{"id":"essential-services-commission-act-2001","name":"Essential Services Commission Act 2001","slug":"essential-services-commission-act-2001","collection":"act","jurisdiction":"vic","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":178755,"registerId":"vic-essential-services-commission-act-2001-current","compilationNumber":null,"startDate":"2026-04-05","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Div 5","sectionType":"division","heading":"Offences 74","content":"Division 5—Offences 74\n\n39ZC Refusal or failure to comply with requirement 74\n\n39ZD Protection against self-incrimination 75\n\n39ZE Offence to hinder or obstruct inspector 75\n\n39ZF Offence to impersonate inspector 75\n\n","sortOrder":0},{"sectionNumber":"Div 6","sectionType":"division","heading":"Miscellaneous 76","content":"Division 6—Miscellaneous 76\n\n39ZG Requirement to assist inspector during entry 76\n\n39ZH Entry to be reported to the Commission 76\n\n39ZI Register of exercise of powers of entry 76\n\n39ZJ Complaints 76\n\n","sortOrder":1},{"sectionNumber":"Div 7","sectionType":"division","heading":"When inspector must not exercise search and seizure powers or apply for search warrants 77","content":"Division 7—When inspector must not exercise search and seizure powers or apply for search warrants 77\n\n39ZK Matters about which inspectors must not exercise search and seizure powers or apply for search warrants 77\n\n","sortOrder":2},{"sectionNumber":"Part 4C","sectionType":"part","heading":"Court may order compliance with requirements 78","content":"Part 4C—Court may order compliance with requirements 78\n\n39ZL Powers of court if requirement of Commission or inspector not complied with 78\n\nPart 5—Inquiries and reports 79\n\n40 Inquiry by Commission 79\n\n41 Minister may refer matter for inquiry 79\n\n41A Minister may limit use of powers under section 37 80\n\n42 Notice of inquiry 80\n\n43 Conduct of inquiry 81\n\n45 Reports 82\n\n46 Special reports 83\n\nPart 6—Codes of Practice 84\n\n47 Power to make Codes of Practice 84\n\n48 Power to apply, adopt or incorporate 87\n\n49 Publication of Codes of Practice and amendments 88\n\n50 Automatic revocation of Codes of Practice after 10 years 88\n\nPart 7—Enforcement 89\n\nDivision 1—Contravention order and related orders 89\n\nSubdivision 1—Contravention order 89\n\n53 Contravention order 89\n\nSubdivision 2—Civil penalty orders 90\n\n54 Civil penalty orders 90\n\n54A Civil penalty amount—energy licensees 91\n\n54B Civil penalty amount—officers of energy licensees 92\n\n54C Civil penalty amount—other regulated entities 93\n\n54D Civil penalty amount—officers of other regulated entities 94\n\n54E How other civil penalty amounts are to be provided 94\n\nSubdivision 3—Adverse publicity orders and other orders 96\n\n54F Adverse publicity orders 96\n\n54G Orders requiring provision of services, education, etc. 97\n\n54H Compensation and other orders 98\n\nSubdivision 4—Matters related to proceedings for contravention order 99\n\n54I Proceedings under this Division are civil proceedings 99\n\n54IA Time period to commence civil proceeding under this Division 99\n\n54J Authority to commence proceedings 100\n\n54K Civil proceedings after criminal proceedings 100\n\n54L Criminal proceeding during proceeding for civil penalty order 100\n\n54M Criminal proceedings commenced after proceeding for contravention order 101\n\n54N Evidence given or produced during proceeding for contravention order 101\n\n54O Conduct contravening more than one civil penalty requirement 101\n\n54P Multiple contraventions of civil penalty requirements 102\n\n54Q Multiple proceedings for contravention order to be heard together 102\n\n54R Jurisdictional limit of Magistrates' Court does not apply to civil penalty order 102\n\nDivision 2—Penalty notice regime 103\n\n54S Power to serve a penalty notice 103\n\n54T Notice penalties 103\n\n54U How other notice penalty amounts are to be provided 104\n\n54V Form of penalty notice 106\n\n54W Commission must not commence certain proceedings while penalty notice on foot or until time for payment has expired 108\n\n54X Late payment 109\n\n54Y Withdrawal of penalty notice 110\n\n54Z Refund of notice penalty 110\n\n54ZA Payment expiates contravention 110\n\n54ZB Payment not to have certain consequences 111\n\n54ZC Multiple contraventions 112\n\n","sortOrder":3},{"sectionNumber":"Div 3","sectionType":"division","heading":"Enforceable undertakings 112","content":"Division 3—Enforceable undertakings 112\n\n54ZD Enforceable undertakings 112\n\n54ZE Enforcement of enforceable undertakings 113\n\n54ZF Monetary benefits order—contravention of enforceable undertaking 113\n\n","sortOrder":4},{"sectionNumber":"Div 4","sectionType":"division","heading":"Compliance notices 114","content":"Division 4—Compliance notices 114\n\n54ZG Compliance notice 114\n\nDivision 5—Injunctions 115\n\n54ZH Injunctions 115\n\n54ZI Consent injunctions 119\n\n54ZJ Interim injunctions 119\n\n54ZK Variation and discharge of injunctions 119\n\n54ZL Undertakings as to damages and costs 119\n\nDivision 6—Declarations 120\n\n54ZM Declarations 120\n\nDivision 7—Other persons involved in contraventions of civil penalty requirements 121\n\n54ZN Persons involved in contraventions 121\n\n","sortOrder":5},{"sectionNumber":"Div 8","sectionType":"division","heading":"Register of Enforcement Action 122","content":"Division 8—Register of Enforcement Action 122\n\n54ZO Register of Enforcement Action 122\n\n","sortOrder":6},{"sectionNumber":"Part 7A","sectionType":"part","heading":"Funds 124","content":"Part 7A—Funds 124\n\n","sortOrder":7},{"sectionNumber":"Div 1","sectionType":"division","heading":"Essential Services Commission Enforcement Fund 124","content":"Division 1—Essential Services Commission Enforcement Fund 124\n\n54ZP Essential Services Commission Enforcement Fund 124\n\n54ZQ Payments into the Essential Services Commission Enforcement Fund 124\n\n54ZR Payments out of the Essential Services Commission Enforcement Fund 125\n\n54ZS Recovery of amounts ordered to be paid into the Essential Services Commission Enforcement Fund 126\n\n","sortOrder":8},{"sectionNumber":"Div 2","sectionType":"division","heading":"Essential Services Commission Operating Fund 127","content":"Division 2—Essential Services Commission Operating Fund 127\n\n54ZT Essential Services Commission Operating Fund 127\n\n54ZU Payments into the Essential Services Commission Operating Fund 127\n\n54ZV Payments out of the Essential Services Commission Operating Fund 128\n\nPart 7B—Review by VCAT 129\n\n55 VCAT review 129\n\n56 Proceedings for review by VCAT 134\n\n56A Commission to give effect to VCAT decisions 137\n\nPart 7C—General 138\n\nDivision 1—Personal liability and contraventions by bodies corporate and others 138\n\n60 Personal liability 138\n\n60A Contraventions of this Act and relevant legislation by bodies corporate 138\n\n60B Conduct by officers, employees or agents 139\n\nDivision 2—Disclosure of information, information sharing and offences 142\n\n60C Restriction on disclosure of confidential information 142\n\n60D Commission must not disclose exempt freedom of information documents 146\n\n60E Information sharing arrangements 147\n\n61 Disclosure of information an offence 151\n\n61A Offence to give false or misleading information or documents 152\n\n61B Monetary benefits order—false and misleading information offence to Commission 153\n\nDivision 3—Miscellaneous 154\n\n62 Proceedings 154\n\n62A Who can commence proceedings for offences? 154\n\n62B Determining amount to be paid under monetary benefits orders and certain civil penalty orders 156\n\n62C Court may grant relief from liability 157\n\n63 Supreme Court—limitation of jurisdiction 158\n\n64 Service of documents 158\n\n65 Regulations 159\n\n66 Review 161\n\nPart 8—Transitional 162\n\n67 Repeal of the Office of the Regulator-General Act 1994 162\n\n68 Commission is successor in law 163\n\n69 Transitional provision—uncompleted appeals 164\n\n70 Enforcement 165\n\n71 Enforcement orders 165\n\n72 Energy industry penalty notices 165\n\n73 Information gathering 166\n\n74 Information sharing 167\n\n75 Chief executive officer 168\n\n76 Codes of Practice 169\n\nEndnotes 172\n\n1 General information 172\n\n2 Table of Amendments 174\n\n3 Explanatory details 181\n\n**Version No.** **071**\n\n**Essential Services Commission Act 2001**\n\n**No. 62 of 2001**\n\nVersion incorporating amendments as at  \n\n**The Parliament of Victoria enacts as follows:**\n\n","sortOrder":9},{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"Part 1—Preliminary\n\nS. 1 amended by No. 49/2002 s. 18, substituted by No. 15/2008 s. 3.\n\n","sortOrder":10},{"sectionNumber":"1","sectionType":"section","heading":"Purpose","content":"\t1 Purpose\n\nThe purpose of this Act is to enable the Essential Services Commission to perform the regulatory and advisory functions that are conferred on the Commission in a manner that provides incentives for dynamic, productive and allocative efficiency and promotes the long term interests of Victorian consumers.\n\n","sortOrder":11},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"\t2 Commencement\n\nThis Act comes into operation on 1 January 2002.\n\n","sortOrder":12},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"\t3 Definitions\n\nIn this Act—\n\nS. 3 def. of *annual turnover* inserted by No. 41/2021 s. 6(1).\n\n***annual turnover*** has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;\n\nS. 3 def. of *appeal* repealed by No. 21/2019 s. 4(b).\n\nS. 3 def. of *appeal panel* repealed by No. 21/2019 s. 4(b).\n\nS. 3 def. of *application* inserted by No. 21/2019 s. 4(a).\n\n***application*** means an application under section 55;\n\n***Chairperson*** means the Commissioner appointed as Chairperson under section 18;\n\nS. 3 def. of *civil penalty order* inserted by No. 41/2021 s. 6(1).\n\n***civil penalty order*** means an order made under section 54(1);\n\nS. 3 def. of *civil penalty requirement* inserted by No. 41/2021 s. 6(1), amended by No. 6/2024 s. 23(a).\n\n***civil penalty requirement*** means any of the following—\n\n(a) a determination made by the Commission under—\n\n(i) this Act; or\n\n(ii) relevant legislation (other than a determination made under Division 1A or 3 of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**);\n\n(b) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation;\n\n(c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4;\n\n(d) a provision of a Code of Practice that is—\n\n(i) prescribed as a civil penalty requirement; or\n\n(ii) specified in the Code of Practice as a civil penalty requirement;\n\n(e) a provision of this Act that is—\n\n(i) specified by this Act as a civil penalty requirement; or\n\n(ii) prescribed as a civil penalty requirement;\n\n(f) a provision of relevant legislation (other than a provision that includes a statutory condition) that is—\n\n(i) specified by the relevant legislation as a civil penalty requirement for the purposes of this Act; or\n\n(ii) prescribed in regulations made under the relevant legislation as a civil penalty requirement for the purposes of this Act;\n\n(g) the following Orders—\n\n(i) an Order made under section 13(1), 17, 40D(1) or 40E(1) of the **Electricity Industry Act 2000**;\n\n(ii) the Wimmera and Colac Tariff Order within the meaning of section 20 of the **Gas Industry Act 2001**;\n\n(iii) an Order made under section 21(1), 24, 48C(1) or 48D(1) of the **Gas Industry Act 2001**;\n\nS. 3 def. of *Code of Practice* inserted by No. 49/2015 s. 13.\n\n***Code of Practice*** means a Code of Practice applying under Part 6 or relevant legislation;\n\n***Commission*** means the Essential Services Commission established under section 7;\n\nS. 3 def. of *Commission port Pricing Order decision* inserted by No. 10/2016 s. 168(b).\n\n***Commission port Pricing Order decision*** means a decision of the Commission made under a provision of a port Pricing Order that is prescribed;\n\n***Commissioner*** means the Chairperson or an additional Commissioner appointed under section 21;\n\nS. 3 def. of *compliance notice* inserted by No. 41/2021 s. 6(1).\n\n***compliance notice*** means a notice under section 54ZG;\n\nS. 3 def. of *computer* inserted by No. 41/2021 s. 4.\n\n***computer*** means any electronic device for storing or processing information;\n\nS. 3 def. of *conduct* inserted by No. 41/2021 s. 6(1).\n\n***conduct***, in relation to a contravention, includes a refusal or failure to do something;\n\nS. 3 def. of *contravention order* inserted by No. 41/2021 s. 6(1).\n\n***contravention order*** means an order made under section 53(1) or (2);\n\nS. 3 def. of *Council* inserted by No. 65/2015 s. 10, amended by No. 9/2020 s. 390(Sch. 1 item 36).\n\n***Council*** has the same meaning as in the **Local Government Act 2020**;\n\nS. 3 def. of *empowering instrument* amended by Nos 48/2003 s. 11(1), 86/2004 s. 5, 10/2016 s. 168(a), 6/2019 s. 6.\n\n***empowering instrument*** means—\n\n(a) the relevant legislation; or\n\n(b) an Order made under section 4; or\n\n(c) the Tariff Order; or\n\n(ca) any Order made under section 21 of the **Gas Industry Act 2001**; or\n\n(d) any Order made under Division 2 or 2A of Part 2 of the **Electricity Industry Act 2000**; or\n\n(e) a Water Industry Regulatory Order made under Part 1A of the **Water Industry Act 1994**; or\n\n(f) a port Pricing Order;\n\nS. 3 def. of *energy licence* inserted by No. 49/2015 s. 13.\n\n***energy licence*** means—\n\n(a) a licence issued under Part 2 of the **Electricity Industry Act 2000**; or\n\n(b) a licence issued under Part 3 of the **Gas Industry Act 2001**;\n\nS. 3 def. of *energy licensee* inserted by No. 49/2015 s. 13.\n\n***energy licensee*** means the holder of an energy licence;\n\nS. 3 def. of *energy retailer* inserted by No. 49/2015 s. 13.\n\n***energy retailer*** means—\n\n(a) a retailer within the meaning of the **Electricity Industry Act 2000**; or\n\n(b) a gas retailer within the meaning of the **Gas Industry Act 2001**;\n\nS. 3 def. of *enforceable undertaking* inserted by No. 41/2021 s. 6(1).\n\n***enforceable undertaking*** means an undertaking given under section 54ZD;\n\nS. 3 def. of *enforcement action* inserted by No. 49/2015 s. 13, repealed by No. 41/2021 s. 6(3).\n\nS. 3 def. of *essential service* amended by Nos 43/2013 s. 31(1)(2), 63/2017 s. 21(Sch. 1 item 4.1), 34/2022 s. 68.\n\n***essential service*** means a service (including the supply of goods) provided by—\n\n(a) the electricity industry;\n\n(b) the gas industry;\n\n(c) the ports industry;\n\n(d) the grain handling industry;\n\n(e) the rail industry;\n\n(f) the water industry;\n\n(fa) the non-cash payment transaction industry;\n\n(fb) the commercial passenger vehicle industry in relation to applicable unbooked services within the meaning of Division 1A of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**;\n\n(fc) the VEET scheme within the meaning of the **Victorian Energy Efficiency Target Act 2007**;\n\n(g) any other industry prescribed for the purpose of this definition;\n\nS. 3 def. of *Essential Services Commission Enforcement Fund* inserted by No. 41/2021 s. 6(1).\n\n***Essential Services Commission Enforcement Fund*** means the fund established by section 54ZP;\n\nS. 3 def. of *Essential Services Commission Operating Fund* inserted by No. 41/2021 s. 6(1).\n\n***Essential Services Commission Operating Fund*** means the fund established by section 54ZT;\n\nS. 3 def. of *essential services requirement* inserted by No. 41/2021 s. 4.\n\n***essential services requirement*** means any of the following—\n\n(a) a provision of this Act;\n\n(b) a provision of relevant legislation (other than a provision that includes a statutory condition) in respect of which the Commission has powers or functions;\n\n(c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation;\n\n(d) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4;\n\n(e) a provision of a Code of Practice;\n\nS. 3 def. of *information gathering notice* inserted by No. 41/2021 s. 4.\n\n***information gathering notice*** means a notice under section 36(1) or 37(1);\n\nS. 3 def. of *inspector* inserted by No. 41/2021 s. 4.\n\n***inspector*** means a person appointed under section 39M;\n\nS. 3 def. of *insurance* inserted by No. 49/2002 s. 19,  \n\nS. 3 def. of *insurance business* inserted by No. 49/2002 s. 19,  \n\nS. 3 def. of *insurance industry* inserted by No. 49/2002 s. 19,  \n\nS. 3 def. of *monetary benefits* inserted by No. 41/2021 s. 6(1).\n\n***monetary benefits*** means monetary, financial or economic benefits, including any monetary, financial or economic benefit a person acquires or accrues by avoiding or delaying the person's compliance with an information gathering notice, an enforceable undertaking or a civil penalty requirement to which the person's offence or contravention relates;\n\nS. 3 def. of *monetary benefits order* inserted by No. 41/2021 s. 6(1).\n\n***monetary benefits order*** means an order made under section 54ZF or 61B;\n\nS. 3 def. of *non-cash payment transaction industry* inserted by No. 63/2017 s. 21(Sch. 1 item 4.2), amended by No. 21/2019 s. 19.\n\n***non-cash payment transaction industry*** has the same meaning as in Division 3 of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**;\n\nS. 3 def. of *notice penalty* inserted by No. 41/2021 s. 6(1).\n\n***notice penalty*** means a penalty set out in section 54T;\n\nS. 3 def. of *officer* inserted by No. 41/2021 s. 6(1).\n\n***officer*** means an officer within the meaning of section 9 of the Corporations Act;\n\n***Order*** means an Order of the Governor in Council published in the Government Gazette;\n\nS. 3 def. of *penalty notice* inserted by No. 41/2021 s. 6(1).\n\n***penalty notice*** means a notice served under section 54S;\n\nS. 3 def. of *port Pricing Order* inserted by No. 10/2016 s. 168(b).\n\n***port Pricing Order*** means an Order made under section 49A of the **Port Management Act 1995**;\n\n***prescribed agency*** means a person, body or agency which is prescribed for the purposes of section 15;\n\n***prescribed body*** means a person, body or agency which is prescribed for the purposes of section 16;\n\nS. 3 def. of *Register of Enforcement Action* inserted by No. 41/2021 s. 6(1).\n\n***Register of Enforcement Action*** means the  register established under section 54ZO(1);\n\nS. 3 def. of *Registrar* repealed by No. 21/2019 s. 4(b).\n\nS. 3 def. of *regulated entity* substituted by No. 41/2021 s. 6(2), amended by No. 33/2021 s. 7(ab)  \n(as amended by No. 41/2021 s. 90).\n\n***regulated entity***—\n\n(a) means an entity operating in a regulated industry; and\n\n(b) without limiting paragraph (a), includes—\n\n(i) a person who is exempt under section 17 of the **Electricity Industry Act 2000** from a requirement to hold a licence and who is required to comply with a Code of Practice as a condition of that exemption; and\n\n(ii) a person who is exempt under section 24 of the **Gas Industry Act 2001** from a requirement to hold a licence or obtain registration and who is required to comply with a Code of Practice as a condition of that exemption; and\n\n(iia) a person granted a trial waiver; and\n\n(iii) any other person or class of person prescribed as a regulated entity for Divisions 1 and 2 of Part 7 and section 54ZN for the purposes of this definition;\n\n***regulated industry*** means an industry which provides an essential service and—\n\n(a) is operating under relevant legislation which is specified by the relevant legislation as a regulated industry; or\n\n(b) is declared by an Order under section 4 to be a regulated industry;\n\n***relevant legislation*** means legislation which is specified by that legislation as being relevant legislation;\n\nS. 3 def. of *statutory condition* inserted by No. 41/2021 s. 6(1).\n\n***statutory condition*** means—\n\n(a) a condition that is set out in relevant legislation which the relevant legislation states is included as a condition of a licence; and\n\n(b) a condition that is deemed or taken to be included as a condition of a licence under relevant legislation;\n\n**Example**\n\nFor example, section 36A of the **Electricity Industry Act 2000** sets out a number of conditions to which a licence issued under that Act is subject.\n\nS. 3 def. of *statutory insurer* inserted by No. 49/2002 s. 19,  \n\nS. 3 def. of *Tariff Order* amended by Nos 43/2013 s. 31(3), 63/2017 s. 21(Sch. 1 item 4.4), 33/2021 s. 7(a).\n\n***Tariff Order*** has the same meaning as in the **Electricity Industry Act 2000**;\n\nS. 3 def. of *taxi non-cash payment transaction industry* inserted by No. 43/2013 s. 31(4), repealed by No. 63/2017 s. 21(Sch. 1 item 4.3).\n\nS. 3 def. of *trial waiver* inserted by No. 33/2021 s. 7(b), amended by No. 6/2024 s. 23(b).\n\n***trial waiver*** means an exemption granted under section 54 of the **Electricity Industry Act 2000** or section 55 of the **Gas Industry Act 2001**.\n\n","sortOrder":13},{"sectionNumber":"4","sectionType":"section","heading":"Order declaring a regulated industry","content":"\t4 Order declaring a regulated industry\n\n(1) Except as otherwise provided in this section, the Governor in Council may by Order declare an industry to be a regulated industry after having regard to—\n\n(a) the existence of significant and non-transitory market power;\n\n(b) the existence of regulatory benefits which exceed the administration and compliance costs of becoming a regulated industry;\n\n(c) the non-existence of economic regulation specific to that industry by another body under any other State or Commonwealth legislation.\n\n(2) The Order may declare—\n\n(a) which prices are to be prescribed prices in respect of a regulated industry;\n\n(b) which goods and services are to be prescribed goods and services in respect of a regulated industry;\n\nS. 4(2)(c) amended by No. 15/2008 s. 4(1).\n\n(c) powers that are to be exercised by the Commission in respect of a regulated industry under section 34;\n\nS. 4(2)(d) inserted by No. 15/2008 s. 4(2).\n\n(d) decisions or classes of decisions of the Commission under the powers conferred by the Order that are to be determinations for the purposes of this Act.\n\n(3) This section does not apply to the electricity industry or to the **Electricity Industry Act 2000**.\n\n(4) Subsection (3) does not affect any Order made before 20 June 1995.\n\n(5) This section does not apply to the gas industry or to the **Gas Industry Act 2001**.\n\n(6) Subsection (5) does not affect any Order made before 1 December 1998.\n\n(7) This section does not apply to—\n\n(a) railways and rail infrastructure;\n\n(b) tramways and tram infrastructure.\n\nS. 4(8) inserted by No. 48/2003 s. 11(2).\n\n(8) This section does not apply to the regulated water industry within the meaning of section 4A of the **Water Industry Act 1994**.\n\nS. 4(9) inserted by No. 10/2016 s. 169.\n\n(9) While a port Pricing Order is in effect, this section does not apply to—\n\n(a) the ports industry in the port of Melbourne within the meaning of the **Port Management Act 1995**; or\n\n(b) the **Port Management Act 1995** in respect of the port of Melbourne.\n\n","sortOrder":14},{"sectionNumber":"5","sectionType":"section","heading":"Interpretation and application of Act","content":"\t5 Interpretation and application of Act\n\n(1) Subject to subsection (2) and sections 33(1) and 34(3), if there is any inconsistency between this Act and any other Act, the provisions of this Act prevail.\n\nNote to s. 5(1) inserted by No. 41/2021 s. 10.\n\nOther Acts, including relevant legislation, may provide that, despite this subsection, the relevant legislation prevails to the extent of any inconsistency with this Act. See, for example, section 4AA of the **Water Industry Act 1994**.\n\n(2) Subject to subsection (3), if the Commission considers that there is a conflict between the objectives specified in or under this Act and the objectives specified in the relevant legislation under which a regulated industry operates, the Commission must perform its functions and exercise its powers in such a manner as the Commission considers best achieves the objectives specified in the relevant legislation.\n\n(3) Subsection (2) does not apply to the **Electricity Industry Act 2000** or to the **Gas Industry Act 2001**.\n\n(4) Except as otherwise specifically provided, this Act does not apply to or in respect of an essential service unless the essential service is provided by a regulated industry.\n\n","sortOrder":15},{"sectionNumber":"6","sectionType":"section","heading":"Crown to be bound","content":"\t6 Crown to be bound\n\nThis Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.\n\n","sortOrder":16},{"sectionNumber":"Part 2","sectionType":"part","heading":"Essential Services Commission","content":"Part 2—Essential Services Commission\n\n","sortOrder":17},{"sectionNumber":"7","sectionType":"section","heading":"Essential Services Commission","content":"\t7 Essential Services Commission\n\n(1) There is established a body corporate called the Essential Services Commission.\n\n(2) The Commission—\n\n(a) has perpetual succession; and\n\n(b) has a common seal; and\n\n(c) may sue and be sued in its corporate name; and\n\n(d) is capable of taking, purchasing, leasing, holding, selling, exchanging and disposing of real and personal property for the purposes of this Act; and\n\n(e) may do and suffer all acts and things which a body corporate may by law do and suffer and which are necessary or convenient for the purposes of this Act.\n\n(3) All courts must take judicial notice of the seal of the Commission affixed to a document and, until the contrary is proved, must presume that it was duly affixed.\n\n(4) The common seal of the Commission must be kept in such custody as the Commission directs and must not be used except as authorised by the Commission.\n\nS. 8 substituted by No. 15/2008 s. 5.\n\n","sortOrder":18},{"sectionNumber":"8","sectionType":"section","heading":"Objective of the Commission","content":"\t8 Objective of the Commission\n\n(1) In performing its functions and exercising its powers, the objective of the Commission is to promote the long term interests of Victorian consumers.\n\n(2) Without derogating from subsection (1), in performing its functions and exercising its powers in relation to essential services, the Commission must in seeking to achieve the objective specified in subsection (1) have regard to the price, quality and reliability of essential services.\n\nS. 8A inserted by No. 15/2008 s. 5.\n\n","sortOrder":19},{"sectionNumber":"8A","sectionType":"section","heading":"Matters which the Commission must have regard to","content":"\t8A Matters which the Commission must have regard to\n\n(1) In seeking to achieve the objective specified in section 8, the Commission must have regard to the following matters to the extent that they are relevant in any particular case—\n\n(a) efficiency in the industry and incentives for long term investment;\n\n(b) the financial viability of the industry;\n\n(c) the degree of, and scope for, competition within the industry, including countervailing market power and information asymmetries;\n\n(d) the relevant health, safety, environmental and social legislation applying to the industry;\n\n(e) the benefits and costs of regulation (including externalities and the gains from competition and efficiency) for—\n\n(i) consumers and users of products or services (including low income and vulnerable consumers);\n\n(ii) regulated entities;\n\n(f) consistency in regulation between States and on a national basis;\n\n(g) any matters specified in the empowering instrument.\n\n(2) Without derogating from section 8 or subsection (1), the Commission must also when performing its functions and exercising its powers in relation to a regulated industry do so in a manner that the Commission considers best achieves any objectives specified in the empowering instrument.\n\n","sortOrder":20},{"sectionNumber":"9","sectionType":"section","heading":"Commission represents Crown","content":"\t9 Commission represents Crown\n\nThe Commission represents the Crown.\n\n","sortOrder":21},{"sectionNumber":"10","sectionType":"section","heading":"Functions of the Commission","content":"\t10 Functions of the Commission\n\nThe functions of the Commission are—\n\n(a) to perform such functions as are conferred by this Act and the relevant legislation under which a regulated industry operates;\n\n(b) to advise the Minister on matters relating to the economic regulation of regulated industries, including reliability issues;\n\n(c) when requested by the Minister to do so, to conduct an inquiry into any systemic reliability of supply issues related to a regulated industry or other essential service specified by the Minister in the request;\n\n(d) to conduct inquiries and report under Part 5 on matters relating to regulated industries;\n\nS. 10(da) inserted by No. 41/2021 s. 11.\n\n(da) to make, amend and revoke Codes of Practice under Part 6;\n\n(e) to make recommendations to the Minister as to whether an industry which provides an essential service should become a regulated industry or whether a regulated industry should continue to be a regulated industry;\n\n(f) to conduct public education programs—\n\n(i) for the purpose of promoting its objectives under this Act and the relevant legislation; and\n\n(ii) in relation to significant changes in the regulation of a regulated industry;\n\n(g) to advise the Minister in relation to any other matter referred to the Commission by the Minister;\n\nS. 10(h) amended by No. 32/2002 s. 25(a).\n\n(h) to administer this Act;\n\nS. 10(i) inserted by No. 32/2002 s. 25(b), amended by Nos 72/2006 s. 115(a), 6/2010 s. 203(1)(Sch. 6 item 20) (as amended by No. 45/2010 s. 22), 21/2019 s. 15.\n\n(i) to perform the functions conferred on the Commission by the **Commercial Passenger Vehicle Industry Act 2017**;\n\nS. 10(j) inserted by No. 72/2006 s. 115(b), amended by No. 70/2007 s. 77(a).\n\n(j) to perform the functions conferred on the Commission by the **Victorian Renewable Energy Act 2006**;\n\nS. 10(k) inserted by No. 70/2007 s. 77(b), amended by No. 40/2011 s. 23(1).\n\n(k) to perform the functions conferred on the Commission by the **Victorian Energy Efficiency Target Act 2007**;\n\nS. 10(ka) inserted by No. 65/2015 s. 11, amended by No. 30/2022 s. 42(1).\n\n(ka) to perform the functions conferred on the Commission by Part 8 or 8A of the **Local Government Act 1989**;\n\nS. 10(kb) inserted by No. 9/2020 s. 387, repealed by No. 30/2022 s. 42(2).\n\nS. 10(l) inserted by No. 40/2011 s. 23(2), amended by Nos 62/2001 s. 66B(a), 63/2011 s. 7(a).\n\n(l) to perform the functions conferred on the Commission by the **Accident Towing Services Act 2007**.\n\nS. 10(la) inserted by No. 58/2012 s. 92,  \nrepealed by No. 58/2012 s. 134.\n\nS. 10(lb) inserted by No. 81/2012 s. 113(1), repealed by No. 81/2012 s. 113(2).\n\nS. 10(m) inserted by No. 63/2011 s. 7(b), repealed by No. 62/2001 s. 66B(b).\n\nS. 10AAA inserted by No. 21/2019 s. 14.\n\n\t10AAA Reporting on regulated industry market structure and performance\n\nWithout 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.\n\nS. 10AA inserted by No. 49/2015 s. 14, substituted by No. 41/2021 s. 7.\n\n\t10AA Commission's functions in relation to compliance and enforcement\n\nWithout limiting section 10 or relevant legislation, the functions of the Commission include—\n\n(a) to monitor and report on compliance by persons with this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements; and\n\n(b) to investigate contraventions or possible contraventions by persons of this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements; and\n\n(c) to commence and conduct proceedings in relation to contraventions by persons of this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements.\n\nS. 10AAB inserted by No. 6/2019 s. 7.\n\n\t10AAB Commission's functions in relation to the retail energy market\n\nWithout limiting section 10(a), the **Electricity Industry Act 2000** or the **Gas Industry Act 2001**, the functions oftheCommission under this Act includetomonitor and report on the competitiveness and efficiency of the Victorian retail markets for electricity andgas.\n\nS. 10A inserted by No. 49/2002 s. 20, repealed by No. 15/2008 s. 6(1), new s. 10A inserted by No. 63/2011 s. 8, amended by No. 41/2021 s. 12, repealed by No. 62/2001 s. 66C.\n\nS. 10B inserted by No. 49/2002 s. 20, repealed by No. 15/2008 s. 6(1).\n\nS. 10C inserted by No. 72/2006 s. 116, amended by No. 41/2021 s. 13.\n\n","sortOrder":22},{"sectionNumber":"10C","sectionType":"section","heading":"Commission's functions in relation to renewable energy","content":"\t10C Commission's functions in relation to renewable energy\n\nSections 8, 14, 15, 16, 29 and 30 and Parts 3, 4, 4A, 4B, 4C, 5, 6, 7, 7B and 7C (other than sections 60 and 64) do not apply to the functions of the Commission referred to in section 10(j).\n\nS. 10D inserted by No. 70/2007 s. 78, amended by Nos 41/2021 s. 14, 12/2023 s. 11.\n\n","sortOrder":23},{"sectionNumber":"10D","sectionType":"section","heading":"Commission's functions in relation to energy efficiency","content":"\t10D Commission's functions in relation to energy efficiency\n\nSections 8, 14, 15, 16, 29 and 30 and Parts 3, 4, 4A, 4B, 4C, 5, 6, 7B and 7C (other than sections 60, 60A, 60B and 64) do not apply to the functions of the Commission referred to in section 10(k).\n\nS. 10E inserted by No. 65/2015 s. 12.\n\n","sortOrder":24},{"sectionNumber":"10E","sectionType":"section","heading":"Commission's functions in relation to Councils","content":"\t10E Commission's functions in relation to Councils\n\n(1) The Commission has the following functions in relation to Councils—\n\n(a) monitoring and reviewing Councils' compliance with the caps set under Part 8A of the **Local Government Act 1989**;\n\n(b) assessing the outcomes as a result of general Orders and special Orders made under Part 8A of the **Local Government Act 1989**;\n\n(c) identifying trends across the local government sector arising from the caps, and any other impacts of the caps on the sector.\n\n(2) The Commission must prepare an annual report on Councils' compliance with the caps.\n\n(3) The Commission must prepare a biennial report containing—\n\n(a) an assessment of outcomes as a result of general Orders and special Orders made under Part 8A of the **Local Government  \nAct 1989**; and\n\n(b) the identification of any trends across the local government sector arising from the caps, and of any other impacts of the caps on the sector.\n\n(4) A report under subsection (2) or (3) must be published on the Commission's internet site.\n\n(5) The Commission must publish notice of the publication of a report under subsection (2) or (3) in the Government Gazette and in a newspaper generally circulating in Victoria as soon as is practicable after the report is published.\n\n(6) A notice under subsection (5) must specify a place where copies of the report are available for inspection.\n\n(7) In performing its functions and exercising its powers under this section and the **Local Government Act 1989**, the objective of the Commission is to promote the purposes of Part 8A of the **Local Government Act 1989**.\n\n","sortOrder":25},{"sectionNumber":"11","sectionType":"section","heading":"Powers of the Commission","content":"\t11 Powers of the Commission\n\n(1) Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and to enable it to achieve its objectives under this Act and under relevant legislation.\n\n(2) Without derogating from subsection (1), the Commission also has such powers as may be conferred on the Commission by the relevant legislation under which a regulated industry operates.\n\nS. 12 substituted by No. 75/2004 s. 3.\n\n","sortOrder":26},{"sectionNumber":"12","sectionType":"section","heading":"Commission not subject to direction or control","content":"\t12 Commission not subject to direction or control\n\nExcept as provided by or under this Act or any other Act, the Commission is not subject to the direction or control of the Minister.\n\n","sortOrder":27},{"sectionNumber":"13","sectionType":"section","heading":"Commission may publish statements and guidelines","content":"\t13 Commission may publish statements and guidelines\n\nThe Commission may publish statements and guidelines relating to the performance of its functions and the exercise of its powers.\n\n","sortOrder":28},{"sectionNumber":"14","sectionType":"section","heading":"Commission must publish Charter","content":"\t14 Commission must publish Charter\n\nS. 14(1) amended by No. 15/2008 s. 7.\n\n(1) The Commission must develop and publish a Charter of Consultation and Regulatory Practice including guidelines relating to processes for making determinations and other regulatory decisions and conducting inquiries.\n\n(2) The Charter of Consultation and Regulatory Practice—\n\n(a) must include such matters as are prescribed; and\n\n(b) may include any other matters that the Commission considers appropriate.\n\n","sortOrder":29},{"sectionNumber":"15","sectionType":"section","heading":"Consultation","content":"\t15 Consultation\n\n(1) This section applies to the Commission and to prescribed agencies for the purpose of ensuring that—\n\n(a) the regulatory and decision making processes of the Commission and prescribed agencies are closely integrated and better informed; and\n\n(b) overlap or conflict between existing and proposed regulatory schemes is avoided.\n\n(2) In this section ***prescribed agency*** means a person, body or agency which—\n\n(a) has functions or powers under relevant health, safety, environmental or social legislation applying to a regulated industry; and\n\n(b) is prescribed for the purposes of this section.\n\n(3) The Commission must as early as practicable consult with a relevant prescribed agency—\n\n(a) in the making of a determination; and\n\n(b) in the conduct of an inquiry, after first consulting with the Minister; and\n\n(c) in preparing and reviewing the Charter of Consultation and Regulatory Practice.\n\n(4) If requested in writing to do so by the Commission, a prescribed agency must consult with the Commission—\n\n(a) in relation to any matter specified by the Commission which is relevant to the objectives or functions of the Commission under this Act and under relevant legislation; or\n\n(b) in respect of a matter specified by the Commission which may impact on a regulated industry.\n\n(5) A prescribed agency must ensure that consultation occurs as early as practicable in the regulatory, advisory or decision making processes of the prescribed agency.\n\n(6) The requirements under this section are in addition to any other requirements or processes under any other legislation or regulatory scheme.\n\n","sortOrder":30},{"sectionNumber":"16","sectionType":"section","heading":"Memoranda of Understanding","content":"\t16 Memoranda of Understanding\n\n(1) In this section ***prescribed body*** means—\n\n(a) a person, body or agency which—\n\n(i) is a prescribed agency; or\n\n(ii) represents the interests of users or consumers; and\n\n(b) is prescribed for the purposes of this section.\n\n(2) The Commission and a prescribed body must enter into a Memorandum of Understanding by a date determined by the Minister.\n\n(3) A Memorandum of Understanding—\n\n(a) must include such matters as are prescribed; and\n\n(b) may include any other matters that the parties consider appropriate.\n\n(4) The Commission must ensure that a Memorandum of Understanding is published—\n\n(b) on the internet.\n\n","sortOrder":31},{"sectionNumber":"17","sectionType":"section","heading":"Membership of the Commission","content":"\t17 Membership of the Commission\n\nThe Commission consists of—\n\n(a) one Commissioner appointed as the Chairperson; and\n\n(b) such number of full-time and part-time additional Commissioners as the Minister considers necessary to enable the Commission to perform its functions.\n\n","sortOrder":32},{"sectionNumber":"18","sectionType":"section","heading":"The Chairperson","content":"\t18 The Chairperson\n\n(1) The Governor in Council may appoint a person as Chairperson who is qualified for appointment because of his or her knowledge of, or experience in, one or more of the fields of industry, commerce, economics, law or public administration.\n\n(2) The Chairperson is to be appointed on such terms and conditions, not inconsistent with this Act, as the Governor in Council determines.\n\nS. 18(3) substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 70.1), 80/2006 s. 26(Sch. item 35.1).\n\n(3) The **Public Administration Act 2004** (other than Part 3 of that Act) applies to the Chairperson in respect of his or her office as a Commissioner.\n\nS. 18(4) substituted by No. 75/2004 s. 4.\n\n(4) The Chairperson must not without the consent of the Governor in Council directly or indirectly engage in any paid employment outside of the office of Chairperson.\n\n(5) An act or decision of the Commission is not invalid merely because of a defect or irregularity in, or in connection with, the appointment of the Chairperson or a vacancy in the office of Chairperson.\n\n","sortOrder":33},{"sectionNumber":"19","sectionType":"section","heading":"Tenure of office of Chairperson","content":"\t19 Tenure of office of Chairperson\n\nS. 19(1) substituted by No. 41/2021 s. 15.\n\n(1) Subject to this Act, the Chairperson—\n\n(a) holds office for such a period not exceeding 5 years as is specified in the instrument of appointment; and\n\n(b) subject to this section, is eligible for re‑appointment.\n\n(2) The Chairperson may be suspended from office by the Governor in Council, but must not be removed from office except in accordance with this Act.\n\n(3) The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of any suspension of the Chairperson within 7 sitting days of the House.\n\n(4) The Chairperson so suspended must be restored to office by the Governor in Council unless each House of the Parliament, within 42 days after the day on which the statement is laid before it, and in the same session, declares by resolution that the Chairperson ought to be removed from office and, if each House within that time so declares, the Chairperson must be removed from office by the Governor in Council.\n\n(5) The Chairperson ceases to hold office if he or she becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt debtors or compounds with his or her creditors or makes an assignment of his or her property for their benefit or a deed of arrangement under any law relating to bankruptcy.\n\n(6) The Chairperson ceases to hold office if he or she nominates for election for either House of the Parliament of Victoria or for the Parliament of the Commonwealth or of another State or of a Territory.\n\n(7) The Chairperson may at any time resign by writing signed and addressed to the Governor in Council.\n\n","sortOrder":34},{"sectionNumber":"20","sectionType":"section","heading":"Acting appointment","content":"\t20 Acting appointment\n\nS. 20(1) amended by No. 21/2019 s. 12(1).\n\n(1) The Minister may appoint a person to act in the office of Chairperson—\n\n(a) during a vacancy in that office; or\n\n(b) during any period, or during all periods, when the person holding that office is absent from duty or is, for any other reason, unable to perform the functions of that office—\n\nbut a person appointed to act during a vacancy must not continue so to act for more than 6 months.\n\n(2) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.\n\nS. 20(3) amended by No. 21/2019 s. 12(2)(a).\n\n(3) The Minister—\n\nS. 20(3)(a) amended by No. 21/2019 s. 12(2)(b).\n\n(a) subject to this section, may determine the terms and conditions of appointment of a person acting in the office of Chairperson (other than the person's remuneration and allowances); and\n\n(b) may terminate such an appointment at any time.\n\n(4) If a person is acting in the office of Chairperson in accordance with subsection (1)(b) and that office becomes vacant while that person is so acting, that person may continue so to act until—\n\nS. 20(4)(a) amended by No. 21/2019 s. 12(1).\n\n(a) the Minister otherwise directs; or\n\n(b) the vacancy is filled; or\n\n(c) a period of 6 months from the date on which the vacancy occurred expires—\n\nwhichever first happens.\n\nS. 20(5) substituted by No. 21/2019 s. 12(3).\n\n(5) While a person is acting in the office of Chairperson in accordance with subsection (1), the person—\n\n(a) has and may exercise all the powers and perform all the functions and duties of that office under this Act; and\n\n(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\n\n(c) is not restricted from engaging in any paid employment outside that office.\n\n(6) The validity of anything done by or in relation to a person purporting to act in the office of Chairperson under an appointment made under subsection (1) shall not be called in question on the ground that—\n\n(a) the occasion for his or her appointment has not arisen; or\n\n(b) that there is a defect or irregularity in or in connection with his or her appointment; or\n\n(c) that the appointment had ceased to have effect; or\n\n(d) that the occasion for him or her to act had not arisen or had ceased.\n\n","sortOrder":35},{"sectionNumber":"21","sectionType":"section","heading":"Additional Commissioners","content":"\t21 Additional Commissioners\n\n(1) The Governor in Council may appoint persons as additional Commissioners who are qualified for appointment because of their knowledge of, or experience in, one or more of the fields of industry, commerce, economics, law or public administration.\n\n(2) An additional Commissioner is to be appointed on such terms and conditions, not inconsistent with this Act, as the Governor in Council determines.\n\nS. 21(3) substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 70.2), 80/2006 s. 26(Sch. item 35.2).\n\n(3) The **Public Administration Act 2004** (other than Part 3 of that Act) applies to an additional Commissioner in respect of his or her office as a Commissioner.\n\n","sortOrder":36},{"sectionNumber":"22","sectionType":"section","heading":"Tenure of office of additional Commissioners","content":"\t22 Tenure of office of additional Commissioners\n\n(1) Subject to this Act, an additional Commissioner—\n\n(a) holds office for such period not exceeding 5 years as is specified in the instrument of appointment; and\n\n(b) subject to this section, is eligible for re-appointment.\n\n(2) An additional Commissioner may be appointed—\n\n(a) on a full-time or part-time basis; and\n\n(b) for—\n\n(i) a specific period; or\n\n(ii) a specific inquiry or determination—\n\nas the Governor in Council determines.\n\n(3) An additional Commissioner may be suspended from office by the Governor in Council, but must not be removed from office except in accordance with this Act.\n\n(4) The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of any suspension of an additional Commissioner within 7 sitting days of the House.\n\n(5) An additional Commissioner so suspended must be restored to office by the Governor in Council unless each House of the Parliament, within 42 days after the day on which the statement is laid before it, and in the same session, declares by resolution that the additional Commissioner ought to be removed from office and, if each House within that time so declares, the additional Commissioner must be removed from office by the Governor in Council.\n\n(6) The additional Commissioner ceases to hold office if he or she becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt debtors or compounds with his or her creditors or makes an assignment of his or her property for their benefit or a deed of arrangement under any law relating to bankruptcy.\n\n(7) The additional Commissioner ceases to hold office if he or she nominates for election for either House of the Parliament of Victoria or for the Parliament of the Commonwealth or of another State or of a Territory.\n\n(8) The additional Commissioner may at any time resign by writing signed and addressed to the Governor in Council.\n\n","sortOrder":37},{"sectionNumber":"23","sectionType":"section","heading":"Payment of Chairperson and other Commissioners","content":"\t23 Payment of Chairperson and other Commissioners\n\nThe Chairperson and each additional Commissioner is entitled to be paid such remuneration and any travelling and other allowances as the Governor in Council fixes from time to time or as may be fixed in the relevant instrument of appointment.\n\nS. 23A inserted by No. 41/2021 s. 16.\n\n","sortOrder":38},{"sectionNumber":"23A","sectionType":"section","heading":"Chief executive officer","content":"\t23A Chief executive officer\n\n(1) The Commission may employ a person as the chief executive officer of the Commission.\n\n(2) The chief executive officer is responsible to the Commission for the day-to-day management of the Commission.\n\n(3) The chief executive officer is to be employed as an executive under Part 3 of the **Public Administration Act 2004**.\n\n(4) If the chief executive officer was, immediately before being appointed, a member of a statutory superannuation scheme within the meaning of the **Superannuation (Public Sector) Act 1992**, the chief executive officer continues to be a member of that superannuation scheme subject to the Act under which the scheme was created.\n\n(5) The chief executive officer must not be a Commissioner.\n\n","sortOrder":39},{"sectionNumber":"24","sectionType":"section","heading":"Staff","content":"\t24 Staff\n\nS. 24(1) amended by No. 108/2004 s. 117(1) (Sch. 3 item 70.3).\n\n(1) Any employees that are necessary for the purposes of this Act may be employed under Part 3 of the **Public Administration Act 2004**.\n\n(2) The Commission may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.\n\n","sortOrder":40},{"sectionNumber":"25","sectionType":"section","heading":"Consultants","content":"\t25 Consultants\n\n(1) The Commission may engage persons with suitable qualifications and experience as consultants.\n\n(2) An engagement under subsection (1) may be on any terms and conditions the Commission considers appropriate.\n\nS. 26 amended by No. 72/2006 s. 117, substituted by No. 41/2021 s. 17.\n\n","sortOrder":41},{"sectionNumber":"26","sectionType":"section","heading":"Delegation","content":"\t26 Delegation\n\nS. 26(1) substituted by No. 6/2024 s. 24.\n\n(1) The Commission, by instrument, may delegate to a person specified in subsection (2) any function or power of the Commission (other than the powers of the Commission under sections 33, 36, 37 and 39) under—\n\n(a) this Act; or\n\n(b) the regulations under this Act; or\n\n(c) any other subordinate instrument under this Act; or\n\n(d) relevant legislation, including any regulations or any other subordinate instrument under relevant legislation; or\n\n(e) any other Act, including—\n\n(i) the regulations under any other Act; and\n\n(ii) any other subordinate instrument under any other Act.\n\n(2) For the purposes of subsection (1), the following persons are specified—\n\n(a) a Commissioner;\n\n(b) the chief executive officer;\n\n(c) a person referred to in section 24;\n\n(d) a member of a Division, committee or panel appointed or designated by the Commission.\n\nS. 26(3) substituted by No. 13/2022 s. 77.\n\n(3) The Commission, by instrument, may delegate the powers of the Commission under section 36, 37 or 39 to—\n\n(a) a Commissioner; or\n\n(b) any person or class of person employed under Part 3 of the **Public Administration Act 2004** in the administration of this Act who is—\n\n(i) an executive within the meaning of the **Public Administration Act 2004**; or\n\n(ii) a person with a classification of Grade 6 or above or Senior Technical Specialist.\n\n","sortOrder":42},{"sectionNumber":"27","sectionType":"section","heading":"Declaration of pecuniary interests","content":"\t27 Declaration of pecuniary interests\n\n(1) If a Commissioner has a pecuniary interest in a matter which he or she is considering or is about to consider in the course of performing his or her duties as a Commissioner, the Commissioner must as soon as practicable after the relevant facts have come to the Commissioner's knowledge declare the nature of that interest to the Minister.\n\n(2) Subsection (1) does not apply if the interest is as a result of the supply of goods or services that are available to members of the public on the same terms and conditions.\n\n(3) Unless the Minister otherwise directs, if a Commissioner has made a declaration under this section, the Commissioner must not take any further part in any decision in relation to the matter.\n\n(4) A failure to comply with this section does not affect the validity of any act or decision of the Commission or a Commissioner.\n\n","sortOrder":43},{"sectionNumber":"28","sectionType":"section","heading":"Meetings of the Commission","content":"\t28 Meetings of the Commission\n\n(1) The Chairperson may convene as many meetings of the Commission as he or she considers necessary for the efficient conduct of its affairs.\n\nS. 28(2) amended by Nos 21/2019 s. 13, 41/2021 s. 18.\n\n(2) The Chairperson must preside at a meeting of the Commission.\n\n(3) Subject to section 30(2), the quorum for a meeting of the Commission is a majority of the Commissioners in office for the time being other than any additional Commissioner to whom section 29(2) applies.\n\n(4) A question arising at a meeting of the Commission is determined by a majority of the votes of the Commissioners present and voting on the question.\n\nS. 28(4A) inserted by No. 15/2008 s. 8.\n\n(4A) The Commission may transact any of its business at a meeting at which the Commissioners or any of the Commissioners participate by audio link or audio visual link.\n\nS. 28(4B) inserted by No. 15/2008 s. 8.\n\n(4B) A Commissioner who participates in a meeting in accordance with subsection (4A) is to be taken to be present at the meeting.\n\nS. 28(4C) inserted by No. 15/2008 s. 8, repealed by No. 11/2021 s. 197.\n\n(5) The person presiding has a deliberative vote and, in the event of an equality of votes on any question, a second or casting vote.\n\n(6) Subject to this Act, the Commission may regulate its own procedure.\n\n","sortOrder":44},{"sectionNumber":"29","sectionType":"section","heading":"Conduct of particular inquiry or determination","content":"\t29 Conduct of particular inquiry or determination\n\n(1) Subject to subsection (2), the Commission may determine which Commissioner or Commissioners are to be allocated to a particular inquiry or determination.\n\n(2) If the Order appointing a Commissioner specifies that the Commissioner is appointed for the purposes of a particular inquiry or determination, the Commissioner—\n\n(a) must be allocated to that inquiry or determination; and\n\n(b) may only exercise the powers conferred under this Act in relation to that inquiry or determination.\n\n(3) The Commission may constitute a Division of the Commission consisting of one or more Commissioners for the purposes of a particular inquiry or determination as the Commission determines.\n\n(4) Subject to this Act, a Division may regulate its own procedure.\n\n","sortOrder":45},{"sectionNumber":"30","sectionType":"section","heading":"Determinations of the Commission","content":"\t30 Determinations of the Commission\n\n(1) A determination of the Commission must be made at a meeting constituted as required by section 28.\n\n(2) The quorum for a meeting of the Commission at which a determination is to be made in respect of which section 29(2) applies must include the Commissioner or Commissioners appointed for the purposes of the particular inquiry or determination.\n\n","sortOrder":46},{"sectionNumber":"31","sectionType":"section","heading":"Matters to be included in annual report","content":"\t31 Matters to be included in annual report\n\nThe Commission must include the prescribed information relating to the operation and performance of the Commission in its annual report of operations under Part 7 of the **Financial Management Act 1994**.\n\n","sortOrder":47},{"sectionNumber":"Part 3","sectionType":"part","heading":"Specific powers","content":"Part 3—Specific powers\n\nS. 31A inserted by No. 41/2021 s. 19.\n\n","sortOrder":48},{"sectionNumber":"31A","sectionType":"section","heading":"Definitions","content":"\t31A Definitions\n\nIn this Part—\n\n***prescribed goods and services*** means any goods or services made, produced or supplied by or within a regulated industry which goods or services are specified in the empowering instrument as being goods or services in respect of which the Commission has power to regulate prices;\n\n***prescribed price*** means the price or price‑range however designated for the supply or sale of any goods or services by or within a regulated industry or particular factors used in price-fixing or terms and conditions relating to the price at which particular goods or services are supplied or sold, being a price, price-range, factor or term and condition specified in the empowering instrument as being a price, price-range, factor or term and condition which the Commission has power to regulate.\n\n","sortOrder":49},{"sectionNumber":"32","sectionType":"section","heading":"Price Regulation","content":"\t32 Price Regulation\n\n(1) The Commission may regulate prescribed prices for or in respect of prescribed goods and services supplied by or within a regulated industry.\n\nS. 32(2) repealed by No. 41/2021 s. 20.\n\n","sortOrder":50},{"sectionNumber":"33","sectionType":"section","heading":"Price determinations","content":"\t33 Price determinations\n\n(1) This section is subject to anything to the contrary in the empowering instrument specifying the prescribed prices or prescribed goods and services in respect of which the Commission is exercising its power of regulation.\n\n(2) In making a price determination, the Commission must adopt an approach and methodology which the Commission considers will best meet the objectives specified in this Act and any relevant legislation.\n\nS. 33(3) substituted by No. 15/2008 s. 9.\n\n(3) In making a determination under this section, the Commission must have regard to—\n\n(a) the particular circumstances of the regulated industry and the prescribed goods and services for which the determination is being made;\n\n(b) the efficient costs of producing or supplying regulated goods or services and of complying with relevant legislation and relevant health, safety, environmental and social legislation applying to the regulated industry;\n\n(c) the return on assets in the regulated industry;\n\n(d) any relevant interstate and international benchmarks for prices, costs and return on assets in comparable industries;\n\n(e) any other factors that the Commission considers relevant.\n\nS. 33(4) substituted by No. 15/2008 s. 9.\n\n(4) In making a determination under this section, the Commission must ensure that—\n\n(a) the expected costs of the proposed regulation do not exceed the expected benefits; and\n\n(b) the determination takes into account and clearly articulates any trade-offs between costs and service standards.\n\n(5) A price determination by the Commission may regulate a prescribed price for prescribed goods and services in any manner the Commission considers appropriate.\n\n(6) Without limiting the generality of subsection (5), the manner may include—\n\n(a) fixing the price or the rate of increase or decrease in the price;\n\n(b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in the maximum price;\n\n(c) fixing an average price for specified goods or services or an average rate of increase or decrease in the average price;\n\n(d) specifying pricing policies or principles;\n\n(e) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor;\n\n(f) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the rate or supply of the goods or services;\n\n(g) fixing a maximum average revenue or maximum rate of increase or minimum rate of decrease in the maximum average revenue in relation to specified goods or services;\n\n(h) monitoring the price levels of specified goods and services.\n\n","sortOrder":51},{"sectionNumber":"34","sectionType":"section","heading":"Other regulatory powers","content":"\t34 Other regulatory powers\n\n(1) The Commission may exercise such powers (including the power to make determinations) for or with respect to—\n\n(a) standards and conditions of service and supply;\n\n(b) licensing;\n\n(c) market conduct;\n\n(d) other economic regulatory matters—\n\nas may be conferred on the Commission by the empowering instrument.\n\nS. 34(2) amended by No. 15/2008 s. 10.\n\n(2) In making a determination or other regulatory decision under this section, the Commission must have regard to—\n\n(a) any factors specified in the empowering instrument; and\n\n(b) any other factors that the Commission considers relevant.\n\n(3) This section is subject to anything to the contrary in the empowering instrument.\n\n","sortOrder":52},{"sectionNumber":"35","sectionType":"section","heading":"General provisions relating to determinations","content":"\t35 General provisions relating to determinations\n\n(1) A determination must include a statement of the purpose and reasons for the making of the determination.\n\n(2) Notice of the making of a determination must be published—\n\n(b) in a daily newspaper generally circulating in Victoria; and\n\n(c) on the internet.\n\n(3) The notice must include—\n\n(a) a brief description of the nature and effect of the determination; and\n\n(b) details of when the determination takes effect and how a copy of the determination may be obtained from the Commission.\n\nS. 35(4) substituted by No. 6/2024 s. 25.\n\n(4) The Commission must—\n\n(a) publish a copy of the determination on the internet; and\n\n(b) provide a copy of the determination to any person who requests it.\n\n(5) A determination takes effect on and from—\n\n(a) the date on which notice of its making is published in the Government Gazette; or\n\n(b) any later date of commencement as may be specified in the determination.\n\n(6) Subject to anything to the contrary in the empowering instrument, a determination has effect until—\n\n(a) it is amended or revoked by a later determination; or\n\n(b) such other date as is specified in the determination.\n\n(7) A determination is binding on a regulated entity or a regulated industry specified in the determination.\n\nPt 3A (Heading and ss 35A–35D) inserted by No. 15/2008 s. 11.\n\n","sortOrder":53},{"sectionNumber":"Part 3A","sectionType":"part","heading":"Third party access regimes","content":"Part 3A—Third party access regimes\n\nS. 35A inserted by No. 15/2008 s. 11.\n\n","sortOrder":54},{"sectionNumber":"35A","sectionType":"section","heading":"Object of Part","content":"\t35A Object of Part\n\nThe object of this Part is to promote the economically efficient operation of, use of and investment in, the infrastructure by means of which services are provided, thereby promoting effective competition in upstream and downstream markets.\n\nS. 35B inserted by No. 15/2008 s. 11.\n\n","sortOrder":55},{"sectionNumber":"35B","sectionType":"section","heading":"Application of Part","content":"\t35B Application of Part\n\nThis Part applies to a regulated industry which has an access regime.\n\nS. 35C inserted by No. 15/2008 s. 11.\n\n","sortOrder":56},{"sectionNumber":"35C","sectionType":"section","heading":"Pricing principles applying in respect of regulated access prices","content":"\t35C Pricing principles applying in respect of regulated access prices\n\nThe pricing principles relating to the price of access to a service are—\n\n(a) that regulated access prices should—\n\n(i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and\n\n(ii) include a return on investment commensurate with the regulatory and commercial risks involved; and\n\n(b) that the access price structures should—\n\n(i) allow multi-part pricing and price discrimination when it aids efficiency; and\n\n(ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and\n\n(c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity.\n\nS. 35D inserted by No. 15/2008 s. 11.\n\n","sortOrder":57},{"sectionNumber":"35D","sectionType":"section","heading":"Time limit for determinations relating to third party infrastructure access regimes","content":"\t35D Time limit for determinations relating to third party infrastructure access regimes\n\n(1) Subject to this section, if the Commission has been provided with sufficient information, the Commission must make a determination relating to a third party infrastructure access regime within 6 months after receiving the application or proposal.\n\n(2) The Commission may in accordance with subsection (3) suspend the time limit applying under subsection (1) for a period not exceeding 2 months if—\n\n(a) the Commission does not have sufficient information and any reasonable request for further information has not been complied with; or\n\n(b) further time is required to enable consultation with third parties and the public; or\n\n(c) any other ground specified in the guidelines applies.\n\n(3) If the Commission proposes to suspend the time limit applying under subsection (1), the Commission must—\n\n(a) notify—\n\n(i) the Minister and the parties by notice in writing; and\n\n(ii) the public by a notice published in a daily newspaper circulating generally in Victoria;\n\n(b) specify in the notice—\n\n(i) the reason why the time limit is being suspended; and\n\n(ii) the date by which the Commission proposes to use its best endeavours to make a decision on the application or proposal.\n\n(4) The Commission may suspend the time limit applying under subsection (1) by a further period not exceeding 2 months if the Commission—\n\n(a) first obtains the approval of the Minister; and\n\n(b) complies with subsection (3).\n\n(5) Despite subsection (2)(a), the Commission may make a determination within the time limit applying under subsection (1) on the information available to the Commission if the service provider of a significant infrastructure facility has not provided the further information requested within the specified period.\n\nPt 4 (Heading and ss 36–39) amended by Nos 49/2002 s. 21, 15/2008 ss 6(3), 12–16, 40/2011 s. 24, 58/2012 ss 93, 135, 21/2019 ss 5, 16, substituted as Pt 4 (Headings and ss 36–39J) by No. 41/2021 s. 5.\n\n","sortOrder":58},{"sectionNumber":"Part 4","sectionType":"part","heading":"Information gathering notices","content":"Part 4—Information gathering notices\n\nDivision 1—Information gathering notices\n\nS. 36 substituted by No. 41/2021 s. 5.\n\n","sortOrder":59},{"sectionNumber":"36","sectionType":"section","heading":"Information gathering notices—performing functions or exercising powers","content":"\t36 Information gathering notices—performing functions or exercising powers\n\n(1) If the Commission considers it necessary for the purposes of performing its functions or exercising its powers, the Commission may serve a notice on a person requiring the person to do one or more of the following—\n\n(a) provide to the Commission, in writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, any information or class of information specified in the notice before a specified time and in a specified manner;\n\n(b) produce to the Commission a document or class of document specified in the notice that is in the person's possession, custody or control, before a specified time and in a specified manner;\n\n(c) appear before the Commission at a time and place specified in the notice to do either or both of the following—\n\n(i) give information*,* including by answering questions, either orally or in writing;\n\n(ii) produce a document or class of document specified in the notice that is in the person's possession, custody or control.\n\n(2) In exercising the power to serve an information gathering notice under subsection (1), the Commission must have regard to—\n\n(a) the relevance of the information, document or evidence sought; and\n\n(b) the estimated compliance costs.\n\n(3) Despite subsection (1), the Commission must not serve an information gathering notice under this section if it could serve one under section 37(1).\n\n(4) A person must not—\n\n(a) without reasonable excuse, refuse or fail to comply with an information gathering notice under subsection (1); or\n\n(b) in purported compliance with an information gathering notice under subsection (1), knowingly—\n\n(i) provide false or misleading information; or\n\n(ii) produce documents that are false or misleading.\n\nSee section 39A in relation to the protection against self-incrimination.\n\n(5) The Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter that relates to its powers or functions  until—\n\n(a) the Commission commences a proceeding in relation to the matter (other than a proceeding for an injunction, whether interim or final); or\n\n(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.\n\nS. 37 substituted by No. 41/2021 s. 5.\n\n","sortOrder":60},{"sectionNumber":"37","sectionType":"section","heading":"Information gathering notices—matters that constitute contravention of essential services requirement","content":"\t37 Information gathering notices—matters that constitute contravention of essential services requirement\n\n(1) If the Commission believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of an essential services requirement, the Commission may serve a notice on the person requiring the person to do one or more of the following—\n\n(a) provide to the Commission, in writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, any information or class of information specified in the notice before a specified time and in a specified manner;\n\n(b) produce to the Commission a document or class of document specified in the notice that is in the person's possession, custody or control, before a specified time and in a specified manner;\n\n(c) appear before the Commission at a time and place specified in the notice to do either or both of the following—\n\n(i) give evidence, including by answering questions, either orally or in writing;\n\n(ii) produce a document or class of document specified in the notice that is in the person's possession, custody or control.\n\n(2) A person must not—\n\n(a) without reasonable excuse, refuse or fail to comply with an information gathering notice under subsection (1); or\n\n(b) in purported compliance with an information gathering notice under subsection (1), knowingly—\n\n(i) provide false or misleading information; or\n\n(ii) produce documents that are false or misleading.\n\nSee section 39B in relation to the protection against self-incrimination.\n\n(3) The Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter that constitutes, or may constitute, a contravention of an essential services requirement  until—\n\n(a) the Commission commences a proceeding in relation to the matter (other than a proceeding for an injunction, whether interim or final); or\n\n(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.\n\nS. 38 substituted by No. 41/2021 s. 5.\n\n","sortOrder":61},{"sectionNumber":"38","sectionType":"section","heading":"Form of information gathering notice","content":"\t38 Form of information gathering notice\n\nAn information gathering notice must—\n\n(a) be in writing; and\n\n(b) specify the following matters—\n\n(i) the person on whom it is served;\n\n(ii) the purpose of the information gathering notice;\n\n(iii) the information or class of information (if any) required to be provided to the Commission and the time and manner by which it must be provided;\n\n(iv) the document or class of document (if any) required to be produced to the Commission and the time and manner by which it must be produced;\n\n(v) the time and place (if any) at which a person is required to appear before the Commission to give information or evidence or to produce a document;\n\n(vi) whether the notice served is under section 36(1) or 37(1); and\n\n(c) include a copy of this Part.\n\nSee section 64 for service requirements under this Act, including for information gathering notices.\n\nDivision 2—Compliance with information gathering notices\n\nS. 39 substituted by No. 41/2021 s. 5.\n\n","sortOrder":62},{"sectionNumber":"39","sectionType":"section","heading":"Power to examine on oath or affirmation","content":"\t39 Power to examine on oath or affirmation\n\nIf a person is required to appear before the Commission to give evidence in compliance with an information gathering notice under section 37(1), the Commission may administer an oath or affirmation to the person.\n\nS. 39A inserted by No. 41/2021 s. 5.\n\n","sortOrder":63},{"sectionNumber":"39A","sectionType":"section","heading":"Protection against self-incrimination—information gathering notices under section 36(1)","content":"\t39A Protection against self-incrimination—information gathering notices under section 36(1)\n\n(1) It is a reasonable excuse for a natural person to refuse or fail to provide information, in compliance with an information gathering notice under section 36(1), if the provision of the information would tend to incriminate the person or expose the person to a penalty.\n\n(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce, in compliance with an information gathering notice under section 36(1), if the production of the document would tend to incriminate the person or expose the person to a penalty.\n\n(3) It is not a reasonable excuse for a body corporate to refuse or fail to provide information or produce a document, in compliance with an information gathering notice under section 36(1), if the provision of the information or production of the document would tend to incriminate the body corporate or expose the body corporate to a penalty.\n\n(4) Any information given or document produced by a natural person or body corporate in compliance with an information gathering notice under section 36(1) is not admissible as evidence against that natural person or body corporate in any proceeding, other than in—\n\n(a) a proceeding arising out of the false or misleading nature of the information or document; or\n\n(b) a review under Part 7B; or\n\n(c) a proceeding for a monetary benefits order under section 61B.\n\nS. 39B inserted by No. 41/2021 s. 5.\n\n","sortOrder":64},{"sectionNumber":"39B","sectionType":"section","heading":"Protection against self-incrimination—information gathering notices under section 37(1)","content":"\t39B Protection against self-incrimination—information gathering notices under section 37(1)\n\n(1) It is not a reasonable excuse for a natural person or a body corporate to refuse or to fail to provide information, produce a document or give evidence, in compliance with an information gathering notice under section 37(1), if the provision of the information, production of the document or giving of the evidence would tend to incriminate the natural person or body corporate or expose the natural person or body corporate to a penalty.\n\n(2) Any information provided, document produced or evidence given by a natural person, in compliance with an information gathering notice under section 37(1), is not admissible as evidence against that natural person in a criminal proceeding, other than in a proceeding arising out of the false or misleading nature of the information or document.\n\n(3) Any information provided, document produced or evidence given by a body corporate, in compliance with an information gathering notice under section 37(1), is not admissible as evidence against that body corporate in a criminal proceeding, other than—\n\n(a) in a proceeding arising out of the false or misleading nature of the information or document; or\n\n(b) in a criminal proceeding under this Act or relevant legislation.\n\nS. 39C inserted by No. 41/2021 s. 5.\n\n","sortOrder":65},{"sectionNumber":"39C","sectionType":"section","heading":"Offence of coercion etc. against person who complies with information gathering notice","content":"\t39C Offence of coercion etc. against person who complies with information gathering notice\n\nA person must not, because another person complied, or intends to comply, with an information gathering notice—\n\n(a) threaten, intimidate or coerce the other person; or\n\n(b) take, threaten to take, incite or be involved in any action that causes the other person to suffer any loss, injury or disadvantage.\n\nPenalty: 120 penalty units.\n\nS. 39D inserted by No. 41/2021 s. 5.\n\n","sortOrder":66},{"sectionNumber":"39D","sectionType":"section","heading":"No liability for loss, damage or injury","content":"\t39D No liability for loss, damage or injury\n\nA person is not liable in any way for any loss, damage or injury suffered by another person because of the giving, in good faith, of any information, document or evidence to the Commission in compliance with an information gathering notice.\n\nDivision 3—Documents\n\nS. 39E inserted by No. 41/2021 s. 5.\n\n","sortOrder":67},{"sectionNumber":"39E","sectionType":"section","heading":"Powers in relation to documents","content":"\t39E Powers in relation to documents\n\nIf a document is produced to the Commission in compliance with an information gathering notice, the Commission may do one or more of the following—\n\n(a) inspect the document or authorise a person to inspect the document;\n\n(b) make copies of or take extracts of the document;\n\n(c) seize the document if the Commission—\n\n(i) considers the document necessary for obtaining evidence for the purpose of any proceeding against a person under this Act or relevant legislation; or\n\n(ii) believes on reasonable grounds that it is necessary to seize the document to prevent its concealment, loss or destruction or its use in the contravention of an essential services requirement;\n\n(d) secure a seized document against interference;\n\n(e) retain possession of the document in accordance with this Part.\n\nS. 39F inserted by No. 41/2021 s. 5.\n\n","sortOrder":68},{"sectionNumber":"39F","sectionType":"section","heading":"Copies of seized documents","content":"\t39F Copies of seized documents\n\n(1) If the Commission retains possession of a document seized from a person under this Part, the Commission must give the person, as soon as practicable after the seizure, a copy of the document certified as correct by the Commission.\n\n(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals as evidence of equal validity to the original.\n\nS. 39G inserted by No. 41/2021 s. 5.\n\n","sortOrder":69},{"sectionNumber":"39G","sectionType":"section","heading":"Retention and return of seized documents","content":"\t39G Retention and return of seized documents\n\n(1) Subject to subsection (2), the Commission must take reasonable steps to ensure that a document seized by the Commission under this Part is returned to the relevant person not later than 3 months after its seizure.\n\n(2) The Commission is only required to return a document under subsection (1) if the Commission is satisfied that—\n\n(a) the document is not required (or is no longer required) for the purpose for which it was seized; and\n\n(b) the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure under section 39E(c); and\n\n(c) the document is not subject to a dispute as to the ownership which would be appropriately resolved by making an application under section 39H for the return of the document.\n\n(3) This section does not apply if the Magistrates' Court makes an order under section 39I extending the period during which the document may be retained.\n\n(4) Nothing in this section prevents the return of a document to its owner at any time if the Commission considers there is no need for its continued retention.\n\n(5) In this section—\n\n***relevant person***, in relation to a document, means—\n\n(a) the person from whom the document was seized; or\n\n(b) the owner of the document if the person from whom it was seized is not entitled to possess it.\n\nS. 39H inserted by No. 41/2021 s. 5.\n\n","sortOrder":70},{"sectionNumber":"39H","sectionType":"section","heading":"Application for return of seized document","content":"\t39H Application for return of seized document\n\n(1) For the purposes of section 39G(2)(c), an application for the return of a document seized under this Part may be made to the Magistrates' Court by—\n\n(a) the person from whom it was seized; or\n\n(b) a person who claims to be the owner.\n\n(2) A person who makes an application under subsection (1) must serve a copy of the application on the Commission.\n\n(3) The Commission is entitled to appear before the Magistrates' Court and be heard in relation to an application under subsection (1).\n\n(4) The Magistrates' Court may make an order for the return of the document to the person from whom it was seized or, if that person is not entitled to possess it, to the owner, if the Court is satisfied that—\n\n(a) the document is not required (or is no longer required) for the purpose for which it was seized; and\n\n(b) the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure under section 39E(c).\n\nS. 39I inserted by No. 41/2021 s. 5.\n\n","sortOrder":71},{"sectionNumber":"39I","sectionType":"section","heading":"Magistrates' Court may extend 3-month period","content":"\t39I Magistrates' Court may extend 3-month period\n\n(1) The Commission may apply to the Magistrates' Court for an extension, not exceeding 3 months, of the period for which the Commission may retain a document seized under this Part—\n\n(a) not later than 3 months after seizing the document; or\n\n(b) before the end of the period of the extension, if an extension has been granted under subsection (2).\n\n(2) The Magistrates' Court may order such an extension if the Court is satisfied that—\n\n(a) it is in the interests of justice; and\n\n(b) the total period of retention does not exceed 12 months; and\n\n(c) retention of the document is necessary—\n\n(i) for the purposes of an investigation into whether a contravention of an essential services requirement has occurred; or\n\n(ii) to enable evidence of a contravention of an essential services requirement to be obtained for the purposes of a proceeding under this Act or relevant legislation.\n\n(3) The Magistrates' Court must consider the interests of the owner of the document and may adjourn an application to enable notice of the application to be given to any person.\n\nDivision 4—When Commission must not serve information gathering notice\n\nS. 39J inserted by No. 41/2021 s. 5.\n\n","sortOrder":72},{"sectionNumber":"39J","sectionType":"section","heading":"Matters about which the Commission must not serve information gathering notice","content":"\t39J Matters about which the Commission must not serve information gathering notice\n\n(1) The Commission must not serve an information gathering notice in respect of information, a document or evidence specified in subsection (2).\n\n(2) For the purposes of subsection (1), the following information, documents and evidence are specified—\n\n(a) financial and business records that the Commission may require a person to make available to it under section 56 of the **Port Management Act 1995**;\n\n(b) information that the Commission may direct a person to provide it with under section 185E(5)(b) of the **Local Government Act 1989**;\n\n(c) information or documents that the Commission may require from a person under section 60 of the **Victorian Energy Efficiency Target Act 2007**;\n\n(d) information or documents that the Commission may require from a person under section 85 of the **Victorian Renewable Energy Act 2006**;\n\nS. 39J(2)(e) amended by No. 6/2024 s. 26(a).\n\n(e) evidence or documents that the Commission may require from a person under section 212E of the **Accident Towing Services Act 2007**.\n\nS. 39J(2)(f) repealed by No. 6/2024 s. 26(b).\n\nPt 4A (Heading and ss 39K, 39L) inserted by No. 41/2021 s. 5.\n\n","sortOrder":73},{"sectionNumber":"Part 4A","sectionType":"part","heading":"Provision of information relating to regulated entities","content":"Part 4A—Provision of information relating to regulated entities\n\nS. 39K inserted by No. 41/2021 s. 5.\n\n","sortOrder":74},{"sectionNumber":"39K","sectionType":"section","heading":"Provision of information relating to regulated entities","content":"\t39K Provision of information relating to regulated entities\n\n(1) The Commission, by written notice, may request a regulated entity to provide to the Commission any information or class of information relating to the regulated entity in the manner and form specified in the notice.\n\n(2) A regulated entity must comply with a request under subsection (1).\n\n(3) If information relating to a regulated entity is held by a third party, the Commission may require the regulated entity to enter into an arrangement with the third party under which the third party is to provide the information to the Commission.\n\n(4) In exercising the power to make a request under subsection (1) or to require a regulated entity to enter into an arrangement under subsection (3), the Commission must have regard to—\n\n(a) the relevance of the information, document or evidence sought; and\n\n(b) the estimated compliance costs.\n\n(5) The Commission may specify the kind or class of information which a regulated entity must maintain for the purposes of this section in a Code of Practice.\n\nS. 39L inserted by No. 41/2021 s. 5.\n\n","sortOrder":75},{"sectionNumber":"39L","sectionType":"section","heading":"Matters about which the Commission must not gather information under this Part","content":"\t39L Matters about which the Commission must not gather information under this Part\n\n(1) The Commission must not make a request under section 39K(1) or require a regulated entity to enter an into arrangement under section 39K(3) in respect of specified information, a document or evidence specified in subsection (2).\n\n(2) For the purposes of subsection (1), the following information, documents and evidence are specified—\n\n(a) financial and business records that the Commission may require a person to make available to it under section 56 of the **Port Management Act 1995**;\n\nS. 39L(2)(b) amended by No. 6/2024 s. 27(a).\n\n(b) evidence or documents that the Commission may require from a person under section 212E of the **Accident Towing Services Act 2007**.\n\nS. 39L(2)(c) repealed by No. 6/2024 s. 27(b).\n\nPt 4B (Headings and ss 39M–39ZK) inserted by No. 41/2021 s. 5.\n\n","sortOrder":76},{"sectionNumber":"Part 4B","sectionType":"part","heading":"Inspection powers","content":"Part 4B—Inspection powers\n\nDivision 1—Inspectors\n\nS. 39M inserted by No. 41/2021 s. 5.\n\n","sortOrder":77},{"sectionNumber":"39M","sectionType":"section","heading":"Appointment of inspectors","content":"\t39M Appointment of inspectors\n\n(1) The Commission may appoint, by instrument, any of the following persons as an inspector—\n\n(a) an employee of the Commission;\n\n(b) a person employed under Part 3 of the **Public Administration Act 2004**;\n\n(c) any other person employed by the State;\n\n(d) any other person who the Commission considers has appropriate skills, qualifications and experience.\n\n(2) The Commission must not appoint a person as an inspector unless the Commission is satisfied that the person is appropriately qualified or has successfully completed appropriate training.\n\n(3) In exercising powers or performing functions as an inspector, an inspector must comply with any direction of the Commission.\n\nS. 39N inserted by No. 41/2021 s. 5.\n\n","sortOrder":78},{"sectionNumber":"39N","sectionType":"section","heading":"Inspector's identification","content":"\t39N Inspector's identification\n\n(1) The Commission must issue an identification card to each inspector.\n\n(2) The identification card must contain a photograph of the inspector to whom it is issued.\n\nS. 39O inserted by No. 41/2021 s. 5.\n\n","sortOrder":79},{"sectionNumber":"39O","sectionType":"section","heading":"Production of identification","content":"\t39O Production of identification\n\nAn inspector must produce their identification card for inspection—\n\n(a) before exercising a power under this Part; and\n\n(b) at any time during the exercise of a power under this Part, if asked to do so.\n\nPenalty: 10 penalty units.\n\nDivision 2—Entry and search of premises with consent\n\nS. 39P inserted by No. 41/2021 s. 5.\n\n","sortOrder":80},{"sectionNumber":"39P","sectionType":"section","heading":"Entry and search with consent","content":"\t39P Entry and search with consent\n\n(1) If an inspector believes on reasonable grounds that a person may have contravened an essential services requirement, the inspector, with the consent of the occupier of the premises, may—\n\n(a) enter and search the premises; and\n\n(b) exercise a power set out in subsection (2) at the premises.\n\n(2) For the purposes of subsection (1)(b), an inspector has the power to—\n\n(a) seize any document or computer that the inspector finds on the premises, if the inspector believes on reasonable grounds that the document or computer is connected with the alleged contravention; or\n\n(b) require any document on the premises to be produced for examination and, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—\n\n(i) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; or\n\n(ii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; or\n\n(c) make any still or moving image, audio recording or audio visual recording, if the inspector believes on reasonable grounds that it is necessary to do so for the purpose of establishing the alleged contravention.\n\nS. 39Q inserted by No. 41/2021 s. 5.\n\n","sortOrder":81},{"sectionNumber":"39Q","sectionType":"section","heading":"Notice before entry and search","content":"\t39Q Notice before entry and search\n\nAn inspector must not enter and search any premises under section 39P unless, before the occupier consents to the entry, the inspector has—\n\n(a) produced the inspector's identification for inspection; and\n\n(b) informed the occupier—\n\n(i) of the purpose of the search; and\n\n(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any document or computer found during the search; and\n\n(iii) that the occupier may refuse to give consent to the taking of any copy or extract from a document found during the search; and\n\n(iv) that the occupier may refuse to produce any document required to be produced for examination; and\n\n(v) that the occupier may refuse to give consent to the making of any still or moving image, audio recording or audio visual recording; and\n\n(vi) that any document or computer seized or taken during the search with the consent of the occupier may be used in evidence in a proceeding.\n\nS. 39R inserted by No. 41/2021 s. 5.\n\n","sortOrder":82},{"sectionNumber":"39R","sectionType":"section","heading":"Acknowledgement of consent to entry and search","content":"\t39R Acknowledgement of consent to entry and search\n\n(1) If an occupier of premises consents to the entry and search of premises by an inspector under section 39P, the inspector must, before entering the premises, ask the occupier to sign an acknowledgement.\n\n(2) For the purposes of subsection (1), the acknowledgement must state—\n\n(a) that the occupier has been informed—\n\n(i) of the purpose of the search; and\n\n(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any document or computer found during the search; and\n\n(iii) that the occupier may refuse to give consent to the taking of any document or any copy or extract from a document found on the premises during the search; and\n\n(iv) that the occupier may refuse to produce any document required to be produced for examination; and\n\n(v) that the occupier may refuse to give consent to the making of any still or moving image, audio recording or audio visual recording; and\n\n(vi) that any document or computer seized or taken during the search with the consent of the occupier may be used in evidence in a proceeding; and\n\n(b) that the occupier has consented to the entry and search; and\n\n(c) the date and time that the occupier consented.\n\n(3) If an occupier of premises consents to the seizure or taking of any document or computer during a search of the premises by the inspector, the inspector must, before seizing or taking the document or computer, ask the occupier to sign an acknowledgement.\n\n(4) For the purposes of subsection (3), the acknowledgement must state—\n\n(a) that the occupier has consented to the seizure or taking of the document or computer; and\n\n(b) the date and time that the occupier consented.\n\n(5) An inspector must give a copy of a signed acknowledgement to the occupier before leaving the premises.\n\n(6) If, in any proceeding, a signed acknowledgement is not produced to the court or a tribunal, it must be presumed until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the document or computer.\n\nDivision 3—Entry and search of premises with warrant\n\nS. 39S inserted by No. 41/2021 s. 5.\n\n","sortOrder":83},{"sectionNumber":"39S","sectionType":"section","heading":"Search warrants","content":"\t39S Search warrants\n\n(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector has reasonable grounds to suspect that—\n\n(a) there is, or may be within the next 72 hours, on the premises evidence that a person may have contravened an essential services requirement; or\n\n(b) there is evidence in digital or electronic format that a person may have contravened an essential services requirement which is accessible from the premises.\n\n(2) A magistrate may issue a search warrant if the magistrate is satisfied that there are reasonable grounds to suspect that—\n\n(a) there is, or may be within the next 72 hours, on the premises a document or a computer, or a document or a computer of a particular kind, connected with an alleged contravention by a person of an essential services requirement; or\n\n(b) there is information in digital or electronic format connected with an alleged contravention by a person of an essential services requirement which is accessible from the premises.\n\nS. 39T inserted by No. 41/2021 s. 5.\n\n","sortOrder":84},{"sectionNumber":"39T","sectionType":"section","heading":"Form and content of search warrants","content":"\t39T Form and content of search warrants\n\n(1) A search warrant issued under section 39S(2) may authorise the inspector named in the warrant to enter premises specified in the warrant, if necessary by force, and do one or more of the following—\n\n(a) in the case of a document, or document of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—\n\n(i) require the document to be produced for inspection; or\n\n(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts from the document; or\n\n(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;\n\n(b) in the case of a computer, or a computer of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that the computer is connected with the alleged contravention—\n\n(i) search for the computer; or\n\n(ii) seize the computer; or\n\n(iii) secure the computer against interference;\n\n(c) make an image of the hard drive of a computer, or a computer of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that information contained on the hard drive is connected with the alleged contravention;\n\n(d) in the case of information in electronic or digital format described in the warrant that is accessible from the premises, if the inspector believes on reasonable grounds that the information is connected with the alleged contravention—\n\n(i) access the information by means of any computer located on the premises; or\n\n(ii) download or make an electronic copy of that information; or\n\n(iii) make or produce a physical copy of that information.\n\n(2) A search warrant issued under section 39S(2) may authorise, in addition to an inspector, any other person named or otherwise identified in the warrant to execute the warrant.\n\n(3) A search warrant issued under section 39S(2) must state—\n\n(a) the purpose for which the search is required and the nature of the alleged contravention; and\n\n(b) any conditions to which the warrant is subject; and\n\n(c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and\n\n(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.\n\n(4) Except as provided by this section, the rules to be observed with respect to search warrants under the **Magistrates' Court Act 1989** extend and apply to warrants issued under section 39S(2).\n\n(5) A search warrant must be issued in accordance with the **Magistrates' Court Act 1989** and in the form set out in the rules of court under that Act.\n\n(6) Despite section 78 of the **Magistrates' Court Act 1989**, a search warrant must not authorise an inspector to arrest a person.\n\nS. 39U inserted by No. 41/2021 s. 5.\n\n","sortOrder":85},{"sectionNumber":"39U","sectionType":"section","heading":"Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer","content":"\t39U Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer\n\n(1) This section applies if a magistrate is satisfied that there are reasonable grounds to believe that there is information in digital or electronic format connected with a contravention by a person of an essential services requirement  that is accessible from particular premises.\n\n(2) Subject to subsection (3), a warrant issued by a magistrate under section 39S(2) may authorise the inspector named in the warrant to require a person to provide any information or assistance that is reasonable and necessary to allow the inspector or another person to do one or more of the following—\n\n(a) access information held in, or accessible from, any computer located on the premises;\n\n(b) download or make an electronic copy of that information;\n\n(c) make or produce a physical copy of that information.\n\n(3) The inspector may require a person to provide the information or assistance referred to in subsection (2) if the person—\n\n(a) is one of the following—\n\n(i) the person alleged to have contravened the essential services requirement;\n\n(ii) the owner or lessee of the computer;\n\n(iii) an employee of the owner or lessee of the computer;\n\n(iv) a person engaged under a contract for services by the owner or lessee of the computer; and\n\n(b) has relevant knowledge of—\n\n(i) the computer or a computer network of which the computer forms or formed part; or\n\n(ii) the measures applied to protect information held in, or accessible from, the computer.\n\nS. 39V inserted by No. 41/2021 s. 5.\n\n","sortOrder":86},{"sectionNumber":"39V","sectionType":"section","heading":"Announcement before entry","content":"\t39V Announcement before entry\n\n(1) On executing a search warrant issued under section 39S(2), the inspector named in the warrant—\n\n(a) must announce that the warrant authorises the inspector to enter the premises; and\n\n(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.\n\n(2) An inspector is not required to comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the search warrant is not frustrated.\n\nS. 39W inserted by No. 41/2021 s. 5.\n\n","sortOrder":87},{"sectionNumber":"39W","sectionType":"section","heading":"Details of warrant to be given to occupier","content":"\t39W Details of warrant to be given to occupier\n\n(1) If the occupier is present at premises where a search warrant is being executed, the inspector must—\n\n(a) identify themselves to the occupier; and\n\n(b) give to the occupier a copy of the warrant.\n\n(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—\n\n(a) identify themselves to a person at the premises; and\n\n(b) give to the person a copy of the warrant.\n\nS. 39X inserted by No. 41/2021 s. 5.\n\n","sortOrder":88},{"sectionNumber":"39X","sectionType":"section","heading":"Seizure of documents or computers not mentioned in the warrant","content":"\t39X Seizure of documents or computers not mentioned in the warrant\n\nA search warrant issued under section 39S(2) authorises an inspector, in addition to the seizure of any document or computer of the kind described in the warrant, to seize or take a document or computer which is not of the kind described in the warrant, if—\n\n(a) the inspector believes on reasonable grounds that the document or computer—\n\n(i) is of a kind which could have been included in a search warrant issued under section 39S(2); or\n\n(ii) will afford evidence about the alleged contravention by a person of an essential services requirement; and\n\n(b) the inspector believes on reasonable grounds that it is necessary to seize that document or computer in order to prevent its concealment, loss or destruction or its use in the alleged contravention by a person of an essential services requirement.\n\nDivision 4—Documents and computers\n\nS. 39Y inserted by No. 41/2021 s. 5.\n\n","sortOrder":89},{"sectionNumber":"39Y","sectionType":"section","heading":"Copies of seized documents","content":"\t39Y Copies of seized documents\n\n(1) If an inspector retains possession of a document seized from a person under this Part, the inspector must give the person, as soon as practicable after the seizure, a copy of the document certified as correct by the inspector.\n\n(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals as evidence of equal validity to the original.\n\nS. 39Z inserted by No. 41/2021 s. 5.\n\n","sortOrder":90},{"sectionNumber":"39Z","sectionType":"section","heading":"Retention and return of seized documents or computers","content":"\t39Z Retention and return of seized documents or computers\n\n(1) Subject to subsection (2), an inspector must take reasonable steps to ensure that a document or computer that the inspector has seized under this Part is returned to the relevant person not later than 3 months after its seizure.\n\n(2) The inspector is only required to return a document or computer under subsection (1), if the inspector is satisfied that—\n\n(a) the document or computer is not required (or is no longer required) for the purpose for which it was seized; and\n\n(b) the continued retention of the document or computer is not necessary to prevent the document or computer being used in a way that would justify its seizure under this Part; and\n\n(c) the document or computer is not subject to a dispute as to ownership which would be appropriately resolved by making an application under section 39ZA for the return of the document or computer.\n\n(3) This section does not apply if the Magistrates' Court makes an order under section 39ZB extending the period during which the document or computer may be retained.\n\n(4) Nothing in this section affects a lien or other security over a computer.\n\n(5) Nothing in this section prevents the return of a document or computer to its owner at any time if the Commission considers there is no reason for its continued retention.\n\n(6) In this section—\n\n***relevant person***, in relation to a document or computer means—\n\n(a) the person from whom the document or computer was seized; or\n\n(b) the owner of the document or computer if the person from whom it was seized is not entitled to possess it.\n\nS. 39ZA inserted by No. 41/2021 s. 5.\n\n\t39ZA Application for return of seized documents or computers\n\n(1) For the purposes of section 39Z(2)(c), an application for the return of a document or computer seized under this Part may be made to the Magistrates' Court by—\n\n(a) the person from whom it was seized; or\n\n(b) a person who claims to be the owner.\n\n(2) A person who makes an application under subsection (1) must serve a copy of the application on the Commission.\n\n(3) The Commission is entitled to appear before the Magistrates' Court and be heard in relation to an application under subsection (1).\n\n(4) The Magistrates' Court may make an order for the return of the document or computer to the person from whom it was seized or, if that person is not entitled to possess it, to the owner, if the Court is satisfied that—\n\n(a) the document or computer is not required (or is no longer required) for the purpose for which it was seized; and\n\n(b) the continued retention of the document or computer is not necessary to prevent the document or computer being used in a way that would justify its seizure under this Part.\n\nS. 39ZB inserted by No. 41/2021 s. 5.\n\n\t39ZB Magistrates' Court may extend 3-month period\n\n(1) If an inspector seizes a document or computer under this Part, the inspector may apply to the Magistrates' Court for an order for an extension, not exceeding 3 months, of the period for which the inspector may retain the document or computer.\n\n(2) An application under subsection (1) must be made—\n\n(a) not later than 3 months after seizing a document or computer under this Part; or\n\n(b) if an extension has been granted under this section, before the end of the period of the extension.\n\n(3) The Magistrates' Court may make the order if the Court is satisfied that—\n\n(a) it is in the interests of justice; and\n\n(b) the total period of retention does not exceed 12 months; and\n\n(c) retention of the document or computer is necessary—\n\n(i) for the purposes of an investigation into whether a contravention of an essential services requirement has occurred; or\n\n(ii) to enable evidence of an alleged contravention of an essential services requirement to be obtained for the purposes of a proceeding under this Act or relevant legislation.\n\n(4) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or computer described in the application.\n\nDivision 5—Offences\n\nS. 39ZC inserted by No. 41/2021 s. 5.\n\n\t39ZC Refusal or failure to comply with requirement\n\nA person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector under this Part.\n\nS. 39ZD inserted by No. 41/2021 s. 5.\n\n\t39ZD Protection against self-incrimination\n\n(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person or expose the person to a penalty.\n\n(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person or expose the person to a penalty.\n\n(3) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required under section 39U to provide, if the provision of the information or assistance would tend to incriminate the person or expose the person to a penalty.\n\nS. 39ZE inserted by No. 41/2021 s. 5.\n\n\t39ZE Offence to hinder or obstruct inspector\n\nA person must not, without reasonable excuse, hinder or obstruct an inspector who is exercising a power under this Part.\n\nS. 39ZF inserted by No. 41/2021 s. 5.\n\n\t39ZF Offence to impersonate inspector\n\nA person who is not an inspector must not, in any way, hold themselves out to be an inspector.\n\nDivision 6—Miscellaneous\n\nS. 39ZG inserted by No. 41/2021 s. 5.\n\n\t39ZG Requirement to assist inspector during entry\n\nAn inspector exercising a power of entry under this Part may require a person at the premises—\n\n(a) to give information to the inspector, orally or in writing; and\n\n(b) to produce documents to the inspector; and\n\n(c) to give reasonable assistance to the inspector.\n\nS. 39ZH inserted by No. 41/2021 s. 5.\n\n\t39ZH Entry to be reported to the Commission\n\n(1) If an inspector exercises a power of entry under Division 3, the inspector must report the exercise of the power to the Commission not later than 7 days after the entry.\n\n(2) The report must include all relevant details of the entry including—\n\n(a) the time and place of the entry; and\n\n(b) the purpose of the entry; and\n\n(c) a description of things done while on the premises, including details of—\n\n(i) documents seized, copies made and extracts taken; and\n\n(ii) computers seized; and\n\n(d) the time of departure.\n\nS. 39ZI inserted by No. 41/2021 s. 5.\n\n\t39ZI Register of exercise of powers of entry\n\nThe Commission must keep and maintain a register containing the particulars of all matters reported to the Commission under section 39ZH.\n\nS. 39ZJ inserted by No. 41/2021 s. 5.\n\n\t39ZJ Complaints\n\n(1) A person may complain to the Commission about the exercise of a power by an inspector under this Part.\n\n(2) The Commission must—\n\n(a) investigate any complaint made to the Commission; and\n\n(b) provide a written report to the complainant on the results of the investigation.\n\nDivision 7—When inspector must not exercise search and seizure powers or apply for search warrants\n\nS. 39ZK inserted by No. 41/2021 s. 5.\n\n\t39ZK Matters about which inspectors must not exercise search and seizure powers or apply for search warrants\n\nAn inspector must not exercise a power or apply for the issue of a search warrant under this Part—\n\n(a) on the grounds that a person may have contravened a provision of Part 3 of the **Grain Handling and Storage Act 1995**; or\n\n(b) on the grounds that a person may have contravened Part 3 of the **Port Management Act 1995** or for the purposes of conducting an inquiry under section 49Z of that Act.\n\nPt 4C (Heading and s. 39ZL) inserted by No. 41/2021 s. 5.\n\nPart 4C—Court may order compliance with requirements\n\nS. 39ZL inserted by No. 41/2021 s. 5.\n\n\t39ZL Powers of court if requirement of Commission or inspector not complied with\n\n(1) Subject to subsection (2), if the Commission is satisfied that a person has failed, without reasonable excuse, to comply with a requirement under section 36, 37 or 39ZG, the Commission may apply to a court for an order directing the person to comply with the requirement.\n\n(2) The Commission must not make an application under subsection (1) if the person to whom the failure relates has been charged with an offence under section 36(4), 37(2) or 39ZC (as the case requires).\n\n(3) On an application under subsection (1), the court may—\n\n(a) order the person to comply with the requirement within a period specified in the order; and\n\n(b) make any other orders it considers appropriate.\n\n(4) If a proceeding is commenced under this section in relation to a failure to comply with a requirement, the person to whom the failure relates cannot be charged with an offence under section 36(4), 37(2) or 39ZC (as the case requires).\n\n","sortOrder":91},{"sectionNumber":"Part 5","sectionType":"part","heading":"Inquiries and reports","content":"Part 5—Inquiries and reports\n\n","sortOrder":92},{"sectionNumber":"40","sectionType":"section","heading":"Inquiry by Commission","content":"\t40 Inquiry by Commission\n\nThe Commission may after consultation with the Minister conduct an inquiry if the Commission considers an inquiry is necessary or desirable for the purpose of carrying out its functions.\n\n","sortOrder":93},{"sectionNumber":"41","sectionType":"section","heading":"Minister may refer matter for inquiry","content":"\t41 Minister may refer matter for inquiry\n\n(1) The Commission must conduct an inquiry into any matter which the Minister by written notice refers to the Commission under this Part.\n\nS. 41(1A) inserted by No. 15/2008 s. 17.\n\n(1A) The Minister is responsible for referring any matter to the Commission for an inquiry unless relevant legislation provides that the Minister administering the relevant legislation may refer a matter to the Commission for an inquiry.\n\nS. 41(1B) inserted by No. 15/2008 s. 17.\n\n(1B) Before referring a matter to the Commission for an inquiry, the Minister must consult with any Minister who has responsibilities in respect of that matter.\n\n(2) The written notice must specify the terms of reference for the inquiry.\n\n(3) The Minister may—\n\n(a) specify a period within which a report is to be submitted to the Minister;\n\n(b) require the Commission to make a draft report publicly available or available to specified persons or bodies during the inquiry;\n\n(c) require the Commission to consider specified matters;\n\n(d) give the Commission specific directions in respect of the conduct of the inquiry.\n\n(4) The Commission must report to the Minister on the results of any inquiry.\n\n(5) The Minister may amend the terms of reference or extend the period within which a report is to be submitted to the Minister.\n\nS. 41A inserted by No. 15/2008 s. 18.\n\n","sortOrder":94},{"sectionNumber":"41A","sectionType":"section","heading":"Minister may limit use of powers under section 37","content":"\t41A Minister may limit use of powers under section 37\n\nIf any inquiry is to be conducted into a matter that does not relate to a regulated industry, the Minister may give the Commission specific directions in respect of the conduct of the inquiry which limit the use of the powers conferred on the Commission under section 37 in the manner specified in the specific directions.\n\n","sortOrder":95},{"sectionNumber":"42","sectionType":"section","heading":"Notice of inquiry","content":"\t42 Notice of inquiry\n\n(1) The Commission must after notifying the Minister publish notice of an inquiry—\n\n(b) in a daily newspaper generally circulating in Victoria; and\n\n(c) on the internet.\n\n(2) The notice must specify—\n\n(a) the purpose of the inquiry;\n\n(b) the period during which the inquiry is to be held;\n\n(c) the period within which, and the form in which, members of the public may make submissions, including details of public hearings;\n\n(d) the matters that the Commission would like submissions to deal with.\n\nS. 42(2A) inserted by No. 15/2008 s. 19.\n\n(2A) The Commission may specify in the notice under subsection (2) that if a submission is not received within the period specified under subsection (2)(c), the Commission may decide not to consider the submission.\n\n(3) If the inquiry relates to a matter referred to the Commission by the Minister, the notice must include the terms of reference and the matters specified in section 41(3).\n\n(4) The Commission must publish a further notice if the Minister amends the terms of reference or extends the period within which the report is to be submitted to the Minister.\n\n(5) The Commission must send a copy of any notice published under this section to the relevant regulated entities and any person or body that the Commission considers should be notified.\n\n","sortOrder":96},{"sectionNumber":"43","sectionType":"section","heading":"Conduct of inquiry","content":"\t43 Conduct of inquiry\n\n(1) Subject to this Act, the Commission may conduct an inquiry in such a manner as the Commission considers appropriate.\n\n(2) In conducting an inquiry, the Commission is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as the Commission considers appropriate.\n\n(3) The Commission may receive written submissions or statements.\n\n(4) The Commission—\n\n(a) must hold at least one public hearing; and\n\n(b) has a discretion as to whether any person may appear before the Commission in person or be represented by another person.\n\n(5) The Commission may determine that a hearing or a part of a hearing be held in private if it is satisfied that—\n\n(a) it would be in the public interest; or\n\n(b) the evidence is of a confidential or commercially-sensitive nature.\n\n(6) In conducting an inquiry the Commission may—\n\n(a) consult with any person that it considers appropriate;\n\n(b) hold public seminars and conduct workshops;\n\n(c) establish working groups and task forces.\n\nS. 44 repealed by No. 15/2008 s. 20.\n\n","sortOrder":97},{"sectionNumber":"45","sectionType":"section","heading":"Reports","content":"\t45 Reports\n\n(1) The Commission must submit a copy of its final report on an inquiry to the Minister.\n\n(2) If, in the opinion of the Commission, a final report will contain confidential or commercially-sensitive information, the Commission must divide the report into—\n\n(a) a document containing the confidential or commercially-sensitive information; and\n\n(b) another document containing the rest of the report.\n\nS. 45(3) amended by Nos 21/2019 s. 6, 41/2021 s. 21.\n\n(3) For the purposes of subsection (2), any information that the Commission may disclose under section 60C is not confidential or commercially-sensitive unless VCAT prohibits or restricts the disclosure of the information under section 56(b)(ii).\n\n(4) If the Commission submits a final report to the Minister in the form required by subsection (2), a reference to the final report in subsections (5), (6) and (7) is to be read as a reference to the document described in subsection (2)(b).\n\n(5) The Minister must cause a copy of the final report to be laid before each House of the Parliament within 7 sitting days of the House after receiving the final report.\n\n(6) The Minister must, after the final report has been laid before each House of the Parliament, or if the Parliament is not sitting, within 30 days after receiving a final report, ensure that a copy of the final report is available for public inspection.\n\n(7) After the Minister has made a final report publicly available, the Commission must ensure that copies are made publicly available.\n\n","sortOrder":98},{"sectionNumber":"46","sectionType":"section","heading":"Special reports","content":"\t46 Special reports\n\n(1) If in the course of an inquiry the Commission considers that there is another matter on which the Commission should report to the Minister, the Commission may do so, in the final report or in a special report.\n\n(2) If the Commission prepares a special report, subsections (5), (6) and (7) of section 45 apply to the special report as if it were a final report.\n\nPt 6 (Heading and ss 47–52) amended by Nos 40/2003 s. 23, 91/2004 s. 26, expired by force of No. 62/2001 s. 47,  \nnew Pt 6 (Heading and ss 47–51) inserted by No. 15/2008 s. 21.\n\n","sortOrder":99},{"sectionNumber":"Part 6","sectionType":"part","heading":"Codes of Practice","content":"Part 6—Codes of Practice\n\nNew s. 47 inserted by No. 15/2008 s. 21.\n\n","sortOrder":100},{"sectionNumber":"47","sectionType":"section","heading":"Power to make Codes of Practice","content":"\t47 Power to make Codes of Practice\n\nS. 47(1) substituted by No. 41/2021 s. 22(1).\n\n(1) The Commission may make, amend or revoke Codes of Practice for or with respect to a regulated industry in accordance with this Part.\n\n(2) Without limiting the generality of subsection (1), a Code of Practice may provide for any matter relating to—\n\n(a) requiring a specified regulated entity or a specified class of regulated entity to develop, issue and comply with customer-related standards, procedures, policies and practices (including with respect to the payment of compensation to customers) in accordance with the Code of Practice;\n\n(b) specifying minimum customer-related standards, procedures, policies and practices for inclusion by a specified regulated entity or a specified class of regulated entity in a customer charter for specific services;\n\nS. 47(2)(ba) inserted by No. 41/2021 s. 22(2).\n\n(ba) requiring a specified regulated entity or a specified class of regulated entity to comply with any of the following—\n\n(i) term and conditions of contracts;\n\n(ii) requirements in relation to the supply of goods or services;\n\n(iii) requirements to assist customers who are experiencing financial hardship or family violence;\n\n(iv) requirements in relation to customers who use life support equipment;\n\n(c) requiring a specified regulated entity or a specified class of regulated entity to enter into an agreement with another specified regulated entity or another specified class of regulated entity for the purpose of ensuring that obligations relating to customer-related standards can be met;\n\n(d) specifying principles for the negotiation of agreements required under paragraph (c) between regulated entities in relation to standards and conditions of service and supply;\n\n(e) requiring regulated entities to maintain specified accounting records and to prepare accounts according to specified principles.\n\n(3) A Code of Practice may establish principles giving practical guidance in relation to the performance of the functions and the exercise of the powers of the Commission.\n\nS. 47(3A) inserted by No. 41/2021 s. 22(3).\n\n(3A) A Code of Practice may—\n\n(a) specify that it applies for the purposes of the **Electricity Industry Act 2000** or the **Gas Industry Act 2001**; and\n\n(b) specify any information, document, matter or thing required or permitted by the **Electricity Industry Act 2000** or the **Gas Industry Act 2001** to be specified to give effect to those Acts.\n\n(4) A Code of Practice may—\n\nS. 47(4)(a) substituted by No. 41/2021 s. 22(4)(a).\n\n(a) confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies;\n\n(b) direct how any matter or thing is to be done;\n\n(c) create an enforceable legal right;\n\nS. 47(4)(d) substituted by No. 41/2021 s. 22(4)(b).\n\n(d) be of general or limited application;\n\nS. 47(4)(e) inserted by No. 41/2021 s. 22(4)(b).\n\n(e) differ according to differences in time, place and circumstances;\n\nS. 47(4)(f) inserted by No. 41/2021 s. 22(4)(b).\n\n(f) specify that a provision of the Code of Practice is a civil penalty requirement;\n\nS. 47(4)(g) inserted by No. 41/2021 s. 22(4)(b).\n\n(g) provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the Code of Practice, whether—\n\n(i) unconditionally or on specified conditions; or\n\n(ii) either wholly or to such an extent as is specified.\n\nS. 47(4A) inserted by No. 41/2021 s. 22(5).\n\n(4A) A Code of Practice has effect despite anything to the contrary in any agreement or contract.\n\nS. 47(4B) inserted by No. 41/2021 s. 22(5).\n\n(4B) A Code of Practice takes effect on the day that it is published under section 49 or on a later day as is specified in that Code of Practice.\n\n(5) A Code of Practice is not a determination.\n\n(6) A reference in this Part to—\n\n(a) a proposed Code of Practice includes a reference to a proposed amendment to a Code of Practice;\n\n(b) a Code of Practice includes a reference to an amendment to a Code of Practice.\n\nNew s. 48 inserted by No. 15/2008 s. 21.\n\n","sortOrder":101},{"sectionNumber":"48","sectionType":"section","heading":"Power to apply, adopt or incorporate","content":"\t48 Power to apply, adopt or incorporate\n\n(1) A Code of Practice may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—\n\n(a) wholly or partially or as amended by the Code of Practice; or\n\n(b) as formulated, issued, prescribed or published at the time the Code of Practice is made or at any time before then; or\n\n(c) as formulated, issued, prescribed or published from time to time.\n\n(2) If a Code of Practice has applied, adopted or incorporated any matter contained in any document, code, standard, rule, specification or method as formulated, issued, prescribed or published from time to time and that document, code, standard, rule, specification or method is at any time amended, until the Commission causes notice to be published in the Government Gazette of that amendment, the document, code, standard, rule, specification or method is to be taken not to have been so amended.\n\n(3) Without limiting the generality of subsection (1), a Code of Practice may apply, adopt or incorporate by reference any benchmarks, standards or technical references.\n\nNew s. 49 inserted by No. 15/2008 s. 21, substituted by Nos 41/2021 s. 23, 6/2024 s. 28.\n\n","sortOrder":102},{"sectionNumber":"49","sectionType":"section","heading":"Publication of Codes of Practice and amendments","content":"\t49 Publication of Codes of Practice and amendments\n\nThe Commission must cause—\n\n(a) a notice of the making or amendment of a Code of Practice to be published in the Government Gazette; and\n\n(b) a copy of any Code of Practice or amendment to a Code of Practice it makes to be published on the Commission's Internet site.\n\nNew s. 50 inserted by No. 15/2008 s. 21, substituted by No. 41/2021 s. 24.\n\n","sortOrder":103},{"sectionNumber":"50","sectionType":"section","heading":"Automatic revocation of Codes of Practice after 10 years","content":"\t50 Automatic revocation of Codes of Practice after 10 years\n\nUnless sooner revoked, a Code of Practice made under section 47(1) is revoked by virtue of this section on the day which is the tenth anniversary of the making of the Code of Practice.\n\nNew s. 51 inserted by No. 15/2008 s. 21, repealed by No. 41/2021 s. 25.\n\nS. 52 expired by force of No. 62/2001 s. 47.\n\nPt 7 (Heading) substituted by No. 41/2021 s. 8.\n\n","sortOrder":104},{"sectionNumber":"Part 7","sectionType":"part","heading":"Enforcement","content":"Part 7—Enforcement\n\nPt 7 Div. 1 (Heading and ss 53, 54) amended by Nos 15/2008 ss 22, 23, 49/2015 ss 15(1), 16, substituted as Pt 7 Div. 1 (Headings and ss 53–54R) by No. 41/2021 s. 9.\n\nDivision 1—Contravention order and related orders\n\n","sortOrder":105},{"sectionNumber":"Subdiv 1","sectionType":"subdivision","heading":"Contravention order","content":"Subdivision 1—Contravention order\n\nS. 53 substituted by No. 41/2021 s. 9.\n\n","sortOrder":106},{"sectionNumber":"53","sectionType":"section","heading":"Contravention order","content":"\t53 Contravention order\n\n(1) A court may make an order, on application of the Commission or a person authorised by the Commission, that a regulated entity has contravened a civil penalty requirement.\n\n(2) A court may make an order, on application of the Commission or a person authorised by the Commission, that a person who is an officer of a body corporate which is a regulated entity has contravened a civil penalty requirement if the person is taken to have contravened the civil penalty requirement under section 60A(1).\n\nIf the court makes a contravention order it may make a civil penalty order, an adverse publicity order under section 54F or an order under section 54G or 54H.\n\n","sortOrder":107},{"sectionNumber":"Subdiv 2","sectionType":"subdivision","heading":"Civil penalty orders","content":"Subdivision 2—Civil penalty orders\n\nS. 54 substituted by No. 41/2021 s. 9.\n\n","sortOrder":108},{"sectionNumber":"54","sectionType":"section","heading":"Civil penalty orders","content":"\t54 Civil penalty orders\n\n(1) If a court makes a contravention order against a person, the court may order the person to pay a civil penalty of an amount not exceeding—\n\n(a) in the case of an energy licensee, the civil penalty amount in section 54A(1) in respect of that contravention; or\n\n(b) in the case of an officer of a body corporate that is an energy licensee, the civil penalty amount in section 54B(1) in respect of that contravention; or\n\n(c) in the case of a regulated entity (other than an energy licensee), the civil penalty amount in section 54C(1) in respect of that contravention; or\n\n(d) in the case of an officer of a body corporate that is a regulated entity (other than an energy licensee), the civil penalty amount in section 54D in respect of that contravention.\n\n1 An energy licensee is a regulated entity. An energy licensee is the holder of a licence issued under Part 2 of the **Electricity Industry Act 2000** or a licence issued under Part 3 of the **Gas Industry Act 2001**. The electricity industry and the gas industry are regulated industries for the purposes of this Act—see section 7A of the **Electricity Industry Act 2000** and section 17 of the **Gas Industry Act 2001**.\n\n2 A civil penalty payable under this section is a debt due to the Commission and the Commission may recover the civil penalty in the court—see section 54ZS.\n\n(2) A person must pay an amount under subsection (1) to the Commission for payment into the Essential Services Commission Enforcement Fund.\n\n(3) Without limiting the matters to which the court may have regard in making an order under subsection (1), the court must have regard to the following—\n\n(a) the nature and extent of the contravention;\n\n(b) the circumstances in which the contravention took place;\n\n(c) whether previously the regulated entity has engaged in conduct that constitutes a contravention of a civil penalty requirement or similar conduct; or\n\n(d) any loss or damage experienced by any other person as a result of the contravention;\n\n(e) if the Commission served a compliance notice on the regulated entity in relation to a contravention, whether the regulated entity has complied or failed to comply with the notice.\n\nNew s. 54A inserted by No. 41/2021 s. 9.\n\n","sortOrder":109},{"sectionNumber":"54A","sectionType":"section","heading":"Civil penalty amount—energy licensees","content":"\t54A Civil penalty amount—energy licensees\n\n(1) For the purposes of section 54(1)(a), the civil penalty amount is an amount equal to the greater of—\n\n(a) an amount equal to 1200 penalty units or, if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; or\n\n(b) if the court can determine the value of any monetary benefits acquired by, or accrued or accruing to, the energy licensee (or any body corporate related to the energy licensee), as a result of the contravention, an amount that is 3 times the amount of the monetary benefits; or\n\n(c) if the court cannot determine the value of the monetary benefits, 10% of the annual turnover of the energy licensee during the 12 month period ending at the end of the month in which the energy licensee contravened the civil penalty requirement.\n\n(2) For the purposes of subsection (1)(a), the other amount may be less than an amount equal to 1200 penalty units, but must not exceed an amount equal to 60 000 penalty units.\n\n(3) Subsection (1)(b) and (c) only apply in a particular case if the Commission or the person authorised by the Commission, in applying for a contravention order, requests that those provisions apply in that particular case.\n\n(4) In this section, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act.\n\nNew s. 54B inserted by No. 41/2021 s. 9.\n\n","sortOrder":110},{"sectionNumber":"54B","sectionType":"section","heading":"Civil penalty amount—officers of energy licensees","content":"\t54B Civil penalty amount—officers of energy licensees\n\n(1) For the purposes of section 54(1)(b), the civil penalty amount is—\n\n(a) an amount equal to 240 penalty units; or\n\n(b) if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount.\n\n(2) For the purposes of subsection (1)(b), the other amount may be less than an amount equal to 240 penalty units but must not exceed an amount equal to 3000 penalty units.\n\nNew s. 54C inserted by No. 41/2021 s. 9.\n\n","sortOrder":111},{"sectionNumber":"54C","sectionType":"section","heading":"Civil penalty amount—other regulated entities","content":"\t54C Civil penalty amount—other regulated entities\n\n(1) For the purposes of section 54(1)(c), the civil penalty amount is—\n\n(a) in the case of a natural person—\n\n(i) an amount equal to 240 penalty units; or\n\n(ii) if another, lesser amount is provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; and\n\n(b) in the case of a body corporate, an amount equal to the greater of—\n\n(i) an amount equal to 1200 penalty units or, if another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; or\n\n(ii) if the court can determine the value of any monetary benefits acquired by, or accrued or accruing to, the body corporate (or any body corporate related to the body corporate), as a result of the contravention, an amount that is 3 times the amount of the monetary benefits.\n\n(2) Subsection (1)(b)(ii) only applies in a particular case if the Commission or the person authorised by the Commission, in applying for a contravention order, requests that the provision applies in that particular case.\n\n(3) In this section, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act.\n\nNew s. 54D inserted by No. 41/2021 s. 9.\n\n","sortOrder":112},{"sectionNumber":"54D","sectionType":"section","heading":"Civil penalty amount—officers of other regulated entities","content":"\t54D Civil penalty amount—officers of other regulated entities\n\nFor the purposes of section 54(1)(d), the civil penalty amount is—\n\n(a) an amount equal to 240 penalty units; or\n\n(b) if another, lesser amount is provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount.\n\nNew s. 54E inserted by No. 41/2021 s. 9.\n\n","sortOrder":113},{"sectionNumber":"54E","sectionType":"section","heading":"How other civil penalty amounts are to be provided","content":"\t54E How other civil penalty amounts are to be provided\n\nFor the purposes of sections 54A(1), 54B(1), 54C(1) and 54D, another amount for the contravention of a civil penalty requirement may be provided as follows—\n\n(a) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(i), (c) or (e)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement;\n\n(b) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the determination was made;\n\n(c) for a contravention of a civil penalty requirement of a kind referred to in paragraph (b) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the licence was issued;\n\n(d) for a contravention of a civil penalty requirement of a kind referred to in paragraph (d) of the definition of ***civil penalty requirement***, the amount is prescribed in regulations made under the relevant legislation that applies to the regulated industry in which the regulated entity, or officer of a regulated entity, against whom the civil penalty order is made, is operating;\n\n(e) for a contravention of a civil penalty requirement of a kind referred to in paragraph (e)(i) of the definition of ***civil penalty requirement***, the amount is specified for the contravention of that civil penalty requirement in this Act;\n\n(f) for a contravention of a civil penalty requirement referred to in paragraph (f)(i) of the definition of ***civil penalty requirement***, the amount is specified for the contravention of that civil penalty requirement in the relevant legislation that specified the civil penalty requirement;\n\n(g) for a contravention of a civil penalty requirement referred to in paragraph (f)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed in the regulations made under the relevant legislation that prescribed the provision of the relevant legislation;\n\n(h) for a contravention of a civil penalty requirement referred to in paragraph (g)(i) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the **Electricity Industry Act 2000**;\n\n(i) for a contravention of a civil penalty requirement referred to in paragraph (g)(ii) or (iii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the **Gas Industry Act 2001**.\n\n","sortOrder":114},{"sectionNumber":"Subdiv 3","sectionType":"subdivision","heading":"Adverse publicity orders and other orders","content":"Subdivision 3—Adverse publicity orders and other orders\n\nNew s. 54F inserted by No. 41/2021 s. 9.\n\n","sortOrder":115},{"sectionNumber":"54F","sectionType":"section","heading":"Adverse publicity orders","content":"\t54F Adverse publicity orders\n\n(1) If a court makes a contravention order against a regulated entity, the court may make an adverse publicity order against the regulated entity.\n\n(2) In making an adverse publicity order, the court may specify the period within which the order must be complied with and may impose any other requirement that the court considers necessary or expedient to make the order effective.\n\n(3) This section does not limit a court's powers under any other provision of this Act.\n\n(4) In this section—\n\n***adverse publicity order*** means an order that—\n\n(a) requires a regulated entity to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the regulated entity has possession of or access to; or\n\n(b) requires a regulated entity to publish, at the regulated entity's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.\n\nNew s. 54G inserted by No. 41/2021 s. 9.\n\n","sortOrder":116},{"sectionNumber":"54G","sectionType":"section","heading":"Orders requiring provision of services, education, etc.","content":"\t54G Orders requiring provision of services, education, etc.\n\n(1) If a court makes a contravention order against a regulated entity, the court may make one or more of the orders specified in subsection (2).\n\n(2) The orders are—\n\n(a) an order directing the regulated entity to perform a specified service, that relates to the conduct which constituted the contravention, for the benefit of the community or a section of the community; or\n\n(b) an order for the purpose of ensuring that the regulated entity does not engage in the conduct, similar conduct or related conduct that constituted the contravention during the period of the order (which must not be longer than 3 years) including—\n\n(i) an order directing the regulated entity to establish a compliance program for employees or other persons involved in the regulated entity's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to such conduct; and\n\n(ii) an order directing the regulated entity to establish an education and training program for employees or other persons involved in the regulated entity's business, being a program designed to ensure the employees' or other persons' awareness of the responsibilities and obligations in relation to such conduct; and\n\n(iii) an order directing the regulated entity to revise the internal operations of the regulated entity's business which led to the regulated entity engaging in such conduct.\n\n(3) In making an order under this section, the court may specify the period within which specified actions must be taken and may impose any other requirement that the court considers necessary or expedient to make the order effective.\n\n(4) This section does not limit a court's powers under any other provision of this Act.\n\nNew s. 54H inserted by No. 41/2021 s. 9.\n\n","sortOrder":117},{"sectionNumber":"54H","sectionType":"section","heading":"Compensation and other orders","content":"\t54H Compensation and other orders\n\n(1) If a court makes a contravention order against a regulated entity, the court may make any order it considers fair in relation to the regulated entity if it is satisfied that another person (the ***injured person***) has suffered or may suffer loss or damage as a result of the contravention.\n\n(2) Without limiting subsection (1), the orders that may be made under this section include—\n\n(a) an order that the whole or any part of a contract between the regulated entity and the injured person who is affected by the contravention or any agreement collateral to such a contract is void on and from the time specified in the order; or\n\n(b) an order that the contract or agreement is varied in the manner specified in the order and may specify in the order that the variation takes effect from the time specified in the order; or\n\n(c) an order that all or any of the provisions in the contract are to be enforced or are not to be enforced; or\n\n(d) an order that the regulated entity refund to the injured person money paid by the injured person under the contract or agreement; or\n\n(e) an order that the regulated entity pay the amount of any loss or damage suffered by the injured person as a result of the contravention to the injured person.\n\n(3) In making an order under this section, the court may specify the period within which specified actions must be taken and may impose any other requirement that the court considers necessary or expedient to make the order effective.\n\n(4) This section does not limit a court's powers under any other provision of this Act.\n\n","sortOrder":118},{"sectionNumber":"Subdiv 4","sectionType":"subdivision","heading":"Matters related to proceedings for contravention order","content":"Subdivision 4—Matters related to proceedings for contravention order\n\nNew s. 54I inserted by No. 41/2021 s. 9.\n\n","sortOrder":119},{"sectionNumber":"54I","sectionType":"section","heading":"Proceedings under this Division are civil proceedings","content":"\t54I Proceedings under this Division are civil proceedings\n\n(1) Nothing in this Division is to be construed as limiting any other power of the court.\n\n(2) A proceeding under this Division is a civil proceeding for all purposes.\n\nAs to the standard of proof in a civil proceeding, see section 140 of the **Evidence Act 2008**.\n\nS. 54IA inserted by No. 14/2025 s. 40.\n\n\t54IA Time period to commence civil proceeding under this Division\n\n(1) Despite anything to the contrary in section 5(5) of the **Limitation of Actions Act 1958**, a civil proceeding under this Division in relation to the contravention of a civil penalty requirement may be commenced within 6 years after the date on which the contravention occurred, whether the contravention occurred before, on or after the commencement of section 40 of the **Regulatory Legislation Amendment (Reform) Act 2025**.\n\n(2) Nothing in subsection (1) affects the prosecution of any offence under this Act.\n\nNew s. 54J inserted by No. 41/2021 s. 9.\n\n","sortOrder":120},{"sectionNumber":"54J","sectionType":"section","heading":"Authority to commence proceedings","content":"\t54J Authority to commence proceedings\n\nIn a proceeding under this Division, it must be presumed, in the absence of evidence to the contrary, that the person commencing the proceeding was authorised to commence the proceeding.\n\nNew s. 54K inserted by No. 41/2021 s. 9.\n\n","sortOrder":121},{"sectionNumber":"54K","sectionType":"section","heading":"Civil proceedings after criminal proceedings","content":"\t54K Civil proceedings after criminal proceedings\n\nA court must not make a contravention order against a person if the person has contravened a civil penalty requirement and has been convicted of an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.\n\nNew s. 54L inserted by No. 41/2021 s. 9.\n\n","sortOrder":122},{"sectionNumber":"54L","sectionType":"section","heading":"Criminal proceeding during proceeding for civil penalty order","content":"\t54L Criminal proceeding during proceeding for civil penalty order\n\n(1) A proceeding for a contravention order against a person is stayed if—\n\n(a) a criminal proceeding is commenced or has already been commenced against the person for an offence; and\n\n(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.\n\n(2) If the person—\n\n(a) is not convicted of the offence—the proceeding for the contravention order may be resumed; or\n\n(b) is convicted of the offence—the proceeding for the contravention order is dismissed.\n\nNew s. 54M inserted by No. 41/2021 s. 9.\n\n","sortOrder":123},{"sectionNumber":"54M","sectionType":"section","heading":"Criminal proceedings commenced after proceeding for contravention order","content":"\t54M Criminal proceedings commenced after proceeding for contravention order\n\nA criminal proceeding may be commenced against a person for conduct that is substantially the same as conduct constituting the contravention of a civil penalty requirement regardless of whether a contravention order has been made against the person.\n\nNew s. 54N inserted by No. 41/2021 s. 9.\n\n","sortOrder":124},{"sectionNumber":"54N","sectionType":"section","heading":"Evidence given or produced during proceeding for contravention order","content":"\t54N Evidence given or produced during proceeding for contravention order\n\n(1) This section applies to information given and documents produced by an individual in a proceeding for a contravention order against the individual.\n\n(2) The information and documents are not admissible in evidence in a criminal proceeding against the individual for an offence constituted by conduct that is substantially the same as the conduct for which the contravention order was sought.\n\nNew s. 54O inserted by No. 41/2021 s. 9.\n\n","sortOrder":125},{"sectionNumber":"54O","sectionType":"section","heading":"Conduct contravening more than one civil penalty requirement","content":"\t54O Conduct contravening more than one civil penalty requirement\n\n(1) If a person contravenes 2 or more civil penalty requirements, a proceeding for a contravention order may be commenced against the person in relation to the contravention of any one or more of those civil penalty requirements.\n\n(2) Despite subsection (1), a person is not liable to pay more than one civil penalty in relation to the same conduct.\n\nNew s. 54P inserted by No. 41/2021 s. 9.\n\n","sortOrder":126},{"sectionNumber":"54P","sectionType":"section","heading":"Multiple contraventions of civil penalty requirements","content":"\t54P Multiple contraventions of civil penalty requirements\n\n(1) Subject to subsection (2), a court may order that a person pay a single civil penalty for multiple contraventions of a civil penalty requirement if—\n\n(a) the multiple contraventions are based on the same facts; or\n\n(b) the multiple contraventions form, or are part of, a series of contraventions of the same or a similar nature.\n\n(2) A single civil penalty ordered under subsection (1) must not exceed the sum of the maximum penalties that the court may have ordered if separate civil penalties were ordered for each of the contraventions.\n\nNew s. 54Q inserted by No. 41/2021 s. 9.\n\n","sortOrder":127},{"sectionNumber":"54Q","sectionType":"section","heading":"Multiple proceedings for contravention order to be heard together","content":"\t54Q Multiple proceedings for contravention order to be heard together\n\nA court may direct that 2 or more proceedings for a contravention order are to be heard together.\n\nNew s. 54R inserted by No. 41/2021 s. 9.\n\n","sortOrder":128},{"sectionNumber":"54R","sectionType":"section","heading":"Jurisdictional limit of Magistrates' Court does not apply to civil penalty order","content":"\t54R Jurisdictional limit of Magistrates' Court does not apply to civil penalty order\n\nThe jurisdictional limit for a civil proceeding specified under section 100(1) of the **Magistrates' Court Act 1989** does not apply to a proceeding for a contravention order under this Division.\n\nPt 7 Div. 2 (Heading and ss 54B–54X) inserted by No. 49/2015 s. 17, substituted as Pt 7 Div. 2 (Heading and ss 54S–54ZC) by No. 41/2021 s. 9.\n\nDivision 2—Penalty notice regime\n\nS. 54S substituted by No. 41/2021 s. 9.\n\n","sortOrder":129},{"sectionNumber":"54S","sectionType":"section","heading":"Power to serve a penalty notice","content":"\t54S Power to serve a penalty notice\n\n(1) If the Commission has reason to believe that a regulated entity has contravened a civil penalty requirement, the Commission may serve a notice on the regulated entity.\n\n(2) The Commission must not serve a penalty notice later than 12 months after the date on which the Commission forms a belief that the regulated entity has contravened the civil penalty requirement.\n\nS. 54T substituted by No. 41/2021 s. 9.\n\n","sortOrder":130},{"sectionNumber":"54T","sectionType":"section","heading":"Notice penalties","content":"\t54T Notice penalties\n\n(1) The notice penalty for a contravention of a civil penalty requirement by a regulated entity (other than an energy licensee) is—\n\n(a) in the case of a natural person—\n\n(i) an amount equal to 20 penalty units; or\n\n(ii) if there is another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount; or\n\n(b) in the case of a body corporate—\n\n(i) an amount equal to 120 penalty units; or\n\n(ii) if there is another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount.\n\n(2) The notice penalty for a contravention of a civil penalty requirement by an energy licensee is—\n\n(a) an amount equal to 200 penalty units; or\n\n(b) if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount.\n\n(3) For the purposes of subsection (2)(b), the other amount may be less than an amount equal to 200 penalty units but must not exceed an amount equal to 1500 penalty units.\n\nS. 54U substituted by No. 41/2021 s. 9.\n\n","sortOrder":131},{"sectionNumber":"54U","sectionType":"section","heading":"How other notice penalty amounts are to be provided","content":"\t54U How other notice penalty amounts are to be provided\n\nFor the purposes of section 54T(1) and (2), another notice penalty amount for the contravention of a civil penalty requirement may be provided as follows—\n\n(a) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(i), (c) or (e)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement;\n\n(b) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the determination was made;\n\n(c) for a contravention of a civil penalty requirement of a kind referred to in paragraph (b) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the licence was issued;\n\n(d) for a contravention of a civil penalty requirement of a kind referred to in paragraph (d) of the definition of ***civil penalty requirement***, the amount is prescribed in regulations made under the relevant legislation that applies to the regulated industry in which the regulated entity, or officer of a regulated entity, against whom the civil penalty order is made, is operating;\n\n(e) for a contravention of a civil penalty requirement of a kind referred to in paragraph (e)(i) of the definition of ***civil penalty requirement***, the amount is specified for the contravention of that civil penalty requirement in this Act;\n\n(f) for a contravention of a civil penalty requirement referred to in paragraph (f)(i) of the definition of ***civil penalty requirement***, the amount is specified for the contravention of that civil penalty requirement in the relevant legislation that specified the civil penalty requirement;\n\n(g) for a contravention of a civil penalty requirement referred to in paragraph (f)(ii) of the definition of ***civil penalty requirement***, the amount is prescribed in the regulations made under the relevant legislation that prescribed the provision of the relevant legislation;\n\n(h) for a contravention of a civil penalty requirement referred to in paragraph (g)(i) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the **Electricity Industry Act 2000**;\n\n(i) for a contravention of a civil penalty requirement referred to in paragraph (g)(ii) or (iii) of the definition of ***civil penalty requirement***, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the **Gas Industry Act 2001**.\n\nNotice penalties must be paid into the Essential Services Commission Enforcement Fund—see section 54ZQ.\n\nS. 54V substituted by No. 41/2021 s. 9.\n\n","sortOrder":132},{"sectionNumber":"54V","sectionType":"section","heading":"Form of penalty notice","content":"\t54V Form of penalty notice\n\nA penalty notice must state the following—\n\n(a) the date of the notice;\n\n(b) the name and address of the regulated entity served with the penalty notice;\n\n(c) in relation to the alleged contravention—\n\n(i) that it is alleged that the regulated entity has engaged in conduct that constitutes a contravention of a civil penalty requirement; and\n\n(ii) the nature, and a brief description of, the alleged contravention; and\n\n(iii) the date on which the contravention is alleged to have occurred;\n\n(d) the amount of the notice penalty for the alleged contravention;\n\n(e) the manner in which the notice penalty may be paid into the Essential Services Commission Enforcement Fund;\n\n(f) the time (being not less than 28 days after the date on which the notice is served) within which the notice penalty must be paid;\n\n(g) that, if the amount of the notice penalty is paid before the end of the time specified in the notice, the Commission will not commence—\n\n(i) a proceeding against the regulated entity in relation to the alleged contravention for a contravention order, unless the notice is withdrawn before the end of that time in accordance with section 54Y; or\n\n(ii) a criminal proceeding against the regulated entity for an offence constituted by conduct that is substantially the same as the conduct that constitutes the alleged contravention, unless the notice is withdrawn before the end of that time in accordance with section 54Y;\n\n(h) that failure to pay the notice penalty before the end of the time specified in the notice may result in the Commission commencing—\n\n(i) a proceeding against the regulated entity for a contravention order in relation to the alleged contravention; or\n\n(ii) a criminal proceeding against the regulated entity for an offence constituted by conduct that is substantially the same as the conduct that constitutes the alleged contravention;\n\n(i) that the regulated entity is entitled to disregard the notice and defend any proceeding relating to the alleged contravention;\n\n(j) any other prescribed particulars.\n\nS. 54W substituted by No. 41/2021 s. 9.\n\n","sortOrder":133},{"sectionNumber":"54W","sectionType":"section","heading":"Commission must not commence certain proceedings while penalty notice on foot or until time for payment has expired","content":"\t54W Commission must not commence certain proceedings while penalty notice on foot or until time for payment has expired\n\n(1) The Commission must not commence a proceeding specified in subsection (2) against a regulated entity if—\n\n(a) the Commission has served a penalty notice on the regulated entity; and\n\n(b) the time for payment stated in the notice has not expired; and\n\n(c) the notice has not been withdrawn by the Commission in accordance with section 54Y.\n\n(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention for which the penalty notice was served; or\n\n(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention for which the penalty notice was served.\n\n1 Subject to this section, the Commission or a person authorised by the Commission may make an application for a contravention order.\n\n2 Section 54ZA provides that the Commission must not make an application for a contravention order if a notice 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 payment stated in the notice.\n\nS. 54X substituted by No. 41/2021 s. 9.\n\n","sortOrder":134},{"sectionNumber":"54X","sectionType":"section","heading":"Late payment","content":"\t54X Late payment\n\n(1) The Commission may accept payment of a notice penalty even after the expiration of the time for payment stated in the relevant penalty notice if—\n\n(a) the Commission has not commenced a proceeding specified in subsection (2); and\n\n(b) the notice has not been withdrawn by the Commission in accordance with section 54Y.\n\n(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates; or\n\n(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates.\n\nS. 54Y inserted by No. 41/2021 s. 9.\n\n","sortOrder":135},{"sectionNumber":"54Y","sectionType":"section","heading":"Withdrawal of penalty notice","content":"\t54Y Withdrawal of penalty notice\n\n(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 regulated entity served with the penalty notice.\n\n(2) A penalty notice may be withdrawn even if the notice penalty has been paid.\n\nS. 54Z inserted by No. 41/2021 s. 9.\n\n","sortOrder":136},{"sectionNumber":"54Z","sectionType":"section","heading":"Refund of notice penalty","content":"\t54Z Refund of notice penalty\n\nIf a penalty notice is withdrawn in accordance with section 54Y, the amount of any notice penalty paid must be refunded by the Commission from the Essential Services Commission Enforcement Fund.\n\nS. 54ZA inserted by No. 41/2021 s. 9.\n\n\t54ZA Payment expiates contravention\n\n(1) The Commission must not commence a proceeding specified in subsection (3) against a regulated entity on whom a penalty notice was served if—\n\n(a) the notice 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 payment stated in the notice in accordance with section 54Y; or\n\n(b) the notice penalty is accepted in accordance with section 54X.\n\n(2) The Commission must not commence a proceeding specified in subsection (3) against a person who is an officer of a body corporate that is a regulated entity if—\n\n(a) a penalty notice is served on the regulated entity; and\n\n(b) either—\n\n(i) the notice 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 payment stated in the notice in accordance with section 54Y; or\n\n(ii) the notice penalty is accepted in accordance with section 54X.\n\n(3) For the purposes of subsections (1) and (2) the proceedings are—\n\n(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention to which the notice penalty relates; or\n\n(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention to which the notice penalty relates.\n\nS. 54ZB inserted by No. 41/2021 s. 9.\n\n\t54ZB Payment not to have certain consequences\n\n(1) The payment of a notice penalty under this Part is not and must not be taken to be an admission of—\n\n(a) a contravention of a civil penalty requirement; or\n\n(b) liability or guilt for the purposes of a proceeding specified in subsection (2).\n\n(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates; or\n\n(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates.\n\n(3) The payment of a notice penalty under this Part must not be referred to in any report provided to a court for the purpose of determining sentence for any offence.\n\nS. 54ZC inserted by No. 41/2021 s. 9.\n\n\t54ZC Multiple contraventions\n\n(1) Subject to this section, if the conduct of a regulated entity constitutes 2 or more contraventions of one or more civil penalty requirements, a penalty notice may be served on the regulated entity in relation to each contravention.\n\n(2) A regulated entity is not liable to pay more than one notice penalty if the same conduct constitutes 2 or more contraventions of one or more civil penalty requirements.\n\n(3) A regulated entity whose conduct constitutes 2 or more contraventions of one or more civil penalty requirements is not liable to pay an amount under this Division more than the highest of the maximum notice penalties for the contraventions.\n\nNew Pt 7 Div. 3 (Heading and ss 54ZD–54ZF) inserted by No. 41/2021 s. 9.\n\nDivision 3—Enforceable undertakings\n\nS. 54ZD inserted by No. 41/2021 s. 9.\n\n\t54ZD Enforceable undertakings\n\n(1) The Commission may accept a written undertaking given by a person in connection with a matter in relation to which the Commission has a function or power under this Act or relevant legislation.\n\n(2) A person who gives an enforceable undertaking may withdraw or vary the undertaking at any time, but only with the consent of the Commission.\n\nS. 54ZE inserted by No. 41/2021 s. 9.\n\n\t54ZE Enforcement of enforceable undertakings\n\n(1) If the Commission considers that a person who gave an enforceable undertaking has contravened any of its terms, the Commission may apply to a court for an order under subsection (2).\n\n(2) If the court is satisfied that the person has contravened a term of the enforceable undertaking, the court may make all or any of the following orders—\n\n(a) an order directing the person to comply with that term of the enforceable undertaking;\n\n(b) any order that the court considers appropriate directing the person to compensate any person who has suffered loss or damage as a result of the contravention;\n\n(c) any other order the court considers appropriate.\n\n(3) This section does not limit a court's power to make a monetary benefits order under section 54ZF.\n\nS. 54ZF inserted by No. 41/2021 s. 9.\n\n\t54ZF Monetary benefits order—contravention of enforceable undertaking\n\n(1) If a court is satisfied that a person has contravened a term of an enforceable undertaking, the court may make an order under subsection (3).\n\n(2) The court may make an order under subsection (3) on application of the Commission or a person authorised by the Commission.\n\n(3) The court may order the person to pay an amount not exceeding the amount that the court is satisfied represents the amount of any monetary benefits acquired by the person, or accrued or accruing to the person, as a result of the contravention of the term of the enforceable undertaking.\n\n(4) A person must pay an amount under subsection (3) to the Commission for payment into the Essential Services Commission Enforcement Fund.\n\nAn amount that is ordered to be paid under this section is a debt due to the Commission and the Commission may recover the amount in the court—see section 54ZS.\n\nNew Pt 7 Div. 4 (Heading and s. 54ZG) inserted by No. 41/2021 s. 9.\n\nDivision 4—Compliance notices\n\nS. 54ZG inserted by No. 41/2021 s. 9.\n\n\t54ZG Compliance notice\n\n(1) The Commission may serve a notice on a person requiring the person to do either or both of the following if the Commission has reason to believe that the person has contravened, or is contravening, a civil penalty requirement—\n\n(a) comply with a civil penalty requirement;\n\n(b) remedy a contravention of a civil penalty requirement.\n\n(2) A notice under subsection (1) must—\n\n(a) specify that it is alleged that the person has contravened, or is contravening, a civil penalty requirement; and\n\n(b) specify the nature, and provide a brief description of, the alleged contravention; and\n\n(c) specify the date on which the contravention is alleged to have occurred; and\n\n(d) if the notice requires the person to comply with a civil penalty requirement, specify the actions that the person must take to comply with the civil penalty requirement; and\n\n(e) if the notice requires the person to remedy an alleged contravention, specify the actions that the person must take to remedy the alleged contravention; and\n\n(f) specify that the service of the notice does not prevent the Commission from—\n\n(i) commencing a proceeding specified in subsection (3) against the person in relation to the contravention; or\n\n(ii) commencing a criminal proceeding for conduct that is substantially the same as the conduct constituted by the contravention.\n\n(3) For the purposes of subsection (2)(f)(i) the following proceedings are specified—\n\n(a) a proceeding for a contravention order;\n\n(b) a proceeding for an injunction under Division 5.\n\nPt 7 Div. 5 (Heading and ss 54ZH–54ZL) inserted by No. 41/2021 s. 9.\n\nDivision 5—Injunctions\n\nS. 54ZH inserted by No. 41/2021 s. 9.\n\n\t54ZH Injunctions\n\n(1) A court may grant an injunction in any terms that it considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute—\n\n(a) a contravention of a determination, condition or provision referred to in subsection (2); or\n\n(b) attempting to contravene a determination, condition or provision referred to in subsection (2); or\n\n(c) aiding, abetting, counselling or procuring a person to contravene a determination, condition or provision referred to in subsection (2); or\n\n(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene a determination, condition or provision referred to in subsection (2); or\n\n(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a determination, condition or provision referred to in subsection (2); or\n\n(f) conspiring with others to contravene a determination, condition or provision referred to in subsection (2).\n\n(2) For the purposes of subsection (1), the determinations, conditions and provisions are—\n\n(a) a determination made by the Commission under this Act or relevant legislation (other than a determination made under Division 1A or 3 of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**); or\n\n(b) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation; or\n\n(c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4; or\n\n(d) a provision of a Code of Practice; or\n\n(e) a provision of this Act; or\n\n(f) a provision of relevant legislation (other than a provision that includes a statutory condition) in respect of which the Commission has powers or functions; or\n\n(g) a provision of the following Orders—\n\n(i) an Order made under section 13(1), 40D(1) or 40E(1) of the **Electricity Industry Act 2000**;\n\n(ii) the Wimmera and Colac Tariff Order within the meaning of section 20 of the **Gas Industry Act 2001**;\n\n(iii) an Order made under section 21(1), 48C(1) or 48D(1) of the **Gas Industry Act 2001**.\n\n(3) The court may grant the injunction under subsection (1) on application by the Commission or any other person.\n\n(4) An application for an injunction under subsection (1) may be made *ex parte*.\n\n(5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) in a regulated industry—\n\n(a) for a specified period; or\n\n(b) except on specified terms and conditions.\n\n(6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following—\n\n(a) refund money;\n\n(b) transfer property;\n\n(c) disclose information about the person's business activities or business associates;\n\n(d) honour a promise.\n\n(7) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised—\n\n(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and\n\n(b) whether or not the person has previously engaged in conduct of that kind; and\n\n(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.\n\n(8) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised—\n\n(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and\n\n(b) whether or not the person has previously refused or failed to do that act or thing; and\n\n(c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.\n\nS. 54ZI inserted by No. 41/2021 s. 9.\n\n\t54ZI Consent injunctions\n\nIf an application is made under section 54ZH, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceeding, whether or not the court is satisfied as required by section 54ZH(1).\n\nS. 54ZJ inserted by No. 41/2021 s. 9.\n\n\t54ZJ Interim injunctions\n\nIf an application is made under section 54ZH, the court may, if it considers that it is desirable to do so, grant an interim injunction under this section pending the determination of the application.\n\nS. 54ZK inserted by No. 41/2021 s. 9.\n\n\t54ZK Variation and discharge of injunctions\n\nA court may vary or discharge—\n\n(a) an injunction that it has granted under section 54ZH or 54ZI; or\n\n(b) an interim injunction that it has granted under section 54ZJ.\n\nS. 54ZL inserted by No. 41/2021 s. 9.\n\n\t54ZL Undertakings as to damages and costs\n\n(1) In any application under section 54ZH, the court must accept an undertaking by the Commission and must not require a further undertaking from any other person, if—\n\n(a) the court would, but for this subsection, require a person to give an undertaking as to damages or costs; and\n\n(b) the Commission gives the undertaking.\n\n(2) Despite subsection (1), in an application for an injunction under section 54ZH, if the application has been made by the Commission and if the court has determined to grant an interim injunction, the Court must not, as a condition of granting an interim injunction, require the Commission or any other person to give any undertaking as to damages or costs.\n\nPt 3 Div. 6 (Heading and s. 54ZM) inserted by No. 41/2021 s. 9.\n\nDivision 6—Declarations\n\nS. 54ZM inserted by No. 41/2021 s. 9.\n\n\t54ZM Declarations\n\n(1) A person may commence a proceeding in a court seeking, in relation to a determination, condition or provision referred to in section 54ZH(2)(a) to (g), the making of—\n\n(a) a declaration in relation to the operation or effect of the determination, condition or provision; or\n\n(b) a declaration in relation to the validity of any act or thing done, proposed to be done or purported to have been done in respect of the determination, condition or provision.\n\n(2) The Commission may commence a proceeding in a court seeking, in relation to a matter arising under this Act or relevant legislation, the making of a declaration of the kind that may be made under subsection (1)(a).\n\nPt 3 Div. 7 (Heading and s. 54ZN) inserted by No. 41/2021 s. 9.\n\nDivision 7—Other persons involved in contraventions of civil penalty requirements\n\nS. 54ZN inserted by No. 41/2021 s. 9.\n\n\t54ZN Persons involved in contraventions\n\n(1) A person must not—\n\n(a) attempt to contravene a civil penalty requirement; or\n\n(b) aid, abet, counsel or procure a contravention of a civil penalty requirement; or\n\n(c) induce (by threats, promises or otherwise) a contravention of a civil penalty requirement; or\n\n(d) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty requirement; or\n\n(e) conspire to contravene a civil penalty requirement.\n\n(2) Divisions 1, 3, 4, 5 and 6 apply to a person who contravenes subsection (1) in relation to a civil penalty requirement as if the person had contravened the requirement.\n\n(3) Division 1 applies to a person who contravenes subsection (1) in relation to a civil penalty requirement as if any reference to a regulated entity or energy licensee were a reference to the person.\n\nPt 3 Div. 8 (Heading and s. 54ZO) inserted by No. 41/2021 s. 9.\n\nDivision 8—Register of Enforcement Action\n\nS. 54ZO inserted by No. 41/2021 s. 9.\n\n\t54ZO Register of Enforcement Action\n\n(1) The Commission must establish and maintain a register of—\n\n(a) contravention orders; and\n\n(b) penalty notices that have been paid; and\n\n(c) enforceable undertakings.\n\n(2) The Commission must enter the following details in the Register of Enforcement Action—\n\n(a) for a contravention order—\n\n(i) the nature of the contravention order; and\n\n(ii) the name of the person against whom the contravention order was made; and\n\n(iii) any order made under Division 1, including the amount of any civil penalty under a civil penalty order; and\n\n(iv) the date on which the contravention order or other order referred to in subparagraph (iii) was made;\n\n(b) for a penalty notice—\n\n(i) the name of the person on whom the penalty notice was served; and\n\n(ii) the date the penalty notice was paid; and\n\n(iii) the civil penalty requirement that was contravened; and\n\n(iv) a short description of the nature of the contravention;\n\n(c) for an enforceable undertaking—\n\n(i) the name of the person who gave the enforceable undertaking; and\n\n(ii) the date the enforceable undertaking was given; and\n\n(iii) a copy of the enforceable undertaking.\n\n(3) The Commission must make the Register of Enforcement Action publicly available on an Internet site operated by the Commission, free of charge.\n\nPt 7A (Headings and ss 54ZP–54ZV) inserted by No. 41/2021 s. 9.\n\nPart 7A—Funds\n\nDivision 1—Essential Services Commission Enforcement Fund\n\nS. 54ZP inserted by No. 41/2021 s. 9.\n\n\t54ZP Essential Services Commission Enforcement Fund\n\n(1) There must be established in the Public Account as part of the Trust Fund an account to be known as the Essential Services Commission Enforcement Fund.\n\n(2) Money must not be paid out of the Essential Services Commission Enforcement Fund except in accordance with this Division.\n\nS. 54ZQ inserted by No. 41/2021 s. 9.\n\n\t54ZQ Payments into the Essential Services Commission Enforcement Fund\n\nThere must be paid into the Essential Services Commission Enforcement Fund—\n\n(a) any fine ordered by a court to be paid on a finding of guilt in respect of an offence against—\n\n(i) this Act; or\n\n(ii) relevant legislation in respect of which the Commission has powers or functions; or\n\n(iii) the **Victorian Energy Efficiency Target Act 2007**, if the Commission was a party to the proceeding; or\n\n(iv) the **Victorian Renewable Energy Act 2006**, if the Commission was a party to the proceeding; and\n\n(b) any amount paid to the Commission under a civil penalty order; and\n\n(c) any notice penalty paid; and\n\n(d) any amount paid to the Commission under a monetary benefits order; and\n\n(e) any energy efficiency shortfall penalty paid to the Commission under the **Victorian Energy Efficiency Target Act 2001**; and\n\n(f) any renewable energy shortfall penalty paid to the Commission under the **Victorian Renewable Energy Act 2006**; and\n\n(g) any costs awarded to the Commission in any court proceeding under this Act or relevant legislation; and\n\n(h) any other amount required under this Act, relevant legislation or any other Act to be paid into the Essential Services Commission Enforcement Fund; and\n\nS. 54ZQ(ha) inserted by No. 23/2022 s. 13.\n\n(ha) money appropriated by Parliament for the purposes of the Essential Services Commission Enforcement Fund; and\n\n(i) money that is received from the investment of money in the Essential Services Commission Enforcement Fund; and\n\n(j) interest that is received on money invested in the Essential Services Commission Enforcement Fund.\n\nS. 54ZR inserted by No. 41/2021 s. 9.\n\n\t54ZR Payments out of the Essential Services Commission Enforcement Fund\n\nThere must be paid out of the Essential Services Commission Enforcement Fund—\n\n(a) amounts authorised by the Commission to fund the costs of performing its functions under section 10AA; and\n\nS. 54ZR(ab) inserted by No. 23/2022 s. 14.\n\n(ab) amounts authorised by the Commission to fund the costs of monitoring and reporting on compliance with—\n\n(i) the **Victorian Energy Efficiency Target Act 2007**; or\n\n(ii) the **Victorian Renewable Energy Act 2006**; and\n\nS. 54ZR(ac) inserted by No. 23/2022 s. 14.\n\n(ac) amounts authorised by the Commission to fund the costs of investigating contraventions or possible contraventions of—\n\n(i) the **Victorian Energy Efficiency Target Act 2007**; or\n\n(ii) the **Victorian Renewable Energy Act 2006**; and\n\n(b) amounts authorised by the Commission to fund the costs of proceedings in relation to contraventions of—\n\n(i) a civil penalty requirement; or\n\n(ii) the **Victorian Energy Efficiency Target Act 2007**; or\n\n(iii) the **Victorian Renewable Energy Act 2006**; and\n\n(c) reasonable expenses incurred in administering the Essential Services Commission Enforcement Fund; and\n\n(d) any refunds of notice penalties; and\n\n(e) amounts authorised by the Treasurer, in consultation with the Commission and the Minister, to be paid into the Consolidated Fund.\n\nS. 54ZS inserted by No. 41/2021 s. 9.\n\n\t54ZS Recovery of amounts ordered to be paid into the Essential Services Commission Enforcement Fund\n\n(1) If a court orders a person to pay an amount specified in subsection (2)—\n\n(a) the amount is a debt due to the Commission; and\n\n(b) the Commission may recover the amount in any court of competent jurisdiction*.*\n\n(2) For the purposes of subsection (1), the following amounts are specified—\n\n(a) an amount required to be paid under a civil penalty order;\n\n(b) an amount required to be paid under a monetary benefits order.\n\n(3) Any amount recovered by the Commission under subsection (1) must be paid into the Essential Services Commission Enforcement Fund.\n\nDivision 2—Essential Services Commission Operating Fund\n\nS. 54ZT inserted by No. 41/2021 s. 9.\n\n\t54ZT Essential Services Commission Operating Fund\n\n(1) There must be established in the Public Account as part of the Trust Fund an account to be known as the Essential Services Commission Operating Fund.\n\n(2) Money must not be paid out of the Essential Services Commission Operating Fund except in accordance with this Division.\n\nS. 54ZU inserted by No. 41/2021 s. 9.\n\n\t54ZU Payments into the Essential Services Commission Operating Fund\n\nThere must be paid into the Essential Services Commission Operating Fund—\n\n(a) any fees paid under relevant legislation, to the extent that the fees relate to the functions of the Commission; and\n\n(b) any fees paid under the **Victorian Energy Efficiency Target Act 2007**; and\n\n(c)  any fees paid under the **Victorian Renewable Energy Act 2006**; and  \n\n(d) any other amount required under this Act, relevant legislation or any other Act to be paid into the Essential Services Commission Operating Fund; and\n\nS. 54ZU(da) inserted by No. 23/2022 s. 15.\n\n(da) money appropriated by Parliament for the purposes of the Essential Services Commission Operating Fund; and\n\n(e) money that is received from the investment of money in the Essential Services Commission Operating Fund; and\n\n(f) interest received on money invested in the Essential Services Commission Operating Fund.\n\nS. 54ZV inserted by No. 41/2021 s. 9.\n\n\t54ZV Payments out of the Essential Services Commission Operating Fund\n\nThere must be paid out of the Essential Services Commission Operating Fund—\n\nS. 54ZV(a) amended by No. 23/2022 s. 16.\n\n(a) amounts authorised by the Commission to fund the costs of performing its functions, including its functions under section 10AA; and\n\n(b) the costs and expenses of VCAT in relation to proceedings under this Act or relevant legislation; and\n\n(c) reasonable expenses incurred in administering the Essential Services Commission Operating Fund; and\n\n(d) any refunds of fees referred to in section 54ZU(a), (b) or (c); and\n\n(e) amounts authorised by the Treasurer, in consultation with the Commission and the Minister.\n\nPt 7 Div. 3 (Heading) inserted by No. 49/2015 s. 15(2), amended by No. 21/2019 s. 7, renumbered as Pt 7B (Heading) by No. 41/2021 s. 26.\n\n","sortOrder":137},{"sectionNumber":"Part 7B","sectionType":"part","heading":"Review by VCAT","content":"Part 7B—Review by VCAT\n\nS. 55 (Heading) substituted by No. 21/2019 s. 8(1).\n\n","sortOrder":138},{"sectionNumber":"55","sectionType":"section","heading":"VCAT review","content":"\t55 VCAT review\n\nS. 55(1) amended by Nos 21/2019 s. 8(2), 41/2021 s. 27(1)(c).\n\n(1) A person whose interests are affected by—\n\nS. 55(1)(a) substituted by No. 41/2021 s. 27(1)(a).\n\n(a) a decision of the Commission to serve an information gathering notice under section 36; or\n\nS. 55(1)(ab) inserted by No. 41/2021 s. 27(1)(a).\n\n(ab) a decision of the Commission to serve a compliance notice; or\n\nS. 55(1)(b) amended by No. 41/2021 s. 27(1)(b).\n\n(b) a decision of the Commission to disclose information or the contents of a document given to the Commission by that person under a notice given under section 60C(3)(c) or (d); or\n\nS. 55(1)(c) amended by No. 10/2016 s. 170(1)(a), substituted by No. 6/2019 s. 8.\n\n(c) a determination of the Commission, other than a price determination under section 33 in respect of—\n\n(i) tariffs for the sale of electricity regulated by Order under section 13 of the **Electricity Industry Act 2000**; or\n\n(ii) tariffs for the sale of gas regulated by Order under section 21 of the **Gas** **Industry Act 2001**; or\n\nS. 55(1)(d) inserted by No. 10/2016 s. 170(1)(b).\n\n(d) a decision of the Commission contained in a final published report (as defined in section 45 of the **Port Management Act 1995**) that a provider of prescribed services (as defined in that section) has not complied with a port Pricing Order in a significant and sustained manner; or\n\nS. 55(1)(e) inserted by No. 10/2016 s. 170(1)(b).\n\n(e) a Commission port Pricing Order decision; or\n\nS. 55(1)(f) inserted by No. 10/2016 s. 170(1)(b).\n\n(f) a decision of the Commission under section 69 of the **Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016**; or\n\nS. 55(1)(g) inserted by No. 10/2016 s. 170(1)(b).\n\n(g) a determination of the Commission under section 49ZA of the **Port Management Act 1995**—\n\nmay apply to VCAT for a review of the decision or determination on a ground specified under subsection (2).\n\nS. 55(1A) inserted by No. 15/2008 s. 24(1), amended by Nos 10/2016 s. 170(2). 21/2019 s. 8(3), 41/2021 s. 27(2).\n\n(1A) For the purposes of subsection (1) as it applies to an application for review of a decision or determination contemplated by subsection (1)(a), (ab), (b) or (c), a person who represents a consumer or user group is to be taken to be a person who is entitled to apply to VCAT for a review of the decision or determination in accordance with this section.\n\nS. 55(2) amended by No. 21/2019 s. 8(4).\n\n(2) The only ground for an application to VCAT—\n\nS. 55(2)(a) amended by No. 41/2021 s. 27(3)(a).\n\n(a) under subsection (1)(a) is that the decision—\n\nS. 55(2)(ab) inserted by No. 41/2021 s. 27(3)(b).\n\n(ab) under subsection (1)(ab) is that the decision—\n\n(ii) is unreasonable having regard to all the circumstances;\n\n(b) under subsection (1)(b) is that the decision—\n\n(c) under subsection (1)(c) is that—\n\n(i) there has been bias; or\n\nS. 55(2)(c)(ii) amended by No. 10/2016 s. 170(3)(a).\n\n(ii) the determination is based wholly or partly on an error of fact in a material respect;\n\nS. 55(2)(d) inserted by No. 10/2016 s. 170(3)(b).\n\n(d) under subsection (1)(d) is that the decision—\n\nS. 55(2)(e) inserted by No. 10/2016 s. 170(3)(b).\n\n(e) under subsection (1)(e) is that the decision—\n\nS. 55(2)(f) inserted by No. 10/2016 s. 170(3)(b).\n\n(f) under subsection (1)(f) is that the decision—\n\nS. 55(2)(g) inserted by No. 10/2016 s. 170(3)(b).\n\n(g) under subsection (1)(g) is that the decision—\n\n(ii) is unreasonable having regard to  all the relevant circumstances.\n\nS. 55(3) amended by No. 21/2019 s. 8(5)(a).\n\n(3) A person must make an application to VCAT—\n\nS. 55(3)(a) amended by Nos 15/2008 s. 24(2)(a), 21/2019 s. 8(5)(b), substituted by No. 41/2021 s. 27(4).\n\n(a) in the case of an application under subsection (1)(a), within 14 working days after the information gathering notice is served on the person; or\n\nS. 55(3)(ab) inserted by No. 41/2021 s. 27(4).\n\n(ab) in the case of an application under subsection (1)(ab), within 14 working days after the compliance notice is served on the person; or\n\nS. 55(3)(ac) inserted by No. 41/2021 s. 27(4).\n\n(ac) in the case of an application under subsection (1)(b), within 14 working days after the person is given the notice; or\n\nS. 55(3)(b) amended by Nos 15/2008 s. 24(2)(b), 10/2016 s. 170(4)(a), 21/2019 s. 8(5)(b).\n\n(b) in the case of an application under subsection (1)(c), within 21 working days after the determination is published; or\n\nS. 55(3)(c) inserted by No. 10/2016 s. 170(4)(b), amended by No. 21/2019 s. 8(5)(b).\n\n(c) in the case of an application under subsection (1)(d), within 21 working days after the final report in which the decision is contained is laid before each House of the Parliament or a copy is made available for public inspection under section 45; or\n\nS. 55(3)(d) inserted by No. 10/2016 s. 170(4)(b), amended by No. 21/2019 s. 8(5)(b).\n\n(d) in the case of an application under subsection (1)(e), within 14 working days after the Commission port Pricing Order decision is made; or\n\nS. 55(3)(e) inserted by No. 10/2016 s. 170(4)(b), amended by No. 21/2019 s. 8(5)(b).\n\n(e) in the case of an application under subsection (1)(f), within 21 working days after the decision is made; or\n\nS. 55(3)(f) inserted by No. 10/2016 s. 170(4)(b), amended by No. 21/2019 s. 8(5)(b).\n\n(f) in the case of an application under subsection (1)(g), within 21 working days after the determination is made.\n\nS. 55(4) amended by Nos 21/2019 s. 8(6), 41/2021 s. 27(5).\n\n(4) If a person makes an application under subsection (1)(a), the person need not comply with the information gathering notice until the application is withdrawn or dismissed.\n\nS. 55(4A) inserted by No. 41/2021 s. 27(6).\n\n(4A) If a person makes an application under subsection (1)(ab), the compliance notice continues in effect until the application is determined.\n\nS. 55(5) inserted by No. 15/2008 s. 24(3), amended by No. 21/2019 s. 8(6).\n\n(5) If a person makes an application under subsection (1)(b), the Commission must not take any action to give effect to the decision until the application is determined.\n\nS. 55(6) inserted by No. 15/2008 s. 24(3), repealed by No. 21/2019 s. 8(7).\n\nS. 55(7)−(10) inserted by No. 10/2016 s. 170(5), repealed by No. 21/2019 s. 8(7).\n\nNote to s. 55 inserted by No. 21/2019 s. 8(8).\n\nIn 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**.\n\nS. 56 amended by Nos 15/2008 s. 25, 10/2016 s. 171, substituted by No. 21/2019 s. 9.\n\n","sortOrder":139},{"sectionNumber":"56","sectionType":"section","heading":"Proceedings for review by VCAT","content":"\t56 Proceedings for review by VCAT\n\nVCAT may—\n\n(a) on an application under section 55(1)(a)—\n\nS. 56(a)(ii) amended by No. 41/2021 s. 28(1).\n\n(ii) cancel the information gathering notice; or\n\nS. 56(a)(iii) amended by No. 41/2021 s. 28(1).\n\n(iii) vary the information gathering notice; or\n\nS. 56(a)(iv) amended by No. 41/2021 s. 28(1).\n\n(iv) set aside the information gathering notice and remit it to the Commission for amendment of the information gathering notice in accordance with the decision and recommendations (if any) of VCAT; and\n\nS. 56(ab) inserted by No. 41/2021 s. 28(2).\n\n(ab) on an application under section 55(1)(ab)—\n\n(ii) cancel the compliance notice; or\n\n(iii) vary the compliance notice; and\n\n(b) on an application under section 55(1)(b)—\n\n(ii) set aside the decision of the Commission and substitute a new decision for it which—\n\n(A) prohibits disclosure by the Commission of the information or document that is the subject of the application; or\n\n(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\n\n(c) on an application under section 55(1)(c) on the ground specified in section 55(2)(c)(i)—\n\n(i) determine whether or not there has been bias; and\n\n(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\n\n(d) on an application under section 55(1)(c) on the ground specified in section 55(2)(c)(ii)—\n\n(i) affirm the determination of the Commission; or\n\n(ii) vary the determination of the Commission in order to correct the error; or\n\n(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\n\n(e) on an application under section 55(1)(d)—\n\n(ii) vary the decision of the Commission; or\n\n(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\n\n(f) on an application under section 55(1)(e)—\n\n(i) affirm the Commission port Pricing Order decision; or\n\n(ii) vary the Commission port Pricing Order decision; or\n\n(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\n\n(g) on an application under section 55(1)(f)—\n\n(i) affirm the decision of the Commission under section 69 of the **Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016**; or\n\n(ii) vary the decision; or\n\n(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\n\n(h) on an application under section 55(1)(g)—\n\n(i) affirm the determination of the Commission under section 49ZA of the **Port Management Act 1995**; or\n\n(ii) vary the determination; or\n\n(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.\n\nS. 56A inserted by No. 21/2019 s. 9.\n\n","sortOrder":140},{"sectionNumber":"56A","sectionType":"section","heading":"Commission to give effect to VCAT decisions","content":"\t56A Commission to give effect to VCAT decisions\n\nThe Commission must take such action as is necessary to give effect to a decision of VCAT.\n\nSs 57−59 repealed by No. 21/2019 s. 10.\n\nPt 7 Div. 4 (Heading) inserted by No. 49/2015 s. 15(3), renumbered as Pt 7C (Heading) by No. 41/2021 s. 29.\n\n","sortOrder":141},{"sectionNumber":"Part 7C","sectionType":"part","heading":"General","content":"Part 7C—General\n\nPt 7C Div. 1 (Heading) inserted by No. 41/2021 s. 30.\n\nDivision 1—Personal liability and contraventions by bodies corporate and others\n\n","sortOrder":142},{"sectionNumber":"60","sectionType":"section","heading":"Personal liability","content":"\t60 Personal liability\n\n(1) A Commissioner or any employee or a member of a committee or panel acting under a delegation under section 26 is not personally liable for anything done or omitted to be done in good faith—\n\n(a) in the exercise of a power or the performance of a function under this Act or any relevant legislation; or\n\n(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act or any relevant legislation.\n\n(2) Any liability resulting from an act or omission that would but for subsection (1) attach to a person referred to in that subsection attaches instead to the Commission.\n\nS. 60A inserted by No. 41/2021 s. 31.\n\n","sortOrder":143},{"sectionNumber":"60A","sectionType":"section","heading":"Contraventions of this Act and relevant legislation by bodies corporate","content":"\t60A Contraventions of this Act and relevant legislation by bodies corporate\n\nS. 60A(1) amended by No. 12/2023 s. 12.\n\n(1) If a body corporate contravenes a civil penalty requirement or commits an offence against any provision of this Act or relevant legislation (other than an offence against the **Victorian Energy Efficiency Target Act 2007**), each officer of the body corporate is taken to have contravened the same civil penalty requirement or provision if the officer knowingly authorised or permitted the contravention.\n\n(2) A person may be proceeded against (and, in the case of an offence, convicted) under a provision in accordance with subsection (1) whether or not the body corporate has been proceeded against under that provision.\n\n(3) Nothing in this section affects any liability imposed on a body corporate for a contravention of a civil penalty requirement or a provision of this Act or relevant legislation by the body corporate.\n\nS. 60B inserted by No. 41/2021 s. 31.\n\n","sortOrder":144},{"sectionNumber":"60B","sectionType":"section","heading":"Conduct by officers, employees or agents","content":"\t60B Conduct by officers, employees or agents\n\nS. 60B(1) amended by No. 12/2023 s. 13(1).\n\n(1) If, in a proceeding under this Act or relevant legislation (other than a proceeding for an offence against the **Victorian Energy Efficiency Target Act 2007**) in respect of conduct that is engaged in by a body corporate and to which this Act or the relevant legislation applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show—\n\n(a) that an officer, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the officer, employee or agent; and\n\n(b) that the officer, employee or agent had that state of mind.\n\nS. 60B(2) amended by No. 12/2023 s. 13(2).\n\n(2) The following conduct engaged in on behalf of a body corporate is also taken, for the purposes of this Act or relevant legislation (other than an offence against the **Victorian Energy Efficiency Target Act 2007**), to have been engaged in by the body corporate—\n\n(a) conduct by an officer, employee or agent of the body corporate within the scope of the actual or apparent authority of the officer, employee or agent; or\n\n(b) conduct by any other person—\n\n(i) at the direction of an officer, employee or agent of the body corporate, if the giving of the direction is within the scope of the actual or apparent authority of the officer, employee or agent; or\n\n(ii) with the consent or agreement (whether express or implied) of an officer, employee or agent of the body corporate, if the giving of the consent or agreement is within the scope of the actual or apparent authority of the officer, employee or agent.\n\nS. 60B(3) amended by No. 12/2023 s. 13(1).\n\n(3) If, in a proceeding under this Act or relevant legislation (other than a proceeding for an offence against the **Victorian Energy Efficiency Target Act 2007**) in respect of conduct that is engaged in by a person (the ***principal***) other than a body corporate and to which this Act or the relevant legislation applies, it is necessary to establish the state of mind of the principal, it is sufficient to show—\n\n(a) that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority of the employee or agent; and\n\n(b) that the employee or agent had that state of mind.\n\nS. 60B(4) amended by No. 12/2023 s. 13(2).\n\n(4) The following conduct engaged in on behalf of a person (the ***principal***) other than a body corporate is also taken, for the purposes of this Act or relevant legislation (other than an offence against the **Victorian Energy Efficiency Target Act 2007**), to have been engaged in by the principal—\n\n(a) conduct by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or\n\n(b) conduct by any other person—\n\n(i) at the direction of an employee or agent of the principal, if the giving of the direction is within the scope of the actual or apparent authority of the employee or agent; or\n\n(ii) with the consent or agreement (whether express or implied) of such an employee or agent of the principal, if the giving of the consent or agreement is within the scope of the actual or apparent authority of the employee or agent.\n\n(5) A person is not liable to be punished by imprisonment for an offence if —\n\n(a) the person is convicted of the offence; and\n\n(b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and\n\n(c) the person would not have been convicted of the offence if that subsection had not been enacted.\n\n(6) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.\n\nPt 7C Div. 2 (Heading and ss 60C–60E) inserted by No. 41/2021 s. 31.\n\nDivision 2—Disclosure of information, information sharing and offences\n\nS. 60C inserted by No. 41/2021 s. 31.\n\n","sortOrder":145},{"sectionNumber":"60C","sectionType":"section","heading":"Restriction on disclosure of confidential information","content":"\t60C Restriction on disclosure of confidential information\n\n(1) This section applies if—\n\n(a) information or a document is given or made available to the Commission—\n\n(i) under section 36(1); or\n\n(ii) under section 39K; or\n\n(iii) under section 51 before its expiry under section 47 on 31 December 2007; or\n\nPart 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.\n\n(iv) under section 212E of the **Accident Towing Services Act 2007**; and\n\n(b) at the time the information or document is given, the person giving it states that it is of a confidential or commercially-sensitive nature.\n\n(2) Before the Commission makes a decision under subsection (3), the Commission must—\n\n(a) give the person giving the information or document an opportunity to make a submission to the Commission specifying—\n\n(i) why the information or document is of a confidential or commercially-sensitive nature; and\n\n(ii) the detriment that would be caused by the disclosure of the information or document; and\n\n(b) consider any submission made by that person.\n\n(3) The Commission must not disclose the information or the contents of the document to any person unless—\n\n(a) the Commission is of the opinion—\n\n(i) that the disclosure of the information or document would not cause detriment to the person supplying it; or\n\n(ii) that although the disclosure of the information or document would cause detriment to the person supplying it, the public benefit in disclosing it outweighs that detriment; and\n\n(b) the Commission is of the opinion, in relation to any other person who is aware of the information or the contents of the document and who might be detrimentally affected by the disclosure—\n\n(i) that the disclosure of the information or document would not cause detriment to that person; or\n\n(ii) that although the disclosure of the information or document would cause detriment to that person, the public benefit in disclosing it outweighs that detriment; and\n\n(c) the Commission gives the person who supplied the information or document a written notice—\n\n(i) stating that the Commission wishes to disclose the information or contents of the document, specifying the nature of the intended disclosure and setting out detailed reasons why the Commission wishes to make the disclosure; and\n\n(ii) stating that the Commission is of the opinion required by paragraph (a) and setting out detailed reasons why it is of that opinion; and\n\n(iii) setting out a copy of this section and section 55 and, as the case requires, section 45 of this Act or section 212F of the **Accident Towing Services Act 2007**; and\n\n(d) if the Commission is aware that the person who supplied the information or document in turn received the information or document from another person and is aware of that other person's identity and address, the Commission gives that other person a written notice—\n\n(i) containing the details required by paragraph (c); and\n\n(ii) stating that the Commission is of the opinion required by paragraph (b) in relation to that other person and setting out detailed reasons why it is of that opinion; and\n\n(e) no application is made to VCAT in respect of any notice given under paragraph (c) or (d) within the time permitted by section 55(3).\n\nPenalty: 120 penalty units.\n\n(4) Subsection (3) does not prevent the Commission—\n\n(a) from disclosing information or the contents of a document to—\n\n(i) the chief executive officer employed under section 23A(1); or\n\n(ii) an employee employed under section 24(1); or\n\n(iii) a member of staff referred to in section 24(2); or\n\n(iv) a consultant engaged under section 25; or\n\n(v) a member of a Division, committee or panel acting under a delegation under section 26; or\n\n(b) from using information or a document for the purposes of an inquiry or investigation; or\n\n(c) from disclosing information or the contents of a document produced in compliance with the order of a court or tribunal; or\n\n(d) from disclosing information or the contents of a document to a court or tribunal in the course of a legal proceeding; or\n\n(e) from disclosing information or the contents of a document to the Minister in a report prepared in the form required by section 45(2) or 212F(2) of the **Accident Towing Services Act 2007**; or\n\n(f) from supplying the information or document to VCAT for the purposes of a proceeding before VCAT under this Act in relation to the information or document.\n\n(5) 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 (3)(c).\n\n(6) If an application is made under section 55 and VCAT sets aside the decision and makes a decision in accordance with section 56(b)(ii)(B), the Commission may disclose anything that VCAT permits it to disclose in the manner specified by VCAT.\n\n(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the Commission wishes to disclose it cannot cause detriment to any person referred to in subsection (3)(a) or (3)(b).\n\nS. 60D inserted by No. 41/2021 s. 31.\n\n","sortOrder":146},{"sectionNumber":"60D","sectionType":"section","heading":"Commission must not disclose exempt freedom of information documents","content":"\t60D Commission must not disclose exempt freedom of information documents\n\n(1) The Commission must not disclose to any person any document that it has obtained from any agency (as defined in the **Freedom of Information Act 1982**) or Minister that is an exempt document under the **Freedom of Information Act 1982** in the hands of the agency or Minister.\n\n(2) Subsection (1) does not prevent the Commission from doing anything specified in section 60C(4).\n\nS. 60E inserted by No. 41/2021 s. 31.\n\n","sortOrder":147},{"sectionNumber":"60E","sectionType":"section","heading":"Information sharing arrangements","content":"\t60E Information sharing arrangements\n\n(1) The Commission may enter into, or approve of, an arrangement (an ***information sharing arrangement***) with a relevant agency for the purposes of sharing or exchanging information held by the Commission and the relevant agency.\n\n(2) The information to which an information sharing arrangement may relate  is limited to the following—\n\n(a) information obtained under section 37 and any other information concerning investigations, law enforcement, assessment of complaints, licensing or disciplinary matters;\n\n(b) any other information affecting the interests of consumers of goods and services in regulated industries;\n\n(c) any other information of a prescribed kind.\n\n(3) Under an information sharing arrangement, the Commission and the relevant agency are authorised—\n\n(a) to request and receive information held by the other party to the arrangement; and\n\n(b) to disclose information to the other party.\n\n(4) The Commission may only do a thing authorised under subsection (2)(a) or (b) to the extent that the information is reasonably necessary to assist in the exercise of functions under this Act or relevant legislation or the functions of the relevant agency concerned.\n\n(5) Without limiting subsection (3), the Commission may also (whether as part of an information sharing arrangement or otherwise)—\n\n(a) refer any matter (including any complaint) with respect to fair trading, or that affects the interests of consumers, to a fair trading agency or law enforcement agency; or\n\n(b) receive any matter of a type described in paragraph (a) from a fair trading agency or law enforcement agency; or\n\n(c) conduct a joint investigation into any such matter with a fair trading agency or law enforcement agency.\n\n(6) Any fair trading agency or law enforcement agency referred to in subsection (5) is, despite any other Act or law of the State, authorised to refer a matter referred to in subsection (5) to the Commission or to conduct an investigation into the matter jointly with the Commission.\n\n(7) Despite subsection (3), the Commission must not share information under this section—\n\n(a) which must not be disclosed under section 60C; or\n\n(b) which is obtained—\n\n(i) under section 36(1); or\n\n(ii) under section 39K; or\n\n(iii) under section 51 before its expiry under section 47 on 31 December 2007; or\n\nPart 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.\n\n(iv) under section 23A of the **Electricity Industry Act 2000**; or\n\n(v) under section 33 of the **Gas Industry Act 2001**; or\n\n(vi) under section 56 of the **Port Management Act 1995**; or\n\n(vii) under section 185E(5)(b) of the **Local Government Act 1989**; or\n\n(viii) under section 60 of the **Victorian Energy Efficiency Target Act 2007**; or\n\n(ix) under section 85 of the **Victorian Renewable Energy Act 2006**; or\n\n(x) under section 212E of the **Accident Towing Services Act 2007**; or\n\nS. 60E(7)(b)(xi) repealed by No. 6/2024 s. 29(a).\n\nS. 60E(7)(c) inserted by No. 6/2024 s. 29(b).\n\n(c) which was obtained under section 4G of the **Water Industry Act 1994** as in force immediately before the repeal of that section.\n\n(8) This section does not limit—\n\n(a) the powers of the Commission under Part 4 or 4B; or\n\n(b) the operation of any other Act under which a relevant agency is authorised or required to disclose information to another person or body; or\n\n(c) the giving of information—\n\n(i) to a court or tribunal in the course of a legal proceeding; or\n\n(ii) pursuant to an order of a court or tribunal; or\n\n(iii) to the extent reasonably required to enable the investigation or enforcement of a law of the State, another State or a Territory, or the Commonwealth; or\n\n(iv) with the written authority of the person to whom the information relates.\n\n(9) In this section—\n\n***essential services regulator*** means an agency of any of the following that has functions or powers that correspond, whether wholly or partly, to the functions or powers of the Commission, in relation to an industry that corresponds to a regulated industry—\n\n(a) the State;\n\n(b) another State or a Territory;\n\n(c) the Commonwealth;\n\n(d) an overseas jurisdiction;\n\n***fair trading agency*** means an agency of any of the following that exercises functions under an enactment with respect to fair trading—\n\n(a) the State;\n\n(b) another State or a Territory;\n\n(c) the Commonwealth;\n\n(d) an overseas jurisdiction;\n\n***law enforcement agency*** means—\n\n(a) Victoria Police or the police force or police service of another State or a Territory or of an overseas jurisdiction; or\n\n(b) the Australian Federal Police; or\n\n(c) the Australian Criminal Intelligence Commission; or\n\n(d) any other authority or person responsible for the investigation or prosecution of offences against the laws of—\n\n(i) the State; or\n\n(ii) another State or a Territory; or\n\n(iii) the Commonwealth; or\n\n(iv) an overseas jurisdiction;\n\n***relevant agency*** means—\n\n(a) a fair trading agency; or\n\n(b) an essential services regulator; or\n\n(c) a law enforcement agency; or\n\n(d) a prescribed person or body.\n\n","sortOrder":148},{"sectionNumber":"61","sectionType":"section","heading":"Disclosure of information an offence","content":"\t61 Disclosure of information an offence\n\n(1) A person must not disclose any confidential or commercially-sensitive information obtained during the exercise of a power or the performance of a function under, or in connection with, this Act or any relevant legislation.\n\n1. 120 penalty units.\n\n(2) A person must not use any such information to obtain directly or indirectly any pecuniary or other advantage for himself or herself or for any other person.\n\n1. 120 penalty units.\n\n(3) However, the person may disclose or use such information if—\n\n(a) the disclosure or use is made in the exercise of a power or the performance of a function under, or in connection with, this Act or any relevant legislation; or\n\nS. 61(3)(ab) inserted by No. 41/2021 s. 32.\n\n(ab) the person is authorised to do so under this Act or any other Act or law; or\n\n(b) the person has the consent of the person who supplied the information; or\n\n(c) the disclosure or use is made in legal proceedings at the direction of a court; or\n\n(d) the information is in the public domain at the time it is disclosed or used.\n\n(4) For the purpose of removing doubt, subsection (3) is not intended to interfere with any rights another person may have with regard to the disclosure or use of the information.\n\nS. 61A inserted by No. 41/2021 s. 33.\n\n","sortOrder":149},{"sectionNumber":"61A","sectionType":"section","heading":"Offence to give false or misleading information or documents","content":"\t61A Offence to give false or misleading information or documents\n\n(1) A person must not give to the Commission or an inspector information that the person is required to give to the Commission or the inspector under this Act or relevant legislation that the person knows  to be false or misleading in any material particular.\n\n(2) A person must not produce a document to the Commission or an inspector that the person is required to give to the Commission or the inspector under this Act or relevant legislation if—\n\n(a) the person knows the document is false or misleading in a material particular; and\n\n(b) the person does not indicate the respect in which the document is false or misleading.\n\nS. 61A(3) inserted by No. 28/2021 s. 32 (as amended by No. 41/2021 s. 119).\n\n(3) Subsections (1) and (2) do not apply to an energy licensee who is required to give information or produce a document to the Commission under or for the purposes of the **Electricity Industry Act 2000** or the **Gas Industry Act 2001**.\n\nSection 116AA of the **Electricity Industry Act 2000** and section 229A of the **Gas Industry Act 2001** contain offences relating to energy licensees providing false or misleading information or documents to the Commission.\n\nS. 61B inserted by No. 41/2021 s. 33.\n\n","sortOrder":150},{"sectionNumber":"61B","sectionType":"section","heading":"Monetary benefits order—false and misleading information offence to Commission","content":"\t61B Monetary benefits order—false and misleading information offence to Commission\n\n(1) If a court finds a person guilty of an offence against section 36(4), 37(2) or 61A(1) or (2), the court may make an order under subsection (3).\n\n(2) The court may make an order under subsection (3) on application of the Commission or a person authorised by the Commission.\n\n(3) The court may order the person to pay an amount not exceeding the amount that the court is satisfied represents the amount of any monetary benefits acquired by the person, or accrued or accruing to the person, as a result of the commission of the offence.\n\n(4) A person must pay an amount under subsection (3) to the Commission for payment into the Essential Services Commission Enforcement Fund.\n\n1 An amount that is ordered to be paid under this section is a debt due to the Commission and the Commission may recover the amount in the court—see section 54ZS.\n\n2 Section 62B provides for the determination of amounts to be paid under monetary benefits orders.\n\nPt 7C Div. 3 (Heading) inserted by No. 41/2021 s. 33.\n\nDivision 3—Miscellaneous\n\n","sortOrder":151},{"sectionNumber":"62","sectionType":"section","heading":"Proceedings","content":"\t62 Proceedings\n\nS. 62(1) amended by No. 41/2021 s. 34(a).\n\n(1) No proceedings may be brought in respect of a determination other than on the grounds that—\n\nS. 62(1)(a) amended by No. 41/2021 s. 34(b).\n\n(a) there was no power to make the determination; or\n\nS. 62(1)(b) amended by No. 41/2021 s. 34(b).\n\n(b) that the procedural requirements in relation to the making of the determination have not been complied with.\n\n(2) The Commission is entitled to perform the role ofa contradictor in any proceedings brought on the grounds specified in subsection (1) if the Commission gives notice to all the other parties inthe proceedings that it intends to do so.\n\nS. 62A inserted by No. 41/2021 s. 35.\n\n","sortOrder":152},{"sectionNumber":"62A","sectionType":"section","heading":"Who can commence proceedings for offences?","content":"\t62A Who can commence proceedings for offences?\n\n(1) A proceeding for an offence against this Act or the regulations under it may only be commenced by—\n\n(a) the Commission; or\n\n(b) a person authorised by the Commission for the purposes of this section.\n\n(2) A proceeding for an offence against relevant legislation or the regulations under it in respect of which the Commission has powers  or functions  may only be commenced by—\n\n(a) the Commission; or\n\n(b) a person authorised by the Commission for the purposes of this section.\n\n(3) In a proceeding for an offence against this Act or the regulations under this Act, it must be presumed, in the absence of evidence to the contrary, that the person commencing the proceeding was authorised to commence the proceeding.\n\n(4) In a proceeding for an offence against relevant legislation or regulations under it in respect of which the Commission has powers or functions, it must be presumed, in the absence of evidence to the contrary, that the person commencing the proceeding was authorised to commence the proceeding.\n\n(5) This section does not apply to a proceeding for an indictable offence.\n\n(6) Subsection (2) does not apply to relevant legislation or regulations under that relevant legislation if express provision is made in that relevant legislation specifying who may commence a proceeding for an offence against that relevant legislation or the regulations under it.\n\nS. 62B inserted by No. 41/2021 s. 35.\n\n","sortOrder":153},{"sectionNumber":"62B","sectionType":"section","heading":"Determining amount to be paid under monetary benefits orders and certain civil penalty orders","content":"\t62B Determining amount to be paid under monetary benefits orders and certain civil penalty orders\n\n(1) When determining an amount that the person must pay under a monetary benefits order or a civil penalty order under section 54A(1)(b) or 54C(1)(b)(ii), the court may take into account—\n\n(a) the person's financial circumstances; and\n\n(b) any amount submitted to the court by the Commission under subsection (2).\n\n(2) The Commission, or a person authorised by the Commission, may submit to the court the amount the Commission considers to be a reasonable estimate of the amount of monetary benefits acquired by the person, or accrued or accruing to the person, as a result of the commission of the offence or contravention of the civil penalty requirement or enforceable undertaking in relation to which the monetary benefits order or civil penalty order is sought as determined in accordance with—\n\n(a) a prescribed guideline, method or protocol; or\n\n(b) any other method the Commission considers appropriate.\n\n(3) For the purposes of sections 54A(1)(b), 54C(1)(b)(ii), 54ZF and 61B(3), the court may assume that an amount represents the amount of any monetary benefits acquired by a person, or accrued or accruing to the person, as a result of the commission of the offence or the contravention of the civil penalty requirement or enforceable undertaking if—\n\n(a) the Commission submits that amount to the court under subsection (2); and\n\n(b) the Commission determined that amount in accordance with a prescribed guideline, method or protocol.\n\n(4) The amount of money that the court may order a person to pay under section 54A(1)(b), 54C(1)(b)(ii), 54ZF or 61B(3) is not limited by—\n\n(a) any penalty that may be imposed under this Act; or\n\n(b) the jurisdictional limit for a civil proceeding specified under section 100(1) of the **Magistrates' Court Act 1989**.\n\n(5) Nothing in a civil penalty order, monetary benefits order, this section or section 54A(1)(b), 54C(1)(b)(ii), 54ZF or 61B(3), affects the operation of Part 8 of the **Confiscation Act 1997**.\n\nS. 62C inserted by No. 41/2021 s. 35.\n\n","sortOrder":154},{"sectionNumber":"62C","sectionType":"section","heading":"Court may grant relief from liability","content":"\t62C Court may grant relief from liability\n\n(1) If in a proceeding specified in subsection (2), in which a person, other than a body corporate, may be liable for an offence or a civil penalty, it appears to the court that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit.\n\n(2) For the purposes of subsection (1) the following proceedings are specified—\n\n(a) a proceeding for the commission of an offence against any provision of this Act or relevant legislation in respect of which the Commission has powers or functions;\n\n(b) a proceeding for the contravention of a civil penalty requirement.\n\nS. 63 amended by No. 21/2019 s. 17.\n\n","sortOrder":155},{"sectionNumber":"63","sectionType":"section","heading":"Supreme Court—limitation of jurisdiction","content":"\t63 Supreme Court—limitation of jurisdiction\n\nIt is the intention of section 62 to alter or vary section 85 of the **Constitution Act 1975**.\n\nS. 64 substituted by No. 41/2021 s. 36.\n\n","sortOrder":156},{"sectionNumber":"64","sectionType":"section","heading":"Service of documents","content":"\t64 Service of documents\n\n(1) Subject to this section, a document required or permitted under this Act to be served on, or given to, a person, may be served or given—\n\n(a) if the person is a natural person—\n\n(i) by delivering it to the person personally; or\n\n(ii) by leaving it at the address of the person's usual or last known place of residence or business with a person apparently over 16 years of age and apparently residing or employed there; or\n\n(iii) by sending it by post to the person's usual or last known place of residence or business; or\n\n(iv) by any prescribed manner; or\n\n(b) if the person is a body corporate—\n\n(i) by leaving it at the address of the person's usual or last known place of business with a person apparently over 16 years of age and apparently employed there; or\n\n(ii) by sending it by post to the person's usual or last known place of business; or\n\n(iii) by any prescribed manner.\n\n(2) A document may be served on or given to the Commission by—\n\n(a) leaving it at or posting it to the principal office of the Commission; or\n\n(b) any prescribed manner.\n\n(3) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on or given to the Commission in any other manner.\n\n","sortOrder":157},{"sectionNumber":"65","sectionType":"section","heading":"Regulations","content":"\t65 Regulations\n\n(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.\n\nS. 65(2) repealed by No. 21/2019 s. 11(1), new s. 65(2) inserted by No. 41/2021 s. 37.\n\n(2) Without limiting subsection (1), the regulations may—\n\n(a) prescribe provisions of this Act or Codes of Practice as civil penalty requirements;\n\n(b) prescribe amounts for the purposes of section 54E(a);\n\n(c) prescribe amounts of notice penalties for the purposes of section 54U(a);\n\n(d) prescribe any other matter that is required for the operation of civil penalty orders in Division 1 of Part 7;\n\n(e) prescribe any other matter that is required to be prescribed for the operation of the penalty notice regime in Division 2 of Part 7.\n\n(3) The regulations—\n\n(a) may be of general or limited application; and\n\n(b) may differ according to differences in time, place or circumstance; and\n\n(c) may impose penalties not exceeding 10 penalty units for a contravention of or an offence under the regulations; and\n\n(d) may apply, adopt or incorporate (with or without modification)—\n\n(i) the provisions of any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person or body whether as formulated, issued, prescribed or published at the time the regulations are made, or at any time before then; or\n\nS. 65(3)(d)(ii) amended by No. 44/2014 s. 33(Sch. item 11).\n\n(ii) the provisions of any Act of the Commonwealth or of another State orof a Territory or any matter contained in an Index published by the Commonwealth or of another State or of a Territory or any matter contained in an Index published by the Australian Bureau of Statistics or the provisions of any subordinate instrument under any of those Acts, whether wholly or partially or as amended by the regulations or as in force or published at a particular time or from time to time; and\n\nS. 65(3)(e) amended by No. 21/2019 s. 11(2).\n\n(e) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by the Commission; and\n\nS. 65(3)(f) amended by No. 21/2019 s. 11(2).\n\n(f) may confer powers or impose duties in connection with the regulations on the Commission.\n\n(4) The Regulations are subject to disallowance by a House of the Parliament.\n\n","sortOrder":158},{"sectionNumber":"66","sectionType":"section","heading":"Review","content":"\t66 Review\n\nS. 66(1) substituted by No. 15/2008 s. 26, amended by No. 21/2019 s. 18(1).\n\n(1) The Minister must ensure that a further review of this Act is completed by 31 December 2026.\n\n(2) The purpose of the review is to determine—\n\n(a) whether the objectives of this Act and the Commission are being achieved and are still appropriate; and\n\nS. 66(2)(b) amended by No. 41/2021 s. 38(a).\n\n(b) whether the Act is effective or needs to be amended so as to further facilitate the objectives or to insert new objectives; and\n\nS. 66(2)(c) inserted by No. 41/2021 s. 38(b).\n\n(c) the adequacy and effectiveness of the processes for making, amending and revoking—\n\n(i) Codes of Practice under section 47(1); and\n\n(ii) any standards, guidelines, directions or other subordinate instruments in relation to regulated industries made by the Commission under relevant legislation.\n\nS. 66(3) amended by No. 21/2019 s. 18(2).\n\n(3) The Minister must cause a copy of the review and a statement of the response of the Government to the review to be laid before each House of the Parliament by the first sitting day after  \n\nPt 7D (Heading and ss 66A–66D) inserted by No. 52/2021 s. 48, repealed by No. 62/2001 s. 66D.\n\n","sortOrder":159},{"sectionNumber":"Part 8","sectionType":"part","heading":"Transitional","content":"Part 8—Transitional\n\n","sortOrder":160},{"sectionNumber":"67","sectionType":"section","heading":"Repeal of the Office of the Regulator-General Act 1994","content":"\t67 Repeal of the Office of the Regulator-General Act 1994\n\n(1) The **Office of the Regulator-General Act 1994** is **repealed**.\n\n(2) Except as in this Act expressly or by necessary implication provided—\n\n(a) all persons, things and circumstances appointed or created by or under the **Office of the Regulator-General Act 1994** or existing or continuing under that Act or under relevant legislation immediately before the commencement of this Act shall under and subject to this Act continue to have the same status, operation and effect as they respectively would have had if this Act had not come into operation; and\n\n(b) in particular and without affecting the generality of paragraph (a), this Act shall not disturb the continuity of, status, operation or effect of any Order, determination, declaration, notice, exemption, approval, appointment, authorisation, application, grant, revocation, suspension, condition, certificate, licence, permit, registration, contract, agreement, charge, consent, authority, proceeding, action, appeal, appeal panel, liability, right or other matter or thing made, done, effected, obtained, issued, granted, given, prescribed, fixed, accrued, incurred, acquired, existing or continuing before the commencement of this Act under the **Office of the Regulator-General Act 1994** or under relevant legislation.\n\n","sortOrder":161},{"sectionNumber":"68","sectionType":"section","heading":"Commission is successor in law","content":"\t68 Commission is successor in law\n\n(1) On the commencement of this Act—\n\n(a) all property, rights and assets of the Office of the Regulator-General are by virtue of this Act held by the Commission;\n\n(b) all liabilities of the Office of the Regulator-General are by virtue of this Act held by the Commission;\n\n(c) the Commission is the successor in law of the Office of the Regulator-General.\n\n(2) Where, immediately before the commencement of this Act, proceedings in respect of which the Office of the Regulator-General was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Commission is substituted for the Office of the Regulator-General as a party to the proceedings and has the same rights and obligations in the proceedings as the Office of the Regulator-General.\n\n(3) On and after the commencement of this Act, any reference in any Act (other than this Act), regulation, subordinate instrument or other document whatsoever to—\n\n(a) the Office of the Regulator-General is to be construed as a reference to the Commission, unless the contrary intention appears; or\n\n(b) the **Office of the Regulator-General Act 1994** is to be construed as a reference tothis Act, unless the contrary intention appears.\n\n(4) No stamp duty or other tax is payable under any Act in respect of anything done under this section.\n\n(5) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument, must make any amendments in the Register that are necessary because of the operation of this section.\n\nS. 69 substituted by No. 21/2019 s. 20.\n\n","sortOrder":162},{"sectionNumber":"69","sectionType":"section","heading":"Transitional provision—uncompleted appeals","content":"\t69 Transitional provision—uncompleted appeals\n\n(1) This section applies if—\n\n(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\n\n(b) no decision on the appeal has been made by an appeal panel before that commencement.\n\n(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.\n\n(3) For the purposes of subsection (2)—\n\n(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\n\n(b) if an 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, the appeal panel must continue to hear and decide the appeal.\n\n(4) In this section—\n\n***appeal*** means an appeal under section 55 within the meaning of this Act as in force immediately before the commencement of the VCAT amendments;\n\n***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.\n\nNew s. 70 inserted by No. 41/2021 s. 39.\n\n","sortOrder":163},{"sectionNumber":"70","sectionType":"section","heading":"Enforcement","content":"\t70 Enforcement\n\nThis Act, as in force immediately before the commencement of section 6 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, continues to apply in relation to any contravention that occurs before that commencement to which section 54A applies, as it was in force before that commencement.\n\nNew s. 71 inserted by No. 41/2021 s. 39.\n\n","sortOrder":164},{"sectionNumber":"71","sectionType":"section","heading":"Enforcement orders","content":"\t71 Enforcement orders\n\nThis Act, as in force immediately before the commencement of section 6 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, continues to apply in relation to any enforcement order served under section 53 before that commencement.\n\nNew s. 72 inserted by No. 41/2021 s. 39.\n\n","sortOrder":165},{"sectionNumber":"72","sectionType":"section","heading":"Energy industry penalty notices","content":"\t72 Energy industry penalty notices\n\n(1) This Act applies to any energy industry penalty notice or wrongful disconnection penalty notice as if it were a penalty notice if—\n\n(a) it was served on an energy licensee before the commencement of section 6 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**; and\n\n(b) before that commencement it has not been paid or withdrawn or relevant enforcement action has not been taken in relation to the contravention to which it relates.\n\n(2) Despite subsection (1), if any matter specified in an energy industry penalty notice or wrongful disconnection penalty notice that was served on a person before the commencement of section 6 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021** conflicts with the requirements in this Act, the matter specified in the notice prevails.\n\nNew s. 73 inserted by No. 41/2021 s. 39.\n\n","sortOrder":166},{"sectionNumber":"73","sectionType":"section","heading":"Information gathering","content":"\t73 Information gathering\n\n(1) Despite the amendments made to this Act by section 5 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, this Act, as in force immediately before the commencement of that section, continues to apply in relation to a requirement or request under section 37 or 37A(1) or (2), as those sections were in force immediately before that commencement, if—\n\n(a) notice of the requirement or request was given before that commencement; and\n\n(b) the person to whom the notice was given has not complied with that requirement or request before that commencement.\n\n(2) Despite the amendments made to this Act by section 5 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, this Act, as in force immediately before that commencement, continues to apply in relation to any information or document provided in response to a requirement or request under section 37 or section 37A(1) or (2), as those sections were in force immediately before that commencement, if—\n\n(a) notice of the requirement or request was given before that commencement; and\n\n(b) the information or document is provided in response to that requirement or request.\n\nNew s. 74 inserted by No. 41/2021 s. 39.\n\n","sortOrder":167},{"sectionNumber":"74","sectionType":"section","heading":"Information sharing","content":"\t74 Information sharing\n\n(1) Despite section 60E, the Commission and a relevant agency (within the meaning of that section) are not authorised to share, exchange, request, receive or disclose confidential information that was provided to or otherwise obtained by the Commission under this Act or relevant legislation—\n\n(a) before the commencement of section 31 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**; or\n\n(b) after the commencement of section 31 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, if the confidential information was provided or otherwise obtained in response to a request or requirement made under this Act or relevant legislation as in force immediately before that commencement.\n\n(2) The Commission and a relevant agency within the meaning of section 60E may share, exchange, request, receive or disclose information (other than confidential information) that was provided to or otherwise obtained by the Commission under this Act or relevant legislation in accordance with that section—\n\n(a) before the commencement of section 31 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**; or\n\n(b) after the commencement of section 31 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, if the information was provided or otherwise obtained in response to a request or requirement made under this Act or relevant legislation as in force immediately before that commencement.\n\n(3) In this section—\n\n***confidential information*** means information that, at the time the information or document is given to the Commission, the person giving it states that it is of a confidential or commercially sensitive nature.\n\nNew s. 75 inserted by No. 41/2021 s. 39.\n\n","sortOrder":168},{"sectionNumber":"75","sectionType":"section","heading":"Chief executive officer","content":"\t75 Chief executive officer\n\nA person who, immediately before the commencement of section 16 of the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**, was the chief executive officer of the Commission is taken on and after that day to be the chief executive officer of the Commission appointed—\n\n(a) on the same terms and conditions on which the person held office as chief executive officer, unless those terms and conditions are varied; and\n\n(b) until the date on which the person's term as the chief executive officer would have otherwise expired, unless—\n\n(i) the person resigns from office; or\n\n(ii) the person is removed from office.\n\nNew s. 76 inserted by No. 41/2021 s. 39.\n\n","sortOrder":169},{"sectionNumber":"76","sectionType":"section","heading":"Codes of Practice","content":"\t76 Codes of Practice\n\n(1) On the day on which section 22 of the amending Act comes into operation, the following documents are taken to be a Code of Practice made under section 47(1)—\n\n(a) the document entitled \"Code of Conduct for Marketing Retail Energy\" published by the Commission in October 2004, as amended from time to time and in effect immediately before that day;\n\n(b) the document entitled \"Electricity Customer Metering Code\" published by the Commission on 13 October 2014, as amended from time to time and in effect immediately before that day;\n\n(c) the document entitled \"Electricity Customer Transfer Code\" published by the Commission on 13 October 2014, as amended from time to time and in effect immediately before that day;\n\n(d) the document entitled \"Electricity Distribution Code\" published by the Commission on 1 January 2006, as amended from time to time and in effect immediately before that day;\n\n(e) the document entitled \"Electricity System Code\" published by the Commission in October 2000, as amended from time to time and in effect immediately before that day;\n\n(f) the document entitled \"Energy Retail Code\" published by the Commission in August 2004, as amended from time to time and in effect immediately before that day;\n\n(g) the document entitled \"Gas Distribution System Code\" published by the Commission with effect on 1 July 1997, as amended from time to time and in effect immediately before that day;\n\n(h) the document entitled \"Public Lighting Code\" published by the Commission in December 2015, as amended from time to time and in effect immediately before that day.\n\n(2) For the purposes of section 47(4B), a Code of Practice referred to in subsection (1) is taken to have been made on the day on which section 22 of the amending Act comes into operation.\n\n(3) Despite section 50, a Code of Practice referred to in subsection (1) is revoked on 31 December 2025, unless it is revoked sooner.\n\n(4) Unless the context otherwise requires,  on and after the day on which section 22 of the amending Act comes into operation, any reference in any document (however described) to a document referred to in subsection (1) is taken to be a reference to the Code of Practice that the document is taken to be under that subsection.\n\n(5) In this section—\n\n***amending Act*** means the **Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021**.\n\nNew s. 77 inserted by No. 41/2021 s. 39, repealed by No. 62/2001 s. 77(10).\n\nNew s. 78 inserted by No. 41/2021 s. 39, repealed by No. 62/2001 s. 78(8).\n\nNew s. 79 inserted by No. 41/2021 s. 39, repealed by No. 62/2001 s. 79(8).\n\nNew s. 80 inserted by No. 41/2021 s. 39, repealed by No. 62/2001 s. 80(6).\n\nPt 9 (Heading and ss 70–76) amended by No. 11/2002 s. 3(Sch. 1 item 23), repealed by No. 75/2004 s. 5.\n\nPts 10–15 (Headings and ss 77–96) repealed by No. 75/2004 s. 5.\n\nEndnotes\n\n1 General information\n\nSee [www.legislation.vic.gov.au](http://www.legislation.vic.gov.au) for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.\n\n*Minister's second reading speech—*\n\n*Legislative Assembly: 23 August 2001*\n\n*Legislative Council: 9 October 2001*\n\nThe long title for the Bill for this Act was \"to establish the Essential Services Commission, to repeal the **Office of the Regulator-General Act 1994** and consequentially amend certain other Acts and for other purposes.\"\n\n**Constitution Act 1975:**\n\n*Section 85(5) statement:*\n\n*Legislative Assembly: 23 August 2001*\n\n*Legislative Council: 9 October 2001*\n\n*Absolute majorities:*\n\n*Legislative Assembly: 27 September 2001*\n\n*Legislative Council: 16 October 2001, 17 October 2001*\n\nThe **Essential Services Commission Act 2001** was assented to on 23 October 2001 and came into operation on 1 January 2002: section 2.\n\nINTERPRETATION OF LEGISLATION ACT 1984 (ILA)\n\nStyle changes\n\nSection 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.\n\nReferences to ILA s. 39B\n\nSidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression \"(1)\" at the beginning of the original section or clause.\n\nInterpretation\n\nAs from 1 January 2001, amendments to section 36 of the ILA have the following effects:\n\n• Headings\n\nAll headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).\n\n• Examples, diagrams or notes\n\nAll examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).\n\n• Punctuation\n\nAll punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).\n\n• Provision numbers\n\nAll provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).\n\n• Location of \"legislative items\"\n\nA \"legislative item\" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.\n\n• Other material\n\nAny explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.  \nSee section 36(3)(3D)(3E).\n\n2 Table of Amendments\n\nThis publication incorporates amendments made to the **Essential Services Commission Act 2001** by Acts and subordinate instruments.\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n**Essential Services Commission Act 2001, No. 62/2001**\n\n| Assent Date: | 23.10.01 |\n| Commencement Date: | S. 47 on 1.1.02: s. 2; s. 80(6) inserted on 1.12.21 by No. 41/2021 s. 39: Special Gazette (No. 673) 30.11.21 p. 1; s. 77(10) inserted on 1.12.21 by No. 41/2021 s. 39: Special Gazette (No. 673) 30.11.21 p. 1; s. 78(8) inserted on 1.12.21 by No. 41/2021 s. 39: Special Gazette (No. 673) 30.11.21 p. 1; s. 79(8) inserted on 1.12.21 by No. 41/2021 s. 39: Special Gazette (No. 673) 30.11.21 p. 1; s. 66D inserted on 1.12.21 by No. 52/2021 s. 48: s. 2(1); ss 66B, 66C on 1.7.24: s. 66A |\n| Note: | S. 47 provided that Pt 6 (ss 47–52) expired on 31.12.07; s. 80(6) repealed s. 80 on 1.12.23; s. 66D repealed Pt 7D (ss 66A−66D) on 1.7.25; s. 77(10) repealed s. 77 on 31.12.25; s. 78(8) repealed s. 78 on 31.12.25; s. 79(8) repealed s. 79 on 31.12.25 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Statute Law (Further Revision) Act 2002, No. 11/2002**\n\n| Assent Date: | 23.4.02 |\n| Commencement Date: | S. 3(Sch. 1 item 23) on 23.10.01: s. 2(2)(d) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Transport (Further Miscellaneous Amendments) Act 2002, No. 32/2002**\n\n| Assent Date: | 12.6.02 |\n| Commencement Date: | S. 25 on 13.6.02: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002, No. 49/2002**\n\n| Assent Date: | 22.10.02 |\n| Commencement Date: | Ss 18–21 on 23.10.02: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation (Consumer Protection and Other Amendments) Act 2003, No. 40/2003**\n\n| Assent Date: | 11.6.03 |\n| Commencement Date: | S. 23 on 12.6.03: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Water Legislation (Essential Services Commission and Other Amendments) Act 2003, No. 48/2003**\n\n| Assent Date: | 11.6.03 |\n| Commencement Date: | S. 11 on 1.1.04: Government Gazette 11.12.03 p. 3117 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Essential Services Commission (Amendment) Act 2004, No. 75/2004**\n\n| Assent Date: | 9.11.04 |\n| Commencement Date: | Ss 3–5 on 10.11.04: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Electricity Industry (Wind Energy Development) Act 2004, No. 86/2004**\n\n| Assent Date: | 23.11.04 |\n| Commencement Date: | S. 5 on 24.11.04: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation (Amendment) Act 2004, No. 91/2004**\n\n| Assent Date: | 7.12.04 |\n| Commencement Date: | S. 26 on 8.12.04: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Public Administration Act 2004, No. 108/2004**\n\n| Assent Date: | 21.12.04 |\n| Commencement Date: | S. 117(1)(Sch. 3 item 70) on 5.4.05: Government Gazette 31.3.05 p. 602 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Victorian Renewable Energy Act 2006, No. 72/2006**\n\n| Assent Date: | 19.9.06 |\n| Commencement Date: | Ss 115–117 on 1.1.07: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006**\n\n| Assent Date: | 10.10.06 |\n| Commencement Date: | S. 26(Sch. item 35) on 11.10.06: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Victorian Energy Efficiency Target Act 2007, No. 70/2007**\n\n| Assent Date: | 11.12.07 |\n| Commencement Date: | Ss 77, 78 on 1.1.09: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Essential Services Commission Amendment Act 2008, No. 15/2008**\n\n| Assent Date: | 23.4.08 |\n| Commencement Date: | Ss 3–26 on 1.7.08: Government Gazette 26.6.08 p. 1388 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Transport Integration Act 2010, No. 6/2010** (as amended by No. 45/2010)\n\n| Assent Date: | 2.3.10 |\n| Commencement Date: | S. 203(1)(Sch. 6 item 20) on 1.7.10: Special Gazette (No. 256) 30.6.10 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Accident Towing Services Amendment Act 2011, No. 40/2011**\n\n| Assent Date: | 6.9.11 |\n| Commencement Date: | Ss 23, 24 on 7.9.11: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Water Legislation Amendment (Water Infrastructure Charges) Act 2011, No. 63/2011**\n\n| Assent Date: | 15.11.11 |\n| Commencement Date: | Ss 7, 8 on 16.11.11: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Fire Services Property Levy Act 2012, No. 58/2012**\n\n| Assent Date: | 16.10.12 |\n| Commencement Date: | Ss 92, 93 on 17.10.12: s. 2(1); ss 134, 135 on 31.12.16: s. 2(8) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Fire Services Levy Monitor Act 2012, No. 81/2012**\n\n| Assent Date: | 18.12.12 |\n| Commencement Date: | S. 113(1) on 19.12.12: s. 2(1); s. 113(2) on 30.12.14: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Transport Legislation Amendment (Foundation Taxi and Hire Car Reforms) Act 2013, No. 43/2013**\n\n| Assent Date: | 28.6.13 |\n| Commencement Date: | S. 31(1)(3)(4) on 1.2.14: Special Gazette (No. 17) 28.1.14 p. 1; s. 31(2) on 30.6.14: s. 2(4) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Treasury Legislation and Other Acts Amendment Act 2014, No. 44/2014**\n\n| *Assent Date:* | 27.6.14 |\n| *Commencement Date:* | S. 33(Sch. item 11) on 30.6.14: s. 2(5) |\n| *Current State:* | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation Amendment (Consumer Protection) Act 2015, No. 49/2015**\n\n| Assent Date: | 13.10.15 |\n| Commencement Date: | Ss 13–17 on 1.1.16: Special Gazette (No. 403) 15.12.15 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Local Government Amendment (Fair Go Rates) Act 2015, No. 65/2015**\n\n| Assent Date: | 1.12.15 |\n| Commencement Date: | Ss 10–12 on 2.12.15: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016, No. 10/2016**\n\n| Assent Date: | 22.3.16 |\n| Commencement Date: | Ss 168–171 on 7.6.16: Special Gazette (No. 177) 7.6.16 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017, No. 63/2017**\n\n| Assent Date: | 19.12.17 |\n| Commencement Date: | S. 21(Sch. 1 item 4) on 2.7.18: Special Gazette (No. 248) 29.5.18 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation Amendment (Victorian Default Offer) Act 2019, No. 6/2019**\n\n| Assent Date: | 26.3.19 |\n| Commencement Date: | Ss 6–8 on 27.3.19: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Essential Services Commission Amendment (Governance, Procedural and Administrative Improvements) Act 2019, No. 21/2019**\n\n| Assent Date: | 20.8.19 |\n| Commencement Date: | Ss 4–20 on 6.12.19: Special Gazette (No. 496) 3.12.19 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Local Government Act 2020, No. 9/2020**\n\n| Assent Date: | 24.3.20 |\n| Commencement Date: | Ss 387, 390(Sch. 1 item 36) on 6.4.20: Special Gazette (No. 150) 24.3.20 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021**\n\n| Assent Date: | 23.3.21 |\n| Commencement Date: | S. 197 on 26.4.21: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation Amendment (Energy Fairness) Act 2021, No. 28/2021** (as amended by No. 41/2021)\n\n| Assent Date: | 10.8.21 |\n| Commencement Date: | S. 32 on 1.3.22: Special Gazette (No. 87) 22.2.22 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation Amendment Act 2021, No. 33/2021** (as amended by No. 41/2021)\n\n| Assent Date: | 14.9.21 |\n| Commencement Date: | S. 7 on 1.6.22: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Essential Services Commission (Compliance and Enforcement Powers) Amendment Act 2021, No. 41/2021**\n\n| Assent Date: | 19.10.21 |\n| Commencement Date: | Ss 4–39 on 1.12.21: Special Gazette (No. 673) 30.11.21 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Windfall Gains Tax and State Taxation and Other Acts Further Amendment Act 2021, No. 52/2021**\n\n| Assent Date: | 30.11.21 |\n| Commencement Date: | S. 48 on 1.12.21: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Regulatory Legislation Amendment (Reform) Act 2022, No. 13/2022**\n\n| Assent Date: | 29.3.22 |\n| *Commencement Date:* | S. 77 on 30.3.22: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**State Taxation and Treasury Legislation Amendment Act 2022, No. 23/2022**\n\n| Assent Date: | 15.6.22 |\n| Commencement Date: | Ss 13–16 on 1.7.22: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Local Government Legislation Amendment (Rating and Other Matters) Act 2022, No. 30/2022**\n\n| Assent Date: | 9.8.22 |\n| Commencement Date: | S. 42(2) on 10.8.22: s. 2(3); s. 42(1) on 20.6.23: s. 2(5) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Victorian Energy Efficiency Target Amendment Act 2022, No. 34/2022**\n\n| Assent Date: | 23.8.22 |\n| Commencement Date: | S. 68 on 1.7.23: Special Gazette (No. 333) 27.6.23 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Energy Legislation Amendment (Electricity Outage Emergency Response and Other Matters) Act 2023, No. 12/2023**\n\n| Assent Date: | 6.6.23 |\n| Commencement Date: | Ss 11–13 on 7.6.23: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Regulatory Legislation Amendment (Reform) Act 2024, No. 6/2024**\n\n| Assent Date: | 5.3.24 |\n| Commencement Date: | Ss 23−29 on 6.3.24: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n**Regulatory Legislation Amendment (Reform) Act 2025, No. 14/2025**\n\n| Assent Date: | 20.5.25 |\n| Commencement Date: | S. 40 on 21.5.25: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Essential Services Commission Act 2001** |\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n3 Explanatory details\n\nNo entries at date of publication.","sortOrder":170}],"analysis":{"summary":{"complexity_score":5,"scope_assessment":{"changed":true,"description":"The ESC's scope has expanded considerably since the Act was originally made in 2001. Over time, additional sectors and regulatory functions have been brought under the Commission's remit through amendments, including expanded roles in areas such as energy retail markets, taxi and hire car services, and other regulated industries. The consolidated version reflects these accumulated expansions beyond the original framework."},"complexity_factors":["Establishes a multi-function regulatory body with broad discretionary powers across several industries","Interacts with numerous other sector-specific Acts (electricity, gas, water legislation), requiring cross-referencing to fully understand scope","Contains procedural requirements for regulatory decision-making, investigations, and reviews that involve administrative law concepts","Governance provisions (appointments, accountability, funding) add structural complexity","Limited text provided in this excerpt — the full Act likely contains significantly more technical detail about regulatory processes and powers","Relatively straightforward in core purpose (establishing a regulator), which moderates overall complexity"],"plain_english_summary":"## Essential Services Commission Act 2001\n\nThis Victorian law establishes the **Essential Services Commission (ESC)** — an independent government body that oversees and regulates industries providing essential services to Victorians.\n\n### What does it do?\n- **Creates the regulator**: Sets up the ESC as an independent body with its own powers, functions, and governance structure.\n- **Regulates key industries**: The ESC oversees sectors like electricity, gas, water, ports, and other essential services that everyday people rely on.\n- **Protects consumers**: By regulating pricing, service standards, and conduct in these industries, the law helps ensure that essential service providers don't exploit their market position (e.g., charging unreasonable prices).\n- **Sets the rules for regulation**: Establishes how the ESC must conduct investigations, make decisions, and issue licences or authorisations to service providers.\n\n### Who does it affect?\n- **Ordinary Victorians** — as consumers of electricity, gas, water, and other essential services\n- **Businesses** that provide essential services in Victoria — they must comply with ESC rules and decisions\n- **Government agencies** that work alongside the ESC\n\n### Why does it matter?\nEssential services are things you can't easily live without — power, water, gas. Without regulation, providers could charge whatever they like or deliver poor service. This law creates the watchdog that keeps them accountable."},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The original 2001 Act focused on economic regulation of energy, water and ports by replacing the Office of the Regulator-General with a single Commission applying consistent objectives (s 8). Successive amendments have significantly broadened scope to add functions over renewable energy compliance (s 10(j)–(k)), council rate caps (s 10E and Part 8A of the Local Government Act 1989), commercial passenger vehicles and non-cash payment transactions (s 10(i) and definitions), grain handling, rail, and energy efficiency schemes. Enforcement powers expanded dramatically in 2021 (Part 7 overhaul adding civil penalties, monetary benefits orders, compliance notices and the Enforcement Fund). New Parts 4A–4C on regulated entity information and inspection powers, plus specific pricing principles (Part 3A) and code-making (Part 6), have transformed the Act from a framework statute into a comprehensive regulatory and enforcement statute applying across more industries than originally contemplated."},"complexity_factors":["Over 70 defined terms in s 3, many cross-referencing other Acts (e.g. 'civil penalty requirement', 'regulated entity', 'essential services requirement', 'empowering instrument')","Heavy cross-referencing to at least 10 other pieces of legislation including the Electricity Industry Act 2000, Gas Industry Act 2001, Port Management Act 1995, Local Government Act 2020, Victorian Energy Efficiency Target Act 2007, and Commercial Passenger Vehicle Industry Act 2017","Layered enforcement regime in Part 7 with 8 divisions covering contravention orders, civil penalties scaled by entity type (ss 54A–54E), penalty notices, enforceable undertakings, compliance notices, injunctions, declarations, and a public register (s 54ZO)","Detailed procedural rules for information gathering notices (Part 4), search warrants, self-incrimination protections (ss 39A–39B), document seizure and return (ss 39E–39I), and court compliance orders (Part 4C)","Multiple conditional exceptions, carve-outs and non-application clauses (e.g. ss 4(3)–(9), 5(2)–(4), 10C–10E, 39J, 39K–39L, 39ZK) plus transitional provisions (Part 8) and automatic 10-year sunset for codes (s 50)"],"plain_english_summary":"**The Essential Services Commission Act 2001** sets up an independent regulator (the Essential Services Commission, or ESC) to oversee essential services in Victoria such as electricity, gas, water, ports, grain handling, rail, and renewable energy schemes. \n\nIt requires the ESC to promote the long-term interests of Victorian consumers by considering price, quality, reliability, efficiency, investment incentives, competition, and impacts on vulnerable users (s 8 and s 8A). The Act gives the ESC tools to regulate prices, set service standards, make codes of practice, gather information, inspect premises, run inquiries, and enforce rules. \n\nEnforcement includes civil penalties (up to thousands of penalty units for serious breaches by companies), penalty notices, enforceable undertakings, compliance notices, injunctions, and adverse publicity orders (Part 7). It also creates two funds: one for enforcement activities and one for the Commission's operations. Regulated industries and licence holders must comply with ESC decisions, codes, and licence conditions or face penalties. The Act binds the Crown and prevails over inconsistent laws in most cases (s 5 and s 6)."},"flash_summary":{"complexity_score":10,"scope_assessment":{"changed":true,"description":"The Act has expanded far beyond its original purpose of economic regulation of electricity and gas industries. Initially focused on price regulation and licensing, it now covers ports, grain handling, rail, water, non-cash payment transactions, commercial passenger vehicles, the Victorian Energy Efficiency Target (VEET) scheme, renewable energy, and even local government rate caps. Enforcement powers have grown from simple compliance orders to a sophisticated regime including civil penalties up to 10% of annual turnover, penalty notices, enforceable undertakings, and a dedicated Enforcement Fund. The addition of inspection powers (Part 4B), information sharing arrangements (section 60E), and a Register of Enforcement Action (section 54ZO) further highlight the expansion from a regulator to a quasi-law enforcement agency."},"complexity_factors":["Very long Act with over 180 sections and schedules","Over 50 defined terms, many referencing other Acts (e.g., 'civil penalty requirement' cross-references Electricity Industry Act, Gas Industry Act, etc.)","Multiple layers of enforcement: contravention orders, civil penalties, penalty notices, enforceable undertakings, compliance notices, injunctions, and declarations","Extensive cross-references to other Victorian legislation (e.g., Electricity Industry Act 2000, Gas Industry Act 2001, Water Industry Act 1994, Port Management Act 1995)","Detailed procedural provisions for information gathering, entry and search (with and without warrant), and document seizure","Part 3A on third-party access regimes with complex pricing principles and time limits","Nested exceptions and exemptions throughout (e.g., sections 10C and 10D exclude certain functions from various parts)","Multiple amendment acts (over 30) over 20+ years, adding new parts and transitional provisions","Complex penalty calculation formulas involving penalty units, turnover, and monetary benefits"],"plain_english_summary":"This Act creates the Essential Services Commission (ESC), an independent economic regulator for essential services in Victoria. The ESC oversees industries like electricity, gas, water, ports, and others declared as 'regulated industries'. Its main job is to promote the long-term interests of Victorian consumers by regulating prices, ensuring service quality and reliability, and encouraging competition where possible. The Act gives the ESC power to set prices, make binding rules (called 'determinations'), enforce compliance through penalties and court orders, issue codes of practice, and gather information. It also creates an inspectorate with search and seizure powers. Businesses in regulated industries must follow the ESC's rules or face fines, civil penalties (up to 10% of annual turnover), or other orders. The Act affects energy retailers, water companies, port operators, and other utility providers, as well as their customers. It matters because it sets the legal framework for how essential services are priced and regulated, aiming to balance efficiency, investment, and consumer protection."}},"importantCases":[],"_links":{"self":"/api/acts/essential-services-commission-act-2001","history":"/api/acts/essential-services-commission-act-2001/history","analysis":"/api/acts/essential-services-commission-act-2001/analysis","conflicts":"/api/acts/essential-services-commission-act-2001/conflicts","importantCases":"/api/acts/essential-services-commission-act-2001/important-cases","documents":"/api/acts/essential-services-commission-act-2001/documents"}}