Part 6Enforcement

Part 6—Enforcement Division A1—Warning notices and assurances 61A—Warning notices (1) If it appears to the Commission that a person has been guilty of a contravention of Part 3 or Part 5A (other than in relation to contraventions of Part 5A for which the Technical Regulator may issue a warning notice under subsection (2)) and the contravention is capable of being rectified, the Commission may issue a warning notice to the person, warning the person that the person may be prosecuted for the contravention unless the person takes action specified in the notice to rectify the contravention within the period specified in the notice. (2) If it appears to the Technical Regulator that a person has been guilty of a contravention of Part 5, or Part 5A in relation to contraventions relating to technical and safety matters arising under Part 5A, and the contravention is capable of being rectified, the Technical Regulator may issue a warning notice to the person, warning the person that the person may be prosecuted for the contravention unless the person takes action specified in the notice to rectify the contravention within the period specified in the notice. (3) A warning notice issued under this section must be in writing. (4) The action that may be specified in a warning notice to rectify a contravention may include action to remedy adverse consequences of the contravention, for example (without limitation)— (a) the refunding of an amount wrongly paid to the person as a result of the contravention; or (b) the payment of compensation to a person who has suffered loss, damage or injury as a result of the contravention; or (c) the disclosure of information; or (d) the publication of advertisements relating to the contravention or relating to action to rectify or remedy the contravention. (5) The Commission or the Technical Regulator may, by written notice to a person, vary a warning notice issued to the person. (6) If the Commission or the Technical Regulator issues a warning notice to a person, the Commission or the Technical Regulator must not proceed against the person in respect of the contravention to which the notice relates, unless the person fails to take action specified in the notice to rectify the contravention within the period specified in the notice. 61AB—Assurances (1) The Commission may accept an assurance given by a person in connection with a matter in relation to which the Commission has a power or function under this Act. (2) The Technical Regulator may accept an assurance given by a person in connection with a matter in relation to which the Technical Regulator has a power or function under this Act. (3) An assurance under this section must be in writing. (4) A person who has given an assurance may, with the consent of the Commission or the Technical Regulator (as the case requires), withdraw or vary the assurance at any time. (5) If the Commission or the Technical Regulator accepts an assurance, the Commission or the Technical Regulator must not proceed against the person who has given the assurance in respect of the conduct specified in the assurance, unless it appears to the Commission or the Technical Regulator that the person has acted contrary to, or has failed to comply with, the assurance. 61B—Register of warning notices and assurances (1) The Commission must keep a register of warning notices issued by the Commission under this Division, and a register of assurances given to the Commission under this Division. (2) The Technical Regulator must keep a register of warning notices issued by the Technical Regulator under this Division, and a register of assurances given to the Technical Regulator under this Division. (3) A person may, without payment of a fee, inspect a register kept under this section. 61BA—Offence to act contrary to assurance (1) A person who acts contrary to, or fails to comply with, an assurance accepted by the Commission or the Technical Regulator is guilty of an offence. (2) Proceedings for an offence against subsection (1) must not be commenced except— (a) in the case of an assurance accepted by the Commission—on the authorisation of the Commission; or (b) in the case of an assurance accepted by the Technical Regulator—on the authorisation of the Technical Regulator. (3) An apparently genuine document purporting to be under the hand of the Commission or the Technical Regulator and to authorise the commencement of proceedings under this section must be accepted in legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 61BB—Enforcement orders in relation to assurances (1) If the District Court is satisfied, on an application under this section, that a person has acted contrary to, or failed to comply with, an assurance accepted under this Division, the Court may make any or all of the following orders: (a) an order prohibiting the person from engaging in specified conduct; (b) an order directing the person to take specified action to comply with the assurance; (c) an order directing the person to pay to the Crown an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach of, or non‑compliance with, the assurance; (d) any order that the Court considers appropriate directing the person to compensate any person who has suffered loss or damage as a result of the breach of, or non‑compliance with, the assurance; (e) any other order that the Court considers appropriate. (2) An application under this section may be made— (a) in the case of an assurance accepted by the Commission—by the Commission; or (b) in the case of an assurance accepted by the Technical Regulator—by the Technical Regulator. (3) The Court may make an interim order under subsection (1)(a) pending final determination of the application. (4) The Court may, on the application of the Commission, the Technical Regulator or a person, vary or discharge an order under subsection (1)(a). (5) An order under subsection (1)(a) may be made subject to such conditions as the Court thinks fit. (6) The Court must not make an order under this section (other than an interim order) unless satisfied on the balance of probabilities that proper grounds for the order have been established. Division A2—Injunctions 61C—Injunctions (1) If the District Court is satisfied, on the application of the Minister, the Commission, the Technical Regulator or any other person, that a person has engaged or proposes to engage in conduct that constitutes or would constitute a contravention of this Act, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) If the District Court is satisfied, on the application of the Minister, the Commission, or the Technical Regulator, that a person has engaged in conduct constituting a contravention of this Act, the Court may grant an injunction requiring that person to take specified action to remedy any adverse consequence of that conduct. (3) The action that may be required by an injunction to remedy adverse consequences of conduct constituting a contravention may include (without limitation)— (a) the refunding of an amount wrongly paid as a result of the contravention; or (b) the payment of compensation to a person who has suffered loss, damage or injury as a result of the contravention; or (c) the disclosure of information; or (d) the publication of advertisements relating to the contravention or relating to action to rectify or remedy the contravention. (4) An injunction may be granted by the District Court under this section— (a) in proceedings in which the Court convicts a person of an offence to which the application relates; or (b) in proceedings brought before the Court for the purpose of obtaining the injunction. (5) The power of the District Court to grant an injunction restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind. (6) The power of the District Court to grant an injunction requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. (7) An interim injunction may be granted under this section pending final determination of the application. (8) A final injunction may, by consent of the parties, be granted under this section without proof that proper grounds for the injunction exist. (9) Where the Minister, the Commission or the Technical Regulator applies for an injunction under this section, no undertaking as to damages will be required. (10) The Minister may give an undertaking as to damages or costs on behalf of some other applicant and, in that event, no further undertaking will be required. (11) An injunction under this section may be rescinded or varied at any time. Division A3—Enforcement notices 61D—Enforcement notices (1) An authorised officer may issue a notice (an enforcement notice) under this section for the purpose of securing compliance with a requirement imposed by or under this Act (including a standard referred to or incorporated by this Act). (2) A notice under this section— (a) subject to subsection (3), must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or by a description sufficient to identify the person); and (c) may direct 2 or more persons to do something specified in the notice jointly; and (d) without limiting any other provision, in the case of a notice that relates to a situation existing on any premises, may be issued to any person who— (i) is the owner or occupier of the premises; or (ii) has the management or control of the premises; and (e) without limiting any other provision, may be issued to any person who has performed, or is performing, any work (including work on any premises owned or occupied by another person); and (f) must state the grounds on which the notice is issued; and (g) may impose any requirement reasonably required for the purpose for which the notice is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from a relevant authority; (ii) a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances; (iii) a requirement that the person comply with any specified standard or code published by the Technical Regulator or any other specified person or body referred to in the notice; (iv) a requirement that the person undertake specified tests or monitoring; (v) a requirement that the person furnish to a relevant authority specified results or reports; (vi) a requirement prescribed by the regulations; and (h) must state that the person may, within 10 days, apply for a review of the notice. (3) An authorised officer may, if of the opinion that urgent action is required, issue an emergency notice imposing a requirement of a kind referred to in subsection (2)(g) as reasonably required in the circumstances. (4) An emergency enforcement notice may be issued orally (and without compliance with a requirement to give preliminary notice) but, in that event, the person to whom the notice is issued must be advised forthwith of the person's right to apply for a review of the notice. (5) If an emergency enforcement notice is issued by an authorised officer, the notice will cease to have effect on the expiration of 72 hours from the time of issuing unless confirmed by a written notice served on the relevant person. (6) An authorised officer may, by written notice served on a person to whom a notice under this section has been issued, vary or revoke the notice. (7) A relevant authority may, by written notice served on a person to whom a notice under this section has been issued by the relevant authority, vary or revoke the notice. (8) A person to whom a notice is issued under this section must not, without reasonable excuse, fail to comply with the notice. (9) A person must not hinder or obstruct a person complying with a notice under this section. (10) If the requirements of a notice under this section are not complied with, a relevant authority may take any action required by the notice. (11) Action to be taken by a relevant authority under subsection (10) may be taken on the relevant authority's behalf by an authorised officer or another person authorised by the relevant authority for the purpose. (12) A person taking action under subsection (10) or (11) may enter any premises at any reasonable time. (13) The reasonable costs and expenses incurred by a relevant authority in taking action under subsections (10) and (11) may be recovered by the relevant authority as a debt from the person who failed to comply with the requirements of the notice. (14) If an amount is recoverable from a person by a relevant authority under this section, the relevant authority may, by written notice to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid. relevant authority means— (a) the Minister; or (b) the Commission; or (c) the Technical Regulator. Division 1—Appointment of authorised officers 62—Appointment of authorised officers (1) The Minister may appoint suitable persons as authorised officers. (2) An authorised officer may (but need not be) a Public Service employee. (3) An authorised officer may be assigned to assist one or more of— (a) the Minister; (b) the Commission; (c) the Technical Regulator, as the Minister considers appropriate. (4) An authorised officer will— (aa) in the exercise of powers for the enforcement of Part 3 Division 5—be subject to the direction and control of the Minister; (a) in the exercise of powers for the enforcement of Part 3 (other than Division 5)—be subject to control and direction by the Commission; (b) in the exercise of powers for the enforcement of any other provisions under this Act—be subject to control and direction by the Technical Regulator. 63—Conditions of appointment (1) An authorised officer may be appointed for a stated term or for an indefinite term that continues while the officer holds a stated office or position. (2) An authorised officer holds office on the conditions stated in the instrument of appointment. (3) An authorised officer may resign by written notice given to the Minister. (4) An authorised officer may be removed from office by the Minister. 64—Authorised officer's identity card (1) The Minister must give each authorised officer an identity card. (2) The identity card must— (a) contain a photograph of the authorised officer taken for the purpose; and (b) be signed by the authorised officer. (3) A person must, within 2 days after ceasing to be an authorised officer, return the identity card to the Minister. Maximum penalty: $250. 65—Production of identity card An authorised officer must, before exercising a power in relation to another person, produce the officer's identity card for inspection by the other person. Division 2—Authorised officers' powers 66—Power of entry (1) An authorised officer may, as reasonably required for the purposes of the enforcement of this Act, enter and remain in any place. (2) When an authorised officer enters a place under this section, the authorised officer— (a) may be accompanied by such assistants as the authorised officer considers necessary or appropriate; and (b) may take any vehicles or equipment the authorised officer considers necessary or appropriate for the functions the authorised officer is to carry out in the place. (3) An authorised officer may use reasonable force to enter a place under this Part if— (a) the entry is authorised under a warrant under Part 8; or (b) the entry is necessary in an emergency. (4) An authorised officer must be accompanied by a member of the police force— (a) when entering a place under a warrant; (b) if it is practicable to do so, when entering a place by force in an emergency. 67—General investigative powers of authorised officers (1) An authorised officer who enters a place under this Part may exercise any 1 or more of the following powers: (a) investigate whether the provisions of this Act are being or have been complied with; (b) examine and test any gas infrastructure or gas installation to find out whether the infrastructure or installation is safe and complies with the requirements of this Act, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; (c) require a report on any testing conducted under paragraph (b); (d) investigate an accident suspected to involve gas; (e) investigate a suspected interference with gas infrastructure or a gas installation; (f) investigate a suspected theft or diversion of gas; (g) search for, examine and copy or take an extract from a document or record of any kind; (h) take photographs or make films or other records of activities in the place and gas infrastructure or gas installations in the place; (i) take possession of any object that may be evidence of an offence against this Act; (j) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person’s full name and usual place of residence and to produce evidence of the person’s identity; (k) require a person, by written notice served on the person, to attend at a specified time and place. (2) An authorised officer may only exercise the powers conferred by subsection (1) as reasonably required for the administration or enforcement of this Act. (3) If an authorised officer takes possession of an object that may be evidence of an offence— (a) the authorised officer must give the occupier of the place a receipt for the object; and (b) the object must be returned to its owner— (i) if proceedings for an offence are not instituted within the designated period after the authorised officer takes possession of the object—at the end of that period; or (ii) if proceedings have been so instituted—on completion of the proceedings, unless the court, on application by the Commission or Technical Regulator (as the case may be), orders confiscation of the object. (4) A court may order the confiscation of an object of which an authorised officer has taken possession under subsection (1) if of the opinion that the object has been used for the purpose of committing an offence or there is some other proper reason for ordering its confiscation. (5) If the court orders the confiscation of an object, the Commission or Technical Regulator may dispose of the object. (6) A person who— (a) having been asked a question under this section, does not answer the question to the best of his or her knowledge, information and belief; or (b) refuses or fails to comply with a requirement or direction of an authorised officer under this section; or (c) being the person in charge of a place subject to an inspection and having been required to provide reasonable assistance to facilitate the inspection, refuses or fails to provide such assistance, is guilty of an offence. (7) In this section— designated period means 1 year or such longer period as a magistrate may, on application by the Technical Regulator, allow. 68—Disconnection of gas supply (1) If an authorised officer finds that gas is being supplied or consumed contrary to this Act, the authorised officer may disconnect the gas supply. (2) If an authorised officer disconnects a gas supply under this section, the officer must give written notice to the occupier of the relevant place— (a) informing the occupier that the gas supply has been disconnected under this section; and (b) directing that the gas supply must not be reconnected until arrangements have been made to the satisfaction of an authorised officer to ensure against future contravention of this Act. (3) If a gas supply has been disconnected under this section, a person must not reconnect the gas supply, or have it reconnected, without the written approval of an authorised officer. Expiation fee: $1 000. 69—Power to make infrastructure or installation safe (1) If an authorised officer finds that any gas infrastructure or gas installation is unsafe, or believes on reasonable grounds that the infrastructure or installation is, or may become, unsafe when in use, the officer may— (a) disconnect the gas supply or give a direction requiring the disconnection of the gas supply; (b) give a direction requiring the carrying out of the work necessary to make the infrastructure or installation safe within a period specified in the direction before the gas supply is reconnected. (2) Subject to this section, a direction under this section must be given— (a) in relation to gas infrastructure—to the gas entity that operates the infrastructure; (b) in relation to a gas installation— (i) in the case of an installation that is unsafe, or in relation to which it is reasonably believed that the installation is, or may become, unsafe when in use, as a result of work performed on the installation within 2 years before the giving of the direction and with the consent of the person in charge of the installation or the occupier of the place in which the installation is situated—to the person who carried out the work, unless that person is not authorised to carry out such work; or (ii) in any other case—to the person in charge of the installation or the occupier of the place in which the installation is situated. (3) A direction under this section may be given by written notice or, if the authorised officer is of the opinion that immediate action is required, orally (but if the direction is given orally it must be confirmed in writing). (4) A person to whom a direction is given under this section— (a) must comply with the direction; and (b) must not fail to take action specified in the direction to make the infrastructure or installation safe within the period specified in the direction; and (c) must not reconnect or permit the reconnection of the gas supply, or connect or permit the connection of the infrastructure (or part of the infrastructure) or installation to any other supply of gas, without the written approval of an authorised officer. Expiation fee: (a) in the case of an offence against paragraph (c)—$1 000; (b) in any other case—$315. (5) If a person does not comply with a direction, an authorised officer may take any action that is reasonable and necessary to have the direction carried out. (6) A person, authorised in writing by an authorised officer, may do what is reasonable and necessary to carry out the direction. (7) The costs incurred in carrying out the direction are recoverable as a debt due to the Crown. 70—Power to require information or documents (1) An authorised officer may require a person to provide information in the person's possession relevant to the enforcement of this Act. (2) An authorised officer may require a person to produce documents in the person's possession that may be relevant to the enforcement of this Act for inspection by the authorised officer. (3) A person must not, without reasonable excuse, fail to comply with a requirement under this section. Division 3—Related matters 70A—Self‑incrimination (1) Subject to subsection (2), a natural person is not required to give information or produce a document under this Part if the information or the contents of the document would tend to incriminate the person of an offence. (2) If an authorised officer informs a natural person required to give information or produce a document under this Part that the requirement is made for— (a) the administration or enforcement of Part 5 relating to the safety of gas infrastructure, or a gas installation or appliance; or (b) the enforcement of Part 3 Division 5, and the information or document would tend to incriminate the person of an offence, the person must nevertheless give the information or produce the document, but the information or document so given or produced will not be admissible in evidence against the person in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration).