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PARLIAMENT OF VICTORIA
Essential Services Commission Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose and outline of Act 1
2. Commencement 3
3. Definitions 3
4. Order declaring a regulated industry 4
5. Interpretation and application of Act 5
6. Crown to be bound 6
PART 2--ESSENTIAL SERVICES COMMISSION 7
7. Essential Services Commission 7
8. Objectives of the Commission 7
9. Commission represents Crown 8
10. Functions of the Commission 8
11. Powers of the Commission 9
12. Commission not subject to direction or control 10
13. Commission may publish statements and guidelines 10
14. Commission must publish Charter 10
15. Consultation 10
16. Memoranda of Understanding 12
17. Membership of the Commission 13
18. The Chairperson 13
19. Tenure of office of Chairperson 14
20. Acting appointment 15
21. Additional Commissioners 16
22. Tenure of office of additional Commissioners 16
23. Payment of Chairperson and other Commissioners 18
24. Staff 18
25. Consultants 18
26. Delegation 19
27. Declaration of pecuniary interests 19
28. Meetings of the Commission 20
29. Conduct of particular inquiry or determination 20
30. Determinations of the Commission 21
31. Matters to be included in annual report 21
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Clause Page
PART 3--SPECIFIC POWERS 23
32. Price Regulation 23
33. Price determinations 23
34. Other regulatory powers 26
35. General provisions relating to determinations 26
PART 4--COLLECTION AND USE OF INFORMATION 28
36. Application of Part 28
37. General power to obtain information and documents 28
38. Restriction on disclosure of confidential information 30
39. Commission must not disclose exempt freedom of information
documents 33
PART 5--INQUIRIES AND REPORTS 34
40. Inquiry by Commission 34
41. Minister may refer matter for inquiry 34
42. Notice of inquiry 34
43. Conduct of inquiry 35
44. Powers relating to inquiries 36
45. Reports 38
46. Special reports 39
PART 6--SPECIAL REFERENCES 40
47. Expiry of Part 40
48. Reference by Minister 40
49. Conduct of investigation 41
50. Objectives not to apply 42
51. Powers relating to investigations 42
52. Reports 43
PART 7--GENERAL 45
53. Enforcement orders 45
54. Application to Supreme Court 46
55. Right of appeal 46
56. Appeal panel 48
57. Decision if appeal panel not unanimous 51
58. Disclosure of interests 51
59. Member of appeal panel becomes unavailable 52
60. Personal liability 53
61. Disclosure of information an offence 53
62. Proceedings 54
63. Supreme Court--limitation of jurisdiction 55
64. Service of documents 55
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541187B.A1-27/9/2001 BILL LA AS SENT 27/9/2001
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65. Regulations 55
66. Review 57
PART 8--TRANSITIONAL 58
67. Repeal of the Office of the Regulator-General Act 1994 58
68. Commission is successor in law 59
69. Regulator-General 60
PART 9--AMENDMENTS TO ELECTRICITY INDUSTRY
LEGISLATION 61
70. Electricity Industry Act 2000 61
71. Electricity Industry Act 2000--section 10 substituted 62
10. Objectives of the Commission 62
72. Electricity Industry Act 2000--Consequential 63
73. Electricity Industry Act 2000--section 22 substituted 63
22. Determination of fees and charges 63
74. Electricity Industry (Residual Provisions) Act 1993 63
75. Electricity Safety Act 1998 64
76. National Electricity (Victoria) Act 1997 64
PART 10--AMENDMENTS TO GAS INDUSTRY LEGISLATION 65
77. Gas Industry Act 2001 65
78. Gas Industry Act 2001--section 18 substituted 66
18. Objectives of the Commission 66
79. Gas Industry Act 2001--Consequential 67
80. Gas Industry Act 2001--section 30 substituted 67
30. Determination of fees and charges 67
81. Gas Industry (Residual Provisions) Act 1994 67
82. Gas Pipelines Access (Victoria) Act 1998 68
PART 11--AMENDMENT OF GRAIN HANDLING AND
STORAGE ACT 1995 70
83. Grain Handling and Storage Act 1995 70
84. Inquiries and determinations 71
23. Conduct of inquiries 71
24. Effect of facility ceasing to be significant infrastructure
facility 73
85. Licence provisions 73
Division 3--Licences 73
25A. Prohibition 73
25B. Exemptions 74
25C. Application for licence 74
25D. Determination of application 74
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25E. Provisions relating to licences 75
25F. Specific licence conditions 76
25G. Determination of fees and charges 76
25H. Variation or revocation of licence 77
25I. Gazettal requirement 77
25J. Transfer of licence 78
25K. Transitional provision 79
PART 12--AMENDMENT OF PORT SERVICES ACT 1995 81
86. Port Services Act 1995 81
87. Inquiries and determinations 83
53. Conduct of inquiries 83
54. General power to make determinations 84
88. Licence provisions 85
Division 5--Licences 85
63A. Prohibition 85
63B. Exemptions 86
63C. Application for licence 86
63D. Determination of application 87
63E. Provisions relating to licences 87
63F. Specific licence conditions 88
63G. Determination of fees and charges 88
63H. Variation or revocation of licence 89
63I. Gazettal requirement 90
63J. Transfer of licence 90
63K. Transitional provision 91
PART 13--AMENDMENT OF RAIL CORPORATIONS ACT 1996 93
89. Rail Corporations Act 1996 93
90. Total costs and expenses 97
PART 14--AMENDMENT OF WATER INDUSTRY ACT 1994 98
91. Water Industry Act 1994 98
92. Water Industry Act 1994--new sections 12A and 12B inserted 99
12A. Licence surcharge 99
12B. Determination of surcharge 99
PART 15--CONSEQUENTIAL AMENDMENTS OF OTHER
ACTS 100
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93. Melbourne and Metropolitan Board of Works Act 1958 100
94. Public Sector Management and Employment Act 1998 100
95. Public Transport Competition Act 1995 100
96. Transport Act 1983 100
ENDNOTES 101
INDEX 101
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541187B.A1-27/9/2001 BILL LA AS SENT 27/9/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 22 August 2001
As amended by Assembly 27 September 2001
A BILL
to establish the Essential Services Commission, to repeal the Office of
the Regulator-General Act 1994 and consequentially amend certain
other Acts and for other purposes.
Essential Services Commission Act 2001
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose and outline of Act
(1) The purpose of this Act is--
(a) to establish the Essential Services
5 Commission; and
(b) to provide for an economic regulatory
framework for regulated industries.
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Essential Services Commission Act 2001
s. 1
Act No.
(2) In outline this Act--
ท establishes the Essential Services Commission
with a full-time Chairperson and full and part-
time Commissioners;
ท provides for the employment of staff by the
5
Commission and for the Commission to be
also assisted by consultants;
ท sets out the objectives, functions and powers
of the Commission, including powers in
10 respect of inquiries and special investigations;
ท requires the Commission to publish a Charter
of Consultation and Regulatory Practice;
ท sets out the process for consultation between
the Commission and prescribed agencies;
ท provides for the Commission to enter into
15
Memoranda of Understanding with prescribed
regulators;
ท provides for the collection and use of
information required by the Commission;
ท enables the enforcement of determinations and
20
licence conditions by the making of
enforcement orders;
ท provides for appeals against certain decisions
and determinations of the Commission and for
25 the procedures to be followed by appeal
panels;
ท provides for the Act to be reviewed;
ท repeals the Office of the Regulator-General
Act 1994 and consequentially amends certain
30 other Acts.
(3) Sub-section (2) is intended only as a guide to
readers as to the general scheme of this Act.
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Essential Services Commission Act 2001
s. 2
Act No.
2. Commencement
This Act comes into operation on 1 January 2002.
3. Definitions
In this Act--
5 "appeal" means an appeal under section 55;
"appeal panel" means an appeal panel
constituted under section 56;
"Chairperson" means the Commissioner
appointed as Chairperson under section 18;
10 "Commission" means the Essential Services
Commission established under section 7;
"Commissioner" means the Chairperson or an
additional Commissioner appointed under
section 21;
15 "empowering instrument" means--
(a) the relevant legislation; or
(b) an Order made under section 4; or
(c) the Tariff Order; or
(d) any Order made under Division 2 of
20 Part 2 of the Electricity Industry Act
2000;
"essential service" means a service (including
the supply of goods) provided by--
(a) the electricity industry;
25 (b) the gas industry;
(c) the ports industry;
(d) the grain handling industry;
(e) the rail industry;
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Essential Services Commission Act 2001
s. 4
Act No.
(f) the water industry;
(g) any other industry prescribed for the
purpose of this definition;
"Order" means an Order of the Governor in
5 Council published in the Government
Gazette;
"prescribed agency" means a person, body or
agency which is prescribed for the purposes
of section 15;
10 "prescribed body" means a person, body or
agency which is prescribed for the purposes
of section 16;
"Registrar" means a person or body appointed
by the regulations to be the Registrar;
15 "regulated entity" means an entity operating in a
regulated industry;
"regulated industry" means an industry which
provides an essential service and--
(a) is operating under relevant legislation
20 which is specified by the relevant
legislation as a regulated industry; or
(b) is declared by an Order under section 4
to be a regulated industry;
"relevant legislation" means legislation which is
25 specified by that legislation as being relevant
legislation;
"Tariff Order" has the same meaning as in the
Electricity Industry Act 2000.
4. Order declaring a regulated industry
30 (1) Except as otherwise provided in this section, the
Governor in Council may by Order declare an
industry to be a regulated industry after having
regard to--
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Essential Services Commission Act 2001
s. 4
5
Act No.
(a) the existence of significant and non-
transitory market power;
(b) the existence of regulatory benefits which
exceed the administration and compliance
5 costs of becoming a regulated industry;
(c) the non-existence of economic regulation
specific to that industry by another body
under any other State or Commonwealth
legislation.
10 (2) The Order may declare--
(a) which prices are to be prescribed prices in
respect of a regulated industry;
(b) which goods and services are to be
prescribed goods and services in respect of a
15 regulated industry;
(c) powers that are to be exercised by the
Commission in respect of a regulated
industry under section 34.
(3) This section does not apply to the electricity
20 industry or to the Electricity Industry Act 2000.
(4) Sub-section (3) does not affect any Order made
before 20 June 1995.
(5) This section does not apply to the gas industry or
to the Gas Industry Act 2001.
25 (6) Sub-section (5) does not affect any Order made
before 1 December 1998.
(7) This section does not apply to--
(a) railways and rail infrastructure;
(b) tramways and tram infrastructure.
30 5. Interpretation and application of Act
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Essential Services Commission Act 2001
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(1) Subject to sub-section (2) and sections 33(1) and
34(3), if there is any inconsistency between this
Act and any other Act, the provisions of this Act
prevail.
5 (2) Subject to sub-section (3), if the Commission
considers that there is a conflict between the
objectives specified in or under this Act and the
objectives specified in the relevant legislation
under which a regulated industry operates, the
10 Commission must perform its functions and
exercise its powers in such a manner as the
Commission considers best achieves the
objectives specified in the relevant legislation.
(3) Sub-section (2) does not apply to the Electricity
15 Industry Act 2000 or to the Gas Industry Act
2001.
(4) Except as otherwise specifically provided, this
Act does not apply to or in respect of an essential
service unless the essential service is provided by
20 a regulated industry.
6. Crown to be bound
This Act binds the Crown, not only in right of
Victoria but also, so far as the legislative power of
the Parliament permits, the Crown in all its other
25 capacities.
_______________
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Essential Services Commission Act 2001
s. 7
Act No.
PART 2--ESSENTIAL SERVICES COMMISSION
7. Essential Services Commission
(1) There is established a body corporate called the
Essential Services Commission.
5 (2) The Commission--
(a) has perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name;
and
10 (d) is capable of taking, purchasing, leasing,
holding, selling, exchanging and disposing
of real and personal property for the
purposes of this Act; and
(e) may do and suffer all acts and things which a
15 body corporate may by law do and suffer and
which are necessary or convenient for the
purposes of this Act.
(3) All courts must take judicial notice of the seal of
the Commission affixed to a document and, until
20 the contrary is proved, must presume that it was
duly affixed.
(4) The common seal of the Commission must be kept
in such custody as the Commission directs and
must not be used except as authorised by the
25 Commission.
8. Objectives of the Commission
(1) In performing its functions and exercising its
powers, the primary objective of the Commission
is to protect the long term interests of Victorian
30 consumers with regard to the price, quality and
reliability of essential services.
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Essential Services Commission Act 2001
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10
Act No.
(2) In seeking to achieve its primary objective, the
Commission must have regard to the following
facilitating objectives--
(a) to facilitate efficiency in regulated industries
5 and the incentive for efficient long-term
investment;
(b) to facilitate the financial viability of
regulated industries;
(c) to ensure that the misuse of monopoly or
10 non-transitory market power is prevented;
(d) to facilitate effective competition and
promote competitive market conduct;
(e) to ensure that regulatory decision making has
regard to the relevant health, safety,
15 environmental and social legislation
applying to the regulated industry;
(f) to ensure that users and consumers
(including low-income or vulnerable
customers) benefit from the gains from
20 competition and efficiency;
(g) to promote consistency in regulation
between States and on a national basis.
(3) Without derogating from sub-sections (1) and (2),
the Commission must also perform its functions
25 and exercise its powers in such a manner as the
Commission considers best achieves any
objectives specified in the relevant legislation
under which a regulated industry operates.
9. Commission represents Crown
30 The Commission represents the Crown.
10. Functions of the Commission
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Essential Services Commission Act 2001
s. 11
Act No.
The functions of the Commission are--
(a) to perform such functions as are conferred
by this Act and the relevant legislation under
which a regulated industry operates;
5 (b) to advise the Minister on matters relating to
the economic regulation of regulated
industries, including reliability issues;
(c) when requested by the Minister to do so, to
conduct an inquiry into any systemic
10 reliability of supply issues related to a
regulated industry or other essential service
specified by the Minister in the request;
(d) to conduct inquiries and report under Part 5
on matters relating to regulated industries;
15 (e) to make recommendations to the Minister as
to whether an industry which provides an
essential service should become a regulated
industry or whether a regulated industry
should continue to be a regulated industry;
20 (f) to conduct public education programs--
(i) for the purpose of promoting its
objectives under this Act and the
relevant legislation; and
(ii) in relation to significant changes in the
25 regulation of a regulated industry;
(g) to advise the Minister in relation to any other
matter referred to the Commission by the
Minister;
(h) to administer this Act.
30 11. Powers of the Commission
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Essential Services Commission Act 2001
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(1) Subject to this Act, the Commission has power to
do all things necessary or convenient to be done
for or in connection with the performance of its
functions and to enable it to achieve its objectives
5 under this Act and under relevant legislation.
(2) Without derogating from sub-section (1), the
Commission also has such powers as may be
conferred on the Commission by the relevant
legislation under which a regulated industry
10 operates.
12. Commission not subject to direction or control
Except as provided by or under this Act or any
other Act, the Commission is not subject to the
direction or control of the Minister in respect of
15 any determination, report or inquiry.
13. Commission may publish statements and guidelines
The Commission may publish statements and
guidelines relating to the performance of its
functions and the exercise of its powers.
20 14. Commission must publish Charter
(1) The Commission must develop and publish a
Charter of Consultation and Regulatory Practice
including guidelines relating to processes for
making determinations and conducting inquiries.
25 (2) The Charter of Consultation and Regulatory
Practice--
(a) must include such matters as are prescribed;
and
(b) may include any other matters that the
30 Commission considers appropriate.
15. Consultation
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Essential Services Commission Act 2001
s. 15
Act No.
(1) This section applies to the Commission and to
prescribed agencies for the purpose of ensuring
that--
(a) the regulatory and decision making
5 processes of the Commission and prescribed
agencies are closely integrated and better
informed; and
(b) overlap or conflict between existing and
proposed regulatory schemes is avoided.
10 (2) In this section "prescribed agency" means a
person, body or agency which--
(a) has functions or powers under relevant
health, safety, environmental or social
legislation applying to a regulated industry;
15 and
(b) is prescribed for the purposes of this section.
(3) The Commission must as early as practicable
consult with a relevant prescribed agency--
(a) in the making of a determination; and
20 (b) in the conduct of an inquiry, after first
consulting with the Minister; and
(c) in preparing and reviewing the Charter of
Consultation and Regulatory Practice.
(4) If requested in writing to do so by the
25 Commission, a prescribed agency must consult
with the Commission--
(a) in relation to any matter specified by the
Commission which is relevant to the
objectives or functions of the Commission
30 under this Act and under relevant legislation;
or
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Act No.
(b) in respect of a matter specified by the
Commission which may impact on a
regulated industry.
(5) A prescribed agency must ensure that consultation
5 occurs as early as practicable in the regulatory,
advisory or decision making processes of the
prescribed agency.
(6) The requirements under this section are in
addition to any other requirements or processes
10 under any other legislation or regulatory scheme.
16. Memoranda of Understanding
(1) In this section "prescribed body" means--
(a) a person, body or agency which--
(i) is a prescribed agency; or
15 (ii) represents the interests of users or
consumers; and
(b) is prescribed for the purposes of this section.
(2) The Commission and a prescribed body must
enter into a Memorandum of Understanding by a
20 date determined by the Minister.
(3) A Memorandum of Understanding--
(a) must include such matters as are prescribed;
and
(b) may include any other matters that the
25 parties consider appropriate.
(4) The Commission must ensure that a Memorandum
of Understanding is published--
(a) in the Government Gazette; and
(b) on the internet.
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Essential Services Commission Act 2001
s. 17
Act No.
17. Membership of the Commission
The Commission consists of--
(a) one Commissioner appointed as the
Chairperson; and
5 (b) such number of full-time and part-time
additional Commissioners as the Minister
considers necessary to enable the
Commission to perform its functions.
18. The Chairperson
10 (1) The Governor in Council may appoint a person as
Chairperson who is qualified for appointment
because of his or her knowledge of, or experience
in, one or more of the fields of industry,
commerce, economics, law or public
15 administration.
(2) The Chairperson is to be appointed on such terms
and conditions, not inconsistent with this Act, as
the Governor in Council determines.
(3) The Public Sector Management and
20 Employment Act 1998 does not apply to the
Chairperson in respect of his or her office as a
Commissioner.
(4) The Chairperson must not directly or indirectly
engage in any paid employment outside the duties
25 of the Commission.
(5) An act or decision of the Commission is not
invalid merely because of a defect or irregularity
in, or in connection with, the appointment of the
Chairperson or a vacancy in the office of
30 Chairperson.
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Essential Services Commission Act 2001
s. 19
Act No.
19. Tenure of office of Chairperson
(1) Subject to this Act, the Chairperson holds office
for 5 years and, subject to this section, is eligible
for re-appointment.
5 (2) The Chairperson may be suspended from office by
the Governor in Council, but must not be removed
from office except in accordance with this Act.
(3) The Minister must cause to be laid before each
House of the Parliament a full statement of the
10 grounds of any suspension of the Chairperson
within 7 sitting days of the House.
(4) The Chairperson so suspended must be restored to
office by the Governor in Council unless each
House of the Parliament, within 42 days after the
15 day on which the statement is laid before it, and in
the same session, declares by resolution that the
Chairperson ought to be removed from office and,
if each House within that time so declares, the
Chairperson must be removed from office by the
20 Governor in Council.
(5) The Chairperson ceases to hold office if he or she
becomes bankrupt or applies to take the benefit of
any law for the relief of bankrupt debtors or
compounds with his or her creditors or makes an
25 assignment of his or her property for their benefit
or a deed of arrangement under any law relating to
bankruptcy.
(6) The Chairperson ceases to hold office if he or she
nominates for election for either House of the
30 Parliament of Victoria or for the Parliament of the
Commonwealth or of another State or of a
Territory.
(7) The Chairperson may at any time resign by
writing signed and addressed to the Governor in
35 Council.
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Essential Services Commission Act 2001
s. 20
Act No.
20. Acting appointment
(1) The Governor in Council may appoint a person to
act in the office of Chairperson--
(a) during a vacancy in that office; or
5 (b) during any period, or during all periods,
when the person holding that office is absent
from duty or is, for any other reason, unable
to perform the functions of that office--
but a person appointed to act during a vacancy
10 must not continue so to act for more than
6 months.
(2) An appointment of a person under sub-section (1)
may be expressed to have effect only in such
circumstances as are specified in the instrument of
15 appointment.
(3) The Governor in Council--
(a) subject to this section, may determine the
terms and conditions of appointment of a
person acting in the office of Chairperson;
20 and
(b) may terminate such an appointment at any
time.
(4) If a person is acting in the office of Chairperson in
accordance with sub-section (1)(b) and that office
25 becomes vacant while that person is so acting, that
person may continue so to act until--
(a) the Governor in Council otherwise directs; or
(b) the vacancy is filled; or
(c) a period of 6 months from the date on which
30 the vacancy occurred expires--
whichever first happens.
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22
Act No.
(5) While a person is acting in the office of
Chairperson in accordance with sub-section (1),
the person has, and may exercise, all the powers,
and shall perform all the functions, of that office
5 under this Act.
(6) The validity of anything done by or in relation to a
person purporting to act in the office of
Chairperson under an appointment made under
sub-section (1) shall not be called in question on
10 the ground that--
(a) the occasion for his or her appointment has
not arisen; or
(b) that there is a defect or irregularity in or in
connection with his or her appointment; or
15 (c) that the appointment had ceased to have
effect; or
(d) that the occasion for him or her to act had
not arisen or had ceased.
21. Additional Commissioners
20 (1) The Governor in Council may appoint persons as
additional Commissioners who are qualified for
appointment because of their knowledge of, or
experience in, one or more of the fields of
industry, commerce, economics, law or public
25 administration.
(2) An additional Commissioner is to be appointed on
such terms and conditions, not inconsistent with
this Act, as the Governor in Council determines.
(3) The Public Sector Management and
30 Employment Act 1998 does not apply to an
additional Commissioner in respect of his or her
office as a Commissioner.
22. Tenure of office of additional Commissioners
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Essential Services Commission Act 2001
Act No.
(1) Subject to this Act, an additional Commissioner--
(a) holds office for such period not exceeding
5 years as is specified in the instrument of
appointment; and
5 (b) subject to this section, is eligible for re-
appointment.
(2) An additional Commissioner may be appointed--
(a) on a full-time or part-time basis; and
(b) for--
10 (i) a specific period; or
(ii) a specific inquiry or determination--
as the Governor in Council determines.
(3) An additional Commissioner may be suspended
from office by the Governor in Council, but must
15 not be removed from office except in accordance
with this Act.
(4) The Minister must cause to be laid before each
House of the Parliament a full statement of the
grounds of any suspension of an additional
20 Commissioner within 7 sitting days of the House.
(5) An additional Commissioner so suspended must
be restored to office by the Governor in Council
unless each House of the Parliament, within
42 days after the day on which the statement is
25 laid before it, and in the same session, declares by
resolution that the additional Commissioner ought
to be removed from office and, if each House
within that time so declares, the additional
Commissioner must be removed from office by
30 the Governor in Council.
(6) The additional Commissioner ceases to hold
office if he or she becomes bankrupt or applies to
take the benefit of any law for the relief of
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25
Act No.
bankrupt debtors or compounds with his or her
creditors or makes an assignment of his or her
property for their benefit or a deed of arrangement
under any law relating to bankruptcy.
5 (7) The additional Commissioner ceases to hold
office if he or she nominates for election for either
House of the Parliament of Victoria or for the
Parliament of the Commonwealth or of another
State or of a Territory.
10 (8) The additional Commissioner may at any time
resign by writing signed and addressed to the
Governor in Council.
23. Payment of Chairperson and other Commissioners
The Chairperson and each additional
15 Commissioner is entitled to be paid such
remuneration and any travelling and other
allowances as the Governor in Council fixes from
time to time or as may be fixed in the relevant
instrument of appointment.
20 24. Staff
(1) Any employees that are necessary for the purposes
of this Act may be employed under Part 3 of the
Public Sector Management and Employment
Act 1998.
25 (2) The Commission may enter into agreements or
arrangements for the use of the services of any
staff of a Department, statutory authority or other
public body.
30 25. Consultants
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Act No.
(1) The Commission may engage persons with
suitable qualifications and experience as
consultants.
(2) An engagement under sub-section (1) may be on
5 any terms and conditions the Commission
considers appropriate.
26. Delegation
The Commission may, by instrument under its
common seal, delegate to--
10 (a) a Commissioner; or
(b) a person referred to in section 24; or
(c) a member of a Division, committee or panel
appointed or designated by the
Commission--
15 any function or power of the Commission under
this Act or the regulations or under any other
relevant legislation other than this power of
delegation or the powers of the Commission under
section 33 or 53.
20 27. Declaration of pecuniary interests
(1) If a Commissioner has a pecuniary interest in a
matter which he or she is considering or is about
to consider in the course of performing his or her
duties as a Commissioner, the Commissioner must
25 as soon as practicable after the relevant facts have
come to the Commissioner's knowledge declare
the nature of that interest to the Minister.
(2) Sub-section (1) does not apply if the interest is as
a result of the supply of goods or services that are
30 available to members of the public on the same
terms and conditions.
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(3) Unless the Minister otherwise directs, if a
Commissioner has made a declaration under this
section, the Commissioner must not take any
further part in any decision in relation to the
5 matter.
(4) A failure to comply with this section does not
affect the validity of any act or decision of the
Commission or a Commissioner.
28. Meetings of the Commission
10 (1) The Chairperson may convene as many meetings
of the Commission as he or she considers
necessary for the efficient conduct of its affairs.
(2) The Chairperson or, in his or her absence, a
member appointed to act as Chairperson under
15 section 20, must preside at a meeting of the
Commission.
(3) Subject to section 30(2), the quorum for a meeting
of the Commission is a majority of the
Commissioners in office for the time being other
20 than any additional Commissioner to whom
section 29(2) applies.
(4) A question arising at a meeting of the
Commission is determined by a majority of the
votes of the Commissioners present and voting on
25 the question.
(5) The person presiding has a deliberative vote and,
in the event of an equality of votes on any
question, a second or casting vote.
(6) Subject to this Act, the Commission may regulate
30 its own procedure.
29. Conduct of particular inquiry or determination
(1) Subject to sub-section (2), the Commission may
determine which Commissioner or Commissioners
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are to be allocated to a particular inquiry or
determination.
(2) If the Order appointing a Commissioner specifies
that the Commissioner is appointed for the
5 purposes of a particular inquiry or determination,
the Commissioner--
(a) must be allocated to that inquiry or
determination; and
(b) may only exercise the powers conferred
10 under this Act in relation to that inquiry or
determination.
(3) The Commission may constitute a Division of the
Commission consisting of one or more
Commissioners for the purposes of a particular
15 inquiry or determination as the Commission
determines.
(4) Subject to this Act, a Division may regulate its
own procedure.
30. Determinations of the Commission
20 (1) A determination of the Commission must be made
at a meeting constituted as required by section 28.
(2) The quorum for a meeting of the Commission at
which a determination is to be made in respect of
which section 29(2) applies must include the
25 Commissioner or Commissioners appointed for
the purposes of the particular inquiry or
determination.
31. Matters to be included in annual report
The Commission must include the prescribed
30 information relating to the operation and
performance of the Commission in its annual
report of operations under Part 7 of the Financial
Management Act 1994.
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PART 3--SPECIFIC POWERS
32. Price Regulation
(1) The Commission may regulate prescribed prices
for or in respect of prescribed goods and services
5 supplied by or within a regulated industry.
(2) In this section--
"prescribed goods and services" means any
goods or services made, produced or
supplied by or within a regulated industry
10 which goods or services are specified in the
empowering instrument as being goods or
services in respect of which the Commission
has power to regulate prices;
"prescribed price" means the price or price-
15 range however designated for the supply or
sale of any goods or services by or within a
regulated industry or particular factors used
in price-fixing or terms and conditions
relating to the price at which particular
20 goods or services are supplied or sold, being
a price, price-range, factor or term and
condition specified in the empowering
instrument as being a price, price-range,
factor or term and condition which the
25 Commission has power to regulate.
33. Price determinations
(1) This section is subject to anything to the contrary
in the empowering instrument specifying the
prescribed prices or prescribed goods and services
30 in respect of which the Commission is exercising
its power of regulation.
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(2) In making a price determination, the Commission
must adopt an approach and methodology which
the Commission considers will best meet the
objectives specified in this Act and any relevant
5 legislation.
(3) In making a determination under this section, the
Commission must have regard to--
(a) the particular circumstances of the regulated
industry and the prescribed goods and
10 services for which the determination is being
made;
(b) the costs of making, producing or supplying
the goods or services;
(c) the cost of complying with relevant health,
15 safety, environmental and social legislation
applying to the regulated industry;
(d) the return on assets in the regulated industry;
(e) any relevant interstate and international
benchmarks for prices, costs and return on
20 assets in comparable industries;
(f) the financial implications of the
determination for the regulated industry and
regulated entities;
(g) any factors specified in the relevant
25 legislation;
(h) any other factors that the Commission
considers relevant.
(4) In making a determination under this section, the
Commission must ensure that--
30 (a) wherever possible the costs of regulation do
not exceed the benefits; and
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(b) the decision takes into account and clearly
articulates any trade-off between costs and
service standards.
(5) A price determination by the Commission may
5 regulate a prescribed price for prescribed goods
and services in any manner the Commission
considers appropriate.
(6) Without limiting the generality of sub-section (5),
the manner may include--
10 (a) fixing the price or the rate of increase or
decrease in the price;
(b) fixing a maximum price or maximum rate of
increase or minimum rate of decrease in the
maximum price;
15 (c) fixing an average price for specified goods
or services or an average rate of increase or
decrease in the average price;
(d) specifying pricing policies or principles;
(e) specifying an amount determined by
20 reference to a general price index, the cost of
production, a rate of return on assets
employed or any other specified factor;
(f) specifying an amount determined by
reference to quantity, location, period or
25 other specified factor relevant to the rate or
supply of the goods or services;
(g) fixing a maximum average revenue or
maximum rate of increase or minimum rate
of decrease in the maximum average revenue
30 in relation to specified goods or services;
(h) monitoring the price levels of specified
goods and services.
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34. Other regulatory powers
(1) The Commission may exercise such powers
(including the power to make determinations) for
or with respect to--
5 (a) standards and conditions of service and
supply;
(b) licensing;
(c) market conduct;
(d) other economic regulatory matters--
10 as may be conferred on the Commission by the
empowering instrument.
(2) In making a determination under this section, the
Commission must have regard to--
(a) any factors specified in the empowering
15 instrument; and
(b) any other factors that the Commission
considers relevant.
(3) This section is subject to anything to the contrary
in the empowering instrument.
20 35. General provisions relating to determinations
(1) A determination must include a statement of the
purpose and reasons for the making of the
determination.
(2) Notice of the making of a determination must be
25 published--
(a) in the Government Gazette; and
(b) in a daily newspaper generally circulating in
Victoria; and
(c) on the internet.
30 (3) The notice must include--
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(a) a brief description of the nature and effect of
the determination; and
(b) details of when the determination takes
effect and how a copy of the determination
5 may be obtained from the Commission.
(4) The Commission must send a copy of a
determination--
(a) to each regulated entity in the regulated
industry to which the determination applies;
10 and
(b) to any person who made a submission to an
inquiry to which the determination relates
and who has asked for a copy of the
determination.
15 (5) A determination takes effect on and from--
(a) the date on which notice of its making is
published in the Government Gazette; or
(b) any later date of commencement as may be
specified in the determination.
20 (6) Subject to anything to the contrary in the
empowering instrument, a determination has
effect until--
(a) it is amended or revoked by a later
determination; or
25 (b) such other date as is specified in the
determination.
(7) A determination is binding on a regulated entity or
a regulated industry specified in the
determination.
30 _______________
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PART 4--COLLECTION AND USE OF INFORMATION
36. Application of Part
This Part does not apply to or in respect of any
5 information or a document that is provided to the
Commission--
(a) by the holder of a licence issued by the
Commission under this Act or any relevant
legislation in accordance with the
10 requirements of the licence; or
(b) in accordance with the requirements of any
relevant legislation.
37. General power to obtain information and documents
(1) If the Commission has reason to believe that a
15 person has information or a document that may
assist the Commission in the performance of any
of its functions, the Commission may require the
person to give the Commission the information or
a copy of the document.
20 (2) A requirement must be made in a written notice
specifying--
(a) the information or document required; and
(b) the period of time within which the
requirement must be complied with; and
25 (c) the form in which the information or copy of
the document is to be given to the
Commission; and
(d) that the requirement is made under this
section.
30 (3) The notice must include a copy of this Part.
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(4) A person who without lawful excuse fails to
comply with any requirement made under this
section in a notice given to the person is guilty of
an offence.
5 Penalty: 120 penalty units.
(5) It is a lawful excuse for the purposes of sub-
section (4) that compliance may tend to
incriminate the person or make the person liable
to a penalty for any other offence.
10 (6) A person must not, in purported compliance with
a requirement, knowingly give the Commission
information that is false or misleading.
Penalty: 120 penalty units or imprisonment for
6 months.
15 (7) A person must not--
(a) threaten, intimidate or coerce another person;
or
(b) take, threaten to take, incite or be involved in
any action that causes another person to
20 suffer any loss, injury or disadvantage--
because that other person complied, or intends to
comply, with a requirement made under this
section.
Penalty: 120 penalty units.
25 (8) A person is not liable in any way for any loss,
damage or injury suffered by another person
because of the giving in good faith of any
information or a document to the Commission
under this section.
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38. Restriction on disclosure of confidential information
(1) This section applies if--
(a) information or a document is given to the
Commission under section 37, 44 or 51; and
5 (b) at the time the information or document is
given, the person giving it states that it is of
a confidential or commercially-sensitive
nature.
(2) The Commission must not disclose the
10 information or the contents of the document to
any person unless--
(a) the Commission is of the opinion--
(i) that the disclosure of the information or
document would not cause detriment to
15 the person supplying it; or
(ii) that although the disclosure of the
information or document would cause
detriment to the person supplying it, the
public benefit in disclosing it outweighs
20 that detriment; and
(b) the Commission is of the opinion, in relation
to any other person who is aware of the
information or the contents of the document
and who might be detrimentally affected by
25 the disclosure--
(i) that the disclosure of the information or
document would not cause detriment to
that person; or
(ii) that although the disclosure of the
30 information or document would cause
detriment to that person, the public
benefit in disclosing it outweighs that
detriment; and
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(c) the Commission gives the person who
supplied the information or document a
written notice--
(i) stating that the Commission wishes to
5 disclose the information or contents of
the document, specifying the nature of
the intended disclosure and setting out
detailed reasons why the Commission
wishes to make the disclosure; and
10 (ii) stating that the Commission is of the
opinion required by paragraph (a) and
setting out detailed reasons why it is of
that opinion; and
(iii) setting out a copy of this section and
15 section 55, and as the case requires,
section 45 or 52; and
(d) if the Commission is aware that the person
who supplied the information or document in
turn received the information or document
20 from another person and is aware of that
other person's identity and address, the
Commission gives that other person a written
notice--
(i) containing the details required by
25 paragraph (c); and
(ii) stating that the Commission is of the
opinion required by paragraph (b) in
relation to him, her or it and setting out
detailed reasons why it is of that
30 opinion; and
(e) no notice of appeal is lodged in respect of
any notice given under paragraph (c) or (d)
within the time permitted by section 55(3).
Penalty: 120 penalty units.
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(3) Sub-section (2) does not prevent the
Commission--
(a) from disclosing information or the contents
of a document to--
5 (i) an employee employed under section
24(1); or
(ii) a member of staff referred to in section
24(2); or
(iii) a consultant engaged under section 25;
10 or
(iv) a member of a Division, committee or
panel acting under a delegation under
section 26; or
(b) from using information or a document for the
15 purposes of an inquiry or investigation; or
(c) from disclosing information or the contents
of a document to the Minister in a report
prepared in the form required by section
45(2) or 52(2); or
20 (d) from supplying the information or document
to the members of any appeal panel hearing
an appeal in relation to the information or
document.
(4) If an appeal is lodged under section 55 and the
25 appeal--
(a) is withdrawn or dismissed, the Commission
may disclose any information, or the
contents of any document, that was the
subject of the appeal in the manner set out in
30 the notice given under sub-section (2)(c);
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(b) is granted, the Commission may disclose
anything that the appeal panel permits it to
disclose under section 56(7)(b)(ii) in the
manner specified by the appeal panel.
5 (5) For the purposes of this section, the disclosure of
anything that is already in the public domain at
the time the Commission wishes to disclose it can
not cause detriment to any person referred to in
sub-section (2)(a) or (2)(b).
10 39. Commission must not disclose exempt freedom of
information documents
(1) The Commission must not disclose to any person
any document that it has obtained from any
agency (as defined in the Freedom of
15 Information Act 1982) or Minister that is an
exempt document under the Freedom of
Information Act 1982 in the hands of the agency
or Minister.
(2) Sub-section (1) does not prevent the Commission
20 from doing anything specified in section 38(3).
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Act No.
PART 5--INQUIRIES AND REPORTS
40. Inquiry by Commission
The Commission may after consultation with the
Minister conduct an inquiry if the Commission
5 considers an inquiry is necessary or desirable for
the purpose of carrying out its functions.
41. Minister may refer matter for inquiry
(1) The Commission must conduct an inquiry into any
matter which the Minister by written notice refers
10 to the Commission under this Part.
(2) The written notice must specify the terms of
reference for the inquiry.
(3) The Minister may--
(a) specify a period within which a report is to
15 be submitted to the Minister;
(b) require the Commission to make a draft
report publicly available or available to
specified persons or bodies during the
inquiry;
20 (c) require the Commission to consider specified
matters;
(d) give the Commission specific directions in
respect of the conduct of the inquiry.
(4) The Commission must report to the Minister on
25 the results of any inquiry.
(5) The Minister may amend the terms of reference or
extend the period within which a report is to be
submitted to the Minister.
42. Notice of inquiry
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(1) The Commission must after notifying the Minister
publish notice of an inquiry--
(a) in the Government Gazette; and
(b) in a daily newspaper generally circulating in
5 Victoria; and
(c) on the internet.
(2) The notice must specify--
(a) the purpose of the inquiry;
(b) the period during which the inquiry is to be
10 held;
(c) the period within which, and the form in
which, members of the public may make
submissions, including details of public
hearings;
15 (d) the matters that the Commission would like
submissions to deal with.
(3) If the inquiry relates to a matter referred to the
Commission by the Minister, the notice must
include the terms of reference and the matters
20 specified in section 41(3).
(4) The Commission must publish a further notice if
the Minister amends the terms of reference or
extends the period within which the report is to be
submitted to the Minister.
25 (5) The Commission must send a copy of any notice
published under this section to the relevant
regulated entities and any person or body that the
Commission considers should be notified.
43. Conduct of inquiry
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(1) Subject to this Act, the Commission may conduct
an inquiry in such a manner as the Commission
considers appropriate.
(2) In conducting an inquiry, the Commission is not
5 bound by rules or practice as to evidence but may
inform itself in relation to any matter in such
manner as the Commission considers appropriate.
(3) The Commission may receive written submissions
or statements.
10 (4) The Commission--
(a) must hold at least one public hearing; and
(b) has a discretion as to whether any person
may appear before the Commission in person
or be represented by another person.
15 (5) The Commission may determine that a hearing or
a part of a hearing be held in private if it is
satisfied that--
(a) it would be in the public interest; or
(b) the evidence is of a confidential or
20 commercially-sensitive nature.
(6) In conducting an inquiry the Commission may--
(a) consult with any person that it considers
appropriate;
(b) hold public seminars and conduct
25 workshops;
(c) establish working groups and task forces.
44. Powers relating to inquiries
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(1) The Commission may serve upon any person a
summons to--
(a) provide specified information; or
(b) produce specified documents; or
5 (c) appear before the Commission to give
evidence.
(2) The Commission may make an order for the
manner of service, including substituted service,
of a summons under sub-section (1).
10 (3) A person who without lawful excuse disobeys a
summons of the Commission is guilty of an
offence.
Penalty: 60 penalty units.
(4) It is a lawful excuse for the purposes of sub-
15 section (3) that compliance may tend to
incriminate the person or make the person liable
to a penalty for any other offence.
(5) A person must not give information which he or
she knows is false or misleading to the
20 Commission.
Penalty: 120 penalty units or imprisonment for
6 months.
(6) A person must not--
(a) threaten, intimidate or coerce another person;
25 or
(b) take, threaten to take, incite or be involved in
any action that causes another person to
suffer any loss, injury or disadvantage--
because that other person assisted, or intends to
30 assist, any inquiry conducted by the Commission.
Penalty: 120 penalty units.
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(7) Civil proceedings do not lie against a person in
respect of loss, damage or injury of any kind
suffered by another person because of the making
in good faith of a statement, or the giving in good
5 faith of a document or information to the
Commission in connection with an inquiry under
this Part, whether or not the statement is made, or
the document or information is given, in
connection with a written submission or a public
10 hearing.
45. Reports
(1) The Commission must submit a copy of its final
report on an inquiry to the Minister.
(2) If, in the opinion of the Commission, a final report
15 will contain confidential or commercially-
sensitive information, the Commission must
divide the report into--
(a) a document containing the confidential or
commercially-sensitive information; and
20 (b) another document containing the rest of the
report.
(3) For the purposes of sub-section (2), any
information that the Commission may disclose
under section 38 is not confidential or
25 commercially-sensitive unless an appeal panel
states that it is imposing a restriction under section
56(7)(b)(i).
(4) If the Commission submits a final report to the
Minister in the form required by sub-section (2), a
30 reference to the final report in sub-sections (5), (6)
and (7) is to be read as a reference to the
document described in sub-section (2)(b).
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(5) The Minister must cause a copy of the final report
to be laid before each House of the Parliament
within 7 sitting days of the House after receiving
the final report.
5 (6) The Minister must, after the final report has been
laid before each House of the Parliament, or if the
Parliament is not sitting, within 30 days after
receiving a final report, ensure that a copy of the
final report is available for public inspection.
10 (7) After the Minister has made a final report publicly
available, the Commission must ensure that copies
are made publicly available.
46. Special reports
(1) If in the course of an inquiry the Commission
15 considers that there is another matter on which the
Commission should report to the Minister, the
Commission may do so, in the final report or in a
special report.
(2) If the Commission prepares a special report, sub-
20 sections (5), (6) and (7) of section 45 apply to the
special report as if it were a final report.
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PART 6--SPECIAL REFERENCES
47. Expiry of Part
This Part expires on 31 August 2004.
5 48. Reference by Minister
(1) The Commission must conduct an investigation
into any matter--
(a) relating to the electricity industry which the
Minister administering the Electricity
10 Industry Act 2000; or
(b) relating to the gas industry which the
Minister administering the Gas Industry
Act 2001--
by written notice refers to the Commission under
15 this Part.
(2) The Minister administering the Electricity
Industry Act 2000 or the Minister administering
the Gas Industry Act 2001 must consult with the
Minister before referring a matter to the
20 Commission.
(3) The written notice must specify the terms of
reference for the investigation.
(4) The Minister referring a matter--
(a) may specify a period within which a report is
25 to be submitted to the Minister;
(b) may require the Commission to make a draft
report publicly available or available to
specified persons or bodies during the
investigation;
30 (c) may require the Commission to consider
specified matters;
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(d) may give the Commission specific directions
in respect of the conduct of the investigation;
(e) may specify objectives that the Commission
is to have in performing its functions and
5 exercising its powers in relation to the
investigation.
(5) If a Minister has referred a matter to the
Commission for investigation, the Minister may,
by written notice given to the Commission,
10 withdraw or amend the reference at any time
before the Minister has received the report from
the Commission.
(6) The Minister must cause a notice given to the
Commission under this section to be published in
15 the Government Gazette.
49. Conduct of investigation
(1) Subject to this Act and any directions under
section 48(4)(d), the Commission may conduct an
investigation under this Part in such a manner as
20 the Commission considers appropriate.
(2) In conducting an investigation, the Commission is
not bound by rules or practices as to evidence but
may inform itself in relation to any matter in such
manner as the Commission considers appropriate.
25 (3) The Commission may receive written submissions
or statements.
(4) If the Commission holds a public hearing--
(a) the Commission has a discretion as to
whether any person may appear before the
30 Commission in person or be represented by
another person;
(b) the Commission may determine that the
hearing, or part of the hearing, be held in
private if it is satisfied that--
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(i) it would be in the public interest; or
(ii) the evidence is of a confidential or
commercially sensitive nature.
(5) In conducting an investigation, the Commission--
5 (a) may consult with any person that it considers
appropriate;
(b) may hold public seminars and hold
workshops;
(c) may establish working groups and task
10 forces.
50. Objectives not to apply
Except to the extent (if any) that the Minister
referring a matter otherwise determines, the
objectives of the Commission under this or any
15 other Act do not apply to the functions and
powers of the Commission under this Part.
51. Powers relating to investigations
(1) The Commission may serve upon any person a
summons--
20 (a) to provide specified information;
(b) to produce specified documents;
(c) to appear before the Commission to give
evidence.
(2) The Commission may make an order for the
25 manner of service, including substituted service,
of a summons under sub-section (1).
(3) A person must not, without lawful excuse, disobey
a summons of the Commission.
Penalty: 60 penalty units.
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Act No.
(4) It is a lawful excuse for the purposes of sub-
section (3) that compliance may tend to
incriminate the person or make the person liable
to a penalty for any other offence.
5 (5) A person must not give information to the
Commission that he or she knows is false or
misleading.
Penalty: 120 penalty units or imprisonment for
6 months.
10 (6) A person must not--
(a) threaten, intimidate or coerce another person;
or
(b) take, threaten to take, incite or be involved in
any action that causes another person to
15 suffer any loss, injury or disadvantage--
because that other person assisted, or intends to
assist, any investigation conducted by the
Commission.
Penalty: 120 penalty units.
20 (7) Civil proceedings do not lie against a person in
respect of loss, damage or injury of any kind
suffered by another person because of the making
in good faith of a statement, or the giving in good
faith of a document or information to the
25 Commission in connection with an investigation
under this Part, whether or not the statement is
made, or the document or information is given, in
connection with a written submission or a public
hearing.
30 52. Reports
(1) The Commission must submit a copy of its report
on an investigation to the Minister who referred
the matter.
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(2) If, in the opinion of the Commission, a report will
contain confidential or commercially sensitive
information, the Commission must divide the
report into--
5 (a) a document containing the confidential or
commercially sensitive information; and
(b) another document containing the rest of the
report.
(3) Any information that the Commission may
10 disclose under section 38 is not confidential or
commercially sensitive for the purposes of sub-
section (2) unless an appeal panel states that it is
imposing a restriction under section 56(7)(b)(i).
(4) If the Commission submits a final report to the
15 Minister who referred the matter in the form
required by sub-section (2), a reference to the
final report in sub-sections (5), (6) and (7) is to be
read as a reference to the document described in
sub-section (2)(b).
20 (5) The Minister who referred the matter must cause a
copy of the final report to be laid before each
House of the Parliament within 7 sitting days of
the House after receiving the final report.
(6) The Minister who referred the matter must, after
25 the final report has been laid before each House of
the Parliament, or if the Parliament is not sitting,
within 30 days after receiving a final report,
ensure that a copy of the final report is available
for public inspection.
30 (7) After the Minister who referred the matter has
made a final report publicly available, the
Commission must ensure that copies are made
publicly available.
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PART 7--GENERAL
53. Enforcement orders
(1) This section applies if a person has contravened or
is contravening or, in the opinion of the
5 Commission, is likely to contravene--
(a) a determination; or
(b) if the Commission is under the relevant
legislation or by virtue of an Order made
under section 4 responsible for licensing, the
10 conditions of a licence--
and the Commission considers that the
contravention or likely contravention is not of a
trivial nature.
(2) The Commission may serve a provisional order or
15 a final order on the person requiring the person--
(a) to comply with the determination or licence
condition; and
(b) if a contravention has already occurred, to
take such actions as are specified in the order
20 to rectify the contravention.
(3) Unless sooner withdrawn by the Commission, a
provisional order has effect for a period of 7 days
commencing on the day that it is served.
(4) The Commission may serve another provisional
25 order upon the expiry of a preceding provisional
order.
(5) If the Commission has made a provisional order,
the Commission must not make a final order if--
(a) the person has undertaken to comply with
30 the determination or licence condition; or
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(b) the Commission is satisfied that the order
would be inconsistent with the objectives of
this Act.
(6) The Commission must not make a final order
5 unless the Commission has--
(a) given the person at least 28 days notice of
the intention to do so; and
(b) given the person the opportunity to make a
submission in respect of the order; and
10 (c) considered any submission or other objection
to the order received by the Commission.
(7) The Commission must as soon as possible after
serving a provisional order or a final order on a
person, publish a copy of the order in the
15 Government Gazette.
(8) A person must comply with a provisional order or
a final order or an undertaking under sub-section
(5)(a).
(9) A person who contravenes sub-section (8) is
20 guilty of an offence and is liable to a penalty not
exceeding 5000 penalty units and to a further
penalty not exceeding 500 penalty units for each
day after service of the order that contravention
continues.
25 54. Application to Supreme Court
The Commission may apply to the Supreme Court
for an injunction or declaration or both in respect
of a provisional order or final order served under
section 53.
30 55. Right of appeal
(1) A person who is aggrieved by--
(a) a requirement made by the Commission
under section 37; or
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(b) a decision of the Commission to disclose
information or the contents of a document
given to the Commission by that person
under a notice given under section 38(2)(c)
5 or 38(2)(d); or
(c) a determination of the Commission--
may appeal against the requirement, decision or
determination in accordance with this section.
(2) The only ground for an appeal--
10 (a) under sub-section (1)(a) is that the
requirement--
(i) was not made in accordance with the
law; or
(ii) is unreasonable having regard to all the
15 relevant circumstances;
(b) under sub-section (1)(b) is that the
decision--
(i) was not made in accordance with the
law; or
20 (ii) is unreasonable having regard to all the
relevant circumstances;
(c) under sub-section (1)(c) is that--
(i) there has been bias; or
(ii) the determination is based wholly or
25 partly on an error of fact in a material
respect.
(3) A person must lodge notice of the appeal with the
Registrar--
(a) in the case of an appeal under sub-section
30 (1)(a) or (1)(b), within 7 working days after
the person is given the notice; or
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(b) in the case of an appeal under sub-section
(1)(c), within 14 working days after the
determination is published.
(4) If a person lodges an appeal under sub-section
5 (1)(a), the person need not comply with the
requirement until the appeal is withdrawn or
dismissed.
56. Appeal panel
(1) An appeal must be heard by an appeal panel
10 consisting of 3 members--
(a) being a chairperson and 2 other persons
appointed by the Registrar; and
(b) of which at least one must have knowledge
of administrative law or of the law of
15 procedure and evidence.
(2) An appeal panel is to be constituted from a pool of
persons appointed by the Governor in Council
because of their knowledge of, or experience in,
one or more of the fields of industry, commerce,
20 economics, law or public administration.
(3) An appeal panel must be constituted within 7
working days after notice of the appeal is lodged.
(4) An appeal must be heard and decided--
(a) in the case of an appeal under section
25 55(1)(a) or 55(1)(b), within 7 working days
of the appeal panel being constituted, or if
the appeal panel requires further time, within
a further period not exceeding 7 working
days; or
30 (b) in the case of an appeal under section
55(1)(c), within 30 working days of the
appeal panel being constituted, or if the
appeal panel requires further time, within a
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further period not exceeding 15 working
days.
(5) If an appeal panel requires further time under sub-
section (4), the chairperson must notify the
5 Registrar in writing.
(6) The appeal panel has such of the powers of the
Commission under Part 3 as are necessary to
enable the appeal panel to determine whether the
appeal should be granted and may conduct a
10 preliminary hearing to determine whether--
(a) the appeal is trivial or vexatious; or
(b) there is sufficient evidence supporting the
grounds of the appeal; or
(c) the matters raised in the appeal are likely to
15 have had a material impact on the outcome
being appealed against.
(7) Without limiting sub-section (6), the appeal
panel--
(a) in the case of an appeal under section
20 55(1)(a), may in granting the appeal, cancel
the requirement;
(b) in the case of an appeal under section
55(1)(b), may in granting the appeal--
(i) forbid disclosure by the Commission of
25 the information or document that is the
subject of the appeal; or
(ii) restrict the intended disclosure by the
Commission of the information or
document within limits specified by the
30 appeal panel;
(c) in the case of an appeal under section
55(1)(c) on the ground specified in section
55(2)(c)(i)--
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(i) may determine whether or not there has
been bias; and
(ii) if it determines that there has been bias,
may set aside the determination of the
5 Commission and remit it to the
Commission for amendment of the
determination in accordance with the
decision and recommendations (if any)
of the appeal panel; and
10 (d) in the case of an appeal under section
55(1)(c) on the ground specified in section
55(2)(c)(ii)--
(i) may affirm the determination of the
Commission; or
15 (ii) may vary the determination of the
Commission in order to correct the
error; or
(iii) may set aside the determination of the
Commission and remit it to the
20 Commission for amendment of the
determination in accordance with the
decision and recommendations (if any)
of the appeal panel.
(8) The Commission--
25 (a) is a party to an appeal; and
(b) is entitled to perform the role of a
contradictor in an appeal if the Commission
gives notice to all the other parties to the
appeal that it intends to do so.
30 (9) Subject to sub-section (10), the Commission must
give an appeal panel such information as the
appeal panel may request.
(10) An appeal panel can only consider evidence in
accordance with the regulations.
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(11) On the hearing of an appeal under section 55(1)(a)
or 55(1)(b), the Commission bears the onus of
establishing that the requirement or decision--
(a) was made in accordance with the law; and
5 (b) is reasonable having regard to all relevant
circumstances.
(12) The Commission must take such action as is
necessary to give effect to a decision of the appeal
panel.
10 57. Decision if appeal panel not unanimous
If the members constituting an appeal panel are
divided in opinion as to the decision to be made
on any question--
(a) if there is a majority of the one opinion, the
15 question shall be decided according to the
opinion of the majority; or
(b) in any other case, the question shall be
decided according to the opinion of the
chairperson of the appeal panel.
20 58. Disclosure of interests
(1) If a person is, or is to be, a member of an appeal
panel and the person has or acquires any interests,
pecuniary or otherwise, that could conflict with
the proper performance of the functions of that
25 person in relation to an appeal--
(a) the person must disclose the interest to the
Registrar; and
(b) the person must not take part, or continue to
take part, in the hearing of the appeal if--
30 (i) the Registrar gives a direction under
sub-section (2)(a); or
(ii) if the Registrar has caused the interest
of the person to be disclosed to the
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parties to the hearing, all the parties do
not consent to the person being a
member of the appeal panel.
(2) If the Registrar receives a disclosure of an interest
5 under sub-section (1) or becomes aware that a
person is, or is to be, a member of an appeal panel
in relation to a hearing and that the person has in
relation to the hearing such an interest--
(a) if the Registrar considers that the person
10 should not take part, or should not continue
to take part, in the hearing, the Registrar
must give a direction to the person
accordingly; or
(b) in any other case, the Registrar must cause
15 the interest of the person to be disclosed to
the parties to the hearing.
59. Member of appeal panel becomes unavailable
(1) This section applies where a hearing before an
appeal panel has been commenced or completed
20 by the appeal panel but, before the matter has
been determined, one of the members constituting
the appeal panel has ceased to be a member of the
appeal panel or has ceased to be available for the
purposes of the hearing.
25 (2) If the Registrar is satisfied that sub-section (1)
applies in relation to a hearing, the Registrar may
appoint a member of the appeal panels pool to
take the place of the person referred to in sub-
section (1) for the purposes of the hearing.
30 (3) If sub-section (1) applies in relation to a hearing
that has been dealt with by an appeal panel, the
Registrar may, instead of appointing a member
under sub-section (2), direct that the
determination of the hearing be completed by the
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appeal panel constituted by the remaining
members.
(4) An appeal panel as constituted in accordance with
any of the provisions of this section for the
5 purposes of a hearing may have regard to any
record of proceedings for the appeal panel as
previously constituted.
60. Personal liability
(1) A Commissioner or any employee or a member of
10 a committee or panel acting under a delegation
under section 26 is not personally liable for
anything done or omitted to be done in good
faith--
(a) in the exercise of a power or the performance
15 of a function under this Act or any relevant
legislation; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
the performance of a function under this Act
20 or any relevant legislation.
(2) Any liability resulting from an act or omission
that would but for sub-section (1) attach to a
person referred to in that sub-section attaches
instead to the Commission.
25 61. Disclosure of information an offence
(1) A person must not disclose any confidential or
commercially-sensitive information obtained
during the exercise of a power or the performance
of a function under, or in connection with, this
30 Act or any relevant legislation.
Penalty: 120 penalty units.
(2) A person must not use any such information to
obtain directly or indirectly any pecuniary or other
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advantage for himself or herself or for any other
person.
Penalty: 120 penalty units.
(3) However, the person may disclose or use such
5 information if--
(a) the disclosure or use is made in the exercise
of a power or the performance of a function
under, or in connection with, this Act or any
relevant legislation; or
10 (b) the person has the consent of the person who
supplied the information; or
(c) the disclosure or use is made in legal
proceedings at the direction of a court; or
(d) the information is in the public domain at the
15 time it is disclosed or used.
(4) For the purpose of removing doubt, sub-section
(3) is not intended to interfere with any rights
another person may have with regard to the
disclosure or use of the information.
20 62. Proceedings
(1) No proceedings may be brought in respect of a
determination or a provisional order or final order
other than on the grounds that--
(a) there was no power to make the
25 determination or provisional order or final
order; or
(b) that the procedural requirements in relation
to the making of the determination or
provisional order or final order have not
30 been complied with.
(2) The Commission is entitled to perform the role of
a contradictor in any proceedings brought on the
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grounds specified in sub-section (1) if the
Commission gives notice to all the other parties in
the proceedings that it intends to do so.
63. Supreme Court--limitation of jurisdiction
5 It is the intention of sections 44(7), 51(7) and 62
to alter or vary section 85 of the Constitution Act
1975.
64. Service of documents
A document may be served on the Commission by
10 leaving it at or posting it to the principal office of
the Commission.
65. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
15 or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act.
(2) Without limiting the generality of sub-section (1)
the regulations may--
20 (a) provide for a person or body to be appointed
as the Registrar; and
(b) regulate proceedings relating to appeals; and
(c) provide for procedures to be followed by
appeal panels, including matters relating to
25 the conduct of hearings, the rights of parties
to the appeal and the rules of evidence
(including what facts and materials
constitute evidence which may be
considered) to be used by the appeal panel.
30 (3) The regulations--
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(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may impose penalties not exceeding
5 10 penalty units for a contravention of or an
offence under the regulations; and
(d) may apply, adopt or incorporate (with or
without modification)--
(i) the provisions of any document, code,
10 standard, rule, specification or method
formulated, issued, prescribed or
published by any person or body
whether as formulated, issued,
prescribed or published at the time the
15 regulations are made, or at any time
before then; or
(ii) the provisions of any Act of the
Commonwealth or of another State or
of a Territory or any matter contained
20 in an Index published by the
Commonwealth or of another State or
of a Territory or any matter contained
in an Index published by the
Commonwealth Statistician or the
25 provisions of any subordinate
instrument under any of those Acts,
whether wholly or partially or as
amended by the regulations or as in
force or published at a particular time
30 or from time to time; and
(e) may leave any matter or thing to be from
time to time determined, applied, dispensed
with or regulated by the Commission or the
Registrar; and
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(f) may confer powers or impose duties in
connection with the regulations on the
Commission or the Registrar.
(4) The Regulations are subject to disallowance by a
5 House of the Parliament.
66. Review
(1) The Minister must ensure that a review of this Act
is completed within 5 years of the commencement
of the Act.
10 (2) The purpose of the review is to determine--
(a) whether the objectives of this Act and the
Commission are being achieved and are still
appropriate; and
(b) whether the Act is effective or needs to be
15 amended so as to further facilitate the
objectives or to insert new objectives.
(3) The Minister must cause a copy of the review and
a statement of the response of the Government to
the review to be laid before each House of the
20 Parliament within 7 sitting days of that House
after the expiry of the period specified in sub-
section (1).
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PART 8--TRANSITIONAL
67. Repeal of the Office of the Regulator-General Act
1994
5 (1) The Office of the Regulator-General Act 1994
is repealed.
(2) Except as in this Act expressly or by necessary
implication provided--
(a) all persons, things and circumstances
10 appointed or created by or under the Office
of the Regulator-General Act 1994 or
existing or continuing under that Act or
under relevant legislation immediately
before the commencement of this Act shall
15 under and subject to this Act continue to
have the same status, operation and effect as
they respectively would have had if this Act
had not come into operation; and
(b) in particular and without affecting the
20 generality of paragraph (a), this Act shall not
disturb the continuity of, status, operation or
effect of any Order, determination,
declaration, notice, exemption, approval,
appointment, authorisation, application,
25 grant, revocation, suspension, condition,
certificate, licence, permit, registration,
contract, agreement, charge, consent,
authority, proceeding, action, appeal, appeal
panel, liability, right or other matter or thing
30 made, done, effected, obtained, issued,
granted, given, prescribed, fixed, accrued,
incurred, acquired, existing or continuing
before the commencement of this Act under
the Office of the Regulator-General Act
35 1994 or under relevant legislation.
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68. Commission is successor in law
(1) On the commencement of this Act--
(a) all property, rights and assets of the Office of
the Regulator-General are by virtue of this
5 Act held by the Commission;
(b) all liabilities of the Office of the Regulator-
General are by virtue of this Act held by the
Commission;
(c) the Commission is the successor in law of
10 the Office of the Regulator-General.
(2) Where, immediately before the commencement of
this Act, proceedings in respect of which the
Office of the Regulator-General was a party were
pending or existing in any court or tribunal, then,
15 on and after that commencement, the Commission
is substituted for the Office of the Regulator-
General as a party to the proceedings and has the
same rights and obligations in the proceedings as
the Office of the Regulator-General.
20 (3) On and after the commencement of this Act, any
reference in any Act (other than this Act),
regulation, subordinate instrument or other
document whatsoever to--
(a) the Office of the Regulator-General is to be
25 construed as a reference to the Commission,
unless the contrary intention appears; or
(b) the Office of the Regulator-General Act
1994 is to be construed as a reference to this
Act, unless the contrary intention appears.
30 (4) No stamp duty or other tax is payable under any
Act in respect of anything done under this section.
(5) The Registrar of Titles, on being requested to do
so and on delivery of any relevant certificate of
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title or instrument, must make any amendments in
the Register that are necessary because of the
operation of this section.
69. Regulator-General
5 Subject to this Act, the person who immediately
before the commencement of this Act holds the
office of the Regulator-General is to be taken to
have been appointed as the Chairperson of the
Commission until--
10 (a) the end of the period when his or her term of
appointment as the Regulator-General would
have expired; or
(b) if the Governor in Council extends the
period under this section, the end of the
15 period as so extended.
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PART 9--AMENDMENTS TO ELECTRICITY INDUSTRY
LEGISLATION
70. Electricity Industry Act 2000
In the Electricity Industry Act 2000--
5 (a) in section 3 insert the following definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
10 (b) in section 3, the definition of "Office" is
repealed;
(c) in sections 9, 12(1), 13(3), 14(4), 14(5),
15(1), 15(4), 15(6), 28(2)(a), 45(2), 67,
76(1), 79B(4) and 79C, for "Office of the
15 Regulator-General Act 1994" substitute
"Essential Services Commission Act
2001";
(d) in sections 11(1), 11(5), 12(1), 12(2), 13(3),
13(4), 14(3), 14(5), 14(6), 15, 16(1), 17(4),
20 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30,
31, 32, 33, 34, 35, 36, 38, 41, 44, 45(2),
46(3), 49, 59(3), 62, 63, 64, 68, 69(1), 70,
71, 72, 73, 74, 75, 76, 77 and 79B, for
"Office" (wherever occurring) substitute
25 "Commission";
(e) in section 11(5), for "section 39A of the
Office of the Regulator-General Act 1994"
substitute "section 61 of the Essential
Services Commission Act 2001";
30 (f) in section 15(7)(a), for "section 37 of the
Office of the Regulator-General Act 1994"
substitute "section 55 of the Essential
Services Commission Act 2001";
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(g) in section 15(7)(b), for "section 40 of the
Office of the Regulator-General Act 1994"
substitute "section 62 of the Essential
Services Commission Act 2001";
5 (h) in section 26(4), for "Section 27 of the
Office of the Regulator-General Act 1994"
substitute "Section 35 of the Essential
Services Commission Act 2001";
(i) in section 40A, for "Office"--
10 (i) (wherever occurring except for the
second reference in sub-section (2))
substitute "Commission";
(ii) where secondly occurring in sub-
section (2), for "Office" substitute
15 "Office of the Regulator-General";
(j) in section 75(3), for "section 37 of the Office
of the Regulator-General Act 1994"
substitute "section 55 of the Essential
Services Commission Act 2001";
20 (k) in section 93(5)(d), for "Office of the
Regulator-General under the Office of the
Regulator-General Act 1994" substitute
"Commission".
71. Electricity Industry Act 2000--section 10 substituted
25 For section 10 of the Electricity Industry Act
2000 substitute--
"10. Objectives of the Commission
The objectives of the Commission under this
Act are--
30 (a) to the extent that it is efficient and
practicable to do so, to promote a
consistent regulatory approach between
the electricity industry and the gas
industry; and
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(b) to promote the development of full
retail competition.".
72. Electricity Industry Act 2000--Consequential
In sections 19(1), 29(2)(a)(i) and 31(5) of the
5 Electricity Industry Act 2000, for "specified in
section 10" substitute "of the Commission under
this Act and under the Essential Services
Commission Act 2001".
73. Electricity Industry Act 2000--section 22 substituted
10 For section 22 of the Electricity Industry Act
2000 substitute--
"22. Determination of fees and charges
The fees and charges to be specified in
respect of a licence for the purposes of
15 section 21(a) are to be determined by the
Minister administering the Essential
Services Commission Act 2001--
(a) in consultation with the Minister
administering this Act; and
20 (b) having regard to the total amount of the
costs and expenses of the Commission
that are incurred or are likely to be
incurred by the Commission in the
exercise of its powers for or in
25 connection with the performance of its
functions and the achievement of its
objectives in relation to the electricity
industry.".
74. Electricity Industry (Residual Provisions) Act 1993
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Essential Services Commission Act 2001
Act No.
In the Electricity Industry (Residual
Provisions) Act 1993--
(a) in section 3(1) insert the following
definition--
5 ' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
(b) in section 3(1), the definition of "Office" is
10 repealed;
(c) in section 157, for "Office" substitute
"Commission".
75. Electricity Safety Act 1998
In sections 85 and 86(10) of the Electricity
15 Safety Act 1998, for "Office of the Regulator-
General under the Office of the Regulator-
General Act 1994" substitute "Essential Services
Commission under the Essential Services
Commission Act 2001".
20 76. National Electricity (Victoria) Act 1997
In section 8C of the National Electricity
(Victoria) Act 1997, for "section 8 of the Office
of the Regulator-General Act 1994" substitute
"section 10 of the Essential Services
25 Commission Act 2001".
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PART 10--AMENDMENTS TO GAS INDUSTRY
LEGISLATION
77. Gas Industry Act 2001
In the Gas Industry Act 2001--
5 (a) in section 3 insert the following definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
10 (b) in section 3, the definition of "ORG" is
repealed;
(c) in the heading to Division 4 of Part 2 and in
sections 18, 20(5), 20(8), 21(3), 21(4), 22,
23, 24(4), 25, 26, 27, 28, 29, 31, 32, 33, 34,
15 36, 37, 38, 39, 40, 41, 42, 43, 45, 48(2), 51,
61(1), 62, 63, 64, 65, 66, 67(2), 68(2), 69(3),
80, 81, 82, 83, 85, 86(3), 87, 88, 89, 90, 91,
92, 93, 94, 98, 99, 103, 104(3), 105(3),
106(5), 106(6), 109, 110, 111, 113, 123, 124,
20 125, 129, 130(1), 131, 132, 133, 134, 135,
136, 137, 138, 146(2), 148(8), 149(7) and
160(1)(i)--
(i) for "ORG" wherever it occurs at the
beginning of a section heading, the
25 beginning of a section or the beginning
of a sub-section, substitute "The
Commission";
(ii) for "ORG" wherever else occurring
substitute "the Commission";
30 (d) in sections 17, 21(3), 68(2), 95(1), 137(1),
146(2), 148(8) and 149(7), for "Office of
the Regulator-General Act 1994"
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substitute "Essential Services Commission
Act 2001";
(e) in section 32(4), for "Section 27 of the
Office of the Regulator-General Act 1994"
5 substitute "Section 35 of the Essential
Services Commission Act 2001";
(f) in section 48(3)--
(i) for "ORG" (where first occurring)
substitute "the Commission";
10 (ii) for "ORG" (where secondly occurring)
substitute "the Office of the Regulator-
General";
(g) in section 66(2), for "Sections 35 and 36 of
the Office of the Regulator-General Act
15 1994" substitute "Sections 53 and 54 of the
Essential Services Commission Act 2001";
(h) in section 95(1), for "section 38(2)"
substitute "section 56(2)";
(i) in section 136(3), for "section 37 of the
20 Office of the Regulator-General Act 1994"
substitute "section 55 of the Essential
Services Commission Act 2001".
78. Gas Industry Act 2001--section 18 substituted
For section 18 of the Gas Industry Act 2001
25 substitute--
"18. Objectives of the Commission
The objectives of the Commission under this
Act are--
(a) to the extent that it is efficient and
30 practicable to do so, to promote a
consistent regulatory approach between
the gas industry and the electricity
industry; and
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81
Act No.
(b) to promote the development of full
retail competition.".
79. Gas Industry Act 2001--Consequential
(1) In sections 26(1), 37(2), 38(2)(a)(i), 40(5) and
5 65(2) of the Gas Industry Act 2001, for
"specified in section 18" substitute "of the
Commission under this Act and under the
Essential Services Commission Act 2001".
(2) For section 36(2)(a) of the Gas Industry Act
10 2001 substitute--
"(a) the objectives of the Commission under this
Act and under the Essential Services
Commission Act 2001; and".
80. Gas Industry Act 2001--section 30 substituted
15 For section 30 of the Gas Industry Act 2001
substitute--
"30. Determination of fees and charges
The fees and charges to be specified in
respect of a licence for the purposes of
20 section 29(a) are to be determined by the
Minister administering the Essential
Services Commission Act 2001--
(a) in consultation with the Minister
administering this Act; and
25 (b) having regard to the total amount of the
costs and expenses of the Commission
that are incurred or are likely to be
incurred by the Commission in the
exercise of its powers for or in
30 connection with the performance of its
functions and the achievement of its
objectives in relation to the gas
industry.".
81. Gas Industry (Residual Provisions) Act 1994
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Act No.
In the Gas Industry (Residual Provisions) Act
1994--
(a) in section 3 insert the following definition--
' "Commission" means the Essential
5 Services Commission established under
the Essential Services Commission
Act 2001;';
(b) in section 3 the definition of "ORG" is
repealed;
10 (c) in section 6B and in clause 19 of Schedule 5,
for "ORG" (wherever occurring) substitute
"the Commission";
(d) in section 6C--
(i) for "ORG" where first occurring in sub-
15 section (2) substitute "The
Commission";
(ii) for "ORG" wherever else occurring
substitute "the Commission".
82. Gas Pipelines Access (Victoria) Act 1998
20 In the Gas Pipelines Access (Victoria) Act
1998--
(a) in sections 14(b) and 21(5), for "Office of
the Regulator-General" substitute "Essential
Services Commission";
25 (b) in sections 14(c), 21(1), 21(2) and 21(5)(b),
for "Office of the Regulator-General Act
1994" substitute "Essential Services
Commission Act 2001";
(c) in section 14, for "Office" substitute
30 "Commission";
(d) in section 21(2), for "section 38(2)"
substitute "section 56(2)";
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(e) in section 21(3), for "Sections 38A, 38B and
38C and Regulations under section 38(7) of
the Office of the Regulator-General Act
1994" substitute "Sections 57, 58 and 59
5 and the Regulations under the Essential
Services Commission Act 2001";
(f) in section 21(4), for "sections 37 and 38 of
the Office of the Regulator-General Act
1994" substitute "sections 55 and 56 of the
10 Essential Services Commission Act 2001".
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PART 11--AMENDMENT OF GRAIN HANDLING AND
STORAGE ACT 1995
83. Grain Handling and Storage Act 1995
In the Grain Handling and Storage Act 1995--
5 (a) in section 3 insert the following definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
10 (b) in section 3 the definition of "Office" is
repealed;
(c) in the Heading to Part 3, for "OFFICE OF
THE REGULATOR-GENERAL"
substitute "REGULATORY
15 PROVISIONS";
(d) in sections 13, 15(1), 18 and 19(1), for
"Office of the Regulator-General Act
1994" substitute "Essential Services
Commission Act 2001";
20 (e) in sections 14, 16(1), 17(3), 18, 19, 20, 21
and 22, for "Office" (wherever occurring)
substitute "Commission";
(f) in section 15(2), for "section 25(4) of the
Office of the Regulator-General Act 1994"
25 substitute "section 33(3) of the Essential
Services Commission Act 2001";
(g) in section 21(2), for "section 26 of the Office
of the Regulator-General Act 1994"
substitute "section 34 of the Essential
30 Services Commission Act 2001";
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(h) in section 22(3), for "Part 3A of the Office
of the Regulator-General Act 1994"
substitute "Part 4 of the Essential Services
Commission Act 2001".
5 84. Inquiries and determinations
For sections 23, 24 and 25 of the Grain Handling
and Storage Act 1995 substitute--
"23. Conduct of inquiries
(1) The Commission must, not later than 30 June
10 2003, conduct and complete an inquiry under
the Essential Services Commission Act
2001 to make a recommendation to the
Minister administering the Essential
Services Commission Act 2001 as to
15 whether or not a facility has ceased to be a
significant infrastructure facility or has
become a significant infrastructure facility.
(2) If the Minister administering the Essential
Services Commission Act 2001 has
20 determined that a facility is or continues to
be a significant infrastructure facility, the
Commission must conduct a further inquiry
under the Essential Services Commission
Act 2001 before the expiry of each
25 subsequent period of 3 years commencing
from the date that the last inquiry
commenced, to make a recommendation to
the Minister administering the Essential
Services Commission Act 2001 as to
30 whether or not a facility has ceased to be a
significant infrastructure facility or has
become a significant infrastructure facility.
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(3) Despite anything to the contrary in the
Essential Services Commission Act 2001,
the following applies to an inquiry conducted
under this section--
5 (a) the Commission must publish notice of
the inquiry in a daily newspaper
generally circulating in Victoria;
(b) the notice must specify--
(i) the purposes of the inquiry;
10 (ii) the period during which the
inquiry is to be held;
(iii) the period within which members
of the public may make
submissions;
15 (iv) the form in which submissions
may be made;
(v) details of public hearings;
(vi) the matters about which the
Commission is seeking
20 submissions or intends to consider
during public hearings;
(c) the Commission must send a copy of
the notice to such persons engaged in
the regulated industry and other persons
25 or bodies that the Commission
considers should be notified.
(4) If a provision of Part 5 of the Essential
Services Commission Act 2001 is
inconsistent with this Part, this Part prevails.
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24. Effect of facility ceasing to be significant
infrastructure facility
If the Minister administering the Essential
Services Commission Act 2001 after
5 considering a recommendation of the
Commission determines that a facility has
ceased to be a significant infrastructure
facility, any existing determinations made by
the Commission in respect of prescribed
10 services to which the facility relates are
revoked from the date specified by the
Minister administering the Essential
Services Commission Act 2001.".
85. Licence provisions
15 (1) At the end of Part 3 of the Grain Handling and
Storage Act 1995 insert--
"Division 3--Licences
25A. Prohibition
A person who is the provider of prescribed
20 services must not engage in the provision of
prescribed services unless the person--
(a) is the holder of a licence authorising the
provision of the relevant prescribed
services; or
25 (b) is exempted from the requirement to
obtain a licence in respect of the
provision of the relevant prescribed
services.
Penalty: 100 penalty units and 10 penalty
30 units for each day after the day on
which a notice of contravention of
this sub-section is served on the
person by the Commission.
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25B. Exemptions
(1) The Governor in Council may by Order in
Council published in the Government
Gazette exempt a person from the
5 requirement to obtain a licence in respect of
the provision of the prescribed services
specified in the Order in Council.
(2) An exemption may be of general or specific
application.
10 (3) An exemption is subject to such terms,
conditions and limitations as are specified in
the Order in Council.
(4) An Order under sub-section (1) may confer
powers and functions on, and leave any
15 matter to be determined by, the Commission.
25C. Application for licence
(1) A person may apply to the Commission for
the issue of a licence authorising the
provision of the prescribed services specified
20 in the application.
(2) An application must be in a form approved
by the Commission and be accompanied by
such documents as may be determined by the
Commission.
25 (3) An application must be accompanied by the
application fee (if any) fixed by the
Commission.
25D. Determination of application
(1) Subject to sub-section (2), the Commission
30 may grant or refuse an application for the
issue of a licence for any reason the
Commission considers appropriate, having
regard to the objectives specified in
section 14.
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(2) The Commission must not grant an
application for the issue of a licence unless
the Commission is satisfied that the applicant
has the capacity to comply with the
5 conditions of the licence.
(3) The Commission must publish a notice in a
daily newspaper generally circulating in
Victoria--
(a) specifying that an application for a
10 licence in respect of the provision of
the relevant prescribed services has
been lodged with the Commission by
the person specified in the notice; and
(b) inviting interested persons to make
15 submissions to the Commission in
respect of the application within the
period and in the manner specified in
the notice.
(4) Subject to this section, the Commission may
20 determine the procedures that are to apply in
respect of the issue of licences.
(5) The Commission must notify an applicant in
writing of its decision to grant or refuse to
grant the application and, in the case of a
25 decision to refuse to grant the application, of
the reasons for its decision.
25E. Provisions relating to licences
(1) A licence is to be issued for such term (if
any) as is determined by the Commission
30 and is specified in the licence.
(2) A licence is subject to such conditions as are
determined by the Commission.
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25F. Specific licence conditions
Without limiting the generality of
section 25E, the conditions on a licence may
include provisions--
5 (a) requiring the licensee to pay specified
fees and charges in respect of the
licence to the Commission;
(b) requiring the licensee to enter into
agreements on specified terms or on
10 terms of a specified type;
(c) requiring the licensee to maintain
specified accounting records and to
prepare accounts according to specified
principles;
15 (d) requiring the licensee to comply with
any relevant determination in respect of
prescribed services;
(e) specifying procedures for variation or
revocation of the licence;
20 (f) requiring the licensee to provide, in the
manner and form determined by the
Commission, such information as the
Commission may from time to time
require.
25 25G. Determination of fees and charges
The fees and charges to be specified in
respect of a licence for the purposes of
section 25F(a) are to be determined by the
Minister administering the Essential
30 Services Commission Act 2001--
(a) in consultation with the Minister
administering this Act; and
(b) having regard to the total amount of the
costs and expenses of the Commission
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that are incurred or are likely to be
incurred by the Commission in the
exercise of its powers for or in
connection with the performance of its
5 functions and the achievement of its
objectives in relation to the regulated
industry.
25H. Variation or revocation of licence
(1) A licence or the licence conditions may be
10 varied--
(a) in accordance with the procedures
specified in the licence conditions; or
(b) by agreement between the Commission
and the licensee; or
15 (c) by a notice in accordance with sub-
section (2) served on the licensee.
(2) The Commission must not vary a licence or
the licence conditions by a notice unless--
(a) the Commission is satisfied that the
20 variation is necessary having regard to
the objectives specified in section 14;
and
(b) the Commission has given the licensee
an opportunity to make representations
25 on the matter.
(3) The Commission may revoke a licence in
accordance with the procedures specified in
the licence conditions.
30 25I. Gazettal requirement
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The Commission must ensure that--
(a) notice of the grant of a licence
including--
(i) the name of the licensee;
5 (ii) the term of the licence;
(iii) the place where a copy of the
licence may be inspected; and
(b) notice of a variation or revocation
under section 25H--
10 is published in the Government Gazette as
soon as possible after the grant of a licence
or the variation or revocation, as the case
requires.
25J. Transfer of licence
15 (1) The holder of a licence may apply to the
Commission for approval to transfer the
licence.
(2) An application must be in a form approved
by the Commission and be accompanied by
20 such documents as may be determined by the
Commission.
(3) An application must be accompanied by the
application fee (if any) fixed by the
Commission.
25 (4) The Commission must publish in a daily
newspaper generally circulating in Victoria a
notice--
(a) specifying that an application for the
transfer of the licence has been lodged
30 with the Commission for the transfer by
the holder to a proposed transferee
specified in the notice; and
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(b) inviting interested persons to make
submissions to the Commission in
respect of the application within the
period and in the manner specified in
5 the notice.
(5) Subject to this section, the Commission may
approve, or refuse to approve, the application
for any reason it considers appropriate,
having regard to the objectives specified in
10 section 14.
(6) The Commission must not approve the
application unless the Commission is
satisfied that the proposed transferee has the
capacity to comply with the conditions of the
15 licence.
(7) The Commission may determine that, upon
the transfer of the licence under this section,
the conditions to which the licence is subject
are varied as determined by the Commission.
20 (8) Subject to this section, the Commission may
determine the procedures that are to apply in
respect of the transfer of the licences.
(9) The Commission must notify an applicant in
writing of its decision to approve or refuse to
25 approve the application and, in the case of a
decision to refuse to approve the application,
of the reasons for its decision.
25K. Transitional provision
(1) A person who is the provider of prescribed
30 services immediately before the
commencement of the Essential Services
Commission Act 2001 is deemed to have
been issued a licence under this Act and this
Act has effect in respect of such a licence as
35 if it had been issued under this Act.
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(2) For the purposes of this section, the
Commission must determine the term of, and
the conditions that are to apply to, a licence
that is deemed by this section to have been
5 issued under this Act.".
(2) Before section 13 of the Grain Handling and
Storage Act 1995 insert--
"Division 1--General".
(3) Before section 15 of the Grain Handling and
10 Storage Act 1995 insert--
"Division 2--Regulatory provisions".
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PART 12--AMENDMENT OF PORT SERVICES ACT 1995
86. Port Services Act 1995
(1) In the Port Services Act 1995--
(a) in section 45 insert the following
5 definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
10 (b) in section 45' the definition of "Office" is
repealed;
(c) in sections 46, 60(1), 60(2), 60(3) and 61(2),
for "Office of the Regulator-General Act
1994" substitute "Essential Services
15 Commission Act 2001";
(d) in sections 48, 55, 56, 57, 59(2), 60, 61 and
63, for "Office" (wherever occurring)
substitute "Commission";
(e) in section 48, for "section 7 of the Office of
20 the Regulator-General Act 1994 (but
subject to section 4(2) of that Act)"
substitute "section 8 of the Essential
Services Commission Act 2001 (but subject
to section 5(2) of that Act)";
25 (f) in sections 49, 55(1) and 63(1) for "Part 3 of
the Office of the Regulator-General Act
1994" substitute "Part 3 of the Essential
Services Commission Act 2001";
(g) in section 62(6), for "Part 4 of the Office of
30 the Regulator-General Act 1994 but
section 28" substitute "Part 5 of the
Essential Services Commission Act 2001
but section 39";
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(h) in section 56(10), for "Part 3A of the Office
of the Regulator-General Act 1994"
substitute "Part 4 of the Essential Services
Commission Act 2001";
5 (i) for section 57(3)(a) substitute--
"(a) from disclosing information or the
contents of a document to--
(i) an employee employed under
section 24(1) of the Essential
10 Services Commission Act 2001;
or
(ii) a member of staff referred to in
section 24(2) of that Act; or
(iii) a consultant engaged under
15 section 25 of that Act; or
(iv) a member of a Division,
committee or panel acting under a
delegation under section 26 of that
Act; or";
20 (j) in section 57(3)(c), for "section 33(1A) of
that Act" substitute "section 45(2) of the
Essential Services Commission Act 2001".
(2) In the Port Services Act 1995--
(a) in section 45, the definition of "Pricing
25 Order" is repealed;
(b) Division 2 of Part 3 is repealed.
(3) In the Port Services Act 1995--
(a) in the penalty at the foot of section 56(5), for
"100 penalty units or imprisonment for
30 2 years" substitute "120 penalty units";
(b) in the penalty at the foot of section 56(7), for
"100 penalty units or imprisonment for
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2 years" substitute "120 penalty units or
imprisonment for 6 months";
(c) in the penalty at the foot of section 56(8), for
"100 penalty units or imprisonment for
5 2 years" substitute "120 penalty units";
(d) in the penalty at the foot of section 57(2), for
"100 penalty units or imprisonment for
2 years" substitute "120 penalty units".
87. Inquiries and determinations
10 (1) For sections 53 and 54 of the Port Services Act
1995 substitute--
"53. Conduct of inquiries
(1) The Commission must, not later than 30 June
2004, conduct and complete an inquiry under
15 the Essential Services Commission Act
2001 to make a recommendation to the
Minister administering the Essential
Services Commission Act 2001 as to
whether or not prescribed services are to be
20 subject to price regulation and the form of
that price regulation.
(2) The Commission must conduct a further
inquiry under the Essential Services
Commission Act 2001 before the expiry of
25 each subsequent period of 5 years
commencing from the date that the last
inquiry commenced to make a
recommendation to the Minister
administering the Essential Services
30 Commission Act 2001 as to whether or not
prescribed services are to be subject to price
regulation and the form of that price
regulation.
(3) Sub-section (2) does not apply to a
35 prescribed service that, as a result of a
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previous inquiry under this section, has
ceased to be subject to price regulation.
(4) The final report on an inquiry must report on
transitional issues in relation to any change
5 in the recommended form of price
regulation.
(5) An inquiry under this section must be
conducted in accordance with Part 5 of the
Essential Services Commission Act 2001
10 but section 40 does not apply in respect of
that inquiry.
54. General power to make determinations
(1) This section applies if the Minister
administering the Essential Services
15 Commission Act 2001 determines that
prescribed services are to be subject to price
regulation.
(2) Price determinations are to be made by the
Commission in accordance with Part 3 of the
20 Essential Services Commission Act 2001.
(3) The Commission must ensure that, in the
case of a determination relating to towage in
the ports of Geelong, Portland and Hastings,
the determination is consistent with the
25 criteria applied at the time by the Australian
Competition and Consumer Commission in
assessing towage prices in other ports in
Australia.".
(2) For sections 62(1) and 62(2) of the Port Services
30 Act 1995 substitute--
"(1) The Commission must, not later than 30 June
2004, conduct an inquiry under the Essential
Services Commission Act 2001 to make a
recommendation to the Minister
35 administering the Essential Services
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Commission Act 2001 whether or not a
channel that is declared to be a significant
infrastructure facility has ceased to be such a
facility.
5 (2) The Commission must conduct a further
inquiry under the Essential Services
Commission Act 2001 before the expiry of
each subsequent period of 5 years
commencing from the date that the last
10 inquiry commenced to make a
recommendation to the Minister
administering the Essential Services
Commission Act 2001 whether or not a
channel that is declared to be a significant
15 infrastructure facility has ceased to be such a
facility.".
88. Licence provisions
After section 63 of the Port Services Act 1995
insert--
20 "Division 5--Licences
63A. Prohibition
A person who is the provider of prescribed
services must not engage in the provision of
prescribed services unless the person--
25 (a) is the holder of a licence authorising the
provision of the relevant prescribed
services; or
(b) is exempted from the requirement to
obtain a licence in respect of the
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provision of the relevant prescribed
services.
Penalty: 100 penalty units and 10 penalty
units for each day after the day on
5 which a notice of contravention of
this sub-section is served on the
person by the Commission.
63B. Exemptions
(1) The Governor in Council may by Order in
10 Council published in the Government
Gazette exempt a person from the
requirement to obtain a licence in respect of
the provision of the prescribed services
specified in the Order in Council.
15 (2) An exemption may be of general or specific
application.
(3) An exemption is subject to such terms,
conditions and limitations as are specified in
the Order in Council.
20 (4) An Order under sub-section (1) may confer
powers and functions on, and leave any
matter to be determined by, the Commission.
63C. Application for licence
(1) A person may apply to the Commission for
25 the issue of a licence authorising the
provision of the prescribed services specified
in the application.
(2) An application must be in a form approved
by the Commission and be accompanied by
30 such documents as may be determined by the
Commission.
(3) An application must be accompanied by the
application fee (if any) fixed by the
Commission.
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63D. Determination of application
(1) Subject to sub-section (2), the Commission
may grant or refuse an application for the
issue of a licence for any reason the
5 Commission considers appropriate, having
regard to the objectives specified in
section 48.
(2) The Commission must not grant an
application for the issue of a licence unless
10 the Commission is satisfied that the applicant
has the capacity to comply with the
conditions of the licence.
(3) The Commission must publish a notice in a
daily newspaper generally circulating in
15 Victoria--
(a) specifying that an application for a
licence in respect of the provision of
the relevant prescribed services has
been lodged with the Commission by
20 the person specified in the notice; and
(b) inviting interested persons to make
submissions to the Commission in
respect of the application within the
period and in the manner specified in
25 the notice.
(4) Subject to this section, the Commission may
determine the procedures that are to apply in
respect of the issue of licences.
(5) The Commission must notify an applicant in
30 writing of its decision to grant or refuse to
grant the application and, in the case of a
decision to refuse to grant the application, of
the reasons for its decision.
63E. Provisions relating to licences
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(1) A licence is to be issued for such term (if
any) as is determined by the Commission
and is specified in the licence.
(2) A licence is subject to such conditions as are
5 determined by the Commission.
63F. Specific licence conditions
Without limiting the generality of
section 63E, the conditions on a licence may
include provisions--
10 (a) requiring the licensee to pay specified
fees and charges in respect of the
licence to the Commission;
(b) requiring the licensee to enter into
agreements on specified terms or on
15 terms of a specified type;
(c) requiring the licensee to maintain
specified accounting records and to
prepare accounts according to specified
principles;
20 (d) requiring the licensee to comply with
any relevant determination in respect of
prescribed services;
(e) specifying procedures for variation or
revocation of the licence;
25 (f) requiring the licensee to provide, in the
manner and form determined by the
Commission, such information as the
Commission may from time to time
require.
30 63G. Determination of fees and charges
The fees and charges to be specified in
respect of a licence for the purposes of
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section 63F(a) are to be determined by the
Minister administering the Essential
Services Commission Act 2001--
(a) in consultation with the Minister
5 administering this Act; and
(b) having regard to the total amount of the
costs and expenses of the Commission
that are incurred or are likely to be
incurred by the Commission in the
10 exercise of its powers for or in
connection with the performance of its
functions and the achievement of its
objectives in relation to the regulated
industry.
15 63H. Variation or revocation of licence
(1) A licence or the licence conditions may be
varied--
(a) in accordance with the procedures
specified in the licence conditions; or
20 (b) by agreement between the Commission
and the licensee; or
(c) by a notice in accordance with sub-
section (2) served on the licensee.
(2) The Commission must not vary a licence or
25 the licence conditions by a notice unless--
(a) the Commission is satisfied that the
variation is necessary having regard to
the objectives specified in section 48;
and
30 (b) the Commission has given the licensee
an opportunity to make representations
on the matter.
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(3) The Commission may revoke a licence in
accordance with the procedures specified in
the licence conditions.
63I. Gazettal requirement
5 The Commission must ensure that--
(a) notice of the grant of a licence
including--
(i) the name of the licensee;
(ii) the term of the licence;
10 (iii) the place where a copy of the
licence may be inspected; and
(b) notice of a variation or revocation
under section 63H--
is published in the Government Gazette as
15 soon as possible after the grant of a licence
or the variation or revocation, as the case
requires.
63J. Transfer of licence
(1) The holder of a licence may apply to the
20 Commission for approval to transfer the
licence.
(2) An application must be in a form approved
by the Commission and be accompanied by
such documents as may be determined by the
25 Commission.
(3) An application must be accompanied by the
application fee (if any) fixed by the
Commission.
(4) The Commission must publish in a daily
30 newspaper generally circulating in Victoria a
notice--
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(a) specifying that an application for the
transfer of the licence has been lodged
with the Commission for the transfer by
the holder to a proposed transferee
5 specified in the notice; and
(b) inviting interested persons to make
submissions to the Commission in
respect of the application within the
period and in the manner specified in
10 the notice.
(5) Subject to this section, the Commission may
approve, or refuse to approve, the application
for any reason it considers appropriate,
having regard to the objectives specified in
15 section 48.
(6) The Commission must not approve the
application unless the Commission is
satisfied that the proposed transferee has the
capacity to comply with the conditions of the
20 licence.
(7) The Commission may determine that, upon
the transfer of the licence under this section,
the conditions to which the licence is subject
are varied as determined by the Commission.
25 (8) Subject to this section, the Commission may
determine the procedures that are to apply in
respect of the transfer of the licences.
(9) The Commission must notify an applicant in
writing of its decision to approve or refuse to
30 approve the application and, in the case of a
decision to refuse to approve the application,
of the reasons for its decision.
63K. Transitional provision
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(1) A person who is the provider of prescribed
services immediately before the
commencement of the Essential Services
Commission Act 2001 is deemed to have
5 been issued a licence under this Act and this
Act has effect in respect of such a licence as
if it had been issued under this Act.
(2) For the purposes of this section, the
Commission must determine the term of, and
10 the conditions that are to apply to, a licence
that is deemed by this section to have been
issued under this Act.".
_______________
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PART 13--AMENDMENT OF RAIL CORPORATIONS ACT
1996
89. Rail Corporations Act 1996
(1) In the Rail Corporations Act 1996--
5 (a) in section 3(1) insert the following
definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
10 Act 2001;';
(b) in section 3(1) the definition of "Office" is
repealed;
(c) in sections 38A(1), 38H(1), 91(2) and
100(1), for "Office of the Regulator-
15 General Act 1994" substitute "Essential
Services Commission Act 2001";
(d) in section 38A(2), for "Part 3 of the Office
of the Regulator-General Act 1994"
substitute "Part 3 of the Essential Services
20 Commission Act 2001";
(e) in sections 38B, 38DA, 38E, 38EA, 38EB,
38EC, 38F, 38H, 38I, 38J, 38K, 38L,
38M(1), 38O, 38OA, 38OB, 38OC, 38P and
38PA, for "Office" (wherever occurring)
25 substitute "Commission";
(f) in section 38B, for "section 7 of the Office
of the Regulator-General Act 1994 (but
subject to section 4(2) of that Act)"
substitute "section 8 of the Essential
30 Services Commission Act 2001 (but subject
to section 5(2) of that Act)";
(g) in sections 38EC(3) and 38PA(5), for
"Sections 38, 38A, 38B and 38C of the
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Office of the Regulator-General Act 1994"
substitute "Sections 56 to 59 of the
Essential Services Commission Act 2001";
(h) in section 38EC(4) for paragraphs (a) and (b)
5 substitute--
"(a) section 56 of the Essential Services
Commission Act 2001 applies as if
paragraph (b) formed part of sub-
section (6) of that section;
10 (b) in the case of an appeal under
section 38EC of the Rail Corporations
Act 1996--
(i) may affirm the requirement to
include the information in the
15 operator's access seeker
information; or
(ii) may cancel the requirement; or
(iii) may set aside the requirement and
remit it to the Commission for
20 amendment in accordance with
the decision and recommendations
(if any) of the appeal panel;";
(i) in section 38F for "section 26 of the Office
of the Regulator-General Act 1994"
25 (wherever occurring) substitute "section 34
of the Essential Services Commission Act
2001";
(j) in section 38K for "Office's costs" (wherever
occurring) substitute "Commission's costs";
30 (k) in section 38O(6), for "Part 3A of the Office
of the Regulator-General Act 1994"
substitute "Part 4 of the Essential Services
Commission Act 2001";
(l) for section 38P(3)(a) substitute--
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"(a) from disclosing information or the
contents of a document to--
(i) an employee employed under
section 24(1) of the Essential
5 Services Commission Act 2001;
or
(ii) a member of staff referred to in
section 24(2) of that Act; or
(iii) a consultant engaged under
10 section 25 of that Act; or
(iv) a member of a Division,
committee or panel acting under a
delegation under section 26 of that
Act; or";
15 (m) in section 38P(3)(c), for "section 33(1A) of
that Act" substitute "section 45(2) of the
Essential Services Commission Act 2001";
(n) in section 38PA(6) for paragraphs (a) and (b)
substitute--
20 "(a) section 56 of the Essential Services
Commission Act 2001 applies as if
paragraph (b) formed part of sub-
section (6) of that section;
(b) in the case of an appeal under
25 section 38PA of the Rail Corporations
Act 1996--
(i) may affirm the requirement to
include the information in the
operator's access seeker
30 information; or
(ii) may cancel the requirement; or
(iii) may set aside the requirement and
remit it to the Commission for
amendment in accordance with
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the decision and recommendations
(if any) of the appeal panel;";
(o) in section 81, the definition of "ORG" is
repealed;
5 (p) in sections 90, 93, 94, 95, 96, 97, 98, 99, 100
and 101, for "ORG"
(i) wherever occurring at the beginning of
a sub-section, substitute "The
Commission";
10 (ii) wherever else occurring, substitute
"the Commission";
(q) in section 99(3), for "section 37 of the Office
of the Regulator-General Act 1994"
substitute "section 55 of the Essential
15 Services Commission Act 2001".
(2) In the Rail Corporations Act 1996--
(a) in the penalty at the foot of section 38EA(7),
for "100 penalty units or imprisonment for
2 years" substitute "120 penalty units";
20 (b) in the penalty at the foot of section 38O(1),
for "100 penalty units or imprisonment for
2 years" substitute "120 penalty units";
(c) in the penalty at the foot of section 38O(4),
for "100 penalty units or imprisonment for
25 2 years" substitute "120 penalty units";
(d) in the penalty at the foot of section 38OA,
for "100 penalty units or imprisonment for
2 years" substitute "120 penalty units or
imprisonment for 6 months";
30 (e) in the penalty at the foot of section 38OB(1),
for "100 penalty units or imprisonment for
2 years" substitute "120 penalty units";
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(f) in the penalty at the foot of section 38P(2),
for "100 penalty units or imprisonment for
2 years" substitute "120 penalty units".
90. Total costs and expenses
5 For section 38K(1) of the Rail Corporations Act
1996 substitute--
'(1) In this section, "Commission's costs"
means the total amount of the costs and
expenses of the Commission that are
10 incurred or are likely to be incurred by the
Commission in the exercise of its powers for
or in connection with the making of a
determination under this Part.'.
_______________
15
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PART 14--AMENDMENT OF WATER INDUSTRY ACT 1994
91. Water Industry Act 1994
In the Water Industry Act 1994--
(a) in section 3(1) insert the following
5 definition--
' "Commission" means the Essential
Services Commission established under
the Essential Services Commission
Act 2001;';
10 (b) in sections 5, 9(2), 10(2), 11(5), 21A(3)(c),
21A(3)(d) and 21A(4), for "Office of the
Regulator-General Act 1994" substitute
"Essential Services Commission Act
2001";
15 (c) in sections 7, 8(2), 9, 10, 11, 14, 15, 17(4),
21A, 65A(3), 72, 78(1) and 143, for "Office
of the Regulator-General" (wherever
occurring) substitute "Commission";
(d) in sections 8(1), 8(2) and 65A(3), for "Part 3
20 of the Office of the Regulator-General Act
1994" substitute "Part 3 of the Essential
Services Commission Act 2001";
(e) in sections 9(3) and 11(4)(i), for "that
Office" substitute "the Commission";
25 (f) in sections 11(7), 14(2)(a), 14(2)(b) and
72(1), for "the Office" substitute "the
Commission";
(g) in section 21A(3)(b), for "Office of the
Regulator-General Act 1994 except that
30 sections 37 and 38" substitute "Essential
Services Commission Act 2001 except that
sections 55 and 56".
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92. Water Industry Act 1994--new sections 12A and 12B
inserted
After section 12 of the Water Industry Act 1994
insert--
5 "12A. Licence surcharge
(1) A surcharge is payable on a licence specified
in section 17(1) in accordance with this
section.
(2) The surcharge is payable at such intervals
10 and in such amounts as is determined by the
Commission by notice in writing to the
licensee.
12B. Determination of surcharge
The surcharge to be specified in respect of a
15 licence for the purposes of section 12A is to
be determined by the Minister administering
the Essential Services Commission Act
2001--
(a) in consultation with the Minister
20 administering this Act; and
(b) having regard to the total amount of the
costs and expenses of the Commission
that are incurred or are likely to be
incurred by the Commission in the
25 exercise of its powers for or in
connection with the performance of its
functions and the achievement of its
objectives in relation to the water
industry.".
30 _______________
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PART 15--CONSEQUENTIAL AMENDMENTS OF OTHER
ACTS
93. Melbourne and Metropolitan Board of Works Act
1958
5 In section 68A(3) of the Melbourne and
Metropolitan Board of Works Act 1958, for
"Office of the Regulator-General under Part 3 of
the Office of the Regulator-General Act 1994"
substitute "Essential Services Commission under
10 Part 3 of the Essential Services Commission Act
2001".
94. Public Sector Management and Employment Act 1998
For section 16(1)(g) of the Public Sector
Management and Employment Act 1998
15 substitute--
"(g) the Chairperson in relation to the Essential
Services Commission under the Essential
Services Commission Act 2001;".
95. Public Transport Competition Act 1995
20 In section 3(4) of the Public Transport
Competition Act 1995 for "Office of the
Regulator-General Act 1994" substitute
"Essential Services Commission Act 2001".
96. Transport Act 1983
25 In section 10(1)(d) of the Transport Act 1983 for
"section 26 of the Office of the Regulator-
General Act 1994" substitute "section 34 of the
Essential Services Commission Act 2001".
30
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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INDEX
Subject Section
Act
commencement 2
consequential amendments 70ญ96
Crown bound by 6
interpretation and application 5
purpose and outline 1
repeal and transitional provisions 67ญ69
review of 66
Appeals
appeal panel 3, 56ญ60
hearings and determinations 56ญ57, 59
making of and grounds for 55
14
Charter of Consultation and Regulatory Practice
Commission See Essential Services Commission
Confidential information
appeals 55ญ56
disclosure
by Commission 38
by others 61
in inquiries 43
in investigations 49
in reports 45, 52
offences 61
restrictions on Commission 56
3, 15, 16, 32
Definitions
Determinations
allocation of Commissioners 29
appeals 55ญ56
conduct 29, 30, 35
date of effect 35
enforcement orders and injunctions 53ญ54
notice and copies of 35
price determinations 33
proceedings regarding 62
Documents See Information or documents
Electricity industry legislation
amendments to 70ญ76
3
Empowering instrument (def.)
3
Essential services (def.)
Essential Services Commission
acting Chairperson 20, 28
annual report 31
Chairperson 3, 18ญ19, 23, 28,
69
Charter 14
Commissioners 3, 17, 21ญ23, 27,
60
consultants 25
consultation with prescribed agencies 15
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Subject Section
Crown represented by 9
delegation 26
Divisions of 29
establishment 7
functions 10
meetings and procedure 28
membership 17
memoranda of understanding 16
not subject to direction or control 12
objectives 5, 8, 50
pecuniary interests of Commissioners 27
powers 11
powers and duties regarding
appeals 56
determinations 29ญ30, 33, 35
disclosure of confidential information 38, 56
economic regulatory matters 34
enforcement orders and injunctions 53ญ54
information and documents 36ญ39
inquiries 29, 40ญ46
investigations 47ญ52
licensing 34
market conduct 34
relevant legislation 5, 11
price regulation and determinations 32ญ33
standards, conditions of service and supply 34
summonses 44, 51
protection from liability of Commissioners, staff 60
service of documents on 64
staff 24, 60
statements and guidelines 13
successor to Office of Regulator-General 68
39
Freedom of information documents
Gas industry legislation
amendments to 77ญ82
Grain Handling and Storage Act 1995
amendments to 83ญ85
Information or documents
appeals regarding Commission's requirements 55ญ56
Commission's power to obtain 37
exempt freedom of information documents 39
provided in inquiries, investigations 44, 51
See also Confidential information
54
Injunctions
Inquiries
allocation of Commissioners 29
Commission's powers 40, 44
conduct of 29, 43
confidential documents, information used in 38, 43
notice of 42
referral to Commission by Minister 41, 42
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Act No.
Subject Section
reports 38, 41, 45ญ46
submissions and public hearings 42, 43
Investigations
Commission's powers 51
conduct of 48, 49, 50
confidential documents, information used in 38, 49
referral to Commission 48
reports 38, 48, 52
submissions and public hearings 49
Licensing
Commission's powers 34
orders for enforcement of licence conditions 53ญ54
34
Market conduct
Minister
powers and duties regarding
appeal panels 58, 59
Commissioners 19, 22
referral of inquiries to Commission 41, 42
referral of investigations to Commission 48
reports of inquiries, investigations 45ญ46, 48, 52
review of Act 66
Offences
contravention of enforcement orders 53
disclosure of confidential information 61
disobeying summons of Commission 44, 51
false or misleading information 37, 44, 51
non-compliance with information requirements 37
threats, intimidation, coercion 37, 44, 51
68
Office of the Regulator-General
67
Office of the Regulator-General Act 1994
Orders
declaring an industry to be regulated industry 4
definition 3
enforcement orders 53, 62
Tariff Order (def.) 3
Port Services Act 1995
amendments to 86ญ88
3, 15, 16
Prescribed agencies and bodies
32ญ33
Prescribed goods, services and prices
32ญ33
Price regulation and determinations
62
Proceedings
Rail Corporations Act 1996
amendments to 89ญ90
Regulated industries
Commission's regulatory powers 32ญ34
declarations 4
definition 3
regulated entities (def.) 3
relevant legislation 3, 5, 11
65
Regulations
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Act No.
Subject Section
69
Regulator-General
3, 5, 11, 67
Relevant legislation
66
Review of Act
Supreme Court
injunctions 54
limitation of jurisdiction 63
3
Tariff Order (def.)
Water Industry Act 1994
amendments to 91ญ92
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