Part 8Miscellaneous

Part 8—Miscellaneous 77—Power of exemption (1) The Commission may, with the approval of the Minister, grant an exemption from Part 3 (other than Division 5), or specified provisions of Part 3 (other than Division 5), on terms and conditions the Commission considers appropriate. (1a) Without limiting subsection (1), the power to exempt includes power to exempt a person from the application of a provision requiring the Commission to make a licence held by the person subject to a specified condition. (2) A person exempted from a requirement to hold a licence under Part 3 is, if the Commission has so determined by writing, to be treated as a gas entity for the purposes of specified provisions of this or another Act. (3) Except as otherwise provided in the exemption, an exemption under subsection (1), or a determination under subsection (2), may be varied or revoked by the Commission by notice in writing. (4) The Minister may grant an exemption from— (a) Division 5 of Part 3, or specified provisions of that Division; or (b) Part 5A, or specified provisions of that Part, on terms and conditions the Minister considers appropriate. (5) Except as otherwise provided in the exemption, an exemption under subsection (4) may be varied or revoked by the Minister. (6) The Technical Regulator may grant an exemption from Part 5, or specified provisions of that Part, on terms and conditions the Technical Regulator considers appropriate. (7) Except as otherwise provided in the exemption, an exemption under subsection (6) may be varied or revoked by the Technical Regulator by notice in writing. 77A—Register of exemptions (1) The Commission and the Technical Regulator must each keep a register of exemptions granted by the Commission or the Technical Regulator (as the case may be) under this Act. (2) A register kept under this section must include the terms and conditions of each exemption recorded in it. (3) A person may, without payment of a fee, inspect a register kept under this section. 78—Obligation to comply with conditions of exemption A person in whose favour an exemption is given must comply with the conditions of the exemption. 78A—Delegation by Minister (1) The Minister may delegate any of his or her functions or powers under this Act to a person or body of persons. (2) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the Minister from acting in any matter. 78B—Gas infrastructure and liability to council rates (1) A gas entity has no liability to pay rates under the Local Government Act 1999 in relation to land where gas infrastructure of the entity is situated unless the entity would, apart from this section, have such liability as holder of an estate in fee simple in the land or as lessee under a lease expressly granted by a person with an interest in the land. (2) In this section— gas infrastructure has the meaning assigned to the term by section 4, but does not include a transmission pipeline. 79—Application and issue of warrant (1) An authorised officer or a gas officer may apply to a magistrate for a warrant to enter a place specified in the application. (2) A magistrate may issue a warrant if satisfied that there are reasonable grounds for issuing the warrant. (3) A warrant authorises the authorised officer or gas officer, with any assistance and by any force reasonably necessary— (a) to enter the place specified in the warrant; and (b) to do anything authorised by this Act, at any time, or within any period, specified in the warrant. (4) A gas officer must be accompanied by a member of the police force when entering a place under a warrant. (5) A warrant is to specify the date on which, and the time at which, the warrant ceases to have effect. 80—Urgent situations (1) An authorised officer or a gas officer may apply to a magistrate for a warrant by telephone, facsimile or other prescribed means if the officer considers the urgency of the situation requires it. (2) The magistrate may complete and sign the warrant in the same terms as for a warrant applied for in person if satisfied that there are reasonable grounds for issuing the warrant urgently. (3) The magistrate must— (a) tell the officer— (i) the terms of the warrant; and (ii) the date on which, and the time at which, the warrant was signed; and (iii) the date on which, and the time at which, the warrant ceases to have effect; and (b) record on the warrant the reasons for granting the warrant. (4) The officer must— (a) complete a form of warrant in the same terms as the warrant signed by the magistrate; and (b) write on the form— (i) the name of the magistrate; and (ii) the date on which, and the time at which, the warrant was signed; and (c) send the magistrate the completed form of warrant not later than the day after the warrant is executed or ceases to have effect. (5) On receipt of the form of warrant, the magistrate must attach it to the warrant the magistrate signed. (6) A form of warrant completed by an authorised officer or a gas officer under subsection (4) has the same force as a warrant signed by the magistrate under subsection (2). 81—Unlawful interference with distribution system or gas installation (1) A person must not, without proper authority— (a) attach a gas installation or other thing, or make any connection, to a distribution system; or (b) disconnect or interfere with a supply of gas from a distribution system; or (c) damage or interfere with gas infrastructure or a gas installation in any other way. Maximum penalty: $20 000 or imprisonment for 2 years. (2) A person must not, without proper authority— (a) be in an enclosure where gas infrastructure is situated; or (b) climb structures that are part of gas infrastructure. Maximum penalty: $10 000 or imprisonment for 2 years. (3) A person must not discharge a firearm or throw or project an object or substance towards gas infrastructure or a gas installation if there is a risk of damage to the infrastructure or installation, or interruption of gas supply. (4) A person must not burn any material in proximity to gas infrastructure such that there is a risk of damage to the infrastructure, without the written authority of the person who owns or operates the infrastructure. 82—Unlawful abstraction or diversion of gas (1) A person must not, without proper authority— (a) abstract or divert gas from a distribution system; or (b) interfere with a meter or other device for measuring the consumption of gas supplied by a gas entity. Maximum penalty: $20 000 or imprisonment for 2 years. (2) A person must not install or maintain a pipe capable of conveying a gas supply beyond the boundaries of property occupied by the person unless— (a) the person is a gas entity; or (b) the person does so with the approval of a gas entity responsible for gas supply to the property; or (c) the pipe is authorised under the regulations. (3) If, in proceedings for an offence against subsection (1), it is proved that a device has been installed or any other act done, without proper authority, the apparent purpose of which is to abstract or divert gas to any particular land or place or to affect the proper measurement of gas supplied to any particular land or place, it will be presumed, in the absence of proof to the contrary, that the occupier of the land or place installed the device or did the other act with that purpose. (4) If a gas entity suffers loss or damage as a result of a contravention of this section, the entity may recover compensation for the loss or damage from a person guilty of the contravention— (a) on application to a court convicting the person of an offence against this section; or (b) by action in a court of competent jurisdiction. 83—Notice of work that may affect gas infrastructure (1) A person who proposes to do work near gas infrastructure must give the appropriate gas entity at least seven days' notice of the proposed work if— (a) there is a risk of equipment or a structure coming into dangerous proximity to gas infrastructure; or (b) the work may interfere with gas infrastructure in some other way. Expiation fee: $210. (2) It is a defence to a charge of an offence against subsection (1) if, in the circumstances of an emergency, it is not practicable to give the notice required by subsection (1), and the notice is given as soon as practicable. (3) A person who does work near gas infrastructure must comply with— (a) requirements prescribed by regulation that are applicable to the work; and (b) reasonable requirements made by the gas entity for the protection of the infrastructure or the safety of the persons carrying out the work. Expiation fee: $210. 84—Impersonation of officials etc A person must not impersonate an authorised officer, a gas officer or anyone else with powers under this Act. 85—Obstruction (1) A person must not, without reasonable excuse, obstruct an authorised officer, a gas officer, or anyone else engaged in the administration of this Act or the exercise of powers under this Act. (2) A person must not use abusive or intimidatory language to, or engage in offensive or intimidatory behaviour towards, an authorised officer, a gas officer, or anyone else engaged in the administration of this Act or the exercise of powers under this Act. 86—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information furnished under this Act. If the person made the statement knowing that it was false or misleading—$10 000 or imprisonment for 2 years. In any other case—$5 000. 87—Statutory declarations If a person is required by or under this Act to furnish information to the Minister, Commission or Technical Regulator, the Minister, Commission or Technical Regulator may require that the information be verified by statutory declaration and, in that event, the person will not be taken to have furnished the information as required unless it has been verified in accordance with the requirements of the Minister, Commission or Technical Regulator. 87A—Offences (1) The following persons are authorised to give expiation notices for an alleged offence against this Act (in addition to any person authorised under the Expiation of Offences Act 1996): (a) any authorised officer authorised in writing by the Technical Regulator; (b) any gas officer authorised in writing by the Technical Regulator. (2) An authorisation under subsection (1) may be given subject to such conditions or limitations as the Technical Regulator thinks fit. (3) An apparently genuine document purporting to be under the hand of the Technical Regulator and to give an authorisation under subsection (1) must be accepted, in the absence of proof to the contrary, as proof of the authorisation. 88—General defence (1) It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. (2) It is a defence to a charge of an offence against this Act if the defendant proves that the act or omission constituting the offence was reasonably necessary in the circumstances in order to avert, eliminate or minimise danger to person or property. (2a) Where a body corporate or other employer seeks to establish a defence provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof— (a) that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and (b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce. (3) Subsection (1) does not apply in relation to a person who is charged with an offence under section 89. 89—Offences by bodies corporate (1) If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence. (2) If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that— (a) the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director failed to exercise due diligence to prevent the commission of the offence. (3) Subsection (2) does not apply if the principal offence is an offence against section 10, 34, 40, 44, 56, 57, 57A, 58, 68, 69, 70, 78, 81, 82, 83, 85 or 86. (4) The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations. prescribed offence means an offence against section 19, 27, 37, 37A or 55. 89A—Imputing conduct to bodies corporate (1) For the purposes of proceedings for an offence against this Act, the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate. (2) For the purposes of this section, a reference to conduct or acting includes a reference to failure to act. 90—Continuing offences (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-fifth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 91—Order for payment of profit from contravention The court convicting a person of an offence against this Act may order the convicted person to pay to the Crown an amount not exceeding the court's estimation of the amount of any monetary, financial or economic benefits acquired by the person, or accrued or accruing to the person, as a result of the commission of the offence. 91A—Energy productivity shortfalls (1) Subject to this section, if the Commission is satisfied that a relevant gas retailer has an energy productivity shortfall (or relevant shortfall) with respect to a particular year, the Commission may recover an amount in respect of the shortfall (a shortfall penalty). (2) The amount that the Commission may recover as a shortfall penalty from the relevant gas retailer in respect of a relevant shortfall will be— (a) the prescribed base penalty; and (b) an additional amount, calculated in accordance with the regulations, to reflect the extent of the shortfall. (3) The Commission may not proceed to recover a shortfall penalty from a relevant gas retailer under this section unless the Commission has served on the retailer a notice (a shortfall notice)— (a) stating that the retailer has a relevant shortfall and the grounds on which the shortfall has been determined; and (b) setting out— (i) the prescribed base penalty; and (ii) the calculation used by the Commission to arrive at the amount payable under subsection (2)(b). (4) A shortfall notice must include, or be accompanied by, a statement advising that the relevant gas retailer may, by written notice to the Commission served within a period specified by the Commission, elect to be prosecuted in respect of the shortfall as an alternative to paying the shortfall penalty. (5) The period specified by the Commission under subsection (4) must be at least 21 days from the date of service of the shortfall notice on the relevant gas retailer. (6) If the relevant gas retailer elects to be prosecuted within the time specified under subsection (4), the Commission may not proceed to recover the shortfall penalty specified in the shortfall notice. (7) If the relevant gas retailer does not elect to be prosecuted within the time specified under subsection (4), the Commission may proceed to recover the shortfall penalty specified in the shortfall notice. (8) The Commission may, if it thinks fit, by subsequent notice— (a) withdraw a shortfall notice; (b) issue a new shortfall notice in place of an existing notice, on account of recalculations undertaken by the Commission (and this section will apply to any new shortfall notice published under this subsection as if the original notice had not been issued). (9) Subject to subsection (10), nothing in this section prevents the commencement of criminal proceedings at any time in relation to a contravention of this Act but if such proceedings are commenced then the Commission may not commence or continue proceedings to recover a shortfall penalty under this section in respect of the conduct to which the criminal proceedings relate. (10) If a shortfall penalty specified in a shortfall notice is paid by the relevant gas retailer (other than where the payment is made in response to an original shortfall notice after a new shortfall notice is served on the retailer), the retailer cannot be prosecuted in relation to the relevant contravention of the Act. (11) Subject to the preceding subsections, the Commission may recover the amount of any shortfall penalty as a debt from the relevant gas retailer. (12) If an amount is recovered as a shortfall penalty under this section, it must be applied under a scheme established by the Commission for 1 or more of the following purposes: (a) to assist persons who may have failed to benefit from activities relating to energy productivity on account of any gas retailer's energy productivity shortfall; (b) to support other programs or activities to promote or support energy productivity or renewable energy initiatives within South Australian households. (13) For the purposes of this section— (a) a relevant gas retailer has an energy productivity shortfall if the retailer has failed to engage, in accordance with and to the extent required by the regulations, in activities relating to energy productivity identified by the regulations for the purposes of this section; and (b) the extent of an energy productivity shortfall is to be calculated in accordance with the regulations. (14) This section extends to an energy efficiency shortfall occurring in 2009 (including a shortfall that is attributable to requirements arising before the commencement of this section). prescribed base penalty means an amount, not exceeding $100 000, prescribed by the regulations for the purposes of this section; relevant gas retailer means a regulated entity authorised to sell gas by retail (whether or not the entity is required to hold a licence under this Act) identified by the regulations for the purposes of this section. 93—Evidence (1) If, in any legal proceedings, a person is alleged to have held a specified appointment under this Act at a specified time, the allegation is taken to have been proved in the absence of proof to the contrary. (2) In any legal proceedings, an apparently genuine document purporting to be a certificate of the Commission certifying— (a) that a person was or was not the holder of a licence at a specified date or as to the particulars or conditions of a licence; or (b) as to the giving, issuing, receipt or contents of an order, direction, delegation, exemption, approval, authorisation, notice or assurance by the Commission, constitutes proof of the matters so certified in the absence of proof to the contrary. (2a) An apparently genuine document purporting to be a certificate of the Commission certifying as to a person's status as a small customer, or a customer of a prescribed class, in relation to a specified time and place constitutes proof of the matters so certified in the absence of proof to the contrary. (2b) In any legal proceedings, an apparently genuine document purporting to be a certificate of the Technical Regulator certifying as to the giving, issuing, receipt or contents of a direction, requirement, delegation, exemption, approval, authorisation, notice or assurance by the Technical Regulator, constitutes proof of the matters so certified in the absence of proof to the contrary. (3) In any legal proceedings, an apparently genuine document purporting to be a certificate of an authorised officer certifying as to the giving and contents of a direction by the officer under this Act, constitutes proof of the matters so certified in the absence of proof to the contrary. (4) If, in any legal proceedings, a person is alleged to have acted without proper authority or a specified approval required under this Act, the absence of such authority or approval will be presumed in the absence of proof that such authority or approval in fact existed or had been given. 94—Service (1) A notice or other document required or authorised to be given to or served on a person under this Act may be given or served— (a) by delivering it personally to the person or an agent of the person; or (b) by leaving it for the person at the person's place of residence or business with someone apparently over the age of 16 years; or (c) by posting it to the person or agent of the person at the person's or agent's last known place of residence or business; or (d) by transmitting to the person by email to the email address last provided to the Commission or Technical Regulator by the person for that purpose. (2) Without limiting the effect of subsection (1), a notice or other document required or authorised to be given to or served on a person may, if the person is a body corporate, be given to or served on the person in accordance with the Corporations Act 2001 of the Commonwealth. (3) If a notice or other document is required or authorised to be given to or served on the holder of a licence under this Act and the licence is held by two or more persons, it is sufficient for the purposes of this Act if the notice or other document is given to or served on any one of those persons. 95—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may deal with the following matters: (a) the distribution, sale and supply of gas; and (ab) matters relating to the operation of a transmission pipeline insofar as the operation affects a gas retail market; and (b) the construction, installation and positioning of gas infrastructure and gas installations; and (c) technical, operational and safety requirements and standards and monitoring and enforcing compliance with the prescribed requirements and standards; and (d) the odourising of gas; and (e) testing, approving and installation of meters; and (h) the exemption (conditionally or unconditionally) of persons, things or operations from the application of this Act or specified provisions of this Act; and (i) fees to be paid in respect of any matter under this Act and the waiver or refund of such fees; and (j) penalties not exceeding $10 000 for contravention of a regulation. (2a) If the regulations grant an exemption from the requirement to hold a licence under Part 3, the regulations may require a person exempted from the requirement to be treated as a gas entity for the purposes of specified provisions of this Act. (3) The regulations may— (a) be of general application or limited in application according to the persons, areas, times or circumstances to which it is expressed to apply; (b) provide that a matter or thing in respect of which regulations may be made is to be determined, regulated or prohibited according to the discretion of the Minister, Commission or the Technical Regulator; (c) refer to or incorporate, wholly or partially and with or without modification, any standard or other document prepared or published by a body referred to in the regulation, as is in force from time to time or as in force at a particular time.