Energy Legislation Amendment (Licence Conditions) Act 2020 (Vic)
Energy Legislation Amendment (Licence Conditions) Act 2020
No. 37 of 2020
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Electricity Industry Act 2000
3Definitions
4Provisions relating to licences
5Specific licence conditions
6Variation or revocation of licence
7New sections 33AB to 33AJ inserted
8Terms and conditions of contracts for sale of electricity to certain customers
9Deemed distribution contracts
10Content of financial hardship policies
11Commission approval
Part 3—Amendment of Gas Industry Act 2001
12Definitions
13Provisions relating to licences
14Variation or revocation of licence
15New sections 40A to 40I inserted
16Terms and conditions of contracts for sale of gas to certain customers
17Deemed distribution contracts
18Content of financial hardship policies
19Commission approval
Part 4—Amendment of National Electricity (Victoria) Act 2005
20New section 16SA inserted
Part 5—Repeal of this Act
21Repeal of this Act
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Endnotes
1 General information
Energy Legislation Amendment (Licence Conditions) Act 2020
No. 37 of 2020
[Assented to 1 December 2020]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Electricity Industry Act 2000 and the Gas Industry Act 2001 to enable the Minister to impose conditions on licences issued under those Acts; and
(b)to make consequential amendments to the National Electricity (Victoria) Act 2005.
2Commencement
This Act comes into operation on the day after the day on which it receives the Royal Assent.
Part 2—Amendment of Electricity Industry Act 2000
3Definitions
In section 3 of the Electricity Industry Act 2000 insert the following definitions—
"affected licensee means—
(a)a licensee whose licence in relation to which the Minister proposes to make an Order under section 33AB(1) specifying a condition to which the licence is to be subject; or
(b)a licensee whose licence is subject to a Ministerial licence condition which the Minister proposes to vary or revoke under an Order under section 33AB(1);
deemed Ministerial licence condition means a Ministerial licence condition to which section 33AI(1) or (2) applies;
Ministerial licence condition—
(a)means a condition specified under an Order under section 33AB(1) to which a licence, or a specified class of licence, is to be subject; and
(b)includes a condition referred to in paragraph (a) as varied under an Order under section 33AB(1);
negotiated connection contract has the meaning given by clause 5A.C.1 of the National Electricity Rules;".
4Provisions relating to licences
In section 20(2) of the Electricity Industry Act 2000, at the foot of the subsection insert—
"Note
A licence is also subject to conditions deemed under this Act to be licence conditions of the licence or to which the licence is subject, including conditions specified by the Minister by Order under section 33AB(1).".
5Specific licence conditions
After section 21(u) of the Electricity Industry Act 2000 insert—
"(v)specifying requirements relating to the connection of supply of electricity to premises, including timeframes for the completion of—
(i)connections or classes of connections of the supply of electricity under negotiated connection contracts—
(A)to premises or classes of premises; or
(B)to premises or classes of premises occupied, or to be occupied, by specified customers or classes of specified customers; and
(ii)specified steps for the completion of connections or classes of connections referred to in subparagraph (i) under negotiated connection contracts;
(w)specifying requirements relating to timeframes for the completion of connections of supply of electricity to premises, including timeframes referred to in paragraph (v).".
6Variation or revocation of licence
(1)In section 29(1) of the Electricity Industry Act 2000—
(a)before "licence conditions" (where first occurring) insert "Commission";
(b)in paragraph (a), before "licence conditions" insert "Commission".
(2)In section 29(1A) of the Electricity Industry Act 2000, for "conditions" substitute "Commission licence conditions".
(3)In section 29(2) of the Electricity Industry Act 2000, before "licence conditions" insert "Commission".
(4)After section 29(2) of the Electricity Industry Act 2000 insert—
"(2A)The Commission may vary a licence or a Commission licence condition so that the licence or condition is not inconsistent with a deemed Ministerial licence condition to which the licence is subject.
(2B)Subsections (1) and (2) do not apply to a variation of a licence or Commission licence condition under subsection (2A).".
(5)In section 29(3) of the Electricity Industry Act 2000, for "the licence conditions" substitute "Commission licence conditions".
(6)After section 29(5) of the Electricity Industry Act 2000 insert—
"(6)In this section—
Commission licence condition means a condition which has been decided by the Commission under section 20 as a condition to which a licence is subject.".
7New sections 33AB to 33AJ inserted
After section 33A of the Electricity Industry Act 2000 insert—
"33AB Ministerial licence conditions
(1)Despite anything to the contrary in this Division but subject to sections 33AC to 33AG, the Minister, by Order published in the Government Gazette, may do any one or more of the following—
(a)specify, as the Minister thinks fit, a condition to which a particular licence, or a specified class of licence, is to be subject;
(b)vary, as the Minister thinks fit, a condition specified under paragraph (a);
(c)revoke, as the Minister thinks fit, a condition specified under paragraph (a), including a condition that has been varied under paragraph (b).
(2)In making an Order under subsection (1), the Minister—
(a)must have regard to—
(i)any significant costs and benefits for an affected licensee or any other person that the Minister considers are likely to arise out of the making of the Order; and
(ii)any written representations made to the Minister by an affected licensee in accordance with a notice given to the affected licensee under section 33AE; and
(b)may have regard to any other matter that the Minister considers relevant.
33ACContents of Ministerial licence conditions
(1)Without limiting section 33AB(1), a Ministerial licence condition may include provisions in relation to any of the following—
(a)specifying requirements relating to the connection of supply of electricity to premises, including timeframes for the completion of—
(i)connections or classes of connections under negotiated connection contracts of the supply of electricity—
(A)to premises or classes of premises; or
(B)to premises or classes of premises occupied, or to be occupied, by specified customers or classes of specified customers; and
(ii)specified steps for the completion of connections or classes of connections referred to in subparagraph (i) under negotiated connection contracts;
(b)specifying requirements relating to timeframes for the completion of connections of supply of electricity to premises, including timeframes referred to in paragraph (a);
(c)a matter for which a licence condition may include provisions under section 21 (except section 21(a), (r) and (s)) (the applied provisions).
(2)For the purposes of subsection (1)(c), a reference in the applied provisions to the Commission is to be read as a reference to the Commission or the Minister.
(3)In addition, a Ministerial licence condition may—
(a)be of general or limited application;
(b)differ according to differences in time, place and circumstances;
(c)apply, adopt or incorporate wholly or partially or as amended by the Ministerial licence condition, the provisions of any document, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—
(i)as formulated, issued, prescribed or published at the time the Ministerial licence condition takes effect or at any time before the Ministerial licence condition takes effect; or
(ii)as amended from time to time;
(d)confer powers and functions on, and leave any matter to be decided by, the Commission.
33ADConsultation with Ministers
Before making an Order under section 33AB(1), the Minister must consult—
(a)the Premier; and
(b)the Treasurer; and
(c)the Minister administering the Essential Services Commission Act 2001, if the Minister is not the Premier or Treasurer.
33AEConsultation with affected licensees in certain cases
(1)Before making an Order pursuant to section 33AB(1)(a) or (b), the Minister must give an affected licensee notice of the Minister's intention to make the Order.
(2)For the purposes of subsection (1), a notice under that subsection must, as the case requires—
(a)set out the condition which is proposed to be specified under the Order as the condition to which the licence held by the affected licensee is to be subject; or
(b)set out the variation proposed under the Order to the Ministerial licence condition to which the licence held by the affected licensee is subject.
(3)In addition, a notice under subsection (1) must state that the affected licensee may make written representations on the matter within—
(a)the period specified in the notice (which must not be less than 14 days after the affected licensee is given notice in accordance with this section); or
(b)any other period that the Minister and the affected licensee agree on.
(4)For the purposes of this section, notice is to be given to an affected licensee as follows—
(a)by notice published in the Government Gazette or in writing to the affected licensee, if the Minister is proposing to make an Order under section 33AB(1) that—
(i)specifies a condition to which a specified class of licence is to be subject and the affected licensee is a holder of a licence of that class; or
(ii)varies a Ministerial licence condition to which a specified class of licence is subject and the affected licensee is a holder of a licence of that class;
(b)in writing to the affected licensee, if the Minister is proposing to make an Order under section 33AB(1) that—
(i)specifies a condition to which only the licence held by the affected licensee is to be subject; or
(ii)varies a Ministerial licence condition to which only the licence held by the affected licensee is subject.
33AFNotification of the Commission
The Minister must give the Commission a copy of a notice under section 33AE as soon as practicable after the notice is given to an affected licensee under that section.
33AGNo consultation for proposed Order in certain cases
Sections 33AD and 33AE do not apply if the Order that the Minister proposes under section 33AB(1) is an Order—
(a)to vary a Ministerial licence condition to correct a clerical mistake or an error arising from an accidental slip or omission; or
(b)to revoke a Ministerial licence condition.
33AHMinister to notify Commission of making of Order under section 33AB(1)
The Minister, as soon as practicable after making an Order under section 33AB(1), must notify the Commission of the making of the Order.
33AILicences are taken to be subject to Ministerial licence conditions
(1)A licence is taken to be subject to an applicable Ministerial licence condition on—
(a)the day on which the Order under which the applicable Ministerial licence condition is specified (the applicable Order) is published in the Government Gazette; or
(b)if the applicable Order specifies a day after the day on which the applicable Order is published in the Government Gazette as the day on which the licence is to be subject to the condition—that day.
(2)A licence is taken to be subject to an applicable Ministerial licence condition as varied under an Order under section 33AB(1) on—
(a)the day on which the Order under which the applicable Ministerial licence condition is varied (the applicable Order) is published in the Government Gazette; or
(b)if the applicable Order specifies a day after the day on which the Order is published in the Government Gazette as the day on which the applicable Ministerial licence condition is varied—that day.
33AJInconsistency between Ministerial licence conditions and Commission licence conditions
A condition decided by the Commission under section 20 as a condition to which a licence is subject, or a provision of an instrument made by the Commission that applies to a licensee under a condition to which the licensee's licence is subject, is of no effect to the extent that the condition or instrument is inconsistent with a deemed Ministerial licence condition.".
8Terms and conditions of contracts for sale of electricity to certain customers
(1)In section 36(1) of the Electricity Industry Act 2000, for "A" substitute "Subject to subsection (1B), a".
(2)After section 36(1A) of the Electricity Industry Act 2000 insert—
"(1B)If a term or condition referred to in subsection (1)(a) or (b) is inconsistent with a deemed Ministerial licence condition to which the licence held by the licensee is subject, the term or condition is of no effect to the extent of the inconsistency.".
9Deemed distribution contracts
(1)For section 40A(3) of the Electricity Industry Act 2000 substitute—
"(3)Subject to subsection (3A), unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with the Electricity Distribution Code.
(3AA)If the Electricity Distribution Code is inconsistent with a deemed Ministerial licence condition to which the licence held by the distribution company is subject, the Code is of no effect to the extent of the inconsistency, and unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with that deemed Ministerial licence condition.".
(2)For section 40A(11) of the Electricity Industry Act 2000 substitute—
'(11)In this section—
Electricity Distribution Code means the Code called the "Electricity Distribution Code", published by the Commission in April 2020, as amended or remade from time to time;
retail customer, in relation to a distribution company, means a customer of a retailer to which the distribution company distributes or supplies electricity.'.
10Content of financial hardship policies
In section 43C of the Electricity Industry Act 2000—
(a)in paragraph (d), for "difficulties." substitute "difficulties; and";
(b)after paragraph (d) insert—
"(e)any matter that a deemed Ministerial licence condition to which the licence held by the licensee is subject requires to be included in the policy or amended financial hardship policy, as the case requires.".
11Commission approval
(1)In section 45(1) of the Electricity Industry Act 2000, for "The" substitute "Subject to this section, the".
(2)After section 45(3) of the Electricity Industry Act 2000 insert—
"(4)In addition, the Commission must not approve a policy submitted by a licensee in accordance with section 43(1), or an amended financial hardship policy submitted by a licensee in accordance with section 43A(3)(b) or 43B, if that policy or amended policy is inconsistent with a deemed Ministerial licence condition to which the licence held by the licensee is subject.".
Part 3—Amendment of Gas Industry Act 2001
12Definitions
In section 3 of the Gas Industry Act 2001 insert the following definitions—
"affected licensee means—
(a)a licensee whose licence in relation to which the Minister proposes to make an Order under section 40A(1) specifying a condition to which the licence is to be subject; or
(b)a licensee whose licence is subject to a Ministerial licence condition which the Minister proposes to vary or revoke under an Order under section 40A(1);
deemed Ministerial licence condition means a Ministerial licence condition to which section 40H(1) or (2) applies;
Ministerial licence condition—
(a)means a condition specified under an Order under section 40A(1) to which a licence, or a specified class of licence, is to be subject; and
(b)includes a condition referred to in paragraph (a) as varied under an Order under section 40A(1);".
13Provisions relating to licences
In section 28(2) of the Gas Industry Act 2001, at the foot of the subsection insert—
"Note
A licence is also subject to conditions deemed under this Act to be licence conditions of the licence or to which the licence is subject, including conditions specified by the Minister by Order under section 40A(1).".
14Variation or revocation of licence
(1)In section 38(1) of the Gas Industry Act 2001—
(a)before "licence conditions" (where first occurring) insert "Commission";
(b)in paragraph (a), before "licence conditions" insert "Commission".
(2)In section 38(2) of the Gas Industry Act 2001, before "licence conditions" insert "Commission".
(3)After section 38(2) of the Gas Industry Act 2001 insert—
"(2A)The Commission may vary a licence or a Commission licence condition so that the licence or condition is not inconsistent with a deemed Ministerial licence condition to which the licence is subject.
(2B)Subsections (1) and (2) do not apply to a variation of a licence or Commission licence condition under subsection (2A).".
(4)In section 38(3) of the Gas Industry Act 2001, for "the licence conditions" substitute "Commission licence conditions".
(5)After section 38(5) of the Gas Industry Act 2001 insert—
"(6)In this section—
Commission licence condition means a condition which has been decided by the Commission under section 28 as a condition to which a licence is subject.".
15New sections 40A to 40I inserted
After section 40 of the Gas Industry Act 2001 insert—
"40A Ministerial licence conditions
(1)Despite anything to the contrary in this Division but subject to sections 40B to 40F, the Minister, by Order published in the Government Gazette, may do any one or more of the following—
(a)specify, as the Minister thinks fit, a condition to which a particular licence, or a specified class of licence, is to be subject;
(b)vary, as the Minister thinks fit, a condition specified under paragraph (a);
(c)revoke, as the Minister thinks fit, a condition specified under paragraph (a), including a condition that has been varied under paragraph (b).
(2)In making an Order under subsection (1), the Minister—
(a)must have regard to—
(i)any significant costs and benefits for an affected licensee or any other person that the Minister considers are likely to arise out of the making of the Order; and
(ii)any written representations made to the Minister by an affected licensee in accordance with a notice given to the affected licensee under section 40D; and
(b)may have regard to any other matter that the Minister considers relevant.
40BContents of Ministerial licence conditions
(1)Without limiting section 40A(1), a Ministerial licence condition may include provisions in relation to any matter for which a licence condition may include provisions under section 29 (except section 29(a), (o) and (p)) (the applied provisions).
(2)For the purposes of subsection (1), a reference in the applied provisions to the Commission is to be read as a reference to the Commission or the Minister.
(3)In addition, a Ministerial licence condition may—
(a)be of general or limited application;
(b)differ according to differences in time, place and circumstances;
(c)apply, adopt or incorporate wholly or partially or as amended by the Ministerial licence condition, the provisions of any document, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—
(i)as formulated, issued, prescribed or published at the time the Ministerial licence condition takes effect or at any time before the Ministerial licence condition takes effect; or
(ii)as amended from time to time;
(d)confer powers and functions on, and leave any matter to be decided by, the Commission.
40CConsultation with Ministers
Before making an Order under section 40A(1), the Minister must consult—
(a)the Premier; and
(b)the Treasurer; and
(c)the Minister administering the Essential Services Commission Act 2001, if the Minister is not the Premier or Treasurer.
40DConsultation with affected licensees in certain cases
(1)Before making an Order pursuant to section 40A(1)(a) or (b), the Minister must give an affected licensee notice of the Minister's intention to make the Order.
(2)For the purposes of subsection (1), a notice under that subsection must, as the case requires—
(a)set out the condition which is proposed to be specified under the Order as the condition to which the licence held by the affected licensee is to be subject; or
(b)set out the variation proposed under the Order to the Ministerial licence condition to which the licence held by the affected licensee is subject.
(3)In addition, a notice under subsection (1) must state that the affected licensee may make written representations on the matter within—
(a)the period specified in the notice (which must not be less than 14 days after the affected licensee is given notice in accordance with this section); or
(b)any other period that the Minister and the affected licensee agree on.
(4)For the purposes of this section, notice is to be given to an affected licensee as follows—
(a)by notice published in the Government Gazette or in writing to the affected licensee, if the Minister is proposing to make an Order under section 40A(1) that—
(i)specifies a condition to which a specified class of licence is to be subject and the affected licensee is a holder of a licence of that class; or
(ii)varies a Ministerial licence condition to which a specified class of licence is subject and the affected licensee is a holder of a licence of that class;
(b)in writing to the affected licensee, if the Minister is proposing to make an Order under section 40A(1) that—
(i)specifies a condition to which only the licence held by the affected licensee is to be subject; or
(ii)varies a Ministerial licence condition to which only the licence held by the affected licensee is subject.
40ENotification of the Commission
The Minister must give the Commission a copy of a notice under section 40D as soon as practicable after the notice is given to an affected licensee under that section.
40FNo consultation for proposed Order in certain cases
Sections 40C and 40D do not apply if the Order that the Minister proposes under section 40A(1) is an Order—
(a)to vary a Ministerial licence condition to correct a clerical mistake or an error arising from an accidental slip or omission; or
(b)to revoke a Ministerial licence condition.
40GMinister to notify Commission of making of Order under section 40A(1)
The Minister, as soon as practicable after making an Order under section 40A(1), must notify the Commission of the making of the Order.
40HLicences are taken to be subject to Ministerial licence conditions
(1)A licence is taken to be subject to an applicable Ministerial licence condition on—
(a)the day on which the Order under which the applicable Ministerial licence condition is specified (the applicable Order) is published in the Government Gazette; or
(b)if the applicable Order specifies a day after the day on which the applicable Order is published in the Government Gazette as the day on which the licence is to be subject to the condition—that day.
(2)A licence is taken to be subject to an applicable Ministerial licence condition as varied under an Order under section 40A(1) on—
(a)the day on which the Order under which the applicable Ministerial licence condition is varied (the applicable Order) is published in the Government Gazette; or
(b)if the applicable Order specifies a day after the day on which the Order is published in the Government Gazette as the day on which the applicable Ministerial licence condition is varied—that day.
40IInconsistency between Ministerial licence conditions and Commission licence conditions
A condition decided by the Commission under section 28 as a condition to which a licence is subject, or a provision of an instrument made by the Commission that applies to a licensee under a condition to which the licensee's licence is subject, is of no effect to the extent that the condition or instrument is inconsistent with a deemed Ministerial licence condition.".
16Terms and conditions of contracts for sale of gas to certain customers
(1)In section 43(1) of the Gas Industry Act 2001, for "A" substitute "Subject to subsection (1B), a".
(2)After section 43(1A) of the Gas Industry Act 2001 insert—
"(1B)If a term or condition referred to in subsection (1)(a) or (b) is inconsistent with a deemed Ministerial licence condition to which the licence held by the licensee is subject, the term or condition is of no effect to the extent of the inconsistency.".
17Deemed distribution contracts
(1)For section 48(3) of the Gas Industry Act 2001 substitute—
"(3)Subject to subsection (3A), unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with the Gas Distribution System Code.
(3A)If the Gas Distribution System Code is inconsistent with a deemed Ministerial licence condition to which the licence held by the distribution company is subject, the Code is of no effect to the extent of the inconsistency, and unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with that deemed Ministerial licence condition.".
(2)For section 48(12) of the Gas Industry Act 2001 substitute—
'(12)In this section—
Gas Distribution System Code means the Code called the "Gas Distribution System Code", published by the Commission, effective 2 January 2020, as amended or remade from time to time;
retail customer, in relation to a gas distribution company, means a customer of a retailer to which the gas distribution company distributes or supplies gas.'.
18Content of financial hardship policies
In section 48GC of the Gas Industry Act 2001—
(a)in paragraph (d), for "difficulties." substitute "difficulties; and";
(b)after paragraph (d) insert—
"(e)any matter that a deemed Ministerial licence condition to which the licence held by the licensee is subject requires to be included in the policy or amended financial hardship policy, as the case requires.".
19Commission approval
(1)In section 48I(1) of the Gas Industry Act 2001, for "The" substitute "Subject to this section, the".
(2)After section 48I(3) of the Gas Industry Act 2001 insert—
"(4)In addition, the Commission must not approve a policy submitted by a licensee in accordance with section 48G(1), or an amended financial hardship policy submitted by a licensee in accordance with section 48GA(3)(b) or 48GB, if that policy or amended policy is inconsistent with a deemed Ministerial licence condition to which the licence held by the licensee is subject.".
Part 4—Amendment of National Electricity (Victoria) Act 2005
20New section 16SA inserted
After section 16S of the National Electricity (Victoria) Act 2005 insert—
'16SA Modification relating to negotiated connection offers
Despite sections 6 and 16R, the National Electricity Rules have the force of law in Victoria as if—
(a)after clause 5A.F.4(d) there were inserted—
"(d1)A negotiated connection offer must not be inconsistent with any condition to which a distribution licence held by the Distribution Network Service Provider is subject.";
(b)after clause 5A.F.4(e) there were inserted—
"(f)In this clause—
distribution licence means a licence to distribute or supply electricity issued under the Electricity Industry Act 2000.".'.
Part 5—Repeal of this Act
21Repeal of this Act
This Act is repealed on the first anniversary of its commencement.
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: 28 October 2020
Legislative Council: 12 November 2020
The long title for the Bill for this Act was "A Bill for an Act to amend the Electricity Industry Act 2000 and the Gas Industry Act 2001 to enable the Minister to impose conditions on licences issued under those Acts and to make consequential amendments to the National Electricity (Victoria) Act 2005 and for other purposes."
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