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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Victorian Renewable Energy Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Objects 8
5. Approved interstate renewable energy regime 8
6. Crown to be bound 9
7. Extra-territorial operation 9
PART 2--RENEWABLE ENERGY CERTIFICATES 10
Division 1--Registration of Persons 10
8. Who may apply to be registered? 10
9. ESC may require further information and undertakings from
applicants 10
10. ESC to approve or refuse application 11
11. ESC to allocate registration numbers 11
Division 2--Provisional Accreditation of Power Stations 12
12. Application for provisional accreditation of a relevant power
station 12
13. ESC may give provisional accreditation 13
14. Time limit for deciding applications 15
Division 3--Accreditation of Power Stations 15
15. Application for accreditation 15
16. ESC may require further information and undertakings from
applicants 17
17. ESC to decide certain matters 18
18. ESC to approve or refuse application 21
19. Time limit for deciding applications 21
20. Nominated person for accredited power station 21
21. ESC to allocate identification codes 22
22. What is an eligible renewable energy source? 22
23. What is not an eligible renewable energy source? 23
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24. Specification of energy sources as eligible renewable energy
sources 23
25. ESC rules may provide for or in relation to meaning of energy
sources 23
Division 4--Creation of Certificates 24
Subdivision 1--Electricity Generation 24
26. Creating certificates for additional renewable electricity 24
27. When certificates may be created 25
28. Certificates must not be created if Commonwealth certificates
already created 25
29. Electricity generation returns 25
Subdivision 2--Small Generation Units 26
30. When a certificate may be created 26
31. How many certificates may be created 27
32. Who may create a certificate? 27
33. No other certificates to be created 27
34. Certificates must not be created if Commonwealth certificates
already created 28
35. Election to not create certificates under this Subdivision 28
36. Small generation unit returns 29
Subdivision 3--End of Right to Create Certificates 29
37. No certificates can be created on or after 1 January 2031 29
Subdivision 4--Improper Creation of Certificates 30
38. Improper creation of certificates--offences 30
Division 5--Form and Registration of Certificates 30
39. Form and content of certificates--accredited power stations 30
40. Form and content of certificates--small generation units 31
41. Certificates must be registered 32
Division 6--Transfer of Certificates 33
42. Certificates may be transferred 33
43. ESC to be notified 33
Division 7--Retirement of Certificates 33
44. Owner may surrender certificate 33
45. Retirement of certificates 34
Division 8--Suspension of Registration 34
46. Suspension of registration--conviction for improper creation of
certificates 34
47. Suspension of registration--other grounds 35
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Division 9--Changing the Nominated Person for an Accredited
Power Station 35
48. Changing the nominated person for an accredited power
station 35
Division 10--Varying what Constitutes a Power Station 37
49. Varying what constitutes an accredited power station 37
Division 11--Suspending the Accreditation of a Relevant Power
Station 38
50. Suspending the accreditation of a relevant power station--
interconnected power stations 38
51. Suspending the accreditation of a power station--other
grounds 40
52. Suspending the accreditation of a power station--
circumstances specified by Governor in Council 41
Division 12--Varying Pre-Scheme Capacity and Scheme Capacity 41
53. Varying pre-scheme capacity and scheme capacity 41
PART 3--ACQUISITIONS OF ELECTRICITY 42
54. What is a "standard scheme acquisition"? 42
55. What is a "notional scheme acquisition"? 42
56. What is an "excluded acquisition"? 42
57. Specification of standard scheme acquisitions and notional
scheme acquisitions as excluded acquisitions 42
58. Special provision for transactions involving NEMMCO 43
59. ESC rules to determine amount of electricity acquired 43
PART 4--RENEWABLE ENERGY CERTIFICATE
SHORTFALL 44
Division 1--Prohibition of Renewable Energy Certificate
Shortfall 44
60. Who is a relevant entity? 44
61. Prohibition of renewable energy certificate shortfall 44
62. Civil penalty for shortfall 44
63. Shortfall penalty rate 44
64. Determination of renewable energy certificate shortfall 45
Division 2--Renewable Power Percentage 46
65. Renewable power percentage 46
66. Required GWh of electricity from eligible renewable energy
sources 47
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PART 5--STATEMENTS AND SURRENDER OF
CERTIFICATES 50
67. Annual energy acquisition statements 50
68. Fees for surrender of certificates 51
69. Restrictions on certificates that can be surrendered 52
PART 6--CIVIL ENFORCEMENT 53
Division 1--Renewable Energy Shortfall Penalty 53
70. Shortfall statement 53
71. Application for declaration and order for payment of shortfall
penalty 54
Division 2--Surrender of Additional Certificates where
Undertaking Breached 54
72. Certificate surrender notice 54
73. Application for declaration and order requiring surrender of
certificates 56
Division 3--Surrender of Additional Certificates following
Improper Creation of Certificates 57
74. ESC may require surrender of certificates following improper
creation of certificates 57
PART 7--REVIEW OF ESC DECISIONS 59
75. Review of decisions 59
PART 8--ROLE OF ESC 62
76. Role of ESC 62
77. ESC must publish certain information 62
78. Annual report 63
PART 9--REGISTERS 64
Division 1--General 64
79. Registers to be maintained 64
Division 2--The Register of Registered Persons 64
80. Register of registered persons 64
Division 3--The Register of Accredited Power Stations 65
81. Register of accredited power stations 65
Division 4--The Register of Renewable Energy Certificates 65
82. Register of renewable energy certificates 65
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Division 5--The Register of Applications for Accredited Power
Stations 66
83. Contents of register of applications for accredited power
stations 66
Division 6--Form of Registers 66
84. Form of registers 66
PART 10--INFORMATION-GATHERING POWERS 68
85. ESC may obtain information and documents 68
86. Failure to comply with notice 69
87. Protection against self-incrimination 69
88. Copies of documents 69
89. ESC may retain documents 69
PART 11--POWERS OF AUTHORISED OFFICERS 71
Division 1--Appointment of Authorised Officers and Identity
Cards 71
90. Appointment of authorised officers 71
91. Identity cards 71
Division 2--Powers of Authorised Officer 72
Subdivision 1--When may Powers be Exercised 72
92. When may powers be exercised? 72
Subdivision 2--Monitoring Powers 72
93. Entry to premises 72
94. Information to be provided to occupier on entry 73
95. Entry with consent 74
96. Entry with monitoring warrant 74
97. Monitoring powers of authorised officers 75
Subdivision 3--Powers to Ask Questions and Seek Production of
Documents 77
98. Authorised officer may ask for information 77
99. Authorised officer may require information 78
100. Failure to produce documents or answer questions 78
101. Protection against self-incrimination 78
Division 3--Occupiers' Rights and Responsibilities 79
102. Occupier may be present during execution of warrant 79
103. Occupier to provide authorised officer with assistance 79
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Division 4--Monitoring Warrants 79
104. Monitoring warrants 79
PART 12--CONFIDENTIALITY 82
105. Disclosure of information and offence 82
106. Information may be disclosed to specified persons or bodies 83
PART 13--GENERAL 84
Division 1--General Offences 84
107. False or misleading information 84
108. Failure to provide documents 84
109. Offences by bodies corporate 85
Division 2--Evidence and Records 85
110. Evidence 85
111. Records to be kept by registered persons and relevant entities 86
Division 3--Fees 87
112. Fees 87
Division 4--ESC Rules 88
113. ESC rules 88
Division 5--Review of Act 90
114. Review of operation of Act 90
PART 14--AMENDMENT OF ESSENTIAL SERVICES
COMMISSION ACT 2001 92
115. Functions 92
116. New section 10C inserted 92
10C. Commission's functions in relation to renewable
energy 92
117. Delegation 92
__________________
SCHEDULE--Undertakings to be Given to the ESC 93
ENDNOTES 96
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PARLIAMENT OF VICTORIA
Initiated in Assembly 18 July 2006
As amended by Assembly 10 August 2006
A BILL
to promote the development of renewable energy generation through
the establishment of a scheme that provides for the creation and
acquisition of renewable energy certificates and requires the surrender
of renewable energy certificates and for other purposes.
Victorian Renewable Energy Act 2006
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to promote the
development of renewable energy generation
through the establishment of a scheme that--
5
(a) provides for the creation and acquisition of
renewable energy certificates; and
1
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Victorian Renewable Energy Act 2006
Act No.
Part 1--Preliminary
s. 2
(b) requires the surrender of renewable energy
certificates.
2. Commencement
(1) This Act comes into operation on day or days to
be proclaimed.
5
(2) If a provision of this Act does not come into
operation before 1 January 2007, it comes into
operation on that day.
3. Definitions
(1) In this Act--
10
"accredited power station" means a relevant
power station accredited under Division 3 of
Part 2;
"approved interstate renewable energy
regime" means a law of another State or a
15
Territory approved under section 5;
"arrangement" means--
(a) any agreement, arrangement,
understanding, promise or undertaking,
whether express or implied and whether
20
or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action,
course of action or course of conduct;
"business day" means a day other than a
25
Saturday or Sunday or a public holiday
appointed under the Public Holidays Act
1993;
"carried forward surplus" has the meaning
given by section 64;
30
"certificate" means a renewable energy
certificate created under Division 4 of Part 2;
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"certificate surrender notice" means a notice
issued under section 72;
"Commonwealth certificate" means a certificate
within the meaning of section 5(1) of the
Commonwealth scheme;
5
"Commonwealth nominated person" means a
nominated person within the meaning of
section 5(1) of the Commonwealth scheme;
"Commonwealth Regulator" means the
Regulator within the meaning of section 5(1)
10
of the Commonwealth scheme;
"Commonwealth scheme" means the Renewable
Energy (Electricity) Act 2000 of the
Commonwealth;
"Commonwealth scheme participant" means--
15
(a) a person registered under the
Commonwealth scheme; or
(b) a Commonwealth nominated person;
"Commonwealth scheme power station"
means--
20
(a) an accredited power station within the
meaning of section 5(1) of the
Commonwealth scheme; or
(b) a power station provisionally accredited
under Division 2A of Part 2 of the
25
Commonwealth scheme;
"electronic signature" of a person means the
person's unique identification in an
electronic form that is approved by the ESC
under sub-section (3);
30
"eligible renewable energy source" has the
meaning given by section 22;
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"energy acquisition statement" has the meaning
given by section 67;
"ESC" means the Essential Services Commission
established under section 7 of the Essential
Services Commission Act 2001;
5
"ESC rules" means rules made by the ESC under
section 113;
"excluded acquisition" has the meaning given by
section 56;
"GWh" means gigawatt hour;
10
"monitoring warrant" means a warrant issued
under section 104;
"MW" means megawatt;
"MWh" means megawatt hour;
"NEMMCO" has the same meaning as in the
15
National Electricity (Victoria) Law;
"nominated person", in relation to an accredited
power station, means--
(a) if no approvals have been given under
section 48 in relation to the accredited
20
power station--the person who made
the application for accreditation; or
(b) if one or more approvals have been
given under that section in relation to
the accredited power station--the last
25
person so approved;
"notional scheme acquisition" has the meaning
given by section 55;
"occupier" in relation to premises, includes a
person present at the premises who is in
30
apparent control of the premises;
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s. 3
"pre-scheme capacity", in relation to an
accredited power station, means that part of
the capacity of the power station to generate
electricity, measured in MW, that is
specified by the ESC under section 17 to be
5
pre-scheme capacity;
"premises" includes the following--
(a) a structure, building or vehicle;
(b) a place (whether enclosed or built on or
not);
10
(c) a part of a thing referred to in
paragraph (a) or (b);
"produce" includes permit access to;
"protected information" has the same meaning
as in section 5(1) of the Commonwealth
15
scheme;
"registered person" means a person registered
under Division 1 of Part 2;
"register of accredited power stations" has the
meaning given by section 81;
20
"register of applications for accredited power
stations" has the meaning given by
section 83;
"register of registered persons" has the meaning
given by section 80;
25
"register of renewable energy certificates" has
the meaning given by section 82;
"registration number" has the meaning given by
section 11;
"related body corporate" has the same meaning
30
as in section 50 of the Corporations Act;
5
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Act No.
Part 1--Preliminary
s. 3
"relevant entity" has the meaning given by
section 60;
"relevant power station" means a power
station--
(a) situated in Victoria; or
5
(b) situated in another State or a Territory
in which an approved interstate
renewable energy regime applies;
"renewable energy certificate shortfall" has the
meaning given by section 64;
10
"renewable energy shortfall penalty" has the
meaning given by section 62;
"renewable power percentage" means the
percentage fixed under section 65;
"required GWh of electricity from eligible
15
renewable energy sources" has the
meaning given by section 66;
"required renewable energy" has the meaning
given by section 64;
"scheme acquisition" means--
20
(a) a standard scheme acquisition; or
(b) a notional scheme acquisition--
but does not include an excluded acquisition;
"scheme capacity", in relation to an accredited
power station, means that part of the capacity
25
of the power station to generate electricity,
measured in MW, that is specified by the
ESC under section 17 to be scheme capacity;
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s. 3
"small generation unit" means a device that--
(a) generates electricity using an eligible
renewable energy source; and
(b) is situated--
(i) in Victoria; or
5
(ii) in another State or a Territory in
which an approved interstate
renewable energy regime applies;
and
(c) is specified by the ESC rules to be a
10
small generation unit;
"stakeholder", in relation to an accredited power
station, means--
(a) a person who operates the accredited
power station (whether alone or
15
together with one or more other
persons); or
(b) a person who owns all, or a part, of the
accredited power station (whether alone
or together with one or more other
20
persons);
"standard scheme acquisition" has the meaning
given by section 54;
"warrant premises", in relation to a monitoring
warrant, means the premises to which the
25
warrant relates;
"year" means calendar year.
(2) For the purposes of this Act, electricity is taken to
be a good that can be acquired.
(3) The ESC may, in writing, approve an electronic
30
form for the purposes of the definition of
"electronic signature" in sub-section (1).
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Victorian Renewable Energy Act 2006
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Part 1--Preliminary
s. 4
4. Objects
The objects of this Act are--
(a) to encourage additional generation of
electricity from renewable energy sources;
and
5
(b) to encourage investment in the generation of
renewable energy and the development of
renewable energy technologies; and
(c) to encourage regional investment and
employment; and
10
(d) to contribute to the diversity of Victoria's
energy supplies; and
(e) to reduce emissions of greenhouse gases.
5. Approved interstate renewable energy regime
(1) The Minister, by notice published in the
15
Government Gazette, may approve a law of
another State or a Territory to be an approved
interstate renewable energy regime.
(2) The Minister must not approve a law of another
State or a Territory to be an approved interstate
20
renewable energy regime unless he or she is
satisfied that--
(a) the approval of that law would complement,
and not detract from, the achievement of the
purpose and objects of this Act; and
25
(b) the approval of that law would not impose
unreasonable costs on purchasers of
electricity in Victoria; and
(c) the law promotes the reduction of emissions
of greenhouse gases; and
30
(d) the arrangements for the monitoring, and
enforcement, of compliance with that law are
no less stringent than those under this Act.
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Part 1--Preliminary
s. 6
6. Crown to be bound
This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
7. Extra-territorial operation
5
It is the intention of the Parliament that the
operation of this Act should, so far as possible,
include operation in relation to the following--
(a) land situated outside Victoria, whether in or
outside Australia;
10
(b) things situated outside Victoria, whether in
or outside Australia;
(c) acts, transactions and matters done, entered
into or occurring outside Victoria, whether in
or outside Australia;
15
(d) things, acts, transactions and matters,
(wherever situated, done, entered into or
occurring) that would, apart from this Act, be
governed or otherwise affected by the law of
the Commonwealth, another State, a
20
Territory or a foreign country.
__________________
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Victorian Renewable Energy Act 2006
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Part 2--Renewable Energy Certificates
s. 8
PART 2--RENEWABLE ENERGY CERTIFICATES
Division 1--Registration of Persons
8. Who may apply to be registered?
(1) Any person may apply to the ESC to be registered
under this Act.
5
(2) An application must--
(a) be made in a form and manner required by
the ESC; and
(b) contain any information required by the
ESC; and
10
(c) be accompanied by any documents required
by the ESC; and
(d) be accompanied by, if required by the
ESC--
(i) evidence of the kind referred to in
15
section 9(1); and
(ii) a relevant undertaking referred to in
section 9(2) or 9(3); and
(e) be accompanied by the relevant fee (if any)
fixed under section 112.
20
9. ESC may require further information and
undertakings from applicants
(1) The ESC may require from an applicant under
section 8 who is a Commonwealth scheme
participant, evidence, in writing, that the applicant
25
has agreed with the Commonwealth Regulator for
the Commonwealth Regulator to divulge or
communicate to the ESC--
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Part 2--Renewable Energy Certificates
s. 10
(a) protected information concerning the
applicant; or
(b) any other information held by the
Commonwealth Regulator.
(2) The ESC may require from an applicant under
5
section 8 who is a Commonwealth scheme
participant an undertaking, in such terms as the
ESC may require, to the effect of clause 1 of the
Schedule.
(3) The ESC may require from an applicant under
10
section 8 who is not a Commonwealth scheme
participant an undertaking, in such terms as the
ESC may require, to the effect of clause 2 of the
Schedule.
10. ESC to approve or refuse application
15
(1) If the ESC receives an application that is properly
made under section 8, the ESC must approve the
application.
(2) To avoid doubt--
(a) if the person is already registered, the ESC
20
must refuse the application;
(b) if a person's registration has been suspended
under Division 8, the person cannot be
registered during the period of the
suspension.
25
11. ESC to allocate registration numbers
If the ESC approves an application, the ESC must
allocate the applicant a unique registration number
and advise the applicant of the number.
11
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Part 2--Renewable Energy Certificates
s. 12
Division 2--Provisional Accreditation of Power Stations
12. Application for provisional accreditation of a
relevant power station
(1) A registered person may apply to the ESC for
provisional accreditation of the proposed
5
components of an electricity generation system
that the person considers would, if assembled, be
a single relevant power station.
(2) An application must--
(a) be made in a form and manner required by
10
the ESC; and
(b) specify the proposed components; and
(c) list the eligible renewable energy sources
from which electricity is intended to be
generated; and
15
(d) contain any other information required by
the ESC; and
(e) be accompanied by any documents required
by the ESC; and
(f) be accompanied by the relevant fee (if any)
20
fixed under section 112.
(3) The ESC may also require from an applicant
under this section--
(a) who is a Commonwealth scheme participant;
and
25
(b) whose application is in respect of
components of an electricity generation
system that are a Commonwealth scheme
power station--
evidence, in writing, that the applicant has agreed
30
with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or
communicate to the ESC--
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Part 2--Renewable Energy Certificates
s. 13
(c) information about the Commonwealth
scheme power station; and
(d) protected information concerning the
applicant; and
(e) any other information held by the
5
Commonwealth Regulator.
(4) The ESC may also require from an applicant
under this section who is an applicant under
section 12A or 13 of the Commonwealth scheme
evidence, in writing, that the applicant has agreed
10
with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or
communicate to the ESC--
(a) information about the components of the
electricity generation system that are also the
15
subject of an application under either of
those sections; and
(b) protected information concerning the
applicant; and
(c) any other information held by the
20
Commonwealth Regulator.
13. ESC may give provisional accreditation
(1) If--
(a) the ESC receives an application that is
properly made under section 12; and
25
(b) the ESC is satisfied that some or all of the
proposed components of the system would,
if assembled, be a relevant power station for
the purposes of this Act--
the ESC must, by written notice given to the
30
applicant--
13
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(c) specify which of those proposed components
(the "provisional components") would, if
assembled, be a relevant power station for
the purposes of this Act; and
(d) specify that, if an application is properly
5
made under section 15 in relation to the
relevant power station--
(i) the ESC will decide that the
components specified in that
application are taken to be a relevant
10
power station for the purposes of this
Act if the ESC is satisfied that they are
not materially different from the
provisional components; and
(ii) the relevant power station will be
15
eligible for accreditation if section
17(3) is satisfied.
(2) If--
(a) the ESC receives an application that is
properly made under section 12; and
20
(b) the ESC is not satisfied that some or all of
the proposed components of the system
would, if assembled, be a relevant power
station for the purposes of this Act--
the ESC must, by written notice given to the
25
applicant, refuse the application.
(3) ESC rules made for the purposes of section 17, in
relation to deciding the components of a relevant
power station, apply in a corresponding way to
this section.
30
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s. 14
14. Time limit for deciding applications
(1) The ESC must decide an application that is
properly made under section 12 within--
(a) the period of 40 business days beginning on
the day the ESC received the application; or
5
(b) if, before the end of that period, the ESC and
applicant agree to a longer period--that
longer period.
(2) However, if, during the period applicable under
sub-section (1), the ESC, for the purpose of
10
deciding the application, requests information
from an applicant, the period between the request
and the giving of the information must be
disregarded for the purpose of calculating the
period applicable under sub-section (1).
15
(3) If the ESC has not decided the application within
the period applicable under this section, the ESC
is taken, at the end of that period, to have made a
decision under section 13 refusing the application.
Division 3--Accreditation of Power Stations
20
15. Application for accreditation
(1) A registered person may apply to the ESC for
accreditation, as an accredited power station, of
the components of an electricity generation
system that the person considers are a single
25
relevant power station if the person--
(a) operates those components (whether alone or
together with one or more other persons); or
(b) owns all, or a part, of those components
(whether alone or together with one or more
30
other persons).
15
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(2) The application must--
(a) be made in a form and manner required by
the ESC; and
(b) specify those components of the system that
the applicant considers are a single relevant
5
power station; and
(c) specify each other person (if any) who--
(i) operates those components (whether
alone or together with one or more
other persons); or
10
(ii) owns all, or a part, of those components
(whether alone or together with one or
more other persons); and
(d) list--
(i) the eligible renewable energy sources
15
from which electricity is intended to be
generated; and
(ii) the estimated average annual output
from each source (in MWh) listed
under sub-paragraph (i); and
20
(iii) the possible scheme capacity; and
(iv) the estimated average annual output
from each source (in MWh) listed
under sub-paragraph (i) utilising the
possible scheme capacity listed under
25
sub-paragraph (iii); and
(e) contain any other information required by
the ESC; and
(f) be accompanied by any documents required
by the ESC; and
30
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(g) if required by the ESC, be accompanied
by--
(i) evidence of the kind referred to in
section 16(2); and
(ii) a relevant undertaking referred to in
5
section 16(3) or 16(4); and
(h) be accompanied by a statement in writing
from each other person (if any) specified
under paragraph (c) indicating that the other
person agrees to the making of the
10
application; and
(i) be accompanied by the relevant fee (if any)
fixed under section 112.
16. ESC may require further information and
undertakings from applicants
15
(1) Sub-sections (2) and (3) apply to an applicant
under section 15--
(a) who is a Commonwealth scheme participant;
and
(b) whose application is in respect of
20
components of an electricity generation
system that are a Commonwealth scheme
power station.
(2) The ESC may require from the applicant
evidence, in writing, that--
25
(a) the applicant has agreed with the
Commonwealth Regulator for the
Commonwealth Regulator to divulge or
communicate to the ESC information about
the Commonwealth scheme power station;
30
(b) the applicant has agreed with the
Commonwealth Regulator for the
Commonwealth Regulator to divulge or
communicate to the ESC--
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(i) protected information concerning the
applicant; or
(ii) any other information held by the
Commonwealth Regulator;
(c) the persons specified in the application in
5
accordance with section 15(2)(c) have agreed
with the applicant that they will each agree
with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or
communicate to the ESC--
10
(i) protected information concerning them;
or
(ii) any other information held by the
Commonwealth Regulator.
(3) The ESC may require from the applicant an
15
undertaking, in such terms as the ESC may
require, to the effect of clause 3 of the Schedule.
(4) The ESC may require from an applicant under
section 15 who is not a Commonwealth scheme
participant at the time of the application an
20
undertaking, in such terms as the ESC may
require, to the effect of clause 4 of the Schedule.
17. ESC to decide certain matters
(1) If the ESC receives an application that is properly
made under section 15, the ESC must--
25
(a) decide, in accordance with the ESC rules,
which components of the system are to be
taken to be a relevant power station for the
purposes of this Act; and
(b) decide whether the relevant power station is
30
eligible for accreditation.
Note: A decision under sub-section (1)(a) may be varied:
see Division 10.
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(2) If--
(a) the ESC gave a person a notice under section
13(1) in relation to the relevant power
station; and
(b) the ESC is satisfied that the components
5
specified in the application under section 15
are not materially different from the
provisional components specified under
section 13(1)--
the ESC must decide, under sub-section (1)(a) of
10
this section, that the components specified in the
application under section 15 are taken to be a
relevant power station for the purposes of this Act.
(3) A relevant power station is eligible for
accreditation if--
15
(a) some or all of the electricity generated by the
relevant power station is generated from an
eligible renewable energy source; and
(b) the relevant power station satisfies any
requirements specified in the ESC rules.
20
(4) However, a relevant power station is not eligible
for accreditation if the ESC is satisfied that a
previous decision under sub-section (1)(a) should
be varied to include the components of the system
specified in the application for accreditation.
25
(5) If the ESC decides that the relevant power station
is eligible for accreditation, the ESC must also
specify in its decision--
(a) in accordance with sub-section (6), the pre-
scheme capacity (if any) of the relevant
30
power station; and
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(b) in accordance with sub-section (7), the
scheme capacity of the relevant power
station; and
(c) any energy sources used by the relevant
power station that are not eligible renewable
5
energy sources.
(6) The ESC must, in accordance with the ESC rules,
specify that part of the power station's capacity
(if any) that has been utilised to generate
electricity on a commercial basis before 1 January
10
2007.
(7) The ESC must, in accordance with the ESC rules,
specify how much of the power station's capacity
to generate electricity, measured in MW, is in
excess of the power station's pre-scheme capacity.
15
(8) To avoid doubt--
(a) the ESC rules may provide that a relevant
power station includes components that are
integral to the operation of the relevant
power station or to the generation of
20
electricity by the relevant power station; and
(b) the pre-scheme capacity for an accredited
power station may be nil.
(9) In this section--
"commercial basis", in relation to the generation
25
of electricity, means the generation of
electricity--
(a) for sale to another person for the
primary purpose of earning revenue;
(b) primarily for use by the person
30
generating it or a related body
corporate.
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18. ESC to approve or refuse application
If the ESC decides that a relevant power station is
eligible for accreditation, the ESC must approve
the application. In any other case, the ESC must
refuse the application.
5
Note: The accreditation of an accredited power station may be
suspended: see Division 11.
19. Time limit for deciding applications
(1) The ESC must decide an application that is
properly made under section 15 within--
10
(a) the period of 40 business days beginning on
the day the ESC received the application; or
(b) if, before the end of that period, the ESC and
applicant agree to a longer period--that
longer period.
15
(2) However, if, during the period applicable under
sub-section (1), the ESC, for the purpose of
deciding the application, requests information
from an applicant, the period between the request
and the giving of the information must be
20
disregarded for the purpose of calculating the
period applicable under sub-section (1).
(3) If the ESC has not decided the application within
the period applicable under sub-section (1), the
ESC is taken, at the end of that period, to have
25
made a decision under section 18 refusing the
application.
20. Nominated person for accredited power station
If the ESC approves an application, the applicant
becomes the nominated person for the accredited
30
power station.
Note: The nominated person for the accredited power station is
able to create certificates for electricity generated by the
accredited power station: see section 26. The nominated
35 person may change: see Division 9.
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21. ESC to allocate identification codes
If the ESC approves an application, the ESC must
allocate the accredited power station a unique
identification code and advise the applicant of the
code.
5
22. What is an eligible renewable energy source?
The following energy sources are "eligible
renewable energy sources"--
(a) hydro;
(b) wave;
10
(c) tide;
(d) ocean;
(e) wind;
(f) solar (other than solar energy used in a
device primarily for heating water);
15
(g) geothermal-aquifer;
(h) hot dry rock;
(i) energy crops;
(j) wood waste;
(k) agricultural waste;
20
(l) waste from processing of agricultural
products;
(m) food waste;
(n) food processing waste;
(o) bagasse;
25
(p) black liquor;
(q) biomass-based components of municipal
solid waste;
(r) landfill gas;
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(s) sewage gas and biomass-based components
of sewage;
(t) any other energy source specified by Order
under section 24.
23. What is not an eligible renewable energy source?
5
Despite section 22, the following energy sources
are not eligible renewable energy sources--
(a) fossil fuels;
(b) materials or waste products derived from
fossil fuels.
10
24. Specification of energy sources as eligible renewable
energy sources
The Governor in Council, by Order published in
the Government Gazette, may specify an energy
source (other than an energy source specified in
15
section 22(a) to (s) or section 23) to be an eligible
renewable energy source.
25. ESC rules may provide for or in relation to meaning
of energy sources
(1) For the purposes of this Act, the ESC rules may
20
provide that an energy source referred to in
section 22 or 23 has the meaning specified in the
ESC rules.
(2) For the purposes of this Act, the ESC rules may
make provision for and in relation to limiting the
25
meaning of an energy source referred to in
section 22.
(3) For the purposes of this Act, the ESC rules may
make provision for and in relation to extending
the meaning of an energy source referred to in
30
section 23.
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Division 4--Creation of Certificates
Subdivision 1--Electricity Generation
26. Creating certificates for additional renewable
electricity
(1) The nominated person for an accredited power
5
station may create a certificate for each whole
MWh of electricity generated by the power station
utilising scheme capacity--
(a) on and from the day on which electricity is
first generated utilising scheme capacity; and
10
(b) subject to section 37, until the day that is
15 elapsed years after the day referred to in
paragraph (a).
(2) A certificate must not be created in respect of a
whole MWh of electricity generated partly in one
15
year and partly in the following year utilising
scheme capacity.
(3) If the amount of electricity generated by an
accredited power station during a year utilising
scheme capacity is less than 1 MWh but greater
20
than or equal to 05 MWh, the nominated person
for the power station may create 1 certificate in
respect of the electricity generated during the
year.
(4) The amount of electricity generated by an
25
accredited power station utilising scheme capacity
is to be worked out in accordance with the ESC
rules.
(5) Electricity is to be excluded from all calculations
under this section--
30
(a) to the extent that the electricity was
generated using any energy sources that are
not eligible renewable energy sources; or
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(b) to the extent that the electricity was
generated during any period of suspension of
the accreditation of the accredited power
station under Division 11.
(6) The nominated person for an accredited power
5
station must not create any certificates during any
period of suspension of the person's registration
under Division 8.
Note: See also section 38 (offences for improper creation of
10 certificates).
27. When certificates may be created
A certificate may be created at any time after the
generation of the final part of the electricity in
relation to which it is created and before the end
of the year after the year of generation.
15
Note: For the offence related to the improper creation of
certificates, see section 38.
28. Certificates must not be created if Commonwealth
certificates already created
A nominated person must not create a certificate
20
for any electricity generated utilising scheme
capacity if that capacity has been utilised to
generate electricity in relation to which a
Commonwealth certificate has been created.
29. Electricity generation returns
25
(1) The nominated person for an accredited power
station must give an electricity generation return
for a year to the ESC on or before--
(a) 14 March in the following year; or
(b) any later day allowed by the ESC.
30
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(2) The return must include details of--
(a) the amount of electricity generated by the
power station during the year utilising
scheme capacity; and
(b) the amount of that electricity that was
5
generated during the year using eligible
renewable energy sources; and
(c) the number of certificates created during the
year in respect of the electricity generated by
the power station during the year utilising
10
scheme capacity; and
(d) the number of certificates created during the
year in respect of any electricity generated
by the power station during the previous year
utilising scheme capacity; and
15
(e) any other information specified by the ESC
rules.
(3) A return must also be audited in accordance with
the ESC rules before it is given to the ESC.
Subdivision 2--Small Generation Units
20
30. When a certificate may be created
(1) If a small generation unit is installed on or after
1 January 2007, certificates may be created after
the small generation unit is installed.
(2) The ESC rules may make provision in relation to
25
the time at which a small generation unit is taken
to have been installed.
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(3) The ESC rules may make provision in relation
to--
(a) the time when a right to create certificates in
relation to a small generation unit arises; and
(b) the period within which certificates may be
5
created in relation to a small generation unit.
31. How many certificates may be created
The number of certificates (each representing
1 MWh) that may be created in relation to a small
generation unit is to be determined in accordance
10
with the ESC rules.
32. Who may create a certificate?
(1) The owner of the small generation unit at the time
that a right to create a certificate or certificates
arises in relation to the small generation unit is
15
entitled to create the certificate or certificates.
(2) However, the owner may, by written notice, and
in accordance with the ESC rules, assign the right
to create the certificate or certificates to another
person. If the owner does this, the owner is not
20
entitled to create the certificate or certificates but
the person to whom the right was assigned is
entitled to create the certificate or certificates.
(3) Despite sub-sections (1) and (2) a person who is
not registered must not create a certificate that
25
relates to the small generation unit.
33. No other certificates to be created
A registered person must not create certificates
under Subdivision 1 in respect of electricity
generated by a small generation unit, unless an
30
election is made under section 35 in relation to
that unit.
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34. Certificates must not be created if Commonwealth
certificates already created
(1) A registered person must not create a certificate in
relation to a small generation unit if a
Commonwealth certificate has been created in
5
relation to that small generation unit.
(2) A registered person must not create a certificate in
relation to a small generation unit if a
Commonwealth certificate has been created in
relation to electricity generated by that generation
10
unit.
35. Election to not create certificates under this
Subdivision
(1) In this section--
"qualifying small generation unit" means a
15
small generation unit of a kind specified in
the ESC rules for the purposes of this
section.
(2) The owner of a qualifying small generation unit at
the time that it is installed may give the ESC a
20
notice in writing electing that this Subdivision
does not apply to the creation of certificates that
relate to the unit.
(3) The owner must make the election within the
period of 20 business days beginning on the day
25
the unit is installed and before any certificates are
created under this Subdivision that relate to the
unit.
(4) If an election is made, a person must not create
certificates under this Subdivision that relate to
30
the unit.
Note: A person may be able to create certificates under
Subdivision 1 that relate to the unit.
(5) An election must not be varied or revoked.
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36. Small generation unit returns
(1) If the sum of the number of certificates created by
a person during a year under this Subdivision
exceeds 250, the person must give a return for the
year to the ESC on or before--
5
(a) 14 March in the following year; or
(b) any later day allowed by the ESC.
(2) The return must include details of--
(a) the number of certificates the person created
under each of those Subdivisions during the
10
year; and
(b) the number of certificates the person is
entitled to create under this Subdivision
because of rights assigned to the person
under section 32(2) during the year; and
15
(c) any other information specified by the ESC
rules.
(3) A return must also be audited in accordance with
the ESC rules before it is given to the ESC.
Subdivision 3--End of Right to Create Certificates
20
37. No certificates can be created on or after 1 January
2031
No certificates can be created under--
(a) Subdivision 1 in respect of electricity
generated; or
25
(b) Subdivision 2 in respect of a small
generation unit installed--
on or after 1 January 2031.
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Subdivision 4--Improper Creation of Certificates
38. Improper creation of certificates--offences
(1) A person who is not entitled under this Act to
create a certificate must not create a certificate.
Penalty: 60 penalty units in the case of an
5
individual;
240 penalty units in the case of a body
corporate.
(2) In determining whether a person was not entitled
to create a certificate under this Act, the fact that
10
the certificate has been registered by the ESC
under section 41 is to be disregarded.
Note: This ensures that a person cannot raise as relevant
evidence the fact that a certificate has been
15 registered.
Division 5--Form and Registration of Certificates
39. Form and content of certificates--accredited power
stations
(1) Certificates under Subdivision 1 of Division 4 are
to be created in an electronic form approved in
20
writing by the ESC.
(2) Each certificate is to contain--
(a) a unique identification code; and
(b) the electronic signature of the registered
person who created the certificate; and
25
(c) the date on which the final part of the
electricity was generated; and
(d) details of the eligible renewable energy
source or sources of that electricity; and
(e) the date on which the certificate was created.
30
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(3) A certificate's unique identification code is to
consist of the following in the following order--
(a) the registered person's registration number;
(b) the accredited power station's identification
code;
5
(c) the year;
(d) a number in an unbroken sequence, that is
used for all certificates issued in respect of
electricity generated by the accredited power
station in that year, that starts at one and has
10
increments of one.
40. Form and content of certificates--small generation
units
(1) Certificates under Subdivision 2 of Division 4 are
to be created in an electronic form approved in
15
writing by the ESC.
(2) Each certificate is to contain--
(a) a unique identification code; and
(b) the electronic signature of the registered
person who created the certificate; and
20
(c) the date on which the small generation unit
concerned was installed; and
(d) details of the eligible renewable energy
source in respect of which the certificate was
created; and
25
(e) the date on which the certificate was created.
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(3) A certificate's unique identification code is to
consist of the following in the following order--
(a) the registered person's registration number;
and
(b) a number in an unbroken sequence that is
5
used for all certificates created by the
registered person in that year and that starts
at one and has increments of one.
41. Certificates must be registered
(1) A certificate is not valid until it has been
10
registered by the ESC.
(2) If the ESC is notified that a certificate has been
created, the ESC must decide whether the
certificate is eligible for registration.
(3) A certificate is not eligible for registration unless
15
the ESC has been paid the relevant fee (if any)
fixed under section 112 for the registration of the
certificate.
(4) If the ESC decides that a certificate is eligible for
registration, the ESC must create an entry for the
20
certificate in the register of renewable energy
certificates and record the person who created the
certificate as the owner of the certificate.
(5) If the ESC decides that a certificate is not eligible
for registration, or has been improperly created,
25
the ESC must--
(a) not register the certificate; and
(b) notify the person who created the certificate.
(6) The ESC may at any time (whether before or after
the registration of a certificate) require the person
30
who created the certificate to provide to the ESC a
written statement containing such information as
the ESC requires in connection with the creation
of the certificate. The person who created the
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certificate must provide the statement within the
period (not being a period of less than 10 business
days) specified by the ESC.
Division 6--Transfer of Certificates
42. Certificates may be transferred
5
(1) Certificates that have been registered under
section 41 may be transferred to any person.
(2) To avoid doubt, a certificate may be transferred to
a person who does not acquire the electricity
generated to which the certificate relates.
10
43. ESC to be notified
(1) The ESC must be notified of each transfer of a
certificate.
(2) The notification must be by electronic
transmission in the manner specified, in writing,
15
by the ESC.
(3) The notification must be accompanied by the
relevant fee (if any) fixed under section 112.
(4) When the ESC is notified, the ESC must alter the
register of certificates to show the transferee as
20
the owner of the certificate.
Division 7--Retirement of Certificates
44. Owner may surrender certificate
(1) The owner of a certificate may surrender the
certificate to the ESC under this section.
25
Note 1: The register of renewable energy certificates must
contain the name of the current owner of each
certificate.
Note 2: Certificates must also be surrendered under
30 section 67 and may also be required to be
surrendered in accordance with a certificate surrender
notice, or under a court order under section 73 or 74.
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(2) The owner of a certificate must, at the same time,
give the ESC reasons, in writing, why they are
surrendering the certificate.
(3) A certificate surrendered under this section must
not be included in an energy acquisition
5
statement.
45. Retirement of certificates
(1) If a certificate is surrendered under section 44 or
67, or in compliance with a surrender certificate
notice or an order under section 73 or 74, the
10
certificate ceases to be valid.
(2) On a certificate ceasing to be valid, the ESC must
alter the entry relating to the certificate in the
register of certificates to show that the certificate
is no longer valid.
15
Division 8--Suspension of Registration
46. Suspension of registration--conviction for improper
creation of certificates
(1) If a registered person has been convicted of an
offence under section 38, the ESC may suspend
20
the person's registration for such period (not
exceeding 2 years) as the ESC considers
appropriate in all of the circumstances.
(2) If a person whose registration has previously been
suspended under sub-section (1) is convicted of
25
another offence under section 38, the ESC may
suspend the person's registration for such period
(including permanently) as the ESC considers
appropriate in all of the circumstances.
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47. Suspension of registration--other grounds
(1) The ESC may, by written notice, suspend the
registration of a registered person if the ESC
believes on reasonable grounds that the person--
(a) has committed an offence against this Act; or
5
(b) has breached an undertaking given to the
ESC under Division 1.
(2) A registration that is suspended under sub-section
(1) is suspended for such period (not exceeding
12 months) as the ESC considers appropriate in all
10
of the circumstances. That period must be
specified in the notice.
(3) The ESC may, by written notice, suspend the
registration of a registered person if the
registration was obtained improperly.
15
(4) A registration that is suspended under sub-section
(3) is suspended for such period (including
permanently) as the ESC considers appropriate in
all of the circumstances. That period must be
specified in the notice.
20
Division 9--Changing the Nominated Person for an
Accredited Power Station
48. Changing the nominated person for an accredited
power station
(1) A registered person who is a stakeholder in
25
relation to an accredited power station may apply
to the ESC for approval to become the nominated
person for the power station.
Note: The nominated person is able to create certificates in
30 respect of electricity generated by the power station:
see section 26.
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(2) The application must--
(a) be made in a form and manner required by
the ESC; and
(b) contain any information required by the
ESC; and
5
(c) be accompanied by any documents required
by the ESC; and
(d) if required by the ESC, be accompanied
by--
(i) evidence of the kind referred to in
10
section 16(2); and
(ii) an undertaking in the form of a relevant
undertaking referred to in section 16(3)
or 16(4); and
(e) be accompanied by a statement in writing
15
from each other stakeholder indicating that
the other stakeholder agrees to the making of
the application; and
(f) be accompanied by the relevant fee (if any)
fixed under section 112.
20
(3) If the ESC receives an application that is properly
made, the ESC must, by writing, approve the
applicant as the nominated person for the
accredited power station.
(4) Otherwise, the ESC must refuse to so approve the
25
applicant and must notify the applicant
accordingly.
(5) For the purposes of sub-section (2)(d)(i) and (ii)
section 16 applies to an application under this
section as if--
30
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(a) a reference in that section to the applicant
were a reference to an applicant under this
section; and
(b) in section 16(2)(c) and clause 4(c) of the
Schedule, a reference to persons specified in
5
the application under section 15(2)(c) were a
reference to other stakeholders.
Division 10--Varying what Constitutes a Power Station
49. Varying what constitutes an accredited power
station
10
(1) The ESC may, by writing, vary a decision under
section 17(1)(a). The ESC may do so only in
relation to an accredited power station.
(2) The ESC may only do so upon application by the
nominated person for the accredited power station.
15
(3) The application must--
(a) be made in a form and manner required by
the ESC; and
(b) contain any information required by the
ESC; and
20
(c) be accompanied by any documents required
by the ESC; and
(d) be accompanied by the relevant fee (if any)
under section 112.
(4) If the ESC refuses the application, the ESC must
25
notify, in writing, the applicant accordingly.
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Act No.
Part 2--Renewable Energy Certificates
s. 50
Division 11--Suspending the Accreditation of a Relevant
Power Station
50. Suspending the accreditation of a relevant power
station--interconnected power stations
(1) The ESC may, by written notice, suspend the
5
accreditation of an accredited power station if--
(a) the power station is part of a group of
interconnected power stations; and
(b) at any time one or more of the power stations
(an "excess station") in the group generates
10
electricity utilising its scheme capacity; and
(c) the ESC is satisfied that at the time the
excess station generates electricity utilising
its scheme capacity ("the relevant time"),
one or more of the power stations
15
(a "shortfall station") in the group
generates less electricity than it would have
generated but for a gaming arrangement; and
(d) the ESC is satisfied that more certificates
were able to be created in relation to
20
electricity generated at the relevant time than
would have been able to be created but for
the gaming arrangement.
(2) The accreditation is suspended for such period
(including permanently) as the ESC considers
25
appropriate in all of the circumstances. That
period must be specified in the notice.
Note: Any electricity generated by the power station while
its accreditation is suspended is to be excluded from
30 all calculations under section 26: see section 26(5).
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Part 2--Renewable Energy Certificates
s. 50
(3) Two or more power stations form a "group of
interconnected power stations" if--
(a) each power station is able to generate
electricity utilising a particular supply
(the "relevant supply") of an eligible
5
renewable energy source; and
(b) each of the power stations is owned or
operated by the same person (whether alone
or together with another person).
(4) In deciding whether or not to suspend the
10
accreditation of an accredited power station under
sub-section (1), the ESC must have regard to--
(a) any relevant information available that
demonstrates whether or not the group of
interconnected power stations generated less
15
electricity than it would have but for a
gaming arrangement; and
(b) any matter specified in the ESC rules for the
purposes of this sub-section.
(5) The ESC may have regard to such other matters as
20
it thinks appropriate.
(6) In this section--
"gaming arrangement" means an arrangement
to coordinate the amount of electricity
generated by each power station in the group
25
of interconnected power stations utilising the
relevant supply for the primary purpose of
allowing more certificates to be created than
would have been able to be created but for
the arrangement.
30
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Act No.
Part 2--Renewable Energy Certificates
s. 51
51. Suspending the accreditation of a power station--
other grounds
(1) The ESC may, by written notice, suspend the
accreditation of an accredited power station if--
(a) an electricity generation return for a year, in
5
respect of the power station, has not been
given to the ESC in accordance with
section 29; or
(b) the ESC believes on reasonable grounds that
the nominated person in relation to the
10
accredited power station, has breached an
undertaking given to the ESC under
Division 3 or 9; or
(c) the ESC believes on reasonable grounds that
the power station is being operated in
15
contravention of a law of Victoria, the
Commonwealth, another State or a Territory.
(2) An accreditation that is suspended under sub-
section (1)(a) is suspended until the return is
given to the ESC in accordance with section 29.
20
The notice must include a statement to that effect.
(3) An accreditation that is suspended under sub-
section (1)(b) is suspended for such period
(including permanently) as the ESC considers
appropriate in all of the circumstances.
25
That period must be specified in the notice.
(4) An accreditation that is suspended under sub-
section (1)(c) is suspended until the ESC believes
on reasonable grounds that the power station is
not being operated in contravention of that law.
30
The notice must include a statement to that effect.
Note: Any electricity generated by the power station while its
accreditation is suspended under this section is to be
excluded from all calculations under section 26: see
35 section 26(5).
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Part 2--Renewable Energy Certificates
s. 52
52. Suspending the accreditation of a power station--
circumstances specified by Governor in Council
(1) The Governor in Council, by Order published in
the Government Gazette, may, specify other
circumstances on which the ESC may suspend the
5
accreditation of an accredited power station.
(2) If a circumstance specified in an Order under sub-
section (1) arises, the ESC may, by written notice,
suspend the accreditation of an accredited power
station.
10
(3) An accreditation that is suspended under sub-
section (2) is suspended for such period (including
permanently) as the ESC considers appropriate in
all of the circumstances. That period must be
specified in the notice.
15
Note: Any electricity generated by the power station while its
accreditation is suspended under this section is to be
excluded from all calculations under section 26: see
section 26(5).
Division 12--Varying Pre-Scheme Capacity and Scheme
20
Capacity
53. Varying pre-scheme capacity and scheme capacity
(1) The ESC may, by written notice, vary the pre-
scheme capacity or scheme capacity for an
accredited power station.
25
(2) The ESC may do so only on an application by the
nominated person for the accredited power station.
(3) If a notice under sub-section (1) increases or
decreases the pre-scheme capacity or the scheme
capacity (as the case requires) for an accredited
30
power station, the notice has effect on and from
the time the notice is given.
__________________
41
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Victorian Renewable Energy Act 2006
Act No.
Part 3--Acquisitions of Electricity
s. 54
PART 3--ACQUISITIONS OF ELECTRICITY
54. What is a "standard scheme acquisition"?
(1) An acquisition of electricity is a standard scheme
acquisition if, under the acquisition, electricity is
acquired by a person or body from NEMMCO, or
5
a person or body specified by the ESC rules, for
use in Victoria.
(2) If there is a standard scheme acquisition of
electricity under this section, then no other
acquisition in relation to that electricity is a
10
scheme acquisition (regardless of when the other
acquisition occurs).
55. What is a "notional scheme acquisition"?
A person or body that generates electricity for use
by them in Victoria is to be taken to have made a
15
notional scheme acquisition of electricity at the
time they use the electricity.
56. What is an "excluded acquisition"?
An excluded acquisition is--
(a) an acquisition of electricity under which the
20
electricity that is acquired is later acquired
by NEMMCO or a person or body specified
by the ESC rules; or
(b) a standard scheme acquisition or a notional
scheme acquisition specified by Order under
25
section 57.
57. Specification of standard scheme acquisitions and
notional scheme acquisitions as excluded
acquisitions
(1) The Governor in Council, by Order published in
30
the Government Gazette, may specify a standard
scheme acquisition or a notional scheme
acquisition to be an excluded acquisition.
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Part 3--Acquisitions of Electricity
s. 58
(2) In specifying a standard scheme acquisition under
an Order under sub-section (1), the Governor in
Council may specify it by reference to any one or
more of the following--
(a) a minimum amount of electricity to which
5
the acquisition relates; or
(b) the end user acquiring the electricity; or
(c) the supply points at which the electricity is
used.
(3) In specifying a notional scheme acquisition under
10
an Order under sub-section (1), the Governor in
Council may specify it by reference to--
(a) a person or body that generates electricity for
use by them in Victoria; or
(b) a class of persons or bodies the members of
15
which each generate electricity for use by
themselves in Victoria.
58. Special provision for transactions involving
NEMMCO
Despite section 56, no acquisition of electricity by
20
NEMMCO is a scheme acquisition.
59. ESC rules to determine amount of electricity
acquired
(1) The amount of electricity acquired under a scheme
acquisition is to be determined in accordance with
25
the ESC rules.
(2) For the purposes of sub-section (1), electricity
used for the primary purpose of generating,
transmitting or distributing electricity is not to be
taken into account.
30
__________________
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Victorian Renewable Energy Act 2006
Act No.
Part 4--Renewable Energy Certificate Shortfall
s. 60
PART 4--RENEWABLE ENERGY CERTIFICATE
SHORTFALL
Division 1--Prohibition of Renewable Energy Certificate
Shortfall
60. Who is a relevant entity?
5
A person who makes a scheme acquisition of
electricity is called a relevant entity.
61. Prohibition of renewable energy certificate shortfall
(1) A relevant entity must not have a renewable
energy certificate shortfall for a year in which the
10
relevant entity makes a scheme acquisition.
(2) Sub-section (1) does not apply in the year 2031 or
any year after that year.
62. Civil penalty for shortfall
(1) A relevant entity that has a renewable energy
15
certificate shortfall for a year is liable to pay to the
Consolidated Fund a pecuniary penalty
("renewable energy shortfall penalty")
determined in accordance with this section.
(2) The renewable energy shortfall penalty payable by
20
a relevant entity for a year is determined by
multiplying the relevant entity's renewable energy
certificate shortfall (in MWh) for that year by the
shortfall penalty rate for that year.
63. Shortfall penalty rate
25
(1) The shortfall penalty rate is $43 per MWh as
varied in accordance with this section.
(2) The amount referred to in sub-section (1) that is to
apply in respect of 2007 and each subsequent year
is to be varied in accordance with the formula--
30
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Victorian Renewable Energy Act 2006
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Part 4--Renewable Energy Certificate Shortfall
s. 64
B
A×
C
where--
"A" is the amount referred to in sub-section (1).
"B" is the all groups consumer price index for
Melbourne published by the Australian
5
Statistician in respect of the September
quarter of the preceding year.
"C" is the all groups consumer price index for
Melbourne published by the Australian
Statistician in respect of the 2006 September
10
quarter.
(3) If an amount is varied in accordance with this
section, sub-section (1) has effect as if a reference
to the amount were a reference to the amount as
so varied.
15
(4) The ESC must cause a notice to be published in
the Government Gazette specifying the amount as
varied for the purposes of sub-section (1) in
respect of the relevant year.
64. Determination of renewable energy certificate
20
shortfall
The following steps and result show how to
determine whether a relevant entity has a
renewable energy certificate shortfall for a year--
Step 1. Calculate the total amount, in MWh, of
25
electricity acquired by the relevant
entity during the year under a scheme
acquisition.
Note: Section 59 provides that the amount of
30 electricity acquired under a scheme acquisition
is to be determined in accordance with the ESC
rules.
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Part 4--Renewable Energy Certificate Shortfall
s. 65
Step 2. Multiply the total electricity acquired
by the renewable power percentage for
the year and round down to the nearest
MWh (assuming there is more than
1 MWh). Subtract any carried forward
5
surplus for the previous year.
The result is the relevant entity's
"required renewable energy" for the
year.
Step 3. Subtract the total value, in MWh, of
10
certificates surrendered to the ESC
under section 67 for that year by the
relevant entity from the required
renewable energy for the year.
Result: If the result is greater than zero, the
15
relevant entity has a "renewable
energy certificate shortfall" for the
year equal to the result.
If the result is zero or less than zero, the
relevant entity does not have a
20
renewable energy certificate shortfall
for the year.
If the result is less than zero, the
relevant entity has a "carried forward
surplus" for the year.
25
Division 2--Renewable Power Percentage
65. Renewable power percentage
(1) The Governor in Council, by Order published in
the Government Gazette, may fix the renewable
power percentage in respect of a year.
30
(2) In determining the renewable power percentage in
respect of a year, the Governor in Council must
have regard to the scheme acquisitions by each
relevant entity in the previous year and the
46
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Act No.
Part 4--Renewable Energy Certificate Shortfall
s. 66
required GWh of electricity from eligible
renewable energy sources for that year.
(3) An Order under sub-section (1) fixing the
renewable power percentage for a year must be
made on or before 31 May of that year.
5
(4) If a renewable power percentage is not fixed by
Order for a year, the percentage for that year is--
(a) for the year commencing on 1 January
2007--0%; and
(b) for any later year--the rate worked out using
10
the following formula--
Required GWh of electricity
from eligible renewable energy
sources for the year
Renewable power percentage
×
for the previous year Required GWh of electricity
from eligible renewable energy
sources for the previous year.
66. Required GWh of electricity from eligible renewable
energy sources
(1) Subject to sub-section (2), the required GWh of
15
electricity from eligible renewable energy sources
for a year is set out in the following Table--
Required GWh of electricity from eligible renewable
energy sources
Year Required GWh
2007 0
2008 193
2009 578
2010 963
2011 1348
2012 1733
2013 2118
2014 2504
2015 2889
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Act No.
Part 4--Renewable Energy Certificate Shortfall
s. 66
Required GWh of electricity from eligible renewable
energy sources
Year Required GWh
2016 3274
2017 3274
2018 3274
2019 3274
2020 3274
2021 3274
2022 3274
2023 3081
2024 2696
2025 2311
2026 1926
2027 1541
2028 1156
2029 770
2030 385
(2) The Governor in Council, by Order published in
the Government Gazette, may fix an increased
amount of electricity from eligible renewable
energy sources in respect of a year.
(3) If a change is made to the required GWh of
5
renewable source electricity under the
Commonwealth scheme, the Governor in Council,
by Order published in the Government Gazette,
may fix an increased or decreased amount of
electricity from eligible renewable energy sources
10
in respect of a year.
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Part 4--Renewable Energy Certificate Shortfall
s. 66
(4) An Order under sub-section (2) or (3) fixing an
amount of electricity from eligible renewable
energy sources in respect of a year must be made
on or before 30 September in the year before that
year.
5
(5) If an Order under sub-section (2) or (3) fixes an
amount of electricity from eligible renewable
energy sources in respect of a year, that amount
applies in place of the amount specified in the
Table in respect of that year.
10
__________________
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Victorian Renewable Energy Act 2006
Act No.
Part 5--Statements and Surrender of Certificates
s. 67
PART 5--STATEMENTS AND SURRENDER OF
CERTIFICATES
67. Annual energy acquisition statements
(1) A relevant entity that makes an acquisition of
electricity under a scheme acquisition during a
5
year must lodge an energy acquisition statement
for the year on or before--
(a) 30 April in the following year; or
(b) any later day allowed by the ESC.
(2) The statement must set out--
10
(a) the name and postal address of the relevant
entity; and
(b) the amount of electricity acquired under
scheme acquisitions during the year; and
15 Note: Section 59 provides that the amount of
electricity acquired under a scheme acquisition
is to be determined in accordance with the ESC
rules.
(c) the value, in MWh, of certificates being
surrendered for that year under this section;
20
and
(d) any carried forward surplus for the previous
year; and
(e) any carried forward surplus for the current
year; and
25
(f) any other information specified by the ESC
rules.
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Part 5--Statements and Surrender of Certificates
s. 68
(3) The statement must--
(a) be made in a form and manner required by
the ESC; and
(b) be accompanied by the relevant fee (if any)
fixed under section 112; and
5
(c) be signed by or on behalf of the relevant
entity making the statement.
(4) The statement must be accompanied by details of
all certificates being surrendered for that year
under this section.
10
(5) A certificate cannot be specified in the statement
unless the relevant entity is recorded in the
register of renewable energy certificates as the
owner of the certificate at the time that the
statement is lodged.
15
(6) A statement must also be audited in accordance
with the ESC rules before it is lodged under this
section.
68. Fees for surrender of certificates
(1) The ESC must, by notice in writing given to the
20
relevant entity, advise the relevant entity--
(a) of the number of certificates specified under
section 67(4) that are able to be surrendered
for that year; and
(b) of the relevant fee (if any) fixed under
25
section 112 that is payable by the relevant
entity in respect of the surrender of those
certificates.
Note: Section 69 contains restrictions on the certificates
30 that can be surrendered.
(2) The relevant entity must pay the fee within the
period of 20 business days beginning on the day
the relevant entity receives the notice under sub-
section (1).
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Part 5--Statements and Surrender of Certificates
s. 69
(3) If the fee is unpaid at the end of that period, it is a
debt due to the Crown and is recoverable by the
ESC in any court of competent jurisdiction.
69. Restrictions on certificates that can be surrendered
A certificate cannot be surrendered under
5
section 67 unless--
(a) the certificate is valid; and
(b) the certificate was created before 31 January
in the year following the year to which the
energy acquisition statement relates; and
10
(c) the relevant entity is recorded in the register
of renewable energy certificates as the owner
of the certificate at the time that the
statement is lodged.
__________________
52
551465B.A1-11/8/2006 BILL LA AS SENT 11/8/2006
Victorian Renewable Energy Act 2006
Act No.
Part 6--Civil Enforcement
s. 70
PART 6--CIVIL ENFORCEMENT
Division 1--Renewable Energy Shortfall Penalty
70. Shortfall statement
(1) If the ESC believes on reasonable grounds that a
relevant entity is in breach of an obligation under
5
section 61 in respect of a year, the ESC may issue
a shortfall statement to the relevant entity.
(2) The shortfall statement must set out--
(a) the name and postal address of the relevant
entity; and
10
(b) the relevant entity's renewable energy
certificate shortfall for the year; and
(c) the renewable energy shortfall penalty that
the relevant entity is liable to pay under
section 62; and
15
(d) the manner in which that penalty is to be
paid; and
(e) the time within which that penalty is to be
paid; and
(f) any other information required by the ESC
20
rules.
(3) The shortfall statement must include a statement
advising the relevant entity that if the renewable
energy shortfall penalty is not paid in accordance
with the shortfall notice, the ESC may apply to a
25
court for an order requiring the penalty to be paid.
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Act No.
Part 6--Civil Enforcement
s. 71
71. Application for declaration and order for payment
of shortfall penalty
(1) If a renewable energy shortfall penalty is not paid
in accordance with a shortfall notice, the ESC may
apply to a court for--
5
(a) a declaration that the relevant entity has
contravened section 61; and
(b) an order requiring the relevant entity to pay
the renewable energy shortfall penalty.
(2) If the court is satisfied that the relevant entity has
10
contravened section 61, the court may--
(a) make the declaration sought; and
(b) order the relevant entity to pay to the ESC
for payment into the Consolidated Fund the
amount of the renewable energy shortfall
15
penalty determined in accordance with
Part 4.
(3) An order made under this section is taken, for the
purposes of enforcement, to be an order made by
the court in a civil proceeding.
20
Division 2--Surrender of Additional Certificates where
Undertaking Breached
72. Certificate surrender notice
(1) If the ESC believes on reasonable grounds that a
nominated person or a registered person is in
25
breach of an undertaking given under Division 1,
3 or 9 of Part 2 relating to the creation of
certificates, the ESC may issue a certificate
surrender notice to that person.
(2) The ESC must not issue a certificate surrender
30
notice under this section unless the ESC has, as
the case requires, suspended--
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Act No.
Part 6--Civil Enforcement
s. 72
(a) under section 47(1)(b), the registration of the
registered person;
(b) under section 51(1)(b), the accreditation of
the power station in relation to which
certificates have been created in breach of
5
the undertaking.
(3) The notice must--
(a) set out the name and postal address of the
registered person or nominated person; and
(b) specify the number of certificates that must
10
be surrendered to the ESC; and
(c) specify the time within which the certificates
specified must be surrendered.
(4) The number of certificates that must be
surrendered must be equivalent to the number of
15
certificates created and registered under this
Act--
(a) in the case of a breach of an undertaking
under Division 1 of Part 2--in relation to the
small generation unit in relation to which
20
Commonwealth certificates were also
created;
(b) in the case of a breach of an undertaking
under Division 3 or 9 of Part 2--utilising the
scheme capacity of the accredited power
25
station of the nominated person that was also
utilised to create Commonwealth certificates.
(5) The certificate surrender notice must include a
statement advising the registered person or
nominated person that if the number of certificates
30
specified in the notice to be surrendered is not
surrendered in accordance with the notice, the
ESC may apply to a court for an order under
section 73.
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Act No.
Part 6--Civil Enforcement
s. 73
(6) A certificate surrendered in accordance with a
certificate surrender notice is not to be counted
toward a person's compliance with section 61.
(7) To avoid doubt, it is not an excuse for a failure to
comply with a certificate surrender notice that the
5
person to whom the notice is issued is not, at the
time the notice is issued, the registered owner of a
sufficient number of certificates to comply with
the notice.
73. Application for declaration and order requiring
10
surrender of certificates
(1) If certificates are not surrendered in accordance
with a certificate surrender notice, the ESC may
apply to a court for--
(a) a declaration that a registered person or
15
nominated person has breached an
undertaking given by that person under
Division 1, 3 or 9 of Part 2; and
(b) an order requiring the registered person or
nominated person to surrender to the ESC
20
the number of certificates specified in the
order.
(2) If the court is satisfied that the registered person
or nominated person has breached the undertaking
given by the person under Division 1, 3 or 9 of
25
Part 2, the court may--
(a) make the declaration sought; and
(b) order the registered person or nominated
person to surrender to the ESC the number of
certificates specified in the order within the
30
time specified in the order.
(3) A certificate surrendered in accordance with an
order made under this section is not to be counted
toward a person's compliance with section 61.
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Part 6--Civil Enforcement
s. 74
(4) To avoid doubt, it is not an excuse for a failure to
comply with an order under this section that the
person who is the subject of the order is not, at the
time the order is made, the registered owner of a
sufficient number of certificates to comply with
5
the order.
Division 3--Surrender of Additional Certificates following
Improper Creation of Certificates
74. ESC may require surrender of certificates following
improper creation of certificates
10
(1) The ESC, by order in writing to a person, may
require the person to surrender to the ESC, within
a period specified in the order, a number of
certificates specified in the order.
(2) An order may be made against a person under this
15
section only if the person is found guilty of an
offence against section 38.
(3) If an order is made against a person found guilty
of an offence under section 38, the ESC is to
require the surrender of a number of certificates
20
that is equivalent to the number of certificates that
were created by the person in contravention of
section 38 and registered under this Act.
(4) A certificate surrendered under this section is not
to be counted toward a person's compliance with
25
section 61.
(5) A person must not fail to comply with an order
under this section.
Penalty: 600 penalty units and an additional
1 penalty unit for each certificate that
30
the person fails to surrender in
accordance with the order.
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s. 74
(6) To avoid doubt, it is not an excuse for a failure to
comply with an order under this section that the
person who is the subject of the order is not, at the
time the order is made, the registered owner of a
sufficient number of certificates to comply with
5
the order.
__________________
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Victorian Renewable Energy Act 2006
Act No.
Part 7--Review of ESC Decisions
s. 75
PART 7--REVIEW OF ESC DECISIONS
75. Review of decisions
(1) An affected person in relation to a reviewable
decision may request that the ESC reconsider the
decision.
5
(2) The following Table sets out the reviewable
decisions and, for each decision, sets out the
provision under which it is made and the affected
person in relation to it.
Table of reviewable decisions
Item For a decision... made the affected
under... person is...
1 to refuse to section 10 the person
register a person
2 in relation to an section 13 the applicant for
application about provisional
provisional accreditation
accreditation of a
relevant power
station
3 in relation to an section 17 the applicant for
application about accreditation
accreditation of a
relevant power
station
4 to refuse to section 18 the applicant for
accredit a accreditation
relevant power
station
5 not to register a section 41 the person who
certificate created the
certificate
6 to suspend a section 46 the registered
person's or 47 person
registration
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s. 75
Table of reviewable decisions
Item For a decision... made the affected
under... person is...
7 to refuse to section 48 the person
approve a person
as the nominated
person for an
accredited power
station
8 to vary, or refuse section 49 the nominated
to vary, a person for the
decision about accredited power
power station station
components concerned
9 to suspend the section 50 the nominated
accreditation of or 51 person for the
an accredited power station
power station concerned
10 to vary, or refuse section 53 the nominated
to vary, pre- person for the
scheme or power station
scheme capacity concerned
(3) The request must be--
(a) in writing setting out the reasons for the
request; and
(b) accompanied by the relevant fee (if any)
fixed under section 112; and
5
(c) given to the ESC within 30 business days
after the making of the decision.
(4) The ESC must reconsider the decision and
confirm, vary or set aside the decision.
(5) The ESC is deemed to have confirmed the
10
decision under sub-section (4) if the ESC does not
give notice in writing of the ESC's decision under
that sub-section within 40 business days after the
request.
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(6) Not more than one request can be made in respect
of each reviewable decision.
__________________
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Act No.
Part 8--Role of ESC
s. 76
PART 8--ROLE OF ESC
76. Role of ESC
(1) The ESC is responsible for the general
administration of this Act.
(2) Without limiting sub-section (1), the ESC's
5
functions under this Act include--
(a) to register persons who may create
certificates;
(b) to accredit relevant power stations;
(c) to approve nominated persons;
10
(d) to monitor and administer the creation,
registration, transfer and surrender of
certificates;
(e) to enforce renewable energy shortfall
penalties;
15
(f) to monitor compliance with this Act.
77. ESC must publish certain information
(1) The ESC must publish--
(a) a list of each relevant entity that has a
renewable energy certificate shortfall for a
20
particular year; and
(b) the amount of each relevant entity's
renewable energy certificate shortfall for that
year; and
(c) the total of the renewable energy certificate
25
shortfalls for that year; and
(d) the number of certificates created in a
particular year; and
(e) the number of certificates surrendered in a
particular year; and
30
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(f) the number of certificates that could have
been created in respect of renewable energy
generated in a particular year and the number
that were actually created; and
(g) any other information in accordance with the
5
ESC rules.
(2) Nothing in Part 12 prevents the publication of the
information referred to in sub-section (1).
78. Annual report
The ESC must include a report on the operation of
10
this Act in its annual report of operations under
Part 7 of the Financial Management Act 1994.
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Act No.
Part 9--Registers
s. 79
PART 9--REGISTERS
Division 1--General
79. Registers to be maintained
The ESC must maintain the following registers--
(a) the register of registered persons;
5
(b) the register of accredited power stations;
(c) the register of renewable energy certificates;
(d) the register of applications for accredited
power stations.
Division 2--The Register of Registered Persons
10
80. Register of registered persons
(1) The register of registered persons is to contain--
(a) the name of each registered person; and
(b) the registration number for each registered
person; and
15
(c) any other information that the ESC considers
appropriate.
(2) The register must also contain the following
information about any person whose registration
is suspended--
20
(a) the name of the person; and
(b) the person's registration number; and
(c) the period for which registration is
suspended; and
(d) any other information that the ESC considers
25
appropriate.
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Division 3--The Register of Accredited Power Stations
81. Register of accredited power stations
The register of accredited power stations is to
contain--
(a) the name of each accredited power station;
5
and
(b) the name of the nominated person for each
accredited power station; and
(c) the identification code for each accredited
power station; and
10
(d) the pre-scheme capacity for each accredited
power station; and
(e) the scheme capacity for each accredited
power station; and
(f) the total capacity for each accredited power
15
station; and
(g) any relevant method used to determine the
amount of electricity generated by each
accredited power station utilising scheme
capacity; and
20
(h) any other information that the ESC considers
appropriate.
Division 4--The Register of Renewable Energy Certificates
82. Register of renewable energy certificates
The register of renewable energy certificates is to
25
contain--
(a) the unique identification code of each valid
certificate; and
(b) the year in which the certificate was created;
and
30
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s. 83
(c) the name of the registered person who
created the certificate; and
(d) the name of the current registered owner, and
each previous registered owner, of each
certificate; and
5
(e) the eligible renewable energy source or
sources of the electricity in respect of which
the certificate was created; and
(f) any other information that the ESC considers
appropriate.
10
Division 5--The Register of Applications for Accredited
Power Stations
83. Contents of register of applications for accredited
power stations
The register of applications for accredited power
15
stations is to contain--
(a) the name of each applicant for each relevant
power station to be accredited; and
(b) the name and location of each relevant power
station to be accredited; and
20
(c) the eligible renewable energy source or
sources proposed to be used by each relevant
power station to be accredited; and
(d) any other information that the ESC considers
appropriate.
25
Division 6--Form of Registers
84. Form of registers
(1) A register under this Part must be maintained by
electronic means.
(2) A register is to be made available for inspection
30
on the ESC's Internet site.
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(3) Any addition to a register must be made available
on the ESC's Internet site within 20 business days
after the ESC registers the person, power station
or certificate or receives the application (as the
case requires).
5
__________________
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Act No.
Part 10--Information-Gathering Powers
s. 85
PART 10--INFORMATION-GATHERING POWERS
85. ESC may obtain information and documents
(1) This section applies to a person if the ESC has
reason to believe that the person has information
or a document that is relevant to the operation of
5
this Act.
(2) The ESC may, by written notice given to the
person, require the person--
(a) to give to the ESC, within the period and in
the manner and form specified in the notice,
10
any such information; or
(b) to produce to the ESC, within the period and
in the manner specified in the notice, any
such document; or
(c) if the person is an individual, to appear
15
before the ESC at a time and place specified
in the notice to give any information, either
orally or in writing, and produce any such
document; or
(d) if the person is a body corporate, to cause a
20
competent officer of the body corporate to
appear before the ESC at a time and place
specified in the notice to give any such
information, either orally or in writing, and
produce any such document.
25
(3) A notice under sub-section (2) must set out the
effect of sections 86 and 87.
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86. Failure to comply with notice
A person must not, without reasonable excuse, fail
to comply with a notice given to the person under
section 85.
Penalty: 60 penalty units, in the case of an
5
individual;
240 penalty units, in the case of a body
corporate.
87. Protection against self-incrimination
It is a reasonable excuse for an individual to
10
refuse or fail to give information or evidence or
produce a document under section 85 if the giving
of the information or evidence or the production
of the document would tend to incriminate the
person.
15
88. Copies of documents
The ESC may inspect a document produced under
this Part and may make and retain copies of, or
take and retain extracts from, such a document.
89. ESC may retain documents
20
(1) The ESC may take, and retain for as long as
necessary, possession of a document produced
under this Part.
(2) The person otherwise entitled to possession of the
document is entitled to be supplied, as soon as
25
practicable, with a copy certified by the ESC to be
a true copy.
(3) The certified copy must be received in all courts
and tribunals as evidence as if it were the original.
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s. 89
(4) Until a certified copy is supplied, the ESC must, at
all such times and places as the ESC thinks
appropriate, permit the person otherwise entitled
to possession of the document, or a person
authorised by that person, to inspect and make
5
copies of, or take extracts from, the document.
__________________
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Act No.
Part 11--Powers of Authorised Officers
s. 90
PART 11--POWERS OF AUTHORISED OFFICERS
Division 1--Appointment of Authorised Officers and
Identity Cards
90. Appointment of authorised officers
(1) The ESC may, in writing, appoint any of the
5
following persons as an authorised officer for the
purposes of this Part--
(a) an employee of the ESC;
(b) a person employed under Part 3 of the
Public Administration Act 2004;
10
(c) any other person employed by the State;
(d) any other person who the ESC considers has
appropriate skills, qualifications and
experience.
(2) The ESC must not appoint a person as an
15
authorised officer unless the ESC is satisfied that
the person has appropriate skills, qualifications
and experience.
(3) In exercising powers or performing functions as
an authorised officer, an authorised officer must
20
comply with any directions of the ESC.
91. Identity cards
(1) The ESC must issue an identity card to an
authorised officer.
(2) The identity card must contain a recent
25
photograph and the signature of the authorised
officer.
(3) An authorised officer must carry the identity card
at all times when exercising powers or performing
functions as an authorised officer.
30
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s. 92
(4) An authorised officer must produce his or her
identity card for inspection--
(a) before exercising a power under this Part
other than a requirement made by post, fax,
email or other electronic communication;
5
and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
Penalty: 10 penalty units.
Division 2--Powers of Authorised Officer
10
Subdivision 1--When may Powers be Exercised
92. When may powers be exercised?
(1) An authorised officer may exercise powers under
this Part only to the extent that it is reasonably
necessary to do so for substantiating information
15
provided under this Act or for determining
whether this Act has been complied with.
(2) In exercising powers under this Part, an authorised
officer must--
(a) cause as little inconvenience as possible; and
20
(b) not remain on premises any longer than is
reasonably necessary.
Subdivision 2--Monitoring Powers
93. Entry to premises
(1) An authorised officer may at any reasonable time
25
of the day--
(a) enter any premises; and
(b) exercise the monitoring powers set out in
section 97.
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s. 94
(2) An authorised officer is not authorised to enter
premises under sub-section (1) unless--
(a) the premises are business premises, the
occupier of the premises has consented to the
entry and the authorised officer has complied
5
with section 95; or
(b) the entry is made under a monitoring
warrant.
(3) If the authorised officer is on the premises with
the consent of the occupier, the authorised officer
10
must leave the premises if the occupier asks the
authorised officer to do so.
94. Information to be provided to occupier on entry
(1) If the occupier of the premises is present when an
authorised officer exercises a power of entry
15
under this Part, the officer must inform the
occupier of the purpose of the entry.
Note: The authorised officer must also produce his or her
identity card for inspection: see section 91(4).
(2) If an authorised officer exercises a power of entry
20
under this Part without the occupier being present,
the officer must--
(a) on leaving the premises, leave a notice
setting out--
(i) the time of entry; and
25
(ii) the purpose of entry; and
(iii) a description of all things done while
on the premises; and
(iv) the time of departure; and
(v) the procedure for contacting the officer
30
for further details of the entry; and
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s. 95
(b) post a copy of that notice to the occupier of
the premises, if the identity and address of
the occupier are known to the officer.
95. Entry with consent
(1) If an occupier consents to an entry under
5
section 93, the authorised officer must before
entering the premises ask the occupier to sign an
acknowledgement stating--
(a) that the occupier has been informed of the
purpose of the entry; and
10
(b) that the occupier has been informed that he
or she may refuse to consent to the entry; and
(c) that the occupier has consented to the entry;
and
(d) the date and time that the occupier
15
consented.
(2) An occupier who signs an acknowledgement must
be given a copy of the signed acknowledgement
before the authorised officer leaves the premises.
(3) If, in any proceeding, an acknowledgement is not
20
produced to the court or tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry.
(4) An entry of an authorised officer by virtue of the
consent of a person is not lawful unless the person
25
voluntarily consented to the entry.
96. Entry with monitoring warrant
(1) An authorised officer executing a monitoring
warrant must, before entering premises under the
warrant--
30
(a) announce that he or she is authorised to enter
the premises; and
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(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) If a monitoring warrant is being executed and the
occupier of the premises or another person who
apparently represents the occupier is present at the
5
premises, the authorised officer must make
available to that person a copy of the warrant.
(3) The authorised officer must identify himself or
herself to the person referred to in sub-section (2).
97. Monitoring powers of authorised officers
10
(1) For the purposes of this Part, the following are the
monitoring powers that an authorised officer may
exercise in relation to premises under section 93--
(a) the power to search the premises for any
thing on the premises that may relate to--
15
(i) the creation or transfer of certificates;
or
(ii) scheme acquisitions;
(b) the power to examine any activity conducted
on the premises that may relate to
20
information provided for the purposes of this
Act;
(c) the power to examine any thing on the
premises that may relate to information
provided for the purposes of this Act;
25
(d) the power to take photographs or make video
or audio recordings or sketches on the
premises of any such activity or thing;
(e) the power to inspect any document on the
premises that may relate to information
30
provided for the purposes of this Act;
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Part 11--Powers of Authorised Officers
s. 97
(f) the power to take extracts from, or make
copies of, any such document;
(g) the power to take onto the premises such
equipment and materials as the authorised
officer requires for the purpose of exercising
5
powers in relation to the premises;
(h) the power to secure a thing that--
(i) is found during the exercise of
monitoring powers on the premises;
and
10
(ii) an authorised officer believes on
reasonable grounds affords evidence of
the commission of an offence against
this Act; and
(iii) the authorised officer believes on
15
reasonable grounds would be lost,
destroyed or tampered with before a
warrant can be obtained--
until a warrant is obtained to seize the thing;
(i) the powers in sub-sections (2) and (3).
20
(2) For the purposes of this Part, "monitoring
powers" include the power to operate equipment
at premises to see whether--
(a) the equipment; or
(b) a disk, tape or other storage device that--
25
(i) is at the premises; and
(ii) can be used with the equipment or is
associated with it--
contains information that is relevant to
substantiating information provided under this
30
Act.
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s. 98
(3) For the purposes of this Part, "monitoring
powers" include the following powers in relation
to information described in sub-section (2) found
in the exercise of the power under that sub-
section--
5
(a) the power to operate facilities at the premises
to put the information in documentary form
and copy the documents so produced;
(b) the power to operate facilities at the premises
to transfer the information to a disk, tape or
10
other storage device that--
(i) is brought to the premises for the
exercise of the power; or
(ii) is at the premises and the use of which
for the purpose has been agreed in
15
writing by the occupier of the premises;
(c) the power to remove from the premises a
disk, tape or other storage device to which
the information has been transferred in the
exercise of the power under paragraph (b).
20
Subdivision 3--Powers to Ask Questions and Seek
Production of Documents
98. Authorised officer may ask for information
If the authorised officer was only authorised to
enter premises because the occupier of the
25
premises consented to the entry, the authorised
officer may ask the occupier to--
(a) answer any questions related to the creation
or transfer of certificates, scheme
acquisitions or the provision of information
30
under this Act that are put by the authorised
officer; and
(b) produce any document requested by the
authorised officer that is so related.
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s. 99
99. Authorised officer may require information
If the authorised officer was authorised to enter
the premises by a monitoring warrant, the
authorised officer may require any person in or on
the premises to--
5
(a) answer any questions related to the creation
or transfer of certificates, scheme
acquisitions or the provision of information
under this Act that are put by the authorised
officer; and
10
(b) produce any document requested by the
authorised officer that is so related.
100. Failure to produce documents or answer questions
A person must not, without reasonable excuse, fail
to answer a question or produce a document
15
required under section 99.
Penalty: 60 penalty units.
101. Protection against self-incrimination
(1) It is a reasonable excuse for an individual to
refuse or fail to answer a question or produce a
20
document under section 99 if the answering of the
question or the production of the document would
tend to incriminate the person.
(2) Despite sub-section (1), it is not a reasonable
excuse for an individual to refuse or fail to
25
produce a document that the person is required to
keep by this Act, if the production of the
document would tend to incriminate the person.
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Act No.
Part 11--Powers of Authorised Officers
s. 102
Division 3--Occupiers' Rights and Responsibilities
102. Occupier may be present during execution of
warrant
(1) If a monitoring warrant is being executed and the
occupier of the warrant premises, or another
5
person who apparently represents the occupier, is
present at the premises, the person is entitled to
observe the execution of the warrant.
(2) The right to observe the execution of the warrant
ceases if the person impedes that execution.
10
(3) This section does not prevent the execution of the
warrant in 2 or more areas of the premises at the
same time.
103. Occupier to provide authorised officer with
assistance
15
The occupier of warrant premises, or another
person who apparently represents the occupier,
must provide the authorised officer executing the
warrant and any person assisting that officer with
all reasonable facilities and assistance for the
20
effective exercise of their powers.
Penalty: 60 penalty units, in the case of an
individual;
240 penalty units, in the case of a body
corporate.
25
Division 4--Monitoring Warrants
104. Monitoring warrants
(1) An authorised officer may apply to a magistrate
for a warrant under this section in relation to
premises.
30
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(2) Subject to sub-section (3), the magistrate may
issue the warrant if the magistrate is satisfied, by
information on oath, that it is reasonably
necessary that one or more authorised officers
should have access to the premises for the
5
purposes of substantiating information provided
under this Act or determining whether this Act has
been complied with.
(3) The magistrate must not issue the warrant unless
the authorised officer or some other person has
10
given the magistrate, either orally or by affidavit,
such further information (if any) as the magistrate
requires concerning the grounds on which the
issue of the warrant is sought.
(4) The warrant must--
15
(a) authorise one or more authorised officers
(whether or not named in the warrant), with
such assistance and by such force as is
necessary and reasonable--
(i) to enter the premises; and
20
(ii) to exercise the powers set out in
section 97 in relation to the premises;
and
(b) state whether the entry is authorised to be
made at any time of the day or during
25
specified hours of the day; and
(c) specify the day (not more than 6 months
after the issue of the warrant) on which the
warrant ceases to have effect; and
(d) state the purpose for which the warrant is
30
issued.
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(5) A warrant issued under this section must be issued
in accordance with the Magistrates' Court Act
1989 as if it were a search warrant issued under
that Act and must be in a form set out in the
regulations under that Act.
5
(6) Section 78(1)(b)(iii) of the Magistrates' Court
Act 1989 does not apply to a warrant issued under
this section.
(7) Subject to any provisions to the contrary in this
Part, the rules to be observed with respect to
10
search warrants mentioned in the Magistrates'
Court Act 1989 extend and apply to warrants
under this section.
__________________
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Act No.
Part 12--Confidentiality
s. 105
PART 12--CONFIDENTIALITY
105. Disclosure of information and offence
(1) A person must not disclose any confidential or
commercially-sensitive information obtained
during the exercise of a power or the performance
5
of a function under, or in connection with, this
Act.
Penalty: 60 penalty units.
(2) A person must not use any such information to
obtain directly or indirectly any pecuniary or other
10
advantage for himself or herself or any other
person.
Penalty: 120 penalty units.
(3) However, the person may disclose or use such
information if--
15
(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
(b) the person has the consent of the person who
supplied the information; or
20
(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
time it is disclosed or used.
(4) To avoid doubt, sub-section (3) is not intended to
25
interfere with any rights another person may have
with regard to the disclosure or use of the
information.
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Part 12--Confidentiality
s. 106
106. Information may be disclosed to specified persons or
bodies
This Part does not prevent the ESC, or a person
authorised by the ESC, from divulging or
communicating information to--
5
(a) the Minister; or
(b) VENCorp established under the Gas
Industry Act 2001; or
(c) NEMMCO; or
(d) Sustainability Victoria established under the
10
Sustainability Victoria Act 2005; or
(e) the Office of the Renewable Energy
Regulator established under the
Commonwealth scheme; or
(f) the Head of the Australian Greenhouse
15
Office (within the meaning of the
Commonwealth scheme) or an officer of the
Australian Greenhouse Office authorised by
the Head of the Australian Greenhouse
Office for the purposes of this Part; or
20
(g) an officer of that part of the Agriculture
Department of the Commonwealth
Government known as the Australian Bureau
of Agriculture and Resource Economics
("ABARE") for the purposes of the
25
performance of any of ABARE's functions or
the exercise of any of ABARE's powers.
__________________
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Act No.
Part 13--General
s. 107
PART 13--GENERAL
Division 1--General Offences
107. False or misleading information
A person must not--
(a) give information to the ESC or any person
5
exercising powers under or in connection
with this Act that the first-mentioned person
knows to be false or misleading in a material
particular; or
(b) produce a document to the ESC or any
10
person exercising powers under or in
connection with this Act that the first-
mentioned person knows to be false or
misleading in a material particular without
indicating the respect in which it is false or
15
misleading and, if practicable, providing
correct information.
Penalty: 60 penalty units, in the case of an
individual;
240 penalty units, in the case of a body
20
corporate.
108. Failure to provide documents
If a person is required under this Act to provide a
document (including a statement or return) to the
ESC within a specified time or by a specified date,
25
the person, must not, without reasonable excuse,
fail to provide the document by the specified time
or the specified date, as the case requires.
Penalty: 60 penalty units, in the case of an
individual;
30
240 penalty units, in the case of a body
corporate.
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109. Offences by bodies corporate
(1) If a body corporate commits an offence against
this Act, any officer of the body corporate who
knowingly authorised or permitted the
commission of the offence is also guilty of that
5
offence and liable to the penalty for it.
(2) A person may be proceeded against and convicted
under a provision in accordance with sub-
section (1) whether or not the body corporate has
been proceeded against or convicted under that
10
provision.
(3) If in a proceeding for an offence against this
section it is necessary to establish the intention of
a body corporate, it is sufficient to show that a
servant or agent of the body corporate had that
15
intention.
(4) In sub-section (1), "officer", in relation to a body
corporate, means--
(a) a director, secretary or executive officer of
the body corporate; or
20
(b) any person in accordance with whose
directions or instructions the directors of the
body corporate are accustomed to act; or
(c) a person concerned in the management of the
body corporate.
25
Division 2--Evidence and Records
110. Evidence
(1) A document sealed by the ESC purporting to be a
copy of a document issued or given by the ESC
under this Act is evidence that the second-
30
mentioned document was so issued or given.
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(2) A document sealed by the ESC purporting to be a
copy of, or an extract from, a renewable energy
shortfall statement is evidence of the matter set
out in the document to the same extent as the
original statement would be if it were produced.
5
111. Records to be kept by registered persons and
relevant entities
(1) A person who is a registered person or a relevant
entity must keep records that record and explain
all transactions and other acts engaged in, or
10
required to be engaged in, by the registered person
or relevant entity under this Act.
(2) The records kept by a registered person must
include any documents relevant to ascertaining--
(a) the amount of electricity generated by an
15
accredited power station in relation to which
the registered person is the nominated
person; and
(b) the amount of that electricity that was
generated from eligible renewable energy
20
sources and from scheme capacity; and
(c) details of all certificates created by the
nominated person during the year; and
(d) any other matter required by the ESC rules.
(3) The records kept by a relevant entity must include
25
any documents relevant to ascertaining--
(a) the amount of electricity acquired by the
relevant entity under scheme acquisitions
during a year; and
(b) any other matter required by the ESC rules.
30
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(4) The records must be kept--
(a) in writing in the English language or so as to
enable the records to be readily accessible
and convertible into writing in the English
language; and
5
(b) so that the relevant entity's liability under
this Act can be readily ascertained.
(5) A registered person or relevant entity who has
possession of any records kept or obtained under
or for the purposes of this Act must retain them
10
until the end of 5 years after those records were
prepared or obtained, or the completion of the
transactions or acts to which those records relate,
whichever is the later.
(6) Nothing in this section requires a registered
15
person or relevant entity to retain records if--
(a) the ESC has notified the registered person or
relevant entity that the retention of the
records is not required; or
(b) the registered person or relevant entity is a
20
company that has gone into liquidation and
been finally dissolved.
(7) A registered person or relevant entity who
contravenes this section is guilty of an offence and
liable to a penalty not exceeding 60 penalty units,
25
in the case of an individual, or 240 penalty units,
in the case of a body corporate.
Division 3--Fees
112. Fees
(1) The Minister, after consultation with the Minister
30
administering the Essential Services
Commission Act 2001, may fix fees or scales of
fees for the purposes of this Act.
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(2) The fees may include--
(a) fees for the registration of certificates; and
(b) fees for requests for review of reviewable
decisions; and
(c) fees for the lodging of statements; and
5
(d) fees for the surrender of certificates.
(3) In fixing fees, the Minister may have regard to the
total amount of the costs and expenses of the ESC
that are incurred or are likely to be incurred in the
exercise of its powers, or in connection with the
10
performance of its functions, under this Act.
(4) The fees must be published by notice in the
Government Gazette and on the Internet site of the
ESC.
(5) Fees take effect on the day that the notice is
15
published in the Government Gazette or on such
later date as is specified in the notice.
Division 4--ESC Rules
113. ESC rules
(1) The ESC may make rules for or with respect to
20
any matter required or permitted by this Act to be
provided for by the ESC rules or which is
necessary or convenient for carrying out or giving
effect to this Act.
(2) Without limiting sub-section (1), rules made may
25
be for or with respect to the following matters--
(a) eligibility of relevant power stations for
accreditation;
(b) eligible renewable energy sources;
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(c) the amount of energy generated by an
accredited power station including in respect
of pre-scheme capacity and scheme capacity;
(d) electricity generation returns and the audit of
those returns;
5
(e) scheme acquisitions;
(f) annual energy acquisition statements and the
audit of those statements;
(g) records to be kept by registered persons and
relevant entities.
10
(3) The rules may apply, adopt or incorporate (with or
without modifications)--
(a) the provisions of any document issued or
published by any person or body, whether as
issued or published at the time the rules are
15
made or any time before then or as in force
from time to time; and
(b) the provisions of any Act of the
Commonwealth or another State or Territory
or a subordinate instrument made under any
20
of those Acts, whether wholly or partially or
as amended by the rules or as in force or
published at a particular time or from time to
time.
(4) A rule may--
25
(a) apply generally or be of limited application;
(b) apply differently according to differences in
time, place or circumstance;
(c) authorise any matter or thing to be from time
to time approved, determined or regulated by
30
a specified person or body.
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(5) In preparing and consulting on any draft rules, the
ESC must comply with the consultation
requirements of the Charter of Consultation and
Regulatory Practice published under the Essential
Services Commission Act 2001, as far as
5
possible, as if the draft rules were a draft
determination of the ESC.
(6) The rules must be published in the Government
Gazette and on the Internet site of the ESC.
(7) Rules take effect on the day that they are
10
published in the Government Gazette or on such
later date as is specified in the rules.
(8) The ESC must make an up to date copy of the
rules available at its office for any person to
inspect, during ordinary office hours, free of
15
charge.
(9) A copy of a rule must be laid before each House
of Parliament on or before the sixth sitting day
after it is made.
(10) A rule is subject to disallowance by the
20
Parliament and sections 23, 24 and 25 of the
Subordinate Legislation Act 1994 apply as if the
rule were a statutory rule.
Division 5--Review of Act
114. Review of operation of Act
25
(1) The Minister must cause an independent review of
the operation of this Act, including consideration
of--
(a) the extent to which the objects of this Act
have been achieved; and
30
(b) the required GWh of electricity from eligible
renewable energy sources applying under
this Act; and
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(c) the eligible renewable energy sources; and
(d) the mix of electricity generation technologies
that has resulted from the implementation of
this Act; and
(e) the level of penalties provided for under this
5
Act.
(2) The review must be undertaken by 31 December
2011.
(3) A person who undertakes the review must give the
Minister a written report of the review.
10
(4) The Minister must cause a copy of the report of
the review to be tabled in each House of the
Parliament.
(5) In this section "independent review" means a
review by persons who--
15
(a) in the opinion of the Minister possess
appropriate qualifications to undertake the
review; and
(b) include one or more persons who are not
employed by the State or a State authority
20
and have not, since the commencement of
this Act, provided services to the State or a
State authority under or in connection with a
contract.
__________________
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Act No.
Part 14--Amendment of Essential Services Commission Act 2001
s. 115
See: PART 14--AMENDMENT OF ESSENTIAL SERVICES
Act No.
COMMISSION ACT 2001
62/2001.
Reprint No. 1
as at
115. Functions
1 January
2004
In section 10 of the Essential Services
and
Commission Act 2001--
5 amending
Act Nos
(a) in paragraph (i) for "1983." substitute
75/2004,
86/2004,
"1983;";
91/2004 and
108/2004.
(b) after paragraph (i) insert--
LawToday:
www.dms.
"(j) to perform the functions conferred on
dpc.vic.
gov.au
the Commission by the Victorian
10
Renewable Energy Act 2006.".
116. New section 10C inserted
After section 10B of the Essential Services
Commission Act 2001 insert--
"10C. Commission's functions in relation to
15
renewable energy
Sections 8, 14, 15, 16, 29 and 30 and Parts 3,
4, 5, 6 and 7 (other than sections 60 and 64)
do not apply to the functions of the
Commission referred to in section 10(j).".
20
117. Delegation
In section 26 of the Essential Services
Commission Act 2001, after "relevant legislation"
insert "or any other Act".
__________________
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SCHEDULE
Sections 9, 16, 48
UNDERTAKINGS TO BE GIVEN TO THE ESC
PART 1--UNDERTAKINGS TO BE GIVEN BY REGISTERED
PERSON APPLICANTS
5
1. Undertakings for registered person applicants who are
Commonwealth scheme participants
The applicant--
(a) will not create, while a Commonwealth scheme
10 participant, a Commonwealth certificate in relation to
a small generation unit if a certificate is created under
section 32 in relation to that small generation unit;
(b) as an owner of a small generation unit, will not cause
another person who is also--
15 (i) an owner of the small generation unit; and
(ii) a Commonwealth scheme participant--
to create, while a Commonwealth scheme participant,
a Commonwealth certificate in relation to the small
generation unit if a certificate is created under
20 section 32 in relation to that small generation unit.
2. Undertakings for registered person applicants who are not
Commonwealth scheme participants
The applicant--
(a) will, as soon as reasonably practicable, after
25 becoming a Commonwealth scheme participant notify
the ESC of that fact; and
(b) will, as soon as reasonably practicable after becoming
a Commonwealth scheme participant, provide to the
ESC evidence, in writing, that the applicant has
30 agreed with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or communicate,
to the ESC, protected information concerning the
applicant or any other information held by the
Commonwealth Regulator; and
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(c) will not create, while a Commonwealth scheme
participant, a Commonwealth certificate in relation to
a small generation unit, if a certificate is created under
section 32 in relation to that small generation unit;
5 and
(d) as an owner of a small generation unit, will not cause
another person who is also--
(i) an owner of the small generation unit; and
(ii) a Commonwealth scheme participant--
10 to create, while a Commonwealth scheme participant,
a Commonwealth certificate in relation to the small
generation unit if a certificate is created under
section 32 in relation to that small generation unit.
PART 2--UNDERTAKINGS TO BE GIVEN BY ACCREDITED
POWER STATION APPLICANTS
15
3. Undertakings for applicants who are Commonwealth scheme
participants
The applicant--
(a) will not create, while a Commonwealth scheme
20 participant, a Commonwealth certificate in relation to
electricity generated utilising scheme capacity if a
certificate is created under section 26 utilising that
scheme capacity;
(b) will not cause a stakeholder who is a Commonwealth
25 scheme participant to create, while a Commonwealth
scheme participant, a Commonwealth certificate in
relation to electricity generated utilising scheme
capacity if a certificate is created under section 26
utilising that scheme capacity.
30 4. Undertakings for applicants who are not Commonwealth
scheme participants
The applicant--
(a) will, as soon as reasonably practicable, after
becoming a Commonwealth scheme participant notify
35 the ESC of that fact; and
(b) will, as soon as reasonably practicable after becoming
a Commonwealth scheme participant, provide to the
ESC evidence, in writing, that the applicant has
agreed with the Commonwealth Regulator for the
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Commonwealth Regulator to divulge or communicate
to the ESC--
(i) protected information concerning the applicant;
or
5 (ii) any other information held by the
Commonwealth Regulator; and
(c) will, as soon as reasonably practicable after becoming
a Commonwealth scheme participant who is a
Commonwealth nominated person, provide to the
10 ESC evidence, in writing, that the persons specified in
the application in accordance with section 15(2)(c)
have agreed with the applicant that they will each
agree with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or communicate
15 to the ESC--
(i) protected information concerning them; or
(ii) any other information held by the
Commonwealth Regulator; and
(d) will, as soon as reasonably practicable after becoming
20 a Commonwealth scheme participant who is a
Commonwealth nominated person, provide to the
ESC evidence, in writing, that the applicant has
agreed with the Commonwealth Regulator for the
Commonwealth Regulator to divulge or communicate
25 to the ESC information about any of the components
of the electricity generation system that became a
Commonwealth scheme power station; and
(e) will not create, while a Commonwealth scheme
participant, a Commonwealth certificate in relation to
30 electricity generated utilising scheme capacity if a
certificate is created under section 26 utilising that
scheme capacity; and
(f) will not cause a stakeholder who is a Commonwealth
scheme participant to create, while a Commonwealth
35 scheme participant, a Commonwealth certificate in
relation to electricity generated utilising scheme
capacity if a certificate is created under section 26
utilising that scheme capacity.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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