Victorian Energy Efficiency Target Amendment Act 2022 (Vic)
Victorian Energy Efficiency Target Amendment Act 2022
No. 34 of 2022
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Accreditation
4Definitions
5New section 7B inserted
6New Subdivision 1 of Division 1 of Part 3 inserted
7Who may apply to be accredited?
8New sections 9A to 9C inserted
9New sections 10A to 10C and Subdivision 2 of Division 1 of Part 3 inserted
10ESC to approve or refuse application
11ESC to allocate registration numbers
12New sections 13A to 13D inserted
13New Subdivision 4 of Division 1 of Part 3 inserted
14Review of decisions
15Review of decisions by VCAT
16Register of accredited persons
17Fees
18ESC Guidelines
19Transitional provisions
Part 3—VEET scheme registry accounts
20Definitions
21Role of ESC
22New section 7A inserted
23Certificates may be transferred
24New Division 6 of Part 3 inserted
25Review of decisions
26Review of decisions by VCAT
27Fees
28Transitional provisions
29Items in Table in Schedule 1 to Act substituted
Part 4—Extension of VEET Scheme
30When can a certificate be created?
31Energy efficiency certificate shortfall
32VEET scheme target
Part 5—Compliance and enforcement
Division 1—Code of conduct
33Definitions
34New section 3A inserted
35New sections 14G and 14H inserted
36Regulations
37Items in Table in Schedule to Act substituted
Division 2—Suspension and offences
38Sections 14 and 14A substituted
39New sections 15A and 15B inserted
40New section 20A inserted
41New section 37A inserted
42Review of decisions
43Review of decisions by VCAT
44Items in Table in Schedule 1 to Act substituted
Division 3—Civil Penalty Requirements
45New section 6A inserted
46New Part 6A inserted
47New Schedule to Act inserted
48Regulations
Part 6—Audits
49Definitions
50Role of ESC
51Repeal of section 19A
52New Part 7A inserted
53Records to be kept by accredited persons and relevant entities
54ESC Guidelines
55Transitional provisions
Part 7—Review of decision making
56Review of decisions
57New sections 56A to 56E inserted
58Transitional provision
Part 8—Miscellaneous amendments
Division 1—Amendments relating to certificates and other matters
59Who may create a certificate?
60Certificates may be transferred
61Owner may surrender certificate voluntarily
62Certificate surrender notice
63Application for declaration and order requiring surrender of certificates
64Information may be disclosed to specified persons or bodies
65Fees
66ESC guidelines
Division 2—Regulations dealing with transitional matters
67New section 75A inserted
Part 9—Amendment of Essential Services Commission Act 2001
68Amendment of Essential Services Commission Act 2001
Part 10—Repeal of this Act
69Repeal of this Act
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Endnotes
1 General information
Victorian Energy Efficiency Target Amendment Act 2022
No. 34 of 2022
[Assented to 23 August 2022]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Victorian Energy Efficiency Target Act 2007 to—
(i)expand the powers and functions of the Essential Services Commission under that Act; and
(ii)introduce new requirements relating to accreditation, including annual review and fit and proper person requirements; and
(iii)extend the operation of the Victorian energy efficiency target scheme; and
(iv)provide for the grant and administration of accounts for transferring certificates under that Act; and
(v)make further provision for the internal review and provide for the external review of certain decisions made by the Essential Services Commission; and
(vi)make further provision for matters relating to the enforcement of that Act and the regulations made under it, including by introducing new offences and engaging with the civil penalty requirement regime under the Essential Services Commission Act 2001; and
(vii)provide for the conduct of compliance audits and assurance audits of accredited persons; and
(viii)make other miscellaneous and consequential amendments; and
(b)to make a consequential amendment to the Essential Services Commission Act 2001.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 November 2023, it comes into operation on that day.
3Principal Act
In this Act, the Victorian Energy Efficiency Target Act 2007 is called the Principal Act.
Part 2—Accreditation
4Definitions
In section 3(1) of the Principal Act insert the following definitions—
"competent and capable person means a person who is competent and capable for the purposes of this Act, having regard to the matters specified in section 10C;
CPD obligations means continuing professional development obligations specified in the ESC guidelines for the purposes of section 14F;
finding of guilt has the meaning given by section 4 of the Worker Screening Act 2020;
fit and proper person means—
(a)a natural person who is fit and proper for the purposes of this Act, having regard to the matters specified in section 10B; or
(b)a body corporate that is fit and proper for the purposes of this Act, having regard to the matters specified in section 10B in relation to the body corporate and any officer of the body corporate;
pending charge has the meaning given by section 6 of the Worker Screening Act 2020;".
5New section 7B inserted
Before section 8 of the Principal Act insert—
"7B ESC may provide advice and support
(1)To promote best practices in the promotion of the objects of this Act, the ESC may provide advice and support to—
(a)accredited persons; and
(b)scheme participants; and
(c)consumers of electricity and gas; and
(d)any other person.
(2)Without limiting subsection (1), the ESC may provide any of the following—
(a)education about, and information in relation to, matters relating to energy efficiency, prescribed activities and regulated actions;
(b)education and training for accredited persons to enable accredited persons to meet their CPD obligations;
(c)education and training for accredited persons and scheme participants to promote the adoption of best practices in undertaking prescribed activities and regulated actions;
(d)in respect of contracts created and executed for prescribed activities—
(i)standardised, recommended or model provisions; and
(ii)templates, manuals or guidelines.".
6New Subdivision 1 of Division 1 of Part 3 inserted
After the heading to Division 1 of Part 3 of the Principal Act insert the following heading—
"Subdivision 1—Application for grant or renewal of accreditation".
7Who may apply to be accredited?
(1)For section 9(1) of the Principal Act substitute—
"(1)A person may apply to the ESC to—
(a)be an accredited person; or
(b)renew the person's accreditation as an accredited person.".
(2)In section 9(2) of the Principal Act—
(a)after "application" insert "for the grant or renewal of accreditation";
(b)after paragraph (b) insert—
"(ba)include a declaration that the applicant is, for the purposes of accreditation—
(i)a fit and proper person; and
(ii)a competent and capable person; and
Note
See sections 10B and 10C.
(bb)include the prescribed activities or class of prescribed activities for which accreditation is sought; and
(bc)in the case of an applicant who has been an accredited person within the 12 months prior to the application, include a declaration and a report as to each of the following matters—
(i)the person's compliance with any CPD obligations;
(ii)the person's compliance with any conditions or restrictions of the accredited person's accreditation;
(iii)the prescribed activities (if any) undertaken by the person in the current accreditation period.
Example
This may include the details of any periods in which the person did not undertake any prescribed activities.".
(3)After section 9(3) of the Principal Act insert—
"(4)If required by the ESC under section 10A, an applicant for renewal of accreditation must provide to the ESC evidence to support the applicant's declaration that the applicant is, for the purposes of accreditation—
(a)a fit and proper person; and
(b)a competent and capable person.".
8New sections 9A to 9C inserted
After section 9 of the Principal Act insert—
9ATiming of application for renewal "
(1)Subject to subsection (2), an accredited person must apply for renewal of accreditation at least 90 days before the date on which the accredited person's accreditation will expire.
Note
A notice given by the ESC to an accredited person on the granting of accreditation or the renewal of accreditation must specify the date by which the accredited person must apply for renewal of accreditation.
(2)The ESC may accept an application for renewal of accreditation less than 90 days before the date on which the accredited person's accreditation will expire if—
(a)the ESC is satisfied that it is appropriate in the circumstances to accept the application; and
(b)the application is accompanied by the prescribed fee (if any) for a late application.
9BApplication for renewal made after expiry
(1)An application by a person for renewal of accreditation made after the expiry of the person's accreditation is taken to be an application under section 9(1)(a) for the grant of accreditation.
(2)In determining whether to grant accreditation to a person whose accreditation has expired, the ESC may have regard to any of the following matters—
(a)the fact that the person was previously accredited;
(b)the person's compliance with their obligations as an accredited person;
(c)the prescribed activities undertaken by the person while accredited.
9CNo application if suspended or disqualified
An accredited person must not apply for accreditation if the person's accreditation is suspended or disqualified.".
9New sections 10A to 10C and Subdivision 2 of Division 1 of Part 3 inserted
After section 10 of the Principal Act insert—
10AESC may request further information from applicant "
(1)The ESC, by notice, may request an applicant for the grant or renewal of accreditation to provide within a period (not less than 14 days) specified in the notice—
(a)evidence as to whether the applicant is—
(i)a fit and proper person; and
(ii)a competent and capable person; and
Note
See sections 10B and 10C.
(b)in the case of an application for renewal of accreditation, the prescribed activities (if any) undertaken by the applicant while accredited; and
(c)any other information relevant to the application.
(2)Time does not accrue for the purposes of section 12(1) for the period—
(a)commencing on the date of a request under subsection (1); and
(b)ending on the date on which the applicant complies with the request.
(3)The ESC may refuse to grant an application if the applicant fails to comply with a request under subsection (1) within the period specified in the notice.
10BFit and proper person
In determining whether a person is a fit and proper person, the ESC may have regard to any relevant matter, including the following—
(a)a finding of guilt in relation to the person's commission of an offence against this Act or regulations made under it;
(b)a finding of guilt, within the preceding 10 years, in relation to the person's commission of—
(i)an indictable offence; or
(ii)an offence that, if committed in Victoria, would constitute an indictable offence; or
(iii)an offence under any law of the Commonwealth, or another State or a Territory, regulating an energy efficiency regime;
(c)a finding of guilt in relation to the person's commission of an offence involving dishonesty or fraud;
(d)a pending charge for an alleged commission by the person of an offence specified in paragraph (a), (b) or (c);
(e)a failure to comply with—
(i)any provision of this Act or regulations made under it; or
(ii)any conditions of accreditation;
(f)any improper or adverse conduct engaged in by the person, including—
(i)a failure to disclose any information that has been requested of the person by the ESC or that is otherwise required to be provided under this Act or regulations made under it; or
(ii)misleading, false or deceptive conduct;
(g)if the person has been accredited under this Act or under a law of another State or Territory or of the Commonwealth relating to an energy efficiency program—
(i)a suspension, revocation or cancellation of accreditation or disqualification from applying for accreditation; and
(ii)the reason for the suspension, revocation, cancellation or disqualification;
(h)if the person has held an account for the holding, transfer and surrender of certificates under this Act or under a law of another State or Territory or of the Commonwealth relating to an energy efficiency program—
(i)a suspension or cancellation of the person's account; and
(ii)the reason for the suspension or cancellation;
(i)the person becoming or having been insolvent;
(j)the person becoming or having been an officer of an externally-administered company under the Corporations Act;
(k)a failure to comply with an order or decision made by—
(i)a court, VCAT or ESC under this Act; or
(ii)a court or tribunal under a law of the Commonwealth or another State or a Territory relating to an energy efficiency regime;
(l)a failure to disclose any of the above matters;
(m)any other prescribed matter.
10CCompetent and capable person
In determining whether a person is a competent and capable person for the purposes of accreditation, the ESC may have regard to any relevant matter, including the following—
(a)the skills and expertise of the person exercising powers and performing duties as an accredited person, including undertaking a prescribed activity;
Example
The ESC may consider the skills and expertise of a body corporate as a whole and as well as the skills and expertise of key personnel at the body corporate.
(b)whether the person has the appropriate licensing and regulatory approvals for undertaking a prescribed activity;
(c)whether the person and any contractors or employees engaged by the person have appropriate professional accreditations for undertaking a prescribed activity or part of a prescribed activity;
(d)the past performance of the person in undertaking a prescribed activity;
(e)whether the person has appropriate policies and practices to ensure a prescribed activity is undertaken in compliance with relevant occupational health and safety legislation;
(f)whether the person has complied with or incorporated any recommended practices for creating and executing contracts in accordance with this Act or any regulations or guidelines made under it;
(g)whether the person has complied with their CPD obligations;
(h)any other prescribed circumstances.
Subdivision 2—Grant of accreditation".
10ESC to approve or refuse application
After section 11(2) of the Principal Act insert—
"(3)Without limiting subsection (2), the ESC must refuse a person's application for the grant or renewal of accreditation if—
(a)the ESC is not satisfied that the person is a fit and proper person for the purposes of accreditation; or
(b)the ESC is not satisfied that the person is a competent and capable person for the purposes of accreditation; or
(c)the application is not accompanied by the relevant fee.
(4)In determining an application for the grant or renewal of accreditation, the ESC may have regard to any available information about—
(a)any previous conduct of the applicant in exercising powers and performing duties as an accredited person; and
(b)the prescribed activities (if any) undertaken by the applicant while accredited.
Example
The ESC may have regard to any periods during which the applicant did not undertake any prescribed activities.".
11ESC to allocate registration numbers
(1)In the heading to section 13 of the Principal Act, for "registration" substitute "accreditation".
(2)In section 13 of the Principal Act—
(a)after "application" insert "for the grant of accreditation";
(b)in paragraph (a), for "registration" substitute "accreditation".
12New sections 13A to 13D inserted
After section 13 of the Principal Act insert—
13ANotice of approval or refusal of application"
(1)The ESC must provide an applicant for accreditation or renewal of accreditation written notice of the ESC's decision to approve or refuse the application.
(2)A notice of a decision to approve an application must include—
(a)the date of commencement of accreditation; and
(b)the date of expiry of accreditation; and
(c)the date by which the accredited person must apply for the renewal of accreditation; and
(d)the prescribed activities or class of prescribed activities for which accreditation is granted; and
(e)any other conditions of accreditation.
13BPeriod of accreditation
(1)If the ESC approves an application by a person for the grant of accreditation, the accreditation—
(a)commences on the date on which the ESC approves the application; and
(b)expires 12 months after the date of the grant of accreditation.
Example
If the ESC approves the grant of accreditation to a person on 15 May 2025, the person's accreditation expires on 16 May 2026.
(2)If the ESC approves an application by a person for the renewal of accreditation, the accreditation—
(a)commences on the day the person's accreditation was due to expire; and
(b)expires 12 months after the date of the commencement of accreditation.
Example
An accredited person's accreditation is due to expire on 27 April 2026. The ESC approves the person's renewal of accreditation on 1 February 2026. The accredited person's accreditation renews on 27 April 2026 and expires on 28 April 2027.
(3)Despite subsection (2)(b), an accredited person who applies for renewal of their accreditation before the expiry of their accreditation remains accredited until the ESC determines the application.
(4)This section applies subject to any other provision in relation to the suspension or cancellation of accreditation.
13CConditions of accreditation
(1)Accreditation under section 11 is subject to the condition that the accredited person must only undertake a prescribed activity or class of prescribed activity for which accreditation is granted.
(2)Accreditation under section 11 may be subject to—
(a)any other prescribed conditions; and
(b)any other conditions that the ESC considers appropriate in the circumstances.
(3)The ESC may vary the conditions of accreditation on the application of the accredited person.
13DApplication to vary conditions of accreditation
(1)An accredited person may apply to the ESC in writing for approval to vary the conditions of accreditation.
(2)Without limiting subsection (1), an accredited person may apply to the ESC to vary the prescribed activities or class of prescribed activities that the accredited person may undertake.
(3)An application to vary the conditions of accreditation must be accompanied by the prescribed fee (if any).".
13New Subdivision 4 of Division 1 of Part 3 inserted
After section 14C of the Principal Act insert—
"Subdivision 4—Matters relating to accreditation
14DDuty to disclose matters adverse to accreditation
(1)An accredited person must not, without reasonable excuse, fail to disclose to the ESC any adverse matter within 14 days of becoming aware of the adverse matter.
Penalty:20 penalty units.
(2)In this section, a matter is an adverse matter if it is likely that the ESC, having regard to the matter, would determine that the person is not—
(a)a fit and proper person for the purposes of accreditation; or
(b)a competent and capable person for the purposes of accreditation.
Note
See sections 10B and 10C.
14EProtection against self-incrimination
It is a reasonable excuse for the purposes of section 14D(1) for a person to refuse or fail to disclose an adverse matter within the meaning of that section if the disclosure of the adverse matter would tend to incriminate the person.
14FContinuing professional development obligations
(1)An accredited person must comply with any continuing professional development obligations specified in the ESC guidelines for the purposes of this section within—
(a)the period 30 March of the year of accreditation to 29 March next following; or
(b)any other period specified in the guidelines.
(2)CPD obligations imposed under subsection (1) may relate to an accredited person who is accredited to undertake—
(a)a prescribed activity; or
(b)a class of prescribed activity.
(3)The ESC, by written notice, may at any time request an accredited person to provide within a period (not less than 14 days) specified in the notice any information in relation to the person's compliance with CPD obligations within a particular period.".
14Review of decisions
For items 1, 2 and 3 of the Table in section 56(2) of the Principal Act substitute—
"1 to refuse an application for accreditation or renewal of accreditation section 11 the applicant 2 to grant accreditation in respect of one or more prescribed activities section 11 the applicant 3 to impose conditions on accreditation relating to the prescribed activity or class of prescribed activity that may be undertaken section 13C the accredited person".
15Review of decisions by VCAT
For items 1, 2 and 3 in the Table in section 56B of the Principal Act substitute—
"1 to refuse an application for accreditation or renewal of accreditation section 11 the applicant 2 to grant accreditation in respect of one or more prescribed activities section 11 the applicant 3 to impose conditions on accreditation relating to the prescribed activity or class of prescribed activity that may be undertaken section 13C the accredited person". 16Register of accredited persons
(1)After section 58(1)(b) of the Principal Act insert—
"(ba)the prescribed activities or class of prescribed activities for which an accredited person is accredited;".
(2)After section 58(2)(b) of the Principal Act insert—
"(ba)the prescribed activities or class of prescribed activities for which an accredited person is accredited;".
17Fees
In section 73(2) of the Principal Act—
(a)in paragraph (a), after "accreditation" insert "or renewal of accreditation";
(b)after paragraph (a) insert—
"(ab)fees for late lodgement of an application for renewal of accreditation;
(ac)fees for the variation of conditions of accreditation;".
18ESC Guidelines
(1)After section 74(2)(a) of the Principal Act insert—
"(ab)the circumstances in which a person will be taken to be—
(i)a fit and proper person; and
(ii)a competent and capable person;
(ac)CPD obligations to be complied with by accredited persons;
(ad)the period in which an accredited person must comply with CPD obligations;".
(2)After section 74(2)(c) of the Principal Act insert—
"(ca)matters relating to the creation and execution of contracts for prescribed activities;".
19Transitional provisions
After the heading to Division 10 of Part 8 of the Principal Act insert—
76AAccreditation transition period"
(1)The ESC must declare an accreditation transition period for the purposes of sections 76B and 76C.
(2)The accreditation transition period must commence before the first anniversary of the date of commencement of section 12 of the Victorian Energy Efficiency Target Amendment Act 2022.
76BExpiry of accreditation during accreditation transition period
(1)Despite section 13B, during the accreditation transition period, an accredited person's accreditation expires on the earlier of—
(a)the date declared by the ESC in accordance with subsection (2); or
(b)the first anniversary of the date of commencement of the accreditation transition period.
(2)The ESC may declare that, during the accreditation transition period, the accreditation of an accredited person expires on a specified date.
(3)A declaration under subsection (2) may relate to an accredited person who is accredited to undertake—
(a)a prescribed activity; or
(b)a class of prescribed activity.
(4)On making a declaration under subsection (2), the ESC must—
(a)publish the declaration on the ESC's internet site; and
(b)give written notice of the declaration to each accredited person who is accredited to undertake the specified prescribed activity or class of prescribed activity.
(5)In this section—
accreditation transition period means the period declared by the ESC under section 76A.
76CApplication for renewal of accreditation during accreditation transition period
(1)Despite section 9A, during the accreditation transition period, an accredited person must apply for renewal of accreditation at least 90 days before the date on which the accredited person's accreditation will expire under section 76B(1).
(2)During the accreditation transition period, the ESC may accept an application for renewal of accreditation less than 90 days before the date on which the accredited person's accreditation will expire if—
(a)the ESC is satisfied that it is appropriate in the circumstances to accept the application; and
(b)the application is accompanied by the prescribed fee (if any) for a late application.
(3)To avoid doubt, during the accreditation transition period, section 9B applies to an application by a person for renewal of accreditation made after the expiry of the person's accreditation.
(4)In this section—
accreditation transition period means the period declared by the ESC under section 76A.".
Part 3—VEET scheme registry accounts
20Definitions
In section 3(1) of the Principal Act insert the following definition—
"VEET scheme registry account means an account maintained by the ESC for the holding, transfer and surrender of energy efficiency certificates;".
21Role of ESC
(1)After section 7(2)(c) of the Principal Act insert—
"(ca)regulate participation in the holding, transfer and surrender of certificates;
(cb)publish information relating to the holding, transfer and surrender of certificates;".
(2)For section 7(2)(e) of the Principal Act substitute—
"(e)monitor compliance with this Act;
(f)publish information about the operation of this Act.".
(3)After section 7(3) of the Principal Act insert—
"(3A)A report under subsection (3) must include the prescribed matters relating to the holding, transfer and surrender of certificates.".
22New section 7A inserted
After section 7 of the Principal Act insert—
"7A Publishing and reporting information about certificate transfers
The ESC must publish and maintain on its internet site prescribed information relating to the holding, transfer and surrender of certificates.".
23Certificates may be transferred
In section 24(1) of the Principal Act, for "any person" substitute "a person who holds a VEET scheme registry account".
24New Division 6 of Part 3 inserted
After Division 5 of Part 3 of the Principal Act insert—
"Division 6—VEET scheme registry accounts
26AApplication for VEET scheme registry account
(1)A person may apply to the ESC to open a VEET scheme registry account.
(2)An application to open a VEET scheme registry account must—
(a)include a declaration that the applicant is a fit and proper person for the purposes of holding a VEET scheme registry account; and
Note
See section 10B.
(b)in the case of an application by a body corporate, include details of the officers of the body corporate; and
(c)include any other information requested by the ESC; and
(d)be accompanied by the prescribed fee (if any).
26BApproval of application
(1)The ESC may approve an application for a VEET scheme registry account if—
(a)the ESC determines that the applicant is a fit and proper person for the purposes of holding a VEET scheme registry account; and
Note
See section 10B.
(b)the applicant does not hold a VEET scheme registry account; and
(c)in the case of a body corporate, a related body corporate within the meaning of the Corporations Act does not hold a VEET scheme registry account; and
(d)the application is accompanied by the prescribed fee (if any).
(2)If the ESC is not satisfied that an application for a VEET scheme registry account complies with subsection (1), the ESC must refuse the application.
(3)Without limiting subsection (2), the ESC must refuse a person's application for a VEET scheme registry account if—
(a)the ESC determines that the person is not a fit and proper person for the purposes of holding a VEET scheme registry account; or
(b)the application is not accompanied by the relevant fee.
26CConditions of approval
Approval of an application to open a VEET scheme registry account may be subject to—
(a)any prescribed conditions; and
(b)any other conditions that the ESC considers appropriate in the circumstances.
26DSuspension of VEET scheme registry account
(1)The ESC may suspend a person's VEET scheme registry account for a period of up to 12 months if—
(a)the ESC determines that the person is not a fit and proper person for the purposes of holding a VEET scheme registry account; or
Note
See section 10B.
(b)the person breaches a condition of holding the VEET scheme registry account.
(2)The ESC may suspend a VEET scheme registry account for a further period of up to 12 months.
26ENotice of proposed action
Before suspending a VEET scheme registry account, the ESC must give the account holder notice—
(a)advising that the ESC is satisfied that there are grounds for suspending the VEET scheme registry account; and
(b)setting out the grounds on which the ESC relies; and
(c)inviting a submission from the account holder to establish why the ESC should not suspend the VEET scheme registry account; and
Note
See section 26I which provides a person with protection against self-incrimination.
(d)advising that the account holder may make a written submission to the ESC no later than—
(i)28 days after the day on which the person receives the notice; or
(ii)the date specified in the notice.
26FImmediate suspension and notice of proposed action
(1)Despite section 26E, the ESC may suspend a VEET scheme registry account without giving the account holder notice under that section if the ESC considers that immediate suspension of the VEET scheme registry account is necessary, having regard to—
(a)whether the account holder is a fit and proper person for the purposes of holding a VEET scheme registry account; and
(b)the purposes of this Act.
(2)On suspending a VEET scheme registry account under subsection (1), the ESC must give the account holder notice—
(a)stating that the ESC is satisfied that there are grounds for the ESC to immediately suspend the VEET scheme registry account; and
(b)setting out the grounds on which the ESC relies; and
(c)inviting a submission from the account holder to establish why the ESC should not suspend the VEET scheme registry account; and
(d)advising that the account holder may make a written submission to the ESC no later than—
(i)28 days after the day on which the person receives the notice; or
(ii)the date specified in the notice.
26GRequest for extension of time for submissions
(1)A person given notice under section 26E or 26F may request in writing an extension of time for making a submission to the ESC.
(2)The ESC, by written notice, may extend the time for making a written submission by no more than 28 days.
26HRequest by ESC for further information
(1)The ESC, by written notice, may request a person who holds a VEET scheme registry account to provide within a period (not less than 14 days) specified in the notice—
(a)evidence as to whether the person is a fit and proper person for the purposes of holding a VEET scheme registry account; and
Note
See section 10B.
(b)any other information relevant to whether the person should hold a VEET scheme registry account.
(2)Time does not accrue for the purposes of section 26J for the period—
(a)commencing on the date of a request under subsection (1); and
(b)ending on the date on which the person complies with the request.
26IProtection against self-incrimination
A person may refuse or fail to comply with a request under section 26H if the disclosure of the information to the ESC would tend to incriminate the person.
26JTime for making decision
The ESC must make a decision under section 26K—
(a)if the person has made a submission to the ESC, within 28 days of receiving the submission; or
(b)if the person has not made a submission to the ESC within the specified time period, within 10 days of the end of that period.
26KDecision of ESC after giving notice
(1)After giving notice to an account holder under section 26E or 26F and considering any submissions made by the account holder and any other available information, the ESC may—
(a)cancel any suspension imposed under section 26F; or
(b)suspend the VEET scheme registry account under section 26D; or
(c)take no further action.
(2)The ESC must give an account holder a statement of written reasons for a decision to suspend a VEET scheme registry account.
(3)Any period of suspension imposed under section 26F until the date of the ESC's decision under this section is to be deducted from a period of suspension under subsection (1)(b).
26LESC may impose conditions at end of suspension
If the ESC suspends a person's VEET scheme registry account under this Division, at the end of the period of suspension the ESC may impose a condition or restriction on the person's VEET scheme registry account.
26MCancellation of VEET scheme registry account
The ESC may cancel a VEET scheme registry account held by a person if the ESC is satisfied, having regard to the circumstances of the case and any other previous suspensions or cancellations of the person's VEET scheme registry account—
(a)that suspension of the person's VEET scheme registry account is inadequate; and
(b)it is necessary to cancel the person's VEET scheme registry account.
26NPermission to transfer or surrender certificates while account cancelled or suspended
The ESC, by written notice, may authorise a person to transfer or surrender certificates for the period specified in the notice if—
(a)the person's VEET scheme registry account is cancelled or suspended; and
(b)in the circumstances, the ESC considers it appropriate to allow the person to transfer or surrender certificates.
26OOffence to hold certificate without account
A person must not hold a certificate if the person does not have a VEET scheme registry account.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.
26POffence to transfer or surrender certificate in certain circumstances
A person must not transfer or surrender a certificate if the person—
(a)has a VEET scheme registry account that is suspended or cancelled; and
(b)does not have authority under section 26N to transfer or surrender certificates.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.".
25Review of decisions
For item 8 of the Table in section 56(2) of the Principal Act substitute—
"8 to refuse to approve an application for a VEET scheme registry account section 26B the applicant 9 to suspend a VEET scheme registry account section 26D the account holder 10 to cancel a VEET scheme registry account section 26M the account holder". 26Review of decisions by VCAT
For item 8 in the Table in section 56B of the Principal Act substitute—
"8 to refuse to approve an application for a VEET scheme registry account section 26B the applicant 9 to suspend a VEET scheme registry account section 26D the account holder 10 to cancel a VEET scheme registry account section 26M the account holder".
27Fees
After section 73(2)(e) of the Principal Act insert—
"(ea)fees for opening a VEET scheme registry account;".
28Transitional provisions
Before section 77 of the Principal Act insert—
76DVEET scheme registry account transition period"
(1)A VEET scheme registry account transition period applies for the purposes of this section and section 76E for the period—
(a)commencing on the commencement date; and
(b)ending on the earlier of—
(i)the date declared by the ESC; or
(ii)the first anniversary of the commencement date.
(2)For the purposes of subsection (1)(b)(i), the ESC may declare a date that is earlier than the first anniversary of the commencement date.
(3)On making a declaration under subsection (2), the ESC must—
(a)publish the declaration on the ESC's internet site; and
(b)use best efforts to give written notice of the declaration to each existing certificate holder.
(4)In this section—
commencement date means the date of commencement of section 24 of the Victorian Energy Efficiency Target Amendment Act 2022;
existing certificate holder means a person who—
(a)held a certificate immediately before the commencement date; and
(b)continues to hold the certificate on the commencement date.
Note
See section 76E for when a person ceases to be an existing certificate holder.
76EVEET scheme registry account transition period—existing certificate holders
(1)During the VEET scheme registry account transition period—
(a)an existing certificate holder may hold, transfer or surrender certificates; and
(b)despite section 24(1), a person may transfer a certificate to an existing certificate holder; and
(c)section 26O does not apply to an existing certificate holder; and
(d)the ESC cannot cancel or suspend the holding, transfer or surrender of certificates by the existing certificate holder.
(2)An existing certificate holder must, before the end of the VEET scheme registry account transition period—
(a)apply for a VEET scheme registry account; or
(b)transfer or surrender any certificate held by the existing certificate holder.
(3)If an existing certificate holder has applied for a VEET scheme registry account before the transition period end date and the ESC has not determined the application before the transition period end date, this section continues to apply to the existing certificate holder until the date on which the ESC determines the application.
(4)A person who applies for a VEET scheme registry account ceases to be an existing certificate holder if—
(a)the ESC has determined the application; and
(b)the person has transferred or surrendered all of the certificates held by the person into a VEET scheme registry account.
(5)In this section—
existing certificate holder has the same meaning as in section 76D;
transition period end date means the date declared by the ESC under section 76D(2);
VEET scheme registry account transition period means transition period declared by the ESC in accordance with section 76D.
76FSavings provision—Victorian Energy Efficiency Target Amendment Act 2022
Despite the insertion of section 7(3A) by section 21 of the Victorian Energy Efficiency Target Amendment Act 2022, section 7(3A) does not apply to a report provided or requested under section 7(3) before the first anniversary of the commencement of section 21 of the Victorian Energy Efficiency Target Amendment Act 2022.".
29Items in Table in Schedule 1 to Act substituted
For items 7 and 8 in the Table in Schedule 1 to the Principal Act substitute—
"7 Holding a certificate without a VEET scheme registry account section 26O any person 60 penalty units for natural person;
240 penalty units for body corporate
8 Transferring or surrendering a certificate while VEET scheme registry account is cancelled or suspended without authority to do so section 26P account holder 60 penalty units for natural person;
240 penalty units for body corporate".
Part 4—Extension of VEET Scheme
30When can a certificate be created?
In section 17(1) of the Principal Act, for "January 2030" substitute "January 2031".
31Energy efficiency certificate shortfall
In section 27(2) of the Principal Act, for "January 2030" substitute "January 2031".
32VEET scheme target
In section 30(g) of the Principal Act, for "December 2029" substitute "December 2030".
Part 5—Compliance and enforcement
Division 1—Code of conduct
33Definitions
In section 3(1) of the Principal Act insert the following definitions—
"code of conduct means a code of conduct prescribed in accordance with section 14G;
contractor includes a subcontractor;
regulated action, in relation to a prescribed activity, means any of the following—
(a)lead generation for the prescribed activity;
(b)marketing of the prescribed activity;
(c)entering into a contract for the sale or supply of the prescribed activity;
(d)undertaking the prescribed activity or any part of the prescribed activity;
(e)undertaking any follow-up activity that relates to a prescribed activity;
scheme participant has the meaning given by section 3A;".
34New section 3A inserted
After section 3 of the Principal Act insert—
"3A Meaning of scheme participant
(1)A scheme participant, in relation to a prescribed activity, is a person (other than an accredited person or a consumer of electricity or gas) who—
(a)undertakes the prescribed activity or any part of the prescribed activity on behalf of an accredited person, including as—
(i)an employee of an accredited person; or
(ii)a contractor of an accredited person; or
(iii)an employee of a contractor of an accredited person; or
(b)undertakes any regulated action in respect of the prescribed activity.
(2)A person who is purporting to undertake any part of a prescribed activity on behalf of an accredited person is taken to be a scheme participant if—
(a)the accreditation of the accredited person is suspended or has expired or been cancelled; or
(b)the activity does not meet the requirements of a prescribed activity.".
35New sections 14G and 14H inserted
Before Division 2 of Part 3 of the Principal Act insert—
"14G Prescribed code of conduct
(1)The regulations may prescribe a code of conduct for accredited persons and scheme participants who undertake—
(a)a prescribed activity or any part of a prescribed activity; or
(b)a regulated action.
(2)Without limiting subsection (1), the code of conduct may impose requirements relating to any of the following matters—
(a)the manner and form in which prescribed activities may be promoted;
(b)engaging with consumers of gas and electricity;
(c)the provision of information about prescribed activities, regulated actions and other related matters;
(d)processes to be complied with when undertaking a prescribed activity or regulated action;
(e)dispute resolution processes in relation to a prescribed activity or regulated action.
(3)For the purposes of section 14H, the regulations may prescribe any requirement specified in the code of conduct to be a requirement that must be complied with in the undertaking of a prescribed activity or regulated action.
14HOffence to contravene prescribed code of conduct requirement
A person who is undertaking a prescribed activity or a regulated action must not contravene a prescribed code of conduct requirement that applies to the prescribed activity or regulated action.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.".
36Regulations
After section 75(1)(g) of the Principal Act insert—
"(ga)prescribing a code of conduct;
(gb)prescribing code of conduct requirements that must be complied with when undertaking a prescribed activity or a regulated action;".
37Items in Table in Schedule to Act substituted
For item 1 in the Table in the Schedule to the Principal Act substitute—
"1 Breach of prescribed code of conduct requirement section 14H accredited person or scheme participant 60 penalty units for natural person;
240 penalty units for body corporate".
Division 2—Suspension and offences
38Sections 14 and 14A substituted
For sections 14 and 14A of the Principal Act substitute—
"Subdivision 3—Suspension, cancellation and disqualification from accreditation
14Suspension or cancellation of accreditation or disqualification from applying for accreditation
(1)The ESC may take an action referred to in subsection (2) in respect of an accredited person if the ESC believes on reasonable grounds that the accredited person—
(a)has committed an offence against this Act; or
(b)has breached an undertaking given to the ESC under section 10(2); or
(c)has created certificates that do not comply with the requirements of this Act or regulations made under it; or
(d)has failed to comply with the requirements of this Act or regulations made under it relating to the recording or undertaking of prescribed activities; or
(e)has obtained accreditation improperly; or
(f)has contravened a condition or restriction imposed under section 14B or 40A; or
(g)has failed to comply with an order under section 40; or
(h)has contravened the person's obligations under section 55F or 55J; or
(i)has contravened a condition or restriction imposed under section 55Q; or
(j)is no longer, for the purposes of accreditation—
(i)a fit and proper person; or
(ii)a competent and capable person.
Note
See sections 10B and 10C.
(2)The ESC, by written notice, may do any of the following in respect of the accreditation of an accredited person specified in subsection (1)—
(a)suspend the person's accreditation for the period (not exceeding 12 months) specified in the notice;
(b)cancel the person's accreditation;
(c)cancel the person's accreditation and disqualify the person from applying for renewal of accreditation for the period (not exceeding 5 years) specified in the notice.
(3)Subject to subsection (2), the ESC may specify a period of suspension or disqualification that the ESC considers to be appropriate in the circumstances.
(4)The ESC must not take the action referred to in subsection (2)(c) unless the ESC is satisfied that, in the circumstances suspension or cancellation of accreditation is not adequate.
14ANotice of proposed action
Before taking an action against an accredited person under section 14, the ESC must give the accredited person written notice—
(a)advising that the ESC is satisfied that there are grounds for taking an action under that section; and
(b)setting out the grounds on which the ESC relies; and
(c)inviting a submission from the person to establish why the ESC should not take the action that it is proposing to take; and
(d)advising that the person may make a written submission to the ESC no later than—
(i)28 days after the day on which the person receives the notice; or
(ii)the date specified in the notice.
14ABImmediate suspension and notice of proposed action
(1)Despite section 14A, the ESC may suspend the accreditation of an accredited person without giving the accredited person a notice under that section if the ESC considers that immediate suspension of the person's accreditation is necessary, having regard to—
(a)whether the person is a fit and proper person for the purposes of accreditation; and
(b)whether the person is a competent and capable person for the purposes of accreditation; and
(c)the purposes of this Act.
(2)On suspending the accreditation of an accredited person under subsection (1), the ESC must give to the accredited person written notice—
(a)stating that the ESC is satisfied that there are grounds for the ESC to—
(i)immediately suspend the person's accreditation; and
(ii)take an action under section 14; and
(b)setting out the grounds on which the ESC relies; and
(c)inviting a submission from the person to establish why the ESC should not take the action under section 14 that it is proposing to take; and
(d)advising that the person may make a written submission to the ESC no later than—
(i)28 days after the day on which the person receives the notice; or
(ii)the date specified in the notice.
Note
See section 14AE which provides protection against self-incrimination.
14ACRequest for extension of time for submissions
(1)A person given notice under section 14A or 14AB may request in writing an extension of time for making a submission to the ESC.
(2)The ESC, by written notice, may extend the time within which the person may make a written submission by no more than 28 days.
14ADRequest by ESC for further information
(1)The ESC, by written notice, may request an accredited person to provide within a period (not less than 14 days) specified in the notice—
(a)evidence as to whether the accredited person is—
(i)a fit and proper person; and
(ii)a competent and capable person; and
Note
See sections 10B and 10C.
(b)any other information relevant to person's conduct as an accredited person.
(2)Time does not accrue for the purposes of section 14AF for the period—
(a)commencing on the date of a request under subsection (1); and
(b)ending on the date on which the applicant complies with the request.
14AEProtection against self-incrimination
A person may refuse or fail to comply with a request under section 14AD(1) of the disclosure of information to the ESC would tend to incriminate the person.
14AFTime for making determination
The ESC must determine whether to take an action under section 14—
(a)if the accredited person has made a submission to the ESC, within 28 days of receiving the submission; or
(b)if the accredited person has not made a submission to the ESC within the specified time period, within 10 days of the end of that period.
14AGDecision of ESC
(1)After giving notice to an accredited person under section 14A or 14AB and considering any submissions made by the person and any other available information, the ESC may—
(a)cancel any suspension imposed under section 14AB(1); or
(b)take any action under section 14; or
(c)take no further action.
(2)The ESC must give an accredited person a statement of written reasons for a decision to take any action under section 14 in respect of the accredited person.
(3)If the ESC determines to suspend the accreditation of an accredited person for a specified period, any period of suspension imposed under section 14AB(1) until the date of the ESC's determination under this section is to be deducted from the specified period of suspension.".
39New sections 15A and 15B inserted
After section 15 of the Principal Act insert—
"15A Offence to undertake prescribed activity without accreditation
A person (other than a scheme participant) must not undertake a prescribed activity or any part of a prescribed activity if—
(a)the person is not accredited to undertake the prescribed activity; or
(b)the undertaking of the prescribed activity or any part of the prescribed activity is contrary to a condition of the person's accreditation; or
(c)the person's accreditation is suspended or has expired or been cancelled.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.
15BOffence to undertake prescribed activity on behalf of person without accreditation
A person (other than an accredited person) must not undertake a prescribed activity or any part of a prescribed activity on behalf of another person, whether as an employee, contractor or employee of a contractor of that other person, if—
(a)the other person is not accredited to undertake the prescribed activity; or
(b)the undertaking of the prescribed activity or any part of the prescribed activity is contrary to a condition of the other person's accreditation; or
(c)the other person's accreditation is suspended or has expired or been cancelled.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.".
40New section 20A inserted
After section 20 of the Principal Act insert—
"20A Offence to create certificate in certain circumstances
A person must not create a certificate in contravention of a condition or restriction of the person's accreditation.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.".
41New section 37A inserted
After section 37 of the Principal Act insert—
"37A Offence to contravene shortfall statement
A person must comply with a shortfall statement issued to the person under section 36.
Penalty:240 penalty units.".
42Review of decisions
For items 4, 5 and 6 of the Table in section 56(2) of the Principal Act substitute—
"4 to suspend a person's accreditation section 14 the accredited person 5 to cancel a person's accreditation section 14 the accredited person 6 to disqualify a person from applying for renewal of accreditation for a specified period section 14 the disqualified person." 43Review of decisions by VCAT
For items 4, 5 and 6 of the Table in section 56B of the Principal Act substitute—
"4 to suspend a person's accreditation section 14 the accredited person 5 to cancel a person's accreditation section 14 the accredited person 6 to disqualify a person from applying for renewal of accreditation for a specified period section 14 the disqualified person."
44Items in Table in Schedule 1 to Act substituted
(1)For items 2 and 3 in the Table in Schedule 1 to the Principal Act substitute—
"2 Undertaking a prescribed activity without accreditation or outside of scope of accreditation section 15A accredited person or person who is not accredited to undertake the prescribed activity 60 penalty units for natural person;
240 penalty units for body corporate
3 Undertaking a prescribed activity on behalf of person who does not have accreditation or outside of scope of their accreditation section 15B scheme participant 60 penalty units for natural person;
240 penalty units for body corporate".
(2)For item 6 in the Table in Schedule 1 to the Principal Act substitute—
"6 Creation of certificate in breach of a condition or restriction on accreditation section 20A accredited person 60 penalty units for natural person;
240 penalty units for body corporate."
(3)For item 9 in the Table in Schedule 1 to the Principal Act substitute—
"9 Failure to pay shortfall penalty in accordance with shortfall statement section 37A relevant entity 240 penalty units for body corporate."
Division 3—Civil Penalty Requirements
45New section 6A inserted
After section 6 of the Principal Act insert—
"6A Relevant legislation
For the purposes of the Essential Services Commission Act 2001—
(a)this Act is relevant legislation; and
(b)the VEET scheme is a regulated industry.".
46New Part 6A inserted
After Part 6 of the Principal Act insert—
"Part 6A—Civil penalty requirements
40BCivil penalty requirements
(1)The Table in Schedule 1 sets out civil penalty requirements for the purposes of the Essential Services Commission Act 2001 and, for each civil penalty requirement—
(a)the provision which is a civil penalty requirement; and
(b)the regulated entity that is subject to the civil penalty requirement.
(2)A provision specified in column 3 of the Table in Schedule 1 constitutes 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.
(3)A person or entity specified in column 4 of the Table in Schedule 1 is a regulated entity for the purposes of Divisions 1 and 2 of Part 7 and 54ZN of the Essential Services Commission Act 2001.
(4)An amount specified in column 5 of the Table in Schedule 1 is a civil penalty amount for the purposes of section 54E(f) of the Essential Services Commission Act 2001.
40CNotice penalties
For the purposes of section 54T(1)(a)(ii) and (b)(ii) of the Essential Services Commission Act 2001, the regulations may prescribe the notice penalty for a contravention by a regulated entity of a civil penalty requirement specified in column 3 of the Table in Schedule 1.
40DContravening a civil penalty provision is not an offence
To avoid doubt, a contravention of a civil penalty provision is not an offence.".
47New Schedule to Act inserted
At the end of the Principal Act insert the following Schedule—
"Schedule 1—Table of civil penalty requirements and civil penalty amounts
| Table of civil penalty requirements and civil penalty amounts | ||||
| 1 | 2 | 3 | 4 | 5 |
| Item | Description of civil penalty requirement | Provision of the Act that is a civil penalty requirement | Regulated entity | Civil penalty amount |
| 1 | * | * | * | * |
| 2 | * | * | * | * |
| 3 | * | * | * | * |
| 4 | Creation of more than one certificate in respect of reduction of greenhouse gas emissions | section 20(5)(a) | accredited person | 60 penalty units for natural person; 240 penalty units for body corporate |
| 5 | Creation of certificate in respect of a prescribed activity for which a benefit has already been obtained | section 20(6) | accredited person | 60 penalty units for natural person; 240 penalty units for body corporate |
| 6 | * | * | * | * |
| 7 | * | * | * | * |
| 8 | * | * | * | * |
| 9 | * | * | * | * |
| 10 | Failure to comply with a certificate surrender order issued under section 38(1) | section 38(2) | accredited person to whom the ESC has issued a certificate surrender notice in accordance with section 38(1) | 600 penalty units and an additional penalty unit for each certificate not surrendered |
| 11 | Failure to comply with a certificate surrender notice issued under section 40(1) | section 40(2) | person to whom the ESC has issued a certificate surrender notice in accordance with section 40(1) | 600 penalty units and an additional penalty unit for each certificate not surrendered. |
".
48Regulations
After section 75(1)(h) of the Principal Act insert—
"(ha)prescribing the notice penalty for a contravention by a regulated entity of a civil penalty requirement specified in column 3 of the Table in Schedule 1;".
Part 6—Audits
49Definitions
In section 3(1) of the Principal Act insert the following definitions—
"assurance audit means an audit conducted under Division 2 of Part 7A;
assurance audit schedule means a schedule published in accordance with section 55K;
compliance audit means an audit conducted under Division 1 of Part 7A;
independent auditor means an auditor included in the list of independent auditors;
list of independent auditors means the list published by the ESC in accordance with section 55L;".
50Role of ESC
For section 7(2)(d) of the Principal Act substitute—
"(d)undertake compliance audits of accredited persons;
(da)administer the conduct of independent compliance audits and independent assurance audits;".
51Repeal of section 19A
Section 19A of the Principal Act is repealed.
52New Part 7A inserted
After Part 7 of the Principal Act insert—
"Part 7A—Audits
Division 1—Compliance audits
55ACompliance audit
(1)If the ESC has reasonable grounds to suspect that an accredited person has contravened a provision of this Act or regulations made under it, the ESC may—
(a)conduct an audit of the accredited person's compliance with this Act and regulations made under it; or
(b)require the accredited person to appoint an independent auditor to audit the accredited person's compliance with this Act and regulations made under it.
(2)A compliance audit may relate to one or more matters.
55BNotice of compliance audit by ESC
Before conducting a compliance audit of an accredited person, the ESC must give the accredited person written notice of the following—
(a)the matters to be covered by the compliance audit;
(b)the date or dates on which the audit will be conducted;
(c)the accredited person's obligation to cooperate with the ESC for the conduct of the compliance audit.
55CReport of compliance audit by ESC
(1)The ESC must prepare an audit report on the completion of conducting a compliance audit of an accredited person.
(2)The ESC must provide the accredited person with a copy of the audit report within 90 days of the finalisation of the audit report.
55DNotice of compliance audit by independent auditor
(1)If the ESC requires an accredited person to appoint an independent auditor to conduct a compliance audit, the ESC must give the accredited person written notice of the following—
(a)the requirements for appointing an independent auditor to conduct the compliance audit;
(b)the requirement for the independent auditor, when conducting a compliance audit, to comply with any matters specified in the ESC guidelines for the purposes of this Division;
(c)the matters to be covered by the compliance audit;
(d)the required form of the audit report;
(e)the matters to be addressed by the audit report;
(f)the timeframe in which the audit report must be provided to the ESC.
(2)A written notice under subsection (1) must be accompanied by a copy of the applicable ESC guidelines.
55EIndependent auditor must comply with guidelines
An independent auditor who conducts a compliance audit of an accredited person must comply with the matters specified in the ESC guidelines for the purposes of this Division.
55FObligations of accredited person
(1)An accredited person who appoints an independent auditor to conduct a compliance audit must—
(a)comply with the requirements of the notice under section 55D; and
(b)cooperate with the independent auditor in the conduct of the compliance audit.
(2)An accredited person is responsible for the costs associated with the compliance audit.
(3)An accredited person must ensure that the ESC is provided with a copy of the audit report by the date specified in the notice under section 55D.
Division 2—Assurance audits
55GAssurance audit
(1)The ESC may require an accredited person to obtain an independent audit of the reliability, accuracy and completeness of a matter specified by the ESC.
(2)An assurance audit may relate to one or more matters.
(3)An accredited person must appoint an independent auditor to conduct an assurance audit when required by the ESC.
55HNotice of assurance audit by independent auditor
(1)If the ESC requires an accredited person to appoint an independent auditor to conduct an assurance audit, the ESC must give the accredited person written notice of the following—
(a)the requirements for appointing an independent auditor to conduct the assurance audit;
(b)the requirement for the independent auditor, when conducting an assurance audit, to comply with the matters specified in the ESC guidelines for the purposes of this Part;
(c)the matters to be covered by the assurance audit;
(d)the required form of the audit report;
(e)the matters to be addressed by the audit report;
(f)the timeframe in which the assurance audit report must be provided to the ESC.
(2)A written notice under subsection (1) must be accompanied by a copy of the applicable ESC guidelines.
55IIndependent auditor must comply with guidelines
An independent auditor who conducts an assurance audit of an accredited person must comply with the matters specified in the ESC guidelines for the purposes of this Division.
55JObligations of accredited person
(1)An accredited person who appoints an independent auditor to conduct an assurance audit must—
(a)comply with the requirements of the notice under section 55H; and
(b)cooperate with the independent auditor in the conduct of the assurance audit.
(2)An accredited person is responsible for the costs associated with an assurance audit.
(3)An accredited person must ensure that the ESC is provided with a copy of the audit report by the date specified in the notice under section 55H.
Note
See section 55P which provides a person with protection against self-incrimination.
55KSchedule for conduct of assurance audits
(1)The ESC must prepare and administer a schedule for the conduct of assurance audits of accredited persons to ensure that an accredited person is audited at regular intervals.
(2)The audit schedule must provide for the conduct of an assurance audit of an accredited person at least once every 2 years.
(3)The audit schedule must be published on the ESC's internet site.
(4)The ESC must review and update the audit schedule at least once every 12 months.
Division 3—Auditor requirements
55LList of independent auditors
(1)The ESC must publish and maintain on the ESC's internet site a list of independent auditors.
(2)The ESC must not include an auditor in the list of independent auditors unless the ESC is satisfied that the auditor—
(a)has the relevant skills, competencies and qualifications to conduct assurance audits or compliance audits in accordance with this Part; and
(b)has undertaken training or has sufficient knowledge or experience in relation to the VEET scheme.
(3)At any time, the ESC may require an auditor who is included in the list of independent auditors to undertake training in relation to the VEET scheme.
(4)The ESC may remove an auditor from the list of independent auditors if the ESC believes on reasonable grounds that the auditor—
(a)no longer satisfies the requirements specified in subsection (2)(a) or (b); or
(b)in the conduct of a compliance audit or assurance audit, has contravened any applicable requirements of this Act or regulations or guidelines made under it.
55MAppointment of independent auditor
(1)An accredited person must not appoint an auditor to conduct a compliance audit or an assurance audit unless the auditor is included on the list of independent auditors.
(2)The ESC may specify in guidelines the number of consecutive times that an accredited person can appoint the same auditor to conduct a compliance audit.
Division 4—Other matters relating to audits
55NOffence to provide false or misleading information to auditor
A person must not, without reasonable excuse, give information to an auditor conducting a compliance audit or an assurance audit that the person knows or believes to be false or misleading in a material particular.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.
55OOffence to withhold information from auditor
A person who is required to disclose information to an auditor for the purposes of a compliance audit or an assurance audit must not, without reasonable excuse, withhold the information from or otherwise fail to disclose the information to the auditor.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 240 penalty units.
55PProtection against self-incrimination
It is a reasonable excuse for the purposes of section 55O or 55N for a person to refuse or fail to disclose information or produce a document to an auditor if the disclosure of the information or production of the document would tend to incriminate the person.
55QConditions or restrictions of accreditation
(1)The ESC may impose a condition or a restriction on the accreditation of an accredited person if—
(a)an auditor has conducted a compliance audit or assurance audit of the accredited person; and
(b)the accredited person has not met the required standards for one or more matters addressed by the audit.
(2)A condition or restriction imposed under subsection (1) may be—
(a)a prescribed condition or restriction; or
(b)any other condition or restriction that the ESC considers appropriate in the circumstances.
(3)The ESC may vary the conditions or restrictions of accreditation on the application of the accredited person under section 13D.
55RESC may publish audit information
(1)The ESC may publish on the ESC's internet site information about compliance audits and assurance audits conducted for accredited persons.
(2)Information must not be published under subsection (1) about an accredited person unless the auditor did not identify any significant issues in the conduct of an audit of the accredited person.".
53Records to be kept by accredited persons and relevant entities
In section 72(5) and (6) of the Principal Act, for "revoked" substitute "cancelled".
54ESC Guidelines
For section 74(2)(e) of the Principal Act substitute—
"(e)the auditing by the ESC of compliance with this Act and regulations made under it;
(ea)the conduct of a compliance audit by an independent auditor;
(eb)the conduct of an assurance audit by an independent auditor;".
55Transitional provisions
After section 77 of the Principal Act insert—
78AAReferences to revoke or revocation—Victorian Energy Efficiency Target Amendment Act 2022'
A reference in regulations made under this Act or any instrument made under or in relation to this Act—
(a)to "revoke" is taken to be a refence to "cancel"; and
(b)to "cancellation" is taken to be a reference to "revocation".
78ABAssurance audit schedule—Victorian Energy Efficiency Target Amendment Act 2022
The ESC must prepare an assurance audit schedule in accordance with section 55K before the first anniversary of the commencement of section 52 of the Victorian Energy Efficiency Target Amendment Act 2022.'.
Part 7—Review of decision making
56Review of decisions
(1)In the heading to section 56 of the Principal Act, after "decisions" insert "by ESC".
(2)In section 56(2) of the Principal Act, after "decisions" insert "for the purposes of this section".
(3)For the Table in section 56(2) of the Principal Act substitute—
"Table of reviewable decisions Item For a decision... made under... the affected person is... 1 to refuse an application for accreditation section 11 the applicant 2 * * * 3 * * * 4 to suspend a person's accreditation section 14 or 14A the accredited person 5 to revoke a person's accreditation section 14A the accredited person 6 * * * 7 not to register a certificate or multiple certificates section 22 the person who created the certificate or certificates 8 * * * 9 * * * 10 * * *
".
(4)After section 56(2) of the Principal Act insert—
"(2A)The regulations may prescribe—
(a)a decision under this Act or regulations made under it to be a reviewable decision; and
(b)a person or body to be an affected person.".
(5)For section 56(5) of the Principal Act substitute—
"(5)The ESC must provide an affected person with written notice of the ESC's decision under subsection (4) within 40 business days after the request to reconsider the decision is received by the ESC.
(5A)A notice of a decision under this section must include the reasons for the decision.".
57New sections 56A to 56E inserted
After section 56 of the Principal Act insert—
"56A Conduct of internal review
A review of a reviewable decision under section 56 may be conducted by—
(a)the ESC; or
(b)a person delegated the function under section 26 of the Essential Services Commission Act 2001.
56BReview of decisions by VCAT
(1)An affected person in relation to a reviewable decision may apply to VCAT for a review of the decision.
(2)The following Table sets out the reviewable decisions for the purposes of this section and, for each decision, sets out the provision under which it is made and the affected person in relation to that reviewable decision.
Table of reviewable decisions Item For a decision... made under... the affected person is... 1 to refuse an application for accreditation section 11 the applicant 2 * * * 3 * * * 4 to suspend a person's accreditation section 14 or 14A the accredited person 5 to revoke a person's accreditation section 14A the accredited person 6 * * * 7 not to register a certificate or multiple certificates section 22 the person who created the certificate or certificates 8 * * * 9 * * * 10 * * * 11 prescribed to be a reviewable decision for the purposes of section 56 the prescribed section the prescribed applicant (3)An application by an affected person must be made within 28 days of the later of—
(a)the decision that is the subject of the application; or
(b)if, under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which—
(i)the statement of reasons is given to the person; or
(ii)the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
56CPerson must seek internal review first
A person must not seek a review by VCAT under section 56B in relation to a reviewable decision within the meaning of that section unless the person—
(a)has sought an internal review of the decision by the ESC under section 56; and
(b)has received written notice of the ESC's decision under section 56(4).
56DProceedings for review by VCAT
On an application under section 56A in relation to a reviewable decision within the meaning of that section, VCAT may—
(a)affirm the decision of the ESC; or
(b)set aside the decision of the ESC and remit the matter to the ESC for reconsideration of the decision in accordance with any directions or recommendations of VCAT.
56EESC to give effect to VCAT decisions
The ESC must take such action as is necessary to give effect to a decision of VCAT.".
58Transitional provision
After section 77 of the Principal Act insert—
"78 Reviewable decisions—Victorian Energy Efficiency Target Amendment Act 2022
(1)Despite the amendment of Division 1 of Part 8 by Part 7 of the Victorian Energy Efficiency Target Amendment Act 2022, that Division, as in force immediately before the commencement date, continues to apply to the review by the ESC of a reviewable decision that is on foot on the commencement date.
(2)Subject to subsection (1), section 56, as amended by Part 7 of the Victorian Energy Efficiency Target Amendment Act 2022, applies to a decision of the ESC made before, on or after the commencement date.
(3)Section 56B, as inserted by Part 7 of the Victorian Energy Efficiency Target Amendment Act 2022, applies to a reviewable decision for which the ESC has made a decision under section 56(4) on or after the commencement date.
(4)In this section—
commencement date means the date of commencement of Part 7 of the Victorian Energy Efficiency Target Amendment Act 2022.".
Part 8—Miscellaneous amendments
Division 1—Amendments relating to certificates and other matters
59Who may create a certificate?
(1)For section 16(1) and (2) of the Principal Act substitute—
"(1)Subject to sections 17 and 18, any of the following persons may create a certificate in relation to a prescribed activity if the person is an accredited person—
(a)the consumer of electricity or gas in respect of whom the prescribed activity is undertaken;
(b)if the prescribed activity is the sale of an appliance or any equipment which has an efficiency rating prescribed as a high efficiency rating for an appliance or equipment of that kind or class, the person who sells the appliance or equipment;
(c)a person who is the holder of an assignment of a right to create a certificate made by a person referred to in paragraph (a) or (b).
(2)For the purposes of subsection (1)(a), the owner of a premises who is not a consumer of electricity or gas at the premises is taken to be the consumer if the owner—
(a)is the landlord of the premises and has arranged for the prescribed activity to be undertaken at the premises; or
(b)is undertaking the construction or renovation of the premises and the premises are not currently connected for electricity or gas.".
(2)In section 16(3) of the Principal Act, for "subsection (1)(b)" substitute "subsection (1)(c)".
(3)In section 16(4) of the Principal Act, for "consumer" (where twice occurring) substitute "person".
60Certificates may be transferred
After section 24(2) of the Principal Act insert—
"(2A)The notification must include information specified in the ESC guidelines.".
61Owner may surrender certificate voluntarily
(1)In section 25(1) of the Principal Act, for "The owner" substitute "Subject to subsection (4), the owner".
(2)After section 25(3) of the Principal Act insert—
"(4)The owner of a certificate must not voluntarily surrender the certificate in contravention of a Ministerial order made under subsection (7).
(5)The Minister must publish in the Government Gazette a notice of intention to disallow the voluntary surrender of certificates for a specified period.
(6)A notice under subsection (5) must include—
(a)the proposed period of disallowance; and
(b)the reasons for the proposed period of disallowance; and
(c)the procedures for the making and consideration of submissions.
(7)If the Minister, after complying with subsection (5), determines that the limitation on the voluntary surrender of certificates is necessary to protect the integrity of the operation of this Act, the Minister may make the order to limit the voluntary surrender of certificates for a specified period by notice published in the Government Gazette.".
62Certificate surrender notice
Section 38(3) of the Principal Act is repealed.
63Application for declaration and order requiring surrender of certificates
Section 39(3) of the Principal Act is repealed.
64Information may be disclosed to specified persons or bodies
(1)In section 66 of the Principal Act—
(a)in paragraph (i), for "powers." substitute "powers; or";
(b)after paragraph (i) insert—
"(j)a public sector body or Council for the purposes of administering a program related to prescribed activities; or
(k)a non-Victorian government body approved by the Minister; or
(l)a Distribution Network Service Provider for the purpose of assessing the impact of prescribed activities on energy demand; or
(m)an accredited person for the purpose of informing the accredited person of a scheme participant's compliance with the code of conduct; or".
(2)At the end of section 66 of the Principal Act insert—
"(2)For the purposes of subsection (1)(k), the Minister, by notice published in the Government Gazette, may approve a non‑Victorian government body to be a body to which information may be divulged or communicated under subsection (1).
(3)The Minister must not approve a non‑Victorian government body under subsection (2) unless the Minister is satisfied that the body administers an energy efficiency program under a law of another State or Territory or of the Commonwealth.
(4)In this section—
Council has the same meaning as in section 3(1) of the Local Government Act 2020;
Distribution Network Service Provider has the same meaning as in section 13 of the National Electricity (Victoria) Act 2005;
non-Victorian government body means the equivalent of a public sector body that is established by or under, or holds an office or position under, the law of another State or a Territory or of the Commonwealth;
public sector body has the same meaning as in section 4(1) of the Public Administration Act 2004.".
65Fees
After section 73(2)(c) of the Principal Act insert—
"(ca)fees for the approval of a product;".
66ESC guidelines
In section 74(2) of the Principal Act, after paragraph (b) insert—
"(ba)the information to be included in a notice for the transfer of a certificate;".
Division 2—Regulations dealing with transitional matters
67New section 75A inserted
After section 75 of the Principal Act insert—
"75A Regulations dealing with transitional matters
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the amending Act, including the repeals and amendments made by the amending Act.
(2)Regulations made under this section may—
(a)have a retrospective effect to a day on or from the day on which the amending Act received the Royal Assent;
(b)be of limited or general application;
(c)leave any matter or thing to be decided by a specified person or class of person;
(d)provide for the exemption of persons or things or a class of persons or things from any of the regulations made under this section.
(3)Regulations made under this section do not operate so as—
(a)to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of their making;
(b)to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of their making.
(4)Regulations under this section have effect despite anything to the contrary—
(a)in any Act (other than this Act or the amending Act or the Charter of Human Rights and Responsibilities Act 2006);
(b)in any subordinate instrument.
(5)In this section—
amending Act means the Victorian Energy Efficiency Target Amendment Act 2022.
(6)This section is repealed on the second anniversary of the day on which it comes into operation.".
Part 9—Amendment of Essential Services Commission Act 2001
68Amendment of Essential Services Commission Act 2001
In section 3 of the Essential Services Commission Act 2001, after paragraph (fb) of the definition of essential service insert—
"(fc)the VEET scheme within the meaning of the Victorian Energy Efficiency Target Act 2007;".
Part 10—Repeal of this Act
69Repeal of this Act
This Act is repealed on 1 November 2024.
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: 23 June 2022
Legislative Council: 16 August 2022
The long title for the Bill for this Act was "A Bill for an Act to amend the Victorian Energy Efficiency Target Act 2007 and the Essential Services Commission Act 2001 and for other purposes."
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