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Essential Services Commission (Governance, Procedural and Administrative Improvements) Amendment Bill 2018

             Essential Services Commission
             (Governance, Procedural and
             Administrative Improvements)
                 Amendment Bill 2018
 Note: Lodged in lieu with corrections to Clause notes 24 and 25--the reference in
 Clause note 24 to "Clause 25" has been changed to "Clause 24" and the reference
        in Clause note 25 to "Clause 26" has been changed to "Clause 25".


                          Introduction Print


                EXPLANATORY MEMORANDUM


                                    General
In 2016, a review of the Essential Services Commission Act 2001 (the Act)
was conducted in accordance with the requirements of section 66 of the
Act. The Bill implements several of the recommendations of the review
including--
         •      replacing appeal panels established under the Act with a
               review jurisdiction conferred on the Victorian Civil and
               Administrative Tribunal (VCAT);
         •      enabling the Minister to appoint a person to act as Chairperson
               in the absence of the Chairperson, or a vacancy in the office;
         •      making further provision for the Essential Services
               Commission (Commission) to report on the market structure
               and performance of regulated industries;
         •      providing for a further review of the Act to be completed by
               the end of 2026; and
         •      making amendments to other Acts as a consequence of the
               repeal of provisions providing for appeal panels to hear appeals
               in relation to requirements, decisions or determinations of the
               Commission.


581448                                  1      BILL LA INTRODUCTION 23/8/2018

 


 

Clause Notes Part 1--Preliminary Clause 1 sets out the main purposes of the Bill, which are to amend the Act to-- • repeal provisions providing for appeal panels to hear appeals in relation to requirements, decisions or determinations of the Commission made under the Act; • confer review jurisdiction on VCAT in relation to requirements, decisions or determinations of the Commission made under the Act; • make provision for the Minister instead of the Governor in Council to appoint a person to act as Chairperson of the Commission; • make further provision for the Commission to report on the market structure and performance of regulated industries; • provide for a review of the Act to be completed by the end of 2026. The Bill also amends the Victorian Civil and Administrative Tribunal Act 1998 to provide for variations from VCAT's standard powers and the use of material for determining applications for review under the Act. The Bill also makes amendments to other Acts as a consequence of the repeal of provisions providing for appeal panels to hear appeals in relation to requirements, decisions or determinations of the Commission. Clause 2 subclause (1) provides that Part 1 and sections 25 and 26 of the Act come into operation on the day after the day on which the Act receives the Royal Assent. Subclause (2) provides that, subject to subsection (3), the remaining provisions of the Act come into operation on a day or days to be proclaimed. 2

 


 

Subclause (3) provides that if a provision of the Act is not proclaimed, the default commencement date is 1 August 2019. Clause 3 provides that the Act is referred to as the Principal Act in the Bill. Part 2--Amendment of Essential Services Commission Act 2001 Division 1--VCAT review jurisdiction amendments Clause 4 inserts a new definition of application into section 3 of the Act, reflecting that, in future, a person will make an application to VCAT for review, rather than lodging an appeal with an appeal panel. The definitions of appeal, appeal panel and Registrar in section 3 are repealed. This reflects that these functions will be taken over by VCAT and the Registrar of VCAT. Clause 5 makes various amendments to section 38 of the Act to reflect updated terminology and processes that apply to reviews of decisions by VCAT. Subclause (1) amends a reference to lodging a notice of appeal to instead refer to an application being made to VCAT reflecting updated terminology. Subclause (2) replaces a reference to members of an appeal panel with a reference to VCAT. Subclause (3) substitutes section 38(4) of the Act to enable the Commission to disclose information in accordance with VCAT orders. Clause 6 amends section 45(3) of the Act to reflect updated terminology that applies to reviews of decisions by VCAT and to correct the reference to section 56 to reflect amendments made by clause 9. The amendment to section 45(3) recognises that, for the purposes of the final report submitted to the Minister, information in that report is confidential or commercially sensitive if VCAT has prohibited or restricted the disclosure of that information under section 56(b)(ii). Clause 7 amends the heading to Division 3 of Part 7 of the Act to refer to "Review by VCAT" instead of "Appeals". 3

 


 

Clause 8 makes various amendments to section 55 of the Act to reflect updated terminology and processes that apply to reviews by VCAT. Instead of lodging an appeal to an appeal panel, a person will be able to seek a review of a requirement, decision or determination of the Commission by making an application to VCAT on specified grounds. Clause 9 substitutes section 56 of the Act and inserts a new section 56A. New section 56 specifies the decisions that VCAT can make in relation to reviews. The decisions are similar to those that can be made by an appeal panel under current section 56(7). New section 56A requires the Commission to give effect to VCAT decisions. The new section is similar to current section 56(12) of the Act. Clause 10 repeals sections 57, 58 and 59 of the Act. These sections dealt with situations where a decision of an appeal panel was not unanimous, disclosures of interests by appeal panel members and procedures where a member of an appeal panel becomes unavailable. The Victorian Civil and Administrative Tribunal Act 1998 makes equivalent provision for VCAT members. Clause 11 amends section 65 of the Act to remove references to the Registrar. In future, the Registrar of VCAT will handle administrative matters in relation to reviews. Division 2--Acting Chairperson amendments Clause 12 amends section 20 of the Act to enable the Minister to appoint a person to act as Chairperson, rather than the Governor in Council. Subclause (1) amends subsections (1) and (4)(a) to enable the Minister to appoint a person to act as Chairperson during a vacancy in the office or when the Chairperson is absent or otherwise unable to perform the functions of Chairperson. Subclause (2) enables the Minister to determine the terms and conditions of appointment of the person acting as Chairperson (other than remuneration and allowances) and to terminate the appointment of the person acting as Chairperson at any time. 4

 


 

Subclause (3) substitutes subsection (5) and ensures that the acting Chairperson has and may exercise all the powers, and perform all the functions and duties, of Chairperson when acting in the role. The provision is similar to current section 20(5). In addition, it provides that the acting Chairperson is entitled to be paid the remuneration and allowances of the Chairperson while performing the duties and functions of the office of Chairperson. Finally, it ensures that the person is not restricted from engaging in paid employment outside the office. This reflects that acting arrangements are typically short term, arising when the Chairperson goes on leave. Clause 13 is a statute law revision amendment, amending section 28(2) of the Act to reflect the fact that, under section 20, any person can be appointed to act as Chairperson. Division 3--Regulated industries public reporting amendments Clause 14 inserts new section 10AAA into the Act, to provide that the Commission may publicly report on the market structure and performance of a regulated industry, subject to the Act and any empowering instrument. This recognises that a requirement to prepare reports conferred under an applicable law amounts to a function for the purposes of the Act. Division 4--Miscellaneous amendments Clause 15 amends section 38 of the Act to clarify that disclosures of confidential information in relation to special references made under former section 51 of the Act (which expired on 31 December 2007) are handled in accordance with section 38. Clause 16 is a statute law revision amendment. It repeals references in section 63 of the Act to the now-repealed sections 44(7) and 51(7). Clause 17 amends section 66 of the Act to provide for a review of the Act to be completed no later than 31 December 2026. Subclause (2) amends section 66(2) so that the report of the review is tabled no later than the first sitting day after 1 July 2027. 5

 


 

Clause 18 substitutes section 69 of the Act. Section 69 provided for the Regulator-General to become the first Chairperson of the Commission. The section is now spent. The substituted section 69 provides for transitional arrangements arising from the abolition of appeal panels. It provides that despite amendments made by Division 1 of Part 2 of the Bill (the VCAT Amendments), if a notice of appeal has been lodged under section 55 in respect of an appeal before the commencement of the VCAT amendments, and no decision on the appeal has been made before that commencement, the appeal must be heard and determined under the Act as if the Act had not been amended by the VCAT amendments. The new section also provides that if no appeal panel has been constituted under section 56 (before its repeal), one must be constituted to hear and decide the appeal. Further, if an appeal panel has already been constituted under section 56 (before its repeal), it must continue to hear and decide the appeal. Part 3--Amendment of Victorian Civil and Administrative Tribunal Act 1998 Clause 19 inserts new Part 5AB into Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. Clause 11AIB defines Commission to mean the Essential Services Commission established under the Act. Clause 11AIC provides that the Part applies to proceedings for a review of a requirement, decision or determination of the Commission. This aligns with VCAT's review jurisdiction in section 55 of the Act. Clause 11AID limits the evidence that VCAT may consider in a proceeding. VCAT will be limited to considering only the evidence that was in possession of the Commission at the time the requirement, determination or decision was made, and the facts and materials that explain the processes the Commission used. An exception will exist for materially relevant evidence that could not be made available to the Commission before the Commission made its decision. These limitations are similar to those currently found in regulation 16(2) and (3) of the Essential Services Commission Regulations 2011. 6

 


 

Clause 11AIE requires VCAT to make an order in accordance with new section 56 of the Act. This reflects that many of the orders proposed to be available are different to those available to VCAT under its ordinary powers contained in section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998. Part 4--Consequential amendment of other Acts Division 1--Accident Towing Services Act 2007 Clause 20 provides for consequential amendments to section 212F(3) of the Accident Towing Services Act 2007 to reflect the establishment of VCAT's review jurisdiction and correct the reference to section 56 to refer to restrictions on the disclosure of information as well as prohibitions on the disclosure of information. Division 2--Electricity Industry Act 2000 Clause 21 provides for consequential amendments to section 15 of the Electricity Industry Act 2000 to reflect the establishment of VCAT's review jurisdiction. Division 3--Grain Handling and Storage Act 1995 Clause 22 provides for consequential amendments to section 18 of the Grain Handling and Storage Act 1995 to reflect the establishment of VCAT's review jurisdiction. Clause 23 provides for consequential amendments to section 24E of the Grain Handling and Storage Act 1995 to reflect the establishment of VCAT's review jurisdiction in relation to persons whose interests are affected. Division 4--National Electricity (Victoria) Act 2005 Clause 24 provides for statute law revision amendments to section 29 of the National Electricity (Victoria) Act 2005. Among other things, it corrects references to decisions under the AMI Order. Section 29 applies, for the purposes of any appeal under the section, sections 55 and 56 of the Essential Services Commission Act 2001 and Part 3 of the Essential Services Commission Regulations 2011. 7

 


 

Clause 24 also amends section 29 to save the operation of the applied provisions and regulations to that immediately before the commencement of the amendments made by Division 1 of Part 2 of this Bill (when enacted). Division 5--National Gas (Victoria) Act 2008 Clause 25 provides for statute law revision amendments to section 33 of the National Gas (Victoria) Act 2005. Among other things, it updates a reference to the Essential Services Commission Regulations 2011. Section 33 applies, for the purposes of any appeal under the section, sections 55 and 56 of the Essential Services Commission Act 2001 and Part 3 of the Essential Services Commission Regulations 2011. Clause 25 also amends section 33 to save the operation of the applied provisions and regulations to that immediately before the commencement of the amendments made by Division 1 of Part 2 of this Bill (when enacted). Division 6--Port Management Act 1995 Clause 26 provides for consequential amendments to section 49K of the Port Management Act 1995 to reflect the establishment of VCAT's review jurisdiction. Division 7--Rail Management Act 1996 Clause 27 provides for a consequential amendment to the heading to section 38ZS of the Rail Management Act 1996 to reflect the establishment of VCAT's review jurisdiction. Clause 28 provides for a consequential amendment to the heading to section 38ZZQ of the Rail Management Act 1996 to reflect the establishment of VCAT's review jurisdiction. Part 5--Repeal of Amending Act Clause 29 provides for the automatic repeal of the Essential Services Commissioner (Governance, Procedural and Administrative Improvements) Amendment Act 2018 on 1 August 2020. The repeal of this Act does not affect in any way the continuing operation of the amendments made by the Act (see section 15(1) of the Interpretation of Legislation Act 1984). 8

 


 

 


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