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National Energy Retail Law (Victoria)
Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill is part of the national energy market reform program of the Council
of Australian Governments. The Bill will apply the National Energy Retail
Law in Victoria, the third national law to be established under the reform
program following the National Electricity Law and the National Gas Law.
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the main purpose of the Bill is the establishment of
a national energy customer framework for the regulation of the
retail supply of energy to customers, to make provision for the
relationship between the distributors of energy and the consumers
of energy, to repeal the electricity and gas cross-ownership
restrictions and to make consequential amendments to certain
Acts.
Clause 2 provides for the commencement of the Bill. The Act will come
into operation on a day or days to be proclaimed. The intention
is that the scheme will come into operation on the same day in all
participating jurisdictions. The proposed common
commencement date is 1 July 2012. The clause does not specify
a default commencement date to ensure that, in the event of a
delay, the Act does not come into operation before the
Application Acts of other jurisdictions.
571155 1 BILL LA INTRODUCTION 27/3/2012
Clause 3 defines the term National Energy Retail Law (Victoria) used in
the Bill, and provides that terms used in this Bill and the National
Energy Retail Law set out in the Schedule to the National Energy
Retail Law (South Australia) Act 2011 of South Australia have
the same meaning in this Bill as they have in that Law, except to
the extent that the context or subject matter otherwise indicates or
requires.
PART 2--APPLICATION OF NATIONAL ENERGY RETAIL
LAW
Clause 4 applies as a law of Victoria the National Energy Retail Law set
out in the Schedule to the National Energy Retail Law (South
Australia) Act 2011 of South Australia. The applied National
Energy Retail Law is to be referred to as the National Energy
Retail Law (Victoria).
Clause 5 applies the regulations made under the National Energy Retail
Law as regulations in force for the purposes of the National
Energy Retail Law (Victoria). The applied regulations are to be
referred to as the National Energy Retail Regulations (Victoria).
Clause 6 defines certain expressions that occur in the National Energy
Retail Law (Victoria) and National Energy Retail Regulations
(Victoria) (being expressions whose meaning necessarily varies
according to the jurisdiction within which they are being applied)
for the purposes of their application within Victoria.
Clause 7 provides that the Interpretation of Legislation Act 1984 and the
Subordinate Legislation Act 1994 do not apply to the National
Energy Retail Law (Victoria) or to instruments made under that
Law. The Acts Interpretation Act 1915 of South Australia and
other Acts of South Australia will likewise not apply to the
National Energy Retail Law (Victoria) or to instruments made
under that Law. This clause is required because the framework
of the national energy laws contains its own set of interpretation
provisions and procedures for making subordinate instruments.
2
PART 3--RELATED MATTERS
Clause 8 provides for the Australian Energy Regulator (AER) and the
Australian Competition Tribunal to do acts in, or in relation to,
this State in the performance or exercise of a function or power
conferred by the national energy retail legislation of another
participating jurisdiction.
Clause 9 provides that section 320 of the National Energy Retail Law
(Victoria) has effect in relation to the operation of any provision
of this Bill as if the provision formed part of that Law.
That section provides that the National Energy Retail Law
(Victoria) and the National Energy Retail Rules are to be
construed as operating to the full extent of, but so as not to
exceed, the legislative power of the Legislature of the State.
The effect of this provision is that the Law is construed so as not
to exceed the legislative powers of Parliament, particularly with
respect to the imposition of duties on the Commonwealth bodies.
PART 4--VALIDATION OF INSTRUMENTS AND
DECISIONS OF AER--ENERGY RETAIL LAWS
Clause 10 provides that, if certain conditions are met, instruments and
decisions made by the AER before the National Energy Retail
Law first starts to apply in Victoria are taken to be valid and have
effect from the date that Law first applies as a law in Victoria
under this Bill.
The conditions that must be met are--
the instrument or decision was made on or after the
enactment of the National Energy Retail Law (South
Australia) Act 2011 of South Australia but before the
National Energy Retail Law first started to apply under
this Bill as a law in Victoria; and
if the National Energy Retail Law had started to apply
in Victoria at the time, the instrument or decision could
have been made under the National Energy Retail Law
(Victoria), the National Energy Retail Regulations
(Victoria), this Bill or an instrument under this Bill; and
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the AER complied with any conditions or requirements
that the making of the instrument or decision would
have been subject to (such as consultation or
publication).
Clause 11 provides that the AER is taken to have complied with a
requirement to take a preparatory step before making a decision
or instrument if the AER takes that preparatory step on or after
the enactment of the National Energy Retail Law (South
Australia) Act 2011 of South Australia but before the National
Energy Retail Law first started to apply under this Bill as a law
of Victoria.
This provision and clause 10 enable the AER to undertake such
activities as approving retailers' hardship policies, receiving
applications for national retailer authorisation and promulgating
guidelines in preparation for commencement of the National
Energy Retail Law, National Energy Retail Regulations and
National Energy Retail Rules.
PART 5--VICTORIAN SPECIFIC ARRANGEMENTS AND
REQUIREMENTS
Division 1--Application
Clause 12 provides that the National Energy Retail Law (Victoria) applies
subject to Part 5 of the Bill. Part 5 contains Victorian specific
provisions which ensure that existing consumer rights and
protections in Victoria continue under the national framework.
Division 2--Additional small customer protections
Clause 13 re-enacts section 40B of the Electricity Industry Act 2000 and
section 48A of the Gas Industry Act 2001 to maintain Victoria's
wrongful disconnection scheme. It provides that a retailer must
pay the prescribed amount for wrongful de-energisation or
disconnection of a specified small customer's premises if certain
criteria are met.
The criteria are--
the retailer de-energises the customer's premises; and
4
the retailer fails to comply with the terms and conditions
of the contract between the retailer and customer
specifying the circumstances in which the customer's
premises may be de-energised.
If the customer does not notify the retailer of the de-energisation
of their premises within 14 days after the de-energisation, the
maximum payment is the prescribed capped amount.
Payment may be made directly to the customer or by way of
rebate on the customer's bill and the payment must be made as
soon as practicable after the customer's premises are re-energised.
This provision does not affect any other right any person or body
may have to take action against a retailer in relation to a
de-energisation of premises.
For the purposes of this clause, and taking into account the
definitions in the National Energy Retail Law, 'specified small
customer' means--
a residential customer; or
a business customer who consumes less than
40 megawatt hours (MWh) of electricity each year; or
a business customer who consumes less than
1000 gigajoules (GJ) of gas each year.
Clause 14 provides that a retailer must not include a term or condition in a
specified customer retail contract that permits the retailer to
charge a customer a fee or charge for late payment of a bill.
A term or condition in contravention of this provision is void.
This clause re-enacts section 40C of the Electricity Industry Act
2000 and section 48B of the Gas Industry Act 2001 to maintain
the prohibition in Victoria on late payment fees.
For the purposes of this clause, a 'specified customer retail
contract' means a customer retail contract under which a
customer consumes either or both of the following--
not more than 20MWh of electricity each year;
not more than 150GJ of gas each year.
5
Division 4--Advanced metering infrastructure
Clause 16 provides that a relevant entity must comply with Orders in
Council relating to advanced metering infrastructure made under
the Electricity Industry Act 2000. This clause is consequential
to the amendments to be made to that Act by Part 9 of this Bill--
see, in particular, clause 100. It creates a direct statutory
obligation in place of the deemed licence condition that currently
mandates compliance with such orders.
Division 5--Border areas arrangements
This Division provides for regulations to be made to adjust the
operation of the National Energy Retail Law in border areas of
Victoria that are serviced by electricity distribution systems and
gas pipelines that come from South Australia or New South
Wales. Equivalent provisions will be enacted in those States to
apply where Victorian systems and pipelines supply customers in
their border areas.
Clause 17 provides definitions for certain terms used in the Division.
Clause 18 provides that this Division applies despite anything to the
contrary in this Bill or the National Energy Retail Law (Victoria).
Clause 19 provides a regulation making power for the purpose of border
areas arrangements.
Clause 20 provides for the effect of regulations under clause 19. While the
National Energy Retail Law is uniform in Victoria, South
Australia and New South Wales, each Application Act will
provide for some jurisdictional variations and the regulations
made here and in the other States will provide for the application
of those variations in border areas. The regulations will also
provide for local area retailers and nominated distributors in
border areas.
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PART 6--GENERAL
Division 1--Information held by the Essential Services
Commission
Clause 21 provides that the Essential Services Commission (ESC) may
provide assistance or information to the AER, on its own
initiative or at the request of the AER, if certain criteria are met.
The intention of this provision is to facilitate a smooth transition
to the national framework.
The criteria are that--
if information is provided, it is reasonably required by
the AER for the purposes of this Bill, the regulations,
the National Energy Retail Law (Victoria) or any
instrument made under the National Energy Retail Law
(Victoria); and
if assistance is provided, it is reasonably required by the
AER to perform a function or duty or exercise a power
conferred or imposed under this Bill, the regulations, the
National Energy Retail Law (Victoria) or any
instrument made under the National Energy Retail Law
(Victoria).
The ESC may authorise the AER to disclose provided
information, even if it was provided to the ESC in confidence,
subject only to the Charter of Human Rights and
Responsibilities Act 2006.
Division 2--AER functions and powers under this Act
Clause 22 provides for the AER to be able to use all its usual powers with
respect to compliance with the Victorian specific requirements
provided for in this Bill. Those powers are contained in Parts 8,
12, 13, 14 and 15 of the National Energy Retail Law (Victoria)
and include: requirements for monitoring, auditing and
compliance reporting; enforcement provisions; and evidentiary
matters. Regulations may be made as necessary to add other
provisions of the Law or the National Energy Retail Regulations
(Victoria) or the National Energy Retail Rules. The regulations
may also exclude some provisions of the Bill from the operation
of this clause or modify its operation.
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Subclause (4) provides that the AER may rely on this clause to
require a person to supply information or a document that relates
to a matter that arose before the commencement of the National
Energy Retail Law (Victoria).
Division 3--Miscellaneous
Clause 23 provides that the regulations may prescribe a provision of this
Bill or the regulations as a civil penalty provision, and that the
Table at the foot of section 4(1) of the National Energy Retail
Law (Victoria) is taken to include a provision that is so
prescribed. As with clause 22, the intent of this provision is to
enable the AER to use its compliance powers in relation to
Victorian specific requirements.
Division 4--Regulations
Clause 24 provides general regulation making powers. The regulations will
contain Victorian-specific measures, as well as matters required
by the National Energy Retail Law to be prescribed by each
participating jurisdiction in its local instruments.
Regulations made under this clause may confer a function, power
or discretionary authority or impose a duty on the Minister, the
AER, the Australian Energy Market Commission (AEMC) or
Australian Energy Market Operator (AEMO), or leave any matter
or thing to be from time to time determined, applied, dispensed
with or regulated by the Minister, the AER, the AEMC or
AEMO.
Clause 25 provides that sections 5 and 7 to 12 of the Subordinate
Legislation Act 1994 do not apply to regulations made under this
Bill. Non-application of these sections means that regulations
made under this Bill will not be automatically revoked after
10 years and the Minister will not be required to ensure that a
regulatory impact statement or an exemption certificate is
prepared for such regulations, or publish a notice of decision to
make such regulations. The regulations will still be required to
be published and tabled in Parliament.
This provision will help to preserve the uniformity of the national
framework and avoid duplication of national processes.
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PART 7--TRANSITIONAL ARRANGEMENTS
Division 1--Preliminary
Clause 26 provides definitions for certain terms used in this Part.
Division 2--Temporary disapplication of Part 3 of the Law
Clause 27 defers the application of Part 3 of the National Energy Retail Law
(Victoria) (which relates to connections and the relationship
between distributors and customers) to Victorian gas distributors
and customers until the next Victorian revised gas distribution
access arrangement takes effect. This is due to occur on
1 January 2013. Deferring Part 3 for this relatively short period
will avoid confusion as to the law applicable to the current gas
distribution access arrangements which were settled on the basis
of there being no equivalent to Part 3. See also clause 52.
Division 3--Exempt sellers
Clause 28 provides that the Minister may determine conditions that will
apply to an exempt entity for the purposes of the National Retail
Law (Victoria), that these conditions are taken to be conditions
imposed by the AER under section 112 of the National Energy
Retail Law (Victoria) and that the AER must consult with the
Minister before the AER varies or revokes such conditions.
The intent of this provision is to allow the Minister to set
conditions on retailers that are currently exempt from holding
licences in Victoria under the Electricity Industry Act 2000
and the Gas Industry Act 2001 (the "exempt entities") who will
become exempt sellers under the national framework.
Section 112 of the National Energy Retail Law (Victoria)
provides that the AER may impose conditions on an exempt
seller or class of exempt sellers in accordance with the Rules and
the AER Exempt Selling Guidelines.
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Division 4--Published standing offers
Clause 29 provides that, on the day clause 26 commences, tariffs forming
part of a standing offer under the Electricity Industry Act 2000
or Gas Industry Act 2001 that is in effect immediately before
that time are taken to be standing offer prices under the National
Energy Retail Law (Victoria). The intent of this provision is to
ensure that those tariffs continue in effect.
Clause 30 applies to tariffs forming part of standing offers that have been
published by retailers before the day that clause 26 commences
but have not taken effect by this day, but would have taken effect
on or after this day if not for the repeal of section 35 of the
Electricity Industry Act 2000 and section 42 of the Gas
Industry Act 2001. These tariffs are taken to be standing offer
prices under the National Energy Retail Law (Victoria) and are
taken to have effect on the day the standing offers would have
taken effect. The intent of this provision is to ensure such tariffs
do not need to be republished to take effect.
Division 5--Transitional retail energy contracts
The purpose of this Division is to ensure that customers benefit
from the transition to the National Energy Retail Law (Victoria)
and that accrued rights and obligations continue, particularly in
the case of existing standing offer contracts.
Clause 31 provides for existing standing offer contracts under the
Electricity Industry Act 2000 and the Gas Industry Act 2001
to be replaced with standard retail contracts under the National
Energy Retail Law (Victoria). This is subject to the following
requirements--
any rights or obligations (which include rights and
obligations relating to complaints and disputes, direct
debit authorisations, payments in advance, payment
plans and security deposits) that accrued under the old
standing offer contract before the commencement day
are not affected and continue in effect as if the old
standard offer contract had not been replaced; and
the replacement is not taken to be a termination of the
old standing offer contract with respect to early
termination charges.
10
Clause 32 provides that existing market contracts under the Electricity
Industry Act 2000 and the Gas Industry Act 2001 will be taken
to be standard market retail contracts under the National Energy
Retail Law (Victoria). A term or condition of an old market
contract that is inconsistent with the minimum requirements
under the Law for market retail contracts will continue to have
effect if it confers a right that is more beneficial to the customer,
or imposes an obligation that is less onerous on the customer,
than a term or condition that would be consistent with the
minimum requirements.
Division 6--Transitioned energy distribution contracts
The purpose of this Division is to ensure that customers benefit
from the transition to the National Energy Retail Law (Victoria)
and that accrued rights and obligations continue, particularly in
the case of existing deemed distribution contracts.
Clause 33 provides for existing electricity deemed distribution contracts
under the Electricity Industry Act 2000 to be replaced with
deemed standard connection contracts under the National Energy
Retail Law (Victoria). The termination and replacement does not
affect any rights, obligations or liabilities that accrued under the
terminated contract.
Clause 34 provides for existing gas deemed distribution contracts under the
Gas Industry Act 2001 to be replaced with deemed standard
connection contracts under the National Energy Retail Law
(Victoria). The termination and replacement does not affect any
rights, obligations or liabilities that accrued under the terminated
contract.
Clause 35 provides that existing negotiated small customer connection
contracts under the Electricity Industry Act 2000 and the Gas
Industry Act 2001 will be taken to be negotiated connection
contracts under the National Energy Retail Law (Victoria).
Clause 36 provides, for the avoidance of doubt, that the commencement of
the National Energy Retail Law (Victoria) does not affect an
existing negotiated customer connection contract for a customer
who is not a small customer within the meaning of the Law.
11
Division 7--Specific gas matters
Clause 37 provides that a retailer who has a standard retail contract with a
small customer for the sale of gas must issue a bill for the
customer's consumption of gas at least once every 2 months.
This provision expires on 31 December 2013.
The intent of this provision is to minimise price shocks for
customers who are used to two month billing periods under the
existing Victorian framework, given that the national framework
provides for 3 month billing periods.
Division 8--Other matters
Clause 38 is a construction of references provision. It provides that, until
31 December 2015, every reference to Chapter 5A of the
National Electricity Rules in the National Energy Retail Law
(Victoria) and the National Energy Retail Rules is to be read as a
reference to Chapter 11 of the National Electricity Rules.
Chapter 5A is a new set of rules for retail electricity connections.
Chapter 11 will set out transitional connection rules to apply
instead of Chapter 5A during the current electricity distribution
regulatory period.
Division 9--Savings and transitional regulations
Clause 39 provides a general power for the Governor in Council to make
transitional regulations relating to matters of a savings or
transitional nature consequent on the enactment of this Bill or
amendment of any listed applicable energy Act. This provision is
repealed on 1 July 2017. While key transitional arrangements are
addressed in the Bill there may be matters that arise during the
final stages of implementation that will need to be addressed
through transitional regulations.
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PART 8--AMENDMENT OF OTHER NATIONAL SCHEME
ENERGY ACTS
Division 1--National Electricity (Victoria) Act 2005
Clause 40 substitutes the definition of Tariff Order in section 3(1) of the
National Electricity (Victoria) Act 2005 to provide that the
meaning of the term is the meaning it had before the same
definition is repealed from the Electricity Industry Act 2000 by
this Bill. See also clause 59.
Clause 41 inserts new sections 11A and 11B into the National Electricity
(Victoria) Act 2005, relating to the validation of instruments and
decisions and preparatory steps made or taken by the AER after
the National Energy Retail Law (South Australia) Act 2011 of
South Australia was enacted but before the National Energy
Retail Law (Victoria) first starts to apply. See also clauses 10, 11
and 48.
Clause 42 inserts new sections 11C and 11D into the National Electricity
(Victoria) Act 2005. The intent of these new sections is to
enable the AER to use all its usual powers with respect to
compliance with the regulations made under the National
Electricity (Victoria) Act 2005. See also clauses 22, 23 and 49.
Clause 43 inserts new sections 12A and 12B into the National Electricity
(Victoria) Act 2005, relating to regulation making powers and
the disapplication of certain provisions of the Subordinate
Legislation Act 1994 (which relate to the requirement to
complete a regulatory impact statement and automatic
sunsetting) to regulations made under the new section 12A.
New section 12A will allow regulations to be made that contain
measures specific to Victoria that are currently provided for in
ESC codes and guidelines. See also clauses 24, 25 and 50.
Clause 44 inserts a new Division 2A heading of "Feed-in tariff
modifications" after section 16 of the National Electricity
(Victoria) Act 2005. This amendment is consequential to
clauses 45 and 46.
Clause 45 inserts a new Division 2B heading of "Metering" after
section 16AB of the National Electricity (Victoria) Act 2005.
13
Clause 46 inserts a new section 16BA into the National Electricity
(Victoria) Act 2005. The new section will enable modification
of the operation in this State of Chapters 6B and 7 of the National
Electricity Rules to avoid duplication of and ensure consistency
with Victoria's advanced metering regulatory regime.
Clause 47 amends the definition of AMI Order in section 17 of the
National Electricity (Victoria) Act 2005 to clarify that the
defined term includes the specific Order referred to in the
amendment.
Division 2--National Gas (Victoria) Act 2008
Clause 48 inserts new sections 15A and 15B into the National Gas
(Victoria) Act 2008, relating to the validation of instruments and
decisions and preparatory steps made or taken by the AER after
the National Energy Retail Law (South Australia) Act 2011 of
South Australia was enacted but before the National Energy
Retail Law (Victoria) first starts to apply. See also clauses 10, 11
and 41.
Clause 49 inserts new sections 15C to 15E into the National Gas (Victoria)
Act 2008. The intent of these new sections is to enable the AER
to use all its usual powers with respect to compliance with the
regulations made under the National Gas (Victoria) Act 2008.
See also clauses 22, 23 and 42.
Clause 50 repeals the existing section 16A and inserts new sections 16A
and 16B into the National Gas (Victoria) Act 2008, relating to
regulation making powers and the disapplication of certain
provisions of the Subordinate Legislation Act 1994 (which
relate to the requirement to complete a regulatory impact
statement and automatic sunsetting) to regulations made under
the new section 16A. New section 16A will allow regulations
to be made that contain measures specific to Victoria that are
currently provided for in ESC codes and guidelines. See also
clauses 24, 25 and 43.
Clause 51 makes consequential amendments to definitions in Part 5 of the
National Gas (Victoria) Law 2008. In particular, the definition
of the Wimmera and Colac Tariff Order is being repealed
because the Order is spent. See also clauses 53, 54 and 111.
14
Clause 52 inserts a new Division 2A into Part 5 of the National Gas
(Victoria) Act 2008. The new Division includes transitional
provisions.
In particular, the new section 27B defers the application of
certain Parts of the National Gas Rules until the next Victorian
revised gas distribution access arrangement takes effect. This is
due to occur on 1 January 2013. Deferring those Parts for this
relatively short period will avoid confusion as to the law
applicable to the current gas access arrangements which were
settled on the basis of no equivalents to these Parts of the Rules.
See also clause 27.
New section 27C provides that costs relating to implementation
of the National Energy Retail Law (Victoria) incurred by gas
service providers before 1 January 2013 may be recovered during
the regulatory period commencing on 1 January 2013.
This addresses a timing difficulty under the National Gas Rules
arising from when those costs are incurred and when the service
providers must submit their access arrangement revision
proposals for that regulatory period.
Clause 53 repeals sections 30(1)(a)(i)(B) and 31(b) of the National Gas
(Victoria) Act 2008, which refer to the Wimmera and Colac
Tariff Order. See also clauses 51 and 111.
Clause 54 amends section 32 of the National Gas (Victoria) Act 2008 to
remove references to the Gas Distribution System Code.
This change is required because the Gas Distribution System
Code will no longer apply under the national framework.
See also clause 51.
Clause 55 inserts new section 39(2) into the National Gas (Victoria) Act
2008, to allow a declaration of a distribution system or
transmission system to relate to a specified provision of the
National Gas (Victoria) Law. Section 39 as currently worded
does not allow declarations to be made for different purposes
depending on whether a distribution system or transmission
system is or is not part of the wholesale gas market.
Clause 56 replaces section 42 of the National Gas (Victoria) Act 2008, to
replace a reference to the Gas Distribution System Code with a
reference to the regulations. The new section 42 provides that
the Minister may declare a provision of the regulations to be a
declared metering requirement. This change is required because
15
the Gas Distribution System Code will no longer apply under the
national framework.
Clause 57 amends section 45 of the National Gas (Victoria) Act 2008 to
ensure that terms are defined under that section for the purposes
of the National Gas Rules as well as the National Gas (Victoria)
Law. This clause also replaces the definition of declared
metering requirement: this amendment is consequential to
clause 56.
Division 3--Repeal of Part
Clause 58 provides that Part 8 of this Bill is repealed on the first
anniversary of the first day on which all of the Part's provisions
are in operation.
PART 9--AMENDMENT OF OTHER VICTORIAN ACTS
Division 1--Electricity Industry Act 2000
Clause 59 repeals from section 3 of the Electricity Industry Act 2000
definitions for ACCC, domestic or small business customer,
licensee standing offer, regulated tariff standing offer, relevant
published offer, small retail customer, standing offer, and Tariff
Order, inserts new definitions for exempt seller and retailer
authorisation and replaces the definition of retailer, to ensure
consistency with the National Energy Retail Law (Victoria).
Clause 60 repeals section 7AA of the Electricity Industry Act 2000, which
relates to the declaration of classes of customers and retailers for
the purposes of sections 36A, 40C, 40D and 40E of the
Electricity Industry Act 2000, which are repealed by this Bill.
Clause 61 repeals section 12(1)(b)(i) of the Electricity Industry Act 2000,
which is a spent provision.
Clause 62 repeals section 15 of the Electricity Industry Act 2000, which is
a spent provision.
Clause 63 repeals section 15A of the Electricity Industry Act 2000, which
is a spent provision.
Clause 64 amends section 15E of the Electricity Industry Act 2000 to
remove a redundant reference to charges for excluded services.
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Clause 65 amends section 16(1) of the Electricity Industry Act 2000 to
remove the requirement for electricity retailers to be licensed.
The retail licensing regime is being repealed as retailer
authorisation will be covered under the National Energy Retail
Law (Victoria).
Clause 66 repeals section 18(1)(d) of the Electricity Industry Act 2000,
and is consequential to the repeal of the requirement for
electricity retailers to be licensed.
Clause 67 repeals sections 19(2)(a) and (3) of the Electricity Industry Act
2000, and is consequential to the repeal of the requirement for
electricity retailers to be licensed.
Clause 68 repeals section 21(c) to (f), (j) and (k) of the Electricity Industry
Act 2000, and is consequential to the repeal of the requirement
for electricity retailers to be licensed.
Clause 69 repeals section 23 of the Electricity Industry Act 2000, which is
being re-enacted as clause 15.
Clause 70 repeals section 24 of the Electricity Industry Act 2000, and is
consequential to the repeal of Part 3 of the Electricity Industry
Act 2000 under clause 104.
Clause 71 substitutes section 28 of, and inserts a new 28A into, the
Electricity Industry Act 2000, to directly require retailers and
distributors to be members of a dispute resolution scheme (in
place of the licence condition under the current section 28) and to
confirm minimum requirements for the scheme and the on-going
role of the ESC.
Clause 72 repeals section 31(6)(b) and 31(7) of the Electricity Industry
Act 2000, and is consequential to the repeal of the requirements
for electricity retailers to be licensed.
Clause 73 amends section 33A(1) of the Electricity Industry Act 2000 to
permit conditions in distribution licences to be varied. This will
enable the making of any changes required because of the
implementation of the National Energy Retail Law (Victoria).
The amendments will also ensure matters currently addressed in
ESC codes and guidelines can be provided for in licence
conditions.
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Clause 74 repeals Division 5 of Part 2 of the Electricity Industry Act
2000, which provides for terms and conditions of sale and supply
of electricity. This part of the current Victorian regime will be
replaced by the retail contracts regime and customer protections
in the National Energy Retail Law (Victoria). That said,
wrongful disconnection is dealt with under clause 13, and the
prohibition on late payment fees is dealt with under clause 14.
Clause 75 amends the definitions in section 40F(1) of Division 5A of Part 2
of the Electricity Industry Act 2000. Division 5A establishes
and regulates Victoria's feed-in tariff schemes.
This clause, and clauses 76 to 95, make amendments
consequential to the repeal of electricity retail licensing.
Currently, the requirement for retailers to comply with the
feed-in tariff schemes is linked to their licences. The effect of the
amendments made by this clause, and by clauses 76 to 95, is to
create a direct statutory obligation for retailers to comply instead
of the current deemed licence condition.
Clause 76 amends section 40FA of the Electricity Industry Act 2000, and
is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 77 amends section 40FAB of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 78 amends section 40FB of the Electricity Industry Act 2000, and
is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 79 amends section 40FC(2) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 80 amends section 40FCA(2) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 81 amends section 40FD of the Electricity Industry Act 2000, and
is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
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Clause 82 amends section 40FF of the Electricity Industry Act 2000, and
is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 83 amends 40FG of the Electricity Industry Act 2000. See the
note on clause 75.
Clause 84 substitutes section 40FH of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
As well, use of systems agreements between distributors and
retailers will not be required under the National Energy Retail
Law (Victoria). Also see the note on clause 75.
Clause 85 amends section 40G of the Electricity Industry Act 2000, and is
consequential to the repeal of electricity retail licensing. See the
note on clause 75.
Clause 86 amends section 40H(4) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 87 amends section 40I(1)(b) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 88 amends section 40J(2)(b)(i) and (ii) of the Electricity Industry
Act 2000, and is consequential to the repeal of electricity retail
licensing. See the note on clause 75.
Clause 89 amends section 40M(2) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 90 amends section 40MA(2) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 91 amends section 40MAB(2) of the Electricity Industry Act 2000,
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 92 substitutes sections 40MD and 40ME of the Electricity Industry
Act 2000, and is consequential to the repeal of electricity retail
licensing. See the note on clause 75.
19
Clause 93 amends section 40N(1) and (2) of the Electricity Industry Act
2000, and is consequential to the repeal of electricity retail
licensing. See the note on clause 75.
Clause 94 amends section 40NA(1) and (2) and 40NB(1) and (2) of the
Electricity Industry Act 2000, and is consequential to the repeal
of electricity retail licensing. See the note on clause 75.
Clause 95 amends section 40NC(1) of the Electricity Industry Act 2000
and is consequential to the repeal of electricity retail licensing.
See the note on clause 75.
Clause 96 repeals Division 5B of Part 2 of the Electricity Industry Act
2000, which relates to retail licence conditions relating to
greenhouse gas emissions and energy efficiency benchmarking.
This is part of the repeal of the retail licensing regime.
Clause 97 substitutes Division 6 of Part 2 of the Electricity Industry Act
2000. This substitution has two effects. First, it repeals the
existing sections 41 to 46A which provide for retailers to have
policies to assist customers in financial hardship. The National
Energy Retail Law (Victoria) contains hardship policy provisions
modelled on Victoria's current regime under the Electricity
Industry Act 2000 and Gas Industry Act 2001. See also
clause 120.
Secondly, the new Division 6 provides that the ESC must
maintain a price comparator on an Internet site which assists a
small customer to compare the standing offer price available to
that customer with market offer prices that are generally available
to classes of small customers. This provision requires the ESC
to continue to operate its "YourChoice" website to enable
consumers to compare retail price offers. The new Division
also provides that for the purposes of maintaining the price
comparator the ESC may require information and data from a
retailer.
Clause 98 makes consequential amendments to the definitions in
section 46B of the Electricity Industry Act 2000 with respect to
advanced metering infrastructure (AMI) requirements.
Clause 99 repeals section 46C of the Electricity Industry Act 2000 which
provides for a deemed licence condition requiring compliance
with the AMI regime established in Division 6A of Part 2 of the
Electricity Industry Act 2000. Clause 16 establishes a direct
20
statutory obligation to comply that will be enforceable by the
AER.
Clause 100 substitutes section 46D of the Electricity Industry Act 2000.
The new section re-enacts the power for the Governor in Council
to make an Order relating to AMI, retains the current heads of
power and includes several new heads of power to ensure Orders
made under section 46D can provide appropriate consumer
protections for smart meter customers. These protections
currently exist in the Victorian regulatory regime, but are lacking
in the national framework for AMI which is still under
development. The heads of power also make provision for such
matters as choice of tariff structures and access to information for
in-home displays.
Clause 101 makes consequential amendments to section 46DA of the
Electricity Industry Act 2000 with respect to AMI
requirements.
Clause 102 inserts a new section 47AA into the Electricity Industry Act
2000, which provides that the Secretary to the Department of
Human Services, by written notice, may direct a retailer to enter
into an agreement with the State for the provision of community
services of the kind specified under section 47, and that the
retailer must comply with the direction. This provision replaces
the retail licence condition under section 21(f) of the Electricity
Industry Act 2000 which is being repealed by clause 69, so that
the requirement is now a direct statutory obligation.
Clause 103 repeals Division 8 of Part 2 of the Electricity Industry Act
2000, which provides for supplier of last resort requirements.
The National Energy Retail Law (Victoria) provides for national
retailer of last resort arrangements.
Clause 104 repeals Part 3 of the Electricity Industry Act 2000, which
relates to the separation of generation, transmission and
distributor sectors. The effect of this provision is the removal of
restrictions on cross ownership in the electricity sector.
The provisions of the Competition and Consumer Act 2010 of the
Commonwealth (formerly the Trade Practices Act 1974) will still
apply to any proposals for vertical integration of production and
distribution infrastructure.
21
Clause 105 inserts a new section 94A into the Electricity Industry Act
2000, which provides that a meter or associated infrastructure is
not part of the land on which it is installed and is personal
property. This intent of this provision is to clarify the status of a
meter and associated infrastructure.
Clause 106 inserts a new Part 8 into the Electricity Industry Act 2000
which contains transitional provisions. New section 120 provides
that, for the avoidance of doubt, on the commencement of
clause 65 of this Bill, a licence held by a retailer immediately
before that commencement is revoked. New section 121
provides for the continuation of existing suppliers of last resort,
in case a retailer of last resort for electricity is appointed in
Victoria shortly before the Act commences operation.
Division 2--Gas Industry Act 2001
Clause 107 repeals the definitions of ACCC, domestic or small business
customer, gas bill, gas retailer, licensee standing offer,
regulated tariff standing offer, relevant published offer,
significant producer, small retail customer, specified
circumstances, specified retailer, standing offer, Tariff Order
and Victorian gas market, inserts the definition of retailer and
corrects punctuation in section 3 of the Gas Industry Act 2001,
to ensure consistency with the National Energy Retail Law
(Victoria).
Clause 108 repeals Division 1A of Part 2 of the Gas Industry Act 2001,
which relates to the declaration of small retail customers and
specified gas retailers for the purposes of sections 43A, 48B, 48C
and 48D of the Gas Industry Act 2001 which are being repealed
by clause 119.
Clause 109 repeals Division 3 of Part 2 of the Gas Industry Act 2001, which
relates to determining who is taken to have a substantial degree
of power in a Victorian gas market. The determination of a
substantial degree of power is only used in regards to Part 6 of
the Gas Industry Act 2001, which is being repealed by
clause 125.
Clause 110 amends the heading to Division 4 of Part 2 of the Gas Industry
Act 2001, to omit a redundant reference to the ACCC.
22
Clause 111 repeals section 20 of the Gas Industry Act 2001, which relates
to the Wimmera and Colac Tariff Order. The Order is spent.
See also clauses 51 and 53.
Clause 112 repeals section 22(2) of the Gas Industry Act 2001 to remove
the requirement for gas retailers to hold a licence. The gas retail
licensing regime is being replaced by retailer authorisation under
the National Energy Retail Law (Victoria).
Clause 113 repeals section 25(1)(b) of the Gas Industry Act 2001, and is
consequential to the repeal of gas retail licensing.
Clause 114 repeals section 26(2)(a) and (3) of the Gas Industry Act 2001,
and is consequential to the repeal of gas retail licensing.
Clause 115 repeals section 27 of the Gas Industry Act 2001, which relates
to the grant of a licence for an exclusive franchise to provide a
distribution pipeline or sell gas in a particular area. This section
is spent, and the retail licensing regime is being replaced by
retailer authorisation under the National Energy Retail Law
(Victoria).
Clause 116 repeals section 29(d), (e), (ma) and (r) of the Gas Industry Act
2001, and is consequential to the repeal of gas retail licensing.
Clause 117 substitutes section 36 of, and inserts a new section 36A into, the
Gas Industry Act 2001, to directly require retailers and
distributors to be members of a dispute resolution scheme (in
place of the licence condition under the current section 36) and to
confirm minimum requirements for the scheme and the on-going
role of the ESC.
Clause 118 inserts a new section 40A into the Gas Industry Act 2001 to
permit conditions in distribution licences to be varied. This will
enable the making of any changes required because of the
implementation of the National Energy Retail Law (Victoria).
The new section will also ensure matters currently addressed in
ESC codes and guidelines can be provided for in licence
conditions.
Clause 119 repeals Division 4 of Part 3 of the Gas Industry Act 2001, which
provides for terms and conditions of sale and supply of gas.
This part of the current Victorian regime will be replaced by the
retail contracts regime and customer protections in the National
Energy Retail Law (Victoria). That said, wrongful disconnection
23
is dealt with under clause 13 and the prohibition on late payment
fees is dealt with under clause 14.
Clause 120 substitutes Division 4A of Part 3 of the Gas Industry Act 2001.
This substitution has two effects. First, it repeals the existing
sections 48E to 48K which provide for retailers to have policies
to assist customers in financial hardship. The National Energy
Retail Law (Victoria) contains hardship policy provisions
modelled on Victoria's current regime under the Gas Industry
Act 2001 and Electricity Industry Act 2000. See also
clause 97.
Secondly, the new Division 4A provides that the ESC must
maintain a price comparator on an Internet site which assists a
small customer to compare the standing offer price available to
that customer with market offer prices that are generally available
to classes of small customers. This provision requires the ESC to
continue to operate its 'YourChoice' website to enable consumers
to compare retail price offers. The new Division also provides
that for the purposes of maintaining the price comparator the
ESC may require information and data from a retailer.
Clause 121 inserts a new section 49AA into the Gas Industry Act 2001,
which provides that the Secretary to the Department of Human
Services, by written notice, may direct a retailer to enter into an
agreement with the State for the provision of community services
of the kind specified under section 49, and that a retailer must
comply with the direction. This provision replaces the retail
licence condition under section 29(r) of the Gas Industry Act
2001 which is being repealed by clause 116, so that the
requirement is now a direct statutory obligation.
Clause 122 amends sections 49, 50 and 51 of the Gas Industry Act 2001,
and is consequential to the repeal of gas retail licensing.
Clause 123 repeals Division 6 of Part 3 of the Gas Industry Act 2001, which
provides for supplier of last resort requirements. The National
Energy Retail Law (Victoria) provides for national retailer of last
resort arrangements.
Clause 124 repeals Part 4 of the Gas Industry Act 2001, which relates to
ESC directions to AEMO in relation to supplier of last resort
trigger events. This amendment is consequential to clause 123.
24
Clause 125 repeals Part 6 of the Gas Industry Act 2001, which relates to
prohibited interests. The effect of this Part is the removal of
restrictions on cross ownership in the gas sector. The provisions
of the Competition and Consumer Act 2010 of the
Commonwealth (formerly the Trade Practices Act 1974) will still
apply to any proposals for vertical integration of production and
distribution infrastructure.
Clause 126 amends the heading of Division 1 of Part 7 of the Gas Industry
Act 2001 and is consequential to clause 127.
Clause 127 inserts a new section 140A into the Gas Industry Act 2001,
which provides that a meter or associated infrastructure is not
part of the land on which it is installed and is personal property.
This intent of this provision is to clarify the status of a meter and
associated infrastructure.
Clause 128 amends section 152(1)(e) of the Gas Industry Act 2001, and is
consequential to the repeal of gas retail licensing.
Clause 129 repeals section 232 of the Gas Industry Act 2001, which relates
to a gas retailer's liability for failure to supply gas due to any
accident or cause beyond the control of the gas retailer.
Section 316 of the National Energy Retail Law (Victoria) will
apply instead.
Clause 130 amends section 234 of the Gas Industry Act 2001. This reflects
the repeal of the retail licensing regime.
Clause 131 inserts a new Part 12 into the Gas Industry Act 2001 which
contains transitional provisions. New section 244 provides that
for the avoidance of doubt, on the commencement of section 112,
a licence held by a gas retailer immediately before that
commencement is revoked. New section 245 provides for the
continuation of existing suppliers of last resort, in case a retailer
of last resort for gas is appointed in Victoria shortly before the
Act commences operation.
Division 3--Electricity Industry (Residual Provisions) Act 1993
Clause 132 repeals a redundant definition of retailer in section 154 of the
Electricity Industry (Residual Provisions) Act 1993.
25
Division 4--Essential Services Commission Act 2001
Clause 133 repeals the definitions of empowering instrument and Tariff
Order and inserts a new definition of specified relevant
legislation provision in section 3 of the Essential Services
Commission Act 2001. The definition of specified relevant
legislation provision refers to the provisions in the Electricity
Industry Act 2000 and Gas Industry Act 2001, as amended by
the Bill, that establish direct statutory obligations.
Clause 134 amends section 53 of the Essential Services Commission Act
2001. The effect is to extend the enforcement regime in Part 7 of
the Essential Services Commission Act 2001 to the new direct
statutory authority obligations in the Electricity Industry Act
2000 and the Gas Industry Act 2001.
Clause 135 inserts a new section 54A(1)(a)(ia) into the Essential Services
Commission Act 2001. The effect of this provision is to extend
the enforcement regime in Part 7 of the Essential Services
Commission Act 2001 to the new direct statutory authority
obligations in the Electricity Industry Act 2000 and the Gas
Industry Act 2001.
Division 5--Electricity Safety Act 1998
Clause 136 inserts a new Division 1A into Part 10 of the Electricity Safety
Act 1998, to provide for a distribution company's duty regarding
the quality of electricity distributed. The amendments made by
this clause and clause 137 will ensure certain matters relating to
the quality of electricity distributed that are currently addressed
in ESC codes and guidelines can be provided for under the
Electricity Safety Act 1998.
Clause 137 inserts a new section 149B into the Electricity Safety Act 1998.
New section 149B provides a power for the Governor in Council
to make regulations regarding the standards of electricity
distributed through a distribution system or at a supply point, and
allowing Energy Safe Victoria to exempt a distribution company
from those requirements in prescribed circumstances.
26
Division 6--Gas Safety Act 1997
Clause 138 amends section 118(1)(a) of the Gas Safety Act 1997 to provide
that the regulation making power for the safe conveyance, sale,
supply, measurement, control and use of gas includes the
pressure at which gas is conveyed and supplied. This will ensure
matters currently addressed in ESC codes and guidelines can be
provided for under the Gas Safety Act 1997.
Division 7--Interpretation of Legislation Act 1984
Clause 139 inserts a new section 38G into the Interpretation of Legislation
Act 1984 to provide definitions for the National Energy Retail
Law (Victoria) and the National Energy Retail Regulations
(Victoria).
Division 8--Repeal of Part
Clause 140 provides that Part 9 of the Bill is repealed on the first anniversary
of the first day on which all of the Part's provisions are in
operation.
APPENDICES
Appendix 1 sets out the National Energy Retail Law which is set out in the
Schedule to the National Energy Retail Law (South Australia)
Act 2011 of South Australia, and the accompanying explanatory
clause notes.
Appendix 2 sets out proposed amendments to the National Energy Retail Law
contained in Part 3 of the National Energy Retail Law (South
Australia) (Implementation) Amendment Bill 2012 of South
Australia, and the accompanying explanatory clause notes.
That Bill was second read in the House of Assembly of the
Parliament of South Australia on 15 March 2012.
The Appendices do not form part of the Bill.
27