Energy Legislation Amendment Act 2021 (Vic)
Energy Legislation Amendment Act 2021
No. 33 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Electricity Industry Act 2000
3Definitions
4Prohibition
5Specific licence conditions
6New Division 9 of Part 2 inserted
Part 3—Amendment of Essential Services Commission Act 2001
7Definitions
8Commission's energy industry compliance and enforcement functions
9Enforcement orders
10Civil penalty
11New section 54EA inserted
12Meaning of energy industry contravention
Part 4—Amendment of Gas Industry Act 2001
13Definitions
14Offence to distribute or retail gas without licence
15New Division 7 of Part 3 inserted
Part 5—Amendment of National Electricity (Victoria) Act 2005
16Definitions
17Regulations
18New sections 16ZDA and 16ZDB inserted
19Schedule 4 modifications
Part 6—Amendment of National Gas (Victoria) Act 2008
20New section 9B inserted
Part 7—Amendment of Victorian Energy Efficiency Target Act 2007
21VEET scheme target
22Greenhouse gas reduction rates
Part 8—Repeal of this Act
23Repeal of this Act
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Endnotes
1 General information
Energy Legislation Amendment Act 2021
No. 33 of 2021
[Assented to 14 September 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Electricity Industry Act 2000 and Gas Industry Act 2001 to provide for, consistently with national energy law arrangements, trial waiver exemptions from Victorian regulatory arrangements for certain trial projects that test an approach in relation to the supply of, or demand for, electricity and gas, respectively; and
(b)to make amendments to the Essential Services Commission Act 2001 related to the amendments being made to the Electricity Industry Act 2000 and Gas Industry Act 2001 to provide for, consistently with national energy law arrangements, trial waiver exemptions from Victorian regulatory arrangements for certain trial projects; and
(c)to amend the National Electricity (Victoria) Act 2005—
(i)to enable regulations to be made for, or with respect to, stand-alone power systems for the purposes of the National Electricity (Victoria) Law; and
(ii)to make further provision for the enforcement of compliance with Ministerial Orders made under section 16Y of that Act; and
(iii)to make further modifications to the National Electricity (Victoria) Law as it applies as a law of Victoria to ensure, so far as reasonably practicable, the alignment of that Law with the nationally agreed text of the National Electricity Law; and
(d)to amend the National Gas (Victoria) Act 2008 to enable the Minister to declare a mixture of natural gas and another gas, or any other gas, as natural gas for the purposes of the National Gas (Victoria) Law and the National Gas Rules; and
(e)to amend the Victorian Energy Efficiency Target Act 2007 to make further provision in relation to the fixing of greenhouse gas reduction rates.
2Commencement
(1)This Part, sections 18 and 19 and Parts 6 and 7 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 June 2022, it comes into operation on that day.
Part 2—Amendment of Electricity Industry Act 2000
3Definitions
(1)In section 3 of the Electricity Industry Act 2000 insert the following definitions—
"AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;
trial waiver—see section 54;".
(2)In section 3 of the Electricity Industry Act 2000 insert the following definition—
"stand-alone power system has the same meaning as in section 6B(6) of the National Electricity (Victoria) Law;".
4Prohibition
In section 16(1) of the Electricity Industry Act 2000—
(a)in paragraph (b), for "activity." substitute "activity; or";
(b)after paragraph (b) insert—
"(c)is the holder of a trial waiver in respect of the relevant activity.".
5Specific licence conditions
After section 21(u) of the Electricity Industry Act 2000 insert—
"(ua)relating to—
(i)the generation for supply or sale of electricity by means of a stand-alone power system; or
(ii)the distribution of electricity by means of a stand-alone power system; or
(iii)the supply or sale of electricity generated or distributed by means of a stand-alone power system;
(ub)regulating or prohibiting where a stand-alone power system may be installed or electricity generated by means of a stand-alone power system may be distributed or supplied or sold;".
6New Division 9 of Part 2 inserted
At the end of Part 2 of the Electricity Industry Act 2000 insert—
"Division 9—Trial waivers
Subdivision 1—Interpretation
51Definitions
In this Division—
innovative trial principles—see section 52;
proponent—see section 54(1);
supply of, or demand for, electricity, in relation to a trial project, includes the generation of electricity for supply or sale or the transmission, distribution, supply or sale of electricity;
trial project means a project that tests an approach in relation to the supply of, or demand for, electricity;
trial project guidelines means the guidelines prepared and issued under section 63;
trial waiver information means—
(a)information considered by the Commission in making a determination under section 54 or any other decision under this Division; or
(b)information relating to the operation and administration of a trial waiver; or
(c)information relating to a contravention by a person granted a trial waiver with conditions to which that trial waiver is subject, including any one or more of the following kinds of information—
(i)information relating to any proceeding under the Essential Services Commission Act 2001 in respect of such a contravention;
(ii)information relating to the service of any provisional or final order under section 53 of the Essential Services Commission Act 2001 in respect of such a contravention;
(iii)information relating to the service of any notice under section 54A or 54G of the Essential Services Commission Act 2001 in respect of such a contravention;
trial waiver order means an Order made under section 53.
52Innovative trial principles
The following principles (the innovative trial principles) must be had regard to in determining whether a trial project is genuinely innovative in connection with granting a trial waiver, or continues to be genuinely innovative in connection with extending the period for which the trial waiver applying to the trial project has effect—
(a)whether the trial project is focused, or will continue to focus, on developing new or materially improved approaches to the use or supply of, or demand for, electricity;
(b)whether the trial project is likely to contribute to the achievement of the objectives of the Commission under this Act and the Essential Services Commission Act 2001;
(c)whether the trial project is able to demonstrate, or will continue to demonstrate, a reasonable prospect of giving rise to materially improved services and outcomes for customers who purchase electricity;
(d)whether the trial project maintains, or will continue to maintain, adequate customer protections for customers who purchase electricity, including whether the trial project may involve risks to such customers and, if so, how those risks might be mitigated;
(e)whether the trial project is unable to proceed, or continue to proceed, because of this Act or any instrument made under this Act;
(f)any other principle specified under a trial waiver order.
Subdivision 2—Trial waiver orders
53Order in Council in relation to trial waivers
(1)The Governor in Council, by Order published in the Government Gazette, may do any one or more of the following—
(a)specify matters the Commission must have regard to when determining whether to—
(i)grant a trial waiver;
(ii)extend the period of a trial waiver;
(iii)vary a trial waiver or a condition to which a trial waiver is subject;
(iv)revoke a trial waiver;
(b)specify principles for the purposes of section 52;
(c)specify a condition or class of condition that the Commission must or may make a trial waiver be subject to;
(d)specify matters that the Commission must provide for in the trial project guidelines;
(e)specify the process for the making or amendment of trial project guidelines by the Commission;
(f)direct the Commission to make amendments to any instrument made by the Commission to give effect to any matter specified in the Order;
(g)confer powers and functions on, and leave any matter to be decided by, the Commission.
(2)An Order under this section may—
(a)be of general or limited application; and
(b)differ according to differences in time, place and circumstances.
Subdivision 3—Grant of trial waivers
54Trial waiver
(1)Subject to this section, the Commission may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) under which the proponent is exempted from the requirement to obtain a licence in respect of the relevant activity specified in the trial waiver.
(2)In making a determination to grant a trial waiver, the Commission must be satisfied that the trial project that is the subject of the application is genuinely innovative, and for that purpose, the Commission must have regard to the innovative trial principles.
(3)In addition, in making a determination to grant a trial waiver, the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in making a determination to grant a trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in making a determination to grant a trial waiver.
(4)The Commission must not grant a trial waiver if the Commission reasonably considers that the trial project is unlikely to be carried out.
(5)Without limiting subsection (4), the Commission may refuse to consider an application. In doing so, the Commission may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in refusing an application.
(6)An application for a trial waiver must be made in accordance with the trial project guidelines.
(7)A trial waiver granted under this section must be in writing.
(8)To avoid doubt, a proponent may be—
(a)a licensee; or
(b)a person who is, because of an Order under section 17, exempt from the requirement to obtain a licence in respect of the generation of electricity for supply or sale or the transmission, distribution, supply or sale of electricity.
55Conditions of trial waiver
(1)Subject to this section, a trial waiver granted under section 54 is subject to any conditions that the Commission considers appropriate.
(2)If a trial waiver order specifies a condition or class of condition that the Commission must make a trial waiver be subject to, the Commission must grant the trial waiver subject to the condition or condition of the class specified in the trial waiver order.
(3)For the purposes of subsection (1), the kinds of conditions that the Commission may consider appropriate include conditions that a trial waiver order specifies as conditions that the trial waiver may be subject to.
56Consultation on trial waiver
Before granting a trial waiver, the Commission must undertake consultation (including with the proponent) in accordance with the trial project guidelines.
57Publication of trial waiver
As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the Commission's internet site.
58Duration of trial waiver
Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver.
Subdivision 4—Extension of trial waivers
59Extension of trial waiver
(1)The Commission, in accordance with the trial project guidelines, may extend the period for which a trial waiver has effect by a period determined by the Commission (which cannot exceed one year).
(2)In determining whether to grant an extension under subsection (1), the Commission must be satisfied that the trial project to which the trial waiver applies continues to be genuinely innovative, and for that purpose, the Commission must have regard to the innovative trial principles.
(3)In addition, in determining whether to grant an extension under subsection (1), the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to extend the period of the trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to extend the period for which a trial waiver has effect.
(4)An extension under subsection (1) must be—
(a)in writing; and
(b)published on the Commission's internet site.
(5)An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division.
Subdivision 5—Variation and revocation of trial waivers
60Variation of trial waiver, or conditions of trial waiver, by Commission
(1)Subject to this section, the Commission may, on its own initiative, vary a trial waiver, or a condition to which a trial waiver is subject—
(a)if the Commission is of the view that the person granted the trial waiver is contravening or has contravened a condition of the trial waiver; or
(b)to ensure that the conditions to which the trial waiver is subject are consistent with a condition or condition of a class specified under a trial waiver order as a condition that the trial waiver must or may be subject to; or
(c)if the Commission considers it appropriate to do.
(2)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, under subsection (1)(a) unless—
(a)the Commission serves on the person notice of its intention to do so; and
(b)the Commission, in the notice served under paragraph (a), specifies the action the person granted the trial waiver is required to take—
(i)to rectify the contravention of the trial waiver or the trial waiver condition; and
(ii)to prevent any future contravention of the trial waiver or the trial waiver condition; and
(c)the Commission has given the person an opportunity to make representations on the matter.
(3)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, under subsection (1)(b) or (c) unless—
(a)the Commission serves on the person notice of its intention to do so; and
(b)the Commission has given the person an opportunity to make representations on the matter; and
(c)the Commission is satisfied that the variation is necessary having regard to the objectives of the Commission under this Act and under the Essential Services Commission Act 2001.
(4)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, so that the trial waiver or the conditions to which the trial waiver is subject are inconsistent with a condition or condition of a class specified under a trial waiver order as a condition or class of condition that the trial waiver must be subject to.
(5)In determining whether to vary a trial waiver, or a condition to which a trial waiver is subject, under subsection (1), the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to vary—
(i)a trial waiver; or
(ii)a condition to which a trial waiver is subject.
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to vary—
(i)a trial waiver; or
(ii)a condition to which a trial waiver is subject.
61Variation of trial waiver, or conditions of trial waiver, by agreement
The Commission may, by agreement with a person granted a trial waiver, vary the trial waiver or a condition to which the trial waiver is subject.
62Revocation of trial waiver
(1)The Commission may, in accordance with the trial project guidelines, revoke a trial waiver.
(2)In determining whether to revoke a trial waiver, the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to revoke a trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to revoke a trial waiver.
Subdivision 6—Trial project guidelines
63Preparation and issue of trial project guidelines
(1)The Commission must prepare and issue guidelines for the purposes of this Division within one month after the commencement of this section.
(2)Without limiting subsection (1), guidelines developed and issued under that subsection must specify the following—
(a)how an application under section 54 must be made, including the steps proponents under that section must take to identify confidential information submitted as part of an application;
(b)the approach that the Commission proposes to take in performing its functions and exercising its powers under section 54, including the timeline within which the Commission will aim to make a determination under section 54;
(c)the process the Commission proposes to follow when determining whether to refuse to consider a trial waiver application under section 54;
(d)the consultation process that the Commission must undertake under section 56;
(e)the process the Commission proposes to follow for the purpose of determining whether to grant an extension to the period of a trial waiver under section 59;
(f)the process the Commission proposes to follow for the purpose of determining whether to revoke a trial waiver under section 62;
(g)the steps persons granted trial waivers must take to identify confidential information submitted to the Commission as part of a trial project;
(h)any matter that a trial waiver order requires to be specified in the guidelines.
(3)In addition, without limiting subsection (1), guidelines developed and issued under that subsection may specify any other matter that the Commission considers necessary—
(a)to be had regard to for the purposes of section 54(3)(b) or (5), 59(3)(b), 60(5)(b) or 62(2)(b); or
(b)to facilitate trial projects.
64Amendment of trial project guidelines
The Commission may, in accordance with any procedure specified by the Commission, amend any trial project guidelines issued under section 63.
65Consideration of AER trial project guidelines
In preparing and issuing trial project guidelines under section 63, or amending trial project guidelines under section 64, the Commission must have regard to the Trial Projects Guidelines (as defined in Chapter 10 of the National Electricity Rules).
Subdivision 7—Information sharing with the AER
66Information disclosure
Subject to Part 4 of the Essential Services Commission Act 2001, the Commission may disclose to the AER any trial waiver information in the Commission's possession or control.
Note
Under section 61(3)(a) of the Essential Services Commission Act 2001, a person may disclose confidential or commercially-sensitive information obtained during the exercise of a power or the performance of a function under, or in connection with, that Act or relevant legislation if the disclosure or use is made in the exercise of a power or the performance of a function under, or in connection with, this Act or any relevant legislation. This Act is relevant legislation—see section 7A.
Subdivision 8—Miscellaneous
67Register of trial waivers
(1)The Commission must establish and maintain a register of trial waivers (the register).
(2)The Commission must enter the following details in the register in respect of every trial waiver—
(a)the name of the person granted the trial waiver;
(b)a description of the activity that will be undertaken under the trial waiver;
(c)the date of expiry of the trial waiver;
(d)information about where a copy of a trial waiver may be accessed.
(3)The Commission may maintain the register in any form or manner it considers appropriate.
(4)The Commission must make the register publicly available, free of charge, from the Commission's internet site.
68Trial waiver not personal property
For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a trial waiver is declared not to be personal property.".
Part 3—Amendment of Essential Services Commission Act 2001
7Definitions
In section 3 of the Essential Services Commission Act 2001—
(a)in the definition of Tariff Order, for "2000." substitute "2000;";
(b)insert the following definition—
"trial waiver means an exemption granted under section 54 of the Electricity Industry Act 2000 or section 55 of the Gas Industry Act 2001;".
8Commission's energy industry compliance and enforcement functions
In section 10AA of the Essential Services Commission Act 2001—
(a)for paragraph (a) substitute—
"(a)to monitor and report on compliance by—
(i)energy licensees with conditions of energy licences held by them and provisions of Codes of Practice; and
(ii)persons granted trial waivers with conditions of trial waivers; and";
(b)for paragraph (b) substitute—
"(b)to investigate contraventions or possible contraventions by—
(i)energy licensees of conditions of energy licences held by them and provisions of Codes of Practice; and
(ii)persons granted trial waivers with conditions of trial waivers; and".
9Enforcement orders
(1)After section 53(1)(b) of the Essential Services Commission Act 2001 insert—
"(ba)a condition to which a trial waiver granted to the person is subject; or".
(2)In section 53(2)(a) and (5)(a) of the Essential Services Commission Act 2001, for "or Code of Practice" substitute ", Code of Practice or condition to which the trial waiver granted to the person is subject".
10Civil penalty
Before section 54A(1)(a)(iii) of the Essential Services Commission Act 2001 insert—
"(iib)a condition to which a trial waiver granted to the person is subject; or".
11New section 54EA inserted
After section 54E of the Essential Services Commission Act 2001 insert—
"54EA Interpretation—references to energy licensee include person granted trial waiver
In this Subdivision, a reference to an energy licensee includes a reference to a person granted a trial waiver.".
12Meaning of energy industry contravention
After section 54F(1)(ab) of the Essential Services Commission Act 2001 insert—
"(ac)a contravention of a prescribed condition to which a trial waiver granted is subject in a prescribed circumstance; or".
Part 4—Amendment of Gas Industry Act 2001
13Definitions
In section 3 of the Gas Industry Act 2001 insert the following definitions—
"AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;
trial waiver—see section 55;".
14Offence to distribute or retail gas without licence
(1)In section 22(1) of the Gas Industry Act 2001—
(a)in paragraph (b), for "section 24." substitute "section 24; or";
(b)after paragraph (b) insert—
"(c)is the holder of a trial waiver in respect of the provision of those services.".
(2)In section 22(2) of the Gas Industry Act 2001—
(a)in paragraph (b), for "section 24." substitute "section 24; or";
(b)after paragraph (b) insert—
"(c)is the holder of a trial waiver in respect of the sale of gas by retail.".
15New Division 7 of Part 3 inserted
At the end of Part 3 of the Gas Industry Act 2001 insert—
"Division 7—Trial waivers
Subdivision 1—Interpretation
52Definitions
In this Division—
innovative trial principles—see section 53;
proponent—see section 55(1);
supply of, or demand for, gas, in relation to a trial project, includes the provision of services by means of a distribution pipeline or the sale of gas by retail;
trial project means a project that tests an approach in relation to the supply of, or demand for, gas;
trial project guidelines means the guidelines prepared and issued under section 64;
trial waiver information means—
(a)information considered by the Commission in making a determination under section 55 or any other decision under this Division; or
(b)information relating to the operation and administration of a trial waiver; or
(c)information relating to a contravention by a person granted a trial waiver with conditions to which that trial waiver is subject, including any one or more of the following kinds of information—
(i)information relating to any proceeding under the Essential Services Commission Act 2001 in respect of such a contravention;
(ii)information relating to the service of any provisional or final order under section 53 of the Essential Services Commission Act 2001 in respect of such a contravention;
(iii)information relating to the service of any notice under section 54A or 54G of the Essential Services Commission Act 2001 in respect of such a contravention;
trial waiver order means an Order made under section 54.
53Innovative trial principles
The following principles (the innovative trial principles) must be had regard to in determining whether a trial project is genuinely innovative in connection with granting a trial waiver, or continues to be genuinely innovative in connection with extending the period for which the trial waiver applying to the trial project has effect—
(a)whether the trial project is focused, or will continue to focus, on developing new or materially improved approaches to the use or supply of, or demand for, gas;
(b)whether the trial project is likely to contribute to the achievement of the objectives of the Commission under this Act and the Essential Services Commission Act 2001;
(c)whether the trial project is able to demonstrate, or will continue to demonstrate, a reasonable prospect of giving rise to materially improved services and outcomes for customers who purchase gas;
(d)whether the trial project maintains, or will continue to maintain, adequate customer protections for customers who purchase gas, including whether the trial project may involve risks to such customers and, if so, how those risks might be mitigated;
(e)whether the trial project is unable to proceed, or continue to proceed, because of this Act or any instrument made under this Act;
(f)any other principle specified under a trial waiver order.
Subdivision 2—Trial waiver orders
54Order in Council in relation to trial waivers
(1)The Governor in Council, by Order published in the Government Gazette, may do any one or more of the following—
(a)specify matters the Commission must have regard to when determining whether to—
(i)grant a trial waiver;
(ii)extend the period of a trial waiver;
(iii)vary a trial waiver or a condition to which a trial waiver is subject;
(iv)revoke a trial waiver;
(b)specify principles for the purposes of section 53;
(c)specify a condition or class of condition that the Commission must or may make a trial waiver be subject to;
(d)specify matters that the Commission must provide for in the trial project guidelines;
(e)specify the process for the making or amendment of trial project guidelines by the Commission;
(f)direct the Commission to make amendments to any instrument made by the Commission to give effect to any matter specified in the Order;
(g)confer powers and functions on, and leave any matter to be decided by, the Commission.
(2)An Order under this section may—
(a)be of general or limited application; and
(b)differ according to differences in time, place and circumstances.
Subdivision 3—Grant of trial waivers
55Trial waiver
(1)Subject to this section, the Commission may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) under which the proponent is exempted from the requirement to obtain a licence in respect of the relevant activity specified in the trial waiver.
(2)In making a determination to grant a trial waiver, the Commission must be satisfied that the trial project that is the subject of the application is genuinely innovative, and for that purpose, the Commission must have regard to the innovative trial principles.
(3)In addition, in making a determination to grant a trial waiver, the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in making a determination to grant a trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in making a determination to grant a trial waiver.
(4)The Commission must not grant a trial waiver if the Commission reasonably considers that the trial project is unlikely to be carried out.
(5)Without limiting subsection (4), the Commission may refuse to consider an application. In doing so, the Commission may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in refusing an application.
(6)An application for a trial waiver must be made in accordance with the trial project guidelines.
(7)A trial waiver granted under this section must be in writing.
(8)To avoid doubt, a proponent may be—
(a)a licensee; or
(b)a person who is, because of an Order under section 24, exempt from the requirement to obtain a licence in respect of—
(i)the provision of services by means of a distribution pipeline; or
(ii)the sale of gas by retail.
56Conditions of trial waiver
(1)Subject to this section, a trial waiver granted under section 55 is subject to any conditions that the Commission considers appropriate.
(2)If a trial waiver order specifies a condition or class of condition that the Commission must make a trial waiver be subject to, the Commission must grant the trial waiver subject to the condition or condition of the class specified in the trial waiver order.
(3)For the purposes of subsection (1), the kinds of conditions that the Commission may consider appropriate include conditions that a trial waiver order specifies as conditions that the trial waiver may be subject to.
57Consultation on trial waiver
Before granting a trial waiver, the Commission must undertake consultation (including with the proponent) in accordance with the trial project guidelines.
58Publication of trial waiver
As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the Commission's internet site.
59Duration of trial waiver
Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver.
Subdivision 4—Extension of trial waivers
60Extension of trial waiver
(1)The Commission, in accordance with the trial project guidelines, may extend the period for which a trial waiver has effect by a period determined by the Commission (which cannot exceed one year).
(2)In determining whether to grant an extension under subsection (1), the Commission must be satisfied that the trial project to which the trial waiver applies continues to be genuinely innovative, and for that purpose, the Commission must have regard to the innovative trial principles.
(3)In addition, in determining whether to grant an extension under subsection (1), the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to extend the period of the trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to extend the period for which a trial waiver has effect.
(4)An extension under subsection (1) must be—
(a)in writing; and
(b)published on the Commission's internet site.
(5)An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division.
Subdivision 5—Variation and revocation of trial waivers
61Variation of trial waiver, or conditions of trial waiver, by Commission
(1)Subject to this section, the Commission may, on its own initiative, vary a trial waiver, or a condition to which a trial waiver is subject—
(a)if the Commission is of the view that the person granted the trial waiver is contravening or has contravened a condition of the trial waiver; or
(b)to ensure that the conditions to which the trial waiver is subject are consistent with a condition or condition of a class specified under a trial waiver order as a condition that the trial waiver must or may be subject to; or
(c)if the Commission considers it appropriate to do so.
(2)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, under subsection (1)(a) unless—
(a)the Commission serves on the person notice of its intention to do so; and
(b)the Commission, in the notice served under paragraph (a), specifies the action the person granted the trial waiver is required to take—
(i)to rectify the contravention of the trial waiver or the trial waiver condition; and
(ii)to prevent any future contravention of the trial waiver or the trial waiver condition; and
(c)the Commission has given the person an opportunity to make representations on the matter.
(3)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, under subsection (1)(b) or (c) unless—
(a)the Commission serves on the person notice of its intention to do so; and
(b)the Commission has given the person an opportunity to make representations on the matter; and
(c)the Commission is satisfied that the variation is necessary having regard to the objectives of the Commission under this Act and under the Essential Services Commission Act 2001.
(4)The Commission must not vary a trial waiver, or a condition to which the trial waiver is subject, so that the trial waiver or the conditions to which the trial waiver is subject are inconsistent with a condition or condition of a class specified under a trial waiver order as a condition or class of condition that the trial waiver must be subject to.
(5)In determining whether to vary a trial waiver, or a condition to which a trial waiver is subject, under subsection (1), the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to vary—
(i)a trial waiver; or
(ii)a condition to which a trial waiver is subject.
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to vary—
(i)a trial waiver; or
(ii)a condition to which a trial waiver is subject.
62Variation of trial waiver, or conditions of trial waiver, by agreement
The Commission may, by agreement with a person granted a trial waiver, vary the trial waiver or a condition to which the trial waiver is subject.
63Revocation of trial waiver
(1)The Commission may, in accordance with the trial project guidelines, revoke a trial waiver.
(2)In determining whether to revoke a trial waiver, the Commission—
(a)must have regard to any matter specified under a trial waiver order as a matter that the Commission must have regard to in determining whether to revoke a trial waiver; and
(b)may have regard to any matter that the Commission considers relevant, including any matter specified under the trial project guidelines as a matter that the Commission may have regard to in determining whether to revoke a trial waiver.
Subdivision 6—Trial project guidelines
64Preparation and issue of trial project guidelines
(1)The Commission must prepare and issue guidelines for the purposes of this Division within one month after the commencement of this section.
(2)Without limiting subsection (1), guidelines developed and issued under that subsection must specify the following—
(a)how an application under section 55 must be made, including the steps proponents under that section must take to identify confidential information submitted as part of an application;
(b)the approach that the Commission proposes to take in performing its functions and exercising its powers under section 55, including the timeline within which the Commission will aim to make a determination under section 55;
(c)the process the Commission proposes to follow when determining whether to refuse to consider a trial waiver application under section 55;
(d)the consultation process that the Commission must undertake under section 57;
(e)the process the Commission proposes to follow for the purpose of determining whether to grant an extension to the period of a trial waiver under section 60;
(f)the process the Commission proposes to follow for the purpose of determining whether to revoke a trial waiver under section 63;
(g)the steps persons granted trial waivers must take to identify confidential information submitted to the Commission as part of a trial project;
(h)any matter that a trial waiver order requires to be specified in the guidelines.
(3)In addition, without limiting subsection (1), guidelines developed and issued under that subsection may specify any other matter that the Commission considers necessary—
(a)to be had regard to for the purposes of section 55(3)(b) or (5), 60(3)(b), 61(5)(b) or 63(2)(b); or
(b)to facilitate trial projects.
65Amendment of trial project guidelines
The Commission may, in accordance with any procedure specified by the Commission, amend any trial project guidelines issued under section 64.
66Consideration of AER trial project guidelines
(1)In preparing and issuing trial project guidelines under section 64, or amending trial project guidelines under section 65, the Commission must have regard to the Trial Projects Guidelines (as defined in Chapter 10 of the National Electricity Rules).
(2)In this section—
National Electricity Rules has the same meaning as in the Electricity Industry Act 2000.
Subdivision 7—Information sharing with the AER
67Information disclosure
Subject to Part 4 of the Essential Services Commission Act 2001, the Commission may disclose to the AER any trial waiver information in the Commission's possession or control.
Note
Under section 61(3)(a) of the Essential Services Commission Act 2001, a person may disclose confidential or commercially-sensitive information obtained during the exercise of a power or the performance of a function under, or in connection with, that Act or relevant legislation if the disclosure or use is made in the exercise of a power or the performance of a function under, or in connection with, this Act or any relevant legislation. This Act is relevant legislation—see section 17.
Subdivision 8—Miscellaneous
68Register of trial waivers
(1)The Commission must establish and maintain a register of trial waivers (the register).
(2)The Commission must enter the following details in the register in respect of every trial waiver—
(a)the name of the person granted the trial waiver;
(b)a description of the activity that will be undertaken under the trial waiver;
(c)the date of expiry of the trial waiver;
(d)information about where a copy of a trial waiver may be accessed.
(3)The Commission may maintain the register in any form or manner it considers appropriate.
(4)The Commission must make the register publicly available, free of charge, from the Commission's internet site.
69Trial waiver not personal property
For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a trial waiver is declared not to be personal property.".
Part 5—Amendment of National Electricity (Victoria) Act 2005
16Definitions
In section 3(1) of the National Electricity (Victoria) Act 2005 insert the following definition—
"stand-alone power system has the same meaning as in section 6B(6) of the National Electricity (Victoria) Law;".
17Regulations
(1)In section 12A(2) of the National Electricity (Victoria) Act 2005—
(a)in paragraph (g), for "paragraph (e)." substitute "paragraph (e);";
(b)after paragraph (g) insert—
"(h)providing that the following form part of the national electricity system (a regulated stand-alone power system)—
(i)a particular stand-alone power system, which consists of a distribution system owned, controlled or operated, or proposed to be owned, controlled or operated, by a regulated distribution system operator;
(ii)a stand-alone power system, which consists of a distribution system owned, controlled or operated, or proposed to be owned, controlled or operated, by a regulated distribution system operator, that belongs to a particular class of stand-alone power systems.".
(2)After section 12A(2) of the National Electricity (Victoria) Act 2005 insert—
"(2A)Without limiting subsection (2)(h), regulations made under this section may provide that a particular stand-alone power system, or a class of stand-alone power systems, forms part of the national electricity system by reference to—
(a)the particular geographic area in which the stand-alone power system, or class of stand-alone power systems, is or will be located; or
(b)the regulated distribution system operator that owns, controls or operates, or proposes to own, control or operate, the stand-alone power system or class of stand-alone power systems; or
(c)whether the stand-alone power system, or class of stand-alone power systems, complies with any requirements specified by the Rules.".
(3)In section 12A(3) of the National Electricity (Victoria) Act 2005—
(a)in paragraph (d) and (e), after "Minister" insert ", the ESC";
(b)after paragraph (e) insert—
"(ea)direct the ESC to make amendments to any instrument made by the ESC to give effect to any matter specified in the regulations;
(eb)modify the application of a specified provision of the National Electricity (Victoria) Law or the Rules for and with respect to a regulated stand-alone power system or a class of regulated stand-alone power systems;".
18New sections 16ZDA and 16ZDB inserted
After section 16ZD of the National Electricity (Victoria) Act 2005 insert—
"16ZDA Court order in relation to contraventions of enforceable provisions
(1)If, on an application by the Minister, the Supreme Court is satisfied that a person—
(a)has contravened, or is proposing to contravene, an enforceable provision; or
(b)has been in any way, directly or indirectly, knowingly concerned in, or party to, a contravention or proposed contravention of an enforceable provision; or
(c)has aided, abetted, counselled or procured such a contravention; or
(d)has induced, whether by threats or promises or otherwise, such a contravention; or
(e)has been in any way, directly or indirectly, knowingly concerned in, or party to such a contravention; or
(f)has conspired with others to effect such a contravention—
the Court may make an order restraining a person from engaging in specified conduct or requiring a person to take any specific action, in such terms as the Court determines is appropriate.
(2)If an application for an order under subsection (1) has been made, the Court may, if the Court determines it to be appropriate, make an order by consent of all the parties to the proceeding, whether or not the Court is satisfied that a person has contravened, or is proposing to contravene, the enforceable provision.
(3)If in the opinion of the Court it is desirable to do so, the Court may make an interim order pending determination of an application under subsection (1).
(4)The Court may rescind or vary an order or interim order made under this section.
(5)The power of the Court to grant an order restraining a person from engaging in conduct contravening an enforceable provision may be exercised—
(a)whether or not it appears to the Court that the person intends to contravene again, or to continue to contravene the enforceable provision; and
(b)whether or not the person has previously contravened the enforceable provision; and
(c)whether or not there is an imminent danger of substantial damage to any other person or to property if the person contravenes the enforceable provision.
(6)In this section—
enforceable provision means—
(a)a provision of the Law applying as a law of Victoria, or a provision of the Rules having the force of law in Victoria, as modified under an Order under section 16Y which—
(i)imposes an obligation, duty or requirement on a person to do a thing specified in the provision, as modified; or
(ii)prohibits a person from doing a thing specified in the provision, as modified; or
(b)a provision of an Order under section 16Y which—
(i)imposes an obligation, duty or requirement on a person to do a thing specified in the provision; or
(ii)prohibits a person from doing a thing specified in the provision.
16ZDBUndertakings as to damages and costs
If, in an application under section 16ZDA, the Supreme Court determines to grant an order restraining a person from engaging in specified conduct, the Court must not, as a condition of granting the order, require the Minister to give any undertaking as to damages or costs.".
19Schedule 4 modifications
(1)In clause 1.1(b) of Schedule 4 to the National Electricity (Victoria) Act 2005 omit the following words and expressions—
"civil penalty means—
(a)in the case of a breach of a civil penalty provision (other than a rebidding civil penalty provision) by—
(i)a natural person—
(A)an amount not exceeding $20 000; and
(B)an amount not exceeding $2 000 for every day during which the breach continues; or
(ii)a body corporate—
(A)an amount not exceeding $100 000; and
(B)an amount not exceeding $10 000 for every day during which the breach continues; or
(b)in the case of a breach of a rebidding civil penalty provision by any person—
(i)an amount not exceeding $1 000 000; and
(ii)an amount not exceeding $50 000 for every day during which the breach continues;".
(2)In clause 1.1(b) of Schedule 4 to the National Electricity (Victoria) Act 2005 omit the following words and expressions—
"rebidding civil penalty provision means a provision of the Rules that is prescribed by the Regulations to be a rebidding civil penalty provision;".
(3)For clause 2 of Schedule 4 to the National Electricity (Victoria) Act 2005 substitute—
'2 Section 2A substituted and new section 2AA inserted
2.1The NEL applies as a law of Victoria as if for section 2A there were substituted—
"2A—Meaning of access dispute
An access dispute is—
(a)a dispute between a network service user (or prospective network service user) and a network service provider about an aspect of access to an electricity network service specified by the Rules to be an aspect to which Part 10 applies; or
(b)without limiting paragraph (a)—a dispute between a retail customer (or other person specified by the Rules) and a regulated distribution system operator about an aspect of access to a connection service specified by the Rules to be an aspect to which Part 10 applies.
2AA—Meaning of civil penalty provision and conduct provision
(1)A civil penalty provision is—
(a)a provision of this Law specified in the Table at the foot of this subsection; or
(ba)a reliability obligation civil penalty provision; or
(c)a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a civil penalty provision.
Table
Provision Section heading Section 11(1), (2), (3) and (4) Electricity market activities in this jurisdiction Section 14A Regulated transmission system operator must comply with transmission determination Section 14B Regulated distribution system operator must comply with distribution determination Section 14P(1) and (3) Obligation to report net contract position Section 18ZC(1) and (2) Obligation of regulated entities to keep records Section 18ZD Obligation of regulated entities to provide information and data about compliance Section 18ZF(1) and (3) Compliance audits by regulated entities Section 28N Compliance with regulatory information notice that is served Section 28O Compliance with general regulatory information order Section 50D(1) Network agreement Section 50F(1), (4) and (5) Augmentation Section 53C(3) and (4) Compliance with market information instrument Section 136 Compliance with access determination Section 157(1) Preventing or hindering access (1a)A reliability obligation civil penalty provision is section 14R(2).
(2)A conduct provision is a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a conduct provision.".'.
(4)In clause 22.1 of Schedule 4 to the National Electricity (Victoria) Act 2005—
(a)for "is in breach of" substitute "has breached";
(b)for "is in breach of" substitute "has breached";
(c)for "to be in breach of" substitute "has breached";
(d)for "the person in breach" (wherever occurring) substitute "the person".
(5)In clause 32.1 of Schedule 4 to the National Electricity (Victoria) Act 2005, for "in their capacity as officer or employee of the corporation" substitute ", which is within the scope of the actual or apparent authority of the officer or employee,".
Part 6—Amendment of National Gas (Victoria) Act 2008
20New section 9B inserted
After section 9A of the National Gas (Victoria) Act 2008 insert—
"9B Modified meaning of natural gas
(1)The Minister may declare either of the following to be natural gas for the purposes of the National Gas (Victoria) Law and the National Gas Rules—
(a)a substance consisting of a mixture of natural gas and another gas;
Example
Hydrogen may be another gas.
(b)a gas other than natural gas.
Example
Hydrogen.
(2)Before making a declaration under subsection (1), the Minister must consult with—
(a)the Premier; and
(b)the Treasurer; and
(c)Energy Safe Victoria; and
(d)AEMO.
(3)A declaration under subsection (1) must be published—
(a)in the Government Gazette; and
(b)on the Department's internet site.
(4)A declaration under subsection (1) takes effect—
(a)on the day it is published in the Government Gazette; or
(b)if a later day is specified in the declaration, on that day.
(5)On and after the day on which a declaration under subsection (1) takes effect—
(a)the National Gas (Victoria) Law applies as a law of Victoria subject to the declaration; and
(b)the National Gas Rules have the force of law in Victoria subject to the declaration.".
Part 7—Amendment of Victorian Energy Efficiency Target Act 2007
21VEET scheme target
In section 30(f) of the Victorian Energy Efficiency Target Act 2007, for "not later than 31 May 2020" substitute "before that year".
22Greenhouse gas reduction rates
(1)In section 32(1A) of the Victorian Energy Efficiency Target Act 2007, after "year" (where secondly occurring) insert "(if any)".
(2)In section 32(2) of the Victorian Energy Efficiency Target Act 2007, for "for 2009 must be made on or before 31 May 2009 and for each subsequent year must be made on or before 31 May in that subsequent year" substitute "in respect of a year must be made and take effect before that year".
Part 8—Repeal of this Act
23Repeal of this Act
This Act is repealed on 1 June 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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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 9 June 2021
Legislative Council: 24 June 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Electricity Industry Act 2000, the Essential Services Commission Act 2001, the Gas Industry Act 2001, the National Electricity (Victoria) Act 2005, the National Gas (Victoria) Act 2008 and the Victorian Energy Efficiency Target Act 2007 and for other purposes."
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