35Offer to domestic or small business customers (licensee standing offers)

35 Offer to domestic or small business customers (licensee standing offers) S. 35(1) amended by No. 6/2019 s. 4(1). (1) Without limiting the generality of section 20(2) or (3) or section 21, the conditions to which a licence to sell electricity, being a licence under which electricity may be sold to domestic or small business customers, is subject, include a condition requiring the licensee to offer to supply and sell electricity to domestic or small business customers, subject to this section and to any Order in force under section 13 or a price determination in force under such an Order and to the conditions of its licence— S. 35(1)(a) amended by No. 55/2007 s. 12, substituted by No. 28/2021 s. 14. (a) at tariffs fixed under an Order in force under section 13 or determined under a price determination in force under such an Order or, if there are no such tariffs, at tariffs determined by the licensee and published by the licensee in the Government Gazette at least one month before they take effect; and S. 35(1)(b) amended by Nos 62/2001 s. 70(d), 55/2007 s. 12. (b) on terms and conditions determined by the licensee and approved by the Commission and published by the licensee in the Government Gazette at least one month before they take effect. S. 35(2) amended by Nos 62/2001 s. 70(d), 75/2004 s. 18, substituted by No. 39/2005 s. 55(1), amended by No. 41/2021 s. 46. (2) The terms and conditions determined by the licensee for the purposes of subsection (1) must not be inconsistent with the terms and conditions decided by the Commission under section 36(1) or a provision of a Code of Practice. S. 35(3) amended by Nos 55/2007 s. 12, 59/2008 s. 8(2), 49/2015 s. 7(1), 6/2019 s. 4(2). (3) Subject to subsections (3A) and (3E) to (3G) and to any Order in force under section 13 or a price determination in force under such an Order, the tariffs determined by a licensee and published in the Government Gazette under subsection (1) may be varied by notice published by the licensee in the Government Gazette not less than one month before the variation is to take effect. S. 35(3A) inserted by No. 59/2008 s. 8(3), substituted by No. 6/2019 s. 4(3). (3A) Subject to subsection (3AB), a licensee must not vary tariffs under subsection (3) that have been in effect for less than— (a) the period (not exceeding 12 months) determined by the Commission; or (b) if no period is determined under paragraph (a)—6 months. S. 35(3AB) inserted by No. 6/2019 s. 4(3). (3AB) Subsection (3A) does not apply if— (a) the variation is necessary to comply with an Order in force under section 13 or a price determination in force under such an Order; or S. 35(3AB)(ab) inserted by No. 28/2020 s. 7(1). (ab) the variation is necessary to comply with an Order in force under subsection (3AC); or (b) the Commission, being satisfied that there are special circumstances, exempts the licensee from compliance with that subsection. S. 35(3AC) inserted by No. 28/2020 s. 7(2). (3AC) The Minister, by Order published in the Government Gazette, may, as a consequence of the enactment of Division 6A of Part 3 of the **National Electricity (Victoria) Act 2005** and any variations made to an applicable 2016–2020 distribution determination under that Division— (a) direct a licensee to vary tariffs under subsection (3) as specified under the Order; and (b) specify the period within which the tariffs must be varied. S. 35(3AD) inserted by No. 28/2020 s. 7(2). (3AD) Without limiting subsection (3AC)(a), a direction under an Order under subsection (3AC) may specify principles, a formula or methodology in accordance with which tariffs must be varied. S. 35(3B) inserted by No. 49/2015 s. 7(2). (3B) The Minister, by Order published in the Government Gazette, may specify either or both of the following— (a) a date on which, or period within which, licensees may publish a notice referred to in subsection (3); (b) a date on which, or period within which, tariffs varied in accordance with subsection (3) must take effect. S. 35(3C) inserted by No. 49/2015 s. 7(2). (3C) A date specified in an Order made in the exercise of the power under subsection (3B)(b) may be a date that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. S. 35(3D) inserted by No. 49/2015 s. 7(2). (3D) A period specified in an Order made in the exercise of the power under subsection (3B)(b) may end on a day that is less than one month before tariffs varied in accordance with subsection (3) would otherwise take effect. S. 35(3E) inserted by No. 49/2015 s. 7(2). (3E) If an Order made in the exercise of the power under subsection (3B)(a) is in effect, a licensee must not vary the tariffs under subsection (3) unless the notice referred to in subsection (3) is published on the date or within the period specified in the Order (as the case requires). S. 35(3F) inserted by No. 49/2015 s. 7(2). (3F) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a date on which tariffs varied in accordance with subsection (3) must take effect, the tariffs take effect on the date specified in the Order. S. 35(3G) inserted by No. 49/2015 s. 7(2). (3G) If an Order made in the exercise of the power under subsection (3B)(b) is in effect and the Order specifies a period within which tariffs varied in accordance with subsection (3) must take effect and the date specified in a notice under subsection (3) is within that period, the tariffs take effect on that date. S. 35(4) amended by Nos 62/2001 s. 70(d), 59/2008 s. 8(4). (4) The terms and conditions determined by a licensee and published in the Government Gazette under subsection (1) may, with the approval of the Commission, be varied by notice published by the licensee in the Government Gazette not less than one month before the variation is to take effect. S. 35(4A) inserted by No. 91/2004 s. 7(1). (4A) A person who is a domestic or small business customer may accept an offer by a licensee under this section even if the person was previously a party to a contract for the supply or sale of electricity on different terms and conditions with the same licensee or another licensee. (5) The Governor in Council may, by Order published in the Government Gazette, declare that a person or class of persons specified in the Order is, for the purposes of this section, a domestic or small business customer or class of domestic or small business customers. (6) An Order under subsection (5) may specify a class of persons by reference to all or any of the following— S. 35(7) amended by Nos 62/2001 s. 70(d), 75/2004 s. 18. (7) An Order under subsection (5) may confer powers and functions on, and leave any matter to be decided by, the Commission. S. 35(7A) inserted by No. 30/2003 s. 85, substituted by Nos 106/2003 s. 22(1), 72/2010 s. 48(Sch. item 8(1)). (7A) Section 81 of the Australian Consumer Law (Victoria) does not apply to the amendment of an agreement for the sale and supply of electricity that is the result of a variation under subsection (3) or (4) if the agreement is an unsolicited consumer agreement. S. 35(7B) inserted by No. 106/2003 s. 22(1), amended by No. 72/2010 s. 48(Sch. item 8(3)). (7B) Sections 78(2), 83, 84 and 85 of the Australian Consumer Law (Victoria) do not apply to a contract for the supply or sale of electricity to a domestic or small business customer. S. 35(7C) inserted by No. 106/2003 s. 22(1), amended by No. 72/2010 s. 48(Sch. item 8(4)). (7C) Section 82 of the Australian Consumer Law (Victoria) does not apply to a contract for the supply or sale of electricity to a domestic or small business customer unless the terms and conditions determined for the purpose of subsection (1) (in compliance with subsection (2)) require the inclusion of a cooling-off period in that contract. S. 35(7D) inserted by No. 106/2003 s. 22(1), amended by No. 72/2010 s. 48(Sch. item 8(5)). (7D) If section 82(3)(b) of the Australian Consumer Law (Victoria) applies to a contract for the supply or sale of electricity to a domestic or small business customer then, for the purposes of that subsection, the domestic or small business customer is deemed to have received the document evidencing the contract and the notice on the day on which the licensee is taken under that contract to have given the document and notice to the customer. (8) In this section— S. 35(8) def. of *applicable 2016–2020 distribution determination* inserted by No. 28/2020 s. 7(3). ***applicable 2016–2020 distribution determination*** has the same meaning as in section 16VA(1) of the **National Electricity (Victoria) Act 2005**; S. 35(8) def. of *cooling-off period* inserted by No. 106/2003 s. 22(2), amended by Nos 59/2008 s. 8(5)(a), 72/2010 s. 48(Sch. item 8(2)(a)). ***cooling-off period*** means a period within which a person is entitled under a contract to cancel the contract; S. 35(8) def. of *domestic or small business customer* repealed by No. 59/2008 s. 8(5)(b). S. 35(8) def. of *price determination* inserted by No. 6/2019 s. 4(4). ***price determination*** means a determination under section 33 of the **Essential Services Commission Act 2001**; S. 35(8) def. of *unsolicited consumer agreement* inserted by No. 72/2010 s. 48(Sch. item 8(2)(b)). ***unsolicited consumer agreement*** has the same meaning as in section 69 of the Australian Consumer Law (Victoria). S. 35(9) amended by Nos 40/2003 s. 16, 91/2004 s. 7(2), 55/2007 s. 7, repealed by No. 59/2008 s. 8(6). S. 35A inserted by No. 59/2008 s. 9, amended by No. 3/2014 s. 6(a).