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ESSENTIAL SERVICES COMMISSION AMENDMENT ACT 2008 (NO. 15 OF 2008) - SECT 21

New Part 6 inserted—Codes of Practice

After Part 5 of the Essential Services Commission Act 2001 insert

" PART 6—CODES OF PRACTICE

        47     Power to make Codes of Practice

    (1)     The Commission may make, amend or revoke Codes of Practice in accordance with this Part for the purpose of performing regulatory functions in respect of a regulated industry.

    (2)     Without limiting the generality of subsection (1), a Code of Practice may provide for any matter relating to—

        (a)     requiring a specified regulated entity or a specified class of regulated entity to develop, issue and comply with customer-related standards, procedures, policies and practices (including with respect to the payment of compensation to customers) in accordance with the Code of Practice;

        (b)     specifying minimum customer-related standards, procedures, policies and practices for inclusion by a specified regulated entity or a specified class of regulated entity in a customer charter for specific services;

        (c)     requiring a specified regulated entity or a specified class of regulated entity to enter into an agreement with another specified regulated entity or another specified class of regulated entity for the purpose of ensuring that obligations relating to customer-related standards can be met;

        (d)     specifying principles for the negotiation of agreements required under paragraph (c) between regulated entities in relation to standards and conditions of service and supply;

        (e)     requiring regulated entities to maintain specified accounting records and to prepare accounts according to specified principles.

    (3)     A Code of Practice may establish principles giving practical guidance in relation to the performance of the functions and the exercise of the powers of the Commission.

    (4)     A Code of Practice may—

        (a)     impose a duty on any person;

        (b)     direct how any matter or thing is to be done;

        (c)     create an enforceable legal right;

        (d)     impose any liability or penalty, including proportionate penalties for failures to comply with requirements imposed by the Code of Practice.

    (5)     A Code of Practice is not a determination.

    (6)     A reference in this Part to—

        (a)     a proposed Code of Practice includes a reference to a proposed amendment to a Code of Practice;

        (b)     a Code of Practice includes a reference to an amendment to a Code of Practice.

        48     Power to apply, adopt or incorporate

    (1)     A Code of Practice may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—

        (a)     wholly or partially or as amended by the Code of Practice; or

        (b)     as formulated, issued, prescribed or published at the time the Code of Practice is made or at any time before then; or

        (c)     as formulated, issued, prescribed or published from time to time.

    (2)     If a Code of Practice has applied, adopted or incorporated any matter contained in any document, code, standard, rule, specification or method as formulated, issued, prescribed or published from time to time and that document, code, standard, rule, specification or method is at any time amended, until the Commission causes notice to be published in the Government Gazette of that amendment, the document, code, standard, rule, specification or method is to be taken not to have been so amended.

    (3)     Without limiting the generality of subsection (1), a Code of Practice may apply, adopt or incorporate by reference any benchmarks, standards or technical references.

        49     Regulatory scrutiny of Codes of Practice

    (1)     This section applies in respect of the making or amending of a Code of Practice under this Part or under any relevant legislation.

    (2)     The Commission must prepare a regulatory statement in respect of a proposed Code of Practice.

    (3)     A regulatory statement must include—

        (a)     a statement of the objectives of the proposed Code of Practice;

        (b)     an evaluation of the costs and benefits of the proposed Code of Practice;

        (c)     an evaluation of alternative means of achieving those objectives;

        (d)     a draft copy of the proposed Code of Practice.
s. 21

    (4)     The evaluation of the costs and benefits must include an assessment of the economic, environmental and social impact and the likely administration and compliance costs including resource allocation costs.

    (5)     The Chairperson must ensure the adequacy of the regulatory statement and of the assessment included in the regulatory statement.

    (6)     The Chairperson must ensure that a notice in accordance with subsection (7) is published in—

        (a)     the Government Gazette; and

        (b)     a daily newspaper circulating generally throughout Victoria; and

        (c)     in any trade, professional or public interest publications as the Chairperson considers appropriate.

    (7)     A notice must—

        (a)     state the reason for, and the objectives of, the proposed Code of Practice;

        (b)     summarise the results of the regulatory statement;

        (c)     specify where a copy of the regulatory statement and of the proposed Code of Practice can be obtained;

        (d)     invite public comments or submissions within such time (being not less than 28 days from the publication of the notice) as is specified in the notice.

    (8)     The Chairperson must ensure that all comments and submissions are considered before the proposed Code of Practice is made.
s. 21

    (9)     The Chairperson must ensure that appropriate notice is given of the decision to make, or not to make, a proposed Code of Practice.

    (10)     Before a Code of Practice is made, the Chairperson must give a certificate in writing specifying—

        (a)     that the requirements relating to regulatory statements have been complied with; and

        (b)     that in his or her opinion the regulatory statement adequately assesses the likely impact of the proposed Code of Practice.

    (11)     The Chairperson must ensure that a copy of the regulatory statement and the compliance certificate is given to the Scrutiny of Acts and Regulations Committee of the Parliament as soon as practicable after the Code of Practice is made.

        50     Availability of Codes of Practice

    (1)     Upon the making of a Code of Practice, the Commission must cause—

        (a)     a copy of the Code of Practice; and

        (b)     a notice specifying—

              (i)     the date of commencement of the Code of Practice; and

              (ii)     the place where copies of the Code of Practice may be obtained—

to be published in the Government Gazette.

    (2)     A Code of Practice or a provision of a Code of Practice comes into operation at the beginning of the day specified in the notice under subsection (1) which must be a day that is later than the day on which the Government Gazette is published.

        51     Tabling and disallowance

    (1)     On or before the 6th sitting day after notice of the making of a Code of Practice is published in the Government Gazette, the Commission must ensure that a copy of the Code of Practice is laid before each House of the Parliament.

    (2)     A failure to comply with subsection (1) does not affect the operation or effect of the Code of Practice but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament.

    (3)     A Code of Practice may be disallowed in whole or in part by either House of Parliament.

    (4)     Part 5 of the Subordinate Legislation Act 1994 applies to a Code of Practice as if—

        (a)     a reference in that Part to a "statutory rule" were a reference to the "Code of Practice"; and

        (b)     a reference in section 23(1)(c) of that Part to " section 15(1)" were a reference to "section 51(1) of the Essential Services Commission Act 2001 ".".



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