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Essential Services Commission (Compliance and
Enforcement Powers) Amendment Act 2021
No. of 2021
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 3
3 Principal Act 3
Part 2--Information gathering and inspection powers 4
4 Definitions 4
5 Part 4 substituted and new Parts 4A, 4B and 4C inserted 5
Part 3--Civil penalties and other enforcement actions 41
6 Definitions 41
7 Section 10AA substituted 45
8 Heading to Part 7 substituted 46
9 Divisions 1 and 2 of Part 7 substituted, new Divisions 3 to 8 of
Part 7 inserted and new Part 7A inserted 46
Part 4--Other amendments to the Principal Act and transitional
provisions 87
Division 1--Other amendments to the Principal Act 87
10 Interpretation and application of Act 87
11 Functions of the Commission 87
12 Commission's functions in relation to particular Basin water
charges 87
13 Commission's functions in relation to renewable energy 87
14 Commission's functions in relation to energy efficiency 88
15 Tenure of office of Chairperson 88
16 New section 23A inserted 88
17 Section 26 substituted 89
18 Meetings of the Commission 90
19 New section 31A inserted 90
20 Price regulation 90
21 Reports 91
22 Power to make Codes of Practice 91
23 Section 49 substituted 93
24 Section 50 substituted 93
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25 Section 51 repealed 93
26 Heading to Division 3 of Part 7 substituted 93
27 VCAT Review 93
28 Proceedings for review by VCAT 95
29 Heading to Division 4 of Part 7 substituted 95
30 New Division heading inserted 95
31 New sections 60A and 60B inserted and Division 2 of Part 7C
inserted 96
32 Disclosure of information an offence 109
33 New sections 61A and 61B inserted and heading to Division 3
of Part 7C inserted 109
34 Proceedings 111
35 New sections 62A to 62C inserted 111
36 Section 64 substituted 115
37 Regulations 116
38 Review 116
Division 2--Transitional provisions 117
39 New sections 70 to 80 inserted 117
Part 5--Amendment of Electricity Industry Act 2000 133
40 Definitions 133
41 Regulation of tariffs for prescribed customers 133
42 Prohibition 133
43 Section 22 substituted 134
44 Condition to give information to Commission 136
45 Condition relating to advertising of enforcement action taken
against licensee 136
46 Offer to domestic or small business customers (licensee
standing offers) 136
47 Terms and conditions of contracts for sale of electricity to
certain customers 136
48 Deemed distribution contracts 137
49 Regulation of exit fees 138
50 Regulation of pre-payment meters 138
51 Powers as to works etc. 138
52 New Part 6A inserted 139
53 Regulations 144
54 New section 122 inserted 146
Part 6--Amendment of Gas Industry Act 2001 147
55 Definitions 147
56 Wimmera and Colac Tariff Order 147
57 Regulation of tariffs for prescribed customers 147
58 Offence to distribute or retail gas without a licence 147
59 Section 30 substituted 148
60 Condition to give information to Commission 150
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Clause Page
61 Condition relating to advertising of enforcement action taken
against licensee 150
62 Offer to domestic or small business customers (licensee
standing officers) 150
63 Terms and conditions of contracts for sale of gas to certain
customers 150
64 Deemed distribution contracts 151
65 Regulation of exit fees 152
66 Regulation of pre-payment meters 152
67 Making of easements in subdivisions 152
68 Powers as to works etc. 152
69 Power to open and break up roads etc. 152
70 New Part 9A inserted 153
71 Regulations 159
72 New Part 12 inserted 160
Part 7--Amendment of Victorian Energy Efficiency Target
Act 2007 161
73 Definitions 161
74 Civil penalty for shortfall 161
75 Application for declaration and order for payment of shortfall
penalty 161
76 Fees 161
77 New Division 10 inserted in Part 8 162
Part 8--Amendment of Victorian Renewable Energy Act 2006 163
78 Definitions 163
79 Civil penalty for shortfall 163
80 Application for declaration and order for payment of shortfall
penalty 163
81 Fees 163
Part 9--Amendment of Water Industry Act 1994 164
82 Parts 1A and 1B to prevail 164
83 Definitions 164
84 Water Industry Regulatory Order 164
85 Section 4F amended 164
86 Costs of Commission under this Part 165
87 Statement of Obligations 166
88 New section 187A inserted 166
Part 10--Amendment of Energy Legislation Amendment Act 2021 168
89 Section 6 amended--proposed Division 9 of Part 2 of the
Electricity Industry Act 2000 168
90 Section 7 amended 168
91 Sections 8 to 12 repealed 168
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Clause Page
92 Section 15 amended--proposed Division 7 of Part 3 of the
Gas Industry Act 2001 168
Part 11--Amendment of Energy Legislation Amendment (Energy
Fairness) Act 2021 170
93 Section 5 amended--proposed section 40EB 170
94 Section 9 amended--proposed section 40SA 170
95 Section 9 amended--proposed section 40SE 171
96 Section 9 amended--proposed section 40SG 171
97 Section 9 amended--proposed section 40SH 172
98 Section 9 amended--proposed section 40SI 173
99 Section 9 amended--proposed section 40SJ 174
100 Section 9 amended--proposed section 40SK 175
101 Section 9 amended--proposed section 40ST 176
102 Section 9 amended--proposed section 40SU 177
103 Section 9 amended--proposed section 40SV 178
104 New section 10A inserted 179
105 Division 5 of Part 2 repealed 179
106 Section 19 amendment--proposed section 48DB 180
107 Section 23 amended--proposed section 48DC 180
108 Section 23 amended--proposed section 48DG 180
109 Section 23 amended--proposed section 48DI 181
110 Section 23 amended--proposed section 48DJ 182
111 Section 23 amended--proposed section 48DK 183
112 Section 23 amended--proposed section 48DL 184
113 Section 23 amended--proposed section 48DM 185
114 Section 23 amended--proposed section 48DV 186
115 Section 23 amended--proposed section 48DW 187
116 Section 23 amended--proposed section 48DX 188
117 New section 24A inserted 189
118 Division 5 of Part 3 repealed 189
119 Sections 32 to 36 substituted 190
Part 12--Consequential and minor amendments of other Acts 191
Division 1--Amendment of Accident Towing Services Act 2007 191
120 Recommendations 191
Division 2--Amendment of Commercial Passenger Vehicle
Industry Act 2017 191
121 Application of Essential Services Commission Act 2001 191
122 Application of Essential Services Commission Act 2001 191
Division 3--Amendment of Delivering Victorian Infrastructure
(Port of Melbourne Lease Transaction) Act 2016 191
123 Application for certification 191
124 Decision on certification by Commission 192
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125 Inquiries for the purposes of decisions on certification 192
Division 4--Amendment of Grain Handling and Storage Act 1995 193
126 Financial records 193
127 Conduct of inquiries 193
128 Procedures and powers of the Commission 193
Division 5--Amendment of National Electricity (Victoria) Act 2005 194
129 Enforcement of Victorian distribution pricing determination
and distribution licences by AER 194
130 ESC cannot enforce Victorian pricing determination or certain
distribution licence conditions 194
131 Appeals against certain decisions or actions of the AER 194
Division 6--Amendment of National Gas (Victoria) Act 2008 194
132 Enforcement by AER of certain provisions of Victorian
distribution licences 194
133 ESC cannot enforce certain gas distribution licence conditions
that the AER can enforce 195
134 Appeals against certain decisions or actions of the AER 195
Division 7--Amendment of Port Management Act 1995 195
135 Commission may conduct inquiry into relevant service prices 195
136 Financial and business records 196
137 Restriction on disclosure of confidential information 196
138 Regulations 196
Part 13--Repeal of this Act 198
139 Repeal of this Act 198
═════════════
Endnotes 199
1 General information 199
v
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021
No. of 2021
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Essential Services
Commission Act 2001--
(i) in relation to information gathering and
search and seizure powers; and
(ii) in relation to civil penalties and other
enforcement actions; and
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Essential Services Commission (Compliance and Enforcement Powers)
Amendment Act 2021
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Part 1--Preliminary
(iii) to establish the Essential Services
Commission Enforcement Fund and
the Essential Services Commission
Operating Fund; and
(iv) to make other amendments; and
(b) to amend the Electricity Industry Act 2000
in relation to--
(i) fees and charges; and
(ii) reporting by retailers and licensees; and
(iii) regulation-making powers; and
(c) to amend the Gas Industry Act 2001 in
relation to--
(i) fees and charges; and
(ii) reporting by gas retailers and licensees;
and
(iii) regulation-making powers; and
(d) to amend the Victorian Energy Efficiency
Target Act 2007 in relation to fees and
shortfall penalties; and
(e) to amend the Victorian Renewable Energy
Act 2006 in relation to fees and renewable
energy shortfall penalties; and
(f) to amend the Water Industry Act 1994 in
relation to determinations of contributions
for costs and expenses; and
(g) to amend the Energy Legislation
Amendment Act 2021 and the Energy
Legislation Amendment (Energy Fairness)
Act 2021 in relation to wrongful
disconnections and civil penalties and as a
consequence of amendments made to the
Electricity Industry Act 2000 and the Gas
Industry Act 2001 by this Act; and
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Essential Services Commission (Compliance and Enforcement Powers)
Amendment Act 2021
No. of 2021
Part 1--Preliminary
(h) to make consequential and minor
amendments to other Acts.
2 Commencement
(1) This Part and Parts 10, 11 and 13 come into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision of this Act does not come into
operation before 1 May 2022, it comes into
operation on that day.
3 Principal Act
In this Act, the Essential Services Commission
Act 2001 is called the Principal Act.
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Part 2--Information gathering and inspection powers
Part 2--Information gathering and
inspection powers
4 Definitions
In section 3 of the Principal Act insert the
following definitions--
"computer means any electronic device for storing
or processing information;
essential services requirement means any of the
following--
(a) a provision of this Act;
(b) a provision of relevant legislation
(other than a provision that includes a
statutory condition) in respect of which
the Commission has powers or
functions;
(c) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
licensing under relevant legislation;
(d) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
licensing by reason of an Order made
under section 4;
(e) a provision of a Code of Practice;
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Part 2--Information gathering and inspection powers
information gathering notice means a notice
under section 36(1) or 37(1);
inspector means a person appointed under
section 39M;".
5 Part 4 substituted and new Parts 4A, 4B and 4C
inserted
For Part 4 of the Principal Act substitute--
"Part 4--Information gathering
notices
Division 1--Information gathering
notices
36 Information gathering notices--
performing functions or exercising powers
(1) If the Commission considers it necessary for
the purposes of performing its functions or
exercising its powers, the Commission may
serve a notice on a person requiring the
person to do one or more of the following--
(a) provide to the Commission, in writing
signed by the person or, in the case of a
body corporate, by a competent officer
of the body corporate, any information
or class of information specified in the
notice before a specified time and in a
specified manner;
(b) produce to the Commission a document
or class of document specified in the
notice that is in the person's possession,
custody or control, before a specified
time and in a specified manner;
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(c) appear before the Commission at a time
and place specified in the notice to do
either or both of the following--
(i) give information, including by
answering questions, either orally
or in writing;
(ii) produce a document or class of
document specified in the notice
that is in the person's possession,
custody or control.
(2) In exercising the power to serve an
information gathering notice under
subsection (1), the Commission must have
regard to--
(a) the relevance of the information,
document or evidence sought; and
(b) the estimated compliance costs.
(3) Despite subsection (1), the Commission must
not serve an information gathering notice
under this section if it could serve one under
section 37(1).
(4) A person must not--
(a) without reasonable excuse, refuse or
fail to comply with an information
gathering notice under subsection (1);
or
(b) in purported compliance with an
information gathering notice under
subsection (1), knowingly--
(i) provide false or misleading
information; or
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Part 2--Information gathering and inspection powers
(ii) produce documents that are false
or misleading.
Penalty: In the case of a natural person,
120 penalty units or 12 months
imprisonment;
In the case of a body corporate,
600 penalty units.
Note
See section 39A in relation to the protection against
self-incrimination.
(5) The Commission may exercise, or continue
to exercise, a power under subsection (1) in
relation to a matter that relates to its powers
or functions until--
(a) the Commission commences a
proceeding in relation to the matter
(other than a proceeding for an
injunction, whether interim or final); or
(b) the close of pleadings in relation to an
application by the Commission for a
final injunction in relation to the matter.
37 Information gathering notices--matters
that constitute contravention of essential
services requirement
(1) If the Commission believes that a person is
capable of providing information, producing
documents or giving evidence relating to a
matter that constitutes, or may constitute, a
contravention of an essential services
requirement, the Commission may serve a
notice on the person requiring the person to
do one or more of the following--
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No. of 2021
Part 2--Information gathering and inspection powers
(a) provide to the Commission, in writing
signed by the person or, in the case of a
body corporate, by a competent officer
of the body corporate, any information
or class of information specified in the
notice before a specified time and in a
specified manner;
(b) produce to the Commission a document
or class of document specified in the
notice that is in the person's possession,
custody or control, before a specified
time and in a specified manner;
(c) appear before the Commission at a time
and place specified in the notice to do
either or both of the following--
(i) give evidence, including by
answering questions, either orally
or in writing;
(ii) produce a document or class of
document specified in the notice
that is in the person's possession,
custody or control.
(2) A person must not--
(a) without reasonable excuse, refuse or
fail to comply with an information
gathering notice under subsection (1);
or
(b) in purported compliance with an
information gathering notice under
subsection (1), knowingly--
(i) provide false or misleading
information; or
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Part 2--Information gathering and inspection powers
(ii) produce documents that are false
or misleading.
Penalty: In the case of a natural person,
120 penalty units or 12 months
imprisonment;
In the case of a body corporate,
600 penalty units.
Note
See section 39B in relation to the protection against
self-incrimination.
(3) The Commission may exercise, or continue
to exercise, a power under subsection (1) in
relation to a matter that constitutes, or may
constitute, a contravention of an essential
services requirement until--
(a) the Commission commences a
proceeding in relation to the matter
(other than a proceeding for an
injunction, whether interim or final); or
(b) the close of pleadings in relation to an
application by the Commission for a
final injunction in relation to the matter.
38 Form of information gathering notice
An information gathering notice must--
(a) be in writing; and
(b) specify the following matters--
(i) the person on whom it is served;
(ii) the purpose of the information
gathering notice;
(iii) the information or class of
information (if any) required to be
provided to the Commission and
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Part 2--Information gathering and inspection powers
the time and manner by which it
must be provided;
(iv) the document or class of
document (if any) required to be
produced to the Commission and
the time and manner by which it
must be produced;
(v) the time and place (if any) at
which a person is required to
appear before the Commission to
give information or evidence or to
produce a document;
(vi) whether the notice served is under
section 36(1) or 37(1); and
(c) include a copy of this Part.
Note
See section 64 for service requirements under this Act,
including for information gathering notices.
Division 2--Compliance with
information gathering notices
39 Power to examine on oath or affirmation
If a person is required to appear before the
Commission to give evidence in compliance
with an information gathering notice under
section 37(1), the Commission may
administer an oath or affirmation to the
person.
39A Protection against self-incrimination--
information gathering notices under
section 36(1)
(1) It is a reasonable excuse for a natural person
to refuse or fail to provide information, in
compliance with an information gathering
notice under section 36(1), if the provision of
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Part 2--Information gathering and inspection powers
the information would tend to incriminate
the person or expose the person to a penalty.
(2) Despite subsection (1), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is
required to produce, in compliance with an
information gathering notice under
section 36(1), if the production of the
document would tend to incriminate the
person or expose the person to a penalty.
(3) It is not a reasonable excuse for a body
corporate to refuse or fail to provide
information or produce a document, in
compliance with an information gathering
notice under section 36(1), if the provision of
the information or production of the
document would tend to incriminate the
body corporate or expose the body corporate
to a penalty.
(4) Any information given or document
produced by a natural person or body
corporate in compliance with an information
gathering notice under section 36(1) is not
admissible as evidence against that natural
person or body corporate in any proceeding,
other than in--
(a) a proceeding arising out of the false or
misleading nature of the information or
document; or
(b) a review under Part 7B; or
(c) a proceeding for a monetary benefits
order under section 61B.
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Part 2--Information gathering and inspection powers
39B Protection against self-incrimination--
information gathering notices under
section 37(1)
(1) It is not a reasonable excuse for a natural
person or a body corporate to refuse or to fail
to provide information, produce a document
or give evidence, in compliance with an
information gathering notice under
section 37(1), if the provision of the
information, production of the document or
giving of the evidence would tend to
incriminate the natural person or body
corporate or expose the natural person or
body corporate to a penalty.
(2) Any information provided, document
produced or evidence given by a natural
person, in compliance with an information
gathering notice under section 37(1), is not
admissible as evidence against that natural
person in a criminal proceeding, other than
in a proceeding arising out of the false or
misleading nature of the information or
document.
(3) Any information provided, document
produced or evidence given by a body
corporate, in compliance with an information
gathering notice under section 37(1), is not
admissible as evidence against that body
corporate in a criminal proceeding, other
than--
(a) in a proceeding arising out of the false
or misleading nature of the information
or document; or
(b) in a criminal proceeding under this Act
or relevant legislation.
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Part 2--Information gathering and inspection powers
39C Offence of coercion etc. against person
who complies with information gathering
notice
A person must not, because another person
complied, or intends to comply, with an
information gathering notice--
(a) threaten, intimidate or coerce the other
person; or
(b) take, threaten to take, incite or be
involved in any action that causes the
other person to suffer any loss, injury or
disadvantage.
Penalty: 120 penalty units.
39D No liability for loss, damage or injury
A person is not liable in any way for any
loss, damage or injury suffered by another
person because of the giving, in good faith,
of any information, document or evidence to
the Commission in compliance with an
information gathering notice.
Division 3--Documents
39E Powers in relation to documents
If a document is produced to the
Commission in compliance with an
information gathering notice, the
Commission may do one or more of the
following--
(a) inspect the document or authorise a
person to inspect the document;
(b) make copies of or take extracts of the
document;
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Part 2--Information gathering and inspection powers
(c) seize the document if the
Commission--
(i) considers the document necessary
for obtaining evidence for the
purpose of any proceeding against
a person under this Act or relevant
legislation; or
(ii) believes on reasonable grounds
that it is necessary to seize the
document to prevent its
concealment, loss or destruction
or its use in the contravention of
an essential services requirement;
(d) secure a seized document against
interference;
(e) retain possession of the document in
accordance with this Part.
39F Copies of seized documents
(1) If the Commission retains possession of a
document seized from a person under this
Part, the Commission must give the person,
as soon as practicable after the seizure, a
copy of the document certified as correct by
the Commission.
(2) A copy of a document certified under
subsection (1) is to be received in all courts
and tribunals as evidence of equal validity to
the original.
39G Retention and return of seized documents
(1) Subject to subsection (2), the Commission
must take reasonable steps to ensure that a
document seized by the Commission under
this Part is returned to the relevant person
not later than 3 months after its seizure.
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Part 2--Information gathering and inspection powers
(2) The Commission is only required to return a
document under subsection (1) if the
Commission is satisfied that--
(a) the document is not required (or is no
longer required) for the purpose for
which it was seized; and
(b) the continued retention of the document
is not necessary to prevent the
document being used in a way that
would justify its seizure under
section 39E(c); and
(c) the document is not subject to a dispute
as to the ownership which would be
appropriately resolved by making an
application under section 39H for the
return of the document.
(3) This section does not apply if the
Magistrates' Court makes an order under
section 39I extending the period during
which the document may be retained.
(4) Nothing in this section prevents the return of
a document to its owner at any time if the
Commission considers there is no need for
its continued retention.
(5) In this section--
relevant person, in relation to a document,
means--
(a) the person from whom the
document was seized; or
(b) the owner of the document if the
person from whom it was seized is
not entitled to possess it.
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Part 2--Information gathering and inspection powers
39H Application for return of seized document
(1) For the purposes of section 39G(2)(c), an
application for the return of a document
seized under this Part may be made to the
Magistrates' Court by--
(a) the person from whom it was seized; or
(b) a person who claims to be the owner.
(2) A person who makes an application under
subsection (1) must serve a copy of the
application on the Commission.
(3) The Commission is entitled to appear before
the Magistrates' Court and be heard in
relation to an application under subsection
(1).
(4) The Magistrates' Court may make an order
for the return of the document to the person
from whom it was seized or, if that person is
not entitled to possess it, to the owner, if the
Court is satisfied that--
(a) the document is not required (or is no
longer required) for the purpose for
which it was seized; and
(b) the continued retention of the document
is not necessary to prevent the
document being used in a way that
would justify its seizure under
section 39E(c).
39I Magistrates' Court may extend 3-month
period
(1) The Commission may apply to the
Magistrates' Court for an extension, not
exceeding 3 months, of the period for which
the Commission may retain a document
seized under this Part--
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Part 2--Information gathering and inspection powers
(a) not later than 3 months after seizing the
document; or
(b) before the end of the period of the
extension, if an extension has been
granted under subsection (2).
(2) The Magistrates' Court may order such an
extension if the Court is satisfied that--
(a) it is in the interests of justice; and
(b) the total period of retention does not
exceed 12 months; and
(c) retention of the document is
necessary--
(i) for the purposes of an
investigation into whether a
contravention of an essential
services requirement has occurred;
or
(ii) to enable evidence of a
contravention of an essential
services requirement to be
obtained for the purposes of a
proceeding under this Act or
relevant legislation.
(3) The Magistrates' Court must consider the
interests of the owner of the document and
may adjourn an application to enable notice
of the application to be given to any person.
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Part 2--Information gathering and inspection powers
Division 4--When Commission must not
serve information gathering notice
39J Matters about which the Commission
must not serve information gathering
notice
(1) The Commission must not serve an
information gathering notice in respect of
information, a document or evidence
specified in subsection (2).
(2) For the purposes of subsection (1), the
following information, documents and
evidence are specified--
(a) financial and business records that the
Commission may require a person to
make available to it under section 56 of
the Port Management Act 1995;
(b) information that the Commission may
direct a person to provide it with under
section 185E(5)(b) of the Local
Government Act 1989;
(c) information or documents that the
Commission may require from a person
under section 60 of the Victorian
Energy Efficiency Target Act 2007;
(d) information or documents that the
Commission may require from a person
under section 85 of the Victorian
Renewable Energy Act 2006;
(e) evidence or documents that the
Commission may require from a person
under section 212E of the Accident
Towing Services Act 2007;
(f) information the Commission may
require from a person under section 4G
of the Water Industry Act 1994.
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Part 2--Information gathering and inspection powers
Part 4A--Provision of information
relating to regulated entities
39K Provision of information relating to
regulated entities
(1) The Commission, by written notice, may
request a regulated entity to provide to the
Commission any information or class of
information relating to the regulated entity in
the manner and form specified in the notice.
(2) A regulated entity must comply with a
request under subsection (1).
(3) If information relating to a regulated entity is
held by a third party, the Commission may
require the regulated entity to enter into an
arrangement with the third party under which
the third party is to provide the information
to the Commission.
(4) In exercising the power to make a request
under subsection (1) or to require a regulated
entity to enter into an arrangement under
subsection (3), the Commission must have
regard to--
(a) the relevance of the information,
document or evidence sought; and
(b) the estimated compliance costs.
(5) The Commission may specify the kind or
class of information which a regulated entity
must maintain for the purposes of this
section in a Code of Practice.
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Part 2--Information gathering and inspection powers
39L Matters about which the Commission
must not gather information under this
Part
(1) The Commission must not make a request
under section 39K(1) or require a regulated
entity to enter an into arrangement under
section 39K(3) in respect of specified
information, a document or evidence
specified in subsection (2).
(2) For the purposes of subsection (1), the
following information, documents and
evidence are specified--
(a) financial and business records that the
Commission may require a person to
make available to it under section 56 of
the Port Management Act 1995;
(b) evidence or documents that the
Commission may require from a person
under section 212E of the Accident
Towing Services Act 2007;
(c) information the Commission may
require from a person under section 4G
of the Water Industry Act 1994.
Part 4B--Inspection powers
Division 1--Inspectors
39M Appointment of inspectors
(1) The Commission may appoint, by
instrument, any of the following persons as
an inspector--
(a) an employee of the Commission;
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(b) a person employed under Part 3 of the
Public Administration Act 2004;
(c) any other person employed by the
State;
(d) any other person who the Commission
considers has appropriate skills,
qualifications and experience.
(2) The Commission must not appoint a person
as an inspector unless the Commission is
satisfied that the person is appropriately
qualified or has successfully completed
appropriate training.
(3) In exercising powers or performing functions
as an inspector, an inspector must comply
with any direction of the Commission.
39N Inspector's identification
(1) The Commission must issue an identification
card to each inspector.
(2) The identification card must contain a
photograph of the inspector to whom it is
issued.
39O Production of identification
An inspector must produce their
identification card for inspection--
(a) before exercising a power under this
Part; and
(b) at any time during the exercise of a
power under this Part, if asked to do so.
Penalty: 10 penalty units.
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Division 2--Entry and search of
premises with consent
39P Entry and search with consent
(1) If an inspector believes on reasonable
grounds that a person may have contravened
an essential services requirement, the
inspector, with the consent of the occupier of
the premises, may--
(a) enter and search the premises; and
(b) exercise a power set out in subsection
(2) at the premises.
(2) For the purposes of subsection (1)(b), an
inspector has the power to--
(a) seize any document or computer that
the inspector finds on the premises, if
the inspector believes on reasonable
grounds that the document or computer
is connected with the alleged
contravention; or
(b) require any document on the premises
to be produced for examination and, if
the inspector believes on reasonable
grounds that the document is connected
with the alleged contravention--
(i) examine, make copies or take
extracts from the document, or
arrange for the making of copies
or the taking of extracts; or
(ii) remove the document for so long
as is reasonably necessary to make
copies or take extracts from the
document; or
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(c) make any still or moving image, audio
recording or audio visual recording, if
the inspector believes on reasonable
grounds that it is necessary to do so for
the purpose of establishing the alleged
contravention.
39Q Notice before entry and search
An inspector must not enter and search any
premises under section 39P unless, before
the occupier consents to the entry, the
inspector has--
(a) produced the inspector's identification
for inspection; and
(b) informed the occupier--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of any
document or computer found
during the search; and
(iii) that the occupier may refuse to
give consent to the taking of any
copy or extract from a document
found during the search; and
(iv) that the occupier may refuse to
produce any document required to
be produced for examination; and
(v) that the occupier may refuse to
give consent to the making of any
still or moving image, audio
recording or audio visual
recording; and
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(vi) that any document or computer
seized or taken during the search
with the consent of the occupier
may be used in evidence in a
proceeding.
39R Acknowledgement of consent to entry and
search
(1) If an occupier of premises consents to the
entry and search of premises by an inspector
under section 39P, the inspector must, before
entering the premises, ask the occupier to
sign an acknowledgement.
(2) For the purposes of subsection (1), the
acknowledgement must state--
(a) that the occupier has been informed--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of any
document or computer found
during the search; and
(iii) that the occupier may refuse to
give consent to the taking of any
document or any copy or extract
from a document found on the
premises during the search; and
(iv) that the occupier may refuse to
produce any document required to
be produced for examination; and
(v) that the occupier may refuse to
give consent to the making of any
still or moving image, audio
recording or audio visual
recording; and
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(vi) that any document or computer
seized or taken during the search
with the consent of the occupier
may be used in evidence in a
proceeding; and
(b) that the occupier has consented to the
entry and search; and
(c) the date and time that the occupier
consented.
(3) If an occupier of premises consents to the
seizure or taking of any document or
computer during a search of the premises by
the inspector, the inspector must, before
seizing or taking the document or computer,
ask the occupier to sign an
acknowledgement.
(4) For the purposes of subsection (3), the
acknowledgement must state--
(a) that the occupier has consented to the
seizure or taking of the document or
computer; and
(b) the date and time that the occupier
consented.
(5) An inspector must give a copy of a signed
acknowledgement to the occupier before
leaving the premises.
(6) If, in any proceeding, a signed
acknowledgement is not produced to the
court or a tribunal, it must be presumed until
the contrary is proved, that the occupier did
not consent to the entry and search or to the
seizure or the taking of the document or
computer.
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Division 3--Entry and search of
premises with warrant
39S Search warrants
(1) An inspector may apply to a magistrate for
the issue of a search warrant in relation to
particular premises if the inspector has
reasonable grounds to suspect that--
(a) there is, or may be within the next
72 hours, on the premises evidence that
a person may have contravened an
essential services requirement; or
(b) there is evidence in digital or electronic
format that a person may have
contravened an essential services
requirement which is accessible from
the premises.
(2) A magistrate may issue a search warrant if
the magistrate is satisfied that there are
reasonable grounds to suspect that--
(a) there is, or may be within the next
72 hours, on the premises a document
or a computer, or a document or a
computer of a particular kind,
connected with an alleged
contravention by a person of an
essential services requirement; or
(b) there is information in digital or
electronic format connected with an
alleged contravention by a person of an
essential services requirement which is
accessible from the premises.
39T Form and content of search warrants
(1) A search warrant issued under section 39S(2)
may authorise the inspector named in the
warrant to enter premises specified in the
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warrant, if necessary by force, and do one or
more of the following--
(a) in the case of a document, or document
of a particular kind, named or described
in the warrant, if the inspector believes
on reasonable grounds that the
document is connected with the alleged
contravention--
(i) require the document to be
produced for inspection; or
(ii) examine, make copies or take
extracts from the document, or
arrange for the making of copies
or the taking of extracts from the
document; or
(iii) remove the document for so long
as is reasonably necessary to make
copies or take extracts from the
document;
(b) in the case of a computer, or a
computer of a particular kind, named or
described in the warrant, if the
inspector believes on reasonable
grounds that the computer is connected
with the alleged contravention--
(i) search for the computer; or
(ii) seize the computer; or
(iii) secure the computer against
interference;
(c) make an image of the hard drive of a
computer, or a computer of a particular
kind, named or described in the
warrant, if the inspector believes on
reasonable grounds that information
contained on the hard drive is
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connected with the alleged
contravention;
(d) in the case of information in electronic
or digital format described in the
warrant that is accessible from the
premises, if the inspector believes on
reasonable grounds that the information
is connected with the alleged
contravention--
(i) access the information by means
of any computer located on the
premises; or
(ii) download or make an electronic
copy of that information; or
(iii) make or produce a physical copy
of that information.
(2) A search warrant issued under section 39S(2)
may authorise, in addition to an inspector,
any other person named or otherwise
identified in the warrant to execute the
warrant.
(3) A search warrant issued under section 39S(2)
must state--
(a) the purpose for which the search is
required and the nature of the alleged
contravention; and
(b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made
at any time of the day or night or during
specified hours of the day or night; and
(d) a day, not later than 28 days after the
issue of the warrant, on which the
warrant ceases to have effect.
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(4) Except as provided by this section, the rules
to be observed with respect to search
warrants under the Magistrates' Court
Act 1989 extend and apply to warrants
issued under section 39S(2).
(5) A search warrant must be issued in
accordance with the Magistrates' Court
Act 1989 and in the form set out in the rules
of court under that Act.
(6) Despite section 78 of the Magistrates'
Court Act 1989, a search warrant must not
authorise an inspector to arrest a person.
39U Warrant may authorise the giving of a
direction requiring assistance from person
with knowledge of a computer
(1) This section applies if a magistrate is
satisfied that there are reasonable grounds to
believe that there is information in digital or
electronic format connected with a
contravention by a person of an essential
services requirement that is accessible from
particular premises.
(2) Subject to subsection (3), a warrant issued by
a magistrate under section 39S(2) may
authorise the inspector named in the warrant
to require a person to provide any
information or assistance that is reasonable
and necessary to allow the inspector or
another person to do one or more of the
following--
(a) access information held in, or
accessible from, any computer located
on the premises;
(b) download or make an electronic copy
of that information;
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(c) make or produce a physical copy of that
information.
(3) The inspector may require a person to
provide the information or assistance
referred to in subsection (2) if the person--
(a) is one of the following--
(i) the person alleged to have
contravened the essential services
requirement;
(ii) the owner or lessee of the
computer;
(iii) an employee of the owner or
lessee of the computer;
(iv) a person engaged under a contract
for services by the owner or lessee
of the computer; and
(b) has relevant knowledge of--
(i) the computer or a computer
network of which the computer
forms or formed part; or
(ii) the measures applied to protect
information held in, or accessible
from, the computer.
39V Announcement before entry
(1) On executing a search warrant issued under
section 39S(2), the inspector named in the
warrant--
(a) must announce that the warrant
authorises the inspector to enter the
premises; and
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(b) if the inspector has been unable to
obtain unforced entry, must give any
person at the premises an opportunity to
allow entry to the premises.
(2) An inspector is not required to comply with
subsection (1) if the inspector believes on
reasonable grounds that immediate entry to
the premises is required to ensure that the
effective execution of the search warrant is
not frustrated.
39W Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must--
(a) identify themselves to the occupier; and
(b) give to the occupier a copy of the
warrant.
(2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must--
(a) identify themselves to a person at the
premises; and
(b) give to the person a copy of the
warrant.
39X Seizure of documents or computers not
mentioned in the warrant
A search warrant issued under section 39S(2)
authorises an inspector, in addition to the
seizure of any document or computer of the
kind described in the warrant, to seize or take
a document or computer which is not of the
kind described in the warrant, if--
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(a) the inspector believes on reasonable
grounds that the document or
computer--
(i) is of a kind which could have been
included in a search warrant
issued under section 39S(2); or
(ii) will afford evidence about the
alleged contravention by a person
of an essential services
requirement; and
(b) the inspector believes on reasonable
grounds that it is necessary to seize that
document or computer in order to
prevent its concealment, loss or
destruction or its use in the alleged
contravention by a person of an
essential services requirement.
Division 4--Documents and computers
39Y Copies of seized documents
(1) If an inspector retains possession of a
document seized from a person under this
Part, the inspector must give the person, as
soon as practicable after the seizure, a copy
of the document certified as correct by the
inspector.
(2) A copy of a document certified under
subsection (1) is to be received in all courts
and tribunals as evidence of equal validity to
the original.
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39Z Retention and return of seized documents
or computers
(1) Subject to subsection (2), an inspector must
take reasonable steps to ensure that a
document or computer that the inspector has
seized under this Part is returned to the
relevant person not later than 3 months after
its seizure.
(2) The inspector is only required to return a
document or computer under subsection (1),
if the inspector is satisfied that--
(a) the document or computer is not
required (or is no longer required) for
the purpose for which it was seized;
and
(b) the continued retention of the document
or computer is not necessary to prevent
the document or computer being used
in a way that would justify its seizure
under this Part; and
(c) the document or computer is not subject
to a dispute as to ownership which
would be appropriately resolved by
making an application under
section 39ZA for the return of the
document or computer.
(3) This section does not apply if the
Magistrates' Court makes an order under
section 39ZB extending the period during
which the document or computer may be
retained.
(4) Nothing in this section affects a lien or other
security over a computer.
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(5) Nothing in this section prevents the return of
a document or computer to its owner at any
time if the Commission considers there is no
reason for its continued retention.
(6) In this section--
relevant person, in relation to a document or
computer means--
(a) the person from whom the
document or computer was seized;
or
(b) the owner of the document or
computer if the person from
whom it was seized is not entitled
to possess it.
39ZA Application for return of seized
documents or computers
(1) For the purposes of section 39Z(2)(c), an
application for the return of a document or
computer seized under this Part may be made
to the Magistrates' Court by--
(a) the person from whom it was seized; or
(b) a person who claims to be the owner.
(2) A person who makes an application under
subsection (1) must serve a copy of the
application on the Commission.
(3) The Commission is entitled to appear before
the Magistrates' Court and be heard in
relation to an application under subsection
(1).
(4) The Magistrates' Court may make an order
for the return of the document or computer to
the person from whom it was seized or, if
that person is not entitled to possess it, to the
owner, if the Court is satisfied that--
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(a) the document or computer is not
required (or is no longer required) for
the purpose for which it was seized;
and
(b) the continued retention of the document
or computer is not necessary to prevent
the document or computer being used
in a way that would justify its seizure
under this Part.
39ZB Magistrates' Court may extend 3-month
period
(1) If an inspector seizes a document or
computer under this Part, the inspector may
apply to the Magistrates' Court for an order
for an extension, not exceeding 3 months, of
the period for which the inspector may retain
the document or computer.
(2) An application under subsection (1) must be
made--
(a) not later than 3 months after seizing a
document or computer under this Part;
or
(b) if an extension has been granted under
this section, before the end of the
period of the extension.
(3) The Magistrates' Court may make the order
if the Court is satisfied that--
(a) it is in the interests of justice; and
(b) the total period of retention does not
exceed 12 months; and
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(c) retention of the document or computer
is necessary--
(i) for the purposes of an
investigation into whether a
contravention of an essential
services requirement has occurred;
or
(ii) to enable evidence of an alleged
contravention of an essential
services requirement to be
obtained for the purposes of a
proceeding under this Act or
relevant legislation.
(4) At least 7 days prior to the hearing of an
application under this section, notice of the
application must be sent to the owner of the
document or computer described in the
application.
Division 5--Offences
39ZC Refusal or failure to comply with
requirement
A person must not, without reasonable
excuse, refuse or fail to comply with a
requirement of an inspector under this Part.
Penalty: 60 penalty units.
39ZD Protection against self-incrimination
(1) It is a reasonable excuse for a natural person
to refuse or fail to give information or do any
other thing that the person is required to do
by or under this Part, if the giving of the
information or the doing of that other thing
would tend to incriminate the person or
expose the person to a penalty.
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(2) Despite subsection (1), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a document that the person is
required to produce by or under this Part, if
the production of the document would tend
to incriminate the person or expose the
person to a penalty.
(3) Despite subsection (1), it is not a reasonable
excuse for a natural person to refuse or fail to
provide information or assistance that a
person is required under section 39U to
provide, if the provision of the information
or assistance would tend to incriminate the
person or expose the person to a penalty.
39ZE Offence to hinder or obstruct inspector
A person must not, without reasonable
excuse, hinder or obstruct an inspector who
is exercising a power under this Part.
Penalty: 60 penalty units.
39ZF Offence to impersonate inspector
A person who is not an inspector must not, in
any way, hold themselves out to be an
inspector.
Penalty: 60 penalty units.
Division 6--Miscellaneous
39ZG Requirement to assist inspector during
entry
An inspector exercising a power of entry
under this Part may require a person at the
premises--
(a) to give information to the inspector,
orally or in writing; and
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(b) to produce documents to the inspector;
and
(c) to give reasonable assistance to the
inspector.
39ZH Entry to be reported to the Commission
(1) If an inspector exercises a power of entry
under Division 3, the inspector must report
the exercise of the power to the Commission
not later than 7 days after the entry.
(2) The report must include all relevant details
of the entry including--
(a) the time and place of the entry; and
(b) the purpose of the entry; and
(c) a description of things done while on
the premises, including details of--
(i) documents seized, copies made
and extracts taken; and
(ii) computers seized; and
(d) the time of departure.
39ZI Register of exercise of powers of entry
The Commission must keep and maintain a
register containing the particulars of all
matters reported to the Commission under
section 39ZH.
39ZJ Complaints
(1) A person may complain to the Commission
about the exercise of a power by an inspector
under this Part.
(2) The Commission must--
(a) investigate any complaint made to the
Commission; and
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(b) provide a written report to the
complainant on the results of the
investigation.
Division 7--When inspector must not
exercise search and seizure powers or
apply for search warrants
39ZK Matters about which inspectors must not
exercise search and seizure powers or
apply for search warrants
An inspector must not exercise a power or
apply for the issue of a search warrant under
this Part--
(a) on the grounds that a person may have
contravened a provision of Part 3 of the
Grain Handling and Storage
Act 1995; or
(b) on the grounds that a person may have
contravened Part 3 of the Port
Management Act 1995 or for the
purposes of conducting an inquiry
under section 49Z of that Act.
Part 4C--Court may order
compliance with requirements
39ZL Powers of court if requirement of
Commission or inspector not complied
with
(1) Subject to subsection (2), if the Commission
is satisfied that a person has failed, without
reasonable excuse, to comply with a
requirement under section 36, 37 or 39ZG,
the Commission may apply to a court for an
order directing the person to comply with the
requirement.
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(2) The Commission must not make an
application under subsection (1) if the
person to whom the failure relates has been
charged with an offence under section 36(4),
37(2) or 39ZC (as the case requires).
(3) On an application under subsection (1), the
court may--
(a) order the person to comply with the
requirement within a period specified in
the order; and
(b) make any other orders it considers
appropriate.
(4) If a proceeding is commenced under this
section in relation to a failure to comply with
a requirement, the person to whom the
failure relates cannot be charged with an
offence under section 36(4), 37(2) or 39ZC
(as the case requires).".
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Part 3--Civil penalties and other
enforcement actions
6 Definitions
(1) In section 3 of the Principal Act insert the
following definitions--
"annual turnover has the same meaning as in
section 2(1) of Schedule 2 to the
Competition and Consumer Act 2010 of the
Commonwealth;
civil penalty order means an order made under
section 54(1);
civil penalty requirement means any of the
following--
(a) a determination made by the
Commission under--
(i) this Act; or
(ii) relevant legislation (other than a
determination made under
Division 1A or 3 of Part 6 of the
Commercial Passenger Vehicle
Industry Act 2017);
(b) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
licensing under relevant legislation;
(c) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
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licensing by reason of an Order made
under section 4;
(d) a provision of a Code of Practice that
is--
(i) prescribed as a civil penalty
requirement; or
(ii) specified in the Code of Practice
as a civil penalty requirement;
(e) a provision of this Act that is--
(i) specified by this Act as a civil
penalty requirement; or
(ii) prescribed as a civil penalty
requirement;
(f) a provision of relevant legislation
(other than a provision that includes a
statutory condition) that is--
(i) specified by the relevant
legislation as a civil penalty
requirement for the purposes of
this Act; or
(ii) prescribed in regulations made
under the relevant legislation as a
civil penalty requirement for the
purposes of this Act;
(g) the following Orders--
(i) an Order made under section
13(1), 40D(1) or 40E(1) of the
Electricity Industry Act 2000;
(ii) the Wimmera and Colac Tariff
Order within the meaning of
section 20 of the Gas Industry
Act 2001;
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(iii) an Order made under section
21(1), 48C(1) or 48D(1) of the
Gas Industry Act 2001;
compliance notice means a notice under
section 54ZG;
conduct, in relation to a contravention, includes a
refusal or failure to do something;
contravention order means an order made under
section 53(1) or (2);
enforceable undertaking means an undertaking
given under section 54ZD;
Essential Services Commission Enforcement
Fund means the fund established by
section 54ZP;
Essential Services Commission Operating Fund
means the fund established by section 54ZT;
monetary benefits means monetary, financial or
economic benefits, including any monetary,
financial or economic benefit a person
acquires or accrues by avoiding or delaying
the person's compliance with an information
gathering notice, an enforceable undertaking
or a civil penalty requirement to which the
person's offence or contravention relates;
monetary benefits order means an order made
under section 54ZF or 61B;
notice penalty means a penalty set out in
section 54T;
officer means an officer within the meaning of
section 9 of the Corporations Act;
penalty notice means a notice served under
section 54S;
Register of Enforcement Action means the
register established under section 54ZO(1);
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statutory condition means--
(a) a condition that is set out in relevant
legislation which the relevant
legislation states is included as a
condition of a licence; and
(b) a condition that is deemed or taken to
be included as a condition of a licence
under relevant legislation;
Example
For example, section 36A of the Electricity Industry
Act 2000 sets out a number of conditions to which a
licence issued under that Act is subject.".
(2) In section 3 of the Principal Act, for the definition
of regulated entity substitute--
"regulated entity--
(a) means an entity operating in a regulated
industry; and
(b) without limiting paragraph (a),
includes--
(i) a person who is exempt under
section 17 of the Electricity
Industry Act 2000 from a
requirement to hold a licence and
who is required to comply with a
Code of Practice as a condition of
that exemption; and
(ii) a person who is exempt under
section 24 of the Gas Industry
Act 2001 from a requirement
to hold a licence or obtain
registration and who is required to
comply with a Code of Practice as
a condition of that exemption; and
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(iii) any other person or class of person
prescribed as a regulated entity for
Divisions 1 and 2 of Part 7 and
section 54ZN for the purposes of
this definition;".
(3) In section 3 of the Principal Act, the definition of
enforcement action is repealed.
7 Section 10AA substituted
For section 10AA of the Principal Act
substitute--
"10AA Commission's functions in relation to
compliance and enforcement
Without limiting section 10 or relevant
legislation, the functions of the Commission
include--
(a) to monitor and report on compliance by
persons with this Act, relevant
legislation in respect of which the
Commission has powers or functions
and civil penalty requirements; and
(b) to investigate contraventions or
possible contraventions by persons of
this Act, relevant legislation in respect
of which the Commission has powers
or functions and civil penalty
requirements; and
(c) to commence and conduct proceedings
in relation to contraventions by persons
of this Act, relevant legislation in
respect of which the Commission has
powers or functions and civil penalty
requirements.".
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8 Heading to Part 7 substituted
For the heading to Part 7 of the Principal Act
substitute--
"Part 7--Enforcement".
9 Divisions 1 and 2 of Part 7 substituted, new
Divisions 3 to 8 of Part 7 inserted and new Part 7A
inserted
For Divisions 1 and 2 of Part 7 of the Principal
Act substitute--
"Division 1--Contravention order and
related orders
Subdivision 1--Contravention order
53 Contravention order
(1) A court may make an order, on application
of the Commission or a person authorised by
the Commission, that a regulated entity has
contravened a civil penalty requirement.
(2) A court may make an order, on application
of the Commission or a person authorised by
the Commission, that a person who is an
officer of a body corporate which is a
regulated entity has contravened a civil
penalty requirement if the person is taken to
have contravened the civil penalty
requirement under section 60A(1).
Note
If the court makes a contravention order it may make a civil
penalty order, an adverse publicity order under section 54F
or an order under section 54G or 54H.
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Subdivision 2--Civil penalty orders
54 Civil penalty orders
(1) If a court makes a contravention order
against a person, the court may order the
person to pay a civil penalty of an amount
not exceeding--
(a) in the case of an energy licensee, the
civil penalty amount in section 54A(1)
in respect of that contravention; or
(b) in the case of an officer of a body
corporate that is an energy licensee, the
civil penalty amount in section 54B(1)
in respect of that contravention; or
(c) in the case of a regulated entity (other
than an energy licensee), the civil
penalty amount in section 54C(1) in
respect of that contravention; or
(d) in the case of an officer of a body
corporate that is a regulated entity
(other than an energy licensee), the
civil penalty amount in section 54D in
respect of that contravention.
Notes
1 An energy licensee is a regulated entity. An
energy licensee is the holder of a licence issued
under Part 2 of the Electricity Industry
Act 2000 or a licence issued under Part 3 of the
Gas Industry Act 2001. The electricity industry
and the gas industry are regulated industries for
the purposes of this Act--see section 7A of the
Electricity Industry Act 2000 and section 17 of
the Gas Industry Act 2001.
2 A civil penalty payable under this section is a
debt due to the Commission and the Commission
may recover the civil penalty in the court--see
section 54ZS.
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(2) A person must pay an amount under
subsection (1) to the Commission for
payment into the Essential Services
Commission Enforcement Fund.
(3) Without limiting the matters to which the
court may have regard in making an order
under subsection (1), the court must have
regard to the following--
(a) the nature and extent of the
contravention;
(b) the circumstances in which the
contravention took place;
(c) whether previously the regulated entity
has engaged in conduct that constitutes
a contravention of a civil penalty
requirement or similar conduct; or
(d) any loss or damage experienced by any
other person as a result of the
contravention;
(e) if the Commission served a compliance
notice on the regulated entity in relation
to a contravention, whether the
regulated entity has complied or failed
to comply with the notice.
54A Civil penalty amount--energy licensees
(1) For the purposes of section 54(1)(a), the civil
penalty amount is an amount equal to the
greater of--
(a) an amount equal to 1200 penalty units
or, if there is another amount provided
for the contravention of that civil
penalty requirement in accordance with
section 54E, that other amount; or
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(b) if the court can determine the value of
any monetary benefits acquired by, or
accrued or accruing to, the energy
licensee (or any body corporate related
to the energy licensee), as a result of
the contravention, an amount that is
3 times the amount of the monetary
benefits; or
(c) if the court cannot determine the value
of the monetary benefits, 10% of the
annual turnover of the energy licensee
during the 12 month period ending at
the end of the month in which the
energy licensee contravened the civil
penalty requirement.
(2) For the purposes of subsection (1)(a), the
other amount may be less than an amount
equal to 1200 penalty units, but must not
exceed an amount equal to 60 000 penalty
units.
(3) Subsection (1)(b) and (c) only apply in a
particular case if the Commission or the
person authorised by the Commission, in
applying for a contravention order, requests
that those provisions apply in that particular
case.
(4) In this section, 2 or more bodies corporate
are related to each other if they are related
bodies corporate within the meaning of the
Corporations Act.
54B Civil penalty amount--officers of energy
licensees
(1) For the purposes of section 54(1)(b), the civil
penalty amount is--
(a) an amount equal to 240 penalty units;
or
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(b) if there is another amount provided for
the contravention of that civil penalty
requirement in accordance with
section 54E, that other amount.
(2) For the purposes of subsection (1)(b), the
other amount may be less than an amount
equal to 240 penalty units but must not
exceed an amount equal to 3000 penalty
units.
54C Civil penalty amount--other regulated
entities
(1) For the purposes of section 54(1)(c), the civil
penalty amount is--
(a) in the case of a natural person--
(i) an amount equal to 240 penalty
units; or
(ii) if another, lesser amount is
provided for the contravention of
that civil penalty requirement in
accordance with section 54E, that
other amount; and
(b) in the case of a body corporate, an
amount equal to the greater of--
(i) an amount equal to 1200 penalty
units or, if another, lesser amount
provided for the contravention of
that civil penalty requirement in
accordance with section 54E, that
other amount; or
(ii) if the court can determine the
value of any monetary benefits
acquired by, or accrued or
accruing to, the body corporate
(or any body corporate related to
the body corporate), as a result of
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the contravention, an amount that
is 3 times the amount of the
monetary benefits.
(2) Subsection (1)(b)(ii) only applies in a
particular case if the Commission or the
person authorised by the Commission, in
applying for a contravention order, requests
that the provision applies in that particular
case.
(3) In this section, 2 or more bodies corporate
are related to each other if they are related
bodies corporate within the meaning of the
Corporations Act.
54D Civil penalty amount--officers of other
regulated entities
For the purposes of section 54(1)(d), the civil
penalty amount is--
(a) an amount equal to 240 penalty units;
or
(b) if another, lesser amount is provided for
the contravention of that civil penalty
requirement in accordance with
section 54E, that other amount.
54E How other civil penalty amounts are to be
provided
For the purposes of sections 54A(1), 54B(1),
54C(1) and 54D, another amount for the
contravention of a civil penalty requirement
may be provided as follows--
(a) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (a)(i), (c) or (e)(ii) of the
definition of civil penalty requirement,
the amount is prescribed for the
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contravention of that civil penalty
requirement;
(b) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (a)(ii) of the definition of
civil penalty requirement, the amount
is prescribed for the contravention of
that civil penalty requirement in
regulations made under the relevant
legislation under which the
determination was made;
(c) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (b) of the definition of civil
penalty requirement, the amount is
prescribed for the contravention of that
civil penalty requirement in regulations
made under the relevant legislation
under which the licence was issued;
(d) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (d) of the definition of civil
penalty requirement, the amount is
prescribed in regulations made under
the relevant legislation that applies to
the regulated industry in which the
regulated entity, or officer of a
regulated entity, against whom the civil
penalty order is made, is operating;
(e) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (e)(i) of the definition of civil
penalty requirement, the amount is
specified for the contravention of that
civil penalty requirement in this Act;
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(f) for a contravention of a civil penalty
requirement referred to in paragraph
(f)(i) of the definition of civil penalty
requirement, the amount is specified
for the contravention of that civil
penalty requirement in the relevant
legislation that specified the civil
penalty requirement;
(g) for a contravention of a civil penalty
requirement referred to in paragraph
(f)(ii) of the definition of civil penalty
requirement, the amount is prescribed
in the regulations made under the
relevant legislation that prescribed the
provision of the relevant legislation;
(h) for a contravention of a civil penalty
requirement referred to in paragraph
(g)(i) of the definition of civil penalty
requirement, the amount is prescribed
for the contravention of that civil
penalty requirement in regulations
made under the Electricity Industry
Act 2000;
(i) for a contravention of a civil penalty
requirement referred to in paragraph
(g)(ii) or (iii) of the definition of civil
penalty requirement, the amount is
prescribed for the contravention of that
civil penalty requirement in regulations
made under the Gas Industry
Act 2001.
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Subdivision 3--Adverse publicity orders
and other orders
54F Adverse publicity orders
(1) If a court makes a contravention order
against a regulated entity, the court may
make an adverse publicity order against the
regulated entity.
(2) In making an adverse publicity order, the
court may specify the period within which
the order must be complied with and may
impose any other requirement that the court
considers necessary or expedient to make the
order effective.
(3) This section does not limit a court's powers
under any other provision of this Act.
(4) In this section--
adverse publicity order means an order
that--
(a) requires a regulated entity to
disclose, in the way and to the
persons specified in the order,
such information as is so
specified, being information that
the regulated entity has possession
of or access to; or
(b) requires a regulated entity to
publish, at the regulated entity's
expense and in the way specified
in the order, an advertisement in
the terms specified in, or
determined in accordance with,
the order.
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54G Orders requiring provision of services,
education, etc.
(1) If a court makes a contravention order
against a regulated entity, the court may
make one or more of the orders specified in
subsection (2).
(2) The orders are--
(a) an order directing the regulated entity
to perform a specified service, that
relates to the conduct which constituted
the contravention, for the benefit of the
community or a section of the
community; or
(b) an order for the purpose of ensuring
that the regulated entity does not
engage in the conduct, similar conduct
or related conduct that constituted the
contravention during the period of the
order (which must not be longer than
3 years) including--
(i) an order directing the regulated
entity to establish a compliance
program for employees or other
persons involved in the regulated
entity's business, being a program
designed to ensure their awareness
of the responsibilities and
obligations in relation to such
conduct; and
(ii) an order directing the regulated
entity to establish an education
and training program for
employees or other persons
involved in the regulated entity's
business, being a program
designed to ensure the employees'
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or other persons' awareness of the
responsibilities and obligations in
relation to such conduct; and
(iii) an order directing the regulated
entity to revise the internal
operations of the regulated entity's
business which led to the
regulated entity engaging in such
conduct.
(3) In making an order under this section, the
court may specify the period within which
specified actions must be taken and may
impose any other requirement that the court
considers necessary or expedient to make the
order effective.
(4) This section does not limit a court's powers
under any other provision of this Act.
54H Compensation and other orders
(1) If a court makes a contravention order
against a regulated entity, the court may
make any order it considers fair in relation to
the regulated entity if it is satisfied that
another person (the injured person) has
suffered or may suffer loss or damage as a
result of the contravention.
(2) Without limiting subsection (1), the orders
that may be made under this section
include--
(a) an order that the whole or any part of a
contract between the regulated entity
and the injured person who is affected
by the contravention or any agreement
collateral to such a contract is void on
and from the time specified in the
order; or
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(b) an order that the contract or agreement
is varied in the manner specified in the
order and may specify in the order that
the variation takes effect from the time
specified in the order; or
(c) an order that all or any of the provisions
in the contract are to be enforced or are
not to be enforced; or
(d) an order that the regulated entity refund
to the injured person money paid by the
injured person under the contract or
agreement; or
(e) an order that the regulated entity pay
the amount of any loss or damage
suffered by the injured person as a
result of the contravention to the
injured person.
(3) In making an order under this section, the
court may specify the period within which
specified actions must be taken and may
impose any other requirement that the court
considers necessary or expedient to make the
order effective.
(4) This section does not limit a court's powers
under any other provision of this Act.
Subdivision 4--Matters related to
proceedings for contravention order
54I Proceedings under this Division are civil
proceedings
(1) Nothing in this Division is to be construed as
limiting any other power of the court.
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(2) A proceeding under this Division is a civil
proceeding for all purposes.
Note
As to the standard of proof in a civil proceeding, see
section 140 of the Evidence Act 2008.
54J Authority to commence proceedings
In a proceeding under this Division, it must
be presumed, in the absence of evidence to
the contrary, that the person commencing the
proceeding was authorised to commence the
proceeding.
54K Civil proceedings after criminal
proceedings
A court must not make a contravention order
against a person if the person has
contravened a civil penalty requirement and
has been convicted of an offence constituted
by conduct that is substantially the same as
the conduct alleged to constitute the
contravention.
54L Criminal proceeding during proceeding
for civil penalty order
(1) A proceeding for a contravention order
against a person is stayed if--
(a) a criminal proceeding is commenced or
has already been commenced against
the person for an offence; and
(b) the offence is constituted by conduct
that is substantially the same as the
conduct alleged to constitute the
contravention.
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(2) If the person--
(a) is not convicted of the offence--the
proceeding for the contravention order
may be resumed; or
(b) is convicted of the offence--the
proceeding for the contravention order
is dismissed.
54M Criminal proceedings commenced after
proceeding for contravention order
A criminal proceeding may be commenced
against a person for conduct that is
substantially the same as conduct
constituting the contravention of a civil
penalty requirement regardless of whether a
contravention order has been made against
the person.
54N Evidence given or produced during
proceeding for contravention order
(1) This section applies to information given and
documents produced by an individual in a
proceeding for a contravention order against
the individual.
(2) The information and documents are not
admissible in evidence in a criminal
proceeding against the individual for an
offence constituted by conduct that is
substantially the same as the conduct for
which the contravention order was sought.
54O Conduct contravening more than one civil
penalty requirement
(1) If a person contravenes 2 or more civil
penalty requirements, a proceeding for a
contravention order may be commenced
against the person in relation to the
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contravention of any one or more of those
civil penalty requirements.
(2) Despite subsection (1), a person is not liable
to pay more than one civil penalty in relation
to the same conduct.
54P Multiple contraventions of civil penalty
requirements
(1) Subject to subsection (2), a court may order
that a person pay a single civil penalty for
multiple contraventions of a civil penalty
requirement if--
(a) the multiple contraventions are based
on the same facts; or
(b) the multiple contraventions form, or are
part of, a series of contraventions of the
same or a similar nature.
(2) A single civil penalty ordered under
subsection (1) must not exceed the sum of
the maximum penalties that the court may
have ordered if separate civil penalties were
ordered for each of the contraventions.
54Q Multiple proceedings for contravention
order to be heard together
A court may direct that 2 or more
proceedings for a contravention order are to
be heard together.
54R Jurisdictional limit of Magistrates' Court
does not apply to civil penalty order
The jurisdictional limit for a civil proceeding
specified under section 100(1) of the
Magistrates' Court Act 1989 does not
apply to a proceeding for a contravention
order under this Division.
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Division 2--Penalty notice regime
54S Power to serve a penalty notice
(1) If the Commission has reason to believe that
a regulated entity has contravened a civil
penalty requirement, the Commission may
serve a notice on the regulated entity.
(2) The Commission must not serve a penalty
notice later than 12 months after the date on
which the Commission forms a belief that
the regulated entity has contravened the civil
penalty requirement.
54T Notice penalties
(1) The notice penalty for a contravention of a
civil penalty requirement by a regulated
entity (other than an energy licensee) is--
(a) in the case of a natural person--
(i) an amount equal to 20 penalty
units; or
(ii) if there is another, lesser amount
provided for the contravention of
that civil penalty requirement in
accordance with section 54U, that
other amount; or
(b) in the case of a body corporate--
(i) an amount equal to 120 penalty
units; or
(ii) if there is another, lesser amount
provided for the contravention of
that civil penalty requirement in
accordance with section 54U, that
other amount.
(2) The notice penalty for a contravention of a
civil penalty requirement by an energy
licensee is--
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(a) an amount equal to 200 penalty units;
or
(b) if there is another amount provided for
the contravention of that civil penalty
requirement in accordance with
section 54U, that other amount.
(3) For the purposes of subsection (2)(b), the
other amount may be less than an amount
equal to 200 penalty units but must not
exceed an amount equal to 1500 penalty
units.
54U How other notice penalty amounts are to
be provided
For the purposes of section 54T(1) and (2),
another notice penalty amount for the
contravention of a civil penalty requirement
may be provided as follows--
(a) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (a)(i), (c) or (e)(ii) of the
definition of civil penalty requirement,
the amount is prescribed for the
contravention of that civil penalty
requirement;
(b) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (a)(ii) of the definition of
civil penalty requirement, the amount
is prescribed for the contravention of
that civil penalty requirement in
regulations made under the relevant
legislation under which the
determination was made;
(c) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (b) of the definition of civil
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penalty requirement, the amount is
prescribed for the contravention of that
civil penalty requirement in regulations
made under the relevant legislation
under which the licence was issued;
(d) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (d) of the definition of civil
penalty requirement, the amount is
prescribed in regulations made under
the relevant legislation that applies to
the regulated industry in which the
regulated entity, or officer of a
regulated entity, against whom the civil
penalty order is made, is operating;
(e) for a contravention of a civil penalty
requirement of a kind referred to in
paragraph (e)(i) of the definition of civil
penalty requirement, the amount is
specified for the contravention of that
civil penalty requirement in this Act;
(f) for a contravention of a civil penalty
requirement referred to in paragraph
(f)(i) of the definition of civil penalty
requirement, the amount is specified
for the contravention of that civil
penalty requirement in the relevant
legislation that specified the civil
penalty requirement;
(g) for a contravention of a civil penalty
requirement referred to in paragraph
(f)(ii) of the definition of civil penalty
requirement, the amount is prescribed
in the regulations made under the
relevant legislation that prescribed the
provision of the relevant legislation;
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(h) for a contravention of a civil penalty
requirement referred to in paragraph
(g)(i) of the definition of civil penalty
requirement, the amount is prescribed
for the contravention of that civil
penalty requirement in regulations
made under the Electricity Industry
Act 2000;
(i) for a contravention of a civil penalty
requirement referred to in paragraph
(g)(ii) or (iii) of the definition of civil
penalty requirement, the amount is
prescribed for the contravention of that
civil penalty requirement in regulations
made under the Gas Industry
Act 2001.
Note
Notice penalties must be paid into the Essential Services
Commission Enforcement Fund--see section 54ZQ.
54V Form of penalty notice
A penalty notice must state the following--
(a) the date of the notice;
(b) the name and address of the regulated
entity served with the penalty notice;
(c) in relation to the alleged
contravention--
(i) that it is alleged that the regulated
entity has engaged in conduct that
constitutes a contravention of a
civil penalty requirement; and
(ii) the nature, and a brief description
of, the alleged contravention; and
(iii) the date on which the
contravention is alleged to have
occurred;
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(d) the amount of the notice penalty for the
alleged contravention;
(e) the manner in which the notice penalty
may be paid into the Essential Services
Commission Enforcement Fund;
(f) the time (being not less than 28 days
after the date on which the notice is
served) within which the notice penalty
must be paid;
(g) that, if the amount of the notice penalty
is paid before the end of the time
specified in the notice, the Commission
will not commence--
(i) a proceeding against the regulated
entity in relation to the alleged
contravention for a contravention
order, unless the notice is
withdrawn before the end of that
time in accordance with
section 54Y; or
(ii) a criminal proceeding against the
regulated entity for an offence
constituted by conduct that is
substantially the same as the
conduct that constitutes the
alleged contravention, unless the
notice is withdrawn before the end
of that time in accordance with
section 54Y;
(h) that failure to pay the notice penalty
before the end of the time specified in
the notice may result in the
Commission commencing--
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(i) a proceeding against the regulated
entity for a contravention order in
relation to the alleged
contravention; or
(ii) a criminal proceeding against the
regulated entity for an offence
constituted by conduct that is
substantially the same as the
conduct that constitutes the
alleged contravention;
(i) that the regulated entity is entitled to
disregard the notice and defend any
proceeding relating to the alleged
contravention;
(j) any other prescribed particulars.
54W Commission must not commence certain
proceedings while penalty notice on foot
or until time for payment has expired
(1) The Commission must not commence a
proceeding specified in subsection (2)
against a regulated entity if--
(a) the Commission has served a penalty
notice on the regulated entity; and
(b) the time for payment stated in the
notice has not expired; and
(c) the notice has not been withdrawn by
the Commission in accordance with
section 54Y.
(2) For the purposes of subsection (1), the
proceedings are--
(a) a proceeding for a contravention
order in relation to conduct that is
substantially the same as the conduct
constituting the contravention for which
the penalty notice was served; or
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(b) a criminal proceeding for an offence
constituted by conduct that is
substantially the same as the conduct
constituting the contravention for which
the penalty notice was served.
Notes
1 Subject to this section, the Commission or a person
authorised by the Commission may make an
application for a contravention order.
2 Section 54ZA provides that the Commission must not
make an application for a contravention order if a
notice penalty is paid within the time for payment
stated in the notice and the notice is not withdrawn by
the Commission within the time for payment stated in
the notice.
54X Late payment
(1) The Commission may accept payment of a
notice penalty even after the expiration of the
time for payment stated in the relevant
penalty notice if--
(a) the Commission has not commenced a
proceeding specified in subsection (2);
and
(b) the notice has not been withdrawn by
the Commission in accordance with
section 54Y.
(2) For the purposes of subsection (1), the
proceedings are--
(a) a proceeding for a contravention
order in relation to conduct that is
substantially the same as the conduct
constituting the contravention to which
the penalty relates; or
(b) a criminal proceeding for an offence
constituted by conduct that is
substantially the same as the conduct
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constituting the contravention to which
the penalty relates.
54Y Withdrawal of penalty notice
(1) The Commission may withdraw a penalty
notice at any time before the end of the time
for payment specified in the notice by
serving a withdrawal notice on the regulated
entity served with the penalty notice.
(2) A penalty notice may be withdrawn even if
the notice penalty has been paid.
54Z Refund of notice penalty
If a penalty notice is withdrawn in
accordance with section 54Y, the amount of
any notice penalty paid must be refunded by
the Commission from the Essential Services
Commission Enforcement Fund.
54ZA Payment expiates contravention
(1) The Commission must not commence a
proceeding specified in subsection (3)
against a regulated entity on whom a penalty
notice was served if--
(a) the notice penalty is paid within the
time for payment stated in the notice
and the notice is not withdrawn by the
Commission within the time for
payment stated in the notice in
accordance with section 54Y; or
(b) the notice penalty is accepted in
accordance with section 54X.
(2) The Commission must not commence a
proceeding specified in subsection (3)
against a person who is an officer of a body
corporate that is a regulated entity if--
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(a) a penalty notice is served on the
regulated entity; and
(b) either--
(i) the notice penalty is paid within
the time for payment stated in the
notice and the notice is not
withdrawn by the Commission
within the time for payment stated
in the notice in accordance with
section 54Y; or
(ii) the notice penalty is accepted in
accordance with section 54X.
(3) For the purposes of subsections (1) and (2)
the proceedings are--
(a) a proceeding for a contravention order
in relation to conduct that is
substantially the same as the conduct
constituting the contravention to which
the notice penalty relates; or
(b) a criminal proceeding for an offence
constituted by conduct that is
substantially the same as the conduct
constituting the contravention to which
the notice penalty relates.
54ZB Payment not to have certain consequences
(1) The payment of a notice penalty under this
Part is not and must not be taken to be an
admission of--
(a) a contravention of a civil penalty
requirement; or
(b) liability or guilt for the purposes of a
proceeding specified in subsection (2).
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(2) For the purposes of subsection (1), the
proceedings are--
(a) a proceeding for a contravention
order in relation to conduct that is
substantially the same as the conduct
constituting the contravention to which
the penalty relates; or
(b) a criminal proceeding for an offence
constituted by conduct that is
substantially the same as the conduct
constituting the contravention to which
the penalty relates.
(3) The payment of a notice penalty under this
Part must not be referred to in any report
provided to a court for the purpose of
determining sentence for any offence.
54ZC Multiple contraventions
(1) Subject to this section, if the conduct of a
regulated entity constitutes 2 or more
contraventions of one or more civil penalty
requirements, a penalty notice may be served
on the regulated entity in relation to each
contravention.
(2) A regulated entity is not liable to pay more
than one notice penalty if the same conduct
constitutes 2 or more contraventions of one
or more civil penalty requirements.
(3) A regulated entity whose conduct constitutes
2 or more contraventions of one or more
civil penalty requirements is not liable to pay
an amount under this Division more than the
highest of the maximum notice penalties for
the contraventions.
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Division 3--Enforceable undertakings
54ZD Enforceable undertakings
(1) The Commission may accept a written
undertaking given by a person in connection
with a matter in relation to which the
Commission has a function or power under
this Act or relevant legislation.
(2) A person who gives an enforceable
undertaking may withdraw or vary the
undertaking at any time, but only with the
consent of the Commission.
54ZE Enforcement of enforceable undertakings
(1) If the Commission considers that a person
who gave an enforceable undertaking has
contravened any of its terms, the
Commission may apply to a court for an
order under subsection (2).
(2) If the court is satisfied that the person has
contravened a term of the enforceable
undertaking, the court may make all or any
of the following orders--
(a) an order directing the person to comply
with that term of the enforceable
undertaking;
(b) any order that the court considers
appropriate directing the person to
compensate any person who has
suffered loss or damage as a result of
the contravention;
(c) any other order the court considers
appropriate.
(3) This section does not limit a court's power to
make a monetary benefits order under
section 54ZF.
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54ZF Monetary benefits order--contravention
of enforceable undertaking
(1) If a court is satisfied that a person has
contravened a term of an enforceable
undertaking, the court may make an order
under subsection (3).
(2) The court may make an order under
subsection (3) on application of the
Commission or a person authorised by the
Commission.
(3) The court may order the person to pay an
amount not exceeding the amount that the
court is satisfied represents the amount of
any monetary benefits acquired by the
person, or accrued or accruing to the person,
as a result of the contravention of the term of
the enforceable undertaking.
(4) A person must pay an amount under
subsection (3) to the Commission for
payment into the Essential Services
Commission Enforcement Fund.
Note
An amount that is ordered to be paid under this section is a
debt due to the Commission and the Commission may
recover the amount in the court--see section 54ZS.
Division 4--Compliance notices
54ZG Compliance notice
(1) The Commission may serve a notice on a
person requiring the person to do either or
both of the following if the Commission has
reason to believe that the person has
contravened, or is contravening, a civil
penalty requirement--
(a) comply with a civil penalty
requirement;
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(b) remedy a contravention of a civil
penalty requirement.
(2) A notice under subsection (1) must--
(a) specify that it is alleged that the person
has contravened, or is contravening, a
civil penalty requirement; and
(b) specify the nature, and provide a brief
description of, the alleged
contravention; and
(c) specify the date on which the
contravention is alleged to have
occurred; and
(d) if the notice requires the person to
comply with a civil penalty
requirement, specify the actions that the
person must take to comply with the
civil penalty requirement; and
(e) if the notice requires the person to
remedy an alleged contravention,
specify the actions that the person must
take to remedy the alleged
contravention; and
(f) specify that the service of the notice
does not prevent the Commission
from--
(i) commencing a proceeding
specified in subsection (3) against
the person in relation to the
contravention; or
(ii) commencing a criminal
proceeding for conduct that is
substantially the same as the
conduct constituted by the
contravention.
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(3) For the purposes of subsection (2)(f)(i) the
following proceedings are specified--
(a) a proceeding for a contravention order;
(b) a proceeding for an injunction under
Division 5.
Division 5--Injunctions
54ZH Injunctions
(1) A court may grant an injunction in any terms
that it considers appropriate, if the court is
satisfied that a person has engaged, or is
proposing to engage, in conduct that
constitutes or would constitute--
(a) a contravention of a determination,
condition or provision referred to in
subsection (2); or
(b) attempting to contravene a
determination, condition or provision
referred to in subsection (2); or
(c) aiding, abetting, counselling or
procuring a person to contravene a
determination, condition or provision
referred to in subsection (2); or
(d) inducing, or attempting to induce,
whether by threats, promises or
otherwise, a person to contravene a
determination, condition or provision
referred to in subsection (2); or
(e) being in any way, directly or indirectly,
knowingly concerned in, or party to, the
contravention by a person of a
determination, condition or provision
referred to in subsection (2); or
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(f) conspiring with others to contravene a
determination, condition or provision
referred to in subsection (2).
(2) For the purposes of subsection (1), the
determinations, conditions and provisions
are--
(a) a determination made by the
Commission under this Act or relevant
legislation (other than a determination
made under Division 1A or 3 of Part 6
of the Commercial Passenger Vehicle
Industry Act 2017); or
(b) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
licensing under relevant legislation; or
(c) a condition, including a statutory
condition, of a licence (other than a
condition requiring compliance with a
Code of Practice) issued to a regulated
entity operating in a regulated industry
that the Commission is responsible for
licensing by reason of an Order made
under section 4; or
(d) a provision of a Code of Practice; or
(e) a provision of this Act; or
(f) a provision of relevant legislation
(other than a provision that includes a
statutory condition) in respect of which
the Commission has powers or
functions; or
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(g) a provision of the following Orders--
(i) an Order made under section
13(1), 40D(1) or 40E(1) of the
Electricity Industry Act 2000;
(ii) the Wimmera and Colac Tariff
Order within the meaning of
section 20 of the Gas Industry
Act 2001;
(iii) an Order made under section
21(1), 48C(1) or 48D(1) of the
Gas Industry Act 2001.
(3) The court may grant the injunction under
subsection (1) on application by the
Commission or any other person.
(4) An application for an injunction under
subsection (1) may be made ex parte.
(5) Without limiting subsection (1), the court
may grant an injunction under that
subsection restraining a person from carrying
on a business or supplying goods or services
(whether or not as part of, or incidental to,
the carrying on of another business) in a
regulated industry--
(a) for a specified period; or
(b) except on specified terms and
conditions.
(6) Without limiting subsection (1), the court
may grant an injunction under that
subsection requiring a person to do any of
the following--
(a) refund money;
(b) transfer property;
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(c) disclose information about the person's
business activities or business
associates;
(d) honour a promise.
(7) The power of the court to grant an injunction
under subsection (1) restraining a person
from engaging in conduct may be
exercised--
(a) whether or not it appears to the court
that the person intends to engage again,
or to continue to engage, in conduct of
a kind referred to in that subsection;
and
(b) whether or not the person has
previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent
danger of substantial damage to any
other person if the person engages in
conduct of that kind.
(8) The power of the court to grant an injunction
under subsection (1) requiring a person to do
an act or thing may be exercised--
(a) whether or not it appears to the court
that the person intends to refuse or fail
again, or to continue to refuse or fail, to
do that act or thing; and
(b) whether or not the person has
previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent
danger of substantial damage to any
other person if the person refuses or
fails to do that act or thing.
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54ZI Consent injunctions
If an application is made under section
54ZH, the court may, if it considers
that it is appropriate to do so, grant an
injunction under this section by consent of
all the parties to the proceeding, whether or
not the court is satisfied as required by
section 54ZH(1).
54ZJ Interim injunctions
If an application is made under section
54ZH, the court may, if it considers that
it is desirable to do so, grant an interim
injunction under this section pending the
determination of the application.
54ZK Variation and discharge of injunctions
A court may vary or discharge--
(a) an injunction that it has granted under
section 54ZH or 54ZI; or
(b) an interim injunction that it has granted
under section 54ZJ.
54ZL Undertakings as to damages and costs
(1) In any application under section 54ZH, the
court must accept an undertaking by the
Commission and must not require a further
undertaking from any other person, if--
(a) the court would, but for this subsection,
require a person to give an undertaking
as to damages or costs; and
(b) the Commission gives the undertaking.
(2) Despite subsection (1), in an application for
an injunction under section 54ZH, if the
application has been made by the
Commission and if the court has determined
to grant an interim injunction, the Court must
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not, as a condition of granting an interim
injunction, require the Commission or any
other person to give any undertaking as to
damages or costs.
Division 6--Declarations
54ZM Declarations
(1) A person may commence a proceeding in a
court seeking, in relation to a determination,
condition or provision referred to in
section 54ZH(2)(a) to (g), the making of--
(a) a declaration in relation to the operation
or effect of the determination, condition
or provision; or
(b) a declaration in relation to the validity
of any act or thing done, proposed to be
done or purported to have been done in
respect of the determination, condition
or provision.
(2) The Commission may commence a
proceeding in a court seeking, in relation to a
matter arising under this Act or relevant
legislation, the making of a declaration of the
kind that may be made under
subsection (1)(a).
Division 7--Other persons involved in
contraventions of civil penalty
requirements
54ZN Persons involved in contraventions
(1) A person must not--
(a) attempt to contravene a civil penalty
requirement; or
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(b) aid, abet, counsel or procure a
contravention of a civil penalty
requirement; or
(c) induce (by threats, promises or
otherwise) a contravention of a civil
penalty requirement; or
(d) be in any way directly or indirectly
knowingly concerned in, or party to, a
contravention of a civil penalty
requirement; or
(e) conspire to contravene a civil penalty
requirement.
(2) Divisions 1, 3, 4, 5 and 6 apply to a person
who contravenes subsection (1) in relation to
a civil penalty requirement as if the person
had contravened the requirement.
(3) Division 1 applies to a person who
contravenes subsection (1) in relation to a
civil penalty requirement as if any reference
to a regulated entity or energy licensee were
a reference to the person.
Division 8--Register of Enforcement
Action
54ZO Register of Enforcement Action
(1) The Commission must establish and
maintain a register of--
(a) contravention orders; and
(b) penalty notices that have been paid; and
(c) enforceable undertakings.
(2) The Commission must enter the following
details in the Register of Enforcement
Action--
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(a) for a contravention order--
(i) the nature of the contravention
order; and
(ii) the name of the person against
whom the contravention order was
made; and
(iii) any order made under Division 1,
including the amount of any civil
penalty under a civil penalty
order; and
(iv) the date on which the
contravention order or other order
referred to in subparagraph (iii)
was made;
(b) for a penalty notice--
(i) the name of the person on whom
the penalty notice was served; and
(ii) the date the penalty notice was
paid; and
(iii) the civil penalty requirement that
was contravened; and
(iv) a short description of the nature of
the contravention;
(c) for an enforceable undertaking--
(i) the name of the person who gave
the enforceable undertaking; and
(ii) the date the enforceable
undertaking was given; and
(iii) a copy of the enforceable
undertaking.
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(3) The Commission must make the Register of
Enforcement Action publicly available on an
Internet site operated by the Commission,
free of charge.
Part 7A--Funds
Division 1--Essential Services
Commission Enforcement Fund
54ZP Essential Services Commission
Enforcement Fund
(1) There must be established in the Public
Account as part of the Trust Fund an account
to be known as the Essential Services
Commission Enforcement Fund.
(2) Money must not be paid out of the Essential
Services Commission Enforcement Fund
except in accordance with this Division.
54ZQ Payments into the Essential Services
Commission Enforcement Fund
There must be paid into the Essential
Services Commission Enforcement Fund--
(a) any fine ordered by a court to be paid
on a finding of guilt in respect of an
offence against--
(i) this Act; or
(ii) relevant legislation in respect of
which the Commission has
powers or functions; or
(iii) the Victorian Energy Efficiency
Target Act 2007, if the
Commission was a party to the
proceeding; or
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(iv) the Victorian Renewable Energy
Act 2006, if the Commission was
a party to the proceeding; and
(b) any amount paid to the Commission
under a civil penalty order; and
(c) any notice penalty paid; and
(d) any amount paid to the Commission
under a monetary benefits order; and
(e) any energy efficiency shortfall penalty
paid to the Commission under the
Victorian Energy Efficiency Target
Act 2001; and
(f) any renewable energy shortfall penalty
paid to the Commission under the
Victorian Renewable Energy
Act 2006; and
(g) any costs awarded to the Commission
in any court proceeding under this Act
or relevant legislation; and
(h) any other amount required under this
Act, relevant legislation or any other
Act to be paid into the Essential
Services Commission Enforcement
Fund; and
(i) money that is received from the
investment of money in the Essential
Services Commission Enforcement
Fund; and
(j) interest that is received on money
invested in the Essential Services
Commission Enforcement Fund.
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54ZR Payments out of the Essential Services
Commission Enforcement Fund
There must be paid out of the Essential
Services Commission Enforcement Fund--
(a) amounts authorised by the Commission
to fund the costs of performing its
functions under section 10AA; and
(b) amounts authorised by the Commission
to fund the costs of proceedings in
relation to contraventions of--
(i) a civil penalty requirement; or
(ii) the Victorian Energy Efficiency
Target Act 2007; or
(iii) the Victorian Renewable Energy
Act 2006; and
(c) reasonable expenses incurred in
administering the Essential Services
Commission Enforcement Fund; and
(d) any refunds of notice penalties; and
(e) amounts authorised by the Treasurer, in
consultation with the Commission and
the Minister, to be paid into the
Consolidated Fund.
54ZS Recovery of amounts ordered to be paid
into the Essential Services Commission
Enforcement Fund
(1) If a court orders a person to pay an amount
specified in subsection (2)--
(a) the amount is a debt due to the
Commission; and
(b) the Commission may recover the
amount in any court of competent
jurisdiction.
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(2) For the purposes of subsection (1), the
following amounts are specified--
(a) an amount required to be paid under a
civil penalty order;
(b) an amount required to be paid under a
monetary benefits order.
(3) Any amount recovered by the Commission
under subsection (1) must be paid into the
Essential Services Commission Enforcement
Fund.
Division 2--Essential Services
Commission Operating Fund
54ZT Essential Services Commission Operating
Fund
(1) There must be established in the Public
Account as part of the Trust Fund an account
to be known as the Essential Services
Commission Operating Fund.
(2) Money must not be paid out of the Essential
Services Commission Operating Fund except
in accordance with this Division.
54ZU Payments into the Essential Services
Commission Operating Fund
There must be paid into the Essential
Services Commission Operating Fund--
(a) any fees paid under relevant legislation,
to the extent that the fees relate to the
functions of the Commission; and
(b) any fees paid under the Victorian
Energy Efficiency Target Act 2007;
and
(c) any fees paid under the Victorian
Renewable Energy Act 2006; and
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(d) any other amount required under this
Act, relevant legislation or any other
Act to be paid into the Essential
Services Commission Operating Fund;
and
(e) money that is received from the
investment of money in the Essential
Services Commission Operating Fund;
and
(f) interest received on money invested in
the Essential Services Commission
Operating Fund.
54ZV Payments out of the Essential Services
Commission Operating Fund
There must be paid out of the Essential
Services Commission Operating Fund--
(a) amounts authorised by the Commission
to fund the costs of performing its
functions, except its functions under
section 10AA; and
(b) the costs and expenses of VCAT in
relation to proceedings under this Act
or relevant legislation; and
(c) reasonable expenses incurred in
administering the Essential Services
Commission Operating Fund; and
(d) any refunds of fees referred to in
section 54ZU(a), (b) or (c); and
(e) amounts authorised by the Treasurer, in
consultation with the Commission and
the Minister.".
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Part 4--Other amendments to the Principal Act and transitional provisions
Part 4--Other amendments to the Principal
Act and transitional provisions
Division 1--Other amendments to the Principal Act
10 Interpretation and application of Act
At the foot of section 5(1) of the Principal Act
insert--
"Note
Other Acts, including relevant legislation, may provide that,
despite this subsection, the relevant legislation prevails to
the extent of any inconsistency with this Act. See, for
example, section 4AA of the Water Industry Act 1994.".
11 Functions of the Commission
After section 10(d) of the Principal Act insert--
"(da) to make, amend and revoke Codes of
Practice under Part 6;".
12 Commission's functions in relation to particular
Basin water charges
In section 10A of the Principal Act--
(a) in paragraph (b), for "sections 37 and 38"
substitute "sections 36, 38, 39A, 39C
and 39D";
(b) after paragraph (b) insert--
"(ba) Parts 4A, 4B and 4C; and";
(c) in paragraph (c), for "Part 7 (other than
sections 61 and 64)" substitute "Parts 7,
7B and 7C (other than sections 60C, 61
and 64)".
13 Commission's functions in relation to renewable
energy
In section 10C of the Principal Act, for "Parts 3, 4,
5, 6 and 7" substitute "Parts 3, 4, 4A, 4B, 4C, 5,
6, 7, 7B and 7C".
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14 Commission's functions in relation to energy
efficiency
In section 10D of the Principal Act, for "Parts 3,
4, 5, 6 and 7" substitute "Parts 3, 4, 4A, 4B, 4C,
5, 6, 7, 7B and 7C".
15 Tenure of office of Chairperson
For section 19(1) of the Principal Act
substitute--
"(1) Subject to this Act, the Chairperson--
(a) holds office for such a period not
exceeding 5 years as is specified in
the instrument of appointment; and
(b) subject to this section, is eligible for
re-appointment.".
16 New section 23A inserted
After section 23 of the Principal Act insert--
"23A Chief executive officer
(1) The Commission may employ a person as
the chief executive officer of the
Commission.
(2) The chief executive officer is responsible to
the Commission for the day-to-day
management of the Commission.
(3) The chief executive officer is to be employed
as an executive under Part 3 of the Public
Administration Act 2004.
(4) If the chief executive officer was,
immediately before being appointed, a
member of a statutory superannuation
scheme within the meaning of the
Superannuation (Public Sector) Act 1992,
the chief executive officer continues to be a
member of that superannuation scheme
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subject to the Act under which the scheme
was created.
(5) The chief executive officer must not be a
Commissioner.".
17 Section 26 substituted
For section 26 of the Principal Act substitute--
"26 Delegation
(1) The Commission, by instrument,
may delegate to a person specified in
subsection (2) any function or power of
the Commission, under this Act or the
regulations or under relevant legislation or
any other Act, other than the powers of the
Commission under section 33, 36, 37 or 39.
(2) For the purposes of subsection (1), the
following persons are specified--
(a) a Commissioner;
(b) the chief executive officer;
(c) a person referred to in section 24;
(d) a member of a Division, committee or
panel appointed or designated by the
Commission.
(3) The Commission, by instrument, may
delegate the powers of the Commission
under section 36, 37 or 39 to any person or
class of person employed under Part 3 of the
Public Administration Act 2004 in the
administration of this Act who is--
(a) an executive within the meaning of the
Public Administration Act 2004;
(b) a person with a classification of
Grade 6 or above or Senior Technical
Specialist.".
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18 Meetings of the Commission
In section 28(2) of the Principal Act omit "or, in
his or her absence, a person appointed to act as
Chairperson under section 20,".
19 New section 31A inserted
Before section 32 of the Principal Act insert--
"31A Definitions
In this Part--
prescribed goods and services means any
goods or services made, produced or
supplied by or within a regulated
industry which goods or services are
specified in the empowering instrument
as being goods or services in respect of
which the Commission has power to
regulate prices;
prescribed price means the price or
price-range however designated for
the supply or sale of any goods or
services by or within a regulated
industry or particular factors used in
price-fixing or terms and conditions
relating to the price at which particular
goods or services are supplied or sold,
being a price, price-range, factor or
term and condition specified in the
empowering instrument as being a
price, price-range, factor or term and
condition which the Commission has
power to regulate.".
20 Price regulation
Section 32(2) of the Principal Act is repealed.
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21 Reports
In section 45(3) of the Principal Act, for
"section 38" substitute "section 60C".
22 Power to make Codes of Practice
(1) For section 47(1) of the Principal Act
substitute--
"(1) The Commission may make, amend or
revoke Codes of Practice for or with respect
to a regulated industry in accordance with
this Part.".
(2) After section 47(2)(b) of the Principal Act
insert--
"(ba) requiring a specified regulated entity or a
specified class of regulated entity to comply
with any of the following--
(i) term and conditions of contracts;
(ii) requirements in relation to the supply of
goods or services;
(iii) requirements to assist customers who
are experiencing financial hardship or
family violence;
(iv) requirements in relation to customers
who use life support equipment;".
(3) After section 47(3) of the Principal Act insert--
"(3A) A Code of Practice may--
(a) specify that it applies for the purposes
of the Electricity Industry Act 2000 or
the Gas Industry Act 2001; and
(b) specify any information, document,
matter or thing required or permitted by
the Electricity Industry Act 2000 or
the Gas Industry Act 2001 to be
specified to give effect to those Acts.".
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(4) In section 47(4) of the Principal Act--
(a) for paragraph (a) substitute--
"(a) confer a discretionary authority or
impose a duty on a specified person or
body or a specified class of persons or
bodies;";
(b) for paragraph (d) substitute--
"(d) be of general or limited application;
(e) differ according to differences in time,
place and circumstances;
(f) specify that a provision of the Code of
Practice is a civil penalty requirement;
(g) provide in a specified case or class of
cases for the exemption of persons or
things or a class of persons or things
from any of the provisions of the Code
of Practice, whether--
(i) unconditionally or on specified
conditions; or
(ii) either wholly or to such an extent
as is specified.".
(5) After section 47(4) of the Principal Act insert--
"(4A) A Code of Practice has effect despite
anything to the contrary in any agreement or
contract.
(4B) A Code of Practice takes effect on the day
that it is published under section 49 or on a
later day as is specified in that Code of
Practice.".
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23 Section 49 substituted
For section 49 of the Principal Act substitute--
"49 Publication of Codes of Practice and
amendments
The Commission must cause a copy of any
Code of Practice or amendment to a Code of
Practice it makes to be published--
(a) in the Government Gazette; and
(b) on the Commission's Internet site.".
24 Section 50 substituted
For section 50 of the Principal Act substitute--
"50 Automatic revocation of Codes of Practice
after 10 years
Unless sooner revoked, a Code of Practice
made under section 47(1) is revoked by
virtue of this section on the day which is the
tenth anniversary of the making of the Code
of Practice.".
25 Section 51 repealed
Section 51 of the Principal Act is repealed.
26 Heading to Division 3 of Part 7 substituted
For the heading to Division 3 of Part 7 of the
Principal Act substitute--
"Part 7B--Review by VCAT".
27 VCAT Review
(1) In section 55(1) of the Principal Act--
(a) for paragraph (a) substitute--
"(a) a decision of the Commission to serve
an information gathering notice under
section 36; or
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(ab) a decision of the Commission to serve a
compliance notice; or";
(b) in paragraph (b), for "38(2)(c) or 38(2)(d)"
substitute "60C(3)(c) or (d)";
(c) for "review of the requirement, decision"
substitute "review of the decision".
(2) In section 55(1A) of the Principal Act--
(a) omit "requirement," (where twice
occurring);
(b) after "subsection (1)(a)," insert "(ab),".
(3) In section 55(2) of the Principal Act--
(a) in paragraph (a), for "requirement"
substitute "decision";
(b) after paragraph (a) insert--
"(ab) under subsection (1)(ab) is that the
decision--
(i) was not made in accordance with
the law; or
(ii) is unreasonable having regard to
all the circumstances;".
(4) For section 55(3)(a) of the Principal Act
substitute--
"(a) in the case of an application under subsection
(1)(a), within 14 working days after the
information gathering notice is served on the
person; or
(ab) in the case of an application under subsection
(1)(ab), within 14 working days after the
compliance notice is served on the person; or
(ac) in the case of an application under subsection
(1)(b), within 14 working days after the
person is given the notice; or".
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(5) In section 55(4) of the Principal Act, for
"requirement" substitute "information gathering
notice".
(6) After section 55(4) of the Principal Act insert--
"(4A) If a person makes an application under
subsection (1)(ab), the compliance notice
continues in effect until the application is
determined.".
28 Proceedings for review by VCAT
(1) In section 56(a)(ii), (iii) and (iv) of the Principal
Act, for "requirement" (wherever occurring)
substitute "information gathering notice".
(2) After section 56(a) of the Principal Act insert--
"(ab) on an application under section 55(1)(ab)--
(i) affirm the decision of the Commission;
or
(ii) cancel the compliance notice; or
(iii) vary the compliance notice; and".
29 Heading to Division 4 of Part 7 substituted
For the heading to Division 4 of Part 7 of the
Principal Act substitute--
"Part 7C--General".
30 New Division heading inserted
Before section 60 of the Principal Act insert--
"Division 1--Personal liability and
contraventions by bodies corporate and
others".
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31 New sections 60A and 60B inserted and Division 2 of
Part 7C inserted
After section 60 of the Principal Act insert--
"60A Contraventions of this Act and relevant
legislation by bodies corporate
(1) If a body corporate contravenes a civil
penalty requirement or commits an offence
against any provision of this Act or relevant
legislation, each officer of the body
corporate is taken to have contravened the
same civil penalty requirement or provision
if the officer knowingly authorised or
permitted the contravention.
(2) A person may be proceeded against (and, in
the case of an offence, convicted) under a
provision in accordance with subsection (1)
whether or not the body corporate has been
proceeded against under that provision.
(3) Nothing in this section affects any liability
imposed on a body corporate for a
contravention of a civil penalty requirement
or a provision of this Act or relevant
legislation by the body corporate.
60B Conduct by officers, employees or agents
(1) If, in a proceeding under this Act or relevant
legislation in respect of conduct that is
engaged in by a body corporate and to which
this Act or the relevant legislation applies, it
is necessary to establish the state of mind of
the body corporate, it is sufficient to show--
(a) that an officer, employee or agent of the
body corporate engaged in that conduct
within the scope of the actual or
apparent authority of the officer,
employee or agent; and
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(b) that the officer, employee or agent had
that state of mind.
(2) The following conduct engaged in on behalf
of a body corporate is also taken, for the
purposes of this Act or relevant legislation,
to have been engaged in by the body
corporate--
(a) conduct by an officer, employee or
agent of the body corporate within the
scope of the actual or apparent
authority of the officer, employee or
agent; or
(b) conduct by any other person--
(i) at the direction of an officer,
employee or agent of the body
corporate, if the giving of the
direction is within the scope of the
actual or apparent authority of the
officer, employee or agent; or
(ii) with the consent or agreement
(whether express or implied) of an
officer, employee or agent of the
body corporate, if the giving of
the consent or agreement is within
the scope of the actual or apparent
authority of the officer, employee
or agent.
(3) If, in a proceeding under this Act or relevant
legislation in respect of conduct that is
engaged in by a person (the principal) other
than a body corporate and to which this Act
or the relevant legislation applies, it is
necessary to establish the state of mind of the
principal, it is sufficient to show--
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(a) that an employee or agent of the
principal engaged in that conduct
within the scope of the actual or
apparent authority of the employee or
agent; and
(b) that the employee or agent had that
state of mind.
(4) The following conduct engaged in on behalf
of a person (the principal) other than a body
corporate is also taken, for the purposes of
this Act or relevant legislation, to have been
engaged in by the principal--
(a) conduct by an employee or agent of the
principal within the scope of the actual
or apparent authority of the employee
or agent; or
(b) conduct by any other person--
(i) at the direction of an employee or
agent of the principal, if the giving
of the direction is within the scope
of the actual or apparent authority
of the employee or agent; or
(ii) with the consent or agreement
(whether express or implied) of
such an employee or agent of the
principal, if the giving of the
consent or agreement is within the
scope of the actual or apparent
authority of the employee or
agent.
(5) A person is not liable to be punished by
imprisonment for an offence if--
(a) the person is convicted of the offence;
and
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(b) subsection (3) or (4) applied in relation
to the conviction on the basis that the
person was the principal mentioned in
that subsection; and
(c) the person would not have been
convicted of the offence if that
subsection had not been enacted.
(6) A reference in this section to the state of
mind of a person includes a reference to the
knowledge, intention, opinion, belief or
purpose of the person and the person's
reasons for the intention, opinion, belief or
purpose.
Division 2--Disclosure of information,
information sharing and offences
60C Restriction on disclosure of confidential
information
(1) This section applies if--
(a) information or a document is given or
made available to the Commission--
(i) under section 36(1); or
(ii) under section 39K; or
(iii) under section 51 before its expiry
under section 47 on
31 December 2007; or
Note
Part 6 of the Essential Services
Commission Act 2001, as originally
enacted, included sections 47 and 51.
Section 47, as amended by section 26 of
the Energy Legislation (Amendment)
Act 2004, provided for the expiry of
Part 6 on 31 December 2007.
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(iv) under section 212E of the
Accident Towing Services
Act 2007; and
(b) at the time the information or document
is given, the person giving it states that
it is of a confidential or commercially-
sensitive nature.
(2) Before the Commission makes a decision
under subsection (3), the Commission
must--
(a) give the person giving the information
or document an opportunity to make a
submission to the Commission
specifying--
(i) why the information or
document is of a confidential or
commercially-sensitive nature;
and
(ii) the detriment that would be
caused by the disclosure of the
information or document; and
(b) consider any submission made by that
person.
(3) The Commission must not disclose the
information or the contents of the document
to any person unless--
(a) the Commission is of the opinion--
(i) that the disclosure of the
information or document would
not cause detriment to the person
supplying it; or
(ii) that although the disclosure of the
information or document would
cause detriment to the person
supplying it, the public benefit in
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disclosing it outweighs that
detriment; and
(b) the Commission is of the opinion, in
relation to any other person who is
aware of the information or the contents
of the document and who might be
detrimentally affected by the
disclosure--
(i) that the disclosure of the
information or document would
not cause detriment to that person;
or
(ii) that although the disclosure of the
information or document would
cause detriment to that person, the
public benefit in disclosing it
outweighs that detriment; and
(c) the Commission gives the person who
supplied the information or document a
written notice--
(i) stating that the Commission
wishes to disclose the information
or contents of the document,
specifying the nature of the
intended disclosure and setting out
detailed reasons why the
Commission wishes to make the
disclosure; and
(ii) stating that the Commission is of
the opinion required by paragraph
(a) and setting out detailed reasons
why it is of that opinion; and
(iii) setting out a copy of this section
and section 55 and, as the case
requires, section 45 of this Act or
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section 212F of the Accident
Towing Services Act 2007; and
(d) if the Commission is aware that the
person who supplied the information or
document in turn received the
information or document from another
person and is aware of that other
person's identity and address, the
Commission gives that other person a
written notice--
(i) containing the details required by
paragraph (c); and
(ii) stating that the Commission is
of the opinion required by
paragraph (b) in relation to that
other person and setting out
detailed reasons why it is of that
opinion; and
(e) no application is made to VCAT in
respect of any notice given under
paragraph (c) or (d) within the time
permitted by section 55(3).
Penalty: 120 penalty units.
(4) Subsection (3) does not prevent the
Commission--
(a) from disclosing information or the
contents of a document to--
(i) the chief executive officer
employed under section 23A(1);
or
(ii) an employee employed under
section 24(1); or
(iii) a member of staff referred to in
section 24(2); or
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(iv) a consultant engaged under
section 25; or
(v) a member of a Division,
committee or panel acting under a
delegation under section 26; or
(b) from using information or a document
for the purposes of an inquiry or
investigation; or
(c) from disclosing information or the
contents of a document produced in
compliance with the order of a court or
tribunal; or
(d) from disclosing information or the
contents of a document to a court or
tribunal in the course of a legal
proceeding; or
(e) from disclosing information or the
contents of a document to the
Minister in a report prepared in the
form required by section 45(2)
or 212F(2) of the Accident Towing
Services Act 2007; or
(f) from supplying the information or
document to VCAT for the purposes of
a proceeding before VCAT under this
Act in relation to the information or
document.
(5) If an application is made under section 55
and the application is withdrawn or the
proceeding on the application is dismissed
by VCAT, the Commission may disclose any
information, or the contents of any
document, that was the subject of the
application in the manner set out in the
notice given under subsection (3)(c).
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(6) If an application is made under section 55
and VCAT sets aside the decision and makes
a decision in accordance with section
56(b)(ii)(B), the Commission may disclose
anything that VCAT permits it to disclose in
the manner specified by VCAT.
(7) For the purposes of this section, the
disclosure of anything that is already in the
public domain at the time the Commission
wishes to disclose it cannot cause detriment
to any person referred to in subsection (3)(a)
or (3)(b).
60D Commission must not disclose exempt
freedom of information documents
(1) The Commission must not disclose to any
person any document that it has obtained
from any agency (as defined in the Freedom
of Information Act 1982) or Minister that is
an exempt document under the Freedom of
Information Act 1982 in the hands of the
agency or Minister.
(2) Subsection (1) does not prevent the
Commission from doing anything specified
in section 60C(4).
60E Information sharing arrangements
(1) The Commission may enter into, or approve
of, an arrangement (an information sharing
arrangement) with a relevant agency for
the purposes of sharing or exchanging
information held by the Commission and the
relevant agency.
(2) The information to which an information
sharing arrangement may relate is limited to
the following--
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(a) information obtained under section 37
and any other information concerning
investigations, law enforcement,
assessment of complaints, licensing or
disciplinary matters;
(b) any other information affecting the
interests of consumers of goods and
services in regulated industries;
(c) any other information of a prescribed
kind.
(3) Under an information sharing arrangement,
the Commission and the relevant agency are
authorised--
(a) to request and receive information held
by the other party to the arrangement;
and
(b) to disclose information to the other
party.
(4) The Commission may only do a thing
authorised under subsection (2)(a) or (b) to
the extent that the information is reasonably
necessary to assist in the exercise of
functions under this Act or relevant
legislation or the functions of the relevant
agency concerned.
(5) Without limiting subsection (3), the
Commission may also (whether as part of an
information sharing arrangement or
otherwise)--
(a) refer any matter (including any
complaint) with respect to fair trading,
or that affects the interests of
consumers, to a fair trading agency or
law enforcement agency; or
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(b) receive any matter of a type described
in paragraph (a) from a fair trading
agency or law enforcement agency; or
(c) conduct a joint investigation into any
such matter with a fair trading agency
or law enforcement agency.
(6) Any fair trading agency or law enforcement
agency referred to in subsection (5) is,
despite any other Act or law of the State,
authorised to refer a matter referred to in
subsection (5) to the Commission or to
conduct an investigation into the matter
jointly with the Commission.
(7) Despite subsection (3), the Commission must
not share information under this section--
(a) which must not be disclosed under
section 60C; or
(b) which is obtained--
(i) under section 36(1); or
(ii) under section 39K; or
(iii) under section 51 before its
expiry under section 47 on
31 December 2007; or
Note
Part 6 of the Essential Services
Commission Act 2001, as originally
enacted, included sections 47 and 51.
Section 47, as amended by section 26 of
the Energy Legislation (Amendment)
Act 2004, provided for the expiry of
Part 6 on 31 December 2007.
(iv) under section 23A of the
Electricity Industry Act 2000; or
(v) under section 33 of the Gas
Industry Act 2001; or
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(vi) under section 56 of the Port
Management Act 1995; or
(vii) under section 185E(5)(b) of the
Local Government Act 1989; or
(viii) under section 60 of the Victorian
Energy Efficiency Target
Act 2007; or
(ix) under section 85 of the Victorian
Renewable Energy Act 2006; or
(x) under section 212E of the
Accident Towing Services
Act 2007; or
(xi) under section 4G of the Water
Industry Act 1994.
(8) This section does not limit--
(a) the powers of the Commission under
Part 4 or 4B; or
(b) the operation of any other Act under
which a relevant agency is authorised
or required to disclose information to
another person or body; or
(c) the giving of information--
(i) to a court or tribunal in the course
of a legal proceeding; or
(ii) pursuant to an order of a court or
tribunal; or
(iii) to the extent reasonably required
to enable the investigation or
enforcement of a law of the State,
another State or a Territory, or the
Commonwealth; or
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(iv) with the written authority of the
person to whom the information
relates.
(9) In this section--
essential services regulator means an agency
of any of the following that has
functions or powers that correspond,
whether wholly or partly, to the
functions or powers of the Commission,
in relation to an industry that
corresponds to a regulated industry--
(a) the State;
(b) another State or a Territory;
(c) the Commonwealth;
(d) an overseas jurisdiction;
fair trading agency means an agency of any
of the following that exercises
functions under an enactment with
respect to fair trading--
(a) the State;
(b) another State or a Territory;
(c) the Commonwealth;
(d) an overseas jurisdiction;
law enforcement agency means--
(a) Victoria Police or the police force
or police service of another State
or a Territory or of an overseas
jurisdiction; or
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(b) the Australian Federal Police; or
(c) the Australian Criminal
Intelligence Commission; or
(d) any other authority or person
responsible for the investigation or
prosecution of offences against the
laws of--
(i) the State; or
(ii) another State or a Territory;
or
(iii) the Commonwealth; or
(iv) an overseas jurisdiction;
relevant agency means--
(a) a fair trading agency; or
(b) an essential services regulator; or
(c) a law enforcement agency; or
(d) a prescribed person or body.".
32 Disclosure of information an offence
After section 61(3)(a) of the Principal Act
insert--
"(ab) the person is authorised to do so under this
Act or any other Act or law; or".
33 New sections 61A and 61B inserted and heading to
Division 3 of Part 7C inserted
After section 61 of the Principal Act insert--
"61A Offence to give false or misleading
information or documents
(1) A person must not give to the Commission
or an inspector information that the person is
required to give to the Commission or the
inspector under this Act or relevant
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legislation that the person knows to be false
or misleading in any material particular.
Penalty: In the case of a natural person,
120 penalty units or 12 months
imprisonment;
In the case of a body corporate,
600 penalty units.
(2) A person must not produce a document to
the Commission or an inspector that the
person is required to give to the Commission
or the inspector under this Act or relevant
legislation if--
(a) the person knows the document is false
or misleading in a material particular;
and
(b) the person does not indicate the respect
in which the document is false or
misleading.
Penalty: In the case of a natural person,
120 penalty units or 12 months
imprisonment;
In the case of a body corporate,
600 penalty units.
61B Monetary benefits order--false and
misleading information offence to
Commission
(1) If a court finds a person guilty of an offence
against section 36(4), 37(2) or 61A(1) or (2),
the court may make an order under
subsection (3).
(2) The court may make an order under
subsection (3) on application of the
Commission or a person authorised by the
Commission.
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(3) The court may order the person to pay an
amount not exceeding the amount that the
court is satisfied represents the amount of
any monetary benefits acquired by the
person, or accrued or accruing to the person,
as a result of the commission of the offence.
(4) A person must pay an amount under
subsection (3) to the Commission for
payment into the Essential Services
Commission Enforcement Fund.
Notes
1 An amount that is ordered to be paid under this section
is a debt due to the Commission and the Commission
may recover the amount in the court--see
section 54ZS.
2 Section 62B provides for the determination of amounts
to be paid under monetary benefits orders.
Division 3--Miscellaneous".
34 Proceedings
In section 62(1) of the Principal Act--
(a) omit "or a provisional order or final order";
(b) in paragraphs (a) and (b), omit "or
provisional order or final order".
35 New sections 62A to 62C inserted
After section 62 of the Principal Act insert--
"62A Who can commence proceedings for
offences?
(1) A proceeding for an offence against this Act
or the regulations under it may only be
commenced by--
(a) the Commission; or
(b) a person authorised by the Commission
for the purposes of this section.
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(2) A proceeding for an offence against relevant
legislation or the regulations under it in
respect of which the Commission has powers
or functions may only be commenced by--
(a) the Commission; or
(b) a person authorised by the Commission
for the purposes of this section.
(3) In a proceeding for an offence against this
Act or the regulations under this Act, it must
be presumed, in the absence of evidence to
the contrary, that the person commencing the
proceeding was authorised to commence the
proceeding.
(4) In a proceeding for an offence against
relevant legislation or regulations under it in
respect of which the Commission has powers
or functions, it must be presumed, in the
absence of evidence to the contrary, that the
person commencing the proceeding was
authorised to commence the proceeding.
(5) This section does not apply to a proceeding
for an indictable offence.
(6) Subsection (2) does not apply to relevant
legislation or regulations under that relevant
legislation if express provision is made in
that relevant legislation specifying who may
commence a proceeding for an offence
against that relevant legislation or the
regulations under it.
62B Determining amount to be paid under
monetary benefits orders and certain civil
penalty orders
(1) When determining an amount that the person
must pay under a monetary benefits order or
a civil penalty order under section 54A(1)(b)
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or 54C(1)(b)(ii), the court may take into
account--
(a) the person's financial circumstances;
and
(b) any amount submitted to the court by
the Commission under subsection (2).
(2) The Commission, or a person authorised by
the Commission, may submit to the court the
amount the Commission considers to be a
reasonable estimate of the amount of
monetary benefits acquired by the person, or
accrued or accruing to the person, as a result
of the commission of the offence or
contravention of the civil penalty
requirement or enforceable undertaking in
relation to which the monetary benefits order
or civil penalty order is sought as determined
in accordance with--
(a) a prescribed guideline, method or
protocol; or
(b) any other method the Commission
considers appropriate.
(3) For the purposes of sections 54A(1)(b),
54C(1)(b)(ii), 54ZF and 61B(3), the court
may assume that an amount represents the
amount of any monetary benefits acquired by
a person, or accrued or accruing to the
person, as a result of the commission of the
offence or the contravention of the civil
penalty requirement or enforceable
undertaking if--
(a) the Commission submits that amount to
the court under subsection (2); and
(b) the Commission determined that
amount in accordance with a prescribed
guideline, method or protocol.
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(4) The amount of money that the court may
order a person to pay under section
54A(1)(b), 54C(1)(b)(ii), 54ZF or 61B(3) is
not limited by--
(a) any penalty that may be imposed under
this Act; or
(b) the jurisdictional limit for a civil
proceeding specified under
section 100(1) of the Magistrates'
Court Act 1989.
(5) Nothing in a civil penalty order, monetary
benefits order, this section or section
54A(1)(b), 54C(1)(b)(ii), 54ZF or 61B(3),
affects the operation of Part 8 of the
Confiscation Act 1997.
62C Court may grant relief from liability
(1) If in a proceeding specified in subsection (2),
in which a person, other than a body
corporate, may be liable for an offence or a
civil penalty, it appears to the court that the
person acted honestly and reasonably and,
having regard to all the circumstances of the
case, ought fairly to be excused, the court
may relieve the person either wholly or
partly from liability on such terms as the
court thinks fit.
(2) For the purposes of subsection (1) the
following proceedings are specified--
(a) a proceeding for the commission of an
offence against any provision of this
Act or relevant legislation in respect of
which the Commission has powers or
functions;
(b) a proceeding for the contravention of a
civil penalty requirement.".
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36 Section 64 substituted
For section 64 of the Principal Act substitute--
"64 Service of documents
(1) Subject to this section, a document required
or permitted under this Act to be served on,
or given to, a person, may be served or
given--
(a) if the person is a natural person--
(i) by delivering it to the person
personally; or
(ii) by leaving it at the address of the
person's usual or last known place
of residence or business with a
person apparently over 16 years of
age and apparently residing or
employed there; or
(iii) by sending it by post to the
person's usual or last known place
of residence or business; or
(iv) by any prescribed manner; or
(b) if the person is a body corporate--
(i) by leaving it at the address of the
person's usual or last known place
of business with a person
apparently over 16 years of age
and apparently employed there; or
(ii) by sending it by post to the
person's usual or last known place
of business; or
(iii) by any prescribed manner.
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(2) A document may be served on or given to
the Commission by--
(a) leaving it at or posting it to the
principal office of the Commission; or
(b) any prescribed manner.
(3) Nothing in this section affects the operation
of any provision of a law or of the rules of a
court authorising a document to be served on
or given to the Commission in any other
manner.".
37 Regulations
After section 65(1) of the Principal Act insert--
"(2) Without limiting subsection (1), the
regulations may--
(a) prescribe provisions of this Act or
Codes of Practice as civil penalty
requirements;
(b) prescribe amounts for the purposes of
section 54E(a);
(c) prescribe amounts of notice penalties
for the purposes of section 54U(a);
(d) prescribe any other matter that is
required for the operation of civil
penalty orders in Division 1 of Part 7;
(e) prescribe any other matter that is
required to be prescribed for the
operation of the penalty notice regime
in Division 2 of Part 7.".
38 Review
In section 66(2) of the Principal Act--
(a) in paragraph (b), for "objectives." substitute
"objectives; and";
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(b) after paragraph (b) insert--
"(c) the adequacy and effectiveness of the
processes for making, amending and
revoking--
(i) Codes of Practice under
section 47(1); and
(ii) any standards, guidelines,
directions or other subordinate
instruments in relation to
regulated industries made by the
Commission under relevant
legislation.".
Division 2--Transitional provisions
39 New sections 70 to 80 inserted
At the end of Part 8 of the Principal Act insert--
'70 Enforcement
This Act, as in force immediately before the
commencement of section 6 of the Essential
Services Commission (Compliance and
Enforcement Powers) Amendment
Act 2021, continues to apply in relation to
any contravention that occurs before that
commencement to which section 54A
applies, as it was in force before that
commencement.
71 Enforcement orders
This Act, as in force immediately before the
commencement of section 6 of the Essential
Services Commission (Compliance and
Enforcement Powers) Amendment
Act 2021, continues to apply in relation to
any enforcement order served under
section 53 before that commencement.
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72 Energy industry penalty notices
(1) This Act applies to any energy industry
penalty notice or wrongful disconnection
penalty notice as if it were a penalty notice
if--
(a) it was served on an energy licensee
before the commencement of section 6
of the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021; and
(b) before that commencement it has not
been paid or withdrawn or relevant
enforcement action has not been taken
in relation to the contravention to which
it relates.
(2) Despite subsection (1), if any matter
specified in an energy industry penalty
notice or wrongful disconnection penalty
notice that was served on a person before the
commencement of section 6 of the Essential
Services Commission (Compliance and
Enforcement Powers) Amendment
Act 2021 conflicts with the requirements in
this Act, the matter specified in the notice
prevails.
73 Information gathering
(1) Despite the amendments made to this Act
by section 5 of the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021, this Act, as in force immediately
before the commencement of that section,
continues to apply in relation to a
requirement or request under section 37
or 37A(1) or (2), as those sections were in
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force immediately before that
commencement, if--
(a) notice of the requirement or request
was given before that commencement;
and
(b) the person to whom the notice was
given has not complied with that
requirement or request before that
commencement.
(2) Despite the amendments made to this Act
by section 5 of the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021, this Act, as in force immediately
before that commencement, continues to
apply in relation to any information or
document provided in response to a
requirement or request under section 37
or section 37A(1) or (2), as those sections
were in force immediately before that
commencement, if--
(a) notice of the requirement or request
was given before that commencement;
and
(b) the information or document is
provided in response to that
requirement or request.
74 Information sharing
(1) Despite section 60E, the Commission and a
relevant agency (within the meaning of that
section) are not authorised to share,
exchange, request, receive or disclose
confidential information that was provided to
or otherwise obtained by the Commission
under this Act or relevant legislation--
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(a) before the commencement of section 31
of the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021; or
(b) after the commencement of section 31
of the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021, if the
confidential information was provided
or otherwise obtained in response to a
request or requirement made under this
Act or relevant legislation as in force
immediately before that
commencement.
(2) The Commission and a relevant agency
within the meaning of section 60E may
share, exchange, request, receive or disclose
information (other than confidential
information) that was provided to or
otherwise obtained by the Commission under
this Act or relevant legislation in accordance
with that section--
(a) before the commencement of section 31
of the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021; or
(b) after the commencement of section 31
of the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021, if the
information was provided or otherwise
obtained in response to a request or
requirement made under this Act or
relevant legislation as in force
immediately before that
commencement.
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(3) In this section--
confidential information means information
that, at the time the information or
document is given to the Commission,
the person giving it states that it is of a
confidential or commercially sensitive
nature.
75 Chief executive officer
A person who, immediately before the
commencement of section 16 of the
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021, was the chief
executive officer of the Commission is taken
on and after that day to be the chief
executive officer of the Commission
appointed--
(a) on the same terms and conditions on
which the person held office as chief
executive officer, unless those terms
and conditions are varied; and
(b) until the date on which the person's
term as the chief executive officer
would have otherwise expired, unless--
(i) the person resigns from office; or
(ii) the person is removed from office.
76 Codes of Practice
(1) On the day on which section 22 of the
amending Act comes into operation, the
following documents are taken to be a Code
of Practice made under section 47(1)--
(a) the document entitled "Code of
Conduct for Marketing Retail Energy"
published by the Commission in
October 2004, as amended from time to
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time and in effect immediately before
that day;
(b) the document entitled "Electricity
Customer Metering Code" published by
the Commission on 13 October 2014,
as amended from time to time and in
effect immediately before that day;
(c) the document entitled "Electricity
Customer Transfer Code" published by
the Commission on 13 October 2014,
as amended from time to time and in
effect immediately before that day;
(d) the document entitled "Electricity
Distribution Code" published by the
Commission on 1 January 2006, as
amended from time to time and in
effect immediately before that day;
(e) the document entitled "Electricity
System Code" published by the
Commission in October 2000, as
amended from time to time and in
effect immediately before that day;
(f) the document entitled "Energy Retail
Code" published by the Commission in
August 2004, as amended from time to
time and in effect immediately before
that day;
(g) the document entitled "Gas Distribution
System Code" published by the
Commission with effect on 1 July 1997,
as amended from time to time and in
effect immediately before that day;
(h) the document entitled "Public Lighting
Code" published by the Commission in
December 2015, as amended from time
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to time and in effect immediately
before that day.
(2) For the purposes of section 47(4B), a Code
of Practice referred to in subsection (1) is
taken to have been made on the day on
which section 22 of the amending Act comes
into operation.
(3) Despite section 50, a Code of Practice
referred to in subsection (1) is revoked on
31 December 2025, unless it is revoked
sooner.
(4) Unless the context otherwise requires, on and
after the day on which section 22 of the
amending Act comes into operation, any
reference in any document (however
described) to a document referred to in
subsection (1) is taken to be a reference to
the Code of Practice that the document is
taken to be under that subsection.
(5) In this section--
amending Act means the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021.
77 Transitional civil penalty requirements--
Energy Retail Code
(1) This section applies on and after the
commencement of section 22 of the
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021.
(2) Without limiting the definition of civil
penalty requirement in section 3, the
following provisions of the Energy Retail
Code are civil penalty requirements for the
purposes of this Act--
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(a) clauses 16(4), 57(1), 76(1), 80(3),
81(2), (5) and (6) and 83(1);
(b) clauses 24(1), 55, 56(1) and 86(1), (2)
and (3);
(c) clauses 30(2)(a), (b), (c) and (d), 31(1),
(2) and (3), 82(2) and (3), 89(1)(d),
91(1) and 94(2), (3), (4), (5), (7)
and (8);
(d) clauses 25(1)(e), 65(5) and 87(1)
and (5);
(e) clauses 3D(1), 65(2), 68(1) and (2)
and 87(2).
(3) Without limiting the definition of civil
penalty requirement in section 3, the
following requirements are civil penalty
requirements for the purposes of this Act--
(a) an energy licensee must comply with
clause 89(1)(b) of the Energy Retail
Code by providing information that a
residential customer is entitled to under
clause 80(1) of the Energy Retail Code;
(b) an energy licensee must comply with
clause 89(1)(b) of the Energy Retail
Code by contacting a residential
customer and providing the information
that the residential customer is entitled
to under clause 80(2) of the Energy
Retail Code;
(c) an energy licensee must comply with
clause 89(1)(c) of the Energy Retail
Code by providing the tailored
assistance that the customer is entitled
to under clause 79(2) of the Energy
Retail Code;
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(d) an energy licensee must comply with
clause 89(1)(c) of the Energy Retail
Code by providing the tailored
assistance that the customer is entitled
to under clause 79(3) of the Energy
Retail Code;
(e) if an energy licensee undertakes a
review of the market retail contract
under clause 94(4) of the Energy Retail
Code and, as a result of the review,
offers the residential customer an
alternative customer retail contract, that
contract must comply with clause 94(6)
of the Energy Retail Code by making
Centrepay available as a payment
option;
(f) if an energy licensee creates a record
under clause 3D(1)(a) of the Energy
Retail Code, the record must be in the
format and include the information
required by clause 3D(2) of the Energy
Retail Code.
(4) Words and expressions used in the Energy
Retail Code and in subsection (3) have the
same respective meanings in that subsection
as they have in the Energy Retail Code.
(5) If the court makes a contravention order
against a person in respect of a civil penalty
requirement set out in subsection (2) or (3),
the court may order the person to pay a civil
penalty under section 54(1) of an amount not
exceeding an amount equal to 1200 penalty
units.
(6) If the Commission serves a penalty notice
in respect of a civil penalty requirement
set out in subsection (2) or (3), despite
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section 54T(2), the notice penalty for the
contravention is--
(a) for a civil penalty requirement set out
in subsection (2)(a) or (3)(a), (b), (c)
or (d), an amount equal to 200 penalty
units; and
(b) for a civil penalty requirement set out
in subsection (2)(b), an amount equal to
56 penalty units; and
(c) for a civil penalty requirement set out
in subsection (2)(c) or (3)(e), an
amount equal to 84 penalty units; and
(d) for a civil penalty requirement set out
in subsection (2)(d), an amount equal to
42 penalty units; and
(e) for a civil penalty requirement set out
in subsection (2)(e) or (3)(f), an amount
equal to 28 penalty units.
(7) If the Energy Retail Code is revoked, the
civil penalty requirements set out in
subsections (2) and (3) cease to be civil
penalty requirements on the day on which
the Energy Retail Code is revoked.
(8) The Commission, or a person authorised
by the Commission, must not make an
application for a contravention order against
a person in relation to a civil penalty
requirement set out in subsection (2) or (3)
unless the person against whom the order is
sought is an energy licensee.
(9) The Commission must not serve a penalty
notice on a person in respect of a civil
penalty requirement set out in subsection (2)
or (3) unless the person is an energy licensee.
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(10) This section is repealed on 31 December
2025.
(11) In this section--
Energy Retail Code means the document
entitled "Energy Retail Code"
published by the Commission in
August 2004, as amended from time
to time, and taken to be a Code of
Practice under section 76(1)(f).
78 Transitional civil penalty requirements--
Electricity Distribution Code
(1) This section applies on and after the
commencement of section 22 of the
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021.
(2) Without limiting the definition of civil
penalty requirement in section 3, clauses
5.5.1, 6.2, 6.3.1, 6.3.2 and 9.1.12 of the
Electricity Distribution Code are civil
penalty requirements for the purposes of
this Act.
(3) If the court makes a contravention order
against a person in respect of a civil penalty
requirement set out in subsection (2), the
court may order the person to pay a civil
penalty under section 54(1) of an amount not
exceeding an amount equal to 1200 penalty
units.
(4) If the Commission serves a penalty notice in
respect of a civil penalty requirement set out
in subsection (2), despite section 54T(2), the
notice penalty for the contravention is an
amount equal to 56 penalty units.
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(5) If the Electricity Distribution Code is
revoked, the civil penalty requirements set
out in subsection (2) cease to be civil penalty
requirements on the day on which the
Electricity Distribution Code is revoked.
(6) The Commission, or a person authorised by
the Commission, must not make an
application for a contravention order against
a person in relation to a civil penalty
requirement set out in subsection (2) unless
the person against whom the order is sought
is an energy licensee.
(7) The Commission must not serve a penalty
notice on a person in relation to a civil
penalty requirement set out in subsection (2)
unless the person is an energy licensee.
(8) This section is repealed on 31 December
2025.
(9) In this section--
Electricity Distribution Code means the
document entitled "Electricity
Distribution Code" published by the
Commission on 1 January 2006, as
amended from time to time, and
taken to be a Code of Practice under
section 76(1)(d).
79 Transitional civil penalty requirements--
Gas Distribution System Code
(1) This section applies on and after the
commencement of section 22 of the
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021.
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(2) Without limiting the definition of civil
penalty requirement in section 3, clause
2.2(b) of the Gas Distribution System Code
is a civil penalty requirement for the
purposes of this Act.
(3) If the court makes a contravention order
against a person in respect of the civil
penalty requirement set out in subsection (2),
the court may order the person to pay a civil
penalty under section 54(1) of an amount not
exceeding an amount equal to 1200 penalty
units.
(4) If the Commission serves a penalty notice in
respect of the civil penalty requirement set
out in subsection (2), despite section 54T(2),
the notice penalty for the contravention is an
amount equal to 56 penalty units.
(5) If the Gas Distribution System Code is
revoked, the civil penalty requirement set out
in subsection (2) ceases to be civil penalty
requirement on the day on which the Gas
Distribution Code is revoked.
(6) The Commission, or a person authorised by
the Commission, must not make an
application for a contravention order against
a person in relation to the civil penalty
requirement set out in subsection (2) unless
the person against whom the order is sought
is an energy licensee.
(7) The Commission must not serve a penalty
notice on a person in relation to the civil
penalty requirement set out in subsection (2)
unless the person is an energy licensee.
(8) This section is repealed on 31 December
2025.
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(9) In this section--
Gas Distribution System Code means the
document entitled "Gas Distribution
System Code" published by the
Commission with effect on 1 July 1997,
as amended from time to time, and
taken to be a Code of Practice under
section 76(1)(g).
80 Regulations dealing with transitional
matters
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of the Essential
Services Commission (Compliance and
Enforcement Powers) Amendment
Act 2021, including any repeals and
amendments made by or as a result of the
enactment of that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on
or after a date not earlier than the day
on which the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to time, place and
circumstances;
(d) leave any matter or thing to be decided
by a specified person or class of person;
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(e) provide for the exemption of persons or
things or a class of persons or things
from any of the regulations made under
this section.
(3) To the extent to which any provision of
regulations under this section takes effect
from a date that is earlier than the date of its
making, the provision does not operate so
as--
(a) to affect, in a manner prejudicial to any
person (other than the State or an
authority of the State), the rights of that
person existing before the date of its
making; or
(b) to impose liabilities on any person
(other than the State or an authority of
the State) in respect of anything done or
omitted to be done before the date of its
making.
(4) Regulations under this section have effect
despite anything to the contrary--
(a) in this Act or any other Act (other than
the Essential Services Commission
(Compliance and Enforcement
Powers) Amendment Act 2021 or
the Charter of Human Rights and
Responsibilities Act 2006); or
(b) in any subordinate instrument.
(5) The following are not required for any
proposed statutory rule that is to be made
under this section--
(a) consultation under section 6 of the
Subordinate Legislation Act 1994;
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(b) the preparation of a regulatory impact
statement under section 7 of the
Subordinate Legislation Act 1994.
(6) This section is repealed on the second
anniversary of the day on which it comes
into operation.'.
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Part 5--Amendment of Electricity Industry Act 2000
Part 5--Amendment of Electricity Industry
Act 2000
40 Definitions
In section 3 of the Electricity Industry Act 2000
insert the following definition--
"industry code does not include a Code of
Practice;".
41 Regulation of tariffs for prescribed customers
Section 13(4A) of the Electricity Industry
Act 2000 is repealed.
42 Prohibition
(1) The penalty at the foot of section 16(1) of the
Electricity Industry Act 2000 is repealed.
(2) After section 16(1) of the Electricity Industry
Act 2000 insert--
"(1A) A person who contravenes subsection (1)
commits an offence against that subsection
and is liable to a penalty not exceeding
1000 penalty units and 100 penalty units for
each day after the day on which a notice of
contravention of that subsection is served on
the person by the Commission.
(1B) Subsection (1) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.".
(3) At the foot of section 16 of the Electricity
Industry Act 2000 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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43 Section 22 substituted
For section 22 of the Electricity Industry
Act 2000 substitute--
"22 Determination of fees and charges
(1) For the purposes of section 21(a), the
Minister, after consultation with the Minister
administering the Essential Services
Commission Act 2001, may determine, by
notice published in the Government Gazette,
the fees and charges specified in respect of a
licence.
(2) A determination of fees and charges under
this section may provide for any of the
following matters--
(a) specific fees and charges;
(b) maximum fees and charges;
(c) minimum fees and charges;
(d) scales of fees and charges according to
the value of the services provided for
the fees and charges;
(e) fees and charges that vary according to
different persons or classes of persons;
(f) the manner of payment of fees and
charges;
(g) the reduction, waiver or refund, in
whole or part, of the fees and charges;
(h) the time or times at which fees and
charges are to be paid.
(3) If under subsection (2)(g) provision is made
for a reduction, waiver or refund, in whole or
in part, of a fee or charge, the reduction,
waiver or refund may be expressed to
apply--
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(a) either generally or specifically--
(i) in respect of certain matters or
transactions or classes of matters
or transactions; or
(ii) in respect of certain documents or
classes of documents; or
(iii) when an event happens; or
(iv) in respect of certain persons or
classes of persons; or
(v) in respect of any combination of
matters, transactions, documents,
events or persons; and
(b) subject to specified conditions or at the
discretion of any specified person or
body.
(4) A determination under this section takes
effect on the day that the notice is published
in the Government Gazette under
subsection (1) or on a later day specified in
that notice.
(5) A determination under this section ceases to
have effect on whichever of the following
days occurs first--
(a) the day the determination is revoked;
(b) the day (if any) that the notice
published in the Government Gazette
under subsection (1) specifies as the
day on which the determination ceases
to have effect;
(c) the day that is 10 years after the day on
which the determination took effect.".
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44 Condition to give information to Commission
In section 23A(2) of the Electricity Industry
Act 2000, for "Subdivision 3 of Division 2 of
Part 7 of the Essential Services Commission
Act 2001" substitute "Part 6A".
45 Condition relating to advertising of enforcement
action taken against licensee
In section 23B(3) of the Electricity Industry
Act 2000, in the definition of enforcement
action, for "section 3 of the Essential Services
Commission Act 2001" substitute
"section 109A(4)".
46 Offer to domestic or small business customers
(licensee standing offers)
In section 35(2) of the Electricity Industry
Act 2000, after "section 36(1)" insert "or a
provision of a Code of Practice".
47 Terms and conditions of contracts for sale of
electricity to certain customers
(1) In section 36(1) of the Electricity Industry
Act 2000--
(a) in paragraph (b), for "licensee." substitute
"licensee; and";
(b) after paragraph (b) insert--
"(c) a provision of a Code of Practice.".
(2) After section 36(1A) of the Electricity Industry
Act 2000 insert--
"(1AB) The Commission must not decide a term or
condition under subsection (1)(a) or (b) that
is inconsistent with--
(a) a deemed Ministerial licence condition
to which the licence held by the
licensee is subject; or
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(b) a provision of a Code of Practice.".
(3) For section 36(1B) of the Electricity Industry
Act 2000 substitute--
"(1B) A term or condition referred to in
subsection (1)(a) or (b) is of no effect to the
extent that it is inconsistent with--
(a) a deemed Ministerial licence condition
to which the licence held by the
licensee is subject; or
(b) a provision of a Code of Practice.".
48 Deemed distribution contracts
(1) In section 40A(3) of the Electricity Industry
Act 2000, for "Electricity Distribution Code"
substitute "applicable Code of Practice".
(2) In section 40A(3AA) of the Electricity Industry
Act 2000--
(a) for "Electricity Distribution Code"
substitute "applicable Code of Practice";
(b) for "the Code" substitute "that Code of
Practice".
(3) In section 40A(11) of the Electricity Industry
Act 2000--
(a) insert the following definition--
'applicable Code of Practice means--
(a) the document entitled "Electricity
Distribution Code" that is taken
under section 76(1) of the
Essential Services Commission
Act 2001 to be a Code of Practice
made under section 47(1) of that
Act; or
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(b) if the Code of Practice referred to
in paragraph (a) is revoked,
another Code of Practice that
applies for the purposes of
subsections (3) and (3AA);';
(b) the definition of Electricity Distribution
Code is repealed.
49 Regulation of exit fees
Section 40D(7) of the Electricity Industry
Act 2000 is repealed.
50 Regulation of pre-payment meters
Section 40E(4) of the Electricity Industry
Act 2000 is repealed.
51 Powers as to works etc.
(1) For section 93(5)(d) of the Electricity Industry
Act 2000 substitute--
"(d) subject to any provision of a Code of
Practice about the entry on land by a person
referred to in paragraph (a) or (b).".
(2) For section 93(7) and (8) of the Electricity
Industry Act 2000 substitute--
"(7) A provision of a Code of Practice about the
entry on land by a person referred to in
subsection (5)(a) or (b) has no effect to the
extent that it--
(a) confers, or purports to confer, any right
or power which is inconsistent with the
Road Management Act 2004; or
(b) imposes, or purports to impose, any
obligation or duty which is inconsistent
with the Road Management
Act 2004.".
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52 New Part 6A inserted
After Part 6 of the Electricity Industry Act 2000
insert--
'Part 6A--Compliance and
enforcement reporting
109A Compliance and enforcement report--
retailers
(1) The Commission must, as soon as
practicable after 30 June (but on or before
30 November) in each year publish on its
Internet site a report (a compliance and
enforcement report) on the matters referred
to in subsection (2) in respect of the period
of 12 months ending with 30 June in that
year.
(2) A compliance and enforcement report must
include the following (in relation to the
period to which the report relates)--
(a) a report on all enforcement action taken
by the Commission in respect of each
retailer;
(b) a report on all injunctions granted under
Division 5 of Part 7 of the Essential
Services Commission Act 2001
(other than an injunction granted under
section 54ZJ of that Act);
(c) a report on the extent to which each
retailer has complied, or failed to
comply, with its obligations under its
licence conditions and the provisions of
any Code of Practice;
(d) a report on the performance of each
retailer measured against the
performance indicators;
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(e) any other matters the Commission
considers appropriate.
(3) The Commission, after each quarter, must
update the report in respect of that quarter,
and must do so before the end of the next
quarter.
(4) In this section--
enforcement action means any of the
following--
(a) the service of a compliance notice
within the meaning of section 3 of
the Essential Services
Commission Act 2001;
(b) the making of a contravention
order within the meaning of
section 3 of the Essential
Services Commission Act 2001;
(c) the acceptance of an enforceable
undertaking within the meaning of
section 3 of the Essential
Services Commission Act 2001;
(d) the making of an order under
section 54ZF of the Essential
Services Commission Act 2001;
(e) the payment of a penalty notice
within the meaning of section 3 of
the Essential Services
Commission Act 2001;
(f) the variation of a licence condition
by the Commission under
section 29A;
(g) any other prescribed action;
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performance indicators means the indicators
for the performance of a retailer
determined by the Commission under
section 109B;
quarter means the period of 3 months ending
on 30 September, 31 December,
31 March or 30 June in any year.
109B Performance indicators for compliance
and enforcement reports
(1) For the purposes of a compliance and
enforcement report under section 109A, the
Commission must determine--
(a) indicators for the performance of a
retailer in relation to--
(i) disconnections and reconnections
of the supply of electricity to the
premises of customers; and
(ii) the extent to which the retailer has
complied with the deemed licence
condition in section 40B; and
(iii) the number of specified penalty
notices (if any) paid by the retailer
under Division 2 of Part 7 of the
Essential Services Commission
Act 2001; and
(b) any other indicators for the
performance of a retailer the
Commission determines.
(2) In this section--
Energy Retail Code means--
(a) the document entitled "Energy
Retail Code" that is taken under
section 76(1) of the Essential
Services Commission Act 2001
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to be a Code of Practice made
under section 47(1) of that Act; or
(b) if the Code of Practice referred to
in paragraph (a) is revoked,
another Code of Practice that
contains requirements relating to
disconnecting a customer's supply
of electricity;
specified penalty notice means a penalty
noticed served by the Commission on a
retailer because the Commission had
reason to believe--
(a) the supply of electricity to the
premises of a customer had been
disconnected; and
(b) the retailer had arranged for the
supply of electricity to be
disconnected from the customer's
premises and had not complied
with a requirement of the Energy
Retail Code relating to
disconnecting a customer's supply
of electricity; and
(c) that conduct constituted a
contravention of a condition of the
retailer's licence that requires
compliance with the Energy Retail
Code.
109C Reporting of systemic issues referred to
Commission
(1) A person administering a customer dispute
resolution scheme may refer a matter in
relation to a licensee to the Commission if
the person believes that there is a problem
with, or change in, the licensee's policy,
practice or conduct that adversely affects, or
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has the potential to adversely affect, a
number of customers (a systemic issue).
(2) Without limiting subsection (1), a systemic
issue includes any of the following--
(a) a change to the licensee's billing,
metering, supply or other systems;
(b) an absence of a policy, procedure or
guideline in relation to a matter;
(c) inadequate policies, procedures or
guidelines;
(d) a failure to comply with applicable
legislation (including any regulations),
licence conditions or Codes of Practice;
(e) the conduct of the licensee's employee,
agent, officer or contractor.
(3) If a person administering a customer dispute
resolution scheme refers a systemic issue to
the Commission, the Commission must--
(a) as soon as practicable after receiving
the referral, provide a copy of the
referral to the Minister; and
(b) report to the Minister--
(i) the action (if any) it proposes to
take to address the systemic issue;
and
(ii) the time within which it intends to
take that action; and
(c) as soon as practicable after the
period referred to in paragraph (b)(ii)
ends, report to the Minister the
outcome of the action referred to in
paragraph (b)(i).
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(4) The Minister may direct the Commission to
give a copy of a report given to the Minister
under subsection (3)(c) to the person who
made the referral under subsection (1).
(5) A person who refers a systemic issue to the
Commission must also provide any
information about the systemic issue that is
available to the person to the Commission.
(6) In this section--
applicable legislation means--
(a) the Essential Services
Commission Act 2001; or
(b) this Act;
customer dispute resolution scheme means
a customer dispute resolution scheme
approved by the Commission referred
to in section 28.'.
53 Regulations
For section 119(1) of the Electricity Industry
Act 2000 substitute--
"(1) The Governor in Council may make
regulations for or with respect to--
(a) prescribing provisions of this Act as
civil penalty requirements for the
purposes of the Essential Services
Commission Act 2001;
(b) prescribing determinations made under
this Act as civil penalty requirements
for the purposes of the Essential
Services Commission Act 2001;
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(c) prescribing amounts for the purposes of
section 54E(b), (c), (d), (g) or (h) of the
Essential Services Commission
Act 2001;
(d) prescribing amounts of notice penalties
for the purposes of section 54U(b), (c),
(d), (g) or (h) of the Essential Services
Commission Act 2001;
(e) prescribing any other matter that is
required for the operation of civil
penalty orders in Division 1 of Part 7 of
the Essential Services Commission
Act 2001;
(f) prescribing any other matter that is
required to be prescribed for the
operation of the penalty notice regime
in Division 2 of Part 7 of the Essential
Services Commission Act 2001;
(g) any other matter required or permitted
by this Act to be prescribed or
necessary or required to be prescribed
to give effect to this Act.
(1A) Regulations made under this Act may--
(a) be of general or limited application;
(b) differ according to time, place or
circumstance;
(c) confer a discretionary authority or
impose a duty on a specified person or
a specified class of person.".
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54 New section 122 inserted
After section 121 of the Electricity Industry
Act 2000 insert--
"122 Savings and transitional provisions--
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021
(1) Despite the substitution of section 22 by
section 43 of the amending Act, a
determination made under section 22 before
the commencement of section 43 continues
to have effect until the earlier of--
(a) the day on which a new determination
takes effect under section 22(5); or
(b) the first anniversary of the day on
which section 43 of the amending Act
comes into operation.
(2) In this section--
amending Act means the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021.".
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Part 6--Amendment of Gas Industry
Act 2001
55 Definitions
In section 3 of the Gas Industry Act 2001 insert
the following definition--
"industry code does not include a Code of
Practice;".
56 Wimmera and Colac Tariff Order
Section 20(8A) of the Gas Industry Act 2001 is
repealed.
57 Regulation of tariffs for prescribed customers
Section 21(4A) of the Gas Industry Act 2001 is
repealed.
58 Offence to distribute or retail gas without a licence
(1) In section 22 of the Gas Industry Act 2001, the
penalties at the foot of subsections (1) and (2) are
repealed.
(2) After section 22(2) of the Gas Industry Act 2001
insert--
"(3) A person who contravenes subsection (1)
or (2) commits an offence against that
subsection and is liable to a penalty not
exceeding 1200 penalty units and
120 penalty units for each day after the
day on which a notice of contravention of
that subsection is served on the person by
the Commission.
(4) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
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Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
59 Section 30 substituted
For section 30 of the Gas Industry Act 2001
substitute--
"30 Determination of fees and charges
(1) For the purposes of section 29(a), the
Minister, after consultation with the Minister
administering the Essential Services
Commission Act 2001, by notice published
in the Government Gazette, may determine
the fees and charges specified in respect of a
licence.
(2) A determination of fees and charges under
this section may provide for any of the
following matters--
(a) specific fees and charges;
(b) maximum fees and charges;
(c) minimum fees and charges;
(d) scales of fees and charges according to
the value of the services provided for
the fees and charges;
(e) fees and charges that vary according to
different persons or classes of persons;
(f) the manner of payment of fees and
charges;
(g) the reduction, waiver or refund, in
whole or part, of the fees and charges;
(h) the time or times at which fees and
charges are to be paid.
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(3) If under subsection (2)(g) provision is made
for a reduction, waiver or refund, in whole or
in part, of a fee or charge, the reduction,
waiver or refund may be expressed to
apply--
(a) either generally or specifically--
(i) in respect of certain matters or
transactions or classes of matters
or transactions; or
(ii) in respect of certain documents or
classes of documents; or
(iii) when an event happens; or
(iv) in respect of certain persons or
classes of persons; or
(v) in respect of any combination of
matters, transactions, documents,
events or persons; and
(b) subject to specified conditions or at the
discretion of any specified person or
body.
(4) A determination under this section takes
effect on the day that the notice is published
in the Government Gazette under subsection
(1) or on a later day specified in that notice.
(5) A determination under this section ceases to
have effect on whichever of the following
days occurs first--
(a) the day the determination is revoked;
(b) the day (if any) that the notice
published in the Government Gazette
under subsection (1) specifies as the
day on which the determination ceases
to have effect;
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(c) the day that is 10 years after the day on
which the determination took effect.".
60 Condition to give information to Commission
In section 33(2) of the Gas Industry Act 2001,
for "Subdivision 3 of Division 2 of Part 7 of the
Essential Services Commission Act 2001"
substitute "Part 6A".
61 Condition relating to advertising of enforcement
action taken against licensee
In section 34(3) of the Gas Industry Act 2001,
in the definition of enforcement action, for
"section 3 of the Essential Services Commission
Act 2001" substitute "section 223(4)".
62 Offer to domestic or small business customers
(licensee standing officers)
In section 42(2) of the Gas Industry Act 2001,
after "section 43(1)" insert "or a provision of a
Code of Practice".
63 Terms and conditions of contracts for sale of gas to
certain customers
(1) In section 43(1) of the Gas Industry Act 2001--
(a) in paragraph (b), for "licensee." substitute
"licensee; and";
(b) after paragraph (b) insert--
"(c) a provision of a Code of Practice.".
(2) After section 43(1A) of the Gas Industry
Act 2001 insert--
"(1AB) The Commission must not decide a term or
condition under subsection (1)(a) or (b) that
is inconsistent with--
(a) a deemed Ministerial licence condition
to which the licence held by the
licensee is subject; or
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(b) a provision of a Code of Practice.".
(3) For section 43(1B) of the Gas Industry Act 2001
substitute--
"(1B) A term or condition referred to in subsection
(1)(a) or (b) is of no effect to the extent that
it is inconsistent with--
(a) a deemed Ministerial licence condition
to which the licence held by the
licensee is subject; or
(b) a provision of a Code of Practice.".
64 Deemed distribution contracts
(1) In section 48(3) of the Gas Industry Act 2001,
for "Gas Distribution System Code" substitute
"applicable Code of Practice".
(2) In section 48(3A) of the Gas Industry
Act 2001--
(a) for "Gas Distribution System Code"
substitute "applicable Code of Practice";
(b) for "the Code" substitute "that Code of
Practice".
(3) In section 48(12) of the Gas Industry Act 2001--
(a) insert the following definition--
'applicable Code of Practice means--
(a) the document entitled "Gas
Distribution System Code" that is
taken under section 76(1) of the
Essential Services Commission
Act 2001, to be a Code of Practice
made under section 47(1) of that
Act; or
(b) if the Code of Practice referred to
in paragraph (a) is revoked,
another Code of Practice that
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applies for the purposes of
subsections (3) and (3A);';
(b) the definition of Gas Distribution System
Code is repealed.
65 Regulation of exit fees
Section 48C(7) of the Gas Industry Act 2001 is
repealed.
66 Regulation of pre-payment meters
Section 48D(4) of the Gas Industry Act 2001 is
repealed.
67 Making of easements in subdivisions
In section 146(2) of the Gas Industry Act 2001,
for "land access code applying in relation to the
exercise of those rights issued by the Commission
under the Essential Services Commission
Act 2001" substitute "provision of a Code of
Practice about the entry on land by a gas
company".
68 Powers as to works etc.
In section 148(8) of the Gas Industry Act 2001,
for "land access code applying in relation to the
exercise of powers under this section issued by the
Commission under the Essential Services
Commission Act 2001" substitute "provision of a
Code of Practice about the entry on land by a gas
distribution company or gas transmission
company.".
69 Power to open and break up roads etc.
(1) In section 149(7) of the Gas Industry Act 2001,
for "land access code applying in relation to the
exercise of powers under this section issued by
the Commission under the Essential Services
Commission Act 2001" substitute "provision of a
Code of Practice about the entry on land by a gas
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distribution company or gas transmission
company.".
(2) For section 149(8) and (9) of the Gas Industry
Act 2001 substitute--
"(8) A provision of a Code of Practice about the
entry on land by a gas distribution company
or a gas transmission company has no effect
to the extent that it--
(a) confers, or purports to confer, any right
or power which is inconsistent with the
Road Management Act 2004; or
(b) imposes, or purports to impose, any
obligation or duty which is inconsistent
with the Road Management
Act 2004.".
70 New Part 9A inserted
After Part 9 of the Gas Industry Act 2001
insert--
'Part 9A--Compliance and
enforcement reporting
223 Compliance and enforcement report--gas
retailers
(1) The Commission must, as soon as
practicable after 30 June (but on or before
30 November) in each year publish on its
Internet site a report (a compliance and
enforcement report) on the matters referred
to in subsection (2) in respect of the period
of 12 months ending with 30 June in that
year.
(2) A compliance and enforcement report must
include the following (in relation to the
period to which the report relates)--
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(a) a report on all enforcement action taken
by the Commission in respect of each
gas retailer;
(b) a report on all injunctions granted under
Division 5 of Part 7 of the Essential
Services Commission Act 2001
(other than an injunction granted under
section 54ZJ of that Act);
(c) a report on the extent to which each
gas retailer has complied, or failed to
comply, with its obligations under its
licence conditions and the provisions of
any Code of Practice;
(d) a report on the performance of each gas
retailer measured against the
performance indicators;
(e) any other matters the Commission
considers appropriate.
(3) The Commission, after each quarter, must
update the report in respect of that quarter,
and must do so before the end of the next
quarter.
(4) In this section--
enforcement action means any of the
following--
(a) the service of a compliance notice
within the meaning of section 3
of the Essential Services
Commission Act 2001;
(b) the making of a contravention
order within the meaning of
section 3 of the Essential
Services Commission Act 2001;
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(c) the acceptance of an enforceable
undertaking within the meaning
of section 3 of the Essential
Services Commission Act 2001;
(d) the making of an order under
section 54ZF of the Essential
Services Commission Act 2001;
(e) the payment of a penalty notice
within the meaning of section 3
of the Essential Services
Commission Act 2001;
(f) the variation of a licence condition
by the Commission under
section 38A;
(g) any other prescribed action;
performance indicators means the indicators
for the performance of a gas retailer
determined by the Commission under
section 224;
quarter means the period of 3 months ending
on 30 September, 31 December,
31 March or 30 June in any year.
224 Performance indicators for compliance
and enforcement reports
(1) For the purposes of a compliance and
enforcement report under section 223, the
Commission must determine--
(a) indicators for the performance of a gas
retailer in relation to--
(i) disconnections and reconnections
of the supply of gas to the
premises of customers; and
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(ii) the extent to which the gas retailer
has complied with the deemed
licence condition in section 48A;
and
(iii) the number of specified penalty
notices (if any) paid by the gas
retailer under Division 2 of Part 7
of the Essential Services
Commission Act 2001; and
(b) any other indicators for the
performance of a gas retailer the
Commission determines.
(2) In this section--
Energy Retail Code means--
(a) the document entitled "Energy
Retail Code" that is taken under
section 76(1) of the Essential
Services Commission Act 2001
to be a Code of Practice made
under section 47(1) of that Act; or
(b) if the Code of Practice referred to
in paragraph (a) is revoked,
another Code of Practice that
contains requirements relating to
disconnecting a customer's supply
of gas;
specified penalty notice means a penalty
noticed served by the Commission on a
gas retailer because the Commission
had reason to believe--
(a) the supply of gas to the premises
of a customer had been
disconnected; and
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(b) the gas retailer had arranged
for the supply of gas to be
disconnected from the customer's
premises and had not complied
with a requirement of the
Energy Retail Code relating to
disconnecting a customer's supply
of gas; and
(c) that conduct constituted a
contravention of a condition of the
gas retailer's licence that requires
compliance with the Energy Retail
Code.
225 Reporting of systemic issues referred to
Commission
(1) A person administering a customer dispute
resolution scheme may refer a matter in
relation to a licensee to the Commission if
the person believes that there is a problem
with, or change in, the licensee's policy,
practice or conduct that adversely affects, or
has the potential to adversely affect, a
number of customers (a systemic issue).
(2) Without limiting subsection (1), a systemic
issue includes any of the following--
(a) a change to the licensee's billing,
metering, supply or other systems;
(b) an absence of a policy, procedure or
guideline in relation to a matter;
(c) inadequate policies, procedures or
guidelines;
(d) a failure to comply with applicable
legislation (including any regulations),
licence conditions or Codes of Practice;
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(e) the conduct of the licensee's employee,
agent, officer or contractor.
(3) If a person administering a customer dispute
resolution scheme refers a systemic issue to
the Commission, the Commission must--
(a) as soon as practicable after receiving
the referral, provide a copy of the
referral to the Minister; and
(b) report to the Minister--
(i) the action (if any) it proposes to
take to address the systemic issue;
and
(ii) the time within which it intends to
take that action; and
(c) as soon as practicable after the
period referred to in paragraph (b)(ii)
ends, report to the Minister the
outcome of the action referred to in
paragraph (b)(i).
(4) The Minister may direct the Commission to
give a copy of a report given to the Minister
under subsection (3)(c) to the person who
made the referral under subsection (1).
(5) A person who refers a systemic issue to the
Commission must also provide any
information about the systemic issue that is
available to the person to the Commission.
(6) In this section--
applicable legislation means--
(a) the Essential Services
Commission Act 2001; or
(b) this Act;
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customer dispute resolution scheme means
a customer dispute resolution scheme
approved by the Commission referred
to in section 36.'.
71 Regulations
(1) After section 236(1)(b) of the Gas Industry
Act 2001 insert--
"(c) prescribing provisions of this Act as civil
penalty requirements for the purposes of the
Essential Services Commission Act 2001;
(ca) prescribing amounts for the purposes of
section 54E(b), (c), (d), (g) or (i) of the
Essential Services Commission Act 2001;
(cb) prescribing amounts of notice penalties for
the purposes of section 54U(b), (c), (d), (g)
or (i) of the Essential Services Commission
Act 2001;
(cc) prescribing any other matter that is required
for the operation of civil penalty orders in
Division 1 of Part 7 of the Essential
Services Commission Act 2001;
(cd) prescribing any other matter that is required
to be prescribed for the operation of the
penalty notice regime in Division 2 of Part 7
of the Essential Services Commission
Act 2001;".
(2) For section 236(4)(a) of the Gas Industry
Act 2001 substitute--
"(a) so as to be of general or limited application;
(ab) so as to differ according to time, place or
circumstance;".
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(3) For section 236(4)(d) of the Gas Industry
Act 2001 substitute--
"(d) so as to confer a discretionary authority or
impose a duty on a specified person or a
specified class of person;".
72 New Part 12 inserted
After Part 11 of the Gas Industry Act 2001
insert--
"Part 12--Savings and transitional
provisions
244 Savings and transitional provisions--
Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021
(1) Despite the substitution of section 30 by
section 59 of the amending Act, a
determination made under section 30 before
the commencement of section 59 continues
to have effect until the earlier of--
(a) the day on which a new determination
takes effect under section 30(5); or
(b) the first anniversary of the day on
which section 59 of the amending Act
comes into operation.
(2) In this section--
amending Act means the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021.".
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Part 7--Amendment of Victorian Energy Efficiency Target Act 2007
Part 7--Amendment of Victorian Energy
Efficiency Target Act 2007
73 Definitions
In section 3(1) of the Victorian Energy
Efficiency Target Act 2007 insert the following
definition--
"Essential Services Commission Enforcement
Fund means the fund established by
section 54ZP of the Essential Services
Commission Act 2001;".
74 Civil penalty for shortfall
In section 28(1) of the Victorian Energy
Efficiency Target Act 2007, for "Consolidated
Fund" substitute "Essential Services Commission
Enforcement Fund".
75 Application for declaration and order for payment
of shortfall penalty
In section 37(2)(b) of the Victorian Energy
Efficiency Target Act 2007, for "Consolidated
Fund" substitute "Essential Services Commission
Enforcement Fund".
76 Fees
(1) After section 73(8) of the Victorian Energy
Efficiency Target Act 2007 insert--
"(9) Fees under this section cease to have effect
on whichever of the following days occurs
first--
(a) the day the fees are revoked;
(b) the day (if any) that the notice
published in the Government Gazette
under subsection (8) specifies as the
day on which the fees cease to have
effect;
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(c) the day that is 10 years after the day on
which the fees took effect.".
(2) At the foot of section 73 of the Victorian Energy
Efficiency Target Act 2007 insert--
"Note
Fees under this section are paid into the Essential Services
Commission Operating Fund--see section 54ZU of the
Essential Services Commission Act 2001.".
77 New Division 10 inserted in Part 8
After Division 9 of Part 8 of the Victorian
Energy Efficiency Target Act 2007 insert--
"Division 10--Savings and transitionals
77 Savings provision--Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021
Despite section 73(9)(c), fees fixed under
section 73(1) before the commencement of
section 76 of the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021 continue in effect until the earlier
of the following days--
(a) the day on which the fees are revoked;
(b) the second anniversary of the day on
which the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021 received the Royal Assent.".
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Part 8--Amendment of Victorian Renewable Energy Act 2006
Part 8--Amendment of Victorian Renewable
Energy Act 2006
78 Definitions
In section 3(1) of the Victorian Renewable
Energy Act 2006 insert the following
definition--
"Essential Services Commission Enforcement
Fund means the fund established by
section 54ZP of the Essential Services
Commission Act 2001;".
79 Civil penalty for shortfall
In section 62(1) of the Victorian Renewable
Energy Act 2006, for "Consolidated Fund"
substitute "Essential Services Commission
Enforcement Fund".
80 Application for declaration and order for payment
of shortfall penalty
In section 71(2)(b) of the Victorian Renewable
Energy Act 2006, for "Consolidated Fund"
substitute "Essential Services Commission
Enforcement Fund".
81 Fees
At the foot of section 112 of the Victorian
Renewable Energy Act 2006 insert--
"Note
Fees under this section are paid into the Essential Services
Commission Operating Fund--see section 54ZU of the
Essential Services Commission Act 2001.".
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Part 9--Amendment of Water Industry Act 1994
Part 9--Amendment of Water Industry
Act 1994
82 Parts 1A and 1B to prevail
In section 4AA of the Water Industry Act 1994,
for "If" substitute "Despite section 5(1) of the
Essential Services Commission Act 2001, if".
83 Definitions
In section 4A(1) of the Water Industry
Act 1994--
(a) insert the following definition--
"Water Industry Standard means a Water
Industry Standard under section 4F.";
(b) the definition of Code is repealed;
(c) in the definition of Water Industry
Regulatory Order, for "section 4D."
substitute "section 4D;".
84 Water Industry Regulatory Order
In section 4D(4)(a) of the Water Industry
Act 1994, for "Codes" substitute "Water Industry
Standards".
85 Section 4F amended
(1) For the heading to section 4F of the Water
Industry Act 1994 substitute--
"Water Industry Standards".
(2) In section 4F(1) of the Water Industry Act 1994,
for "Codes" substitute "Water Industry
Standards".
(3) In section 4F(2) of the Water Industry Act 1994,
for "Code" (where twice occurring) substitute
"Water Industry Standard".
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(4) In section 4F(3), (5) and (6) of the Water
Industry Act 1994, for "Code" substitute
"Water Industry Standard".
86 Costs of Commission under this Part
(1) In section 4H(1) of the Water Industry
Act 1994--
(a) omit "administering the Essential Services
Commission Act 2001";
(b) in paragraph (a), for "this Act" substitute
"the Essential Services Commission
Act 2001";
(c) after "determine" insert ", by notice
published in the Government Gazette,".
(2) In section 4H(2) of the Water Industry Act 1994,
for "administering the Essential Services
Commission Act 2001 in consultation with the
Minister administering this Act" substitute
"in consultation with the Minister administering
the Essential Services Commission Act 2001".
(3) After section 4H(2) of the Water Industry
Act 1994 insert--
"(3) A determination under this section takes
effect on the day that the notice is published
in the Government Gazette under
subsection (1) or on a later day specified in
that notice.
(4) A determination under this section ceases to
have effect on whichever of the following
days occurs first--
(a) the day the determination is revoked;
(b) the day (if any) that the notice
published in the Government Gazette
under subsection (1) specifies as the
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day on which the determination ceases
to have effect;
(c) the day that is 10 years after the day on
which the determination took effect.".
87 Statement of Obligations
In section 4I(7) of the Water Industry Act 1994,
for "Code" substitute "Water Industry Standard".
88 New section 187A inserted
After section 187 of the Water Industry
Act 1994 insert--
"187A Savings provisions--Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021
(1) Despite the amendment of section 4H by
section 86 of the amending Act, a
determination made under section 4H before
the commencement of section 86 continues
to have effect until the earlier of--
(a) the day on which a new determination
takes effect under section 4H; or
(b) the first anniversary of the day on
which section 86 of the amending Act
comes into operation.
(2) On the day on which section 85 of the
amending Act comes into operation, a Code
made under section 4F, as it was in force
immediately before that day, is taken to be a
Water Industry Standard made under that
section.
(3) Unless the context otherwise requires, on and
after the day on which section 85 of the
amending Act comes into operation, any
reference in any document (however
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described) to a Code made under section 4F,
as it was in force immediately before that
day, is taken to be a reference to the Water
Industry Standard that the Code is taken to
be under subsection (2).
(4) In this section--
amending Act means the Essential Services
Commission (Compliance and
Enforcement Powers) Amendment
Act 2021.".
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Part 10--Amendment of Energy Legislation Amendment Act 2021
Part 10--Amendment of Energy Legislation
Amendment Act 2021
89 Section 6 amended--proposed Division 9 of Part 2
of the Electricity Industry Act 2000
In section 6 of the Energy Legislation
Amendment Act 2021, after proposed
Subdivision 5 of Division 9 of Part 2 of the
Electricity Industry Act 2000 insert--
"Subdivision 5A--Compliance
62A Compliance with conditions of trial
waiver
(1) A person granted a trial waiver must comply
with any conditions to which the trial waiver
is subject.
(2) Subsection (1) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.".
90 Section 7 amended
After section 7(a) of the Energy Legislation
Amendment Act 2021 insert--
'(ab) in the definition of regulated entity, after
paragraph (b)(ii) insert--
"(iia) a person granted a trial waiver; and";'.
91 Sections 8 to 12 repealed
Sections 8 to 12 of the Energy Legislation
Amendment Act 2021 are repealed.
92 Section 15 amended--proposed Division 7 of Part 3
of the Gas Industry Act 2001
In section 15 of the Energy Legislation
Amendment Act 2021, after proposed
Subdivision 5 of Division 7 of Part 3 of the
Gas Industry Act 2001 insert--
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"Subdivision 5A--Compliance
63A Compliance with conditions of trial
waiver
(1) A person granted a trial waiver must comply
with any conditions to which the trial waiver
is subject.
(2) Subsection (1) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.".
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Amendment (Energy Fairness) Act 2021
93 Section 5 amended--proposed section 40EB
In section 5 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40EB of the Electricity
Industry Act 2000, for subsections (7) and (8)
substitute--
"(7) For the purposes of section 53 of the
Essential Services Commission Act 2001,
a retailer does not contravene a civil penalty
requirement that is the condition under
subsection (1)(b) or (c) if--
(a) the contravention by the retailer was by
mistake; or
(b) the retailer took reasonable precautions,
and exercised due diligence, to avoid
the contravention.
(8) This section does not apply to a supply and
sale contract of a kind that is prescribed.
(9) In this section--
contact details means a domestic customer's
residential address or telephone
number;
domestic customer has the same meaning as
in section 41.".
94 Section 9 amended--proposed section 40SA
In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021,
in proposed section 40SA of the Electricity
Industry Act 2000, in the definition of applicable
Code, for "states" substitute "specifies".
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95 Section 9 amended--proposed section 40SE
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SE of the Electricity
Industry Act 2000, the penalty at the foot of that
section is repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
end of proposed section 40SE of the Electricity
Industry Act 2000 insert--
"(2) A retailer or an exempt electricity seller who
contravenes subsection (1) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(3) Subsection (1) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
96 Section 9 amended--proposed section 40SG
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SG of the Electricity
Industry Act 2000, the penalties at the foot of
subsections (1), (2), (3) and (4) are repealed.
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(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40SG(4) of the Electricity
Industry Act 2000 insert--
"(4A) A retailer who contravenes subsection (1),
(2), (3) or (4) commits an offence against
that subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(4B) Subsections (1), (2), (3) and (4) are civil
penalty requirements for the purposes of the
Essential Services Commission Act 2001.".
(3) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
foot of proposed section 40SG of the Electricity
Industry Act 2000 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
97 Section 9 amended--proposed section 40SH
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SH of the Electricity
Industry Act 2000, the penalties at the foot of
subsections (1) and (2) are repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40SH(2) of the Electricity
Industry Act 2000 insert--
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"(3) A retailer who contravenes subsection (1)
or (2) commits an offence against that
subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(4) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
98 Section 9 amended--proposed section 40SI
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SI of the Electricity Industry
Act 2000, the penalties at the foot of subsections
(1) and (2) are repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021,
after proposed section 40SI(2) of the Electricity
Industry Act 2000 insert--
"(3) A retailer who contravenes subsection (1)
or (2) commits an offence against that
subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
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(b) in the case of a body corporate,
600 penalty units.
(4) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
99 Section 9 amended--proposed section 40SJ
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SJ of the Electricity Industry
Act 2000, the penalties at the foot of subsections
(1), (2), (3), (4) and (5) are repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40SJ(5) of the Electricity
Industry Act 2000 insert--
"(5A) An exempt electricity seller who contravenes
subsection (1), (2), (3), (4) or (5) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(5B) Subsections (1), (2), (3), (4) and (5) are civil
penalty requirements for the purposes of the
Essential Services Commission Act 2001.".
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(3) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
foot of proposed section 40SJ of the Electricity
Industry Act 2000 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
100 Section 9 amended--proposed section 40SK
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SK of the Electricity
Industry Act 2000, the penalties at the foot of
subsections (1), (2) and (3) are repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40SK(3) of the Electricity
Industry Act 2000 insert--
"(4) An exempt electricity seller who contravenes
subsection (1), (2) or (3) commits an offence
against that subsection and is liable to a
penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(5) Subsections (1), (2) and (3) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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101 Section 9 amended--proposed section 40ST
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40ST(3) of the Electricity
Industry Act 2000, for "exceeding 6000 penalty
units." substitute--
"exceeding--
(a) in the case of a natural person,
1200 penalty units or 10 years
imprisonment; or
(b) in the case of a body corporate,
6000 penalty units.".
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40ST of the Electricity
Industry Act 2000, the penalty at the foot of
subsection (5) is repealed.
(3) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40ST(5) of the Electricity
Industry Act 2000 insert--
"(6) A retailer who contravenes subsection (5)
commits an offence against that subsection
and is liable to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(7) Subsection (5) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
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Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
102 Section 9 amended--proposed section 40SU
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SU of the Electricity
Industry Act 2000, the penalty at the foot of
subsection (5) is repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 40SU(5) of the Electricity
Industry Act 2000 insert--
"(6) An exempt electricity seller who contravenes
subsection (5) commits an offence against
that subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(7) Subsection (5) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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103 Section 9 amended--proposed section 40SV
(1) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 40SV of the Electricity
Industry Act 2000, the penalties at the foot of
subsections (1) and (2) are repealed.
(2) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021,
after proposed section 40SV(2) of the Electricity
Industry Act 2000 insert--
"(2A) A retailer or an exempt electricity seller who
contravenes subsection (1) or (2) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(2B) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.".
(3) In section 9 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
foot of proposed section 40SV of the Electricity
Industry Act 2000 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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104 New section 10A inserted
After section 10 of the Energy Legislation
Amendment (Energy Fairness) Act 2021
insert--
'10A Performance indicators for compliance
and enforcement reports
(1) For section 109B(1)(a)(iii) of the Electricity
Industry Act 2000 substitute--
"(iii) the number of penalty notices (if any)
in relation to wrongful disconnections
paid by the retailer under Division 2 of
Part 7 of the Essential Services
Commission Act 2001; and".
(2) In section 109B(2) of the Electricity
Industry Act 2000--
(a) insert the following definition--
"wrongful disconnection means the
disconnection of the supply of
electricity to the premises of a
customer arranged by a retailer
other than in accordance with
Subdivision 3 of Division 5C of
Part 2;
(b) the definitions of Energy Retail Code
and specified penalty notice are
repealed.".'.
105 Division 5 of Part 2 repealed
Division 5 of Part 2 of the Energy Legislation
Amendment (Energy Fairness) Act 2021 is
repealed.
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106 Section 19 amendment--proposed section 48DB
In section 19 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DB of the Gas Industry
Act 2001, for subsections (7) and (8) substitute--
"(7) For the purposes of section 53 of the
Essential Services Commission Act 2001,
a gas retailer does not contravene a civil
penalty requirement that is the condition
under subsection (1)(b) or (c) if--
(a) the contravention by the gas retailer
was by mistake; or
(b) the gas retailer took reasonable
precautions, and exercised due
diligence, to avoid the contravention.
(8) This section does not apply to a supply and
sale contract of a kind that is prescribed.
(9) In this section--
contact details means a domestic customer's
residential address or telephone
number;
domestic customer has the same meaning as
in section 48E.".
107 Section 23 amended--proposed section 48DC
In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DC of the Gas Industry
Act 2001, in the definition of applicable Code,
for "states" substitute "specifies".
108 Section 23 amended--proposed section 48DG
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DG of the Gas Industry
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Act 2001, the penalty at the foot of that section is
repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
end of proposed section 48DG of the Gas
Industry Act 2001 insert--
"(2) A gas retailer or an exempt gas seller who
contravenes subsection (1) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(3) Subsection (1) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
109 Section 23 amended--proposed section 48DI
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DI of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1), (2), (3) and (4) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DI(4) of the Gas Industry
Act 2001 insert--
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"(4A) A gas retailer who contravenes subsection
(1), (2), (3) or (4) commits an offence
against that subsection and is liable to a
penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(4B) Subsections (1), (2), (3) and (4) are civil
penalty requirements for the purposes of the
Essential Services Commission Act 2001.".
(3) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
foot of proposed section 48DI of the Gas
Industry Act 2001 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
110 Section 23 amended--proposed section 48DJ
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DJ of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1) and (2) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DJ(2) of the Gas Industry
Act 2001 insert--
"(3) A gas retailer who contravenes subsection
(1) or (2) commits an offence against that
subsection and is liable to a penalty not
exceeding--
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(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(4) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
111 Section 23 amended--proposed section 48DK
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DK of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1) and (2) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DK(2) of the Gas Industry
Act 2001 insert--
"(3) A gas retailer who contravenes subsection
(1) or (2) commits an offence against that
subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
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(4) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
112 Section 23 amended--proposed section 48DL
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DL of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1), (2), (3), (4) and (5) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DL(5) of the Gas Industry
Act 2001 insert--
"(5A) An exempt gas seller who contravenes
subsection (1), (2), (3), (4) or (5) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(5B) Subsections (1), (2), (3), (4) and (5) are civil
penalty requirements for the purposes of the
Essential Services Commission Act 2001.".
(3) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at
the foot of proposed section 48DL of the Gas
Industry Act 2001 insert--
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"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
113 Section 23 amended--proposed section 48DM
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DM of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1), (2) and (3) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DM(3) of the Gas Industry
Act 2001 insert--
"(4) An exempt gas seller who contravenes
subsection (1), (2) or (3) commits an offence
against that subsection and is liable to a
penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(5) Subsections (1), (2) and (3) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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114 Section 23 amended--proposed section 48DV
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DV(3) of the Gas Industry
Act 2001, for "exceeding 6000 penalty units."
substitute--
"exceeding--
(a) in the case of a natural person,
1200 penalty units or 10 years
imprisonment; or
(b) in the case of a body corporate,
6000 penalty units.".
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DV of the Gas Industry
Act 2001, the penalty at the foot of subsection (5)
is repealed.
(3) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DV(5) of the Gas Industry
Act 2001 insert--
"(6) A gas retailer who contravenes subsection
(5) commits an offence against that
subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(7) Subsection (5) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
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Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
115 Section 23 amended--proposed section 48DW
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DW of the Gas Industry
Act 2001, the penalty at the foot of subsection (5)
is repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DW(5) of the Gas Industry
Act 2001 insert--
"(6) An exempt gas seller who contravenes
subsection (5) commits an offence against
that subsection and is liable to a penalty not
exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(7) Subsection (5) is a civil penalty requirement
for the purposes of the Essential Services
Commission Act 2001.
Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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116 Section 23 amended--proposed section 48DX
(1) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, in
proposed section 48DX of the Gas Industry
Act 2001, the penalties at the foot of subsections
(1) and (2) are repealed.
(2) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, after
proposed section 48DX(2) of the Gas Industry
Act 2001 insert--
"(2A) A gas retailer or an exempt gas seller who
contravenes subsection (1) or (2) commits an
offence against that subsection and is liable
to a penalty not exceeding--
(a) in the case of a natural person,
120 penalty units or 12 months
imprisonment; or
(b) in the case of a body corporate,
600 penalty units.
(2B) Subsections (1) and (2) are civil penalty
requirements for the purposes of the
Essential Services Commission Act 2001.".
(3) In section 23 of the Energy Legislation
Amendment (Energy Fairness) Act 2021, at the
foot of proposed section 48DX of the Gas
Industry Act 2001 insert--
"Note
For matters relating to contraventions of provisions that are
offences and civil penalty requirements, see Subdivision 4
of Division 1 of Part 7 of the Essential Services
Commission Act 2001.".
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Part 11--Amendment of Energy Legislation Amendment (Energy Fairness)
Act 2021
117 New section 24A inserted
After section 24 of the Energy Legislation
Amendment (Energy Fairness) Act 2021
insert--
'24A Performance indicators for compliance
and enforcement reports
(1) For section 224(1)(a)(iii) of the Gas
Industry Act 2001 substitute--
"(iii) the number of penalty notices (if any)
in relation to wrongful disconnections
paid by the gas retailer under
Division 2 of Part 7 of the Essential
Services Commission Act 2001; and".
(2) In section 224(2) of the Gas Industry
Act 2001--
(a) insert the following definition--
"wrongful disconnection means the
disconnection of the supply of
gas to the premises of a customer
arranged by a retailer other than
in accordance with Subdivision 3
of Division 4AA of Part 3;
(b) the definitions of Energy Retail Code
and specified penalty notice are
repealed.".'.
118 Division 5 of Part 3 repealed
Division 5 of Part 3 of the Energy Legislation
Amendment (Energy Fairness) Act 2021 is
repealed.
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119 Sections 32 to 36 substituted
For sections 32 to 36 of the Energy Legislation
Amendment (Energy Fairness) Act 2021
substitute--
'32 Offence to give false or misleading
information or documents
After section 61A(2) of the Essential
Services Commission Act 2001 insert--
"(3) Subsections (1) and (2) do not apply to
an energy licensee who is required to
give information or produce a
document to the Commission under or
for the purposes of the Electricity
Industry Act 2000 or the Gas
Industry Act 2001.
Note
Section 116AA of the Electricity Industry
Act 2000 and section 229A of the Gas
Industry Act 2001 contain offences relating to
energy licensees providing false or misleading
information or documents to the
Commission.".'.
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Part 12--Consequential and minor amendments of other Acts
Part 12--Consequential and minor
amendments of other Acts
Division 1--Amendment of Accident Towing
Services Act 2007
120 Recommendations
In section 212F(3) of the Accident Towing
Services Act 2007, for "section 38" substitute
"section 60C".
Division 2--Amendment of Commercial Passenger
Vehicle Industry Act 2017
121 Application of Essential Services Commission
Act 2001
In section 110B(2) of the Commercial Passenger
Vehicle Industry Act 2017, for "If" substitute
"Despite section 5(1) of the Essential Services
Commission Act 2001, if".
122 Application of Essential Services Commission
Act 2001
In section 121(2) of the Commercial Passenger
Vehicle Industry Act 2017, for "If" substitute
"Despite section 5(1) of the Essential Services
Commission Act 2001, if".
Division 3--Amendment of Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2016
123 Application for certification
For section 68(1) of the Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2016 substitute--
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"(1) The person who submitted the capacity
expansion proposal to the Ports Minister
(the applicant) may apply to the
Commission for it to certify the proposal
if--
(a) the Minister has refused to approve the
proposal; or
(b) the Minister has failed to make a
decision under section 66 within the
time required by that section.
(1A) An application under subsection (1) must be
made--
(a) if the Ports Minister has refused to
approve the proposal, within 3 months
after the refusal; or
(b) if the Ports Minister has failed to make
a decision under section 66, within
3 months after the time the Minister
was required to make the decision by
that section.".
124 Decision on certification by Commission
In section 69(1) of the Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2016--
(a) for "must not" substitute "must, not";
(b) for "section 68" substitute "section 68,".
125 Inquiries for the purposes of decisions on
certification
For section 70(3) of the Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2016 substitute--
"(3) Part 4 (other than sections 37, 39 and 39B),
Part 4A and sections 43 (other than
subsections (4)(a) and (6)(b) of that section),
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Part 12--Consequential and minor amendments of other Acts
60C and 60D of the Essential Services
Commission Act 2001 apply to an inquiry
under this section.".
Division 4--Amendment of Grain Handling and
Storage Act 1995
126 Financial records
In section 22(3) of the Grain Handling and
Storage Act 1995--
(a) after "Part 4" insert "(other than sections 37,
39 and 39B), Part 4A and sections 60C
and 60D";
(b) for "applies" substitute "apply".
127 Conduct of inquiries
In section 23(4) of the Grain Handling and
Storage Act 1995, for "If a provision of Part 5 of
the Essential Services Commission Act 2001"
substitute "Despite section 5(1) of the Essential
Services Commission Act 2001, if a provision of
Part 5 of that Act".
128 Procedures and powers of the Commission
(1) In section 24A(5) of the Grain Handling and
Storage Act 1995, for "sections 37 and 38"
substitute "Part 4 (other than sections 37 , 39
and 39B) and section 60C".
(2) In section 24A(6) of the Grain Handling and
Storage Act 1995, for "Section 37(4)" substitute
"Section 36(4)".
(3) In section 24A(7) of the Grain Handling and
Storage Act 1995, for "Section 38" substitute
"Section 60C".
193
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Part 12--Consequential and minor amendments of other Acts
Division 5--Amendment of National Electricity
(Victoria) Act 2005
129 Enforcement of Victorian distribution pricing
determination and distribution licences by AER
In section 25(3) of the National Electricity
(Victoria) Act 2005, after "2001" insert ", as in
force immediately before the commencement of
section 6 of the Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021,".
130 ESC cannot enforce Victorian pricing determination
or certain distribution licence conditions
In section 26(1) of the National Electricity
(Victoria) Act 2005, after "2001" insert ", as in
force immediately before the commencement of
section 6 of the Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021,".
131 Appeals against certain decisions or actions of the
AER
In section 29(1)(a) and (b) of the National
Electricity (Victoria) Act 2005, after "2001"
insert ", as in force immediately before the
commencement of section 6 of the Essential
Services Commission (Compliance and
Enforcement Powers) Amendment Act 2021".
Division 6--Amendment of National Gas (Victoria)
Act 2008
132 Enforcement by AER of certain provisions of
Victorian distribution licences
In section 30(3) of the National Gas (Victoria)
Act 2008, after "2001" insert ", as in force
immediately before the commencement of
section 6 of the Essential Services Commission
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(Compliance and Enforcement Powers)
Amendment Act 2021,".
133 ESC cannot enforce certain gas distribution licence
conditions that the AER can enforce
In section 31(1) of the National Gas (Victoria)
Act 2008, after "2001" insert ", as in force
immediately before the commencement of
section 6 of the Essential Services Commission
(Compliance and Enforcement Powers)
Amendment Act 2021,".
134 Appeals against certain decisions or actions of the
AER
In section 33(1)(a) and (b) of the National Gas
(Victoria) Act 2008, after "2001" insert ", as in
force immediately before section 6 of the
Essential Services Commission (Compliance
and Enforcement Powers) Amendment
Act 2021".
Division 7--Amendment of Port Management
Act 1995
135 Commission may conduct inquiry into relevant
service prices
(1) In section 49Z(3) of the Port Management
Act 1995, for "Part 4, and sections 42 to 46,"
substitute "Sections 42 to 46".
(2) After section 49Z(3) of the Port Management
Act 1995 insert--
"(3A) For the purposes of an inquiry under this
section, the Commission may--
(a) serve an information gathering notice
under section 36(1) of the Essential
Services Commission Act 2001 in
accordance with Part 4 of that Act; or
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Part 12--Consequential and minor amendments of other Acts
(b) exercise a power under section 39K of
the Essential Services Commission
Act 2001 in accordance with Part 4A of
that Act.".
136 Financial and business records
Section 56(10) of the Port Management
Act 1995 is repealed.
137 Restriction on disclosure of confidential information
Before section 57(3)(a)(i) of the Port
Management Act 1995 insert--
"(iaa) the chief executive officer of the
Commission employed under section 23A(1)
of the Essential Services Commission
Act 2001; or".
138 Regulations
For section 98(1A) of the Port Management
Act 1995 substitute--
"(1A) In addition, the Governor in Council may
make regulations or with respect to--
(a) prescribing provisions of this Act as
civil penalty requirements for the
purposes of the Essential Services
Commission Act 2001;
(b) prescribing amounts for the purposes
of section 54E(b), (c), (d) or (g) of the
Essential Services Commission
Act 2001;
(c) prescribing amounts of notice penalties
for the purposes of section 54U(b), (c),
(d) or (g) of the Essential Services
Commission Act 2001;
(d) prescribing any other matter that is
required for the operation of civil
penalty orders in Division 1 of Part 7 of
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Part 12--Consequential and minor amendments of other Acts
the Essential Services Commission
Act 2001;
(e) prescribing any other matter that is
required to be prescribed for the
operation of the penalty notice regime
in Division 2 of Part 7 of the Essential
Services Commission Act 2001;
(f) any other matter required or permitted
by this Act to be prescribed or
necessary or convenient to be
prescribed to give effect to this Act.".
197
Essential Services Commission (Compliance and Enforcement Powers)
Amendment Act 2021
No. of 2021
Part 13--Repeal of this Act
Part 13--Repeal of this Act
139 Repeal of this Act
This Act is repealed on 1 May 2023.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═════════════
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Essential Services Commission (Compliance and Enforcement Powers)
Amendment Act 2021
No. of 2021
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Essential Services Commission Act 2001, the Electricity Industry
Act 2000, the Gas Industry Act 2001, the Victorian Energy Efficiency
Target Act 2007, the Victorian Renewable Energy Act 2006, the
Water Industry Act 1994, the Energy Legislation Amendment
Act 2021 and the Energy Legislation Amendment (Energy Fairness)
Act 2021 and to make consequential and minor amendments to other Acts
and for other purposes."
By Authority. Government Printer for the State of Victoria.
199
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