National Electricity (Victoria) Amendment Act 2007
National Electricity (Victoria) Amendment Act
2007
No. 66 of 2007
TABLE OF PROVISIONS
Section Page
1 Purpose 1
2 Commencement 2
3 New definitions inserted 2
4 New Part 3 inserted 4
PART 3—MODIFICATION OF APPLICATION OF THE
NATIONAL ELECTRICITY LAW 4
13 Definitions 4
14 NEL provisions providing for access to distribution
services do not apply during specified period 4
15 Modification of application of National Electricity Law
and National Electricity Rules by Order 5
16 Role of National Electricity Law and Rules in relation
to distribution determinations and Victorian distribution
pricing determinations 7
5 New Part 4 inserted 9
PART 4—ECONOMIC REGULATORY DISTRIBUTION
FUNCTIONS TRANSITIONAL ARRANGEMENTS 9
17 Definitions 9
18 Meaning of distribution services 11
19 Meaning of relevant regulatory duty 12
20 Meaning of relevant regulatory function or power 13
21 Specified distribution licence conditions 13
22 Specified ESC code or guideline provisions 14
23 Certain ESC regulatory functions, powers and duties
conferred and imposed on the AER 14
24 ESC ceases to have certain distribution system related
regulatory functions, powers and duties 15
25 Enforcement of Victorian distribution pricing
determination and distribution licences by AER 16
26 ESC cannot enforce Victorian pricing determination
or certain distribution licence conditions 17
27 AER may request amendment of distribution licences
and distribution service related code or guideline 18
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Section Page
28 Provision of information and assistance by ESC to
the AER 18
29 Appeals against certain decisions or actions of the
AER 19
6 Statute law revision 22
7 Repeal of Act 22
═══════════════
ENDNOTES 23
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Victoria
National Electricity (Victoria)
Amendment Act 2007†
No. 66 of 2007
[Assented to 11 December 2007]
The Parliament of Victoria enacts:
1 Purpose
The main purpose of this Act is to amend the
National Electricity (Victoria) Act 2005 to—
(a) provide for the modification of the
application of the National Electricity Law
and the National Electricity Rules (as laws of
Victoria) for a limited period; and
(b) provide for transitional arrangements relating
to the administration and enforcement by the
Australian Energy Regulator of the current
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s. 2
distribution pricing determination made by
the Essential Services Commission and
certain conditions of distribution licences.
2 Commencement
(1) Subject to this section, this Act (except section 6)
comes into operation on a day or days to be
proclaimed.
(2) Section 6 comes into operation on the day after
the day on which this Act receives the Royal
Assent.
(3) If a provision of this Act does not come into
operation before 1 January 2009, it comes into
operation on that day.
3 New definitions inserted
In section 3(1) of the National Electricity
(Victoria) Act 2005—
See:
Act No.
8/2005
and
amending
Act No.
28/2007.
LawToday:
www.
legislation.
vic.gov.au
(a) before the definition of National Electricity
(Victoria) Law insert—
"2006–2010 distribution pricing
determination—
(a) means the determination of the
ESC under Part 3 of the Essential
Services Commission Act 2001
made on 18 October 2005
applying to charges for connection
to, and the use of, distribution
systems in Victoria (as amended
in accordance with the decision of
the appeal panel (within the
meaning of the Essential Services
Commission Act 2001) on
17 February 2006); and
(b) includes amendments made to that
determination before the
commencement of section 5 of the
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National Electricity (Victoria)
Amendment Act 2007;
Essential Services Commission or ESC
means the Essential Services
Commission established under
section 7 of the Essential Services
Commission Act 2001;";
(b) in the definition of National Electricity
(Victoria) Regulations, for "Act." substitute
"Act;";
(c) after the definition of National Electricity
(Victoria) Regulations insert—
"Tariff Order has the same meaning as in the
Electricity Industry Act 2000;
Victorian distribution pricing determination
means—
(a) the 2006–2010 distribution pricing
determination as amended from
time to time; or
(b) a determination under Part 3 of the
Essential Services Commission
Act 2001 or the Tariff Order
applying to charges for connection
to, and the use of, distribution
systems in Victoria that revokes
and substitutes—
(i) the 2006–2010 distribution
pricing determination; or
(ii) a determination applying to
charges for connection to,
and the use of, distribution
systems in Victoria—
as amended from time to time.".
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4 New Part 3 inserted
After section 12 of the National Electricity
(Victoria) Act 2005 insert—
"__________________
PART 3—MODIFICATION OF APPLICATION
OF THE NATIONAL ELECTRICITY LAW
13 Definitions
In this Part—
NEL means the National Electricity Law set
out in the Schedule to the National
Electricity (South Australia) Act 1996
of South Australia as in force for the
time being;
Victorian distribution pricing determination
end date means—
(a) 31 December 2010; or
(b) if a Victorian distribution pricing
determination provides that it will
cease to have effect on a later
date—that date.
14 NEL provisions providing for access to
distribution services do not apply during
specified period
(1) Despite section 6, during the specified
period—
(a) section 2A, Division 3B of Part 6,
Part 10 and section 157 of the NEL
(as each of those provisions apply to
access to services provided by means of
a distribution system, or connection to a
distribution system) do not apply as a
law of Victoria; and
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(b) a Rule made for the purposes of any
provision referred to in paragraph (a)
does not have the force of law in
Victoria.
(2) In this section—
specified period means the period—
(a) commencing on the day section 46
of the National Electricity (South
Australia) (National Electricity
Law—Miscellaneous
Amendments) Amendment Act
2007 of South Australia
commences operation; and
(b) ending on the Victorian
distribution pricing determination
end date.
15 Modification of application of National
Electricity Law and National Electricity
Rules by Order
(1) The Minister, by Order published in the
Government Gazette, may declare that,
despite section 6—
(a) a provision of the NEL that relates to
the economic regulation of the
provision of distribution services—
(i) does not apply as a law of Victoria
until a date specified in the Order
(being a date that is not after the
Victorian distribution pricing
determination end date);
(ii) ceases to apply as a law of
Victoria for the period specified in
the Order (not being a period that
ends after the Victorian
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distribution pricing determination
end date);
(iii) applies as a law of Victoria with
any modifications that are
specified in the Order for the
period specified in the Order
(not being a period that ends after
the Victorian distribution pricing
determination end date);
(b) a provision of the National Electricity
Rules that relates to the economic
regulation of the provision of
distribution services—
(i) does not have the force of law in
Victoria until a date specified in
the Order (being a date that is not
after the Victorian distribution
pricing determination end date);
(ii) ceases to have the force of law in
Victoria for the period specified in
the Order (not being a period that
ends after the Victorian
distribution pricing determination
end date);
(iii) has the force of law in Victoria
with any modifications that are
specified in the Order for the
period specified in the Order
(not being a period that ends after
the Victorian distribution pricing
determination end date).
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(2) Despite section 6—
(a) the NEL applies as a law of Victoria
subject to any Order under
subsection (1) that is in force;
(b) the National Electricity Rules have the
force of law in Victoria subject to any
Order under subsection (1) that is in
force.
16 Role of National Electricity Law and
Rules in relation to distribution
determinations and Victorian distribution
pricing determinations
(1) To avoid doubt, nothing in this Part is to be
taken as preventing the making of a
distribution determination under—
(a) the NEL as it applies as a law of
Victoria under this Act; and
(b) the National Electricity Rules as they
have the force of law in Victoria under
this Act—
that takes effect after the Victorian
distribution pricing determination end date.
(2) To avoid doubt, nothing in this Part is to be
taken as preventing the AER (before, on or
after the Victorian distribution pricing
determination end date) performing a
function or duty, or exercising a power, for
the purposes of making a distribution
determination under—
(a) the NEL as it applies as a law of
Victoria under this Act; and
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(b) the National Electricity Rules as they
have the force of law in Victoria under
this Act—
that takes effect after the Victorian
distribution pricing determination end date.
(3) Despite anything to the contrary in the
National Electricity (Victoria) Law or the
National Electricity Rules, the provisions of
that Law and those Rules that relate to the
economic regulation of the provision of
distribution services do not apply to a
Victorian distribution pricing determination.
(4) To avoid doubt—
(a) the AER cannot perform any function
or duty, or exercise any power, under a
provision of the National Electricity
(Victoria) Law or the National
Electricity Rules that relates to the
economic regulation of the provision of
distribution services under a Victorian
distribution pricing determination; and
(b) a Victorian distribution pricing
determination is not a distribution
determination for the purposes of the
National Electricity (Victoria) Law or
the National Electricity Rules.
(5) In this section—
distribution services has the same meaning
as in Chapter 10 of the National
Electricity Rules.".
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5 New Part 4 inserted
At the end of the National Electricity (Victoria)
Act 2005 insert—
"__________________
PART 4—ECONOMIC REGULATORY
DISTRIBUTION FUNCTIONS TRANSITIONAL
ARRANGEMENTS
17 Definitions
In this Part—
AMI Order means—
(a) the initial AMI Order; or
(b) any other Order made by the
Governor in Council under
section 46D of the Electricity
Industry Act 2000 that is in force
immediately before the
transitional period commencement
date;
distribution licence has the same meaning as
in the Electricity Industry Act 2000;
distribution services has the meaning given
by section 18;
initial AMI Order means the Order—
(a) made by the Governor in Council
under sections 15A and 46D of the
Electricity Industry Act 2000;
and
(b) published in the Government
Gazette on 28 August 2007;
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relevant distributor means—
(a) a distribution company within the
meaning of the Electricity
Industry Act 2000; or
(b) a person who—
(i) engages in the distribution or
supply of electricity; and
(ii) is exempted under an Order
under section 17 of the
Electricity Industry Act
2000 from the requirement to
obtain a licence under that
Act in respect of that
activity;
relevant regulatory duty has the meaning
given by section 19;
relevant regulatory function or power has
the meaning given by section 20;
relevant regulatory law or instrument
means—
(a) the Essential Services
Commission Act 2001; or
(b) the Electricity Industry Act
2000; or
(c) any regulation made under the
Essential Services Commission
Act 2001 or the Electricity
Industry Act 2000; or
(d) the Tariff Order; or
(e) an AMI Order; or
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(f) an Order made by the Governor in
Council (other than the Tariff
Order or an AMI Order) under the
Electricity Industry Act 2000; or
(g) the 2006–2010 distribution pricing
determination; or
(h) a distribution licence; or
(i) a code or guideline made by the
ESC;
specified distribution licence condition
means a condition of a distribution
licence specified by Order under
section 21;
specified ESC code or guideline provision
means a provision of a code or
guideline published by the ESC
specified by Order under section 22;
transitional period commencement date
means the date on which section 5 of
the National Electricity (Victoria)
Amendment Act 2007 comes into
operation.
18 Meaning of distribution services
(1) Distribution services are services provided
by means of, or in connection with, a
distribution system.
(2) Without limiting subsection (1), distribution
services include—
(a) services provided relating to the
connection to, and use of, a distribution
system; and
(b) services provided relating to
augmentations to a distribution system;
and
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(c) metering services; and
(d) services to facilitate access to services
provided by means of, or in connection
with, a distribution system; and
(e) the supply of electricity from a
distribution system; and
(f) services to facilitate the distribution of
electricity; and
(g) public lighting services.
19 Meaning of relevant regulatory duty
A relevant regulatory duty is—
(a) a duty the ESC had, immediately before
the transitional period commencement
date, under a relevant regulatory law or
instrument that relates to the economic
regulation of the provision of
distribution services by a relevant
distributor other than a duty—
(i) to (or refuse to) grant, vary,
revoke, or approve the transfer of,
a distribution licence; or
(ii) to make or amend a code or
guideline that relates to the
provision of distribution services;
or
(b) a duty the ESC has under—
(i) a specified distribution licence
condition; or
(ii) a specified ESC code or guideline
provision.
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20 Meaning of relevant regulatory function
or power
A relevant regulatory function or power is—
(a) a function or power the ESC had,
immediately before the transitional
period commencement date, under a
relevant regulatory law or instrument
that relates to the economic regulation
of the provision of distribution services
by a relevant distributor other than a
function or power—
(i) to (or refuse to) grant, vary,
revoke, or approve the transfer of,
a distribution licence; or
(ii) to make or amend a code or
guideline that relates to the
provision of distribution services;
or
(b) a function or power the ESC has
under—
(i) a specified distribution licence
condition; or
(ii) a specified ESC code or guideline
provision.
21 Specified distribution licence conditions
The Minister, by Order published in the
Government Gazette, may specify a
condition of a distribution licence that—
(a) relates to the provision of distribution
services and does not relate to the
economic regulation of the provision of
those services; and
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(b) confers a function or power, or imposes
a duty, on the ESC—
as a specified distribution licence condition
if the Minister considers that the AER must
be conferred that function or power, or be
subject to that duty, for the purposes of this
Part.
22 Specified ESC code or guideline
provisions
The Minister, by Order published in the
Government Gazette, may specify a
provision of a code or guideline published by
the ESC that—
(a) relates to the provision of distribution
services and does not relate to the
economic regulation of the provision of
those services; and
(b) confers a function or power, or imposes
a duty, on the ESC—
as a specified ESC code or guideline
provision if the Minister considers that the
AER must be conferred that function or
power, or be subject to that duty, for the
purposes of this Part.
23 Certain ESC regulatory functions, powers
and duties conferred and imposed on the
AER
(1) On and from the transitional period
commencement date the AER is, by force of
this subsection—
(a) conferred a relevant regulatory function
or power; and
(b) subject to a relevant regulatory duty.
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(2) In addition, the AER has the functions and
powers conferred, and is subject to the duties
imposed, on it under this Part.
(3) For the purposes of this Part, on and from the
transitional period commencement date,
every reference to the Essential Services
Commission (by whatever name described)
in—
(a) a relevant regulatory law or instrument
(as that law or instrument relates to the
economic regulation of the provision of
distribution services by a relevant
distributor); or
(b) a specified distribution licence
condition; or
(c) a specified ESC code or guideline
provision—
is to be taken to be a reference to the AER
unless the context otherwise requires.
24 ESC ceases to have certain distribution
system related regulatory functions,
powers and duties
Despite anything to the contrary in any Act
or instrument, on the transitional period
commencement date the ESC, by force of
this section, ceases to have any function or
power, or to be subject to any duty, under—
(a) a relevant regulatory law or instrument
(as that law or instrument relates to the
economic regulation of the provision of
distribution services by a relevant
distributor); or
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(b) a specified distribution licence
condition; or
(c) a specified ESC code or guideline
provision.
25 Enforcement of Victorian distribution
pricing determination and distribution
licences by AER
(1) This section applies if a relevant distributor
has contravened or is contravening or, in the
opinion of the AER, is likely to contravene,
as the case requires—
(a) a Victorian distribution pricing
determination; or
(b) a condition of a distribution licence that
requires compliance with—
(i) a relevant regulatory law or
instrument (as that law or
instrument relates to the economic
regulation of the provision of
distribution services by the
relevant distributor); or
(ii) a code or a guideline published by
the ESC that relates to the
economic regulation of the
provision of distribution services
by the distributor—
and the AER considers that the contravention
or likely contravention is not of a trivial
nature.
(2) The AER may serve a provisional order or a
final order on the relevant distributor
requiring the distributor—
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(a) to comply with—
(i) a Victorian distribution pricing
determination; or
(ii) the relevant distribution licence
condition; and
(b) if a contravention has already occurred,
to take such actions as are specified in
the order to rectify the contravention.
(3) Section 53(2) to (9) and section 54 of the
Essential Services Commission Act 2001
apply as if—
(a) reference in those sections to a
provisional order or a final order were a
reference to a provisional order or a
final order made and served under this
section; and
(b) a reference to the Commission were a
reference to the AER.
26 ESC cannot enforce Victorian pricing
determination or certain distribution
licence conditions
On and from the transitional period
commencement date, the ESC cannot make
or serve a provisional order or a final order
under section 53 of the Essential Services
Commission Act 2001 in respect of a
contravention or likely contravention by a
relevant distributor of, as the case requires—
(a) a Victorian distribution pricing
determination; or
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(b) a condition of a distribution licence that
requires compliance with—
(i) a relevant regulatory law or
instrument (as that law or
instrument relates to the economic
regulation of the provision of
distribution services by a relevant
distributor); or
(ii) a code or a guideline published by
the ESC that relates to the
economic regulation of the
provision of distribution services
by a distributor.
27 AER may request amendment of
distribution licences and distribution
service related code or guideline
(1) The AER may request the ESC to amend—
(a) a distribution licence; or
(b) a code or guideline published by the
ESC that relates to the provision of
distribution services.
(2) On receiving a request under subsection (1),
the ESC may, after consulting with the AER,
amend the distribution licence, code or
guideline (as the case may be).
28 Provision of information and assistance by
ESC to the AER
(1) Despite any other Act or law, the ESC is
authorised, on its own initiative or at the
request of the AER—
(a) to provide the AER with such
information (including information
given in confidence) in the possession
or control of the ESC that is reasonably
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required by the AER for the purposes
of this Part; and
(b) to provide the AER with such other
assistance as is reasonably required by
the AER to perform a function or duty,
or exercise a power, conferred or
imposed under this Part.
(2) Nothing done, or authorised to be done, by
the ESC in acting under subsection (1)—
(a) constitutes a breach of, or default
under, an Act or other law; or
(b) constitutes a breach of, or default
under, a contract, agreement,
understanding or undertaking; or
(c) constitutes a breach of a duty of
confidence (whether arising by
contract, in equity or by custom) or in
any other way; or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation
or fulfils any condition that allows a
person to terminate an agreement or
obligation, or gives rise to any other
right or remedy; or
(f) releases a surety or any other obligee
wholly or in part from an obligation.
29 Appeals against certain decisions or
actions of the AER
(1) This section applies if the AER, in exercise
or performance, or purported exercise or
performance, of a relevant regulatory
function or power conferred on it under
section 23, makes—
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(a) a requirement under section 37 of the
Essential Services Commission Act
2001; or
(b) a decision to disclose information or the
contents of a document given to the
AER by a person under a notice given
by the AER under section 38(2)(c) or
38(2)(d) of the Essential Services
Commission Act 2001; or
(c) a determination that—
(i) revokes and substitutes the 2006–
2010 distribution pricing
determination or a subsequent
determination applying to charges
for connection to, and the use of,
distribution systems in Victoria;
or
(ii) amends—
(A) the 2006–2010 distribution
pricing determination; or
(B) a subsequent determination
applying to charges for
connection to, and the use of,
distribution systems in
Victoria.
(2) A person who is aggrieved by the
requirement, decision or determination may
appeal to the Tribunal against the making of
the requirement, decision or determination.
(3) Sections 55 and 56 of the Essential Services
Commission Act 2001 apply to an appeal
under this section as if—
(a) a reference in those sections to section
55(1) were a reference to subsection (1)
of this section; and
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(b) in section 55(3) for "the Registrar"
there were substituted "the Tribunal";
and
(c) section 56(1) to (3) and (5) were
omitted; and
(d) a reference in those sections to the
Commission were a reference to the
AER; and
(e) a reference in those sections to an
appeal panel were a reference to the
Tribunal.
(4) Part 3 of the Essential Services Commission
Regulations 2001 applies to an appeal under
this section as if—
(a) regulations 10 and 11 of that Part were
omitted; and
(b) a reference in that Part to the
Commission were a reference to the
AER; and
(c) a reference in that Part to an appeal
panel were a reference to the Tribunal;
and
(d) a reference in that Part to the Registrar
were a reference to the Tribunal.
(5) In this section—
Tribunal means the Australian Competition
Tribunal referred to in the Trade
Practices Act 1974 of the
Commonwealth and includes a member
of the Tribunal or a Division of the
Tribunal performing functions of the
Tribunal.".
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s. 6
6 Statute law revision
In section 11(2) of the National Electricity
(Victoria) Act 2005, in the definition of
VENCorp, for "established" substitute
"continued".
7 Repeal of Act
This Act is repealed on 1 January 2010.
═══════════════
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Endnotes
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 1 November 2007
Legislative Council: 21 November 2007
The long title for the Bill for this Act was "A Bill for an Act to amend the
National Electricity (Victoria) Act 2005 and for other purposes."
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