Commonwealth: Building Energy Efficiency Disclosure Act 2010 (Cth)

Building Energy Efficiency Disclosure Act 2010 No. 67, 2010 Compilation No. 8 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Building Energy Efficiency Disclosure Act 2010 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 2A Object 3 Definitions 4 Offering to sell and inviting offers to purchase a building 5 Offering to let or sublet and inviting offers to lease or sublease a building or an area of a building 5A Application to wholly‑owned subsidiaries 6 Further subleases 7 Relationship with State and Territory law 8 Act binds the Crown 9 External Territories Part 2—Obligations to disclose energy efficiency information 10 Buildings and areas of buildings affected by energy efficiency disclosure obligations 11 No sale, lease or sublease without a building energy efficiency certificate 12 Rights of a prospective purchaser, lessee or sublessee 13 Building energy efficiency certificates—applications 13A Building energy efficiency certificates—issue 14 Building Energy Efficiency Register 15 Advertisements to include energy efficiency ratings 17 Exemptions on application 17A Automatic exemptions 18 Information gathering 19 Offences relating to information obtained or generated in applying for a certificate 20 Damages for failure to properly carry out assessments 21 Methods and standards of assessment Part 3—Accreditation of assessors Division 1—Accreditation 24 Application for accreditation 25 Accreditation of assessors 26 Period of accreditation 27 Conditions of accreditation Division 2—Suspension and revocation of accreditation 28 Suspension of accreditation 29 Lift of suspension 30 Revocation of accreditation Division 3—General provisions relating to accreditation 31 Register of Accredited Assessors 32 Offence—holding out to be an accredited assessor Part 4—Auditing accredited assessors Division 1—Appointment of auditing authority and auditors 33 Auditing authority 34 Auditors 35 Identity cards Division 2—Powers of auditors 36 Auditor may enter a building, an area of a building or an associated place by consent or under warrant 37 Monitoring powers of auditors 38 Persons assisting auditors 39 Auditor may ask questions and seek production of documents Division 3—Obligations of auditors 40 Consent 41 Announcement before entry under warrant 42 Auditor to be in possession of warrant 43 Details of warrant etc. to be given to occupier 44 Compensation for damage to electronic equipment Division 4—Occupier's rights and responsibilities 45 Occupier entitled to observe execution of warrant 46 Occupier to provide auditor with facilities and assistance Division 5—Monitoring warrants 47 Monitoring warrants Division 6—Powers of magistrates 48 Powers of magistrates Part 5—Enforcement Division 1—Obtaining information and documents 49 Secretary may obtain information or documents 50 Failure to comply with a notice Division 2—Civil penalties 51 Civil penalty provisions 52 Maximum amount of pecuniary penalty Division 3—Infringement notices 53 Infringement notices Division 4—Other matters 65 Energy Efficiency Non‑disclosure Register 66 Evidentiary certificate relating to the Building Energy Efficiency Register Part 6—Miscellaneous 67 Reviewable decisions 68 Internal review of certain decisions 69 Administrative review of certain decisions 70 Protection of information obtained or generated by issuing authorities, auditors etc. 71 Delegations 71A Issuing authorities 72 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to promote the disclosure of information about the energy efficiency of buildings, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Building Energy Efficiency Disclosure Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 28 June 2010 2. Sections 3 to 72 1 July 2010. 1 July 2010 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 2A Object The object of this Act is: (a) to promote the disclosure of information about the energy efficiency of buildings; and (b) to contribute to the achievement of Australia's greenhouse gas emissions reduction targets. 3 Definitions In this Act: accredited assessor means a person who is accredited as an assessor under Division 1 of Part 3, but does not include a person whose accreditation has been suspended or revoked. auditing authority means: (a) the Secretary; or (b) a person or body appointed by the Secretary under section 33. auditor means a person appointed as an auditor under section 34. Australia's greenhouse gas emissions reduction targets means: (a) if: (i) Australia's current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and (ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement; the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or (b) in any other case—the greenhouse gas emissions reduction targets included in: (i) Australia's current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or (ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time. building energy efficiency certificate means a certificate issued under section 13A. civil penalty provision has the same meaning as in the Regulatory Powers Act. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. Court means: (a) the Federal Court of Australia; or (b) the Federal Circuit and Family Court of Australia (Division 2). current: a building energy efficiency certificate is current for the period set out in the certificate under paragraph 13A(2)(d). current energy efficiency rating means an energy efficiency rating set out in a current building energy efficiency certificate. disclosure affected area of a building means an area of a building, other than an exempt area, that is: (a) used or capable of being used as an office; and (b) of a kind determined by the Minister under subsection 10(2) to be disclosure affected. disclosure affected building means a building, other than an exempt building, that is: (a) used or capable of being used as an office; and (b) of a kind determined by the Minister under subsection 10(1) to be disclosure affected. energy efficiency disclosure obligation means an obligation under section 11, subsection 12(6) or section 15. entity has the same meaning as in the Income Tax Assessment Act 1997. exempt area, of a building, means an area exempted under section 17 or 17A. exempt building means a building exempted under section 17 or 17A. inviting an offer to lease, in relation to a building or an area of a building, has a meaning affected by section 5. inviting an offer to purchase, in relation to a building, has a meaning affected by section 4. inviting an offer to sublease, in relation to a building or an area of a building, has a meaning affected by section 5. issue day: see section 13. issuing authority means: (a) the Secretary; or (b) a person or body approved by the Secretary under section 71A. lighting energy efficiency assessment means: (a) in relation to a building—an assessment of the energy efficiency of the lighting for the building that might reasonably be expected to remain if the building is sold, let or sublet; or (b) in relation to an area of a building—an assessment of the energy efficiency of the lighting for the area that might reasonably be expected to remain if the area is let or sublet. monitoring powers has the meaning given by section 37. monitoring warrant is a warrant issued under section 47. non‑assessable, in relation to a building or an area of a building: see section 17. offer to let, in relation to a building or an area of a building, has a meaning affected by section 5. offer to sell, in relation to a building, has a meaning affected by section 4. offer to sublet, in relation to a building or an area of a building, has a meaning affected by section 5. Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time. Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). person assisting an auditor has the meaning given by section 38. registered, in relation to a building energy efficiency certificate, means registered on the Building Energy Efficiency Register. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. reviewable decision has the meaning given by section 67. Secretary means the Secretary of the Department. start day: see section 13. wholly‑owned subsidiary has the same meaning as in the Income Tax Assessment Act 1997. 4 Offering to sell and inviting offers to purchase a building Offering to sell (1) A person is taken to offer to sell a building if the person offers to enter into a contract under which a contingent obligation or right to sell the building would be created. (2) A person is taken to continue to offer to sell a building if the person continues to offer to enter into a contract under which a contingent obligation or right to sell the building would be created. Inviting offers to purchase (3) A person is taken to invite an offer to purchase a building if the person invites an offer to enter into a contract under which a contingent obligation or right to purchase the building would be created. (4) A person is taken to continue to invite an offer to purchase a building if the person continues to invite an offer to enter into a contract under which a contingent obligation or right to purchase the building would be created. 5 Offering to let or sublet and inviting offers to lease or sublease a building or an area of a building Offering to let or sublet (1) A person is taken to offer to let a building or an area of a building (a space) if the person offers to enter into a contract under which a contingent obligation or right to let the space would be created. (2) A person is taken to continue to offer to let a space if the person continues to offer to enter into a contract under which a contingent obligation or right to let the space would be created. (3) A person is taken to offer to sublet a space if the person offers to enter into a contract under which a contingent obligation or right to sublet the space would be created. (4) A person is taken to continue to offer to sublet a space if the person continues to offer to enter into a contract under which a contingent obligation or right to sublet the space would be created. Inviting offers to lease or sublease (5) A person is taken to invite an offer to lease a space if the person invites an offer to enter into a contract under which a contingent obligation or right to lease the space would be created. (6) A person is taken to continue to invite an offer to lease a space if the person continues to invite an offer to enter into a contract under which a contingent obligation or right to lease the space would be created. (7) A person is taken to invite an offer to sublease a space if the person invites an offer to enter into a contract under which a contingent obligation or right to sublease the space would be created. (8) A person is taken to continue to invite an offer to sublease a space if the person continues to invite an offer to enter into a contract under which a contingent obligation or right to sublease the space would be created. 5A Application to wholly‑owned subsidiaries This Act does not apply in relation to an offer to enter into a contract between: (a) an entity and a wholly‑owned subsidiary of the entity; or (b) wholly‑owned subsidiaries of an entity. 6 Further subleases To avoid doubt, where a person has taken a sublease of a disclosure affected building or a disclosure affected area of a building (a disclosure affected space), the person is subject to the energy efficiency disclosure obligations: (a) if the person offers or continues to offer to sublet the disclosure affected space—in the same way as a lessee would be subject to those obligations if the lessee offered or continued to offer to sublet the space; and (b) if the person invites offers or continues to invite offers to sublease the disclosure affected space—in the same way as a lessee would be subject to those obligations if the lessee invited or continued to invite offers to sublease the space. 7 Relationship with State and Territory law This Act is not intended to displace or limit a law of a State or Territory imposing a disclosure obligation in relation to the sale, lease or sublease of a building or an area of a building, unless the law is directly inconsistent with this Act. 8 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Crown. 9 External Territories This Act extends to all the external Territories. Part 2—Obligations to disclose energy efficiency information 10 Buildings and areas of buildings affected by energy efficiency disclosure obligations (1) The Minister may, by legislative instrument, determine that a specified kind of building is disclosure affected. (2) The Minister may, by legislative instrument, determine that a specified kind of area of a building is disclosure affected. 11 No sale, lease or sublease without a building energy efficiency certificate (1) If a constitutional corporation owns a disclosure affected building, the corporation must not do any of the following unless a current building energy efficiency certificate for the building is registered: (a) offer, or continue to offer, to sell the building; (b) invite offers, or continue to invite offers, to purchase the building; (c) offer, or continue to offer, to let the building; (d) invite offers, or continue to invite offers, to lease the building. Civil penalty: 1,000 penalty units. (2) If a constitutional corporation leases a disclosure affected building, the corporation must not do any of the following unless a current building energy efficiency certificate for the building is registered: (a) offer, or continue to offer, to sublet the building; (b) invite offers, or continue to invite offers, to sublease the building. Civil penalty: 1,000 penalty units. (3) If a constitutional corporation owns a building, the corporation must not do any of the following: (a) offer, or continue to offer, to let a disclosure affected area of the building; (b) invite offers, or continue to invite offers, to lease a disclosure affected area of the building; unless a current building energy efficiency certificate for the area is registered. Civil penalty: 1,000 penalty units. (4) If a constitutional corporation leases a disclosure affected area of a building, the corporation must not do any of the following unless a current building energy efficiency certificate for the area is registered: (a) offer, or continue to offer, to sublet the area; (b) invite offers, or continue to invite offers, to sublease the area. Civil penalty: 1,000 penalty units. (5) A constitutional corporation that contravenes a requirement of this section in relation to a continuing offer or a continuing invitation commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order under the Regulatory Powers Act and any subsequent day. (6) Subsections (1) to (4) do not apply if: (a) an offer to let or sublet a building or an area of a building is made and, at the time the offer is made, a term of 12 months or less is proposed; and (b) at no time while the offer is continuing is a term of more than 12 months proposed. (7) Subsections (1) to (4) do not apply if: (a) an invitation to make offers to lease or sublease a building or an area of a building is made and, at the time the invitation is made, a term of 12 months or less is proposed; and (b) at no time while the invitation is continuing is a term of more than 12 months proposed. (8) In working out, for the purposes of subsections (6) and (7), whether the term proposed for a lease or sublease is a period of 12 months or less, include in the period any options to extend the lease or sublease. 12 Rights of a prospective purchaser, lessee or sublessee (1) If: (a) a person (the owner) owns a disclosure affected building; and (b) the owner offers to sell the building, or invites offers to purchase the building; and (c) a constitutional corporation (the prospective purchaser) has an interest, in good faith, in accepting the offer or making an offer in response to the invitation; the prospective purchaser may give notice in writing to the owner at any time while the offer or invitation continues, requiring the owner to give the prospective purchaser a current building energy efficiency certificate for the building that has been registered. (2) If: (a) a person (the owner) owns a disclosure affected building; and (b) the owner offers to let the building, or invites offers to lease the building; and (c) a constitutional corporation (the prospective lessee) has an interest, in good faith, in accepting the offer or making an offer in response to the invitation; the prospective lessee may give notice in writing to the owner at any time while the offer or invitation continues, requiring the owner to give the prospective lessee a copy of a current building energy efficiency certificate for the building that has been registered. (3) If: (a) a person (the lessee) leases a disclosure affected building; and (b) the lessee offers to sublet the building, or invites offers to sublease the building; and (c) a constitutional corporation (the prospective sublessee) has an interest, in good faith, in accepting the offer or making an offer in response to the invitation; the prospective sublessee may give notice in writing to the lessee at any time while the offer or invitation continues, requiring the lessee to give the prospective sublessee a copy of a current building energy efficiency certificate for the building that has been registered. (4) If: (a) a person (the owner) owns a building; and (b) the owner offers to let a disclosure affected area of the building, or invites offers to lease such an area; and (c) a constitutional corporation (the prospective lessee) has an interest, in good faith, in accepting the offer or making an offer in response to the invitation; the prospective lessee may give notice in writing to the owner at any time while the offer or invitation continues, requiring the owner to give the prospective lessee a copy of a current building energy efficiency certificate for the area that has been registered. (5) If: (a) a person (the lessee) leases a disclosure affected area of a building; and (b) the lessee offers to sublet the area, or invites offers to sublease the area; and (c) a constitutional corporation (the prospective sublessee) has an interest, in good faith, in accepting the offer or making an offer in response to the invitation; the prospective sublessee may give notice in writing to the lessee at any time while the offer or invitation continues, requiring the lessee to give the prospective sublessee a copy of a current building energy efficiency certificate for the area that has been registered. (5A) Despite subsections (2) to (5), a person may not give notice in writing under any of those subsections if: (a) the term proposed for the lease or sublease at the time the offer or invitation is made is 12 months or less, including any options to extend the lease or sublease; and (b) at no time while the offer or invitation is continuing is a term of more than 12 months proposed. (6) If a person is, by notice given in accordance with this section, required to give another person a copy of a current building energy efficiency certificate for a building or an area of a building that has been registered, the person must do so as soon as is reasonably practicable. Civil penalty: (a) for an individual—350 penalty units; and (b) for a body corporate—1,000 penalty units. 13 Building energy efficiency certificates—applications (1) In this Act: issue day, in relation to a building energy efficiency certificate for a building or an area of a building, means the day on which the certificate is issued under subsection 13A(1). start day, in relation to a building energy efficiency certificate for a building or an area of a building, means: (a) the issue day for the certificate; or (b) a later day specified in the certificate as the start day. (2) A person may apply to an issuing authority for a building energy efficiency certificate for a building or an area of a building. (3) The application must: (a) be in writing, in a form approved by the Secretary; and (b) include the following: (i) an energy efficiency rating for the building (or the building in which the area is located); (ii) a lighting energy efficiency assessment for the building or the area; (iii) the start day the person seeks; and (c) meet any other requirements determined by the Secretary under subsection (6). (4) The energy efficiency rating must satisfy one of the following conditions: (a) the rating was worked out by an accredited assessor by applying the assessment methods and standards determined under section 21; (b) an auditing authority: (i) provided or approved the rating; and (ii) is satisfied that the rating was worked out by applying the assessment methods and standards determined under section 21. (5) The lighting energy efficiency assessment must satisfy one of the following conditions: (a) the assessment was performed by an accredited assessor by applying the assessment methods and standards determined under section 21; (b) an auditing authority: (i) provided or approved the assessment; and (ii) is satisfied that the assessment was performed by applying the assessment methods and standards determined under section 21. (6) The Secretary may, by legislative instrument, make a determination for the purposes of paragraph (3)(c). Note: For who is an issuing authority, see section 71A. 13A Building energy efficiency certificates—issue (1) An issuing authority may, on application under section 13, issue a building energy efficiency certificate for a building or an area of a building if the issuing authority is satisfied that: (a) the application meets the requirements of subsections 13(3), (4) and (5); and (b) the energy efficiency rating is appropriate for the building (or the building in which the area is located), applying the methods and standards determined under section 21; and (c) the lighting energy efficiency assessment is appropriate for the building or the area, applying the methods and standards determined under section 21. (2) The certificate must set out the following: (a) the energy efficiency rating for the building (or the building in which the area is located); (b) the lighting energy efficiency assessment for the building or the area; (c) the start day for the certificate (which may be different from the start day sought by the applicant); (d) the period for which the certificate is current; (e) any other information determined by the Secretary under subsection (4). (3) For paragraph (2)(d), the period set out in the certificate must be a period of no more than 12 months beginning on the start day set out in the certificate. (4) The Secretary may, by legislative instrument, make a determination for the purposes of paragraph (2)(e). 14 Building Energy Efficiency Register (1) The Secretary is to maintain, or cause to be maintained, a register, to be known as the Building Energy Efficiency Register, in which the Secretary includes particulars of building energy efficiency certificates. (2) The Register may include information about the following: (a) current building energy efficiency certificates and those that are no longer current; (b) current exemptions under section 17 and those that are no longer current; (c) variations and revocations of such exemptions. (3) The Secretary must delete, or cause to be deleted, the particulars of a building energy efficiency certificate from the Register if the Secretary is notified in writing by an auditing authority that: (a) in the case of a building energy efficiency certificate for a building: (i) the energy efficiency rating specified in the certificate for the building is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; or (ii) the assessment of the energy efficiency of the lighting for the building that might reasonably be expected to remain if the building is sold, let or sublet is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; or (b) in the case of a building energy efficiency certificate for an area of a building: (i) the energy efficiency rating specified in the certificate for the building in which the area is located is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; or (ii) the assessment of the energy efficiency of the lighting for the area that might reasonably be expected to remain if the area is let or sublet is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the area. (4) If particulars of a building energy efficiency certificate for a building are deleted from the Register, the Secretary may notify any person who the Secretary reasonably believes is currently the owner of the building, or a lessee or sublessee of the building or an area of the building, of that fact. (5) If particulars of a building energy efficiency certificate for an area of a building are deleted from the Register, the Secretary may notify any person who the Secretary reasonably believes is currently the lessee or sublessee of the area of that fact. (6) The Register must be maintained by electronic means and be made available for inspection on the internet. (7) The Register is not a legislative instrument. 15 Advertisements to include energy efficiency ratings (1) If a constitutional corporation owns a disclosure affected building, the corporation must not advertise or continue to advertise the building for sale or lease unless: (a) a current energy efficiency rating for the building is included in the advertisement; and (b) the rating is expressed in the advertisement in a manner determined by the Secretary by legislative instrument. Civil penalty: 1,000 penalty units. (2) If a constitutional corporation leases a disclosure affected building, the corporation must not advertise or continue to advertise the building for sublease unless: (a) a current energy efficiency rating for the building is included in the advertisement; and (b) the rating is expressed in the advertisement in a manner determined by the Secretary by legislative instrument. Civil penalty: 1,000 penalty units. (3) If a constitutional corporation owns a building, the corporation must not advertise or continue to advertise a disclosure affected area of the building for lease unless: (a) a current energy efficiency rating for the building is included in the advertisement; and (b) the rating is expressed in the advertisement in a manner determined by the Secretary by legislative instrument. Civil penalty: 1,000 penalty units. (4) If a constitutional corporation leases a disclosure affected area of a building, the corporation must not advertise or continue to advertise the area for sublease unless: (a) a current energy efficiency rating for the building is included in the advertisement; and (b) the rating is expressed in the advertisement in a manner determined by the Secretary by legislative instrument. Civil penalty: 1,000 penalty units. (5) A constitutional corporation that contravenes a requirement of this section in relation to a continuing advertisement commits a separate contravention in respect of each day during which the person fails to comply with that requirement, including the day of the making of a relevant civil penalty order under the Regulatory Powers Act and any subsequent day. (6) Subsections (1) to (4) do not apply if: (a) a constitutional corporation advertises or continues to advertise a building or an area of a building for lease or sublease; and (b) the term proposed for the lease or sublease in the advertisement is 12 months or less, including any options to extend the lease or sublease; and (c) at no time while the advertisement is continuing is a term of more than 12 months proposed. 17 Exemptions on application Application for an exemption (1) A person may apply to the Secretary for a building or an area of a building to be exempt from the operation of section 11, 12 or 15. (2) The application must: (a) be in writing in a form approved by the Secretary; and (b) include information of a kind prescribed by regulation; and (c) be accompanied by the fee (if any) prescribed by regulation. Granting an exemption (3) The Secretary may grant the exemption: (a) if the Secretary is satisfied that the building or the area is used for police or security operations; or (b) if the Secretary is satisfied that the building or the area is non‑assessable (see subsections (7) and (8)); or (c) in circumstances prescribed by regulation for the purposes of this paragraph. (4) The Secretary must give the applicant written notice of the Secretary's decision under subsection (3). Varying or revoking an exemption (5) The Secretary may vary or revoke an exemption by giving notice in writing to: (a) the applicant; and (b) any other person whose interest in the building or the area is registered with a land titles office (however described). (6) Subsection (5) does not limit subsection 33(3) of the Acts Interpretation Act 1901. Meaning of non‑assessable (7) A building is non‑assessable if it is not possible to work out an energy efficiency rating for the building, or perform a lighting energy efficiency assessment for the building, because of the characteristics of the building. (8) An area of a building is non‑assessable if it is not possible to work out an energy efficiency rating for the building in which the area is located, or perform a lighting energy efficiency assessment for the area, because of the characteristics of the building or the area. 17A Automatic exemptions A building or an area of a building is exempt from the operation of section 11, 12 or 15 if circumstances specified in a determination under paragraph 21(1)(d) apply to the building or the area. 18 Information gathering (1) This section applies if: (a) a person asks an accredited assessor to assess a building or an area of a building for the purposes of applying for a building energy efficiency certificate for the building or area; and (b) the person does so in order to satisfy an energy efficiency disclosure obligation. (2) The accredited assessor may, by written notice, request the Secretary to require an owner, lessee or sublessee of the building or area to give the assessor information that is: (a) necessary for the purposes of the assessment; and (b) of a kind specified in the notice; if the assessor reasonably believes that the person possesses the information. (3) At the written request of the accredited assessor, the Secretary may, by written notice, require the owner, lessee or sublessee of the building or the area to give the information to the assessor within the period specified in the notice. The period must end at least 14 days after the day on which the notice is given. (4) At the written request of the accredited assessor, the Secretary may, by written notice, require an owner, lessee or sublessee of the building or area of a building to give the assessor access to a place in or associated with the building or area if access to the place is necessary for the purposes of the assessment. (5) A notice given under subsection (4) to an owner, lessee or sublessee must specify the day and time on which access by the accredited assessor is required. However, the day and time on which access is required under the notice must be reasonable. Civil penalty provision (6) An owner, lessee or sublessee to whom notice is given in accordance with this section must comply with the notice. Civil penalty: (a) for an individual—200 penalty units; and (b) for a body corporate—500 penalty units. (7) If a person contravenes subsection (6) by failing to give access at a day and time on which access is required under a notice, the person commits a separate contravention of that subsection in respect of each day after the day required under the notice, including a day of the making of the relevant civil penalty order and any subsequent day. Note: If a person contravenes subsection (6) by failing to give information within the period specified in the notice, under section 93 of the Regulatory Powers Act, the person commits a separate contravention of that subsection in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day). 19 Offences relating to information obtained or generated in applying for a certificate (1) A person commits an offence if: (a) the person: (i) is given information in response to a notice given or purportedly given under subsection 18(3); or (ii) otherwise obtains or generates information for the purposes of obtaining a building energy efficiency certificate; and (b) the person does any of the following: (i) copies, or makes a record of, the information; (ii) uses the information; (iii) discloses the information to any person. Penalty: Imprisonment for 2 years. (2) Subsection (1) does not apply if: (a) the information is copied, recorded, used or disclosed for the purposes of obtaining a building energy efficiency certificate; or (b) the information is copied, recorded, used or disclosed in, or in connection with, an audit conducted under Part 4; or (c) the information is copied, recorded, used or disclosed in circumstances in which the conduct is permitted, either expressly or by implication, under this Act; or (d) the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) that relates to this Act; or (e) the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 149.1 of the Criminal Code (obstruction of Commonwealth public officials) that relates to this Act; or (f) the information is copied, recorded, used or disclosed with the consent of: (i) in the case of information given in response to a notice given or purportedly given under subsection 18(3)—the person who gave the information; and (ii) in the case of information otherwise obtained for the purposes of obtaining a building energy efficiency certificate—the person from whom the information was obtained; and (iii) in the case of information generated for the purposes of obtaining a building energy efficiency certificate—the person on whose behalf the accredited assessor made an application for the certificate; or (g) the information is already publicly available. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). 20 Damages for failure to properly carry out assessments (1) An accredited assessor who carries out an assessment of a disclosure affected building for the purposes of applying for a building energy efficiency certificate must, in doing so: (a) work out the proposed energy efficiency rating for the building by applying the assessment methods and standards determined under section 21; and (b) perform a lighting energy efficiency assessment for the building by applying the assessment methods and standards determined under section 21; and (c) comply with the assessor's conditions of accreditation. (2) An accredited assessor who carries out an assessment of a disclosure affected area of a building for the purposes of applying for a building energy efficiency certificate must, in doing so: (a) work out the proposed energy efficiency rating for the building by applying the assessment methods and standards determined under section 21; and (b) perform a lighting energy efficiency assessment for the area by applying the assessment methods and standards determined under section 21; and (c) comply with the assessor's conditions of accreditation. (3) If one of the following persons suffers damage as a result of a failure to comply with a duty under this section, the person may recover damages for any loss suffered as a result of that failure in a Court: (a) if the certificate is sought for a disclosure affected building: (i) the owner of the building; and (ii) if all or part of the building is let—the lessor and lessee under the lease; and (iii) if all or part of the building is sublet—the sublessor and sublessee under the sublease; (b) if the rating or certificate is sought for a disclosure affected area of a building: (i) the owner of the building; and (ii) the lessor and lessee under a lease of the area; and (iii) if the area is sublet—the sublessor and sublessee under the sublease. Note: This section does not provide for recovery of damages in relation to approval by an auditing authority of energy efficiency ratings or lighting energy efficiency assessments. 21 Methods and standards of assessment (1) The Secretary may, by legislative instrument, determine: (a) the assessment methods and standards to be applied in working out the energy efficiency rating for a building; and (b) the assessment methods and standards to be applied in performing a lighting energy efficiency assessment for the building; and (c) the assessment methods and standards to be applied in performing a lighting energy efficiency assessment for the area; and (d) the circumstances in which a building or an area of a building is exempt for the purposes of section 17A. (2) Without limiting subsection (1), the Secretary may determine an assessment method or standard by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force at a particular time or as in force from time to time. Part 3—Accreditation of assessors Division 1—Accreditation 24 Application for accreditation (1) A person may apply to the Secretary to become an accredited assessor. (2) The application must: (a) be in writing in a form approved by the Secretary; and (b) include information of the prescribed kind; and (c) be accompanied by the prescribed fee. 25 Accreditation of assessors (1) The Secretary must refuse to accredit a person as an assessor if: (a) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information or documents in, or in connection with, an application for a building energy efficiency certificate; or (b) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information in, or in connection with, an audit conducted under Part 4; or (c) the Secretary is satisfied that the person has otherwise provided false or misleading information in, or in connection with, a rating of the energy efficiency of a building on which another person might rely for any purpose; or (d) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information in, or in connection with, an application for accreditation or renewal of accreditation; or (e) the person has not successfully completed the prescribed training. (2) The Secretary may refuse to accredit a person as an assessor if: (a) in a case where the person has previously been accredited as an assessor: (i) the person has been found in proceedings for damages brought under section 20 not to have properly applied the assessment methods and standards determined under section 21 for the purposes of working out a proposed energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; or (ii) the Secretary is otherwise reasonably satisfied that the person has not properly applied the assessment methods and standards determined under section 21 for the purposes of working out a proposed energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; or (iii) the person has failed to comply with a condition of accreditation; or (b) in any case: (i) the Secretary is satisfied that the person needs to undertake further training before the person can properly apply the assessment methods and standards determined under section 21 and the person has not successfully completed that training; or (ii) the Secretary is satisfied that the person does not have the qualifications or experience necessary to properly apply the assessment methods and standards determined under section 21; or (c) the Secretary is satisfied that the person will not be able to satisfy a condition of accreditation prescribed under subsection 27(1) that is relevant to the person. (3) Otherwise, the Secretary must accredit the person. (4) The Secretary must notify the person in writing of the Secretary's decision on the application. 26 Period of accreditation The Secretary may accredit a person as an assessor for a period of no less than 12 months and no more than 3 years. 27 Conditions of accreditation (1) The regulations may prescribe conditions to be imposed on the accreditation of all or a specified class of assessors. (2) The Secretary may impose additional conditions on the accreditation of an assessor. (3) Without limiting subsection (2), those conditions may include: (a) a condition that the assessor may work out energy efficiency ratings or perform lighting energy efficiency assessments only under the supervision of an auditor; and (b) a condition that the assessor is to undertake specified further training while accredited. (4) The Secretary may, at any time, vary or revoke a condition imposed under subsection (2). (5) The Secretary must notify a person in writing of any condition imposed under subsection (2) on the person's accreditation as an assessor, and the variation or revocation of such a condition. (6) A notice given under subsection (5) is not a legislative instrument. Division 2—Suspension and revocation of accreditation 28 Suspension of accreditation (1) The Secretary may suspend the accreditation of a person as an assessor if: (a) the person has been found in proceedings for damages brought under section 20 not to have properly applied the assessment methods and standards determined under section 21 for the purposes of working out a proposed energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; or (b) the Secretary is otherwise reasonably satisfied that the person has not properly applied the assessment methods and standards determined under section 21 for the purposes of working out a proposed energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; or (c) the person has failed to comply with a condition of accreditation. (2) The Secretary must notify a person in writing of a decision to suspend the person's accreditation 29 Lift of suspension (1) The Secretary may lift the suspension of the accreditation of a person if the Secretary is satisfied that: (a) the issues that resulted in accreditation being suspended have been addressed; and (b) any other action necessary to ensure the person will properly apply the assessment methods and standards determined under section 21 and comply with the conditions of accreditation has been or will be taken. (2) If the accreditation of a person expires before a suspension of that accreditation is lifted, the Secretary may waive all or a specified part of: (a) the requirement under paragraph 24(2)(b) to produce information on the application by the person for accreditation; and (b) the requirement under paragraph 24(2)(c) to pay a fee on the application by the person for accreditation. (3) The Secretary must notify a person in writing of: (a) a decision to lift the suspension of the person's accreditation; and (b) a decision to waive all or part of a requirement under paragraph 24(2)(b) or (c). 30 Revocation of accreditation (1) The Secretary must revoke the accreditation of a person as an assessor if: (a) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information or documents in, or in connection with, an application for a building energy efficiency certificate; or (b) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information in, or in connection with, an audit conducted under Part 4; or (c) the Secretary is satisfied that the person has otherwise provided false or misleading information in, or in connection with, a rating of the energy efficiency of a building on which another person might rely for any purpose; or (d) the person has been convicted of an offence against Division 137 of the Criminal Code for the provision of false or misleading information in, or in connection with, an application for accreditation or renewal of accreditation. (2) The Secretary may revoke the accreditation of a person as an assessor in the following circumstances: (a) the person has been found in proceedings for damages brought under section 20 not to have properly applied the assessment methods and standards determined under section 21 for the purposes of working out an energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; (b) the Secretary is otherwise reasonably satisfied that the person has not properly applied the assessment methods and standards determined under section 21 for the purposes of working out an energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building; (c) the person has failed to comply with a condition of the person's accreditation. (3) The Secretary must notify a person in writing of a decision to revoke the person's accreditation. Division 3—General provisions relating to accreditation 31 Register of Accredited Assessors (1) The Secretary must maintain, or cause to be maintained, a register, to be known as the Register of Accredited Assessors. (2) The Register is to contain: (a) the name of each accredited assessor; and (b) the registration number for each accredited assessor; and (c) any other information that the Secretary considers relevant in assisting a person in engaging an accredited assessor to work out an energy efficiency rating or perform a lighting energy efficiency assessment for the purposes of applying for a building energy efficiency certificate. (3) The Register must be maintained by electronic means and be available for inspection on the internet. (4) The Register is not a legislative instrument. 32 Offence—holding out to be an accredited assessor A person commits an offence if: (a) the person (the defendant) makes a statement (whether orally, in a document or in any other way); and (b) the statement might reasonably lead another person to believe that, at a particular time, the defendant is or was an accredited assessor; and (c) at that time, the defendant is not or was not an accredited assessor. Penalty: 60 penalty units. Part 4—Auditing accredited assessors Division 1—Appointment of auditing authority and auditors 33 Auditing authority (1) The Secretary may, by written instrument, appoint a person or body as an auditing authority. (2) An auditing authority has the following functions: (a) to direct auditors in performing their work to ensure that: (i) accredited assessors properly apply the assessment methods and standards determined under section 21 in working out ratings and performing assessments for the purposes of applying for building energy efficiency certificates; and (ii) the ratings and assessments are not influenced by any conflict of interest; (b) to provide or approve ratings and assessments for building energy efficiency certificates; (c) such other functions as are conferred by this Act or the regulations. (3) An auditing authority must perform its functions in accordance with any policies notified to the auditing authority in writing by the Secretary. (4) An auditing authority must notify the Secretary in writing as soon as is reasonably practicable if it becomes apparent as a result of an audit of an assessment carried out by an accredited assessor that: (a) in relation to a building for which a building energy efficiency certificate is current: (i) the energy efficiency rating specified in the certificate for the building is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; or (ii) the lighting energy efficiency assessment for the building is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; and (b) in relation to an area of a building for which a building energy efficiency certificate is current: (i) the energy efficiency rating specified in the certificate for the building in which the area is located is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the building; or (ii) the lighting energy efficiency assessment for the area is not that which, applying the assessment methods and standards determined under section 21, is appropriate for the area. (5) A policy made under subsection (3) is not a legislative instrument. 34 Auditors (1) The Secretary may, by written instrument, appoint any of the following persons as an auditor: (a) an APS employee; (b) a member of the civil or public service of a State or Territory; (c) a person engaged by the Commonwealth as an auditor under contract or otherwise. (2) The Secretary may only appoint a person as an auditor if the Secretary is satisfied that the person has the skills and experience necessary to perform the functions described in subsection (3). (3) The functions of an auditor are to: (a) conduct audits of: (i) energy efficiency ratings and lighting energy efficiency assessments worked out or performed by accredited assessors for the purposes of applying for building energy efficiency certificates; and (ii) such ratings and assessments provided or approved by auditing authorities; and (iii) applications for exemptions under section 17; and (iv) the documentation and record keeping of accredited assessors and other persons in relation to such ratings, assessments and applications; and (b) supervise ratings and assessments by accredited assessors to ensure that: (i) the assessment methods and standards determined under section 21 are properly applied; and (ii) the ratings and assessments are properly documented; and (iii) the records of ratings and assessments are properly kept. (3A) Without limiting subsection (3), an auditor may conduct an audit of a rating, assessment or application by doing no more than reviewing documents relating to the assessment, rating or application. (4) An auditor must perform his or her functions in accordance with any directions given by an auditing authority. (5) If a direction is given in writing, the direction is not a legislative instrument. 35 Identity cards (1) The Secretary must issue an identity card to an auditor. Form of identity card (2) The identity card must: (a) satisfy the requirements prescribed by the regulations; and (b) contain a recent photograph of the auditor. Offence (3) A person commits an offence if: (a) the person has been issued with an identity card; and (b) the person ceases to be an auditor; and (c) the person does not, as soon as practicable after so ceasing, return the identity card to the Secretary. Penalty: 1 penalty unit. (4) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Defence—card lost or destroyed (5) Subsection (3) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). Auditor must carry card (6) An auditor must carry his or her identity card at all times when exercising powers as an auditor. Division 2—Powers of auditors 36 Auditor may enter a building, an area of a building or an associated place by consent or under warrant (1) An auditor may exercise the powers under this section for the purpose of determining whether an accredited assessor has properly applied the assessment methods and standards determined under section 21 for the purposes of working out a proposed energy efficiency rating or performing a lighting energy efficiency assessment for a building or an area of a building. (2) The auditor may: (a) enter the building or area, and any place associated with the building or area (an associated place); and (b) exercise the monitoring powers set out in section 37. (3) However, an auditor is not authorised to enter a building, an area or an associated place unless: (a) the occupier of the building, area or associated place has consented to the entry and the auditor has shown his or her identity card if required by the occupier; or (b) the entry is made under a monitoring warrant. Note: If entry to a building, an area or an associated place is with the occupier's consent, the auditor must leave the building, area or associated place if the consent ceases to have effect: see section 40. 37 Monitoring powers of auditors (1) The following are the monitoring powers that an auditor may exercise in relation to a building, an area or an associated place under section 36: (a) the power to observe any activity conducted in the building, area or associated place; (b) the power to inspect, or take measurements of, any thing in the building, area or associated place; (c) the power to make any still or moving image or any recording of the building, area or associated place or any thing in the building, area or associated place; (d) the power to inspect any document in the building, area or associated place; (e) the power to take extracts from, or make copies of, any such document; (f) the power to take into the building, area or associated place such equipment and materials as the auditor requires for the purpose of exercising powers in relation to the building, area or associated place; (g) the powers set out in subsections (2) and (3). Operating electronic equipment (2) The monitoring powers include the power to operate electronic equipment in the building, area or associated place to see whether: (a) the equipment; or (b) a disk, tape or other storage device that: (i) is in the building, area or associated place; and (ii) can be used with the equipment or is associated with it; contains information that is relevant to determining whether an accredited assessor has properly applied the assessment methods and standards determined under section 21. (3) The monitoring powers include the following powers in relation to information described in subsection (2) found in the exercise of the power under that subsection: (a) the power to operate electronic equipment in the building, area or associated place to put the information in documentary form and remove the documents so produced from the building, area or associated place; (b) the power to operate electronic equipment in the building, area or associated place to transfer the information to a disk, tape or other storage device that: (i) is brought to the building, area or associated place for the exercise of the power; or (ii) is in the building, area or associated place and the use of which for that purpose has been agreed in writing by the occupier of the building, area or associated place; and remove the disk, tape or other storage device from the building, area or associated place. (4) An auditor may operate electronic equipment as mentioned in subsection (2) or (3) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. 38 Persons assisting auditors Auditors may be assisted by other persons (1) An auditor may, in entering a building, an area or an associated place under section 36 and in exercising monitoring powers in relation to the building, area or associated place, be assisted by other persons if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the auditor. Powers of a person assisting the auditor (2) A person assisting the auditor may: (a) enter the building, area or associated place; and (b) exercise monitoring powers in relation to the building, area or associated place, but only in accordance with a direction given to the person by the auditor. (3) A power exercised by a person assisting the auditor as mentioned in subsection (2) is taken for all purposes to have been exercised by the auditor. (4) If a direction is given under paragraph (2)(b) in writing, the direction is not a legislative instrument. 39 Auditor may ask questions and seek production of documents Entry with consent (1) If an auditor is authorised to enter a building, an area or an associated place because the occupier has consented to the entry, the auditor may ask the occupier to: (a) answer any questions that are put by the auditor and that relate to determining whether an accredited assessor has properly applied the assessment methods and standards determined under section 21; and (b) produce any document that is requested by the auditor and that relates to whether an accredited assessor has properly applied the assessment methods and standards determined under section 21. Entry under a monitoring warrant (2) If an auditor is authorised to enter a building, an area or an associated place by a monitoring warrant, the auditor may require any person in the building, area or associated place to: (a) answer any questions that are put by the auditor and that relate to determining whether an accredited assessor has properly applied the assessment methods and standards determined under section 21; and (b) produce any document that is requested by the auditor and that relates to whether an accredited assessor has properly applied the assessment methods and standards determined under section 21. Offence (3) A person commits an offence if: (a) the person is subject to a requirement under subsection (2); and (b) the person fails to comply with the requirement. Penalty: 30 penalty units. (4) An individual is not required to answer a question or produce a document if the answer or document might tend to incriminate the individual or expose the individual to a penalty. (5) Subsection (3) does not apply to the extent that the person is not capable of complying with the requirement. Note: The defendant bears an evidential burden in relation to the matters in subsections (4) and (5) (see subsection 13.3(3) of the Criminal Code). Division 3—Obligations of auditors 40 Consent (1) An auditor must, before obtaining the consent of an occupier of a building, an area or an associated place for the purposes of paragraph 36(3)(a), inform the occupier that the occupier may refuse consent. (2) A consent has no effect unless the consent is voluntary. (3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period. (4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn. (5) If an auditor entered a building, an area or an associated place because of the consent of the occupier, the auditor and any person assisting the auditor must leave the building, area or associated place if the consent ceases to have effect. 41 Announcement before entry under warrant (1) An auditor must, before entering a building, an area or an associated place under a monitoring warrant: (a) announce that he or she is authorised to enter the building, area or associated place; and (b) show his or her identity card to the occupier of the building, area or associated place, or to another person who apparently represents the occupier, if the occupier or other person is present in the building, area or associated place; and (c) give any person in the building, area or associated place an opportunity to allow entry to the building, area or associated place. (2) However, an auditor is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the bui