act’s definition and s 34R content should be checked. Failing to clarify this early will create compliance risk.

2. Deadlines are fixed and closely staged

• The deadlines are tiered and close together (cl 5(a)-(d)). Part A entities must submit by 30 June 2006, a little over eight months after commencement. Part B and local councils face a 30 September 2006 date. Part C has 31 December 2006. Entities in Part A face constrained time to perform energy audits, baseline measurement, stakeholder consultation and plan drafting. Underestimating the data collection and internal approval processes is a common compliance error.

3. Reliance on the Act for substantive content

• All content, format and approval criteria are imported from s 34R of the Act (cl 5). If s 34R contains technical or procedural requirements not anticipated by an entity, plan drafts may be rejected or returned for amendment by the Minister. Entities must therefore obtain and review the Act early. Relying solely on the Order’s text will be insufficient.

4. Local councils listed collectively but subject to local governance limits

• Local councils are included at Sch 2 and cl 5(c) applies to "each local council that is a designated energy user pursuant to section 34B(a)". Councils have statutory budgeting cycles and procurement rules. An approved plan that requires capital works may conflict with budgetary constraints. Councils should be alert that the Order requires submission by 30 September 2006, but subsequent implementation may be constrained by local government law and budget cycles.

5. Amendment risk and reliance on a consolidated version

• The note "sch 1: Am 2006 No 58, Sch 2.12 [1]-[3]" indicates the Schedule was amended. Advisers should not rely on a single printed copy; check the consolidated legislative instrument for additions or deletions. Clients may mistakenly assume that a list is final when amendments can occur.

6. Ministerial discretion and lack of procedural detail

• The Order mandates submission "to the Minister for approval" but does not set out timeframes for the Minister’s decision, consultation procedures, or criteria for acceptance. Entities could be caught by uncertainty about the review process and possible need for resubmission. Practical risk includes delayed approvals or requirements to amend plans after the submission deadline, affecting implementation timelines.

7. Potential mismatch with contractual or planning obligations

• Energy-saving measures often require alterations to plant or building fabric that implicate lease arrangements, planning permits or environmental licences. The Order does not address coordination with these regimes. Failure to consider those constraints early can produce project delays.

8. Records and evidence burden

• Because the Order requires submission "in accordance with section 34R", designated entities must be ready to demonstrate how their draft plans meet s 34R. The Order itself gives no list of required supporting documents. Practitioners should anticipate that evidentiary standards for technical claims (for example, baseline energy data) will be high.

Compliance requires a two-track approach: (1) legal check of the Act and any amending instruments, and (2) practical preparation of a draft energy savings action plan and supporting evidence sufficient for Ministerial approval. The Order supplies the who and the when; practitioners must establish the what and the how by reference to the Act and to best practice project management.

Step 1: Confirm designation and scope

• Check whether your entity is listed in Schedule 1 (Parts A, B or C) or Schedule 2. Clause 4 prescribes "each body listed in Schedule 1 that uses energy" as a designated energy user. The first legal question is whether your body "uses energy" in a manner that triggers the designation; the Order only applies to those bodies that use energy. Confirm this status in writing and ensure you are looking at the current consolidated Order (note Sch 1 amended entry).

Step 2: Read the Act’s operative provisions

• Obtain the full text of the Energy and Utilities Administration Act 1987, and read s 34B, s 34Q(2), s 34R and any adjacent procedural and enforcement provisions. The Order requires plan preparation "in accordance with section 34R of the Act" (cl 5). s 34R will specify required contents, methodologies, and perhaps consultation or reporting obligations. The Act will also set out the Minister’s powers and any sanctions for non-compliance, which the Order itself does not state.

Step 3: Determine plan boundaries and number of plans

• Resolve whether a single plan per listed body is acceptable or whether site-specific plans are needed. While the Order speaks of the "designated energy user" preparing "a draft energy savings action plan", Schedule 1 entries often include site addresses. If s 34R or related Act provisions are ambiguous on this point, seek early clarification from the Ministerial office or the administering authority and record any correspondence.

Step 4: Project plan and resources

• Set an internal compliance project timeline calibrated to the prescribed submission date (cl 5). For Part A entities, the 30 June 2006 deadline requires immediate mobilisation. Identify the internal responsible officer, allocate budget for technical resources, appoint consultants for energy audits if necessary, and schedule board or council approvals needed for plan sign-off.

Step 5: Technical preparatory work

• Although the Order does not set technical specifics, most credible energy savings plans require baseline energy use measurement, energy audits, identification of feasible measures, cost estimates, timelines and monitoring arrangements. Assemble historical energy consumption data, utility bills, building and plant drawings, operational logs and maintenance records to support the plan.

Step 6: Draft plan preparation "in accordance with s 34R"

• Draft the plan to meet the Act’s specified format and requirements. Even if the Order does not list components, plan drafters should ensure the submission is evidence-based and structured to facilitate Ministerial review. Include executive summary, baseline, proposed measures, implementation schedule, estimated costs and expected savings, monitoring arrangements and responsible officers.

Step 7: Internal approvals and governance

• Obtain necessary internal approvals before submission to the Minister. For corporations, secure board or delegated authority sign-off; for councils, ensure the relevant committee or council resolution authorises submission. Retain minutes or delegations to show lawful authority to submit.

Step 8: Submission to the Minister and record-keeping

• Submit the draft plan to the Minister by the date in cl 5 applicable to your Part. Use a method that provides dated proof of receipt and retain copies of the submission and supporting documents. Record all communications with the Minister’s office and administrative officers.

Step 9: Prepare for Ministerial response and potential revisions

• Because the Order requires Ministerial approval, anticipate requests for clarifications, revisions or additional evidence. Have a dedicated point of contact and a plan for rapid response. Document any changes to the plan and retain versions to demonstrate compliance with iterative requests.

Step 10: Implementation readiness and budget planning

• Even at draft plan stage, cost estimates and implementation options should be realistic and embedded in capital and operating budgets. For councils, align implementation proposals with procurement rules and budget cycles. For corporations, integrate plan outputs into asset management and capital expenditure programs.

Record-keeping checklist

• Evidence of designation and any communications from the administering agency confirming status.
• Data used to establish baseline energy consumption.
• Energy audits, technical assessments and cost-benefit analyses.
• Internal approvals, board minutes or council resolutions authorising plan submission.
• Copies of the submitted draft plan, supporting documents and proof of delivery to the Minister’s office.
• All correspondence and requests for clarification from the Minister and the entity’s responses.

Practical risk mitigation

• Seek early legal and technical advice, particularly where the Act’s requirements are uncertain.
• If the entity has multiple sites, consider whether a single consolidated plan with site-specific annexes will meet s 34R requirements.
• Where implementation may trigger planning, environmental or contractual constraints, run parallel checks with the relevant authorities and legal teams.
• For councils, engage procurement, finance and legal officers early so that proposed measures are match-fit for approval and procurement rules.

Final practical note

• The Order provides timelines and names; it does not provide a template or content checklist. The decisive statutory requirements are in the Act. Compliance therefore requires prompt legal review of s 34R and practical project mobilisation to meet the fixed deadlines in cl 5.