Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021 (Vic)

Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021

No. 41 of 2021

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Information gathering and inspection powers

4Definitions

5Part 4 substituted and new Parts 4A, 4B and 4C inserted

Part 3—Civil penalties and other enforcement actions

6Definitions

7Section 10AA substituted

8Heading to Part 7 substituted

9Divisions 1 and 2 of Part 7 substituted, new Divisions 3 to 8 of Part 7 inserted and new Part 7A inserted

Part 4—Other amendments to the Principal Act and transitional provisions

Division 1—Other amendments to the Principal Act

10Interpretation and application of Act

11Functions of the Commission

12Commission's functions in relation to particular Basin water charges

13Commission's functions in relation to renewable energy

14Commission's functions in relation to energy efficiency

15Tenure of office of Chairperson

16New section 23A inserted

17Section 26 substituted

18Meetings of the Commission

19New section 31A inserted

20Price regulation

21Reports

22Power to make Codes of Practice

23Section 49 substituted

24Section 50 substituted

25Section 51 repealed

26Heading to Division 3 of Part 7 substituted

27VCAT Review

28Proceedings for review by VCAT

29Heading to Division 4 of Part 7 substituted

30New Division heading inserted

31New sections 60A and 60B inserted and Division 2 of Part 7C inserted

32Disclosure of information an offence

33New sections 61A and 61B inserted and heading to Division 3 of Part 7C inserted

34Proceedings

35New sections 62A to 62C inserted

36Section 64 substituted

37Regulations

38Review

Division 2—Transitional provisions

39New sections 70 to 80 inserted

Part 5—Amendment of Electricity Industry Act 2000

40Definitions

41Regulation of tariffs for prescribed customers

42Prohibition

43Section 22 substituted

44Condition to give information to Commission

45Condition relating to advertising of enforcement action taken against licensee

46Offer to domestic or small business customers (licensee standing offers)

47Terms and conditions of contracts for sale of electricity to certain customers

48Deemed distribution contracts

49Regulation of exit fees

50Regulation of pre-payment meters

51Powers as to works etc.

52New Part 6A inserted

53Regulations

54New section 122 inserted

Part 6—Amendment of Gas Industry Act 2001

55Definitions

56Wimmera and Colac Tariff Order

57Regulation of tariffs for prescribed customers

58Offence to distribute or retail gas without a licence

59Section 30 substituted

60Condition to give information to Commission

61Condition relating to advertising of enforcement action taken against licensee

62Offer to domestic or small business customers (licensee standing officers)

63Terms and conditions of contracts for sale of gas to certain customers

64Deemed distribution contracts

65Regulation of exit fees

66Regulation of pre-payment meters

67Making of easements in subdivisions

68Powers as to works etc.

69Power to open and break up roads etc.

70New Part 9A inserted

71Regulations

72New Part 12 inserted

Part 7—Amendment of Victorian Energy Efficiency Target Act 2007

73Definitions

74Civil penalty for shortfall

75Application for declaration and order for payment of shortfall penalty

76Fees

77New Division 10 inserted in Part 8

Part 8—Amendment of Victorian Renewable Energy Act 2006

78Definitions

79Civil penalty for shortfall

80Application for declaration and order for payment of shortfall penalty

81Fees

Part 9—Amendment of Water Industry Act 1994

82Parts 1A and 1B to prevail

83Definitions

84Water Industry Regulatory Order

85Section 4F amended

86Costs of Commission under this Part

87Statement of Obligations

88New section 187A inserted

Part 10—Amendment of Energy Legislation Amendment Act 2021

89Section 6 amended—proposed Division 9 of Part 2 of the Electricity Industry Act 2000

90Section 7 amended

91Sections 8 to 12 repealed

92Section 15 amended—proposed Division 7 of Part 3 of the Gas Industry Act 2001

Part 11—Amendment of Energy Legislation Amendment (Energy Fairness) Act 2021

93Section 5 amended—proposed section 40EB

94Section 9 amended—proposed section 40SA

95Section 9 amended—proposed section 40SE

96Section 9 amended—proposed section 40SG

97Section 9 amended—proposed section 40SH

98Section 9 amended—proposed section 40SI

99Section 9 amended—proposed section 40SJ

100Section 9 amended—proposed section 40SK

101Section 9 amended—proposed section 40ST

102Section 9 amended—proposed section 40SU

103Section 9 amended—proposed section 40SV

104New section 10A inserted

105Division 5 of Part 2 repealed

106Section 19 amendment—proposed section 48DB

107Section 23 amended—proposed section 48DC

108Section 23 amended—proposed section 48DG

109Section 23 amended—proposed section 48DI

110Section 23 amended—proposed section 48DJ

111Section 23 amended—proposed section 48DK

112Section 23 amended—proposed section 48DL

113Section 23 amended—proposed section 48DM

114Section 23 amended—proposed section 48DV

115Section 23 amended—proposed section 48DW

116Section 23 amended—proposed section 48DX

117New section 24A inserted

118Division 5 of Part 3 repealed

119Sections 32 to 36 substituted

Part 12—Consequential and minor amendments of other Acts

Division 1—Amendment of Accident Towing Services Act 2007

120Recommendations

Division 2—Amendment of Commercial Passenger Vehicle Industry Act 2017

121Application of Essential Services Commission Act 2001

122Application of Essential Services Commission Act 2001

Division 3—Amendment of Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016

123Application for certification

124Decision on certification by Commission

125Inquiries for the purposes of decisions on certification

Division 4—Amendment of Grain Handling and Storage Act 1995

126Financial records

127Conduct of inquiries

128Procedures and powers of the Commission

Division 5—Amendment of National Electricity (Victoria) Act 2005

129Enforcement of Victorian distribution pricing determination and distribution licences by AER

130ESC cannot enforce Victorian pricing determination or certain distribution licence conditions

131Appeals against certain decisions or actions of the AER

Division 6—Amendment of National Gas (Victoria) Act 2008

132Enforcement by AER of certain provisions of Victorian distribution licences

133ESC cannot enforce certain gas distribution licence conditions that the AER can enforce

134Appeals against certain decisions or actions of the AER

Division 7—Amendment of Port Management Act 1995

135Commission may conduct inquiry into relevant service prices

136Financial and business records

137Restriction on disclosure of confidential information

138Regulations

Part 13—Repeal of this Act

139Repeal of this Act

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Endnotes

1      General information

Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021

No. 41 of 2021

[Assented to 19 October 2021]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

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

(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

(h)to make consequential and minor amendments to other Acts.

2Commencement

(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.

3Principal Act

In this Act, the Essential Services Commission Act 2001 is called the Principal Act.

Part 2—Information gathering and inspection powers

4Definitions

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;

information gathering notice means a notice under section 36(1) or 37(1);

inspectormeans a person appointed under section 39M;".

5Part 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

36Information 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;

(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

(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.

37Information 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—

(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

(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.

38Form 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 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

39Power 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.

39AProtection 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 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.

39BProtection 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.

39COffence 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.

39DNo 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

39EPowers 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;

(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.

39FCopies 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.

39GRetention 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.

(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.

39HApplication 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).

39IMagistrates' 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—

(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.

Division 4—When Commission must not serve information gathering notice

39JMatters 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.

Part 4A—Provision of information relating to regulated entities

39KProvision 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.

39LMatters 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

39MAppointment of inspectors

(1)The Commission may appoint, by instrument, any of the following persons as an inspector—

(a)an employee of the Commission;

(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.

39NInspector'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.

39OProduction 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.

Division 2—Entry and search of premises with consent

39PEntry 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

(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.

39QNotice 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

(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.

39RAcknowledgement 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

(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.

Division 3—Entry and search of premises with warrant

39SSearch 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.

39TForm 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 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 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.

(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.

39UWarrant 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;

(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.

39VAnnouncement 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

(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.

39WDetails 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.

39XSeizure 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—

(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

39YCopies 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.

39ZRetention 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.

(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.

39ZAApplication 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—

(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.

39ZBMagistrates' 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

(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

39ZCRefusal 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.

39ZDProtection 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.

(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.

39ZEOffence 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.

39ZFOffence 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

39ZGRequirement 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

(b)to produce documents to the inspector; and

(c)to give reasonable assistance to the inspector.

39ZHEntry 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.

39ZIRegister 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.

39ZJComplaints

(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

(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

39ZKMatters 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

39ZLPowers 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.

(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).".

Part 3—Civil penalties and other enforcement actions

6Definitions

(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 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;

(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);

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

(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.

7Section 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.".

8Heading to Part 7 substituted

For the heading to Part 7 of the Principal Act substitute—

"Part 7—Enforcement".

9Divisions 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

53Contravention 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.

Subdivision 2—Civil penalty orders

54Civil 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.

(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.

54ACivil 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

(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.

54BCivil 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

(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.

54CCivil 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 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.

54DCivil 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.

54EHow 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 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;

(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.

Subdivision 3—Adverse publicity orders and other orders

54FAdverse 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.

54GOrders 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' 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.

54HCompensation 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

(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

54IProceedings under this Division are civil proceedings

(1)Nothing in this Division is to be construed as limiting any other power of the court.

(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.

54JAuthority 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.

54KCivil 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.

54LCriminal 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.

(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.

54MCriminal 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.

54NEvidence 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.

54OConduct 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 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.

54PMultiple 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.

54QMultiple 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.

54RJurisdictional 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.

Division 2—Penalty notice regime

54SPower 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.

54TNotice 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—

(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.

54UHow 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;

107Section 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".

108Section 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 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.".

109Section 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—

"(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.".

110Section 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—

(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.".

111Section 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.

(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.".

112Section 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—

"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.".

113Section 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.".

114Section 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.

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.".

115Section 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.".

116Section 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.".

117New 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.".'.

118Division 5 of Part 3 repealed

Division 5 of Part 3 of the Energy Legislation Amendment (Energy Fairness) Act 2021 is repealed.

119Sections 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.".'.

Part 12—Consequential and minor amendments of other Acts

Division 1—Amendment of Accident Towing Services Act 2007

120Recommendations

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

121Application 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".

122Application 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

123Application for certification

For section 68(1) of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 substitute—

"(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.".

124Decision 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,".

125Inquiries 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), 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

126Financial 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".

127Conduct 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".

128Procedures 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".

Division 5—Amendment of National Electricity (Victoria) Act 2005

129Enforcement 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,".

130ESC 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,".

131Appeals 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

132Enforcement 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 (Compliance and Enforcement Powers) Amendment Act 2021,".

133ESC 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,".

134Appeals 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

135Commission 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

(b)exercise a power under section 39K of the Essential Services Commission Act 2001 in accordance with Part 4A of that Act.".

136Financial and business records

Section 56(10) of the Port Management Act 1995 is repealed.

137Restriction 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".

138Regulations

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 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.".

Part 13—Repeal of this Act

139Repeal 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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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: 8 September 2021

Legislative Council: 7 October 2021

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."