Australia: Building energy efficiency disclosure laws about to ramp up

Last Updated: 14 October 2011
Article by Nick Thomas

Key Points:

If you're selling or letting large office spaces, you soon must comply with the Commonwealth Government's building energy efficiency disclosure laws.

The Commonwealth Government's building energy efficiency disclosure laws commence in full on 1 November. This means that many corporations proposing to sell or let large office spaces must provide not only a NABERS Energy rating but also an assessment of tenancy lighting in the space being sold or leased and prescribed energy efficiency guidance.

The basic disclosure obligation

The Building Energy Efficiency Disclosure Act 2010 (Cth) has been in force since 1 November 2010, but only in transitional mode. It's the centrepiece of the Government's Commercial Building Disclosure (CBD) scheme. Broadly speaking, the Act requires an owner or a lessee who proposes to sell or let/sublet for more than 12 months (including options) either a whole building which is used or capable of being used as an office and has a net lettable area (NLA) of 2000m2 or more, or an area of a building which satisfies these criteria, to:

  • obtain and register specific energy efficiency information for the building or area;
  • in some cases, give a bona fide prospective purchaser or lessee (or sublessee) a copy of the documents containing that information; and
  • include the relevant energy efficiency rating for the building or area in any advertisement for the sale, lease or sublease of the building or area.

The regulatory package for the CBD scheme comprises the Act, a Regulation, and Determinations made by the Minister for Climate Change and Energy Efficiency and the Secretary of the Department of Climate Change and Energy Efficiency (DCCEE). The use of Determinations means that it is easier for the Government to change details of the CBD scheme's operation.

Soon more information will have to be disclosed

Until 1 November 2011, the information which must be disclosed is only a current NABERS Energy rating for the relevant building or area. However, from 1 November, the advertising requirement will remain the same, but the other disclosure requirements will include:

  • a current NABERS Energy rating for the relevant building or area;
  • a current assessment of tenancy lighting in the relevant building or area; and
  • guidance on how building energy efficiency might be improved for building owners and tenants, in the form set out in the DCCEE Secretary's Determination.

This information must be provided in the form of a Building Energy Efficiency Certificate (BEEC). A BEEC can be valid for up to 12 months, depending on the currency of the information included in it. Only an assessor who is accredited by the DCCEE can issue a BEEC.

NABERS Energy ratings are provided in the form of stars, and are measured in half star increments. Until August 2011, the rating scale was up to 5 stars. It's now been extended to 6 stars, where a 6 star rating represents "market leading" performance. However, the NABERS Energy rating which is required for the CBD scheme must not take into account the purchase of electricity under national GreenPower program, and this may affect the use of some existing NABERS Energy ratings for the CBD scheme.

Some changes since the Act commenced

The Government has made several changes to the way in which the Act operates since the Act commenced, following industry consultation. Two important examples concern mixed use buildings (such as warehouses, medical centres, hotels and retail outlets) and major refurbishments.

Under the current Ministerial Determination, if the total office space for a building comprises less than 75% of the building by NLA (or gross lettable area if NLA is unavailable), then the building is not subject to the disclosure requirements. The Government has indicated that this exception is only an interim measure and it will be subject to review by a panel of experts. Although the interim period was expressed to be until 1 November 2011, the exception has not yet been removed from the Ministerial Determination.

Previous versions of the Ministerial Determination provided an exception from the disclosure requirements for buildings which had undergone a major refurbishment and a certificate of occupancy (which is required under most State planning laws) had not been issued or had been issued less than two years ago. According to the Ministerial Determination, a "major refurbishment" is a refurbishment which affects the energy efficiency rating of the building. The Government has indicated that it expects this would involve substantial changes to the fabric, plant or equipment of the building which would alter a base building rating by at least half a NABERS star, higher or lower.

The exception clause caused some confusion within the industry about whether the disclosure requirements applied prior to the issue of an occupancy certificate, especially when it was not clear whether a certificate was required by the relevant State law and, if so, when it would be issued.

The Ministerial Determination has now been changed so that:

  • the disclosure requirements will not apply for buildings which have undergone a major refurbishment and a certificate of occupancy has been issued less than two years ago; and
  • the disclosure requirements will apply in other cases where a building has undergone a major refurbishment, unless the person who is subject to the requirements has applied for and obtained a specific exemption from the DCCEE.

Will the mandatory energy efficiency disclosure scheme be expanded?

The Government has said it focused the CBD scheme on office buildings initially (Phase 1) because the NABERS rating tool was readily available for office buildings, carbon emissions associated with office buildings are projected to have almost doubled between 1990 and 2010, and office buildings have relatively frequent sale and lease transactions.

The Government has noted that, in the 2010/2011 financial year (most of which was governed by the Act's transitional disclosure requirements), 962 buildings received a NABERS Energy base building or whole building rating, which is a 130% increase on he previous year.

Under the National Strategy on Energy Efficiency, governments are considering expanding disclosure to other types of commercial buildings including hotels, retail centres, schools and hospitals (Phase 2). However, the Standing Committee on Energy (under the Ministerial Council on Energy) has agreed to defer consultation until 2012 which would result in Phase 2 being deferred until 2014, subject to the outcomes of the consultation process.

The Ministerial Council on energy has also sought comments on a proposal for the mandatory disclosure of residential building energy, greenhouse and water performance in residential buildings in the context fo a proposal sale or lease, and issued a Consultation Regulation Impact Statement which provided some regulatory options for the proposal. The submissions period closed on 12 September, and we are now awaiting the Council's response.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.