Electricity Industry (Penalty Regime) Regulations 2022 (Victoria)

These Regulations (Electricity Industry (Penalty Regime) Regulations 2022, S.R. No. 55/2022, as amended) set out which provisions in the electricity regulatory framework are to be treated as civil penalty requirements and fix the maximum civil penalty amounts that may be imposed for contraventions of those specified requirements for the purposes of the Essential Services Commission Act 2001 (the ESC Act). The Regulations operate by two basic mechanisms.

First, regulation 5 prescribes specific provisions of the Electricity Industry Act 2000 (the Act) as civil penalty requirements by listing them in Schedule 1. That means those provisions listed in Schedule 1 are to be treated, for purposes of the ESC Act, as obligations that can attract civil penalties (see reg 5 and Schedule 1). The definition of “civil penalty requirement” used in the Regulations is cross‑referenced to section 3 of the ESC Act (reg 4).

Second, regulations 6 and 7 prescribe maximum amounts for contraventions of civil penalty requirements by reference to “tier 1” and “tier 2” classifications in Schedule 2 (reg 6; reg 7). For tier 1 civil penalty requirements the prescribed maximum is an amount not exceeding 60,000 penalty units (reg 6). For tier 2 civil penalty requirements the prescribed maximum is an amount not exceeding 8,000 penalty units (reg 7). Schedule 2 then lists, across two tables, the many statutory provisions, statutory licence conditions, orders and specific clauses of the Energy Retail Code of Practice, the Electricity Distribution Code of Practice and the Land Access Code of Practice that are allocated to tier 1 (Table 1) and to tier 2 (Table 2).

The Regulations are made under section 119 of the Electricity Industry Act 2000 (reg 2) and commenced on 19 July 2022 (reg 3). They have been amended by S.R. No. 83/2023 and S.R. No. 104/2024 (Endnotes and Table of Amendments). The Explanatory details make clear that monetary calculations for penalties use penalty units as defined in the Sentencing Act 1991 and the Monetary Units Act 2004, and give the value of a penalty unit for the year commencing 1 July 2024 (Explanatory details).

Version No. 003

Electricity Industry (Penalty Regime) Regulations 2022

S.R. No. 55/2022

Version incorporating amendments as at
8 October 2024

TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provision 1

3 Commencement 1

4 Definitions 1

5 Prescribed civil penalty requirements 2

6 Prescribed civil penalty amounts—tier 1 civil penalty requirements 2

7 Prescribed civil penalty amounts—tier 2 civil penalty requirements 3

Schedule 1—Prescribed civil penalty requirements—provisions of the Act 4

Schedule 2—Prescribed civil penalty amounts 5

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Endnotes 22

1 General information 22

2 Table of Amendments 24

3 Explanatory details 25

Version No. 003

Electricity Industry (Penalty Regime) Regulations 2022

S.R. No. 55/2022

Version incorporating amendments as at
8 October 2024

1 Objectives

The objectives of these Regulations are—

(a) to prescribe provisions as civil penalty requirements for the purposes of the Essential Services Commission Act 2001; and

(b) to prescribe amounts for contraventions of civil penalty requirements.

2 Authorising provision

These Regulations are made under section 119 of the Electricity Industry Act 2000.

3 Commencement

These Regulations come into operation on 19 July 2022.

4 Definitions

In these Regulations⎯

civil penalty requirement has the same meaning as in section 3 of the Essential Services Commission Act 2001;

Reg. 4 def. of Electricity Distribution Code of Practice inserted by S.R. No. 83/2023 reg. 3.

Electricity Distribution Code of Practice means the Code of Practice made under section 47(1) of the Essential Services Commission Act 2001 and entitled "Electricity Distribution Code of Practice";

Energy Retail Code of Practice means the Code of Practice made under section 47(1) of the Essential Services Commission Act 2001 and entitled "Energy Retail Code of Practice";

Reg. 4 def. of Land Access Code of Practice inserted by S.R. No. 104/2024 reg. 3.

Land Access Code of Practice means the Code of Practice made under section 47(1) of the Essential Services Commission Act 2001 and entitled "Land Access Code of Practice";

the Act means the Electricity Industry Act 2000;

tier 1 civil penalty requirement means a civil penalty requirement specified in an item of Table 1 in Schedule 2;

tier 2 civil penalty requirement means a civil penalty requirement specified in an item of Table 2 in Schedule 2.

5 Prescribed civil penalty requirements

A provision of the Act specified in Schedule 1 is prescribed as a civil penalty requirement for the purposes of the Essential Services Commission Act 2001.

Notes

1 The Act may also specify a provision of the Act as a civil penalty requirement for the purposes of the Essential Services Commission Act 2001.

2 If a provision of the Act that was specified as a civil penalty requirement in the Act ceases to be specified as a civil penalty requirement in the Act, the provision is not a civil penalty requirement even if it is specified in Schedule 2, unless it is specified in Schedule 1.

6 Prescribed civil penalty amounts—tier 1 civil penalty requirements

For the purposes of section 54E(c), (d), (g) and (h) of the Essential Services Commission Act 2001, the prescribed amount for a contravention of a tier 1 civil penalty requirement is an amount not exceeding 60 000 penalty units.

Notes

1 The civil penalty amount for a contravention of a civil penalty requirement that is not a tier 1 civil penalty requirement or a tier 2 civil penalty requirement is the amount specified in the Act or in the Essential Services Commission Act 2001.

2 For persons other than licensees, the civil penalty amount for a contravention of a civil penalty requirement is the amount specified in the Act or in the Essential Services Commission Act 2001.

7 Prescribed civil penalty amounts—tier 2 civil penalty requirements

For the purposes of section 54E(c), (d), (g) and (h) of the Essential Services Commission Act 2001, the prescribed amount for a contravention of a tier 2 civil penalty requirement is an amount not exceeding 8000 penalty units.

Sch. 1 amended by S.R. No. 104/2024 reg. 4.

Schedule 1—Prescribed civil penalty requirements—provisions of the Act

Regulation 5

Column 1<br>Item No.	Column 2<br>Provision
1.	Section 35(3A).
2.	Section 40FG(2).
3.	Section 40MAA(2).
4.	Section 40N(1).
5.	Section 40N(2).
6.	Section 40NA(1).
7.	Section 40NA(2).
8.	Section 40SE(1).
9.	Section 40SG(1).
10.	Section 40SG(2).
11.	Section 40SG(3).
12.	Section 40SG(4).
13.	Section 40SH(1).
14.	Section 40SH(2).
15.	Section 40SI(1).
16.	Section 40SI(2).
17.	Section 40SJ(1).
18.	Section 40SJ(2).
19.	Section 40SJ(3).
20.	Section 40SJ(4).
21.	Section 40SJ(5).
22.	Section 40SK(1).
23.	Section 40SK(2).
24.	Section 40SK(3).
25.	Section 43A(3).

Sch. 2 amended by S.R. No. 83/2023 regs 4, 5, substituted by S.R. No. 104/2024 reg. 5.

Schedule 2—Prescribed civil penalty amounts

Regulations 6 and 7

Table 1—Tier 1 civil penalty requirements

Column 1<br>Item No.	Column 2<br>Provision
	Electricity Industry Act 2000
1.	Section 35(3A).
2.	Section 40SE(1).
3.	Section 40SG(1).
4.	Section 40SG(2).
5.	Section 40SG(3).
6.	Section 40SG(4).
7.	Section 40SH(1).
8.	Section 40SH(2).
9.	Section 40SI(1).
10.	Section 40SI(2).
11.	Section 40SJ(1).
12.	Section 40SJ(2).
13.	Section 40SJ(3).
14.	Section 40SJ(4).
15.	Section 40SJ(5).
16.	Section 40SK(1).
17.	Section 40SK(2).
18.	Section 40SK(3).
19.	Section 43A(3).
	Statutory licence conditions under the Electricity Industry Act 2000
20.	Section 23A(1).
21.	Section 23C(1).
22.	Section 28(1).
23.	Section 35(1).
24.	Section 35C(1).
25.	Section 40B(1).
26.	Section 40EA(2).
27.	Section 40EB(1).
28.	Section 40FH(2).
29.	Section 40MD.
30.	Section 40ME(1).
31.	Section 43(1).
32.	Section 43(3).
33.	Section 46C.
	Orders made under the Electricity Industry Act 2000
34.	Section 13(1).
35.	Section 40D(1).
36.	Section 40E(1).
	Energy Retail Code of Practice
37.	Clause 26(4).
38.	Clause 26(5).
39.	Clause 27(1).
40.	Clause 29(5).
41.	Clause 30(2).
42.	Clause 85(8).
43.	Clause 103(1).
44.	Clause 104(1).
45.	Clause 113(1).
46.	Clause 120(1).
47.	Clause 125(1).
48.	Clause 125(2).
49.	Clause 129(3).
50.	Clause 130(2).
51.	Clause 130(5).
52.	Clause 130(6).
53.	Clause 131(2).
54.	Clause 131(3).
55.	Clause 132(1).
56.	Clause 135(1).
57.	Clause 138(1).
58.	Clause 138(2).
59.	Clause 138(3).
60.	Clause 139(1).
61.	Clause 139(2).
62.	Clause 139(5).
63.	Clause 141(1).
64.	Clause 143(1).
65.	Clause 144(1).
66.	Clause 144(2).
67.	Clause 144(3).
68.	Clause 145(1).
69.	Clause 146(2).
70.	Clause 146(3).
71.	Clause 146(4).
72.	Clause 146(5).
73.	Clause 146(6).
74.	Clause 146(7).
75.	Clause 146(8).
76.	Clause 149(1).
77.	Clause 150(1).
78.	Clause 150(4).
79.	Clause 150(6).
80.	Clause 151(1).
81.	Clause 152(1).
82.	Clause 153(1).
83.	Clause 154(1).
84.	Clause 154(2).
85.	Clause 155(1).
86.	Clause 157(1).
87.	Clause 158(1).
88.	Clause 159(1).
89.	Clause 160(1).
90.	Clause 160(2).
91.	Clause 164(1).
92.	Clause 164(2).
93.	Clause 165(1).
94.	Clause 165(2).
95.	Clause 167(1).
96.	Clause 182(4).
97.	Clause 191(1).
98.	Clause 192(1).
99.	Clause 193(1).
	Electricity Distribution Code of Practice
100.	Clause 1.5.2.
101.	Clause 3.3.1.
102.	Clause 3.4.1.
103.	Clause 5.2.1.
104.	Clause 5.2.2.
105.	Clause 5.3.1.
106.	Clause 8.4.
107.	Clause 8.6.2.
108.	Clause 8.9.1.
109.	Clause 9.2.1.
110.	Clause 9.2.3.
111.	Clause 9.3.
112.	Clause 11.3.1.
113.	Clause 11.3.2.
114.	Clause 11.5.1.
115.	Clause 11.5.6.
116.	Clause 11.5.8.
117.	Clause 11.6.1.
118.	Clause 11.7.1.
119.	Clause 11.8.1.
120.	Clause 12.2.1.
121.	Clause 12.2.2.
122.	Clause 12.3.1.
123.	Clause 12.4.1.
124.	Clause 12.4.2.
125.	Clause 12.4.3.
126.	Clause 12.5.1.
127.	Clause 12.5.2.
128.	Clause 12.5.3.
129.	Clause 12.5.7.
130.	Clause 12.6.
131.	Clause 12.7.1.
132.	Clause 12.7.2.
133.	Clause 12.7.3.
134.	Clause 12.7.4.
135.	Clause 12.7.5(a).
136.	Clause 12.7.5(c).
137.	Clause 12.7.5(e).
138.	Clause 12.7.5(f).
139.	Clause 12.7.5(j).
140.	Clause 13.3.1.
141.	Clause 15.2.1.
142.	Clause 15.2.3.
143.	Clause 15.3.
144.	Clause 16.3.2.
145.	Clause 16.4.1.
146.	Clause 16.4.2.
147.	Clause 16.5.1.
148.	Clause 16.5.2.
149.	Clause 16.7.1.
150.	Clause 16.7.2.
151.	Clause 17.2.1.
152.	Clause 17.2.2.
153.	Clause 19.2.1.
154.	Clause 19.5.2.
155.	Clause 19.5.5.
156.	Clause 20.4.1.
157.	Clause 20.4.4.
158.	Clause 20.4.5.
159.	Clause 20.4.7.
160.	Clause 20.4.8.
161.	Clause 20.6.1.
162.	Clause 20.6.2.
163.	Clause 20.7.1.
164.	Clause 20.8.1.
165.	Clause 20.10.1.
166.	Clause 20.11.
167.	Clause 21.3.
168.	Clause 21.4.1.
169.	Clause 21.4.3.
170.	Clause 21.5.2.
171.	Clause 21.5.3.
172.	Clause 21.6.
173.	Clause 21.7.1.
174.	Clause 21.7.2.
175.	Clause 21.8.
176.	Clause 21.9.
177.	Clause 22.2.
178.	Clause 22.3.
179.	Clause 23.2.1.
180.	Clause 23.2.2.
181.	Clause 24.2.1.
182.	Clause 25.7.
183.	Clause 25.10.1.
184.	Clause 25.10.2.
	Land Access Code of Practice
185.	Clause 5.2.1.
186.	Clause 5.2.2.
187.	Clause 5.4.1.
188.	Clause 5.4.2.
189.	Clause 6.1.1.
190.	Clause 6.2.1.
191.	Clause 6.2.2.
192.	Clause 7.1.1.
193.	Clause 7.2.2.
194.	Clause 7.2.4.
195.	Clause 7.3.1.
196.	Clause 7.3.4.
197.	Clause 9.1.1.
198.	Clause 9.2.1.
199.	Clause 9.3.1.
200.	Clause 9.4.1.
201.	Clause 9.5.1.
202.	Clause 11.1.1.
203.	Clause 11.1.2.
204.	Clause 13.6.2

Table 2—Tier 2 civil penalty requirements

Column 1<br>Item No.	Column 2<br>Provision
	Electricity Industry Act 2000
1.	Section 40FG(2).
2.	Section 40MAA(2).
3.	Section 40N(1).
4.	Section 40N(2).
5.	Section 40NA(1).
6.	Section 40NA(2).
	Statutory licence conditions under the Electricity Industry Act 2000
7.	Section 35A.
8.	Section 35D(1).
9.	Section 36A(1).
10.	Section 40D(1AA).
11.	Section 40FF(1).
12.	Section 40FG(3).
13.	Section 40FJ(1).
14.	Section 40G(1).
	Energy Retail Code of Practice
15.	Clause 8(1).
16.	Clause 8(2).
17.	Clause 12(1).
18.	Clause 13(1).
19.	Clause 13(2).
20.	Clause 13(3).
21.	Clause 13(4).
22.	Clause 14(1).
23.	Clause 16(1).
24.	Clause 16(2).
25.	Clause 16(3).
26.	Clause 24(1).
27.	Clause 26(2)(b).
28.	Clause 26(3)(a).
29.	Clause 26(3)(b).
30.	Clause 30(1).
31.	Clause 31(1).
32.	Clause 33(1).
33.	Clause 38(1).
34.	Clause 38(2).
35.	Clause 38(3).
36.	Clause 38(6).
37.	Clause 39(1).
38.	Clause 39(2).
39.	Clause 39(3).
40.	Clause 39(4).
41.	Clause 39(5).
42.	Clause 40(1).
43.	Clause 40(3).
44.	Clause 40(4).
45.	Clause 40(5).
46.	Clause 40(6).
47.	Clause 40(7).
48.	Clause 40(8).
49.	Clause 40(9).
50.	Clause 40(10).
51.	Clause 40(11).
52.	Clause 40(12).
53.	Clause 41(1).
54.	Clause 41(2).
55.	Clause 44(1).
56.	Clause 45(1).
57.	Clause 46(3).
58.	Clause 47(2).
59.	Clause 48(1).
60.	Clause 48(2).
61.	Clause 49(1).
62.	Clause 50(1).
63.	Clause 50(2).
64.	Clause 51(2).
65.	Clause 51(5).
66.	Clause 52(1).
67.	Clause 53(1).
68.	Clause 54(1).
69.	Clause 54(3).
70.	Clause 57(1)(a).
71.	Clause 57(2).
72.	Clause 59(1).
73.	Clause 59(4).
74.	Clause 59(6).
75.	Clause 59(7).
76.	Clause 59(8).
77.	Clause 59(10).
78.	Clause 59(11).
79.	Clause 59(12).
80.	Clause 59(13).
81.	Clause 59(14).
82.	Clause 60(1).
83.	Clause 62(1).
84.	Clause 63(1).
85.	Clause 65(1).
86.	Clause 66(1).
87.	Clause 69(1).
88.	Clause 69(2).
89.	Clause 69(3).
90.	Clause 69(5)(a).
91.	Clause 69(7)(b).
92.	Clause 69(8).
93.	Clause 70(2)(a).
94.	Clause 70(2)(b).
95.	Clause 70(2)(c).
96.	Clause 70(2)(d).
97.	Clause 70(3).
98.	Clause 71(1).
99.	Clause 71(2).
100.	Clause 71(3).
101.	Clause 72(1).
102.	Clause 72(3).
103.	Clause 72(4).
104.	Clause 72(5).
105.	Clause 75(2).
106.	Clause 75(3).
107.	Clause 75(4).
108.	Clause 76(1).
109.	Clause 77(1)(b).
110.	Clause 80(1).
111.	Clause 81(1).
112.	Clause 82(1).
113.	Clause 84(1).
114.	Clause 85(1).
115.	Clause 85(2).
116.	Clause 85(3).
117.	Clause 85(4).
118.	Clause 85(5).
119.	Clause 85(6).
120.	Clause 86(3).
121.	Clause 87(1).
122.	Clause 88(1).
123.	Clause 89(1).
124.	Clause 89(2).
125.	Clause 89(3).
126.	Clause 90(1).
127.	Clause 90(2).
128.	Clause 92(2).
129.	Clause 92(3).
130.	Clause 92(4).
131.	Clause 92(5).
132.	Clause 93(1).
133.	Clause 94(2).
134.	Clause 94(4).
135.	Clause 95(1).
136.	Clause 96(1).
137.	Clause 97(5).
138.	Clause 97(6).
139.	Clause 98(1).
140.	Clause 98(2).
141.	Clause 98(3).
142.	Clause 99(1).
143.	Clause 100(2).
144.	Clause 102(1).
145.	Clause 102(2).
146.	Clause 106(1).
147.	Clause 107(1).
148.	Clause 107(2).
149.	Clause 108(1).
150.	Clause 108(3).
151.	Clause 109(1).
152.	Clause 110(1).
153.	Clause 110(2).
154.	Clause 110(3).
155.	Clause 110(4).
156.	Clause 112(1).
157.	Clause 112(2).
158.	Clause 114(1).
159.	Clause 115(1).
160.	Clause 119(1).
161.	Clause 119(2).
162.	Clause 119(3).
163.	Clause 119(4).
164.	Clause 119(5).
165.	Clause 176(2).
166.	Clause 176(4).
	Electricity Distribution Code of Practice
167.	Clause 3.3.2.
168.	Clause 4.2.1.
169.	Clause 4.3.1.
170.	Clause 4.4.1.
171.	Clause 4.4.2.
172.	Clause 5.4.1.
173.	Clause 5.4.2.
174.	Clause 8.2.1.
175.	Clause 8.5.1.
176.	Clause 8.5.2.
177.	Clause 8.6.1.
178.	Clause 8.8.1.
179.	Clause 8.8.2.
180.	Clause 9.2.2.
181.	Clause 9.4.4.
182.	Clause 11.4.1.
183.	Clause 11.4.2.
184.	Clause 11.5.3.
185.	Clause 13.2.1.
186.	Clause 13.2.3.
187.	Clause 13.3.2.
188.	Clause 13.3.3.
189.	Clause 14.3.1.
190.	Clause 14.3.2.
191.	Clause 14.3.4.
192.	Clause 14.4.
193.	Clause 14.5.1.
194.	Clause 14.5.2.
195.	Clause 14.5.5.
196.	Clause 14.6.1.
197.	Clause 14.7.1.
198.	Clause 14.8.1.
199.	Clause 14.8.2.
200.	Clause 14.8.3.
201.	Clause 14.8.4.
202.	Clause 18.2.1.
203.	Clause 18.2.2.
204.	Clause 18.2.3.
205.	Clause 18.3.
206.	Clause 19.3.1.
207.	Clause 19.3.3.
208.	Clause 19.4.1.
209.	Clause 19.4.7.
210.	Clause 19.6.1.
211.	Clause 23.2.3.
212.	Clause 23.2.4.
213.	Clause 24.2.2.
214.	Clause 25.2.1.
215.	Clause 25.2.2.
216.	Clause 25.2.3.
217.	Clause 25.2.4.
218.	Clause 25.3.1.
219.	Clause 25.3.3.
220.	Clause 25.4.1.
221.	Clause 25.4.3.
222.	Clause 25.5.1.
223.	Clause 25.5.2.
224.	Clause 25.6.2.
225.	Clause 25.8.
226.	Clause 25.9.
	Land Access Code of Practice
227.	Clause 5.1.1.
228.	Clause 5.3.1.
229.	Clause 5.3.2.
230.	Clause 5.4.3.
231.	Clause 5.4.5.
232.	Clause 5.4.6.
233.	Clause 7.1.2.
234.	Clause 7.1.3.
235.	Clause 7.1.4.
236.	Clause 7.4.3.
237.	Clause 9.6.1.
238.	Clause 9.6.2.
239.	Clause 9.6.3.
240.	Clause 12.1.1.
241.	Clause 12.1.2.
242.	Clause 13.1.1.
243.	Clause 13.2.1.
244.	Clause 13.2.2.

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Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Electricity Industry (Penalty Regime) Regulations 2022, S.R. No. 55/2022 were made on 19 July 2022 by the Governor in Council under section 119 of the Electricity Industry Act 2000, No. 68/2000 and came into operation on 19 July 2022: regulation 3.

The Electricity Industry (Penalty Regime) Regulations 2022 will sunset 10 years after the day of making on 19 July 2032 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).

• Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).

• Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

• Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Electricity Industry (Penalty Regime) Regulations 2022 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Electricity Industry (Penalty Regime) Amendment Regulations 2023, S.R. No. 83/2023

Date of Making:	15.8.23
Date of Commencement:	15.8.23

Electricity Industry (Penalty Regime) Amendment Regulations 2024, S.R. No. 104/2024

Date of Making:	8.10.24
Date of Commencement:	8.10.24

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

The value of a penalty unit for the financial year commencing 1 July 2024 is $197.59. The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.

1 Electricity Industry (Penalty Regime) Regulations 2022

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Electricity Industry (Penalty Regime) Regulations 2022

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Version incorporating amendments as at
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TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provision 1

3 Commencement 1

4 Definitions 1

5 Prescribed civil penalty requirements 2

6 Prescribed civil penalty amounts—tier 1 civil penalty requirements 2

7 Prescribed civil penalty amounts—tier 2 civil penalty requirements 3

Schedule 1—Prescribed civil penalty requirements—provisions of the Act 4

Schedule 2—Prescribed civil penalty amounts 5

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Endnotes 22

1 General information 22

2 Table of Amendments 24

3 Explanatory details 25

Version No. 003

Electricity Industry (Penalty Regime) Regulations 2022

S.R. No. 55/2022

Version incorporating amendments as at
8 October 2024

1 Objectives

The objectives of these Regulations are—

(a) to prescribe provisions as civil penalty requirements for the purposes of the Essential Services Commission Act 2001; and

(b) to prescribe amounts for contraventions of civil penalty requirements.

2 Authorising provision

These Regulations are made under section 119 of the Electricity Industry Act 2000.

3 Commencement

These Regulations come into operation on 19 July 2022.

4 Definitions

In these Regulations⎯

civil penalty requirement has the same meaning as in section 3 of the Essential Services Commission Act 2001;

Reg. 4 def. of Electricity Distribution Code of Practice inserted by S.R. No. 83/2023 reg. 3.

means the Code of Practice made under section 47(1) of the and entitled "Electricity Distribution Code of Practice";

The Regulations deploy a small set of legal concepts and mappings that control enforcement exposure in the electricity sector. Understand these core concepts and how they link to other statutes.

Civil penalty requirement: The Regulations adopt the ESC Act definition of a “civil penalty requirement” (reg 4). By prescribing a provision of the Act in Schedule 1 (reg 5) or by identifying provisions and code clauses in Schedule 2 for the purpose of fixing penalty amounts (regs 6-7), the Regulations determine which obligations are treated as enforceable by civil penalty under the ESC Act.

Tiers and maximum amounts: The two-tier system fixes maximum monetary exposure expressed in penalty units. Tier 1 is “not exceeding 60,000 penalty units” (reg 6). Tier 2 is “not exceeding 8,000 penalty units” (reg 7). Those maxima apply “for the purposes of section 54E(c), (d), (g) and (h) of the Essential Services Commission Act 2001” (regs 6-7), which is the statutory mechanism in the ESC Act permitting the ESC to impose civil penalties. The Regulations therefore supply the ceiling that the ESC can use under s 54E of the ESC Act.

Schedules as the mapping instrument: Schedule 1 lists specific provisions of the Electricity Industry Act 2000 that are prescribed as civil penalty requirements (reg 5; Schedule 1). Schedule 2 contains two tables (Table 1,Tier 1; Table 2,Tier 2) that map individual provisions, statutory licence conditions, orders, and many numbered clauses of the Energy Retail Code of Practice, the Electricity Distribution Code of Practice and the Land Access Code of Practice to either tier (regs 6-7; Schedule 2). The Schedule structure splits the choice whether a provision is a civil penalty requirement (Schedule 1) from the choice of how much can be imposed for contraventions (Schedule 2).

Interplay with the Act and the ESC Act: The Regulations were made under s 119 of the Electricity Industry Act 2000 (reg 2). Regulation 5 includes two notes: the Act itself may specify a provision as a civil penalty requirement and if a provision ceases to be specified as such in the Act, then that provision will not be a civil penalty requirement even if it appears in Schedule 2, unless it also appears in Schedule 1 (reg 5 notes). That note signals the one-way dependency: the Regulations can prescribe amounts and list provisions for amounting purposes, but the Act itself remains the primary source for designating civil penalty obligations; the Regulations do not override removals made in the Act.

Penalty units and monetary calculation: The Explanatory details state that penalties are expressed in penalty units (Sentencing Act 1991 s 110), and the Monetary Units Act 2004 governs the dollar value of a penalty unit for each financial year (Explanatory details). The Explanatory details provide the value for the financial year commencing 1 July 2024 ($197.59), and state the calculated penalty may be rounded to the nearest dollar.

Temporal scope and sunset: The Endnotes record the date of making and commencement (19 July 2022) and state these Regulations will sunset 10 years after making (19 July 2032) under the Subordinate Legislation Act 1994 (Endnotes, General information).

Definitions for codes of practice: Regulation 4 was amended to insert definitions of the Electricity Distribution Code of Practice and the Land Access Code of Practice (Reg 4 notes and Schedule 2 amendments). The Regulations therefore treat specified clauses of these codes as possible sources of civil penalty liability.

Regulatory discretion and “not exceeding” language: The ceiling language “an amount not exceeding” (regs 6-7) leaves discretion to the ESC (and possibly the Act) to impose lower amounts. The Regulations set maxima rather than fixed, mandatory fines.

In short, the main concept is a mapped enforcement grid: identify the obligation (Schedules 1 and 2), determine tier, consult the penalty unit value for the year, and compute the potential maximum monetary exposure (regs 5-7; Explanatory details).

Primary legal targets are electricity licence holders and regulated businesses operating under the Electricity Industry Act 2000 framework whose conduct is governed by the Act, statutory licence conditions, orders made under the Act, and the identified clauses of the Energy Retail Code of Practice, the Electricity Distribution Code of Practice and the Land Access Code of Practice.

Licensees: The Regulations repeatedly distinguish licensees in effect. Regulation 6 Note 2 states that “for persons other than licensees, the civil penalty amount for a contravention of a civil penalty requirement is the amount specified in the Act or in the Essential Services Commission Act 2001.” That note operates as a directional allocation of the penalties authorised here primarily towards licensees, since the prescribed tier maxima in regs 6-7 apply for the purposes of s 54E of the ESC Act (see regs 6-7), which is the ESC’s civil penalty power in relation to regulated entities. The practical implication in the instrument is that regulated licensees should consider exposure to the tiered monetary ceilings set out in Schedule 2.

Retailers and distributors: The Codes of Practice and many clause references in Schedule 2 are administrative and operational rules that typically affect both energy retailers and distribution network operators. Schedule 2 allocates numerous Energy Retail Code clauses (many clauses across Table 1 and Table 2) and many Electricity Distribution Code clauses to a tier. For example, Table 1 (Tier 1) contains clauses such as Clause 26(4) and numerous consumer and operational clauses; Table 2 (Tier 2) contains many operational and customer protection clauses (see Schedule 2 Tables 1 and 2). That means both retail and distribution businesses need to map the specific clause numbers to their business processes.

Contractors and third parties: While the Regulations talk about “persons other than licensees” in reg 6 Note 2, the listed code clauses and statutory licence conditions will commonly impose obligations that flow through contractors and agents. Businesses that undertake field works, meter reads, land access activities, or retail customer interactions should be aware that non-compliance with code clauses listed in Schedule 2 could produce civil liability either directly or via the licensee’s vicarious or contractual accountability (the text itself lists the clauses; the practical mapping will be undertaken by licence holders).

Regulator and enforcement agencies: The Essential Services Commission is the enforcement decision‑maker under the ESC Act whose power to impose civil penalties is engaged by these Regulations (regs 6-7 reference s 54E of the ESC Act). The Regulations therefore primarily change the ESC’s toolbox by setting ceilings on penalties for specified obligations.

Consumers and the public: Although not direct addressees of the Regulations, consumers gain indirect protection via the elevation of particular code clauses and licence obligations to civil penalty status. The Regulations make breaches of many consumer-facing code clauses (retail energy processes, land access, connection standards) potentially sanctionable by monetary penalties, thereby affecting the incentives and compliance posture of market participants.

Insurers and financiers: The tiered maxima expressed in penalty units inform risk profiles used by insurers and lenders. The Explanatory details provide the method for computing dollar equivalents (penalty units × annual value), so financial stakeholders can model potential downside. For the financial year commencing 1 July 2024 the Regulator gives the penalty unit value ($197.59), yielding maximums that are material for corporate risk assessment (Explanatory details; regs 6-7; see calculations below).

Other legislators and code developers: The Regulations cross‑reference Codes of Practice made under section 47(1) of the ESC Act (reg 4 definitions). By attaching civil penalty consequences to particular code clauses, the instrument affects how those codes are drafted, reviewed and enforced going forward.

Summarising who pays and who decides: licensees and regulated businesses face the monetary exposure; the Essential Services Commission (via s 54E of the ESC Act per regs 6-7) is the primary decision maker about whether to proceed with a civil penalty and what amount (subject to the prescribed maxima). The Regulation’s mapping of obligations to tiers assigns exposure concentrations to particular regulated activities (see Schedule 2).

The Regulations do not create new substantive duties in themselves; they reclassify and quantify enforcement exposure for existing duties found in the Electricity Industry Act 2000, statutory licence conditions, Orders under that Act, and in specified clauses of three Codes of Practice. Therefore the key duties are those existing obligations that the Regulations list; the Regulations determine which of those obligations attract civil penalty enforcement under the ESC Act and what maximums apply.

Prescriptive mapping of duties: Regulation 5 prescribes that a provision of the Act specified in Schedule 1 is a civil penalty requirement for the purposes of the ESC Act (reg 5; Schedule 1). The list in Schedule 1 includes specific sections of the Act (for example Section 35(3A); Sections 40SE-40SK series; Section 43A(3)) (Schedule 1). Where a duty appears in Schedule 1, contravention can be prosecuted as a civil penalty requirement under the ESC Act.

Quantification of rights of enforcement: Regulations 6 and 7 operate to give the ESC the numerical upper bounds against which it may exercise its civil enforcement power under s 54E(c), (d), (g) and (h) of the ESC Act (regs 6-7). Those subsections of s 54E are not reproduced in this instrument, but the Regulations explicitly link the prescribed amounts to the ESC Act’s civil penalty power. The practical effect is that the ESC’s discretion to impose penalties is bounded by the tier ceilings in these Regulations when dealing with the listed obligations.

Differentiated exposure: The two-tier structure creates differentiated maximum liability. Table 1 in Schedule 2 lists obligations classified as tier 1 (maximum not exceeding 60,000 penalty units), and Table 2 lists obligations classified as tier 2 (maximum not exceeding 8,000 penalty units). The difference in maximums is substantial. For licence holders, reg 6 Note 2 clarifies that for non-licensees, penalty amounts may instead be those in the Act or ESC Act, so this instrument’s ceilings primarily affect licensees and licence‑tethered obligations.

Preservation and dependency on the Act: Regulation 5 notes that the Act itself may specify a provision as a civil penalty requirement and that if the Act ceases to specify a provision as a civil penalty requirement, then the provision is not a civil penalty requirement even if included in Schedule 2, unless it is also included in Schedule 1 (reg 5 notes). That gives primacy to the Act for the definition of what is a civil penalty requirement while the Regulations provide the amounts and tiering.

Monetary calculation and rounding: The Explanatory details set out that penalties are denominated in penalty units (Sentencing Act 1991 s 110) and that the Monetary Units Act 2004 fixed the dollar value for a given financial year; the Regulations incorporate that mechanism. The Explanatory details provide the penalty unit value for the financial year commencing 1 July 2024 ($197.59) and state that the calculated penalty may be rounded to the nearest dollar. That procedural rule determines how a specified maximum in penalty units translates into a certified dollar maximum for enforcement.

Rights of regulated entities: The Regulations do not alter procedural or substantive rights to contest enforcement under the ESC Act. They function as a ceiling-setting instrument; the ESC Act remains the statutory route through which enforcement, notices, and appeals would be managed. Any rights of review or appeal are in the enabling legislation (the ESC Act and the Act), not in these Regulations.

Practical summary: the Regulations convert many existing statutory and code obligations into enforceable civil penalty requirements (or, where already so designated, provide the monetary ceiling), and they set differentiated ceilings for the ESC’s exercise of penalty powers. Parties should therefore treat the listed provisions as duties with quantifiable maximum exposure, and calculate potential dollar amounts using the penalty unit regime explained in the Explanatory details.

Structure of penalties: The Regulations set ceiling penalty amounts expressed in penalty units. Tier 1 contraventions carry a prescribed amount not exceeding 60,000 penalty units (reg 6). Tier 2 contraventions carry a prescribed amount not exceeding 8,000 penalty units (reg 7). These ceilings are expressly declared to be for “the purposes of section 54E(c), (d), (g) and (h) of the Essential Services Commission Act 2001” (regs 6-7). Thus the instrument provides the numerical upper bounds the ESC may draw on when issuing civil penalties under the identified subsections of s 54E.

Translation to dollars: The Explanatory details state that penalty unit values are set under the Sentencing Act 1991 and the Monetary Units Act 2004; for the financial year commencing 1 July 2024 the value of a penalty unit is $197.59 and the calculated penalty may be rounded to the nearest dollar (Explanatory details). Applying that figure gives illustrative maxima for that financial year: 60,000 penalty units × $197.59 = $11,855,400 and 8,000 penalty units × $197.59 = $1,580,720 (Explanatory details; regs 6-7). These are maximums “not exceeding” the stated penalty unit totals; the ESC could impose lower amounts within those ceilings.

Scope of enforcement: Enforcement is exercised under the ESC Act. The Regulations themselves do not describe enforcement processes; they reference the ESC Act’s civil penalty mechanism (reg 6 references s 54E of the ESC Act). Any procedural elements, defences, remission, or appeal mechanisms remain under the ESC Act and the Electricity Industry Act 2000. The Regulations change the ESC’s quantum margin rather than procedural rules.

Licensee vs non‑licensee: Regulation 6 Note 2 explicitly states that for persons other than licensees, the civil penalty amount for contravention of a civil penalty requirement is the amount specified in the Act or in the ESC Act. That implies the tier ceilings in regs 6-7 work primarily to set exposure for licensees; non-licensees are still subject to amounts specified elsewhere.

Prescriptive mapping of which obligations attract penalties: Schedule 2 Table 1 and Table 2 allocate specific statutory provisions, licence conditions, orders and code clauses into tier 1 and tier 2. For a regulated entity the enforcement consequence is practical: identify which of your obligations appear in Schedule 2 and the table in which they appear, then apply the relevant ceiling to assess exposure. Schedule 1 separately identifies certain Act provisions that are prescribed civil penalty requirements (reg 5; Schedule 1).

Discretionary nature of monetary outcome: The phraseology “an amount not exceeding” gives the ESC discretion to set penalties below the maximum. The Regulations therefore create the top boundary but not the exact enforced figure. Enforcement decisions will continue to reflect the ESC’s policy and the facts of particular breaches, subject to the statutory criteria in the ESC Act.

Publication and updating of penalty unit values: The Explanatory details state the Treasurer fixes the value of a penalty unit for each financial year under the Monetary Units Act 2004 and that the value must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. That administrative detail governs how the dollar equivalent of any penalty is set each year.

Sunset and temporal enforcement risk: The Regulations will sunset on 19 July 2032 (Endnotes). Enforcement exposure for contraventions occurring before sunset will be governed by the Regulations; after sunset, unless replaced, the tiered ceilings will disappear and the ESC’s penalty powers may be subject to different statutory ceilings.

Practical enforcement mechanism summary: the ESC invokes s 54E of the ESC Act where relevant obligations are contravened; these Regulations supply the ceilings measured in penalty units. A licensee facing enforcement must calculate the dollar equivalent using the current penalty unit value (Monetary Units Act and Explanatory details), and factor in that the ESC can choose any amount up to the prescribed maximum.

The Regulations are integrative rather than standalone; they operate by cross‑reference and depend on several other statutes and instruments.

Essential Services Commission Act 2001 (ESC Act): The Regulations exist to work with the ESC Act’s civil penalty framework. Regulation 5 prescribes that provisions of the Electricity Industry Act 2000 listed in Schedule 1 are civil penalty requirements “for the purposes of the Essential Services Commission Act 2001” (reg 5). Regulations 6 and 7 expressly state the prescribed amounts are “for the purposes of section 54E(c), (d), (g) and (h) of the Essential Services Commission Act 2001” (regs 6-7). That shows the Regulations do not themselves create enforcement powers; they set ceilings that plug into the ESC Act’s enforcement provisions. Procedural rules and rights of appeal under the ESC Act thus remain the operative law for enforcement.

Electricity Industry Act 2000 (the Act): The Regulations are made under s 119 of the Act (reg 2). They reference and list many specific sections of the Act in Schedule 1 and Schedule 2, thereby altering how those provisions are enforced (reg 5; Schedules 1-2). Regulation 5 notes that the Act may itself specify a provision as a civil penalty requirement, and that if the Act ceases to specify such a provision, it is no longer a civil penalty requirement even if it appears in Schedule 2 unless it is in Schedule 1 (reg 5 notes). That maintains the Act’s primacy in creating the underlying civil penalty obligations.

Codes of Practice and Orders: The Regulations list many clauses from the Energy Retail Code of Practice, the Electricity Distribution Code of Practice and the Land Access Code of Practice in Schedule 2 (Tables 1 and 2). Those Codes are made under s 47(1) of the ESC Act (see reg 4 definitions). By attaching civil penalty ceilings to specific code clauses, the Regulations increase the legal force of those clauses: breach of a listed clause can attract a civil penalty via the ESC Act up to the prescribed tier maximum. Orders made under the Electricity Industry Act 2000 are also included in Schedule 2 (for example items labelled “Orders made under the Electricity Industry Act 2000”) and therefore interact similarly with the ESC Act.

Sentencing Act 1991 and Monetary Units Act 2004: The Explanatory details specify penalties are expressed in penalty units as defined in s 110 of the Sentencing Act 1991, and the dollar value is determined under the Monetary Units Act 2004 (Explanatory details). The value for the 2024-25 financial year is given ($197.59). The Monetary Units Act’s annual value‑setting and publication obligations determine the conversion of penalty units to dollars and therefore the actual financial exposure.

Subordinate Legislation Act 1994: The Endnotes record that these Regulations will sunset after ten years under s 5 of the Subordinate Legislation Act 1994 (Endnotes, General information), which affects the Regulations’ longevity and any transition planning for enforcement regimes that depend on these ceilings.

Interpretation of Legislation Act 1984 (ILA): The Endnotes include the standard interpretative matters from the ILA about headings, notes, punctuation and other formatting rules (Endnotes, Interpretation). That affects how the schedules, tables and notes are to be read as part of the statutory instrument.

Other possible statutory interactions: Regulation 6 Note 1 says the civil penalty amount for contravention of a civil penalty requirement that is not tier 1 or tier 2 is the amount specified in the Act or in the ESC Act. That suggests that where other statutory regimes set different penalty limits, those limits continue to operate; these Regulations do not displace them.

Operational interactions: by converting many code clauses into potential civil penalty contraventions, the Regulations create practical intersections with contract law (service level agreements, contractor obligations), insurance law (coverage for regulatory fines), employment law (worker conduct controls), planning and land access statutory regimes (where code clauses touch land access) and utility standards. Those interactions will be determined by the substance of the listed provisions; the Regulations themselves simply label and quantify enforcement exposure.

In sum, the Regulations are a supplemental instrument that sets penalty ceilings for obligations that are otherwise created and procedurally enforced by the Act and the ESC Act, and which interact with monetary conversion and administrative sunset rules set down in other statutes.

The Regulations were made on 19 July 2022 and came into operation on that date (reg 3; Endnotes). Since enactment the Regulations have been amended at least twice, as documented in the Table of Amendments in the Endnotes.

Key amendment instruments and dates:

Electricity Industry (Penalty Regime) Amendment Regulations 2023, S.R. No. 83/2023, made 15 August 2023 and commencing 15 August 2023 (Endnotes, Table of Amendments).
Electricity Industry (Penalty Regime) Amendment Regulations 2024, S.R. No. 104/2024, made 8 October 2024 and commencing 8 October 2024 (Endnotes, Table of Amendments).

Nature of amendments recorded in the text:

Regulation 4’s definition of “Electricity Distribution Code of Practice” was inserted by S.R. No. 83/2023 reg 3 (Reg 4 note).
Regulation 4’s definition of “Land Access Code of Practice” was inserted by S.R. No. 104/2024 reg 3 (Reg 4 note).
Schedule 1 was amended by S.R. No. 104/2024 reg 4 (the Schedule 1 header records that amendment).
Schedule 2 was amended by S.R. No. 83/2023 regs 4, 5 and substituted by S.R. No. 104/2024 reg 5 (Schedule 2 header records those amendments).

What the amendments did in practice:

The 2023 amendments added a definition for the Electricity Distribution Code of Practice and made corresponding adjustments to Schedule 2 (as noted in the Schedule annotation).
The 2024 amendments introduced the Land Access Code of Practice definition and substituted Schedule 2, expanding or reassigning specific clauses across the two tables, and amended Schedule 1 (as indicated by the Schedule annotations).

Administrative notes about style and publication:

The Endnotes include standard interpretative information from the Interpretation of Legislation Act 1984 about headings, notes, punctuation and how legislative items in schedules are to be read. Those are not substantive changes but affect drafting and interpretation (Endnotes, Interpretation of Legislation Act 1984).
The Explanatory details provide the mechanism and a point value example for penalty units (value for the financial year commencing 1 July 2024) (Explanatory details).

Sunset provision:

The Endnotes state the Regulations will sunset on 19 July 2032 (10 years after making) under s 5 of the Subordinate Legislation Act 1994 (Endnotes, General information). That imposes a hard temporal limit unless replaced or renewed.

Practical consequence: the amendment history shows an evolution in scope , notably the inclusion of the Distribution and Land Access Codes of Practice and substitution of the Schedule 2 mapping , meaning regulated parties needed to re‑map obligations and exposures after each amendment date (15 Aug 2023; 8 Oct 2024). Practitioners should check the exact text and the date of the latest substitution to identify which clauses currently attract tiered ceilings.

This statutory instrument’s text and Endnotes do not record any litigation or case law interpreting these Regulations. The Endnotes contain administrative and explanatory material, and the document lists amendment statutory rules, but it does not provide or cite judicial determinations.

What that means for practitioners:

There is no litigation history contained in the Regulations or its Endnotes to rely on for interpretive guidance about contested enforcement, quantum assessment, or procedural challenges to the ESC’s use of the prescribed maxima. Any case law that might arise (for example challenges to whether a particular provision is properly treated as a civil penalty requirement, or disputes about the ESC’s calculation or exercise of penalties under s 54E) would be developed in the courts and is not reflected in this instrument.
Because the Regulations link their prescribed amounts to s 54E of the ESC Act, disputes about the application of s 54E or about the exercise of discretion by the ESC remain the likely locus of future litigation, but the Regulations themselves contain no recorded decisions or judicial guidance.

Practical advice in the absence of litigation history:

Treat the Regulations as the operative ceilings and plan compliance and dispute strategies on a statutory basis (identify obligations listed in Schedule 1 and Schedule 2 and map those to internal risk registers).
Anticipate that litigation, if commenced, will concern issues such as (a) whether the ESC Act’s s 54E was validly invoked in a particular case, (b) the application of the specific listed clause to the facts, or (c) the quantification of penalty amounts within the prescribed tier. However, those are possibilities not recorded in the instrument itself.
Keep an eye on administrative decisions and any early enforcement actions by the ESC, which may generate case law refining how these tiers and mappings are to be interpreted.

Because the text supplies no judicial or tribunal decisions, practitioners should monitor the ESC’s enforcement practice and any emerging decisions in courts or tribunals for interpretive guidance.

This instrument is straightforward in form but contains practical traps that regulated entities and advisers should notice.

Discrepancy between being listed for amount and being designated as a civil penalty requirement: Schedule 2 lists obligations for the purpose of setting penalty amounts, but Schedule 1 (and the Act itself) determines whether a provision is a civil penalty requirement. Regulation 5 Note 2 warns that if the Act ceases to specify a provision as a civil penalty requirement, the provision is not a civil penalty requirement even if it appears in Schedule 2, unless it also appears in Schedule 1. The gotcha is that presence in Schedule 2 alone does not guarantee that the provision is actually a civil penalty requirement at any given time; the Act’s text must be checked (reg 5, reg 5 notes).

Tier allocation and substantial differences in exposure: The two tiers are numerically distant. Tier 1 maxima (60,000 penalty units) are substantially larger than tier 2 maxima (8,000 penalty units) (regs 6-7; Schedule 2). A provision’s allocation to Table 1 versus Table 2 drastically alters a licensee’s worst‑case exposure. Advisers must not assume that all code breaches attract the same ceiling; the Schedule cross‑reference is critical.

Licensee vs non‑licensee nuance: Regulation 6 Note 2 says for persons other than licensees the civil penalty amount is what the Act or ESC Act specifies. That can create asymmetry in exposure across parties to the same conduct. For example, a contractor may not be subject to the same ceiling as the licensee, or the Act may provide different maxima for non-licensees. You must check whether you are a licensee or not, and where the Act sets amounts for non-licensees (reg 6 note 2).

Conversion to dollars changes over time: The dollar value of a penalty unit changes yearly under the Monetary Units Act 2004 and is published by the Treasurer (Explanatory details). Using an outdated penalty unit value can materially understate risk. The Explanatory details give the 1 July 2024 value but that will change; always use the current published value when calculating exposure.

Rounding and calculation procedure: The Explanatory details state calculated penalties may be rounded to the nearest dollar; this is an administrative detail that can matter where penalties are large and marginal rounding affects settlement calculations (Explanatory details).

Substitution and amendment timing: Schedule 2 was substituted by S.R. No. 104/2024 (Endnotes). Obligations listed in the prior version may have shifted tier allocation or been added/removed. A licence holder that relied on an earlier schedule could be exposed to a newly elevated ceiling. Always check the date‑stamped current version and the commencement dates of amendments (Endnotes, Table of Amendments).

Broad listing of code clauses: Schedule 2 lists many granular clauses of the Energy Retail Code, Distribution Code and Land Access Code. A single clause number can contain multiple obligations in practice; listing a clause as a civil penalty requirement converts potentially operational minutiae into monetary risk. Practitioners must parse each referenced clause in the underlying Codes to understand the scope of the obligation.

“Not exceeding” does not equal typical outcomes: The maximum is often used in draft instruments as a theoretical cap. But the practical enforcement amount may differ. The ESC retains discretion to impose a lower figure. Conversely, the ESC may aggregate different breaches, use per‑day penalties or multiple contraventions to increase exposure. The Regulations set the ceiling but not the pattern of enforcement.

Sunset date: The Regulations will sunset on 19 July 2032 (Endnotes). Parties planning long‑term compliance frameworks should account for potential legislative change before that date and for transitions if the ceiling regime is changed or not renewed.

Dependencies on the Act’s designations: Because the Act itself can add or remove civil penalty designations and those changes can override Schedule 2 unless Schedule 1 also lists the provision (reg 5 note 2), there is a timing risk when an Act amendment is made. Always check the Electricity Industry Act 2000 for current designations in addition to consulting these Regulations.

Absence of procedural detail: The Regulations provide ceilings but not procedural enforcement detail. Practitioners must look to the ESC Act and the Act for procedural fairness, notices, remediation credits, aggregation rules, or other enforcement mechanics.

In summary, the “gotchas” are primarily about mapping and timing: checklist the underlying Act and Codes, confirm licence status, use current penalty unit values, and track amendments and substitutions to Schedule 2.

Step 1 , Inventory and mapping: Immediately cross‑reference your organisation’s obligations with Schedule 1 and Schedule 2 as substituted most recently. The Regulations list items by statute section numbers and by clause numbers in the Energy Retail Code of Practice, Electricity Distribution Code of Practice and Land Access Code of Practice. Create a compliance register that records for each obligation: (a) source (Act section / licence condition / code clause), (b) whether it appears in Schedule 1 (prescribed as a civil penalty requirement under the Act) and/or Schedule 2 (and if so which Table and item), (c) date of any relevant Schedule substitution or amendment (see Endnotes). This mapping step is essential because the Regulations work by reference , correct mapping identifies exposure.

Step 2 , Quantify financial exposure: For each mapped obligation, determine its tier. Use the current value of a penalty unit (Monetary Units Act 2004, Treasurer’s annual fix published before 1 June) to convert penalty units to dollar maxima (Explanatory details). For example, using the value stated for the 2024-25 year ($197.59), tier 1 maximum = $11,855,400 and tier 2 maximum = $1,580,720 (Explanatory details; regs 6-7). Document the calculation and rounding method (the Explanatory details require rounding to the nearest dollar).

Step 3 , Prioritise risk controls by exposure and likelihood: Given the large disparity between tier 1 and tier 2 maxima, prioritise remedial action for obligations in Table 1. For each obligation, assess likelihood of breach and operational controls in place. Where a clause is technical (e.g. network safety or connection standards in the Distribution Code) ensure operational protocols, training, recordkeeping and audits meet the clause’s demands. Where a clause is consumer‑facing (e.g. retail billing or hardship processes), ensure staff training, scripts and complaint handling align with the code text.

Step 4 , Strengthen recordkeeping and evidence trails: Enforcement will turn on whether the ESC can establish a contravention; good contemporaneous records reduce exposure and increase the chance of mitigation. Where code clauses require specific communications, notices, or land access arrangements, retain dated copies and logs. Make sure contractors and subcontractors are contractually obligated to keep and produce records that the licensee will need in enforcement settings.

Step 5 , Contractual allocation and insurance: Review contracts with third parties, contractors and service providers to allocate responsibility for compliance with listed clauses. Consider indemnities for breaches that arise from third‑party conduct and check whether your insurer covers regulatory fines and penalties; many policies exclude fines or limit cover for regulatory breaches, so confirm coverage and policy wording. Given the tier 1 maxima are potentially material to corporate solvency, ensure that boards and senior management have been briefed and directors’ liability considerations addressed.

Step 6 , Procedure for breach reporting and remediation: Develop internal protocols that require prompt reporting of potential contraventions to legal/compliance functions. Establish templates for internal investigations and for engagement with the ESC (should the ESC be notified or commence an investigation). Early remediation steps and voluntary disclosure arrangements (if permitted by the ESC Act and ESC policy) can materially affect outcome; follow any disclosure pathways set out in the ESC Act or ESC guidance.

Step 7 , Governance and board oversight: Given the financial magnitude of tier 1 penalties, ensure board reporting on regulatory risk includes a register of obligations in Schedule 1 and Schedule 2, compliance trends, audit findings, and remediation status. Directors should be informed of potential exposure in dollar terms (convert penalty units using current annual value).

Step 8 , Update compliance manuals and training: Amend compliance manuals to reflect the tier assignments and train operational staff on the particular clause requirements (for example, retail fault‑handling, land access procedures, network connection standards). Make compliance with code clause obligations a part of performance metrics where appropriate.

Step 9 , Monitor legislative and schedule changes: The instrument has been amended since enactment (S.R. No. 83/2023; S.R. No. 104/2024) and will sunset on 19 July 2032 (Endnotes). Put in place a monitoring trigger to capture any future substitutions or amendments to Schedule 2 and any changes to the Electricity Industry Act that may add or remove civil penalty designations (reg 5 note 2). Confirm the commencement dates of amendments and the exact textual version in force.

Step 10 , Legal review and pre‑enforcement engagement: Before contesting enforcement actions, obtain legal advice on procedural defences available under the ESC Act and the Electricity Industry Act. Where appropriate, engage early with the ESC to clarify compliance expectations or to negotiate remediation plans. Because the Regulations set ceilings only, the ESC’s discretion remains; settlement negotiation and mitigation depend on specifics under the ESC Act.

Operational checklist (practical, immediate actions):

Produce a one‑page dashboard listing all Schedule 2 items applicable to your operations and their tier, with dollar maxima using the current penalty unit value.
Audit compliance against high‑risk clauses (Tier 1) on a short cadence (quarterly until stable).
Ensure contractors’ obligations mirror the code duties and that contractual data provisions permit rapid evidentiary access.
Validate insurance cover for regulatory fines and director liabilities and update if necessary.
Put in place a breach notification protocol and a remediation playbook for the ESC’s use.

By following a mapped, documented and governance‑led approach, regulated entities can convert the abstract exposure set out in these Regulations into operational compliance tasks, evidence trails, contractual protections and board oversight that reduce the probability and magnitude of regulatory penalties.

Electricity Industry (Penalty Regime) Regulations 2022

Plain English Summary

Deep Dive

What it does

Current sections

Electricity Industry (Penalty Regime) Regulations 2022

Source text: opening excerpt

1 Electricity Industry (Penalty Regime) Regulations 2022

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply