PART 8 | ADMINISTRATION AND ENFORCEMENT, ETC. |
Division 1 — Powers of administration and enforcement, etc.,
and related offences |
| Interpretation of this Part |
45. In this Part, unless the context otherwise requires —| “computer” and “computer output” have the same meanings as in section 2(1) of the Computer Misuse Act (Cap. 50A); |
“document” includes, in addition to a document in writing —| (a) | any map, plan, graph or drawing; | | (b) | any photograph; | | (c) | any label, marking or other writing which identifies or describes anything of which it forms a part, or to which it is attached by any means; | | (d) | any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; | | (e) | any film (including microfilm), negative, tape, disc or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and | | (f) | any paper or other material on which there are marks, impressions, figures, letters, symbols or perforations having a meaning for persons qualified to interpret them; |
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| “writing” includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form. |
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| Entering premises, etc., to monitor compliance |
46.—(1) Subject to subsection (2), for the purpose of administering or enforcing this Act or determining whether this Act has been complied with, an authorised officer may —| (a) | enter any premises —| (i) | during normal business hours without notice; or | | (ii) | at any other time after giving at least 6 hours’ previous notice to the occupier of the premises (unless the occupier of the premises has consented to a shorter period of notice); and |
| | (b) | exercise any of the powers set out in sections 47 and 48. |
(2) Before exercising the power of entry under subsection (1), the authorised officer must —| (a) | declare the office of the authorised officer; and | | (b) | produce to the person against whom the authorised officer is acting such identification card as the Agency may direct authorised officers to carry. |
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| Power to demand names and addresses on entering premises |
47.—(1) An authorised officer who enters premises under section 46 may require any person found on the premises to —| (a) | give the person’s name and address and such other proof of identity; and | | (b) | provide such other particulars, |
| as the authorised officer may require for the purposes of this Act. |
(2) Any person who, upon being required by the authorised officer to give the person’s name and address or other proof of identity or to provide any particulars under subsection (1) —| (a) | refuses to do so; | | (b) | wilfully misstates the person’s name and address or proof of identity; or | | (c) | provides false particulars, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both. |
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| Power to search premises, etc. |
48.—(1) Without affecting section 49, an authorised officer who enters premises under section 46 has full and free access to the premises and any thing at the premises, and may exercise all or any of the following powers:| (a) | search the premises for any thing that may relate to compliance with this Act; | | (b) | examine any activity conducted on the premises that may relate to compliance with this Act; | | (c) | examine and check the operation of any thing on the premises that may relate to compliance with this Act; | | (d) | take any photograph or make any video or audio recording or sketch on the premises of any such activity or thing; | | (e) | carry out any inspection or test that may relate to compliance with this Act; | | (f) | with such assistants and workmen as the authorised officer considers necessary —| (i) | affix or bring onto the premises any meter or instrument and take any reading from the meter or instrument; or | | (ii) | take any reading from any meter or instrument on the premises; |
| | (g) | require any person at the premises to do one or both of the following:| (i) | provide any information within the knowledge of that person; | | (ii) | take reasonable steps to provide any document; |
| | (h) | inspect any document, computer, computer program, computer software or computer output on the premises that may relate to compliance with this Act; | | (i) | without payment, make copies of or take extracts from any such document, computer, computer program, computer software or computer output; | | (j) | take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising any power under this section; | | (k) | without payment, take possession of any thing on the premises where, in the opinion of the authorised officer —| (i) | the examination, inspection, checking, copying of or extraction from any part of such thing cannot reasonably be performed without taking possession; | | (ii) | such thing may be interfered with or destroyed unless possession is taken; or | | (iii) | such thing may be required as evidence in proceedings for a contravention of this Act or in proceedings for the recovery of any tax or penalty or in proceedings by way of an appeal against an assessment. |
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(2) An authorised officer may, in addition to the powers in subsection (1) —| (a) | require any person who is able to operate any thing at the premises to do so for the purpose of enabling the authorised officer to ascertain whether it, or a disc, tape or other storage device that can be used with or is associated with it, contains information that is relevant to assessing compliance with this Act; | | (b) | if such information is found in exercise of the power in paragraph (a) —| (i) | require the information to be provided in documentary form, and keep or copy the documents so provided; or | | (ii) | transfer, or require the transfer of, the information to a disc, tape or other storage device, and remove it from the premises; and |
| | (c) | in respect of any thing that the authorised officer takes possession of, require any person at the premises to provide the authorised officer with or grant the authorised officer access to any information, code, software or technology required to operate or access data contained in such thing, or to retransform, unscramble or decrypt data contained in such thing into readable and comprehensive format or text. |
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| (3) Any person who, without reasonable excuse, fails, neglects or refuses to comply with a requirement of an authorised officer under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. |
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| Power to require persons to provide information and documents |
49.—(1) For the purposes of administering or enforcing this Act or determining whether this Act has been complied with, an authorised officer may by notice in writing require any person to do one or both of the following:| (a) | to provide any authorised officer with any information within the knowledge of that person; | | (b) | to provide any authorised officer with any document in the possession or under the control of the person. |
(2) The notice in subsection (1) may —| (a) | specify a time and place at which the person must provide the information or document, in the form and manner specified in the notice; or | | (b) | require the person to attend personally before any authorised officer, at a place and time specified in the notice, to provide the information or document, in the form and manner specified in the notice. |
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| (3) To avoid doubt and without affecting the generality of subsections (1) and (2), the reference to a person in those subsections includes any energy supplier for the purpose of obtaining any information or document from the energy supplier in respect of the energy consumption data of any person or business facility that the energy supplier supplies energy to. |
| (4) Any person that, without reasonable excuse, fails, neglects or refuses to comply with a notice of an authorised officer under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. |
(5) In this section, “energy supplier” means any of the following:| (a) | any gas licensee under the Gas Act (Cap. 116A); | | (b) | any supplier of oil, fuel or other type of energy. |
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| General power to require information or documents |
50.—(1) The power of an authorised officer to require a person to provide any information or document under section 48 or 49 includes the power —| (a) | to require the person, or any person who is or was an officer or employee of that person, to provide an explanation of the information or document; | | (b) | if the information or document is not provided, to require that person to state, to the best of the person’s knowledge and belief, from whom the information or document may be obtained or where it is; | | (c) | if the information is recorded otherwise than in legible form, without payment, to require the information to be provided in legible form; and | | (d) | in the case of a document, without payment —| (i) | to inspect, copy, or take extracts from, the document and, in relation to a document kept in electronic form, to inspect, copy, or take extracts from the document in legible form; | | (ii) | to take possession of the document if in the opinion of the authorised officer —| (A) | the inspection, copying or extraction cannot reasonably be performed without taking possession of the document; | | (B) | the document may be interfered with or destroyed unless possession of the document is taken; or | | (C) | the document may be required as evidence in proceedings for an offence under this Act or in proceedings for the recovery of any tax or penalty, or in proceedings by way of an appeal against an assessment; and |
| | (iii) | for the purposes of sub-paragraph (ii), to require the person to provide the authorised officer with or grant the authorised officer access to any information, code, software or technology required to access the document or data contained in the document, or to retransform, unscramble or decrypt data contained in the document into readable and comprehensive format or text. |
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(2) A statement made by any person providing information under section 48(1)(g) or 49(2)(b) must —| (a) | be reduced to writing; | | (b) | be read over to the person; | | (c) | if the person does not understand English, be interpreted for the person in a language that the person understands; and | | (d) | after correction, if necessary, be signed by the person. |
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(3) A person is not obliged under section 48 or 49 to provide (including through the production of a document) —| (a) | any information that the person is under any statutory obligation (other than sections 128, 128A, 129 and 131 of the Evidence Act (Cap. 97)) to observe secrecy; or | | (b) | any information subject to legal privilege. |
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| (4) The generality of the term “reasonable excuse” in sections 48(3) and 49(4) is not affected by subsection (3). |
| (5) Except as provided under subsection (3), it is not a defence to a charge under section 48(3) or 49(4) for a failure to provide any information or document sought in accordance with the provision, that the person is under a duty of secrecy in respect of that information or the contents of that document (called in this section a displaced duty of secrecy). |
| (6) A person that in good faith complies with a requirement or notice to provide any information or document is not to be treated as being in breach of a displaced duty of secrecy. |
(7) No civil or criminal action for a breach of a displaced duty of secrecy, other than a criminal action for an offence under section 53(b), lies against a person —| (a) | for providing any information or document if the person did so in good faith in compliance with a requirement or notice under section 48 or 49; or | | (b) | for doing or omitting to do any act if the person did or omitted to do the act in good faith and as a result of complying with such a requirement or notice. |
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| Additional powers in determining if person or business facility is registrable |
51.—(1) Without affecting sections 46 to 50, an authorised officer may, for the purpose of ascertaining whether any person or any business facility is required to be registered under Part 3, by notice in writing, require the person to —| (a) | carry out any test or inspection specified in the notice; and | | (b) | provide to any authorised officer a report of such test or inspection, within the time specified in the notice. |
| (2) Any person that, without reasonable excuse, fails to comply with a notice of an authorised officer under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000. |
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| Obstructing Agency or authorised officer |
| 52. Any person that at any time hinders or obstructs the Agency or any authorised officer in the performance or execution of the duty of the Agency or authorised officer, or of any thing which the Agency or authorised officer is empowered or required to do, under this Act shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both. |
| False statements, forging of documentation, etc. |
53. Any person that —| (a) | makes or causes to be made any entry in a record, register or other document required to be kept under this Act which the person knows is false or misleading in any material particular; or | | (b) | in response to any requirement or notice of an authorised officer under this Part, provides any information, document or statement that the person knows is false or misleading in any material particular, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. |
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| Division 2 — Other offences and penalties |
| Offences relating to registrations |
54.—(1) A person that fails to apply to register as a registered person where required by section 7 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.| (2) A person that fails to apply to register a business facility under the person’s operational control as a reportable facility where required by section 7 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000. |
(3) A person that fails to apply to register a business facility under the person’s operational control as a taxable facility where required by section 7 shall be guilty of an offence and shall be liable on conviction to a fine that is the total of the following:| (a) | 10% of the tax for which the person would have been liable had the business facility been registered as a taxable facility; | | (b) | an amount not exceeding $10,000, |
| and to a further penalty of $50 for every day or part of a day during which the offence continues after conviction. |
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| (4) A person that, in relation to an application for registration under this Act, makes or causes to be made any statement or declaration that the person knows is false or misleading in any material particular, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both. |
| (5) A person that fails, without reasonable excuse, to comply with section 9(2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000. |
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| Offences relating to submissions of unverified emissions reports |
55.—(1) A person that fails to submit an emissions report, not being a verified emissions report, in accordance with section 11 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000, and to a further penalty of $50 for every day or part of a day during which the offence continues after conviction.(2) Without affecting subsection (1), a person that submits an emissions report, not being a verified emissions report, that is inaccurate shall be guilty of an offence and shall be liable on conviction to —| (a) | a fine not exceeding $10,000; and | | (b) | in the case of a second or subsequent offence, to a fine not exceeding $20,000. |
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| (3) Subsection (2) does not apply to any inaccuracy notified to the Agency under section 15(1). |
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| Offences relating to submissions of verified emissions reports |
56.—(1) A person that fails to submit a verified emissions report in accordance with sections 11 and 12 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000, and to a further penalty of $50 for every day or part of a day during which the offence continues after conviction.(2) Without affecting subsection (1) and subject to subsections (3), (4) and (5), a person that —| (a) | submits a verified emissions report that is inaccurate; or | | (b) | gives any incorrect information (including in the form of any document) in relation to any matter affecting the person’s liability to tax arising out of the verified emissions report, |
| shall be guilty of an offence and shall be liable on conviction to a fine that is equal to the tax undercharged as a result of the inaccurate verified emissions report or incorrect information. |
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(3) Despite subsection (2), if the inaccurate verified emissions report was submitted or the incorrect information given without reasonable excuse or through negligence, then the person shall be liable on conviction to one or both of the following:| (a) | a fine that is the sum total of —| (i) | an amount equal to double the tax undercharged as a result of the inaccurate verified emissions report or incorrect information; and | | (ii) | an amount not exceeding $5,000; |
| | (b) | imprisonment for a term not exceeding 3 years. |
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(4) Despite subsection (2), if the inaccurate verified emissions report was submitted or the incorrect information given wilfully with intent to evade the tax or any part of the tax, then the person shall be liable on conviction to one or both of the following:| (a) | a fine that is the sum total of —| (i) | an amount equal to triple the tax undercharged as a result of the inaccurate verified emissions report or incorrect information; and | | (ii) | an amount not exceeding $10,000; |
| | (b) | imprisonment for a term not exceeding 3 years. |
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(5) Despite subsection (2), if —| (a) | the inaccurate verified emissions report or incorrect information was prepared by or through the perpetration of any fraud, art or contrivance; and | | (b) | the inaccurate verified emissions report was submitted or the incorrect information given wilfully with intent to evade the tax or any part of the tax, |
| then the person shall be liable on conviction to one or both of the following: |
| (i) | a fine that is the sum total of —| (A) | an amount equal to quadruple the tax undercharged as a result of the inaccurate verified emissions report or incorrect information; and | | (B) | an amount not exceeding $50,000; |
| | (ii) | imprisonment for a term not exceeding 5 years. |
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| (6) Subsection (2) does not apply, including in relation to subsection (3), to any inaccuracy notified to the Agency under section 15(1). |
| (7) In any proceedings for an offence under this section, it is not a defence for a defendant to prove that the verified emissions report was approved by the Agency. |
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| Offences relating to monitoring plans |
57.—(1) A person that fails to submit a monitoring plan in accordance with section 13 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.| (2) Without affecting subsection (1), a person that submits a monitoring plan that is inaccurate shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000. |
| (3) Subsection (2) does not apply to any inaccuracy notified to the Agency under section 15(1). |
| (4) In any proceedings for an offence under subsection (2), it is not a defence for a defendant to prove that the monitoring plan was approved by the Agency. |
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| Other offences relating to emissions reports and monitoring plans |
| 58. A person that fails to comply with any direction of the Agency under section 13(2), 14 or 15(2) served on the person, or fails to comply with section 15(1), shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000. |
| Offence relating to failure to pay tax |
| 59. A person that fails, in accordance with a demand note served on the person under section 17(4)(b), to pay the tax specified in the demand note, shall be guilty of an offence and shall be liable on conviction to a fine that is triple the amount of tax specified in the demand note as being outstanding. |
| Offences by authorised and unauthorised persons |
60. Any person (P) that —| (a) | being appointed for the due administration of this Act —| (i) | demands from any person an amount in excess of the authorised assessment of tax, or any carbon credits in excess of the authorised assessment of the number of carbon credits required to pay the tax; | | (ii) | withholds for P’s own use or otherwise, any amount collected in payment of any carbon credit or as tax, or any part of such amount; | | (iii) | gives a false return, whether verbal or in writing, of any number of carbon credits credited by, surrendered to or cancelled by P, or any amount collected by P as payment for any carbon credit, or any amount of tax collected or received by P; or | | (iv) | defrauds any person, embezzles any money or otherwise uses P’s appointment to deal wrongly with the Agency or any other person; or |
| | (b) | not being authorised under this Act to do so, sells or credits, or purports to sell or credit any carbon credits, or collects or attempts to collect tax under this Act, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both. |
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| Offences relating to appeals |
61.—(1) Any person that fails, without reasonable excuse, to comply with a requirement of the Minister under section 34(4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000.| (2) Any person that is duly summoned to attend before an Appeal Panel under section 39(2) and, without reasonable excuse, does not so attend shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000. |
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| Offences relating to records and registers |
62.—(1) A person that fails to comply with section 40 shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 and, in the case of a second or subsequent offence, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.| (2) A person that fails to comply with section 44(1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000. |
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