Energy Legislation Amendment (Consumer Protection) Act 2015

Authorised by the Chief Parliamentary Counsel Authorised Version i Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Amendment of Electricity Industry Act 2000 3 3 Definitions 3 4 Objectives of the Commission 3 5 New sections 23A, 23B and 23C inserted 3 6 New section 29A inserted 6 7 Offer to domestic or small business customers (licensee standing offers) 6 8 Required tariff information and licensee contact information to be published in newspaper and Government Gazette 8 9 Compensation for wrongful disconnection 8 10 Regulation of exit fees 8 11 Objects 10 12 Statute law revision 10 Part 3—Amendment of Essential Services Commission Act 2001 11 13 Definitions 11 14 New section 10AA inserted 12 15 Insertion of headings in Part 7 13 16 Civil penalty 13 17 New Division 2 inserted in Part 7 14 Part 4—Amendment of Gas Industry Act 2001 31 18 Definitions 31 19 Objectives of the Commission 31 20 New sections 33 and 34 inserted 31 21 New section 38A inserted 33 22 Offer to domestic or small business customers (licensee standing offers) 33 23 Required tariff information and licensee contact information to be published in newspaper and Government Gazette 35 24 Compensation for wrongful disconnection 35 -- 1 of 41 -- Section Page ii Authorised by the Chief Parliamentary Counsel 25 Regulation of exit fees 35 26 Objects 37 27 Statute law revision 37 Part 5—Repeal of amending Act 38 28 Repeal of amending Act 38 ═══════════════ Endnotes 39 1 General information 39 -- 2 of 41 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Energy Legislation Amendment (Consumer Protection) Act 2015 † No. 49 of 2015 [Assented to 13 October 2015] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Electricity Industry Act 2000 to impose new licence conditions, increase compensation payable for wrongful disconnections and to make other amendments; and Victoria -- 3 of 41 -- Part 1—Preliminary Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 2 Authorised by the Chief Parliamentary Counsel (b) to amend the Essential Services Commission Act 2001— (i) to provide the Essential Services Commission with further enforcement powers in relation to the energy industry; and (ii) to increase the maximum penalty that may be specified in a civil penalty notice in relation to the energy industry; and (iii) to expand the Essential Services Commission's publication and reporting functions in relation to the energy industry; and (iv) to make other amendments; and (c) to amend the Gas Industry Act 2001 to impose new licence conditions, increase compensation payable for wrongful disconnections and to make other amendments. 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 2016, it comes into operation on that day. -- 4 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Electricity Industry Act 2000 3 Definitions In section 3 of the Electricity Industry Act 2000 insert the following definition— "Code of Practice means a Code of Practice applying to the electricity industry under Part 6 of the Essential Services Commission Act 2001 or under this Act;". 4 Objectives of the Commission In section 10 of the Electricity Industry Act 2000— (a) in paragraph (b), for "competition." substitute "competition; and"; (b) after paragraph (b) insert— "(c) to promote protections for customers, including in relation to assisting customers who are facing payment difficulties.". 5 New sections 23A, 23B and 23C inserted After section 23 of the Electricity Industry Act 2000 insert— "23A Condition to give information to Commission (1) A licence to sell electricity is taken to include a condition requiring the licensee to comply with this section. (2) The licensee must give to the Commission, for the purpose of enabling the Commission to perform its functions under Subdivision 3 of Division 2 of Part 7 of the Essential Services Commission Act 2001, the -- 5 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 4 Authorised by the Chief Parliamentary Counsel information specified by the Commission in the guidelines issued under subsection (4). (3) The licensee must give to the Commission the information referred to in subsection (2) in the manner and form (including by the date or dates) specified in the guidelines issued under subsection (4). (4) The Commission must prepare and issue guidelines for the purposes of this section. 23B Condition relating to advertising of enforcement action taken against licensee (1) A licence is taken to include a condition requiring the licensee, at the direction of the Commission, to publish a notice, approved by the Commission, containing the things set out in subsection (2) in a daily newspaper generally circulating in Victoria within the period specified by the Commission. (2) A notice published under subsection (1) must contain the following things— (a) a statement that enforcement action has been taken in respect of the licensee; (b) an explanation of the nature of the enforcement action; (c) the reason for the enforcement action; (d) the status of any proceeding commenced, or action taken, in relation to the enforcement action. (3) In this section— enforcement action has the same meaning as in section 3 of the Essential Services Commission Act 2001. -- 6 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 5 Authorised by the Chief Parliamentary Counsel 23C Condition relating to renewable energy customers (1) A licence to sell electricity is taken to include a condition requiring the licensee to offer to sell electricity to a renewable energy customer at the same tariffs and on the same terms and conditions that it would offer to the customer if the customer was not a renewable energy customer. (2) Nothing in subsection (1) prevents a licensee from also offering to sell renewable energy customers electricity at tariffs and on terms and conditions that the licensee only makes available to renewable energy customers. (3) This section applies despite anything to the contrary in an Order made under section 13(1). (4) In this section— renewable energy customer means— (a) a qualifying customer within the meaning of section 40F(1); or (b) a TFiT scheme customer within the meaning of section 40F(1); or (c) a relevant generator within the meaning of section 40F(1) engaging in the generation of electricity from a small renewable energy generation facility within the meaning of section 40F(1).". -- 7 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 6 Authorised by the Chief Parliamentary Counsel 6 New section 29A inserted After section 29 of the Electricity Industry Act 2000 insert— "29A Variation to licence condition— contravention of licence or Code of Practice (1) The Commission, by written notice served on the licensee, may vary a licence or licence condition without the consent of the licensee if the licensee has contravened or is contravening a condition of the licence or a provision of a Code of Practice. (2) A licence or licence condition that is varied under subsection (1) must specify the action that the licensee is required to take— (a) to rectify the contravention; and (b) to prevent any future contravention of the licence condition or provision of the Code of Practice. (3) The Commission must not vary a licence or the licence condition under this section unless the Commission has given the licensee an opportunity to make representations on the matter.". 7 Offer to domestic or small business customers (licensee standing offers) (1) In section 35(3) of the Electricity Industry Act 2000, for "subsection (3A)" substitute "subsections (3A) and (3E) to (3G)". (2) After section 35(3A) of the Electricity Industry Act 2000 insert— "(3B) The Minister, by Order published in the Government Gazette, may specify either or both of the following— -- 8 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 7 Authorised by the Chief Parliamentary Counsel (a) a date on which, or period within which, licensees may publish a notice referred to in subsection (3); (b) a date on which, or period within which, tariffs varied in accordance with subsection (3) must take effect. (3C) A date specified in an Order made in the exercise of the power under subsection (3B)(b) may be a date that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. (3D) A period specified in an Order made in the exercise of the power under subsection (3B)(b) may end on a day that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. (3E) If an Order made in the exercise of the power under subsection (3B)(a) is in effect, a licensee must not vary the tariffs under subsection (3) unless the notice referred to in subsection (3) is published on the date or within the period specified in the Order (as the case requires). (3F) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a date on which tariffs varied in accordance with subsection (3) must take effect, the tariffs take effect on the date specified in the Order. (3G) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a period within which tariffs varied in accordance with subsection (3) must take effect and the date specified in a -- 9 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 8 Authorised by the Chief Parliamentary Counsel notice under subsection (3) is within that period, the tariffs take effect on that date.". 8 Required tariff information and licensee contact information to be published in newspaper and Government Gazette (1) In the heading to section 35D of the Electricity Industry Act 2000, after "newspaper" insert "and Government Gazette". (2) In section 35D(1) of the Electricity Industry Act 2000, after "Victoria" insert "and in the Government Gazette". 9 Compensation for wrongful disconnection In section 40B(5) of the Electricity Industry Act 2000, in the definition of prescribed amount, in paragraph (b), for "$250" substitute "$500". 10 Regulation of exit fees (1) Before section 40D(1) of the Electricity Industry Act 2000 insert— "(1AA) Without limiting the generality of sections 20(2) or (3) or 21, the conditions to which a licence to sell electricity is subject include a condition prohibiting, on and after the commencement of section 10 of the Energy Legislation Amendment (Consumer Protection) Act 2015, the licensee from entering into a contract for the supply or sale of electricity between the licensee and a small retail customer that imposes an exit fee on the termination of the contract unless— (a) the contract is a fixed-term retail contract; and -- 10 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 9 Authorised by the Chief Parliamentary Counsel (b) the following will not change during the term of the contract— (i) any tariffs, charges and fees for electricity supplied under that contract; (ii) any discount which applies to tariffs, charges and fees for electricity supplied under that contract; (iii) any terms and conditions that apply to electricity supplied under that contract.". (2) In section 40D(1) of the Electricity Industry Act 2000— (a) omit "prohibit or"; (b) for "contract for the supply or sale of electricity to a small retail customer" substitute "fixed-term retail contract"; (c) after "exit fee" insert "that is not otherwise prohibited under subsection (1AA)". (3) For section 40D(3) of the Electricity Industry Act 2000 substitute— "(3) An Order under subsection (1) may also provide that a fixed-term retail contract must include a condition providing that the small retail customer may terminate the contract by giving the required period of notice to the licensee.". (4) In section 40D(4) of the Electricity Industry Act 2000, for "contract for the supply or sale of electricity" substitute "fixed-term retail contract". -- 11 of 41 -- Part 2—Amendment of Electricity Industry Act 2000 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 10 Authorised by the Chief Parliamentary Counsel (5) In section 40D(9) of the Electricity Industry Act 2000 insert the following definition— "fixed-term retail contract means a contract for the supply or sale of electricity between a licensee and a small retail customer that contains a term or condition that specifies— (a) the date on which the contract will end; or (b) a method for calculating the date on which the contract will end and which is ascertainable at the time the contract is entered;". 11 Objects In section 42 of the Electricity Industry Act 2000, for "The objects" substitute "Without limiting section 10(c), the objects". 12 Statute law revision In section 90(1) and (2) of the Electricity Industry Act 2000, for "Department of Natural Resources and Environment" substitute "Department of Environment, Land, Water and Planning". -- 12 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 11 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Essential Services Commission Act 2001 13 Definitions In section 3 of the Essential Services Commission Act 2001 insert the following definitions— "Code of Practice means a Code of Practice applying under Part 6 or relevant legislation; energy licence means— (a) a licence issued under Part 2 of the Electricity Industry Act 2000; or (b) a licence issued under Part 3 of the Gas Industry Act 2001; energy licensee means the holder of an energy licence; energy retailer means— (a) a retailer within the meaning of the Electricity Industry Act 2000; or (b) a gas retailer within the meaning of the Gas Industry Act 2001; enforcement action means any of the following— (a) the service of an order by the Commission under section 53; (b) the service of a notice by the Commission under section 54A; (c) the acceptance of an enforceable undertaking by the Commission under section 54B; (d) the commencement of proceedings by the Commission under section 54D; -- 13 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 12 Authorised by the Chief Parliamentary Counsel (e) the service of a penalty notice within the meaning of section 54E by the Commission; (f) the commencement of proceedings by the Commission under section 54S; (g) the variation of a licence condition by the Commission under section 29A of the Electricity Industry Act 2000; (h) the variation of a licence condition by the Commission under section 38A of the Gas Industry Act 2001;". 14 New section 10AA inserted After section 10 of the Essential Services Commission Act 2001 insert— "10AA Commission's energy industry compliance and enforcement functions Without limiting section 10(a) or the Electricity Industry Act 2000 or the Gas Industry Act 2001, the functions of the Commission under this Act in respect of the electricity industry and the gas industry include— (a) to monitor and report on compliance by energy licensees with conditions of energy licences held by them and provisions of Codes of Practice; and (b) to investigate contraventions or possible contraventions by energy licensees of conditions of energy licences held by them and provisions of Codes of Practice; and -- 14 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 13 Authorised by the Chief Parliamentary Counsel (c) to commence and conduct proceedings in relation to contraventions by energy licensees of conditions of energy licences held by them or provisions of Codes of Practice.". 15 Insertion of headings in Part 7 (1) Before section 53 of the Essential Services Commission Act 2001 insert— "Division 1—General enforcement". (2) Before section 55 of the Essential Services Commission Act 2001 insert— "Division 3—Appeals". (3) Before section 60 of the Essential Services Commission Act 2001 insert— "Division 4—Miscellaneous". 16 Civil penalty (1) In section 54A(3) of the Essential Services Commission Act 2001, for "A pecuniary" substitute "Subject to subsection (3A), a pecuniary". (2) After section 54A(3) of the Essential Services Commission Act 2001 insert— "(3A) A pecuniary penalty imposed under this section on an energy licensee cannot exceed an amount equal to 680 penalty units.". -- 15 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 14 Authorised by the Chief Parliamentary Counsel 17 New Division 2 inserted in Part 7 After section 54A of the Essential Services Commission Act 2001 insert— 'Division 2—Energy industry enforcement and reporting Subdivision 1—Undertakings 54B Enforceable undertakings—energy licensees (1) The Commission may accept a written undertaking given by an energy licensee in connection with a matter in relation to which the Commission has a function or power under— (a) this Act; or (b) the Electricity Industry Act 2000; or (c) the Gas Industry Act 2001. (2) An energy licensee may withdraw or vary the undertaking at any time, but only with the consent of the Commission. 54C Proceedings for alleged contravention of undertaking Subject to section 54D, the Commission must not take enforcement action in respect of a matter in relation to which the Commission has a function or power referred to in section 54B against an energy licensee— (a) who has given an undertaking under section 54B that is in effect in respect of the matter; or -- 16 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 15 Authorised by the Chief Parliamentary Counsel (b) who has given an undertaking in respect of the matter that was in effect and which has been completely discharged. 54D Enforcement of undertakings (1) If the Commission considers that an energy licensee who gave an undertaking under section 54B has contravened any of its terms, the Commission may apply to the Supreme Court for an order under subsection (2). (2) If the Court is satisfied that the energy licensee has contravened a term of the undertaking, the Court may make all or any of the following orders— (a) an order directing the energy licensee to comply with that term of the undertaking; (b) an order directing the energy licensee to pay to the Minister an amount of up to the amount of any financial benefit that the energy licensee has obtained directly or indirectly and that is reasonably attributable to the contravention; (c) any order that the Court considers appropriate directing the energy licensee to compensate any person who has suffered loss or damage as a result of the contravention; (d) any other order the Court considers appropriate. (3) Every amount received by the Minister pursuant to an order of the Supreme Court under subsection (2)(b) must be paid into the Consolidated Fund. -- 17 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 16 Authorised by the Chief Parliamentary Counsel Subdivision 2—Energy industry penalty regime 54E Definitions In this Subdivision— energy industry contravention has the meaning given by section 54F; energy industry penalty—see section 54I(1); energy industry penalty notice means a notice served under section 54G; Energy Retail Code means the document entitled "Energy Retail Code" published by the Commission, as amended from time to time; penalty notice means— (a) an energy industry penalty notice; or (b) a wrongful disconnection penalty notice; wrongful disconnection contravention means a contravention referred to in section 54H(1)(c); wrongful disconnection penalty notice means a notice served under section 54H; wrongful disconnection penalty— see section 54I(2). 54F Meaning of energy industry contravention (1) An energy industry contravention is— (a) a contravention of a prescribed condition of an energy licence in a prescribed circumstance; or -- 18 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 17 Authorised by the Chief Parliamentary Counsel (b) a contravention of a prescribed provision of a Code of Practice. (2) However, an energy industry contravention does not include a wrongful disconnection contravention. 54G Power to serve energy industry penalty notice (1) The Commission may serve a notice (an energy industry penalty notice) on an energy licensee if the Commission has reason to believe the energy licensee has engaged in conduct that constitutes an energy industry contravention. (2) The Commission must, however, serve an energy industry penalty notice not later than 12 months after the date on which the Commission forms a belief that the energy licensee has engaged in conduct that constitutes an energy industry contravention. 54H Power to serve wrongful disconnection penalty notice (1) The Commission may serve a notice (a wrongful disconnection penalty notice) on an energy retailer if the Commission has reason to believe— (a) the supply of electricity or gas to the premises of a customer has been disconnected; and (b) the energy retailer has arranged for the supply of electricity or gas to be disconnected from the customer's premises and has not complied with a requirement of the Energy Retail Code relating to disconnecting a customer's supply of electricity or gas; and -- 19 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 18 Authorised by the Chief Parliamentary Counsel (c) that conduct constitutes a contravention of a condition of the energy retailer's energy licence that requires compliance with the Energy Retail Code. (2) The Commission must, however, serve a wrongful disconnection penalty notice not later than 12 months after the date on which the Commission forms a belief that the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention. 54I Penalties (1) The energy industry penalty for an energy industry contravention is $20 000 or any lesser amount that is prescribed for that energy industry contravention. (2) The wrongful disconnection penalty is $5000. 54J Form of penalty notice A penalty notice must state the following— (a) the date of the notice; (b) in the case of an energy industry penalty notice— (i) that it is alleged that the energy licensee has engaged in conduct that constitutes an energy industry contravention; and (ii) the nature, and a brief description, of the alleged energy industry contravention; and (iii) the date on which the Commission formed the belief that the energy licensee engaged in the conduct -- 20 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 19 Authorised by the Chief Parliamentary Counsel that constitutes the alleged contravention; and (iv) the condition of the energy licensee's energy licence or the provision of the Code of Practice that it is alleged the energy licensee has contravened; (c) in the case of a wrongful disconnection penalty notice— (i) that it is alleged that the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention; and (ii) the nature, and a brief description, of the circumstances of the disconnection and the requirement of the Energy Retail Code with which it is alleged the energy retailer has not complied; and (iii) the date and time when the disconnection of the supply of electricity or gas to the premises occurred; and (iv) the address of the premises referred to in subparagraph (iii); and (v) the condition of the energy retailer's energy licence requiring the energy retailer to comply with the Energy Retail Code; (d) the amount of the energy industry penalty or wrongful disconnection penalty for the alleged contravention; -- 21 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 20 Authorised by the Chief Parliamentary Counsel (e) the manner in which the energy industry penalty or wrongful disconnection penalty may be paid; (f) the time (being not less than 28 days after the date on which the notice is served) within which the energy industry penalty or wrongful disconnection penalty must be paid; (g) that, if the amount of the energy industry penalty or wrongful disconnection penalty is paid before the end of the time specified in the notice, relevant enforcement action will not be taken by the Commission in relation to the alleged energy industry contravention or wrongful disconnection contravention unless the notice is withdrawn before the end of that time in accordance with section 54N; (h) that the person is entitled to disregard the notice and defend any proceeding relating to the alleged energy industry contravention or wrongful disconnection contravention; (i) any other prescribed particulars. 54K Service of penalty notices A penalty notice may be served on an energy licensee or energy retailer— (a) by delivering it personally to the registered office or usual or last known place of business of the energy licensee or energy retailer; or -- 22 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 21 Authorised by the Chief Parliamentary Counsel (b) by sending it by post to the energy licensee or energy retailer at its registered office or usual or last known place of business. 54L Commission must not take enforcement action while penalty notice on foot or until time for payment has expired On serving a penalty notice, the Commission must not take any relevant enforcement action in relation to the contravention for which the notice was served if— (a) the time for payment stated in the notice has not expired; and (b) the notice has not been withdrawn by the Commission in accordance with section 54N. 54M Late payment The Commission may accept payment of an energy industry penalty or a wrongful disconnection penalty even after the expiration of the time for payment stated in the relevant penalty notice if— (a) relevant enforcement action has not been taken in relation to the contravention to which the penalty relates; and (b) the notice has not been withdrawn by the Commission in accordance with section 54N. 54N Withdrawal of penalty notice (1) The Commission may withdraw a penalty notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the energy -- 23 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 22 Authorised by the Chief Parliamentary Counsel licensee or energy retailer served with the penalty notice. (2) A withdrawal notice may be served on an energy licensee or energy retailer— (a) by delivering it personally to the registered office or usual or last known place of business of the energy licensee or energy retailer; or (b) by sending it by post to the energy licensee or energy retailer at its registered office or usual or last known place of business. (3) A penalty notice may be withdrawn even if the relevant energy industry penalty or wrongful disconnection penalty has been paid. 54O Refund of penalty If a penalty notice is withdrawn in accordance with section 54N, the amount of any energy industry penalty or wrongful disconnection penalty paid must be refunded by the Minister and the Consolidated Fund is appropriated by the necessary extent. 54P Payment expiates contravention No enforcement action may be taken by the Commission against an energy licensee or energy retailer on whom a penalty notice was served in relation to an alleged energy industry contravention or alleged wrongful disconnection contravention if— (a) the energy industry penalty or wrongful disconnection penalty is paid within the time for payment stated in the notice and the notice is not withdrawn by the Commission within the time for -- 24 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 23 Authorised by the Chief Parliamentary Counsel payment stated in the notice in accordance with section 54N; or (b) the energy industry penalty or the wrongful disconnection penalty is accepted in accordance with section 54M. 54Q Payment not to have certain consequences (1) The payment of an energy industry penalty under this Part is not and must not be taken to be an admission of an energy industry contravention or an admission of liability for the purpose of any enforcement action taken in relation to the contravention. (2) The payment of a wrongful disconnection penalty under this Part is not and must not be taken to be an admission of a wrongful disconnection contravention or an admission of liability for the purpose of any enforcement action taken in relation to the contravention. 54R Multiple contraventions (1) Subject to subsection (3), if the conduct of an energy licensee constitutes 2 or more energy industry contraventions, an energy industry penalty notice may be served on the energy licensee in relation to each energy industry contravention. (2) Subject to subsection (3), if the conduct of an energy retailer constitutes 2 or more wrongful disconnection contraventions, a wrongful disconnection penalty notice may be served on the energy retailer in relation to each wrongful disconnection contravention. -- 25 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 24 Authorised by the Chief Parliamentary Counsel (3) An energy licensee or energy retailer is not liable to pay more than one energy industry penalty or one wrongful disconnection penalty in relation to the same conduct. 54S Proceedings (1) The Commission may apply to the Supreme Court for an order under subsection (3) in respect of an energy licensee or energy retailer on whom a penalty notice has been served if— (a) the Commission has withdrawn the notice under section 54N; or (b) the Commission has not withdrawn the notice and— (i) the energy licensee or energy retailer has not paid the energy industry penalty or the wrongful disconnection penalty before the time stated in the notice for payment; or (ii) the Commission has not accepted payment of the energy industry penalty or the wrongful disconnection penalty under section 54M. (2) The Court may make an order under subsection (3) if the Court is satisfied that— (a) in the case of an energy industry penalty notice, the energy licensee has engaged in conduct that constitutes an energy industry contravention; or (b) in the case of a wrongful disconnection penalty notice, the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention. -- 26 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 25 Authorised by the Chief Parliamentary Counsel (3) The Court may make all or any of the following orders— (a) an order directing the energy licensee or energy retailer on whom the penalty notice was served— (i) to pay to the Minister the energy industry penalty or the wrongful disconnection penalty; or (ii) to pay to the Minister an amount of up to the amount of any financial benefit that the energy licensee or energy retailer has obtained directly or indirectly and that is reasonably attributable to the energy industry contravention or wrongful disconnection contravention; (b) any order that the Court considers appropriate directing the energy licensee or energy retailer to compensate any person who has suffered loss or damage as a result of the energy industry contravention or wrongful disconnection contravention; (c) any other order that the Court considers appropriate. 54T Penalties and other amounts payable to the Minister must be paid into Consolidated Fund (1) An energy industry penalty or wrongful disconnection penalty is to be paid to the Minister who must then pay it into the Consolidated Fund. (2) Every energy industry penalty or wrongful disconnection penalty or other amount received by the Minister pursuant to an order -- 27 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 26 Authorised by the Chief Parliamentary Counsel of the Supreme Court under section 54S must be paid into the Consolidated Fund. Subdivision 3—Energy industry compliance and enforcement reporting 54U Publication of notices of enforcement action (1) The Commission must cause a notice of any enforcement action it takes in respect of an energy licensee to be published on its Internet site. (2) A notice under subsection (1) must state— (a) the name of the energy licensee; and (b) the nature of the enforcement action taken in respect of the energy licensee; and (c) the status of any proceeding commenced, or action taken, in relation to the enforcement action. (3) The Commission may also cause a notice that contains an update of the status of any proceeding commenced, or action taken, in relation to the enforcement action, to be published on its Internet site. 54V Compliance and enforcement report— energy retailers (1) The Commission must, as soon as practicable after 30 June (but on or before 30 November) in each year publish on its Internet site a report (a compliance and enforcement report) on the matters referred to in subsection (2) in respect of the period of 12 months ending with 30 June in that year. -- 28 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 27 Authorised by the Chief Parliamentary Counsel (2) A compliance and enforcement report must include the following (in relation to the period to which the report relates)— (a) a report on all enforcement action taken by the Commission in respect of each energy retailer; (b) a report on the extent to which each energy retailer has complied, or failed to comply, with its obligations under its energy licence conditions and the provisions of any Code of Practice; (c) a report on the performance of each energy retailer measured against the performance indicators; (d) any other matters the Commission considers appropriate. (3) The Commission, after each quarter must update the report in respect of that quarter. The Commission must do so before the end of the next quarter. (4) In this section— performance indicators means the indicators for the performance of an energy retailer determined by the Commission under section 54W; quarter means the period of 3 months ending on 30 September, 31 December, 31 March or 30 June in any year. 54W Performance indicators for compliance and enforcement reports For the purposes of a compliance and enforcement report under section 54V, the Commission must determine— -- 29 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 28 Authorised by the Chief Parliamentary Counsel (a) indicators for the performance of an energy retailer in relation to— (i) disconnections and reconnections of the supply of electricity or gas to the premises of customers; and (ii) the extent to which the energy retailer has complied with the deemed licence condition in section 40B of the Electricity Industry Act 2000 or section 48A of the Gas Industry Act 2000; and (iii) the number of wrongful disconnection penalty notices (if any) served on the energy retailer under Subdivision 2 and the status of any proceeding commenced, or action taken, in relation to those wrongful disconnection penalty notices; and (b) any other indicators for the performance of an energy retailer the Commission determines. 54X Reporting of systemic issues referred to Commission (1) A person administering a customer dispute resolution scheme may refer a matter in relation to an energy licensee to the Commission if the person believes that there is a problem with, or change in, the energy licensee's policy, practice or conduct that adversely affects, or has the potential to adversely affect, a number of customers (a systemic issue). (2) Without limiting subsection (1), a systemic issue includes any of the following— -- 30 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 29 Authorised by the Chief Parliamentary Counsel (a) a change to the energy licensee's billing, metering, supply or other systems; (b) an absence of a policy, procedure or guideline in relation to a matter; (c) inadequate policies, procedures or guidelines; (d) a failure to comply with applicable legislation (including any regulations) or licence conditions or Codes of Practice; (e) the conduct of the energy licensee's employee, agent, officer or contractor. (3) If a person administering a customer dispute resolution scheme refers a systemic issue to the Commission, the Commission must— (a) as soon as practicable after receiving the referral, provide a copy of the referral to the Minister; and (b) report to the Minister— (i) the action (if any) it proposes to take to address the systemic issue; and (ii) the time within which it intends to take that action; and (c) as soon as practicable after the period referred to in paragraph (b)(ii) ends, report to the Minister the outcome of the action referred to in paragraph (b)(i). (4) The Minister may direct the Commission to give a copy of a report given to the Minister under subsection (3)(c) to the person who made the referral under subsection (1). -- 31 of 41 -- Part 3—Amendment of Essential Services Commission Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 30 Authorised by the Chief Parliamentary Counsel (5) A person who refers a systemic issue to the Commission must also provide any information about the systemic issue that is available to the person to the Commission. (6) In this section— applicable legislation means— (a) this Act; or (b) the Electricity Industry Act 2000; or (c) the Gas Industry Act 2001; customer dispute resolution scheme means a customer dispute resolution scheme approved by the Commission referred to in— (a) section 28 of the Electricity Industry Act 2000; or (b) section 36 of the Gas Industry Act 2000.'. -- 32 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 31 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of Gas Industry Act 2001 18 Definitions In section 3 of the Gas Industry Act 2001 insert the following definition— "Code of Practice means a Code of Practice applying to the gas industry under Part 6 of the Essential Services Commission Act 2001 or under this Act;". 19 Objectives of the Commission In section 18 of the Gas Industry Act 2001— (a) in paragraph (b), for "competition." substitute "competition; and"; (b) after paragraph (b) insert— "(c) to promote protections for customers, including in relation to assisting customers who are facing payment difficulties.". 20 New sections 33 and 34 inserted After section 32 of the Gas Industry Act 2001 insert— "33 Condition to give information to Commission (1) A licence to sell gas by retail is taken to include a condition requiring the licensee to comply with this section. (2) The licensee must give to the Commission, for the purpose of enabling the Commission to perform its functions under Subdivision 3 of Division 2 of Part 7 of the Essential Services Commission Act 2001, the information specified by the Commission in the guidelines issued under subsection (4). -- 33 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 32 Authorised by the Chief Parliamentary Counsel (3) The licensee must give to the Commission the information referred to in subsection (2) in the manner and form (including by the date or dates) specified in the guidelines issued under subsection (4). (4) The Commission must prepare and issue guidelines for the purposes of this section. 34 Condition relating to advertising of enforcement action taken against licensee (1) A licence is taken to include a condition requiring the licensee, at the direction of the Commission, to publish a notice, approved by the Commission, containing the things set out in subsection (2) in a daily newspaper generally circulating in Victoria within the period specified by the Commission. (2) A notice published under subsection (1) must contain the following things— (a) a statement that enforcement action has been taken in respect of the licensee; (b) an explanation of the nature of the enforcement action; (c) the reason for the enforcement action; (d) the status of any proceeding commenced, or action taken, in relation to the enforcement action. (3) In this section— enforcement action has the same meaning as in section 3 of the Essential Services Commission Act 2001.". -- 34 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 33 Authorised by the Chief Parliamentary Counsel 21 New section 38A inserted After section 38 of the Gas Industry Act 2001 insert— "38A Variation to licence conditions— contravention of licence or Code of Practice (1) The Commission, by written notice served on the licensee, may vary a licence or licence condition without the consent of the licensee if the licensee has contravened or is contravening a condition of the licence or a provision of a Code of Practice. (2) A licence or licence condition that is varied under subsection (1) must specify the action that the licensee is required to take— (a) to rectify the contravention; and (b) to prevent any future contravention of the licence condition or provision of the Code of Practice. (3) The Commission must not vary a licence or the licence condition under this section unless the Commission has given the licensee an opportunity to make representations on the matter.". 22 Offer to domestic or small business customers (licensee standing offers) (1) In section 42(3) of the Gas Industry Act 2001, for "subsection (3A)" substitute "subsections (3A) and (3E) to (3G)". (2) After section 42(3A) of the Gas Industry Act 2001 insert— "(3B) The Minister, by Order published in the Government Gazette, may specify either or both of the following— -- 35 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 34 Authorised by the Chief Parliamentary Counsel (a) a date on which, or period within which, licensees may publish a notice referred to in subsection (3); (b) a date on which, or period within which, tariffs varied in accordance with subsection (3) must take effect. (3C) A date specified in an Order made in the exercise of the power under subsection (3B)(b) may be a date that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. (3D) A period specified in an Order made in the exercise of the power under subsection (3B)(b) may end on a day that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. (3E) If an Order made in the exercise of the power under subsection (3B)(a) is in effect, a licensee must not vary the tariffs under subsection (3) unless the notice referred to in subsection (3) is published on the date or within the period specified in the Order (as the case requires). (3F) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a date on which tariffs varied in accordance with subsection (3) must take effect, the tariffs take effect on the date specified in the Order. (3G) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a period within which tariffs varied in accordance with subsection (3) must take effect and the date specified in a -- 36 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 35 Authorised by the Chief Parliamentary Counsel notice under subsection (3) is within that period, the tariffs take effect on that date.". 23 Required tariff information and licensee contact information to be published in newspaper and Government Gazette (1) In the heading to section 42D of the Gas Industry Act 2001, after "newspaper" insert "and Government Gazette". (2) In section 42D(1) of the Gas Industry Act 2001, after "Victoria" insert "and in the Government Gazette". 24 Compensation for wrongful disconnection In section 48A(5) of the Gas Industry Act 2001, in the definition of prescribed amount, in paragraph (b), for "$250" substitute "$500". 25 Regulation of exit fees (1) Before section 48C(1) of the Gas Industry Act 2001 insert— "(1AA) Without limiting the generality of sections 28(2) or (3) or 29, the conditions to which a licence to sell gas by retail is subject include a condition prohibiting, on and after the commencement of section 25 of the Energy Legislation Amendment (Consumer Protection) Act 2015, the licensee from entering into a contract for the supply or sale of gas by retail between the licensee and a small retail customer that imposes an exit fee on the termination of the contract unless— (a) the contract is a fixed-term retail contract; and -- 37 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 36 Authorised by the Chief Parliamentary Counsel (b) the following will not change during the term of the contract— (i) any tariffs, charges and fees for gas supplied under that contract; (ii) any discount which applies to tariffs, charges and fees for gas supplied under that contract; (iii) any terms and conditions that apply to gas supplied under that contract.". (2) In section 48C(1) of the Gas Industry Act 2001— (a) omit "prohibit or"; (b) for "contract for the supply or sale of gas by retail to a small retail customer" substitute "fixed-term retail contract"; (c) after "exit fee" insert "that is not otherwise prohibited under subsection (1AA)". (3) For section 48C(3) of the Gas Industry Act 2001 substitute— "(3) An Order under subsection (1) may also provide that a fixed-term retail contract is to include a condition providing that the small retail customer may terminate the contract by giving the required period of notice to the licensee.". (4) In section 48C(4) of the Gas Industry Act 2001, for "contract for the supply or sale of gas" substitute "fixed-term retail contract". -- 38 of 41 -- Part 4—Amendment of Gas Industry Act 2001 Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 37 Authorised by the Chief Parliamentary Counsel (5) In section 48C(9) of the Gas Industry Act 2001 insert the following definition— "fixed-term retail contract means a contract for the supply or sale of gas by retail between a licensee and a small retail customer that contains a term or condition that specifies— (a) the date on which the contract will end; or (b) a method for calculating the date on which the contract will end and which is ascertainable at the time the contract is entered;". 26 Objects In section 48F of the Gas Industry Act 2001, for "The objects" substitute "Without limiting section 18(c), the objects". 27 Statute law revision In section 147(1) and (2) of the Gas Industry Act 2001, for "Department of Natural Resources and Environment" substitute "Department of Environment, Land, Water and Planning". -- 39 of 41 -- Part 5—Repeal of amending Act Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 38 Authorised by the Chief Parliamentary Counsel Part 5—Repeal of amending Act 28 Repeal of amending Act This Act is repealed on 1 September 2017. 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). ═══════════════ -- 40 of 41 -- Endnotes Energy Legislation Amendment (Consumer Protection) Act 2015 No. 49 of 2015 39 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: 2 September 2015 Legislative Council: 17 September 2015 The long title for the Bill for this Act was "A Bill for an Act to amend the Electricity Industry Act 2000, the Essential Services Commission Act 2001 and the Gas Industry Act 2001 and for other purposes." -- 41 of 41 --