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Energy Legislation (Consumer Protection and
Other Amendments) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Act, which are to amend the
Gas Industry Act 2001, the Electricity Industry Act 2000,
the Essential Services Commission Act 2001, the
National Electricity (Victoria) Act 1997, and the Co-operative
Schemes (Administrative Actions) Act 2001.
Paragraphs (a)(i) and (a)(ii) provide that the purposes of
amending the Gas Industry Act 2001 and the Electricity
Industry Act 2000 are to extend the consumer protection safety
net for gas and electricity customers until 31 December 2004 and
to clarify the powers of VENCorp in relation to the Electricity
Industry Act 2000.
Paragraphs (b)(i), (b)(ii) and (b)(iii) set out the purposes of
amending the Electricity Industry Act 2000. These are to
provide that the Essential Services Commission may impose
licence conditions on transmission companies in relation to land
access, to provide that the Essential Services Commission may
direct a transmission company to enter into a lease in relation to
the provision of access to its land and to clarify the power of
distribution, transmission and generation companies to
compulsorily acquire easements in respect of overhead and
underground power lines.
Paragraph (c) provides that the purpose of amending the
Essential Services Commission Act 2001 is to extend the
special reference provisions until 31 December 2004.
Paragraph (d) provides that the purpose of amending the
National Electricity (Victoria) Act 1997 is to ensure that the
protection against civil monetary liability afforded by the
National Electricity (Victoria) Law is fully effective.
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551060 BILL LA CIRCULATION 2/5/2003
Paragraph (e) provides that the purpose of amending the
Co-operative Schemes (Administrative Actions) Act 2001 is to
validate certain administrative actions taken by Commonwealth
authorities or officers under specified Gas Acts.
Clause 2 provides for the commencement of the Act. Sub-clause (1)
allows for commencement on the day after Royal Assent of the
provisions of the Act except for Part 7 and clauses 13 and 15.
Sub-clause (2) provides for the commencement of Part 7 on a day
to be proclaimed. See notes on Part 7 for explanation of delayed
commencement.
Sub-clause (3) provides for the commencement of clauses 13 and
15 on a day to be proclaimed.
Sub-clause (4) provides for a default commencement date of
1 July 2004 for clauses 13 and 15 if these clauses do not come
into operation before that date.
PART 2--AMENDMENTS TO THE GAS INDUSTRY ACT 2001
Clause 3 substitutes "December" for "August" in section 21(7) of the
Gas Industry Act 2001. Section 21 provides for the regulation
of tariffs for prescribed customers. Clause 3 changes the expiry
date for section 21 and for any Order under section 21 to
31 December 2004.
Clause 4 substitutes "December" for "August" in section 42(9) of the
Gas Industry Act 2001. Section 42 provides for offers to supply
and sell gas to be made by a licensee to domestic or small
business customers. Clause 4 changes the expiry date for section
42 to 31 December 2004.
Clause 5 substitutes "December" for "August" in section 43(7) of the
Gas Industry Act 2001. Section 43 provides for the terms and
conditions of contracts for the supply or sale of gas to relevant
customers. Clause 5 changes the expiry date for section 43 to
31 December 2004.
Clause 6 substitutes "December" for "August" in section 44(3) of the
Gas Industry Act 2001. Section 44 provides for deemed
contracts with former franchise customers. Clause 6 changes the
expiry date for section 44 to 31 December 2004.
Clause 7 substitutes "December" for "August" in section 46(11) of the
Gas Industry Act 2001. Section 46 provides for deemed
contracts for the supply and sale of gas to relevant customers.
Clause 7 changes the expiry date for section 46 to 31 December
2004.
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Clause 8 corrects a minor error in section 128(9)(b)(ii) of the
Gas Industry Act 2001.
Clause 9 clarifies that VENCorp's general powers conferred by section 162
of the Gas Industry Act 2001 do not limit the generality of the
powers conferred on VENCorp by the Electricity Industry Act
2000.
Clause 10 amends section 163 of the Gas Industry Act 2001 to clarify that
VENCorp may be directed by the Minister to perform non-
commercial functions in respect of VENCorp's functions under
any legislation.
Clause 11 amends section 164 of the Gas Industry Act 2001 to clarify that
VENCorp's power to delegate by instrument under its official
seal applies to any power of VENCorp under the Gas Industry
Act 2001, the Electricity Industry Act 2000, and any other Act.
PART 3--AMENDMENTS TO THE ELECTRICITY
INDUSTRY ACT 2000
Clause 12 substitutes "2004" for "2003" in section 13(7) of the
Electricity Industry Act 2000. Section 13 provides for the
regulation of tariffs for prescribed customers. Clause 12 changes
the expiry date for section 13 and for any Order under section 13
to 31 December 2004.
Clause 13 inserts a new paragraph (v) into section 21 of the
Electricity Industry Act 2000. The effect of new paragraph (v)
is to enable the Essential Services Commission to include, as a
licence condition in a transmission company's licence, a
condition requiring the transmission company to provide, in
accordance with guidelines under new section 26A, access to a
specified person or a class of person to its land for the purpose of
constructing, operating and maintaining augmentations to the
electricity transmission system.
Clause 14 substitutes "2004" for "2003" in section 23(4) of the
Electricity Industry Act 2000. Section 23 provides that a
licence to sell electricity is deemed to include a condition
prohibiting the licensee from selling electricity to certain
customers. Clause 14 changes the expiry date for section 23 to
31 December 2004.
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Clause 15 inserts new sections 26A and 26B into the Electricity Industry
Act 2000.
New section 26A(1) requires the Essential Services Commission
to prepare guidelines for the purposes of proposed sections 21(v)
and 26B and empowers it to amend the guidelines from time to
time.
New section 26A(2) states that a guideline prepared under
the section is a determination for the purposes of the
Essential Services Commission Act 2001. The effect of this
sub-section is to enable the transmission company to appeal the
preparation or amendment of the guidelines.
New section 26B(1) empowers the Essential Services
Commission, by notice in writing, to direct a transmission
company to lease land to a person in accordance with the
guidelines it has prepared under section 26A in certain specified
circumstances.
New section 26B(2) is equivalent to new section 26A(2) in that it
provides that a direction of the Commission under the section is a
determination for the purposes of the Essential Services
Commission Act 2001.
New section 26B(3) provides that the period within which the
transmission company must enter into the lease is the period
determined in accordance with the guidelines under new
section 26A.
Clause 16 substitutes "2004" for "2003" in section 35(9) of the
Electricity Industry Act 2000. Section 35 provides for offers
to supply and sell electricity to be made by a licensee to domestic
or small business customers. Clause 16 changes the expiry date
for section 35 to 31 December 2004.
Clause 17 substitutes "2004" for "2003" in section 36(7) of the
Electricity Industry Act 2000. Section 36 provides for the
terms and conditions of contracts for the supply or sale of
electricity to relevant customers. Clause 17 changes the expiry
date for section 36 to 31 December 2004.
Clause 18 substitutes "2004" for "2003" in section 37(2) of the
Electricity Industry Act 2000. Section 37 provides for
deemed contracts with former franchise customers. Clause 18
changes the expiry date for section 37 to 31 December 2004.
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Clause 19 substitutes "2004" for "2003" in section 39(11) of the
Electricity Industry Act 2000. Section 39 provides for
deemed contracts for the supply and sale of electricity to
relevant customers. Clause 19 changes the expiry date for
section 39 to 31 December 2004.
Clause 20 amends section 79 of the Electricity Industry Act 2000 which
sets out VENCorp's functions in relation to the electricity
industry.
Sub-clause (1) substitutes paragraph (c) and inserts new
paragraphs (d) and (e) into section 79(1). New section 79(1)(c)
clarifies VENCorp's functions in relation to carrying out
directions of the Minister. New section 79(1)(d) is in identical
terms to current section 79(1)(c) of the Act. New section
79(1)(e) provides that VENCorp has any functions conferred on
it in relation to the electricity industry under the Electricity
Industry Act 2000 or any other Act.
Sub-clause (2) makes a consequential amendment to section
79(2) because of the insertion of new sub-section (3) into section
79 by sub-clause (3).
Sub-clause (3) inserts new sub-section (3) into section 79.
The new sub-section clarifies the power of the Minister to give
directions to the board of VENCorp and the ability of the board
of VENCorp to comply with such directions.
Clause 21 inserts new section 79AA into the Electricity Industry Act
2000. New section 79AA confers on the Minister a power of
direction in respect of VENCorp in similar terms to the Minister's
power in section 171 of the Gas Industry Act 2001.
Proposed new section 79AA(1) provides that the Minister, after
consultation with the Treasurer, may from time to time, by
written notice to the board of VENCorp, give such directions to
the board as the Minister thinks fit.
Proposed new section 79AA(2) provides that the board of
VENCorp must comply with a direction given under the section
but an act or decision of the board is not invalid merely because
of a failure to comply with such a direction.
Clause 22 clarifies the power of distribution companies, transmission
companies and generation companies to acquire easements with
the approval of the Governor in Council under section 86 of the
Electricity Industry Act 2000 by expressly providing that the
power may be used for the purpose of erecting or laying power
lines (or both), as well as maintaining power lines.
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PART 4--AMENDMENTS TO THE ESSENTIAL SERVICES
COMMISSION ACT 2001
Clause 23 substitutes "2004" for "2003" in section 47 of the Essential
Services Commission Act 2001. Section 47 provides that the
special reference provisions in Part 6 of the Act expire on 31
August 2004. Clause 23 changes the expiry date for Part 6 to 31
December 2004.
PART 5--AMENDMENTS TO THE NATIONAL
ELECTRICITY (VICTORIA) ACT 1997
Clause 24 inserts new sections 8AB, 8AC and 8AD in the National
Electricity (Victoria) Act 1997 to give effect to the immunities
provided for in sections 76, 77A and 78 of the National
Electricity (Victoria) Law (as applied by the National
Electricity (Victoria) Act 1997).
Under section 76 of the National Electricity (Victoria) Law, if the
National Electricity Market Management Company Limited
(NEMMCO) is satisfied that it is necessary to do so for reasons
of public safety or the security of the electricity system,
NEMMCO may authorise a person to require a National
Electricity Code participant to take certain action or, if the
National Electricity Code participant has failed to take the action
within a reasonable period, to take the action. A person or a
National Electricity Code participant that acts in accordance with
an authorisation or a requirement does not incur any civil
monetary liability unless the requirement is made, or the action is
taken, in bad faith.
Section 77A of the National Electricity (Victoria) Law provides
immunity for certain acts or omissions of NEMMCO, network
service providers and their respective officers and employees.
They do not incur any civil monetary liability for an act or
omission in the performance or exercise of certain functions or
powers unless the act or omission is done or made in bad faith or
through negligence.
Section 78 of the National Electricity (Victoria) Law provides
that a National Electricity Code participant and its officers and
employees do not incur any civil monetary liability for any
partial or total failure to supply electricity unless the failure is
due to an act or omission done or made in bad faith or through
negligence.
Clause 25 provides that it is the intention of sections 8AB, 8AC and 8AD of
the National Electricity (Victoria) Act 1997 to alter or vary
section 85 of the Constitution Act 1975.
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PART 6--AMENDMENT TO THE ELECTRICITY SAFETY
ACT 1998
Clause 26 repeals the words "very high" from the definition of "urban area"
in section 3 of the Electricity Safety Act 1998, reflecting that for
the purposes of that definition the only relevant fire hazard rating
under section 80 of the Act is "high".
Clause 27 is a statute law revision. It amends the definition of "prescribed
offence" in section 140A of the Electricity Safety Act 1998 to
take out a reference to section 68(1) which no longer exists.
PART 7--AMENDMENT TO CO-OPERATIVE SCHEMES
(ADMINISTRATIVE ACTIONS) ACT 2001
The object of Part 7 of the Bill is to deal with doubts cast by the decision of
the High Court in The Queen v Hughes (2000) 171 ALR 155 on the ability of
Commonwealth authorities or officers to exercise powers and perform
functions under State legislation regulating the gas industry. The predecessor
to the Gas Industry Act 2001, the Gas Industry Act 1994, conferred
powers and functions on the Australian Competition and Consumer
Commission in relation to the Victorian Gas Industry Tariff Order 1998 and
the Market and System Operation Rules. The powers and functions were
conferred on the Australian Competition and Consumer Commission
in reliance on section 44ZZM of the Trade Practices Act 1974 (Cth).
The conferral of these functions and powers was re-enacted in the
Gas Industry Act 2001. The amendments in Part 7 of the Bill ensure that
functions or powers are not imposed on Commonwealth authorities and
officers, including the Australian Competition and Consumer Commission, if
their imposition would exceed the legislative powers of the State and, for the
purposes of State law, validates any previous invalid administrative action.
The Commonwealth has introduced amendments to the Trade Practices Act
1974 (Cth) to ensure that doubts about the validity of the conferral of
functions, powers and duties on the Australian Competition and Consumer
Commission is clarified prospectively.
Clause 2(2) of the Bill provides that Part 7 comes into operation on a day to
be proclaimed. This will allow for the co-ordination of the commencement
of Part 7 of the Bill with the commencement of the amendments to the Trade
Practices Act 1974 (Cth).
Clause 28 inserts a definition of "Gas Act" in section 3 of the Co-operative
Schemes (Administrative Actions) Act 2001. The gas industry
legislation included in the definition is legislation under which
certain functions and powers relating to the regulation of the
Victorian gas industry were conferred on the Australian
Competition and Consumer Commission. The clause also
amends the definition of "commencement time" in section 3 of
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the Co-operative Schemes (Administrative Actions) Act 2001
to provide for the operation of Part 7 of the Bill.
Clause 29 provides that the "Gas Acts" (defined in section 3 of the
Co-operative Schemes (Administrative Actions) Act 2001) are
included as "relevant State Acts" for the purposes of that Act.
Clause 30 amends section 13 of the Co-operative Schemes
(Administrative Actions) Act 2001 to ensure that the enactment,
commencement or operation of Part 7 of the Bill does not give
rise to any liability against the State.
Clause 31 amends section 14 of the Co-operative Schemes
(Administrative Actions) Act 2001 to provide that it is the
intention of section 13 as amended by this Bill to alter or vary
section 85 of the Constitution Act 1975.
Clause 32 amends section 15 of the Co-operative Schemes
(Administrative Actions) Act 2001 to empower the making of
regulations to deal with matters of a savings or transitional nature
that may arise as a consequence of the amendment of that Act by
this Bill.
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