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This is a Bill, not an Act. For current law, see the Acts databases.
Essential Services Commission Amendment
(Governance, Procedural and Administrative
Improvements) Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 3
3 Principal Act 3
Part 2--Amendment of Essential Services Commission Act 2001 4
Division 1--VCAT review jurisdiction amendments 4
4 Definitions 4
5 Restriction on disclosure of confidential information 4
6 Reports 5
7 Division heading amended 5
8 VCAT review 5
9 Section 56 substituted and new section 56A inserted 6
10 Sections 57, 58 and 59 repealed 10
11 Regulations 10
Division 2--Acting Chairperson amendments 10
12 Acting appointment 10
13 Meetings of the Commission 11
Division 3--Regulated industries public reporting amendments 11
14 New section 10AAA inserted 11
Division 4--Miscellaneous amendments 11
15 Functions of the Commission 11
16 Restriction on disclosure of confidential information 12
17 Supreme Court--limitation of jurisdiction 12
18 Review 12
19 Statute law revision 12
Division 5--Transitional provisions 13
20 Section 69 substituted 13
i
Clause Page
Part 3--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 15
21 New Part 5AB of Schedule 1 inserted 15
Part 4--Consequential amendment of other Acts 17
Division 1--Accident Towing Services Act 2007 17
22 Recommendations 17
Division 2--Electricity Industry Act 2000 17
23 Continuation of charges relating to distribution system 17
Division 3--Grain Handling and Storage Act 1995 17
24 Procedure if agreement cannot be reached 17
25 Applications for review 17
Division 4--National Electricity (Victoria) Act 2005 19
26 Appeals against certain decisions or actions of the AER 19
Division 5--National Gas (Victoria) Act 2008 20
27 Appeals against certain decisions or actions of the AER 20
Division 6--Port Management Act 1995 21
28 Giving of show cause notice to non-compliant provider of
prescribed services 21
Part 5--Repeal of amending Act 22
29 Repeal of amending Act 22
═════════════
Endnotes 23
1 General information 23
ii
Essential Services Commission
Amendment (Governance, Procedural
and Administrative Improvements)
Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Essential Services
Commission Act 2001--
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Essential Services Commission Amendment (Governance, Procedural and
Administrative Improvements) Act 2019
No. of 2019
Part 1--Preliminary
(i) to repeal provisions for appeal panels to
hear appeals in relation to requirements,
decisions or determinations of the
Essential Services Commission
made under the Essential Services
Commission Act 2001; and
(ii) to confer review jurisdiction on VCAT
in relation to requirements, decisions or
determinations of the Essential Services
Commission made under the Essential
Services Commission Act 2001; and
(iii) to make provision for the Minister to
appoint a person to act as Chairperson
of the Essential Services Commission;
and
(iv) to make further provision for the
Essential Services Commission to
report on the market structure and
performance of regulated industries;
and
(v) to provide for a review of the operation
of the Essential Services Commission
Act 2001 by 2026; and
(b) to amend the Victorian Civil and
Administrative Tribunal Act 1998 to
provide for variations from VCAT's
standard powers and the use of material in
determining applications for review under
the Essential Services Commission
Act 2001; and
(c) to make amendments to other Acts as a
consequence of the repeal of the provisions
providing for appeal panels to hear appeals
in relation to requirements, decisions or
determinations of the Essential Services
Commission.
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Essential Services Commission Amendment (Governance, Procedural and
Administrative Improvements) Act 2019
No. of 2019
Part 1--Preliminary
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision referred to in subsection (1) does
not come into operation before 1 August 2020,
it comes into operation on that day.
3 Principal Act
In this Act, the Essential Services Commission
Act 2001 is called the Principal Act.
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Essential Services Commission Amendment (Governance, Procedural and
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Part 2--Amendment of Essential Services Commission Act 2001
Part 2--Amendment of Essential Services
Commission Act 2001
Division 1--VCAT review jurisdiction amendments
4 Definitions
In section 3 of the Principal Act--
(a) insert the following definition--
"application means an application under
section 55;";
(b) the definitions of appeal, appeal panel and
Registrar are repealed.
5 Restriction on disclosure of confidential information
(1) In section 38(2)(e) of the Principal Act, for
"notice of appeal is lodged" substitute
"application is made to VCAT".
(2) In section 38(3)(d) of the Principal Act, for
"the members of any appeal panel hearing an
appeal" substitute "VCAT for the purposes of
a proceeding before VCAT under this Act".
(3) For section 38(4) of the Principal Act
substitute--
"(4) If an application is made under section 55
and the application is withdrawn or the
proceeding on the application is dismissed
by VCAT, the Commission may disclose any
information, or the contents of any
document, that was the subject of the
application in the manner set out in the
notice given under subsection (2)(c).
(4A) If an application is made under section 55
and VCAT sets aside the requirement
and makes a decision in accordance with
section 56(b)(ii)(B), the Commission may
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Part 2--Amendment of Essential Services Commission Act 2001
disclose anything that VCAT permits it to
disclose in the manner specified by VCAT.".
6 Reports
In section 45(3) of the Principal Act, for
"an appeal panel states that it is imposing a
restriction under section 56(7)(b)(i)" substitute
"VCAT prohibits or restricts the disclosure of
the information under section 56(b)(ii)".
7 Division heading amended
In the heading to Division 3 of Part 7 of
the Principal Act, for "Appeals" substitute
"Review by VCAT".
8 VCAT review
(1) For the heading to section 55 of the Principal Act
substitute--
"VCAT review".
(2) In section 55(1) of the Principal Act--
(a) for "who is aggrieved" substitute "whose
interests are affected";
(b) for "appeal against the requirement, decision
or determination in accordance with this
section" substitute "apply to VCAT for a
review of the requirement, decision or
determination on a ground specified under
subsection (2)".
(3) In section 55(1A) of the Principal Act--
(a) for "appeal against" (where first occurring)
substitute "application for review of";
(b) for "appeal against" (where secondly
occurring) substitute "apply to VCAT
for a review of".
(4) In section 55(2) of the Principal Act, for "appeal"
substitute "application to VCAT".
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Part 2--Amendment of Essential Services Commission Act 2001
(5) In section 55(3) of the Principal Act--
(a) for "lodge notice of the appeal with the
Registrar" substitute "make an application
to VCAT";
(b) in paragraphs (a), (b), (c), (d), (e) and (f), for
"appeal" substitute "application".
(6) In section 55(4) and (5) of the Principal Act--
(a) for "lodges an appeal" substitute "makes an
application";
(b) for "the appeal" substitute "the application".
(7) Section 55(6), (7), (8), (9) and (10) of the
Principal Act are repealed.
(8) At the foot of section 55 of the Principal Act
insert--
"Note
In the case of an application under subsection (1)(c), (d),
(e), (f) or (g), see section 50(1) of the Victorian Civil
and Administrative Tribunal Act 1998.".
9 Section 56 substituted and new section 56A inserted
For section 56 of the Principal Act substitute--
"56 Proceedings for review by VCAT
VCAT may--
(a) on an application under section
55(1)(a)--
(i) affirm the decision of the
Commission; or
(ii) cancel the requirement; or
(iii) vary the requirement; or
(iv) set aside the requirement and
remit it to the Commission for
amendment of the requirement in
accordance with the decision and
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Part 2--Amendment of Essential Services Commission Act 2001
recommendations (if any) of
VCAT; and
(b) on an application under section
55(1)(b)--
(i) affirm the decision of the
Commission; or
(ii) set aside the decision of the
Commission and substitute a new
decision for it which--
(A) prohibits disclosure by
the Commission of the
information or document
that is the subject of the
application; or
(B) restricts the intended
disclosure by the
Commission of the
information or document
that is the subject of the
application within the limits
specified by VCAT; and
(c) on an application under section 55(1)(c)
on the ground specified in section
55(2)(c)(i)--
(i) determine whether or not there
has been bias; and
(ii) if it determines that there
has been bias, set aside the
determination of the Commission
and remit it to the Commission for
amendment of the determination
in accordance with the decision
and recommendations (if any) of
VCAT; and
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Part 2--Amendment of Essential Services Commission Act 2001
(d) on an application under section 55(1)(c)
on the ground specified in section
55(2)(c)(ii)--
(i) affirm the determination of the
Commission; or
(ii) vary the determination of the
Commission in order to correct
the error; or
(iii) set aside the determination of
the Commission and remit it to
the Commission for amendment
of the determination in
accordance with the decision
and recommendations (if any)
of VCAT; and
(e) on an application under section
55(1)(d)--
(i) affirm the decision of the
Commission; or
(ii) vary the decision of the
Commission; or
(iii) set aside the decision of the
Commission and remit it to the
Commission for amendment
of the decision and the final
published report which contains
the decision in accordance with
the decision and recommendations
(if any) of VCAT; and
(f) on an application under section
55(1)(e)--
(i) affirm the Commission port
Pricing Order decision; or
(ii) vary the Commission port
Pricing Order decision; or
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Administrative Improvements) Act 2019
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Part 2--Amendment of Essential Services Commission Act 2001
(iii) set aside the Commission port
Pricing Order decision and remit it
to the Commission for amendment
of the decision in accordance with
the decision and recommendations
(if any) of VCAT; and
(g) on an application under section
55(1)(f)--
(i) affirm the decision of the
Commission under section 69
of the Delivering Victorian
Infrastructure (Port of
Melbourne Lease Transaction)
Act 2016; or
(ii) vary the decision; or
(iii) set aside the decision and remit it
to the Commission for amendment
of the decision in accordance with
the decision and recommendations
(if any) of VCAT; and
(h) on an application under section
55(1)(g)--
(i) affirm the determination of the
Commission under section 49ZA
of the Port Management
Act 1995; or
(ii) vary the determination; or
(iii) set aside the determination and
remit it to the Commission for
amendment of the determination
in accordance with the decision
and recommendations (if any) of
VCAT.
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Part 2--Amendment of Essential Services Commission Act 2001
56A Commission to give effect to VCAT
decisions
The Commission must take such action as
is necessary to give effect to a decision of
VCAT.".
10 Sections 57, 58 and 59 repealed
Sections 57, 58 and 59 of the Principal Act are
repealed.
11 Regulations
(1) Section 65(2) of the Principal Act is repealed.
(2) In section 65(3)(e) and (f) of the Principal Act
omit "or the Registrar".
Division 2--Acting Chairperson amendments
12 Acting appointment
(1) In section 20(1) and (4)(a) of the Principal Act,
for "Governor in Council" substitute "Minister".
(2) In section 20(3) of the Principal Act--
(a) for "Governor in Council" substitute
"Minister";
(b) in paragraph (a), after "Chairperson" insert
"(other than the person's remuneration and
allowances)".
(3) For section 20(5) of the Principal Act
substitute--
"(5) While a person is acting in the office of
Chairperson in accordance with subsection
(1), the person--
(a) has and may exercise all the powers
and perform all the functions and duties
of that office under this Act; and
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Essential Services Commission Amendment (Governance, Procedural and
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Part 2--Amendment of Essential Services Commission Act 2001
(b) is entitled to be paid the remuneration
and allowances which the Chairperson
would be entitled to when performing
the duties and functions of the office of
Chairperson; and
(c) is not restricted from engaging in any
paid employment outside that office.".
13 Meetings of the Commission
In section 28(2) of the Principal Act, for
"member" substitute "person".
Division 3--Regulated industries public reporting
amendments
14 New section 10AAA inserted
After section 10 of the Principal Act insert--
"10AAA Reporting on regulated industry market
structure and performance
Without limiting section 10 but subject to
this Act and any empowering instrument,
the Commission may publicly report on the
market structure and performance of a
regulated industry.".
Division 4--Miscellaneous amendments
15 Functions of the Commission
In section 10(i) of the Principal Act, for
"or under Part VI of the Transport (Compliance
and Miscellaneous) Act 1983" substitute
"the Commercial Passenger Vehicle Industry
Act 2017".
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Essential Services Commission Amendment (Governance, Procedural and
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Part 2--Amendment of Essential Services Commission Act 2001
16 Restriction on disclosure of confidential information
(1) In section 38(1)(a)(i) of the Principal Act--
(a) for "37, 37A or" substitute "37 or 37A,
or section";
(b) after "51" insert "before its expiry under
section 47 on 31 December 2007".
(2) At the foot of section 38(1)(a)(i) of the Principal
Act insert--
"Note
Part 6 of the Essential Services Commission Act 2001, as
originally enacted, included sections 47 and 51. Section 47,
as amended by section 26 of the Energy Legislation
(Amendment) Act 2004, provided for the expiry of Part 6
on 31 December 2007.".
17 Supreme Court--limitation of jurisdiction
In section 63 of the Principal Act, for
"sections 44(7), 51(7) and" substitute "section".
18 Review
(1) In section 66(1) of the Principal Act, for
"31 December 2016" substitute "31 December
2026".
(2) In section 66(3) of the Principal Act, for
"within 7 sitting days of that House after the
expiry of the period specified in subsection (1)"
substitute "by the first sitting day after
30 June 2027".
19 Statute law revision
In section 3 of the Principal Act, in the definition
of non-cash payment transaction industry, for
"2017." substitute "2017;".
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Part 2--Amendment of Essential Services Commission Act 2001
Division 5--Transitional provisions
20 Section 69 substituted
For section 69 of the Principal Act substitute--
"69 Transitional provision--uncompleted
appeals
(1) This section applies if--
(a) a notice of appeal has been lodged
under section 55 in respect of an
appeal under that section before the
commencement of Division 1 of Part 2
of the Essential Services Commission
Amendment (Governance,
Procedural and Administrative
Improvements) Act 2019 (the VCAT
amendments); and
(b) no decision on the appeal has been
made by an appeal panel before that
commencement.
(2) Despite the VCAT amendments, the appeal
must be heard and determined under this Act
as if this Act had not been amended by the
VCAT amendments.
(3) For the purposes of subsection (2)--
(a) if no appeal panel has been
constituted under section 56
(as in force immediately before
the commencement of the VCAT
amendments) to hear and decide the
appeal, an appeal panel must be so
constituted to do so; and
(b) if an appeal panel has been
constituted under section 56
(as in force immediately before
the commencement of the VCAT
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Essential Services Commission Amendment (Governance, Procedural and
Administrative Improvements) Act 2019
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Part 2--Amendment of Essential Services Commission Act 2001
amendments) to hear and decide the
appeal, the appeal panel must continue
to hear and decide the appeal.
(4) In this section--
appeal means an appeal under section 55
within the meaning of this Act as
in force immediately before the
commencement of the VCAT
amendments;
appeal panel means an appeal panel
constituted under section 56 within
the meaning of this Act as in force
immediately before the commencement
of the VCAT amendments.".
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Part 3--Amendment of Victorian Civil and
Administrative Tribunal Act 1998
Part 3--Amendment of Victorian Civil and
Administrative Tribunal Act 1998
21 New Part 5AB of Schedule 1 inserted
After Part 5AA of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
insert--
"Part 5AB--Essential Services
Commission Act 2001
11AIB Definition
In this Part--
Commission means the Essential Services
Commission established under
section 7 of the Essential Services
Commission Act 2001.
11AIC Application of Part
This Part applies to a proceeding for review
of a requirement, decision or determination
of the Commission under the Essential
Services Commission Act 2001.
11AID Evidence before Tribunal
(1) This clause applies despite anything to the
contrary in Part 3 or 4.
(2) In a proceeding, the Tribunal must only
consider as evidence--
(a) the facts and materials that were in the
possession of the Commission at the
time the requirement, decision or
determination that is the subject of the
proceeding was made; and
(b) the facts and materials that explain
or relate to the processes of the
Commission leading to its requirement,
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Part 3--Amendment of Victorian Civil and
Administrative Tribunal Act 1998
decision or determination that is the
subject of the proceeding.
(3) Despite subclause (2), the Tribunal may,
allow the applicant or the Commission to
place before it, for consideration as evidence,
facts and materials not referred to in
subclause (2)(a) or (b) if the applicant or
Commission satisfies the Tribunal that the
facts and materials--
(a) are materially relevant to the
proceeding; and
(b) could not have been placed before
the Commission before the time the
requirement, decision or determination
that is the subject of the proceeding was
made.
11AIE Functions of Tribunal on review limited
Despite section 51(2), in determining a
proceeding, the Tribunal may only make an
order in accordance with section 56 of the
Essential Services Commission Act 2001.".
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Administrative Improvements) Act 2019
No. of 2019
Part 4--Consequential amendment of other Acts
Part 4--Consequential amendment of
other Acts
Division 1--Accident Towing Services Act 2007
22 Recommendations
In section 212F(3) of the Accident Towing
Services Act 2007, for "an appeal panel, within
the meaning of that Act, states that it is imposing a
restriction under section 56(7)(b)(i)" substitute
"VCAT prohibits or restricts the disclosure of the
information under section 56(b)(ii)".
Division 2--Electricity Industry Act 2000
23 Continuation of charges relating to distribution
system
(1) In section 15(4) of the Electricity Industry
Act 2000, for "the appeal panel" substitute
"VCAT".
(2) In section 15(7)(a) of the Electricity Industry
Act 2000, for "an appeal" substitute
"an application for review".
Division 3--Grain Handling and Storage Act 1995
24 Procedure if agreement cannot be reached
In section 18(3B) of the Grain Handling and
Storage Act 1995--
(a) for "who is aggrieved" substitute
"whose interests are affected";
(b) for "appeal" substitute "apply to VCAT".
25 Applications for review
(1) For the heading to section 24E of the Grain
Handling and Storage Act 1995 substitute--
"Applications for review".
17
Essential Services Commission Amendment (Governance, Procedural and
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No. of 2019
Part 4--Consequential amendment of other Acts
(2) In section 24E(1) of the Grain Handling and
Storage Act 1995--
(a) for "who is aggrieved" substitute
"whose interests are affected";
(b) for "appeal against" substitute "apply to
VCAT for review of".
(3) In section 24E(2) of the Grain Handling and
Storage Act 1995, for "appeal" substitute
"application to VCAT".
(4) In section 24E(3) of the Grain Handling and
Storage Act 1995, for "appeal" substitute
"application".
(5) Section 24E(4) of the Grain Handling and
Storage Act 1995 is repealed.
(6) In section 24E(5) of the Grain Handling and
Storage Act 1995--
(a) for "to 59" substitute "and 56A";
(b) for "appeal" substitute "application".
(7) In section 24E(6) of the Grain Handling and
Storage Act 1995--
(a) in paragraph (a) omit "of subsection (7)";
(b) in paragraph (b), for "appeal" (where first
occurring) substitute "application";
(c) in paragraph (b)(iii), for "the appeal panel;"
substitute "VCAT.";
(d) paragraph (b)(iv) is repealed.
18
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Administrative Improvements) Act 2019
No. of 2019
Part 4--Consequential amendment of other Acts
Division 4--National Electricity (Victoria) Act 2005
26 Appeals against certain decisions or actions of
the AER
(1) In section 29(3) of the National Electricity
(Victoria) Act 2005--
(a) after "Essential Services Commission
Act 2001" insert ", as in force immediately
before the commencement of Division 1
of Part 2 of the Essential Services
Commission Amendment (Governance,
Procedural and Administrative
Improvements) Act 2019,";
(b) after paragraph (ab) insert--
'(aba) in section 55(2)(c)(ii), for
"determination" there were substituted
"decision or determination"; and';
(c) after paragraph (b) insert--
'(ba) in section 55(3)(b) and (6), for
"determination" there were substituted
"decision or determination"; and';
(d) after paragraph (c) insert--
"(ca) in section 56(7)(c)(ii) and (d)(i) or (ii),
a reference to a determination of the
Commission were a reference to a
decision or determination of the
Commission; and".
(2) In section 29(4) of the National Electricity
(Victoria) Act 2005, after "Essential Services
Commission Regulations 2011" insert ", as in
force immediately before the commencement of
Division 1 of Part 2 of the Essential Services
Commission Amendment (Governance,
Procedural and Administrative Improvements)
Act 2019,".
19
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No. of 2019
Part 4--Consequential amendment of other Acts
Division 5--National Gas (Victoria) Act 2008
27 Appeals against certain decisions or actions of
the AER
(1) In section 33(3) of the National Gas (Victoria)
Act 2008--
(a) after "Essential Services Commission
Act 2001" insert ", as in force immediately
before the commencement of Division 1
of Part 2 of the Essential Services
Commission Amendment (Governance,
Procedural and Administrative
Improvements) Act 2019,";
(b) after paragraph (a) insert--
"(ab) in those sections--
(i) a reference to section 55(1)(a)
were a reference to subsection
(1)(a) of this section; and
(ii) a reference to section 55(1)(b)
were a reference to subsection
(1)(b) of this section; and".
(2) In section 33(4) of the National Gas (Victoria)
Act 2008--
(a) for "Essential Services Commission
Regulations 2001" substitute "Essential
Services Commission Regulations 2011,
as in force immediately before the
commencement of Division 1 of Part 2
of the Essential Services Commission
Amendment (Governance, Procedural and
Administrative Improvements) Act 2019,";
(b) in paragraph (a), for "10 and 11" substitute
"11 and 12".
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Administrative Improvements) Act 2019
No. of 2019
Part 4--Consequential amendment of other Acts
Division 6--Port Management Act 1995
28 Giving of show cause notice to non-compliant
provider of prescribed services
In section 49K(5) of the Port Management
Act 1995--
(a) for "appeal" (where first occurring)
substitute "proceeding on an application
to VCAT";
(b) for "the appeal panel under section 56 of
that Act" substitute "VCAT".
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Essential Services Commission Amendment (Governance, Procedural and
Administrative Improvements) Act 2019
No. of 2019
Part 5--Repeal of amending Act
Part 5--Repeal of amending Act
29 Repeal of amending Act
This Act is repealed on 1 August 2021.
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).
═════════════
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Essential Services Commission Amendment (Governance, Procedural and
Administrative Improvements) Act 2019
No. of 2019
Endnotes
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:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Essential Services Commission Act 2001 and the Victorian Civil and
Administrative Tribunal Act 1998, to make consequential amendments
to certain other Acts and for other purposes."
By Authority. Government Printer for the State of Victoria.
23
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