Essential Services Commission Regulations 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Essential Services Commission Regulations 2011 S.R. No. 155/2011 TABLE OF PROVISIONS Regulation Page PART 1—PRELIMINARY 1 1 Objectives 1 2 Authorising provision 1 3 Commencement 1 4 Revocation 2 5 Definitions 2 PART 2—ESSENTIAL SERVICES COMMISSION 3 6 Charter of Consultation and Regulatory Practice 3 7 Prescribed agencies 3 8 Prescribed bodies 4 9 Memorandum of Understanding 4 10 Matters to be included in the annual report 5 PART 3—APPEALS 7 11 Registrar 7 12 Functions of the Registrar 7 13 Manner of applying for appeal 7 14 Procedure of the appeal panel 8 15 Who may appear before the appeal panel 8 16 Evidence before the appeal panel 9 17 Appointment of persons to assist the appeal panel 9 18 Notification of appeal 10 19 Certain appeal notices may be heard together 10 20 Appeal in absence of applicant 10 21 Withdrawal or amendment of appeal notice 11 22 Decisions of appeal panel 11 23 Statement of reasons 11 ═══════════════ ENDNOTES 12 -- 1 of 13 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2011 S.R. No. 155/2011 Essential Services Commission Act 2001 Essential Services Commission Regulations 2011 The Governor in Council makes the following Regulations: Dated: 13 December 2011 Responsible Minister: ROBERT CLARK Minister for Finance MATTHEW McBEATH Clerk of the Executive Council PART 1—PRELIMINARY 1 Objectives The objectives of these Regulations are— (a) to prescribe certain matters in relation to the Essential Services Commission; and (b) to regulate proceedings and to provide for procedures to be followed in the conduct of appeals under the Essential Services Commission Act 2001. 2 Authorising provision These Regulations are made under section 65 of the Essential Services Commission Act 2001. 3 Commencement These Regulations come into operation on 17 December 2011. -- 2 of 13 -- Part 1—Preliminary Essential Services Commission Regulations 2011 S.R. No. 155/2011 2 Authorised by the Chief Parliamentary Counsel 4 Revocation The Essential Services Commission Regulations 20011 are revoked. 5 Definitions In these Regulations— applicant means a person who has lodged notice of an appeal under section 55(3) of the Act; Charter means the Charter of Consultation and Regulatory Practice referred to in section 14 of the Act; the Act means the Essential Services Commission Act 2001. __________________ r. 4 -- 3 of 13 -- Part 2—Essential Services Commission Essential Services Commission Regulations 2011 S.R. No. 155/2011 3 Authorised by the Chief Parliamentary Counsel PART 2—ESSENTIAL SERVICES COMMISSION 6 Charter of Consultation and Regulatory Practice For the purposes of section 14 of the Act, the following matters are prescribed to be set out in the Charter— (a) the form and manner in which future work programs will be published in relation to each regulated industry; (b) how inquiries, decisions and determinations are to be notified; (c) the processes for public consultation that are to precede determinations and inquiries; (d) the requirements in relation to public hearings by the Commission; (e) the processes for reviewing the Charter; (f) what is to be done to ensure best practice by the Commission in performing its functions. 7 Prescribed agencies For the purposes of section 15 of the Act, the following are prescribed agencies— (a) Department of Human Services; (b) Department of Health; (c) Director of Consumer Affairs Victoria; (d) Environment Protection Authority; (e) Energy Safe Victoria; (f) Director, Transport Safety; (g) Sustainability Victoria; (h) Victorian Regional Channels Authority. r. 6 -- 4 of 13 -- Part 2—Essential Services Commission Essential Services Commission Regulations 2011 S.R. No. 155/2011 4 Authorised by the Chief Parliamentary Counsel 8 Prescribed bodies For the purposes of section 16 of the Act, the following are prescribed bodies— (a) Department of Human Services; (b) Department of Health; (c) Director of Consumer Affairs Victoria; (d) Environment Protection Authority; (e) Energy Safe Victoria; (f) Director, Transport Safety; (g) Sustainability Victoria; (h) Victorian Regional Channels Authority. 9 Memorandum of Understanding A Memorandum of Understanding entered into under section 16 of the Act must— (a) provide for the integration and co-ordination by the parties of their regulatory or other activities; and (b) include— (i) the objectives of the Memorandum of Understanding in relation to regulated industries; and (ii) the roles of the parties to the Memorandum of Understanding; and (iii) how the parties are to jointly consult and communicate on regulatory issues that affect them; and (iv) the formal processes that are to be followed in the relationship between the parties. r. 8 -- 5 of 13 -- Part 2—Essential Services Commission Essential Services Commission Regulations 2011 S.R. No. 155/2011 5 Authorised by the Chief Parliamentary Counsel 10 Matters to be included in the annual report For the purposes of section 31 of the Act, the following information is prescribed— (a) an overview of— (i) what the Commission has done to meet its objective under the Act; and (ii) how the Commission has performed its functions in relation to each regulated industry; and (iii) work undertaken by the Commission to address issues relating to the reliability of supply in each regulated industry; and (iv) the Charter, including how the Commission has given effect to the Charter in its activities; and (v) any Memorandum of Understanding entered into by the Commission; and (vi) the Commission's consultation processes; and (vii) any information that the Commission has obtained as a result of a notice issued under section 37 of the Act, including how that information has been used to inform the Commission's processes; (b) the outcomes of any— (i) inquiries conducted under Part 5 of the Act; and (ii) price determinations made by the Commission under section 33 of the Act; and r. 10 -- 6 of 13 -- Part 2—Essential Services Commission Essential Services Commission Regulations 2011 S.R. No. 155/2011 6 Authorised by the Chief Parliamentary Counsel (iii) decisions of the Commission to disclose information or the contents of a document given to the Commission under section 38 of the Act; and (iv) third party access regime determinations made by the Commission under Part 3A of the Act; (c) the number, type and result of appeals made under section 55 of the Act; (d) a statement that shows the Commission's total costs and expenses in relation to each regulated industry. __________________ r. 10 -- 7 of 13 -- Part 3—Appeals Essential Services Commission Regulations 2011 S.R. No. 155/2011 7 Authorised by the Chief Parliamentary Counsel PART 3—APPEALS 11 Registrar The principal registrar of the Victorian Civil and Administrative Tribunal is appointed as Registrar for the purposes of the Act. 12 Functions of the Registrar The Registrar must— (a) publish on the Internet any rules of practice and procedure determined by the Registrar under regulation 14(2); and (b) establish and maintain a file registry that contains all records of the appeal panel including all appeal notices and other notices and information lodged with the Registrar and decisions of the appeal panel; and (c) notify the Minister and the Commission immediately after receiving an appeal notice; and (d) administer the process of appeal and provide all necessary assistance to the appeal panel (including organising a venue, compiling documents and recording the appeal); and (e) perform such other functions as are conferred under these Regulations. 13 Manner of applying for appeal (1) An appeal notice must— (a) be in writing and be signed by or on behalf of the applicant; and (b) specify the requirement, decision or determination of the Commission that is the subject of the appeal; and r. 11 -- 8 of 13 -- Part 3—Appeals Essential Services Commission Regulations 2011 S.R. No. 155/2011 8 Authorised by the Chief Parliamentary Counsel (c) state the grounds on which the appeal is based and give full particulars of those grounds; and (d) set out full particulars of the facts and materials on which the applicant relies in support of the appeal; and (e) set out the decision of the appeal panel sought by the applicant. (2) The Registrar must not reject a document purporting to be an appeal notice on the ground that it does not meet a requirement in subregulation (1). (3) If the Registrar determines that a document purporting to be an appeal notice does not meet a requirement in subregulation (1), the Registrar must notify the applicant in writing. (4) If the Registrar has notified an applicant that a document purporting to be an appeal notice does not meet a requirement in subregulation (1), the applicant may submit the document in an amended form within 2 days after receiving that notice. 14 Procedure of the appeal panel (1) The appeal panel is bound by the rules of natural justice. (2) The Registrar may determine rules of practice and procedure for the conduct of appeals. (3) The appeal panel is not required to conduct an appeal in a formal manner. 15 Who may appear before the appeal panel The appeal panel may allow a person other than the applicant to appear before it in accordance with any rules of practice and procedure determined by the Registrar. r. 14 -- 9 of 13 -- Part 3—Appeals Essential Services Commission Regulations 2011 S.R. No. 155/2011 9 Authorised by the Chief Parliamentary Counsel 16 Evidence before the appeal panel (1) Evidence before the appeal panel may be given at the appeal panel's discretion orally or in writing or partly orally and partly in writing. (2) The appeal panel must only consider as evidence— (a) the facts and materials that were in the possession of the Commission at the time the requirement, decision or determination that is the subject of the appeal was made; and (b) the facts and materials that explain or relate to the processes of the Commission leading to its requirement, decision or determination that is the subject of the appeal. (3) Despite subregulation (2), the appeal panel may also allow the applicant or the Commission to place before it for consideration as evidence facts and materials not referred to in subregulation (2)(a) or (2)(b), if the applicant or Commission satisfies the appeal panel that the facts and materials— (a) are materially relevant to the appeal; and (b) could not have been placed before the Commission before the time the requirement, decision or determination that is the subject of the appeal was made. (4) The appeal panel may invite or receive written submissions from persons other than the applicant and the Commission. 17 Appointment of persons to assist the appeal panel (1) Subject to subregulation (2), the appeal panel may appoint any person with appropriate expertise to advise it in an appeal before it. r. 16 -- 10 of 13 -- Part 3—Appeals Essential Services Commission Regulations 2011 S.R. No. 155/2011 10 Authorised by the Chief Parliamentary Counsel (2) The appeal panel must not appoint a person who— (a) is a Commissioner; or (b) is a person referred to in section 24 of the Act; or (c) is an office holder or staff member of, or an adviser to, the applicant, a prescribed agency or a prescribed body; or (d) in the appeal— (i) has appeared or sought to appear before the appeal panel under regulation 15; or (ii) has given evidence or made a submission to the appeal panel. (3) The costs (if any) arising from the appointment of a person under subregulation (1) are taken to be part of the costs and expenses associated with the functioning of the appeal panel. 18 Notification of appeal The Registrar must arrange a day, time and place for the hearing of each appeal and must give notice in writing to each party to the appeal of that day, time and place. 19 Certain appeal notices may be heard together If an appeal panel directs, appeals with respect to 2 or more appeal notices concerning the same or a related subject-matter may be heard together. 20 Appeal in absence of applicant If an applicant to an appeal fails to appear at the time and place appointed for the appeal either personally or by a representative, the appeal panel may dismiss the appeal if it is satisfied that the applicant was given reasonable notice of that time and place. r. 18 -- 11 of 13 -- Part 3—Appeals Essential Services Commission Regulations 2011 S.R. No. 155/2011 11 Authorised by the Chief Parliamentary Counsel 21 Withdrawal or amendment of appeal notice An applicant may— (a) withdraw an appeal notice at any time before the appeal panel decides the appeal; (b) amend the appeal notice with leave of the appeal panel. 22 Decisions of appeal panel (1) A decision of an appeal panel must be in writing and must be signed by, or on behalf of, the appeal panel. (2) The Registrar must certify that a copy of a decision of an appeal panel is a true copy of that decision. (3) A decision of an appeal panel comes into effect on the date it is made or on any later date specified in the decision. (4) The Registrar must give a copy of the decision of an appeal panel to everyone who has appeared before or made submissions to the appeal panel as soon as practicable but in any event within 7 days after the decision is made. 23 Statement of reasons (1) The appeal panel must prepare a statement in writing of reasons for the decision. (2) The Registrar must give the statement of reasons to everyone who has appeared before or made submissions to the appeal panel as soon as practicable but in any event within 14 days after the decision is made. ═══════════════ r. 21 -- 12 of 13 -- Essential Services Commission Regulations 2011 S.R. No. 155/2011 12 Authorised by the Chief Parliamentary Counsel ENDNOTES 1 Reg. 4: S.R. No. 166/2001. Endnotes -- 13 of 13 --