Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 New Part 10A inserted 2 5 Information notices 18 6 Consequential amendment—heading to Division 2A of Part 10 18 7 Repeal of amending Act 19 ═══════════════ Endnotes 20 1 General information 20 -- 1 of 21 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 † No. 18 of 2017 [Assented to 16 May 2017] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Electricity Safety Act 1998— (a) to impose additional bushfire mitigation requirements on major electricity companies; and Victoria -- 2 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 2 Authorised by the Chief Parliamentary Counsel (b) to enable the enforcement of those additional requirements through a civil penalty enforcement regime; and (c) to further provide for information notices and other matters. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 September 2017, it comes into operation on that day. 3 Principal Act In this Act, the Electricity Safety Act 1998 is called the Principal Act. 4 New Part 10A inserted After Part 10 of the Principal Act insert— "Part 10A—Additional bushfire mitigation requirements for major electricity companies Division 1—Preliminary 120K Definitions In this Part— allocated substation points means points that are prescribed in respect of a zone substation; Automatic Circuit Recloser means a device in relation to a SWER line that— (a) may be remotely controlled; and -- 3 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 3 Authorised by the Chief Parliamentary Counsel (b) is able to automatically interrupt and reclose an electric circuit by means of a programmed sequence that involves one or more of the following— (i) opening and reclosing the electric circuit; (ii) resetting the electric circuit; (iii) holding the electric circuit closed; (iv) permanently interrupting the electric circuit; civil penalty provision means section 120M, 120N, 120O, 120P or 120Q; complying substation has the meaning given by section 120L; electric line construction area means land delineated and shown on a prescribed plan; pecuniary penalty means— (a) for a contravention of section 120M(1)—see section 120M(3)(a), (b) or (c); (b) for a contravention of section 120N(1) or (2)—see section 120N(3)(a) or (b); (c) for a contravention of section 120O(1)—see section 120O(2)(a) or (b); (d) for a contravention of section 120P(1)—see section 120P(3)(a) or (b); -- 4 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 4 Authorised by the Chief Parliamentary Counsel (e) for a contravention of section 120Q(1)—see section 120Q(4)(a) or (b); polyphase electric line means an electric line comprising more than one phase of electricity with a nominal voltage that is not less than 1 kV or greater than 22 kV; required capacity means the prescribed capacity in relation to a polyphase electric line in the event of a phase to ground fault; SWER line means a single wire earth return electric line; zone substation means a prescribed substation. 120L Meaning of complying substation A zone substation is a complying substation if every polyphase electric line that originates from the substation has the required capacity. Division 2—Additional bushfire mitigation duties 120M Polyphase electric lines with required capacity (1) A major electricity company must ensure that— (a) for the initial period, a sufficient number of zone substations in its supply network are complying substations so that the total number of allocated substation points prescribed in respect of all of the complying -- 5 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 5 Authorised by the Chief Parliamentary Counsel substations is not less than 30 (the period 1 minimum points); and (b) for the intermediate period, a sufficient number of zone substations in its supply network are complying substations so that the total number of allocated substation points prescribed in respect of all of the complying substations is not less than 55 (the period 2 minimum points); and (c) on and after 1 May 2023, or if Energy Safe Victoria specifies a later date under section 120X, that date, all zone substations in its supply network are complying substations. (2) Subsection (1)(a) or (b) does not apply to a major electricity company if the allocated substation points prescribed in respect of all of the zone substations in the company's supply network cannot meet the period 1 minimum points or the period 2 minimum points. (3) A major electricity company is liable to pay— (a) if subsection (1)(a) or (b) is contravened, a pecuniary penalty not exceeding $2 000 000 for every point forming the difference between the total number of allocated substation points prescribed in respect of all of the complying substations and, as the case requires— (i) the period 1 minimum points; or (ii) the period 2 minimum points; and -- 6 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 6 Authorised by the Chief Parliamentary Counsel (b) if subsection (1)(c) is contravened, a pecuniary penalty not exceeding $2 000 000 for every allocated substation point prescribed in respect of each zone substation that is not a complying substation; and (c) if there is a continuing contravention of subsection (1)(a), (b) or (c), a pecuniary penalty that is a daily amount not exceeding $5500 for each day that contravention continues after service on the major electricity company by Energy Safe Victoria of notice of that contravention. (4) This section does not apply to a major electricity company that is exempted from complying with this section under an Order under section 120W and complies with that Order. (5) In this section— initial period means— (a) the period beginning 1 May 2019 and ending 30 April 2021; or (b) if Energy Safe Victoria specifies a later period under section 120X, that period; intermediate period means— (a) the period beginning 1 May 2021 and ending 30 April 2023; or (b) if Energy Safe Victoria specifies a later period under section 120X, that period. -- 7 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 7 Authorised by the Chief Parliamentary Counsel 120N Covering or placing underground electric lines (1) A major electricity company must cover or place underground each new electric line that meets the prescribed specification that it constructs within an electric line construction area. (2) A major electricity company must cover or place underground each electric line that— (a) meets the prescribed specification; and (b) it reconstructs or substantially reconstructs within an electric line construction area; and (c) is of at least 4 consecutive spans or has conductors on at least 4 consecutive spans. (3) A major electricity company that contravenes subsection (1) or (2) is liable to pay a pecuniary penalty— (a) not exceeding $350 000 for each kilometre or a part of a kilometre of an electric line that is not covered or placed underground in accordance with that subsection; and (b) in the case of a continuing contravention of subsection (1) or (2), a daily amount not exceeding $1000 for each day that contravention continues after service on the major electricity company by Energy Safe Victoria of notice of that contravention. -- 8 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 8 Authorised by the Chief Parliamentary Counsel (4) This section does not apply to a major electricity company that is exempted from complying with this section under an Order under section 120W and complies with that Order. (5) In this section— cover, in relation to an electric line, means install a system of insulation on a bare open wire in accordance with the relevant major electricity company's accepted bushfire mitigation plan. 120O Installation of Automatic Circuit Recloser for SWER lines (1) A major electricity company must install an Automatic Circuit Recloser for each SWER line in its supply network before 1 January 2021 or if Energy Safe Victoria specifies a later date under section 120X, that date. (2) A major electricity company that contravenes subsection (1) is liable to pay a pecuniary penalty— (a) not exceeding $50 000 in respect of each contravention of that subsection; and (b) in the case of a continuing contravention of that subsection, a daily amount not exceeding $150 for each day that contravention continues after service on the major electricity company by Energy Safe Victoria of notice of that contravention. (3) This section does not apply to a major electricity company that is exempted from complying with this section under an Order under section 120W and complies with that Order. -- 9 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 9 Authorised by the Chief Parliamentary Counsel 120P Annual compliance reports (1) A major electricity company must give a written report to Energy Safe Victoria before 1 August each year that— (a) includes the following information for the reporting period— (i) details of work carried out during the reporting period (including the date of the work) to modify zone substations in its supply network so that the polyphase electric lines originating from the zone substations have the required capacity; (ii) details of work carried out during the reporting period (including the date of the work) to cover or place underground each electric line in its supply network that meets the prescribed specification within an electric line construction area; (iii) details of work carried out during the reporting period (including the date of the work) to install an Automatic Circuit Recloser for each SWER line in its supply network; and (b) includes details of the location of each zone substation, electric line and Automatic Circuit Recloser referred to in paragraph (a) and in the case of an electric line referred to in that paragraph, the length of the electric line (in kilometres); and -- 10 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 10 Authorised by the Chief Parliamentary Counsel (c) includes the following plans of work to be carried out during the next reporting period— (i) a plan to modify polyphase electric lines originating from zone substations to have the required capacity, which includes the date on which the work is to be completed and the location of the polyphase electric lines; (ii) a plan to cover or place underground electric lines that meet the prescribed specification in an electric line construction area, which includes the date on which the work is to be completed and the locations where the electric lines will be covered or placed underground and the length (in kilometres) of the electric lines; (iii) a plan to install Automatic Circuit Reclosers for SWER lines in its supply network, which includes the date on which the work is to be completed and the location of installation of the Automatic Circuit Reclosers; and (d) is in the form, and includes the information, specified by Energy Safe Victoria; and (e) has been approved by the board of the major electricity company. (2) Energy Safe Victoria must publish a copy of a report on its Internet site. -- 11 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 11 Authorised by the Chief Parliamentary Counsel (3) A major electricity company that contravenes subsection (1) is liable to pay a pecuniary penalty— (a) not exceeding $10 000 in respect of each contravention of that subsection; and (b) in the case of a continuing contravention of that subsection, a daily amount not exceeding $1000 for each day that contravention continues after service on the major electricity company by Energy Safe Victoria of notice of that contravention. (4) In this section— reporting period means the year beginning 1 May and ending the following 30 April. 120Q Independent audits (1) A major electricity company must obtain, on the request of Energy Safe Victoria and at the intervals determined by Energy Safe Victoria, an independent audit of the major electricity company's compliance with section 120M, 120N, 120O or 120P. (2) The major electricity company must establish to the satisfaction of Energy Safe Victoria that each person undertaking an audit under this section has the necessary competence, ability and access to information on the operations of the major electricity company to enable an independent audit to be carried out. -- 12 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 12 Authorised by the Chief Parliamentary Counsel (3) If Energy Safe Victoria requires a major electricity company to obtain an independent audit under this section, the costs of that audit must be borne by the major electricity company. (4) A major electricity company that contravenes subsection (1) is liable to pay a pecuniary penalty— (a) not exceeding $50 000 in respect of each contravention of that subsection; and (b) in the case of a continuing contravention of that subsection, a daily amount not exceeding $5000 for each day that contravention continues after service on the major electricity company by Energy Safe Victoria of notice of that contravention. Division 3—Enforcement of additional bushfire mitigation duties 120R Proceedings (1) A person may not commence a civil proceeding in respect of a matter arising under Division 2 except in accordance with this Division. (2) The Minister or Energy Safe Victoria may commence a civil proceeding in respect of a civil penalty provision in accordance with this Division. (3) The Minister or Energy Safe Victoria must not commence a civil proceeding under this Division for an alleged contravention of a civil penalty provision if a civil proceeding is on foot under this Division in respect of the same conduct. -- 13 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 13 Authorised by the Chief Parliamentary Counsel (4) Nothing in this section affects the right of a person to commence a civil proceeding in respect of any matter or thing, or seek any relief or remedy, if the cause of action arises, or the relief or remedy is sought, on grounds that do not rely on this Part. 120S Criminal proceedings do not lie Criminal proceedings do not lie against a person by reason only that the person— (a) has contravened a civil penalty provision; or (b) has attempted to contravene a civil penalty provision; or (c) has aided, abetted, counselled or procured a person to contravene a civil penalty provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene a civil penalty provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a civil penalty provision; or (f) has conspired with others to contravene a civil penalty provision. 120T Proceedings for contravention of civil penalty provisions (1) The Minister or Energy Safe Victoria may apply to the Supreme Court for an order under this Division in respect of the doing by a major electricity company of a thing specified in subsection (3). -- 14 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 14 Authorised by the Chief Parliamentary Counsel (2) If the Supreme Court is satisfied that a thing specified in subsection (3) has been done, the Court may make an order that the major electricity company pay a pecuniary penalty to the Minister in respect of each act or omission by the major electricity company as the Court determines. (3) For the purposes of subsections (1) and (2), a specified thing is— (a) that a major electricity company has contravened a civil penalty provision; or (b) that a major electricity company has attempted to contravene a civil penalty provision; or (c) that a major electricity company has aided, abetted, counselled or procured a person to contravene a civil penalty provision; or (d) that a major electricity company has induced, or attempted to induce, a person whether by threats or promises or otherwise, to contravene a civil penalty provision; or (e) that a major electricity company has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a major electricity company of a civil penalty provision; or (f) that a major electricity company has conspired with others to contravene a civil penalty provision. (4) In determining the amount of the pecuniary penalty to be paid by the major electricity company, the Supreme Court may have regard to all relevant matters including— -- 15 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 15 Authorised by the Chief Parliamentary Counsel (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (b) the circumstances in which the act or omission took place; and (c) whether the major electricity company has previously been found by the Court in a proceeding under this Division to have contravened a civil penalty provision. 120U Pecuniary penalties to be paid into the Consolidated Fund Every pecuniary penalty received by the Minister must be paid into the Consolidated Fund. 120V Declaratory relief (1) The Supreme Court, on an application by the Minister or Energy Safe Victoria, by order, may declare whether or not the major electricity company to which the application relates has contravened a civil penalty provision. (2) If the order declares the major electricity company to have contravened a civil penalty provision, the order may include either or both of the following— (a) a requirement that the major electricity company cease, within a specified period, the act, activity or practice constituting the contravention; (b) a requirement that the major electricity company take a specified action or adopt a specified practice, as the Court requires, for remedying -- 16 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 16 Authorised by the Chief Parliamentary Counsel the contravention or preventing a recurrence of the contravention. Division 4—Miscellaneous 120W Exemptions (1) The Governor in Council, on the recommendation of the Minister, by Order published in the Government Gazette, may exempt a major electricity company from complying with section 120M, 120N or 120O. (2) An Order must specify the relevant section that a major electricity company is exempt from complying with. (3) An exemption may be of general or specific application. (4) An exemption is subject to such terms and conditions as are specified in the Order. 120X Specification of later dates and periods for compliance with civil penalty provisions (1) A major electricity company to which section 120M or 120O applies may request Energy Safe Victoria to— (a) in the case of section 120M(1)(a) or (b), specify a period as the period within which the company must comply with section 120M(1)(a) or (b); or (b) in the case of section 120M(1)(c) or 120O(1), specify a date as the date by which the company must comply with section 120M(1)(c) or 120O(1). (2) A request under subsection (1) must set out the reasons for the request. -- 17 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 17 Authorised by the Chief Parliamentary Counsel (3) On receiving a request under subsection (1), Energy Safe Victoria may— (a) in the case of a request under subsection (1)(a), specify a period as the period within which the company must comply with section 120M(1)(a) or (b), as the case requires; or (b) in the case of a request under subsection (1)(b), specify a date as the date by which the company must comply with section 120M(1)(c) or 120O(1), as the case requires. (4) Energy Safe Victoria must consult with the Minister before specifying a period or date under subsection (3). 120Y Information notices (1) Energy Safe Victoria, by written notice, may require a major electricity company to give Energy Safe Victoria information in the major electricity company's possession or control for the purpose of verifying the information provided in— (a) a report under section 120P; or (b) an independent audit under section 120Q. (2) A notice under subsection (1) must— (a) specify or describe the information that is required by Energy Safe Victoria; and (b) specify the format in which that information is to be given to Energy Safe Victoria; and -- 18 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 18 Authorised by the Chief Parliamentary Counsel (c) specify the date by which the information must be given to Energy Safe Victoria. (3) A major electricity company that is given a notice under subsection (1) must comply with the notice unless the major electricity company has a lawful excuse. Penalty: 200 penalty units. (4) This section does not require a major electricity company to give information that is the subject of legal professional privilege or client legal privilege. (5) It is not a lawful excuse for a major electricity company to fail to comply with a notice under subsection (1) on the ground of any duty of confidence. 120Z Audit by Energy Safe Victoria Energy Safe Victoria may conduct, or cause to be conducted, an audit of a major electricity company's compliance with one or more of the civil penalty provisions.". 5 Information notices In section 141AB(1) of the Principal Act, for "preparing annual reports in relation to" substitute "verifying". 6 Consequential amendment—heading to Division 2A of Part 10 In the heading to Division 2A of Part 10 of the Principal Act, after "mitigation" insert "plan". -- 19 of 21 -- Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 19 Authorised by the Chief Parliamentary Counsel 7 Repeal of amending Act This Act is repealed on 1 September 2018. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 20 of 21 -- Endnotes Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Act 2017 No. 18 of 2017 20 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 9 February 2017 Legislative Council: 23 February 2017 The long title for the Bill for this Act was "A Bill for an Act to amend the Electricity Safety Act 1998 and for other purposes." -- 21 of 21 --