1. In a careful and comprehensive judgment delivered on 20 December 2023, McDonald J accepted that the applicant had standing to agitate its case but rejected each of these grounds.[20] The applicant now seeks leave to appeal his Honour's conclusions with respect to grounds 10 and 6 only. For the reasons that follow, we would refuse leave to appeal. In our view, his Honour's conclusions were correct.

1. In summary, the content of the Law and the Rules as they apply to a particular augmentation are controlled by the provisions of the NEVA. The critical provisions requiring application of the RIT-T process have been disallowed insofar as they would otherwise govern the specified augmentation. The application of the Law and the Rules are subject to the Orders made by the Minister.
2. Further, there is no inconsistency between the Orders and the functions of AEMO as National Transmission Planner.
3. Judicial review ground 6 is also misconceived. The Orders bound AEMO but not Transgrid. The stipulation of a preferred option fell within the terms of the Minister's powers. Furthermore, compliance with the May Order did not require AEMO to carry out a function inconsistent with s 49(3) of the Law.

1. The history of the development of the WRL and VNI West proposals is set out in the trial judge's reasons at [69]-[83] and [84]-[91]. The background to the making of the Orders is further detailed in [92]-[100]. We adopt that summary which was not the subject of challenge.
2. It is sufficient for our purposes first to note that:

(a) In its final form, the WRL project provides for an augmentation of the Victorian energy grid by way of 500kv transmission lines running westward from Sydenham to Bulgana, west of Ballarat, together with terminal station works.

(b) In its final form, the VNI West project proposes a connection between the WRL project at Bulgana running north-east to a new terminal located near Kerang and then north to the NSW border.

(c) Each project has emerged from a series of procedural steps taken as part of a RIT-T planning process. Ultimately, however, this process led to a political decision to materially modify the VNI West route, which was then taken outside the framework of the RIT-T planning process.

1. It is desirable to summarise the context in which the Orders were made.
2. AEMO and Transgrid are joint RIT-T proponents for the VNI West project, with Transgrid (as NSW TNSP) being responsible for the NSW aspect of the project, and AEMO (as Victorian TNSP) having carriage of the Victorian aspect.
3. In December 2019, AEMO and Transgrid published the VNI West PSCR, setting out the 'identified need' as the 'additional transfer capacity between New South Wales and Victoria to realise net market benefits'. Six 'credible options' for a new interstate connection were identified. Each adopted a different regional route.
4. The 2020 ISP expressed the identified need for the project in the following terms (repeated in the 2022 ISP):

To increase transfer capacity between New South Wales and Victoria to realise net market benefits by:

• efficiently maintaining supply reliability in Victoria following the closure of further coal-fired generation and the decline in aging generator reliability - including mitigation of the risk that existing plant closes earlier than expected,
• facilitating efficient development and dispatch of generation in areas with high quality renewable resources in Victoria and southern New South Wales through improved network capacity and access to demand centres, and
• enabling more efficient sharing of resources between NEM[21] regions.

1. AEMO published the 2022 ISP in June of that year. The 2022 ISP identified the VNI West project as an actionable ISP project, bringing it within the RIT-T process under r 5.16A of the Rules.
2. The VNI West PADR was published in July 2022 following a period of consultation. Two credible options were identified in the PADR[22] and the 'preferred option' was a new high capacity 500kV double-circuit overhead transmission line to connect the Western Renewables Link (north of Ballarat) with Project EnergyConnect (at Dinawan) via new stations near Bendigo and near Kerang.[23]
3. After the PADR was published, AEMO and Transgrid published a project update for VNI West on 2 December 2022, indicating that AEMO and Transgrid were considering changing the route, so that the VNI West project would intersect with the WRL project in Bulgana, rather than at the proposed North Ballarat station.
4. After AEMO and Transgrid published their project update, stating that they were investigating an alteration to the route of the preferred option, the Minister exercised her powers under s 16Y of the NEVA to permit AEMO and Transgrid to consider alternative options to those identified in the VNI West PADR.
5. The February Order permitted AEMO and Transgrid to select a new preferred option for the VNI West project, without having to restart the RIT-T process.
6. After the February Order was made, AEMO and Transgrid published, on 23 February 2023, a document titled, 'VNI West Consultation Report - Options Assessment', in which AEMO and Transgrid considered seven credible options, comprising two options already considered in the VNI West PADR, alongside five new options.
7. AEMO and Transgrid selected Option 5, which addressed concerns noted in the December 2022 project update, regarding land use between Ballarat and Bendigo.
8. Rather than connecting with the WRL project at the proposed terminal station in North Ballarat, Option 5 connected the VNI West project with the WRL project at Bulgana.
9. Following the publication of the Options Assessment, AEMO and Transgrid engaged in further stakeholder consultation and various issues were raised with respect to Option 5, leading to AEMO and Transgrid investigating further options.
10. On 3 May 2023, the CEO of AEMO (Mr Daniel Westerman) wrote to the Minister, requesting the Minister to make an order pursuant to s 16Y of the NEVA to permit AEMO to select proposed Option 5A as the preferred option. The letter attached a draft PACR, which identified Option 5A as the preferred option.
11. On 22 May 2023, a second letter was sent to the Minister, attaching a final draft of the VNI West PACR.
12. On 27 May 2023, the Minister made a further order under s 16Y(1) of the NEVA. The effect of the May Order was to require AEMO to publish a PACR identifying Option 5A as the preferred option, without Option 5A going through the RIT-T process. AEMO and Transgrid published the VNI West PACR that same day, selecting Option 5A as preferred option.
13. Options 5 and 5A both begin at Bulgana and run north-east, via a proposed station at Kerang, across the Murray River to Dinawan, NSW, but Option 5A crosses the Murray River further to the north-west. However, the VNI West PACR did not set the precise route for the VNI West project, but only established an area of interest to be refined by further process, as follows.

1. A significant change between Option 5 as outlined in the VNI West PADR and Option 5A in the PACR was the relocation of the connection point between the VNI West and WRL projects, from the proposed terminal station at North Ballarat to the terminal station at Bulgana.
2. The adoption of Option 5A as the preferred option removed the need to build a new terminal station at North Ballarat. However, it is common ground that the adoption of Option 5A did not alter the route of the WRL project.
3. Option 5A also affected the kind of transmission lines running between Bulgana and Sydenham on the WRL project. The preferred option of the WRL project PACR only required 500kV transmission lines between Sydenham and the North Ballarat station. However, due to the May Order, the entirety of the transmission lines to be constructed for the WRL project will be 500kV transmission lines.
4. As the applicant emphasised in submissions, a consequence of Option 5A is that the route proposed for VNI West differs materially in its end points from the route proposed in the 2022 ISP. We observe, however, that it is plain that Option 5A is intended to meet the same identified need.

1. Copies of the Orders are annexed to this judgment.
2. Each order:

(a) specified the augmentations to which it applied;

(b) conferred functions on AEMO in respect of the specified augmentations; and

(c) disapplied a number of provisions of the Law and the Rules insofar as they applied to the specified augmentations.

1. In terms of functions, cl 6.1(a) of the February Order required AEMO to assess alternative options to the preferred option which had been described in the VNI West PADR published in July 2022 and the WRL PACR. The February Order further confirmed in cl 6.9 that AEMO was to prepare and publish a PACR in respect of VNI West 'with Transgrid'.
2. The May Order revoked a number of AEMO's functions provided for in the February Order, including the functions in cls 6.1(a) and 6.9 to assess alternative options and produce a PACR.[24] These functions were replaced by obligations which required AEMO to prepare and publish a PACR with Transgrid identifying the VNI West augmentation specified in the order as the preferred option.[25] The May Order also conferred a series of functions on AEMO with respect to the WRL augmentation.[26]
3. Each of the Orders disapplied provisions of the Law and the Rules which would otherwise have governed the process of implementation of the specified augmentations.

(a) Sections 50F(2), 50F(3) and 50H of the Law, which respectively require AEMO to take into account certain matters in deciding whether to proceed with an augmentation to the declared shared network (ie cost benefit analysis, application of probabilistic approach, competitive tender) and the resolution of dispute arising from attempts to negotiate a network agreement or augmentation connection agreement:

(b) Rules 5.15A, 5.16, 5.16A and 5.16B of the Rules, which provide for general and specific RIT-T principles and the application of the RIT-T to both actionable and not actionable ISP projects, and disputes in relation to the application of the RIT‑T.

(c) Rules 8.11.4, 8.11.6, 8.11.7, 8.11.8, 8.11.9 and sch 8.11 of the Rules, which govern the procurement, contractual and planning processes for augmentation of declared transmission systems in an adoptive jurisdiction. Rule 8.11 has the following objective:

• 8.11.2 Object
• The objects of this rule are:

(1) to establish the distinction between contestable augmentations and augmentations that are not contestable; and

(2) to regulate the process for calling, receiving and evaluating tenders for the construction and operation of a contestable augmentation; and

(3) to facilitate the construction and operation of augmentations; and

(4) to provide guidance on risk allocation and other commercial principles to be reflected in network agreements and augmentation connection agreements; and

(5) to make provision for certain matters with respect to AEMO's planning of the declared shared network.

(d) Lastly, AEMO's planning criteria published in accordance with r 8.11.4 are specifically disapplied.

1. The effect of the Orders was, in the first instance, to disapply provisions of the generally applicable law in Victoria with respect to augmentations. The proposed augmentation must still comply with s 50F(1) of the Law but, by removing the requirement that AEMO undertake a cost benefit analysis under s 50F(2) and conduct a competitive tender under s 50F(3), the relevant requirements are materially diluted.
2. Secondly, the Orders provide that the proposed augmentations are not governed by a series of rules which would otherwise provide for the application of the RIT-T to the projects:

(a) the publication of the RIT-T and the principles governing the application of the RIT-T to both not actionable and actionable ISP projects - r 5.15A;

(b) the application of RIT-T to projects which are not actionable ISP projects - r 5.16;

(c) the application of RIT-T to projects which are actionable ISP projects - r 5.16A; and

(d) disputes in relation to the application of RIT-T - r 16B.

1. The effect of (a) is that there is no authority to publish the RIT-T and the RIT-T is not made under the Rules for the purposes of the law of Victoria.
2. The effect of (b) is that there is no basis for the RIT-T to be applied to the WRL project.
3. The effect of (c) is that there is no basis for the RIT-T to be applied to the VNI West project.
4. The terms of the RIT-T itself confirm that it falls to be applied under the Rules which have been disapplied. Under the heading 'Application', the RIT-T states:

Application

For a RIT-T project that is not an actionable Integrated System Plan (ISP) project, the RIT-T proponent must apply the RIT-T in accordance with clause 5.15A.2:

(a) to the proposed transmission investment as required by clause 5.16.3;

(b) in accordance with the requirements relating to the credible option set out at clause 5.15.2;

(c) as required by the procedures set out at clause 5.16.4; and

(d) to a level of analysis which is proportionate to the scale and likely impact of each credible option being implemented, as set out in clause 5.15A.2(b)(2).

Note: The RIT-T application guidelines provide guidance on the operation and application of, and the process to be followed in applying the RIT-T to projects that are not actionable ISP projects.

For an actionable ISP project, the RIT-T proponent must apply the RIT-T in accordance with clause 5.15A.3:

(a) to the identified need associated with the actionable ISP project except if, in accordance with clause 5.16A.3(a), the circumstances set out in clause 5.16.3(a) apply to that actionable ISP project;

(b) in accordance with the requirements relating to the credible option set out at clause 5.15A.3(b)(7)(iii) - and clause 5.15.2 where the RIT-T proponent is considering new credible options under clause 5.15A.3(b)(7)(iii)(C);

(c) as required by the procedures set out at clause 5.16A.4; and

(d) to a level of analysis which is proportionate to the scale and likely impact of each credible option being implemented, as set out in clause 5.15A.3(b)(2).

Note: The cost benefit analysis guidelines provide guidance on the operation and application of, and the process to be followed in applying the RIT-T to actionable ISP projects. The RIT-T proponent must comply with the binding requirements and considerations set out in the cost benefit analysis guidelines when applying the RIT-T to an actionable ISP project.

1. Next, the Orders disapply parts of the Rules relating to augmentation that:

(a) provide for planning criteria relating to augmentations - r 8.11.4;

(b) define contestable augmentations - rr 8.11.3 and 8.11.4;

(c) govern the tender process with respect to contestable augmentations and the alternative documentary requirements in the case of funded augmentations - rr 8.11.7 and 8.11.8; and

(d) govern network agreements and augmentation agreements relating to contestable augmentations - r 8.11.9 and sch 11.

1. In consequence of these provisions, the planning criteria outlining the principles governing the cost benefit analysis which would generally be required under s 50F are deprived of authority - r 8.11.4. Further, the tender process for the construction and operation of contestable augmentations is not required to be applied.

1. The applicant's primary case before this Court comprised in proposed ground 1 was directed toward ground 10 of judicial review.

Ground 10 (February and May Orders) - incompatibility with 2022 ISP

1. Section 49(2)(a) of the Law, which is applied inter alia by the NEVA and the [National Electricity (New South Wales) Act 1997], provides that in its role as the 'National Transmission Planner', AEMO's functions include 'to prepare, maintain and publish a plan for the development of the national transmission grid (the National Transmission Network Development Plan) in accordance with the Rules.
2. Clause 5.22 of the Rules makes provision for the preparation, maintenance and publication of an 'integrated system plan' (ISP), which fulfils the requirements of a 'National Transmission Network Development Plan' as required by section 49(2) of the Law.
3. In June 2022, in discharge of its function under section 49(2)(a) of the Law described above, and of the requirements of clause 5.22 of the Rules, AEMO published the 2022 ISP, which identifies the VNI West project as an 'actionable ISP project'.
4. The Minister has no power, under section 16Y of the NEVA, to disapply or modify section 49 of the Law.
5. The Minister has no power, under section 16Y of the NEVA, to disapply or modify clause 5.22 of the Rules. In any event, the Minister has not, in either the February Order or the May Order, purported to disapply clause 5.22 of the Rules.
6. The:

(a) scheme in clause 5.22 of the Rules; and

(b) the 2022 ISP published by AEMO under section 49(2)(a) of the Law and clause 5.22 of the Rules,

are predicated on an RIT-T being conducted for actionable ISP projects, including the VNI West project.

1. In the premises:

(a) the Minister has no power under section 16Y of the NEVA to disapply clauses 5.15A and 5.16A of the Rules to the VNI West project, being an 'actionable ISP project';

(b) alternatively, the outcome of the purported exercise of the Minister's power under section 16Y to make the February Decision and the May Decision is legally unreasonable, as the Decisions result in incoherence in the law of Victoria.

1. Accordingly:

(a) both the February Decision and the May Decision are affected by jurisdictional error such that it they are amenable to being quashed by an order in the nature of certiorari; and

(b) if the decisions are quashed, or is affected by jurisdictional error, then the February Order and the May Order have no legal effect.

1. In summary, the applicant's argument involves three steps:

(a) The scope of the Minister's power to disapply the Law under s 16Y(1)(a) is confined to matters relating to 'declared transmission systems' and is confined to a particular subdivision of the Law. The Minister's power should be strictly construed.

(b) Sections 49(2)(a) and (e) of the Law fall outside the relevant subdivision and confer functions on AEMO as National Transmission Planner with respect to the preparation, maintenance and publication of an ISP in accordance with the Rules.

(c) The Orders disapply or modify s 49(2) read together with the Rules and in particular r 5.22, which provides for the making of ISPs, and r 5.16A, which requires the application of the RIT-T process to actionable ISP projects. In consequence, the Orders are not supported by s 16Y(1).

1. Amongst other things, the respondent Minister contends that:

(a) the Rules are not paramount over orders made under s 16Y of the NEVA;

(b) the reference to the Rules in s 49(2) is relevantly to be understood as a reference to the Rules as they are applicable as part of the law of Victoria;

(c) the Minister's powers under s 16Y are not subject to any implied limitation that operates so as 'not to allow the Minister to interfere with AEMO's functions as [National Transmission Planner]';

(d) section 16Y expressly contemplates the displacement of the general application of the RIT-T process to a specified augmentation;

(e) the relevant extrinsic materials make clear that a basic purpose of the introduction of s 16Y was to enable the Minister to avoid the RIT-T process; and

(f) there is, in any event, no conflict between the Orders and the operation of r 5.22.

(a) the June 2022 ISP is not a National Transmission Network Development Plan ('NTNDP') within the meaning of s 49(2)(a) of the Law;[27]

(b) there is no conflict between the Orders and r 5.22 because none of the rules referred to by the applicant impose an obligation to apply the RIT-T process to specified augmentations;[28]

(c) insofar as the provisions of r 5.22 operate in respect of actionable ISP projects, that assumption only applies to the extent that the RIT-T rules apply to a specific actionable ISP project;[29] and

(d) to the extent that there is any inconsistency between the Orders and r 5.22, the Orders prevail by reason of ss 16ZC(1), 16ZC(3) and 16Y(4) of the NEVA.[30]

1. In order to resolve the fundamental question of whether the Orders were made under or were supported by s 16Y(1), it is necessary to turn in detail to the terms and proper construction of s 16Y and s 16ZC of the NEVA.

1. The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose.[31] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[32] Consideration of purpose is further reinforced by s 35(a) of the Interpretation of Legislation Act 1984, which in summary provides that a construction that would promote the purpose of the Act (whether or not that purpose is expressly stated) shall be preferred to a construction that would not promote that purpose or object.
2. Identification of the statutory purpose may appear from an express statement in the statute or by reference to, or inference from, its language. Discernment of purpose may be aided by reference to any relevant extrinsic materials, in particular those that identify the mischief to which it is directed.[33] It is also permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity.[34] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text.[35] Finally, it is permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[36]

1. Section 16Y falls within pt 3 of the NEVA, which modifies the application of the Law within the State of Victoria. Part 3 provides successively for general modifications, modification of the provisions with respect to feed-in tariffs, modification of the provisions with respect to metering, modification of the f-factor scheme, modification of the pre-2011 service adjustment scheme and efficiency carryover mechanism, modification of provisions with respect to distribution network connections and retail customer connection arrangements, modification of provisions with respect to wholesale electricity markets and network service providers, modification of distribution determination arrangements, and modification of regulatory arrangements for specified declared transmission system augmentations and related services. It is with this last category of modification of the Law that we are concerned.
2. Section 16Y(1)(a) provides:

16Y Order modifying regulatory arrangements relating to declared transmission system augmentations and related services

(1) Subject to this Division, the Minister, by Order published in the Government Gazette, may do any one or more of the following -

(a) specify, for the purposes of the Order -

(i) the carrying out of, or operation of, an augmentation of the declared transmission system as a specified augmentation;

(ii) services provided or to be provided in relation to or by means of a specified augmentation as specified augmentation services;

(iii) non-network services as specified non-network services;

1. Section 16Y(1)(a) is clear in its terms and its construction was not the subject of any dispute between the parties: it enables the Minister to specify - that is, identify - an augmentation of the declared transmission system as a 'specified augmentation'. 'Declared transmission system' is defined in s 33 of the NEVA to mean a transmission system or a part of a transmission system declared by order of the Minister under s 30 to be the declared transmission system. Section 30 further requires that that system (or part) be 'wholly or substantially in Victoria'. Pursuant to s 30, the Minster has declared the transmission system situated in Victoria to be the declared transmission system. Thus, s 16Y(1)(a) permits the Minister to specify an augmentation of Victoria's transmission system as a specified augmentation. (As discussed further below, the Orders in this case specified the WRL project and the VNI West project as specified augmentations, and there was no challenge to that aspect of the Orders.)
2. Section 16Y then enables the Minister to take various steps with respect to a specified augmentation.
3. Two subsections of s 16Y(1) empower the Minister, by order, to affect the operation of certain provisions of the Law by disapplying it or modifying its application.

(a) Section 16Y(1)(b)(i) empowers the Minister, by order, to 'provide that Subdivision 3 of Division 2 of Part 5 of the Law, or a specified provision of that Subdivision, does not apply as a law in Victoria in respect of ... a specified augmentation'. (That subdivision is headed 'AEMO's declared network functions' and we will refer to it as the 'declared network functions subdivision'.)

Put another way, s 16Y(1)(b)(i) permits the Minister to disapply the declared network functions subdivision, or a provision thereof, in relation to a particular, identified augmentation. But it does not permit the Minister to disapply a provision of the Law that falls outside the declared network functions subdivision.

(b) Section 16Y(1)(c)(i) empowers the Minister, by order, to 'modify the application of a specified provision of [the declared network functions subdivision] as it applies as a law in Victoria in respect of ... a specified augmentation'.

Put another way, 16Y(1)(c) permits the Minister to modify the application of a provision within the declared network functions subdivision to a particular, identified augmentation. But it does not permit the Minister to modify a provision of the Law that falls outside the declared network functions subdivision.

1. Subsections 16Y(1)(d) and (e) empower the Minister to affect the operation of the Rules generally:

(a) Section 16Y(1)(d)(i) empowers the Minister, by order, to 'provide that a specified provision of the Rules does not apply in respect of ... a specified augmentation'.

(b) Section 16Y(1)(e)(i) empowers the Minister, by order, to 'modify the application of a specified provision of the Rules to ... a specified augmentation'.

It is notable that these two powers in respect of the Rules are not textually constrained in the way that ss 16Y(1)(b) and (c) are constrained in respect of the Law. That is, ss 16Y(1)(d) and (e) permit the Minister to disapply or modify any provision of the Rules, whereas ss 16Y(1)(b) and (c) only permit the Minister to disapply or modify provisions of the declared network functions subdivision.

1. Subsections 16Y(1)(f)(i) and (g)(ii) empower the Minister to disapply or modify a specified definition in the Rules (including ch 10 of the Rules) to a specified augmentation.
2. Subsection 16Y(1)(i)(i) empowers the Minister to 'regulate ... a specified augmentation'.
3. Subsection 16Y(2) then sets out various things that an order under s 16Y(1) may do (without limiting sub-ss (1)(d), (e), (f), (g) or (i)). These include:

(a) modify the application of standards, procedures or guidelines published under the Rules to -

(i) a specified augmentation;

...

(b) modify the application of a specified provision of the Rules to the provision of reserve in respect of -

(i) a specified augmentation;

...

(c) specify matters or things that are to apply in relation to -

(i) a specified augmentation;

...

(d) specify a test, examination or assessment to apply in relation to a specified augmentation or specified augmentation services in place of the regulatory investment test for transmission (an alternative regulatory investment test);

(e) specify guidelines for the purposes of an alternative regulatory investment test;

...

1. The fact that s 16Y(2)(d) expressly provides that the Minister's order may specify 'a test, examination or assessment to apply in relation to a specified augmentation ... in place of the regulatory investment test for transmission' confirms the plain meaning of ss 16Y(1)(d) and (e) and makes clear that the Minister may, by order, disapply the application of the RIT-T in relation to a specified augmentation.
2. The provisions of ss 16Y(2)(i) and (k) should also be noted. An order made under s 16Y(1) may:

(i) require AEMO to carry out a declared network function or a function referred to in section 16X(2)(b) in relation to -

(i) a specified augmentation;

...

(k) require a declared transmission system operator or prospective declared transmission system operator to -

(i) plan the carrying out of a specified augmentation;

(ii) carry out a specified augmentation;

(iii) operate a specified augmentation;

(iv) facilitate the planning, carrying out or operation of a specified augmentation;

1. Section 16X, to which reference is made in 16Y(2)(i), confers functions upon AEMO in addition to those provided for in s 50C of the Law.

16X Additional AEMO functions

(1) For the purposes of section 50C(1)(f) of the Law, AEMO is conferred the following functions -

(a) to contract for augmentation related services or specified non-network services;

(b) to conduct competitive tenders in respect of augmentation related services and specified non-network services.

(2) In addition -

(a) a function conferred on AEMO under an Order under section 16Y that is related to the declared transmission system, or electricity network services provided by means of or in connection with the declared transmission system, is taken to be conferred by this Act for the purposes of section 50C(1)(f) of the Law; and

(b) a function conferred on AEMO under an Order under section 16Y (other than a function referred to in paragraph (a)), or a power conferred on AEMO under an Order under that section, is taken to be conferred on AEMO by this Act.

1. The provisions of s 16Y(2) are further amplified by s 16Y(5) which provides as follows.

(5) An Order under subsection (1) may -

(a) be of limited or general application;

(b) differ according to time, place or circumstances;

(c) confer functions and powers on, or leave any matter or thing to be decided by, AEMO;

(d) apply, adopt or incorporate any matter contained in any document, whether -

(i) wholly or partially or as amended by the Order; or

(ii) as existing at the time the Order is made or at any time before then; or

(iii) as existing from time to time;

(e) contain provisions of a savings or transitional nature on the making of the Order;

(f) provide for any matter that is incidental to a matter set out in the Order or necessary to give effect to a matter set out in the Order.[37]

1. The next relevant provision is s 16Y(4). It provides for the consequential disapplication or modification of the Law or Rules, as follows:

(4) Without limiting subsection (1), an Order under that subsection may -

(a) disapply, or modify the application of a provision of, the Law as a consequence of a provision of the Order that disapplies or modifies the application of another provision of the Law in respect of -

(i) a specified augmentation; or

...

(b) disapply, or modify the application of a provision of, the Rules as a consequence of a provision of the Order that disapplies or modifies the application of another provision of the Rules in respect of -

(i) a specified augmentation; or

...

1. Section 16Y(4) was the subject of some dispute as to its proper construction.
2. The applicant contended that s 16Y(4) operated so as to authorise the Minister to specify a provision of the Law or the Rules (as the case may be) that was to be disapplied or modified as a consequence of the disapplication or modification of another provision of the Law or the Rules. That is, s 16Y(4) did not operate automatically to cause such consequential disapplication or modification, it required an express identification of the provision by the Minister in the order.
3. In contrast, the Minister contended that s 16Y(4) operated in an automatic manner and did not require the Minister to expressly specify a particular provision of the Law or the Rules (as the case may be) in order for that provision to be disapplied or modified as a consequence of the disapplication or modification of another provision.
4. We consider that the proper understanding of the role s 16Y(4) plays in the scheme is that it is intended to operate in an automatic manner. That is, if a provision of the Minister's order modifies a provision of the Law or the Rules, s 16Y(4) operates to ensure that the operation and efficacy of the order is not defeated or undermined by a failure on the part of the Minister to foresee that it would also be necessary for some other provision of the Law or the Rules to be consequentially disapplied or modified. The regime in which s 16Y operates is particularly complex. The Rules, in particular, are long and the interactions between particular rules may not be easily discerned or appreciated in advance of the time for their application. Thus, instead of requiring the Minister to specify every provision that might require disapplication or modification in order to achieve the Minister's objective in relation to a specified augmentation, s 16Y(4) causes such consequential disapplication or modification as may be required to give effect to the order.[38]
5. Thus, in this case, the Minister having disapplied rr 5.15A and 5.16.A, amongst others, the effect of s 16Y(4) is to potentially disapply or modify the application of other rules as a consequence. In particular, that would extend to the disapplication or modification of r 5.22, where such disapplication or modification was a necessary consequence of the disapplication or modification of rr 5.15A and 5.16A.
6. The contrary view effectively deprives s 16Y(4)(b) of any utility. On this view, it adds nothing to ss 16Y(1)(d) and (e).

1. Section 16ZC provides for the interaction between an order made under s 16Y on the one hand, and the Law and the Rules on the other hand. It relevantly provides as follows:

16ZC Effect of Order

(1) An Order under section 16Y has effect according to its tenor in relation to the following despite anything to the contrary in this Act or in any agreement or contract -

(a) a specified augmentation;

...

(2) To avoid doubt, section 32 applies subject to an Order under section 16Y.

(3) In addition -

(a) the Law applies as a law of Victoria in relation to -

(i) a specified augmentation subject to the Order under section 16Y specifying that augmentation; and

...

(b) the Rules have the force of law in Victoria in relation to -

(i) a specified augmentation subject to the Order under section 16Y specifying that augmentation; and

...

1. This section provides for an order made under s 16Y(1) to prevail over a provision in the Law (or the Rules). That outcome is achieved in interrelated ways:

(a) First, s 16ZC(1) provides for the effect of an order made under s 16Y(1), namely that it 'has effect according to its tenor', despite anything in the Law or the Rules.

(b) Secondly, s 16ZC(2) provides that, 'for the avoidance of doubt, s 32 applies subject to an Order under s 16Y(1)'. Section 32 provides for the operation of AEMO's declared network functions under the Law within Victoria.[39] These include augmentation functions under s 50F.

(c) Thirdly, s 16ZC(3) provides that the Law applies as a law of Victoria 'subject to' an order under s 16Y(1), and likewise the Rules have the force of law in Victoria subject to such an order.

1. These provisions make it abundantly clear that an order may displace the operation of the Law or the Rules in relation to a specified augmentation.
2. For completeness, we note that there was some dispute as to the meaning of the phrase 'according to its tenor'. We accept the Minister's submission that the phrase means 'according to its drift'.[40]
3. The applicant submitted that s 16ZC(3) was, like s 16ZC(2), an 'avoidance of doubt' provision. We doubt that that is correct. But even if that were so, s 16ZC(3) makes clear the Parliament's intention concerning the manner in which the Law and an order under s 16Y(1) relate to each other.
4. The applicant further submitted that s 16ZC operates only on an order 'under s 16Y(1)' - that is, on a valid order under that section. Thus, it said, s 16ZC was not to the point in the present case. The question in the present case is whether the Orders were authorised by s 16Y, so as to be capable of having the effects set out in s 16ZC. So much may be accepted; but that does not render s 16ZC irrelevant to the construction and operation of the legislation. In particular, s 16ZC is relevant to the construction of ss 49(2) and (3) of the Law, as applied in Victoria by the NEVA, and to which we now turn.
5. We have set out the steps in the applicant's path of reasoning to contend that the Orders are invalid at [78] above. We turn to consider those individual steps.

The applicant's step 1: Is there an implied limitation on the Minister's power to disapply or modify a provision of the Law?

1. It is convenient now to turn to what the applicant identified as step 1 in its argument: namely that the power conferred on the Minister by s 16Y to disapply or modify the application of a provision of the Law extends only to those provisions in the declared network functions subdivision, and not to any other provisions of the Law. Thus, it was said, if the Minister, by order, has modified a provision outside the declared network functions subdivision, the order will be beyond power and invalid to that extent.
2. It is clear that the powers conferred on the Minister by ss 16Y(1)(b) and (c) to disapply or modify the Law are limited to those provisions of the Law found in the declared network functions subdivision. In light of that, we accept the applicant's submission that s 16Y(1)(i), which confers the power to 'regulate' a specified augmentation, could not be used to modify a provision of the Law falling outside the declared network functions subdivision. That is because, as Gavan Duffy CJ and Dixon J explained in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[41]

1. Or, as Mason J put it more pithily in Leon Fink Holdings Pty Ltd v Australian Film Commission, 'when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power'.[42]
2. In this case, s 16Y(1)(i) confers a general power to regulate, which is not subject to limitation and which might, on its face, extend to disapplying or modifying the application of a provision of the Law. However, ss 16Y(1)(b) and (c) confer special powers to modify or disapply the Law, both of which are subject to a limitation concerning the particular set of provisions that may be so affected. As a consequence of the limitation within ss 16Y(1)(b) and (c), the general power in s 16Y(1)(i) cannot be exercised to disapply or modify the Law or a provision thereof.
3. This construction is reinforced by the fact that ss 16Y(1)(b) and (c), particularly when read with s 16ZC, which provides for the effect of orders made under s 16Y, are clauses that permit the executive to override or displace the terms of an Act of Parliament. Such clauses are often described as 'Henry VIII clauses'. Whether ss 16Y(1)(b) and (c) are properly described as Henry VIII clauses, or as merely analogous to such a clause, is in our view neither here nor there. The real point is that these are statutory provisions that permit the executive to override the provisions of an Act. The authorities, both of the High Court and of this Court, make clear that Acts with such an effect are to be construed strictly, or narrowly, insofar as their terms permit of such a construction.[43]
4. The Minister pointed to the remarks of Gageler J in ADCO Constructions Pty Ltd v Goudappel ('ADCO'), as follows:

The underlying legislative purpose [of the provision there in issue] is evidently to provide a flexible means of making adjustments to the savings and transitional provisions otherwise contained in Pt 19H which does not require those adjustments to be embodied in further amendments to the Act. The flexible means provided is the conferral on the executive of permission to make regulations containing such other provisions of a savings or transitional nature as may be considered by the executive to be appropriate, subject to disallowance of any provision of a regulation so made by resolution of either House of Parliament under s 41 of the Interpretation Act. That parliamentary oversight is facilitated by the requirement of s 40 of the Interpretation Act for written notice of the regulations to be tabled in both Houses of Parliament, and is enhanced by the requirement under s 4 of the Legislation Review Act 1987 (NSW) for the existence of a joint committee of members of Parliament ... the functions of which include, under s 9 of that Act, considering all regulations while they are subject to disallowance and considering whether the special attention of Parliament should be drawn to any such regulation on any ground. That parliamentary oversight, together with the scope for judicial review of the exercise of the regulation-making power, diminishes the utility of the pejorative labelling of the empowering provisions as 'Henry VIII clauses'. The empowering provisions reflect not a return to the executive autocracy of a Tudor monarch, but the striking of a legislated balance between flexibility and accountability in the working out of the detail of replacing one modern complex statutory scheme with another.[44]

1. It may be accepted that Gageler J there suggested that the strict approach to construction of Henry VIII clauses was of diminished utility in that case. However, we consider that his Honour's remarks have limited application to the provision in issue in the present case. That is because the provision in issue in ADCO was subject to significant Parliamentary oversight through the mechanism of disallowance by one House of the Parliament. In contrast, the Orders in issue in the present case are not subject to such oversight because s 16ZG provides that an order under s 16Y 'is not a legislative instrument for the purposes of the Subordinate Legislation Act 1994'.
2. Thus, we accept what the applicant characterised as 'step 1' of its argument.

The applicant's step 2: How do ss 49(2)(a) and (e) interact with the Rules concerning preparation of an ISP?

1. We now turn to the second step in the applicant's argument concerning s 49 of the law, which confers various functions on AEMO. Step 2, it may be recalled, was that ss 49(2)(a) and (e) of the Law fall outside the declared network functions subdivision and that they confer functions on AEMO as National Transmission Planner with respect to the preparation, maintenance and publication of an ISP in accordance with the Rules.
2. Relevantly, s 49(2) confers functions on AEMO in its role as National Transmission Planner, including:

(a) to prepare, maintain and publish a plan for the development of the national transmission grid (the National Transmission Network Development Plan) in accordance with the Rules;

...

(e) any other functions conferred on AEMO under this Law or the Rules in its capacity as National Transmission Planner.

1. There was no dispute that s 49 is outside the declared network functions subdivision. Rather, this aspect of the applicant's argument focused on the functions conferred on AEMO by ss 49(2)(a) and (e), and the relationship of those functions with the function of preparing, maintaining and publishing an ISP, found in r 5.22.
2. The applicant contended that the function of preparing, maintaining and publishing a 'plan for the development of the national transmission grid', which was defined as the NTNDP, is now properly understood as the function of preparing, maintaining and publishing an ISP pursuant to r 5.22. That is because, it submitted, the term NTNDP has been replaced by the term ISP in the Rules; but, in substance, an ISP is a 'plan for the development of the national transmission grid', and the change in language is immaterial. The applicant relied on the terms of the new Rules in support of this contention, and on extrinsic materials. In effect, it submitted, r 5.22 and its sub-rules, which requires and regulates the preparation of an ISP, are the rules to which s 49(2)(a) refers. In this regard we note that r 5.22.18 provides:

5.22.18 [National Transmission Planner] Functions

(a) Paragraph (b) has effect for the purposes of section 49(2)(e) of the [National Electricity Law].

(b) The [National Transmission Planner] functions also include the following:

(1) developing any forecasts of electricity demand at a regional or connection point level; and

(2) AEMO's functions relating to an Integrated System Plan under clause 5.14.4 and rules 5.16A, 5.22 and 5.23.

(c) AEMO's preparation and publication of Integrated System Plans is undertaken pursuant to, and in satisfaction of, AEMO's [National Transmission Planner] functions under sections 49(2)(a) to (d) of the [National Electricity Law].[45]

1. We accept the applicant's submission that the function of preparing, maintaining and publishing a 'plan for the development of the national transmission grid' is now properly understood as the function of preparing, maintaining and publishing an ISP pursuant to r 5.22. Alternatively, if this conclusion is incorrect, then the preparation and publication of an ISP are functions performed under s 49(2)(e).
2. More importantly, the applicant contended that the word 'Rules', when used in these paragraphs of s 49(2)(a) and (e), relevantly means the Rules as made or amended by the South Australian Minister from time to time (and to that extent - but that extent only - accepted that the term 'Rules' is ambulatory). That submission was based on the definition of the Rules in s 2 of the Law.[46] As a consequence of that definition, the applicant contended that the Rules referred to in s 49(2) are not the Rules in force in Victoria as modified by reason of s 16ZC(3) of the NEVA.
3. We do not accept this construction of s 49(2). In our opinion, when the Law, as applied in Victoria, uses the word 'Rules', it means the Rules that have the force of law in Victoria. That is, the term 'Rules' is ambulatory beyond the extent accepted by the applicant.
4. There are a number of mechanisms to modify the Rules.
5. In the first instance, the Rules may be modified by standing provisions given effect by ss 16AB, 16K, 16R, 16S, 16SA, 16VB, 16VM, 16VN, 16VO of the NEVA. The most significant of these are the extensive modifications set out in sch 2 of the NEVA made pursuant to s 16R.
6. In the second instance, the Rules may be modified by orders made under ss 16BA or 16VF by the Minister or the Governor-in-Council respectively, for particular administrative purposes.
7. In the third instance, the Rules may be modified by a jurisdictional derogation made pursuant to s 91(3) of the Law.[47] Section 2 of the Law defines jurisdictional derogation as follows:

jurisdictional derogation means a Rule made at the request of a Minister of a participating jurisdiction that -

(a) exempts, in a specified case or class of cases, a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, from complying with a provision, or a part of a provision, of the Rules in the participating jurisdiction to which the derogation relates; or

(b) modifies or varies the application of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, in the participating jurisdiction to which the derogation relates;

1. In the fourth instance, the Rules either alone or together with relevant provisions of the Law (as occurred in the present case) may be modified insofar as they apply to a specified augmentation pursuant to the provisions of the NEVA with which we are concerned in this case.
2. To determine the content of the Rules for the purposes of s 49(2), it is thus necessary first to determine whether, and to what extent, the Minister has disapplied or modified those Rules using the power conferred by s 16Y. If the Minister has disapplied or modified certain Rules, then the effect of s 16ZC is that the content of the Rules that have the force of law in Victoria is reduced or altered. And it is those altered Rules, having the force of law in Victoria, that are then the Rules to which reference is to be made in understanding the function in s 49(2)(a) and the functions referred to in s 49(2)(e).
3. The applicant's construction does not give effect to the plain meaning of ss 16Y(1)(d) and (e) and has the unlikely consequence that, although the Victorian Minister has the power to disapply or modify the Rules in relation to a specified augmentation, that statutory power may be - and has been - circumscribed by executive action taken by the South Australian Minister acting pursuant to s 90F of the Law.[48] It is simply implausible that the Victorian Parliament intended an effect or limitation of that kind when it enacted s 16Y and related provisions.
4. In summary, then, under s 49(2)(a), as applied by the NEVA, AEMO has the function of preparing an ISP in accordance with the Rules that have the force of law in Victoria. Likewise, under s 49(2)(e), as applied by the NEVA, AEMO has such functions conferred on it by the Rules that have the force of law in Victoria. If some of the Rules have been disapplied or modified by an order under s 16Y(1), and thus by reason of s 16ZC the Rules have effect subject to such modifications, then ss 49(2)(a) and s 49(2)(e) operate by reference to the Rules as modified or disapplied.

The applicant's step 3: Do the Orders 'modify' s 49(2)(a) or s 49(2)(e)?

1. We turn now to consider what it means 'to modify the application of' a provision of the Law or the Rules. The term 'modify', as used in ss 16Y(1)(b) and (c), is defined in s 16W as follows: 'modify includes add, omit or substitute'.
2. The word 'includes' ordinarily denotes a definition that is not exclusive. That is, the word being defined has a broader meaning, including certain identified matters. That technique is often (but not only) used when some of the specified things included might not clearly fall within the ordinary meaning of the term, so as to have a kind of deeming effect.
3. However, just as sometimes 'may' can mean 'must', despite the ordinary approach to such language, it is also possible that the term 'includes' does not necessarily mean that the definition is not exclusive. Much will depend on the context. In the present case, the significance of this is that if 'modify' means only 'add, omit or substitute', there could be no real question that the Orders did not 'modify' the Law in that way. Bearing in mind the scope of the applicant's argument, which focused on ss 49(2) and 49(3) of the Law, as applied by the NEVA, it is immediately apparent that the impugned Orders:

(a) did not result in any words being added to s 49;

(b) did not involve any words being omitted from s 49; and

(c) did not involve any words being substituted in s 49.

1. Thus, it was necessary for the applicant to identify some other manner in which it could be said that the impugned Orders 'modified' s 49, with the consequence that they transgressed the implied limitation derived from the text of ss 16Y(1)(b) and (c), discussed above.
2. In that regard, the applicant submitted that the word 'modify' was defined non-exhaustively and went beyond 'add, omit or substitute'. It included the making of an order that 'impaired, altered or detracted from' the operation of a provision of the Law (relevantly, ss 49(2) or 49(3)), or 'undermined' or 'interfered with' the operation of a provision of the Law. Furthermore, it submitted that, in discerning whether an order 'impaired, altered or detracted from' the operation of a provision of the Law, it is necessary to consider the 'practical operation' or 'practical effect' of the order. These submissions were directed to ascertaining whether there was a 'direct conflict' between an order and a provision of the Law - if there was a 'direct conflict', the application submitted, then the order was to be regarded as modifying the Law.
3. This aspect of the applicant's submissions was derived from the High Court's jurisprudence concerning s 109 of the Constitution. That section provides that a law of a State that is 'inconsistent with' a law of the Commonwealth is invalid to the extent of the inconsistency. In that regard, the applicant relied upon Work Health Authority v Outback Ballooning Pty Ltd,[49] and, in relation to the notion of the 'practical effect' of the Orders, on Bell Group NV (in liq) v Western Australia.[50] The premise of the submission appeared to be that if an inconsistency, in the s 109 sense, could be said to arise between the Orders and a provision of the Law, then the Orders must be characterised as having modified the provision of the Law - and if the provision in question was outside the declared network functions subdivision then the Orders would have transgressed the implied limitation discussed above.
4. It is relevant to commence by observing that nowhere in the relevant parts of the statutory scheme does the term 'inconsistency' or 'inconsistent with' appear. Nor do the words 'conflict' or 'direct conflict' appear. The term 'modify' is defined in a manner directed to alterations of the text of a provision of the Law, not by reference to inconsistency between the two. In particular, there is no textual basis for reading the term 'modify' as including the making of an order that has a 'practical effect' on the operation of a provision of the Law.
5. Furthermore, s 16ZC provides that an order under s 16Y 'has effect according to its tenor' in relation to a specified augmentation 'despite anything to the contrary in this Act or in any agreement or contract';[51] and that the Law applies as a law of Victoria,[52] and the Rules have the force of law in Victoria,[53] in relation to a specified augmentation 'subject to the Order under s 16Y specifying that augmentation'. That is, the NEVA provides that, where there is an inconsistency between an order and a provision of the Law or the Rules, it is the order that prevails - not the Law or the Rules. In those circumstances, it is entirely inapt to import into the analysis the approach the High Court has adopted in relation to s 109 inconsistency as a basis for limiting the scope of the power conferred on the Minister by s 16Y.
6. For these reasons, we reject the applicant's submission that an order that has a 'practical effect' on the operation of a provision of the Law thereby modifies that provision. Whether some stronger form of inconsistency might, in a particular case, reveal that an order has modified a provision of the Law is unnecessary to decide, because ultimately the applicant relied upon the practical effect of the Orders on the functions conferred on AEMO under ss 49(2)(a) and (e).
7. Furthermore, even if we were to accept the applicant's construction of the term 'modify', we would reject the applicant's argument in relation to step 3; namely that the Orders have the practical effect of undermining the operation of s 49(2)(a) or s 49(2)(e).
8. The Orders do not relieve AEMO of its obligation to prepare, maintain and publish a NTNDP.
9. Nor do the Orders relieve AEMO from its ongoing obligation to prepare an ISP generally in accordance with r 5.22. The obligation to plan pursuant to s 49(2) in accordance with the Rules is an ongoing one, crystalising in an obligation to publish a plan every two years. Within this framework AEMO must adapt to changed circumstances, whether they be related to the composition of the network itself or the circumstance in which it operates. The plan may require ongoing alteration due to, for example, natural disaster, acts of terrorism, failure of aged infrastructure, expedited provision of additional energy sources, change in relevant economic factors or change in the nature and extent of the demand for electric power.
10. The ISP acknowledges the provisional nature of planning and seeks to address it as far as it can and within the framework of necessary uncertainty.

To meet its prescribed purpose, the 2022 Integrated System Plan (ISP) sets out an optimal development path (ODP) which identifies investments that meet the future needs of the NEM,[54] including actionable and future ISP projects (transmission projects or non-network options), and development opportunities in 'distribution assets, generation, storage projects or demand-side developments that are consistent with the efficient development of the power system's. It guides investors and other decision-makers on the optimal timing and placement of those resources.

The ISP is published every two years as the NEM's operating environment changes. Over the last four years, the pace of the NEM's transformation has pushed the upper bounds of modelled expectations. The costs of utility-scale renewable energy and rooftop photovoltaic systems (PV) have continued to fall, new business models are driving rapid consumer adoption of [Distributed Energy Resources], and coal closures have been brought forward. This rate of transformation will continue to accelerate, supported by NEM state government and Commonwealth Government policies which are largely aligned.

The accelerating shifts in technologies, government policies, participant behaviours and business models, not to mention the complexity of the system itself, mean a single pre-determined path is highly unlikely to fulfil its purpose. This ISP therefore takes a balanced risk-based approach to the NEM's future development, considering a range of scenarios and risks, and carefully examining the upsides and downsides of key decision points.

1. The applicant submits that the ISP is currently 'predicated' upon the general application of the RIT-T to augmentation of the declared network. Whilst it is true that the ISP contemplates that this will occur, the ISP also acknowledges the possibility of change to the regulatory framework in order to facilitate necessary augmentations. The executive summary states:

The Commonwealth Government intends to enable and support delivery of transmission investment needed for this transition with its Rewiring the Nation policy. Governments could further support the transition through a range of potential mechanisms such as changes to the regulatory framework, financial mechanisms to better align benefits with costs and the timing of their imposition, and improved recognition of the impact on landholders and communities hosting the required infrastructure.

Broadly, action is needed on the following fronts:

• Immediate action to progress actionable projects. To protect consumers against the risk of over-investment, the ISP process can tend to make an individual project actionable only when the benefits are clear and the project is somewhat urgent. Yet due to their scale and complexity, these projects are prone to delay, and late delivery could lead to more costs to consumers than early investment. Mechanisms which support earlier progression of projects can deliver cost savings in construction and earlier realisation of benefits. Government support through finance, underwriting or other measures, fast-tracked licencing and environmental assessments, and streamlining of the regulatory framework governing critical transmission projects identified in the ISP, would assist in accelerating their delivery to realise these potential benefits.

1. The ISP also emphasises the need to expedite actionable projects:

All actionable projects should progress as urgently as possible. The delivery dates for actionable projects are largely dictated by their earliest practical delivery time as advised by the project proponents. In some cases, the optimal timing would be earlier than what is achievable; in others any earlier delivery provides valuable insurance against faster-than-expected coal closures or slower-than-expected VRE and storage development. As suggested below, supporting policies and mechanisms from the Commonwealth and jurisdictional government may be able to assist in earlier delivery.

1. Insofar as the ISP recognises the possibility of regulatory change, it may be doubted that the assumption for which the applicant contends - that the ISP is predicated on the general application of the RIT-T to the declared network - is entirely correct. Nonetheless, there is no doubt the ISP proceeds on the basis that, as a general rule, the RIT-T process will be applied to actionable projects.

For actionable ISP projects identified in this 2022 ISP, the relevant TNSP must assess the project under the RIT-T, using the identified need and investment identified in this section as one of the RIT-T credible options.

1. However, even if we accept the applicant's generalised premise for the purposes of argument, it does not follow that the expedited implementation of an augmentation otherwise than in accordance with RIT-T processes modifies the operation of ss 49(2)(a) or (e). The applicant's argument equates the process of planning with a process of mandatory prescription. There is no justification for this assumption. The Law provides separately for the process of prospective planning and the ongoing regulation of the process of actual augmentation of prescribed transmission networks. Both the National Electricity Objective and the provisions of the ISP may be matters relevant to administrative decisions made during the course of the augmentation process but the Law does not place augmentation within a prescriptive straightjacket stipulated in the ISP. Put another way, divergence from the ISP does not result in incoherence of the law of Victoria.
2. Thus, while it is true that the Orders have resulted in an outcome that was not achieved by way of the application of the RIT-T process, that outcome does not breach s 49(2) or directly conflict with it.
3. The applicant submits that the Orders disapply s 49(2) read with r 5.16A and r 5.22.15. As we have explained, the effect of the Orders is that r 5.16A does not apply to the specified augmentations with which we are concerned. Section 49(2) falls to be construed in conjunction with the Rules as they have been modified by the Orders. Those rules as modified do not apply the RIT-T process to the specified augmentations.
4. If r 5.16A were not disapplied, the functions of AEMO would include potential participation as a National Transmission Planner in a series of incidental steps taken under this rule (rr 5.16A.4 and 5.16A.5).
5. The effect of the Orders is that, for the purpose of the specified augmentations, these provisions are not provisions of the Rules in conjunction with which AEMO exercises functions as National Transmission Planner within Victoria.
6. In turn, the provisions of r 5.22.15(a)[55] relating to ISP updates cannot be triggered if r 5.16A is disapplied. The disapplication of r 5.16A means that the occasion for the application of r 5.22.15(a) cannot arise. But that does not amount to a modification of r 5.22 or result in any inconsistency between the order and r 5.22.
7. Moreover, if we are wrong in this analysis then s 16Y(4) results in the consequential disapplication of r 5.22.15 in any event.
8. There is thus no conflict between the Orders and the Rules which govern AEMO's functions.

(1) Section 16Y(1)(b)(i) permitted the Minister by order, acting under the NEVA, to disapply:

(a) the provisions of s 50F of the Law governing the process required to be undertaken for the augmentation of the network specified in the Orders; and

(b) the Rules which would otherwise provide for the application of the RIT‑T to the augmentation process.

(2) Section 16ZC makes it clear that orders of this kind may disapply the Law or the Rules governing a specified augmentation and that the operation of the Law and the Rules as part of the law of Victoria is subject to such orders.

(3) Section 16Y(4) relevantly provides that a provision of the Rules may be modified in consequence of the disapplication or modification of another provision of the Rules by an order.

(4) The Minister's power to disapply or modify provision of the Law under s 16Y is limited to the provisions within the declared network functions subdivision of the Law.

(5) The Minister's power to disallow or modify the Rules for the purposes of an order under s 16Y(1) is unrestricted.

(6) The reference to the Rules within s 49(2) is to be construed as a reference to the Rules as they apply in Victoria in consequence of the Orders made by the Minister under s 16Y.

(7) The Orders do not modify s 49(2).

(8) The Orders do not have the practical effect of undermining s 49(2).

(9) If, contrary to the above, the Orders are inconsistent with r 5.22 then insofar as is necessary r 5.22 is consequentially modified by the operation of s 16Y(4).

1. Proposed ground 2 of appeal relates to judicial review ground 6:

Ground 6 (May Order) - no power to require AEMO (with Transgrid) to publish a 'PACR' that deviates from the ordinary requirements of clause 5.16A.4 of the Rules; no power to dictate or direct what AEMO (or Transgrid) must assess or identify to be the 'preferred option'

1. Clause 4.4 of the May Order provides that 'AEMO is conferred the function of preparing and publishing a PACR with Transgrid for VNI West', where 'PACR' is defined in clause 2 as meaning 'a project assessment conclusions report setting out an assessment of the options for VNI West required to be published under clause 4.4 of this Order'.
2. Clause 4.5 of the May Order provides that '[f]or the purposes of the PACR for VNI West to be published under clause 4.4, AEMO is required to identify the augmentation specified in clause 3.2 as the preferred option'.
3. However, the Minister has no power, whether under section 16Y of the NEVA or otherwise:

(a) to require AEMO 'with Transgrid' to publish a 'PACR', insofar as 'PACR' is defined in clause 2 of the May Order in terms that deviate from what would be the ordinary requirements of clause 5.16A.4 of the Rules for the publication of a 'project assessment conclusions report' as applied by both the NEVA and the NENA; or

(b) to dictate that AEMO (whether alone or with Transgrid) must assess that the works specified in Schedule 1 (where Schedule 1 describes works that were described as 'Option 5A' and the 'preferred option' in the VNI West PACR later published by AEMO with Transgrid) are 'the preferred option', or to direct that AEMO (whether alone or with Transgrid) must identify such work as 'the preferred option',

including in circumstances where the VNI West is identified in the 2022 ISP as a single project with AEMO and Transgrid as co-proponents, and where AEMO and Transgrid have together published the VNI West PSCR and VNI West PADR in accordance with the Rules as applied by both the NEVA and the NENA.

1. Accordingly:

(a) the May Decision is affected by a jurisdictional error such that it is amenable to being quashed by an order in the nature of certiorari; and

(b) if the May Decision is quashed, or is affected by jurisdictional error, then the May Order has no legal effect.

1. Proposed ground 2 is that the trial judge erred:

(a) in rejecting the applicant's contention that, in relation to the May Order, the Minister had no power to dictate that AEMO 'with Transgrid' must publish a certain document defined as a 'PACR' by the May Order;

(b) in rejecting the applicant's further contention that, in relation to the May Order, the Minister had no power to dictate that AEMO, in publishing the so-called 'PACR', must identify what was set out in Schedule 1 of the May Order as the 'preferred option; and

(c) in rejecting the applicant's contention that the May Order was inconsistent with/repugnant to s 49(3) of the Law.

1. The May Order identified the augmentation that it sought to regulate in the following terms:

3.1 The carrying out of all works to construct a new high-capacity transmission line between Victoria and New South Wales connecting the Western Renewables Link with Project Energy Connect to meet the identified need described in the VNI West PADR and all associated works, insofar as such works are an augmentation of the declared transmission system, is a specified augmentation for the purposes of Division 7 of Part 3 of the Act (VNI West).

3.2 Without limiting clause 3.1, the carrying out of all works specified in Schedule 1 is a specified augmentation for the purposes of Division 7 of Part 3 of the Act, insofar as such works are an augmentation of the declared transmission system.

1. The works referred to in clause 3.2 are specified in Schedule 1. Schedule 1 describes works to be undertaken entirely within Victoria as part of the VNI West project as follows:

SCHEDULE 1

PREFERRED OPTION - VNI WEST

Construction of a new 500 kV double-circuit overhead line from a new terminal station near Kerang to Dinawan crossing the Murray river north of Kerang to Bulgana Terminal Station (BGTS), including series compensation on the line near Kerang and 500 kV line shunt reactors at both ends of each 500 kV line segment.

Construction of a new terminal station near Kerang, with two 500/220 kV 1,000 MVA transformers and up to +/- 400 MVAr dynamic reactive compensation on the 220 kV network.

Construction of 220 kV connections from the new terminal station near Kerang to the existing 220 kV lines near Kerang.

Construction of two new 500 kV bays and line exits with a total of two 500 kV line shunt reactors at the BGTS.

Modular power flow controllers or other equipment to prevent overloading on 330 kV lines between Upper/Lower Tumut and South Morang and 220 kV lines between Dederang and Thomastown.

Minor augmentations at existing terminal stations impacted by the above works.

Refinement to the works specified above required as a result of further investigation, design and planning.

Any works consequential, or related, to those specified above.

1. The May Order requires AEMO to do the following:

4.1 AEMO must carry out the functions in respect of VNI West conferred on it by this Order under clause 4.4.

...

4.4 AEMO is conferred the function of preparing and publishing a PACR with TransGrid for VNI West.

4.5 For the purposes of the PACR for VNI West to be published under clause 4.4, AEMO is required to identify the augmentation specified in clause 3.2 as the preferred option.

1. In other words, AEMO, which is an RIT-T proponent of the VNI West augmentation, is required to prepare and publish a 'PACR' identifying Option 5A as the preferred option for the Victorian section of the VNI West augmentation. It must do so 'with Transgrid' as co-proponent.
2. However, the May Order does not purport to confer any function on Transgrid or to require Transgrid to do anything in particular.

(a) the Minister did not have the power to make an order in the terms of cls 4.1 and 4.5, as the NEVA does not permit the Minister to require AEMO and Transgrid to adopt a PACR that does not conform with the requirements of the National Electricity Rules;

(b) s 16Y(1) does not confer power on the Minister to make an order directing AEMO to select Option 5A as the preferred option in the VNI West PACR; and

(c) by specifying Option 5A as the preferred option, the Minister required AEMO to act in a manner repugnant to its duty to consider the National Electricity Objective.

1. The trial judge accepted the Minister's submission that there were a number of sources of power to make an order that AEMO prepare a 'PACR' and directing AEMO to select Option 5A as the preferred option. The power in s 16Y(1)(i) of the NEVA enabled the Minister to make an order to 'regulate' a specified augmentation. This included a power to make an order stipulating the preferred option to be selected in relation to that augmentation. Sections 16Y(2)(c) and 16Y(5)(c) also conferred power on the Minister to stipulate a preferred option in relation to a specified augmentation. Section 16Y(2)(c), by using the words 'matters or things', encompassed the power to make an order specifying option 5A as applying in relation to the VNI West project. Furthermore, the reference to the 'conferral of a function' in contradistinction to 'leav[ing] any matter or thing to be decided by AEMO in s 16Y(5)(c) indicated that the conferral of a function may include a mandatory function.[56]
2. As to whether the Minister could require AEMO and Transgrid to publish the VNI West PACR specifying Option 5A as the preferred option, the trial judge accepted the Minster's submission that it was always within Transgrid's power to elect not to publish the VNI West PACR with AEMO. The consequence of such a decision would be that AEMO could not fulfil its obligation under cls 4.1 and 4.5 of the May Order. However, that was not what occurred. Transgrid elected to publish the VNI West 'PACR' with AEMO.[57] The trial judge recognised that the practical effect of the May Order on Transgrid was that Option 5A was the only option which could be selected as the preferred option in the VNI West PACR. This affected the circumstances in which Transgrid's obligations under the law of New South Wales had to be exercised. However, it did not alter Transgrid's obligation to apply the law of New South Wales in discharging its functions.[58]
3. As to whether the directive in the May Order was inconsistent with AEMO's obligation to consider the National Electricity Objective, the applicant submitted that s 49(3) required AEMO 'in carrying out the functions referred to in [that] section' to 'have regard to the [National Electricity Objective]', and that a relevant function in s 49(1)(h) was a function 'conferred by jurisdictional electricity legislation or an application Act'. However, while AEMO, in carrying out its functions under the May Order, had to have regard to the National Electricity Objective, cl 4.5 of the May Order precluded AEMO from having regard to any evaluative matter. In this way, the directive in the May Order was inconsistent with AEMO's obligation under s 49(3) to 'have regard to' the National Electricity Objective in carrying out its functions.[59]
4. The trial judge rejected this submission. His Honour held that the obligation under s 49(3) was to 'have regard to' the National Electricity Objective in the exercise of functions limited to functions involving evaluative decision‑making undertaken by AEMO. The stipulation in cl 4.5 of the May Order requiring AEMO to select Option 5A as the preferred option did not require AEMO to undertake any evaluation. There was therefore no conflict between AEMO's obligation under s 49(3) to consider the National Electricity Objective.[60]

1. On the application for leave to appeal, the applicant submitted that the May Order is invalid because the Minister had no power to require AEMO 'with Transgrid' to publish a so‑called 'PACR' that deviates from the ordinary requirements of r 5.16A.4 of the Rules and, in any event, had no power to dictate what AEMO must assess or identify as the 'preferred option' in that 'PACR'. It submitted that the Rules operate such that VNI West is a single 'actionable ISP project' for which AEMO and Transgrid together constitute a single 'RIT‑T proponent'. However, the May Order only confers a function on AEMO and not Transgrid. Notwithstanding this, the Minister has purported to give AEMO the function of preparing a so‑called 'PACR' (not being a PACR as defined in the Rules) 'with Transgrid' and to dictate the result of the 'PACR'.
2. According to the applicant, there are two legal problems with the course the Minister adopted in making the May Order as it applies to Transgrid:

(a) The Minister has purported to require AEMO to procure Transgrid's assent to the so‑called 'PACR'. However, just as the Minister could not compel Transgrid, she could not achieve the same result indirectly by dictating AEMO procure Transgrid's assent.

(b) It begged the question to find, as the judge did, that Transgrid could lawfully have declined to publish the so‑called 'PACR'. The Minister could not lawfully oblige AEMO to procure Transgrid's assent to the PACR.

1. As to s 49(3) of the Law, the applicant submitted that the Minister could not and did not disapply s 49(3) of the Law. The functions referred to in s 49(3) included any functions that Victoria, as an adoptive jurisdiction, conferred on AEMO under the NEVA. As s 49(3) of the Law is part of the law of Victoria, it follows that, with respect to any function that the Minister confers on AEMO under s 16Y, AEMO must, in carrying out that function, have regard to the National Electricity Objective. Expressly, cls 4.1 and 4.4 of the May Order confer a 'function' on AEMO, but in such a way that precludes compliance with s 49(3). While the applicant accepted that the 'function' conferred on AEMO is not 'evaluative', it contended that it is that very deprivation, caused by the Minister's dictation, that makes the May Order repugnant to s 49(3) and therefore to the NEVA. In short, the scheme is that AEMO cannot be given a 'function' that makes it a mere instrument of the Minister. The effect of the May Order is to disapply the rule that requires an evaluative assessment that must be conducted in accordance with s 49(3), which is to strip out a function that requires AEMO to have regard to the National Electricity Objective and replace it with a function that does not allow it to do so.

Consideration - The direction to act 'with Transgrid'

1. By conferring on AEMO the function of preparing and publishing a PACR 'with Transgrid', the Minister did not purport to decree that the PACR, as defined in cl 2 of the May Order, is a 'PACR' for the purposes of the Rules. By cl 5.2(b) of the May Order, the Minister expressly disapplied r 5.16A of the Rules, with the consequence that AEMO was not required to conduct a PACR for the VNI West augmentation in accordance with r 5.16A. The PACR required by the May Order was defined in cl 2 to mean 'a project assessment conclusions report setting out an assessment of the options for VNI West required to be published under clause 4.4 of this Order'. The requirement for this 'PACR' to identify Option 5A as the preferred option was then prescribed by cl 4.5 'for the purposes of the PACR for VNI West to be published under clause 4.4'. The words 'with Transgrid' in cl 4.4 do not change the nature of the PACR that AEMO was required to publish by the May Order.
2. Furthermore, ss 16Y(1)(b)-(e) empowered the Minister to disapply or modify the requirements of the NEVA concerning AEMO's declared network functions and all of the Rules. The effect of the order disapplying r 5.16A.4 was that there is no prescribed procedure for identifying the preferred option for the declared transmission system. In light of the Minister's power of disapplication, the further power in s 16Y(1)(i) to 'regulate' the specified augmentation must be construed as including the power for the Minister to identify the preferred option directly. Textually, the term 'regulate' is sufficiently broad to encompass such a course.
3. The May Order did not direct Transgrid to prepare a PACR 'with AEMO'. Nor did it direct Transgrid as to the preferred option. Clause 4.5 of the May Order, made pursuant to legislation of the Victorian Parliament, was only directed to AEMO as the proponent of the augmentation of the declared transmission system, which was wholly within Victoria.
4. The applicant contended that the May Order would 'oblige AEMO to procure Transgrid's assent ... with AEMO at pain of penalty for non-compliance'. It submitted that the combined effect of s 16ZD(vi) of the NEVA and pt 6 of the Law is that civil penalties may flow to a person who has 'breached a provision of' a s 16Y Order.[61] It submitted that AEMO would have breached the May Order if Transgrid had declined to prepare the PACR as contemplated in cls 4.1, 4.4 and 4.5 of the May Order.
5. We do not accept that submission. As the respondent submitted, those clauses are to be construed according to 'the general principles relating to the interpretation of Acts of Parliament'.[62] These include the principle that provisions will not be interpreted as requiring that which appears irrational or unjust, or would be impossible or impracticable.[63]
6. Furthermore, what cl 4.1 mandates is not that AEMO achieve some result, but that it carry out the functions in cls 4.4 and 4.5 in the sense of exercising its powers and discharging its duties under cls 4.4 and 4.5 to their intended end.
7. In all of those circumstances, a practical failure to procure Transgrid's assent to the steps contemplated in cls 4.1, 4.4 and 4.5 would not constitute a breach of the clauses capable of incurring civil penalties.
8. It follows that the fact that the May Order referred to a function being undertaken 'with Transgrid' was not beyond power.

1. Section 49(3) of the Law requires AEMO, in carrying out functions referred to in s 49, to have regard to the National Electricity Objective, which is set out in s 7 of the Law.
2. The functions conferred on AEMO by s 49 are its statutory functions - including in relation to the management of the wholesale exchange[64] and functions conferred by jurisdictional electricity legislation or an application Act[65] - and its functions in its role as National Transmission Planner under s 49(2). The NEVA (including s 16Y) is an 'application Act' as defined.[66] AEMO's functions also include 'any other functions conferred under this Law or the Rules'.[67] In Victoria, AEMO has conferred upon it declared network functions under the declared network functions subdivision.
3. However, the May Order disapplied some of those declared network functions in respect of the specified augmentation. In particular, the May Order disapplied ss 50F(2) and 50F(3) of the Law, which set out what AEMO must do (as part of its declared network functions) in deciding whether a proposed augmentation should proceed. Instead, AEMO was required to provide a PACR supporting the same conclusion as the draft PACR that it had previously forwarded to the Minister.
4. Section 49(3) requires no more than that regard be had to the National Electricity Objective when AEMO is carrying out its functions under s 49 of the Law. There is nothing to suggest that in order to have regard to the National Electricity Objective it is necessary to carry out the RIT-T process for a specified augmentation. Correlatively, it cannot be said that in not carrying out the RIT-T process for the specified augmentation, AEMO failed to have regard to the National Electricity Objective.
5. Indeed, there is nothing in the evidence to suggest that AEMO, in preparing the PACR pursuant to the May Order, did not 'have regard to' the National Electricity Objective as relevant to the considerations which should be addressed in the PACR. Rather, as we read the PACR, AEMO sought to identify both the extent to which its conclusions gave effect to the National Electricity Objective and the extent to which its conclusions gave effect to other factors. Thus, the PACR set out how the RIT-T analysis for VNI West had been updated since the July 2022 PADR. It further undertook a net market benefit analysis with regard to two credible options. Ultimately, it concluded that on a scenario weighted net market benefit basis Options 5 and 5A effectively ranked equally. Option 5 (crossing the Murray near Echuca) was expected to deliver net benefit of approximately $1,374 million net present value while Option 5A (crossing the Murray north of Kerang) was found to have a net benefit of approximately $1,371 million net present value (0.2 per cent less than Option 5). This assessment is plainly directed to the substance of the National Electricity Objective.
6. Finally, the contention that the May Order is inconsistent with s 49(3) of the Law ignores the effect of ss 16ZC(1) and 16ZC(3)(a)(i), which remove the possibility of any such conflict.

1. Proposed grounds 1 and 2 are not reasonably arguable and have no real prospect of success. Leave to appeal will be refused.

Victoria Government Gazette, 20 February 2023, Order

[1] National Electricity (Victoria) Act 2005 ('NEVA'), ss 6 and 7:

6 Application in Victoria of the National Electricity Law

The National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia, as in force for the time being -

(b) as so applying may be referred to as the National Electricity (Victoria) Law.

7 Application of Regulations under National Electricity Law

The Regulations in force for the time being under Part 4 of the National Electricity (South Australia) Act 1996 of South Australia -

(a) apply as Regulations in force for the purposes of the National Electricity (Victoria) Law; and

(b) as so applying may be referred to as the National Electricity (Victoria) Regulations.

[2] Section 3(3) of the Schedule to the National Electricity (South Australia) Act 1996 ('Law') provides that '[s]ub-section (2) does not apply to the extent that the context or subject matter otherwise indicates or requires'.

[3] See Law, s 15.

[4] National Electricity Rules, r 5.22.2 ('Rules').

[6] The Victorian electricity transmission network is a declared shared network for the purposes of s 50C.

[8] Rules, ch 10 (definition of 'transmission network services provider').

[13] The Rules seek to expedite actionable projects.

[14] Relevantly, defined in r 5.15.1 as 'as an end user or its representative who, in the AER's opinion, has the potential to suffer a material and adverse [National Energy Market] impact from the investment identified as the preferred option in the [PACR] or the final project assessment report (as the case may be)'.

[16] See National Electricity (Victoria) Amendment Act 2020.

[17] National Electricity (Victoria) Amendment Act 2020, s 1; Explanatory Memorandum, National Electricity (Victoria) Amendment Act 2020; Victoria, Parliamentary Debates, Legislative Assembly, 19 February 2020, 376-8 (Lily D'Ambrosio, Minister for Energy, Environment and Climate Change).

[18] Electricity Infrastructure Investment Act 2020 (NSW), ss 31(1), (2).

[19] The relevant New South Wales TNSP for the interstate connection.

[20] Moorabool and Central Highlands Power Alliance v Minister for Energy and Resources [2023] VSC 774 (McDonald J) ('Reasons').

[23] Reflecting the proposal described in the ISP.

[31] SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); see also 157 [41] (Gageler J), 162-3 [64] (Edelman J); [2018] HCA 55. And see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited at n 105, n 108 and n 109; [2009] HCA 41; AB (a pseudonym) v Independent Broad-Based Anti-Corruption Commission [2024] HCA 10; (2024) 98 ALJR 532, 537-8 [21] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ); [2024] HCA 10.

[32] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 ('Project Blue Sky'). See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21, 35-6 [15] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ); [2021] HCA 19.

[33] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 592 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 10. See also Port of Newcastle v Glencore Coal [2021] HCA 39; (2021) 274 CLR 565, 594 [87] (Kiefel CJ, Gageler, Gordon, Steward and Gordon JJ); [2021] HCA 39.

[34] Interpretation of Legislation Act 1984, s 35(b).

[35] Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55.

[36] R v Young (1999) 46 NSWLR 681, 687-8 [15] (Spigelman CJ); [1999] NSWCCA 166. See also Project Blue Sky [1998] HCA 35; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; CTM v The Queen (2008) 236 CLR 440, 509 [237] (Heydon J); [2008] HCA 25. See generally the discussion in Dennis Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2024) 79-85 [2.61]-[2.65].

[38] We note for completeness that the applicant also contended that s 16Y(4)(a) was subject to the limitation found in ss 16Y(1)(b) and (c), by the operation of the Anthony Hordern principle discussed below (see [112]-[113]). Thus although s 16Y(4)(a) refers in terms to 'a provision of the Law', it is to be understood as confined, by implication, to a provision of the Law within the declared network functions subdivision. The Minister disputed this construction. It is unnecessary for this Court to resolve this issue of construction because, for the reasons which follow, no question of consequential disapplication or modification of the Law as distinct from the Rules arises in the present case. Thus, s 16Y(4)(a) has no work to do in relation to the Orders in issue. Nonetheless, having regard to the terms of s 16ZC to which we next come, we doubt that the applicant is correct.

[39] Section 32 of the NEVA provides:

32 Application of AEMO's declared network functions

Subdivision 3 of Division 2 of Part 5 of the National Electricity (Victoria) Law applies in this jurisdiction.

See section 50(2) of the National Electricity (Victoria) Law.

[40] Cumerlong Holdings v Dalcross Properties [2011] HCA 27; (2011) 243 CLR 492, 501 [21] (Gummow A-CJ, Hayne, Crennan and Bell JJ); [2011] HCA 27.

[41] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); [1932] HCA 9.

[42] Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 678 (Mason J); [1979] HCA 26.

[43] See, eg, Public Service Association and Professional Officers' Association Amalgamated (NSW) v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343, 355 [18] (French CJ); [2012] HCA 58; Cvetanovski v The Queen (2015) 250 A Crim R 191, 200-1 [53] (Priest JA, Weinberg and Beach JJA agreeing); [2015] VSCA 65; Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v New South Wales [2014] NSWCA 116; (2014) 242 IR 338, [103]-[108] (Basten JA); [2014] NSWCA 116. See also the discussion in Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020) 294-5 [11.40]; Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis, 6th ed, 2023) 411-12 [19.8].

[44] ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, 25 [61] (Gageler J) (emphasis added); [2014] HCA 18.

[46] Section 2 of the Law provides:

National Electricity Rules or Rules means -

(b) Rules made by the AEMC under this Law, including Rules that amend or revoke -

(i) the initial National Electricity Rules or additional Minister initiated Rules; or

A Minister of a participating jurisdiction, after consulting with the Ministers of the other participating jurisdictions, may request the AEMC to make a jurisdictional derogation in respect of the jurisdiction of which he or she is a Minister.

[48] Noting that rr 5.16A and 5.22 were introduced as from 1 July 2020 subsequent to div 7 of pt 3 of the NEVA on 24 March 2020.

[49] (2019) 266 CLR 428; [2019] HCA 2.

[50] (2016) 260 CLR 500; [2016] HCA 21.

(1) a RIT-T proponent's preferred option for an actionable ISP project fails to satisfy the trigger event set out in clause 5.16A.5(b);

(2) there is no credible option for an actionable ISP project that satisfies the regulatory investment test for transmission under rule 5.16A; or

(3) in the course of assessing a preferred option in respect of an actionable ISP project for the purposes of clauses 5.16A.5(b), AEMO considers that there is a material change to the need for, or characteristics of another actionable ISP project.

[62] Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); [1996] HCA 36; Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575, 580-1 [14] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [2023] HCA 22.

[63] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 217 [45] (French CJ, Keifel, Bell and Keane JJ), 232 [100] (Nettle J); [2015] HCA 15.

[66] See Law, s 2 definition of 'application act':

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;