Essential Services Commission Act 2001

Division 5—Offences 74

39ZC Refusal or failure to comply with requirement 74

39ZD Protection against self-incrimination 75

39ZE Offence to hinder or obstruct inspector 75

39ZF Offence to impersonate inspector 75

Division 6—Miscellaneous 76

39ZG Requirement to assist inspector during entry 76

39ZH Entry to be reported to the Commission 76

39ZI Register of exercise of powers of entry 76

39ZJ Complaints 76

Division 7—When inspector must not exercise search and seizure powers or apply for search warrants 77

39ZK Matters about which inspectors must not exercise search and seizure powers or apply for search warrants 77

Part 4C—Court may order compliance with requirements 78

39ZL Powers of court if requirement of Commission or inspector not complied with 78

Part 5—Inquiries and reports 79

40 Inquiry by Commission 79

41 Minister may refer matter for inquiry 79

41A Minister may limit use of powers under section 37 80

42 Notice of inquiry 80

43 Conduct of inquiry 81

45 Reports 82

46 Special reports 83

Part 6—Codes of Practice 84

47 Power to make Codes of Practice 84

48 Power to apply, adopt or incorporate 87

49 Publication of Codes of Practice and amendments 88

50 Automatic revocation of Codes of Practice after 10 years 88

Part 7—Enforcement 89

Division 1—Contravention order and related orders 89

Subdivision 1—Contravention order 89

53 Contravention order 89

Subdivision 2—Civil penalty orders 90

54 Civil penalty orders 90

54A Civil penalty amount—energy licensees 91

54B Civil penalty amount—officers of energy licensees 92

54C Civil penalty amount—other regulated entities 93

54D Civil penalty amount—officers of other regulated entities 94

54E How other civil penalty amounts are to be provided 94

Subdivision 3—Adverse publicity orders and other orders 96

54F Adverse publicity orders 96

54G Orders requiring provision of services, education, etc. 97

54H Compensation and other orders 98

Subdivision 4—Matters related to proceedings for contravention order 99

54I Proceedings under this Division are civil proceedings 99

54IA Time period to commence civil proceeding under this Division 99

54J Authority to commence proceedings 100

54K Civil proceedings after criminal proceedings 100

54L Criminal proceeding during proceeding for civil penalty order 100

54M Criminal proceedings commenced after proceeding for contravention order 101

54N Evidence given or produced during proceeding for contravention order 101

54O Conduct contravening more than one civil penalty requirement 101

54P Multiple contraventions of civil penalty requirements 102

54Q Multiple proceedings for contravention order to be heard together 102

54R Jurisdictional limit of Magistrates' Court does not apply to civil penalty order 102

Division 2—Penalty notice regime 103

54S Power to serve a penalty notice 103

54T Notice penalties 103

54U How other notice penalty amounts are to be provided 104

54V Form of penalty notice 106

54W Commission must not commence certain proceedings while penalty notice on foot or until time for payment has expired 108

54X Late payment 109

54Y Withdrawal of penalty notice 110

54Z Refund of notice penalty 110

54ZA Payment expiates contravention 110

54ZB Payment not to have certain consequences 111

54ZC Multiple contraventions 112

Division 3—Enforceable undertakings 112

54ZD Enforceable undertakings 112

54ZE Enforcement of enforceable undertakings 113

54ZF Monetary benefits order—contravention of enforceable undertaking 113

Division 4—Compliance notices 114

54ZG Compliance notice 114

Division 5—Injunctions 115

54ZH Injunctions 115

54ZI Consent injunctions 119

54ZJ Interim injunctions 119

54ZK Variation and discharge of injunctions 119

54ZL Undertakings as to damages and costs 119

Division 6—Declarations 120

54ZM Declarations 120

Division 7—Other persons involved in contraventions of civil penalty requirements 121

54ZN Persons involved in contraventions 121

Division 8—Register of Enforcement Action 122

54ZO Register of Enforcement Action 122

Part 7A—Funds 124

Division 1—Essential Services Commission Enforcement Fund 124

54ZP Essential Services Commission Enforcement Fund 124

54ZQ Payments into the Essential Services Commission Enforcement Fund 124

54ZR Payments out of the Essential Services Commission Enforcement Fund 125

54ZS Recovery of amounts ordered to be paid into the Essential Services Commission Enforcement Fund 126

Division 2—Essential Services Commission Operating Fund 127

54ZT Essential Services Commission Operating Fund 127

54ZU Payments into the Essential Services Commission Operating Fund 127

54ZV Payments out of the Essential Services Commission Operating Fund 128

Part 7B—Review by VCAT 129

55 VCAT review 129

56 Proceedings for review by VCAT 134

56A Commission to give effect to VCAT decisions 137

Part 7C—General 138

Division 1—Personal liability and contraventions by bodies corporate and others 138

60 Personal liability 138

60A Contraventions of this Act and relevant legislation by bodies corporate 138

60B Conduct by officers, employees or agents 139

Division 2—Disclosure of information, information sharing and offences 142

60C Restriction on disclosure of confidential information 142

60D Commission must not disclose exempt freedom of information documents 146

60E Information sharing arrangements 147

61 Disclosure of information an offence 151

61A Offence to give false or misleading information or documents 152

61B Monetary benefits order—false and misleading information offence to Commission 153

Division 3—Miscellaneous 154

62 Proceedings 154

62A Who can commence proceedings for offences? 154

62B Determining amount to be paid under monetary benefits orders and certain civil penalty orders 156

62C Court may grant relief from liability 157

63 Supreme Court—limitation of jurisdiction 158

64 Service of documents 158

65 Regulations 159

66 Review 161

Part 8—Transitional 162

67 Repeal of the Office of the Regulator-General Act 1994 162

68 Commission is successor in law 163

69 Transitional provision—uncompleted appeals 164

70 Enforcement 165

71 Enforcement orders 165

72 Energy industry penalty notices 165

73 Information gathering 166

74 Information sharing 167

75 Chief executive officer 168

76 Codes of Practice 169

Endnotes 172

1 General information 172

2 Table of Amendments 174

3 Explanatory details 181

Version No. 071

Essential Services Commission Act 2001

No. 62 of 2001

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

S. 1 amended by No. 49/2002 s. 18, substituted by No. 15/2008 s. 3.

1 Purpose

The purpose of this Act is to enable the Essential Services Commission to perform the regulatory and advisory functions that are conferred on the Commission in a manner that provides incentives for dynamic, productive and allocative efficiency and promotes the long term interests of Victorian consumers.

2 Commencement

This Act comes into operation on 1 January 2002.

3 Definitions

In this Act—

S. 3 def. of annual turnover inserted by No. 41/2021 s. 6(1).

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

S. 3 def. of appeal repealed by No. 21/2019 s. 4(b).

S. 3 def. of appeal panel repealed by No. 21/2019 s. 4(b).

S. 3 def. of application inserted by No. 21/2019 s. 4(a).

application means an application under section 55;

Chairperson means the Commissioner appointed as Chairperson under section 18;

S. 3 def. of civil penalty order inserted by No. 41/2021 s. 6(1).

civil penalty order means an order made under section 54(1);

S. 3 def. of civil penalty requirement inserted by No. 41/2021 s. 6(1), amended by No. 6/2024 s. 23(a).

civil penalty requirement means any of the following—

(a) a determination made by the Commission under—

(i) this Act; or

(ii) relevant legislation (other than a determination made under Division 1A or 3 of Part 6 of the Commercial Passenger Vehicle Industry Act 2017);

(b) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation;

(c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4;

(d) a provision of a Code of Practice that is—

(i) prescribed as a civil penalty requirement; or

(ii) specified in the Code of Practice as a civil penalty requirement;

(e) a provision of this Act that is—

(i) specified by this Act as a civil penalty requirement; or

(ii) prescribed as a civil penalty requirement;

(f) a provision of relevant legislation (other than a provision that includes a statutory condition) that is—

(i) specified by the relevant legislation as a civil penalty requirement for the purposes of this Act; or

(ii) prescribed in regulations made under the relevant legislation as a civil penalty requirement for the purposes of this Act;

(g) the following Orders—

(i) an Order made under section 13(1), 17, 40D(1) or 40E(1) of the Electricity Industry Act 2000;

(ii) the Wimmera and Colac Tariff Order within the meaning of section 20 of the Gas Industry Act 2001;

(iii) an Order made under section 21(1), 24, 48C(1) or 48D(1) of the Gas Industry Act 2001;

S. 3 def. of Code of Practice inserted by No. 49/2015 s. 13.

Code of Practice means a Code of Practice applying under Part 6 or relevant legislation;

Commission means the Essential Services Commission established under section 7;

S. 3 def. of Commission port Pricing Order decision inserted by No. 10/2016 s. 168(b).

Commission port Pricing Order decision means a decision of the Commission made under a provision of a port Pricing Order that is prescribed;

Commissioner means the Chairperson or an additional Commissioner appointed under section 21;

S. 3 def. of compliance notice inserted by No. 41/2021 s. 6(1).

compliance notice means a notice under section 54ZG;

S. 3 def. of computer inserted by No. 41/2021 s. 4.

computer means any electronic device for storing or processing information;

S. 3 def. of conduct inserted by No. 41/2021 s. 6(1).

conduct, in relation to a contravention, includes a refusal or failure to do something;

S. 3 def. of contravention order inserted by No. 41/2021 s. 6(1).

contravention order means an order made under section 53(1) or (2);

S. 3 def. of Council inserted by No. 65/2015 s. 10, amended by No. 9/2020 s. 390(Sch. 1 item 36).

Council has the same meaning as in the Local Government Act 2020;

S. 3 def. of empowering instrument amended by Nos 48/2003 s. 11(1), 86/2004 s. 5, 10/2016 s. 168(a), 6/2019 s. 6.

empowering instrument means—

(a) the relevant legislation; or

(b) an Order made under section 4; or

(c) the Tariff Order; or

(ca) any Order made under section 21 of the Gas Industry Act 2001; or

(d) any Order made under Division 2 or 2A of Part 2 of the Electricity Industry Act 2000; or

(e) a Water Industry Regulatory Order made under Part 1A of the Water Industry Act 1994; or

(f) a port Pricing Order;

S. 3 def. of energy licence inserted by No. 49/2015 s. 13.

energy licence means—

(a) a licence issued under Part 2 of the Electricity Industry Act 2000; or

(b) a licence issued under Part 3 of the Gas Industry Act 2001;

S. 3 def. of energy licensee inserted by No. 49/2015 s. 13.

energy licensee means the holder of an energy licence;

S. 3 def. of energy retailer inserted by No. 49/2015 s. 13.

energy retailer means—

(a) a retailer within the meaning of the Electricity Industry Act 2000; or

(b) a gas retailer within the meaning of the Gas Industry Act 2001;

S. 3 def. of enforceable undertaking inserted by No. 41/2021 s. 6(1).

enforceable undertaking means an undertaking given under section 54ZD;

S. 3 def. of enforcement action inserted by No. 49/2015 s. 13, repealed by No. 41/2021 s. 6(3).

S. 3 def. of essential service amended by Nos 43/2013 s. 31(1)(2), 63/2017 s. 21(Sch. 1 item 4.1), 34/2022 s. 68.

essential service means a service (including the supply of goods) provided by—

(a) the electricity industry;

(b) the gas industry;

(c) the ports industry;

(d) the grain handling industry;

(e) the rail industry;

(f) the water industry;

(fa) the non-cash payment transaction industry;

(fb) the commercial passenger vehicle industry in relation to applicable unbooked services within the meaning of Division 1A of Part 6 of the Commercial Passenger Vehicle Industry Act 2017;

(fc) the VEET scheme within the meaning of the Victorian Energy Efficiency Target Act 2007;

(g) any other industry prescribed for the purpose of this definition;

S. 3 def. of Essential Services Commission Enforcement Fund inserted by No. 41/2021 s. 6(1).

Essential Services Commission Enforcement Fund means the fund established by section 54ZP;

S. 3 def. of Essential Services Commission Operating Fund inserted by No. 41/2021 s. 6(1).

Essential Services Commission Operating Fund means the fund established by section 54ZT;

S. 3 def. of essential services requirement inserted by No. 41/2021 s. 4.

essential services requirement means any of the following—

(a) a provision of this Act;

(b) a provision of relevant legislation (other than a provision that includes a statutory condition) in respect of which the Commission has powers or functions;

(c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation;

(d) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4;

(e) a provision of a Code of Practice;

S. 3 def. of information gathering notice inserted by No. 41/2021 s. 4.

information gathering notice means a notice under section 36(1) or 37(1);

S. 3 def. of inspector inserted by No. 41/2021 s. 4.

inspector means a person appointed under section 39M;

S. 3 def. of insurance inserted by No. 49/2002 s. 19,

S. 3 def. of insurance business inserted by No. 49/2002 s. 19,

S. 3 def. of insurance industry inserted by No. 49/2002 s. 19,

S. 3 def. of monetary benefits inserted by No. 41/2021 s. 6(1).

monetary benefits means monetary, financial or economic benefits, including any monetary, financial or economic benefit a person acquires or accrues by avoiding or delaying the person's compliance with an information gathering notice, an enforceable undertaking or a civil penalty requirement to which the person's offence or contravention relates;

S. 3 def. of monetary benefits order inserted by No. 41/2021 s. 6(1).

monetary benefits order means an order made under section 54ZF or 61B;

S. 3 def. of non-cash payment transaction industry inserted by No. 63/2017 s. 21(Sch. 1 item 4.2), amended by No. 21/2019 s. 19.

non-cash payment transaction industry has the same meaning as in Division 3 of Part 6 of the Commercial Passenger Vehicle Industry Act 2017;

S. 3 def. of notice penalty inserted by No. 41/2021 s. 6(1).

notice penalty means a penalty set out in section 54T;

S. 3 def. of officer inserted by No. 41/2021 s. 6(1).

officer means an officer within the meaning of section 9 of the Corporations Act;

Order means an Order of the Governor in Council published in the Government Gazette;

S. 3 def. of penalty notice inserted by No. 41/2021 s. 6(1).

penalty notice means a notice served under section 54S;

S. 3 def. of port Pricing Order inserted by No. 10/2016 s. 168(b).

port Pricing Order means an Order made under section 49A of the Port Management Act 1995;

prescribed agency means a person, body or agency which is prescribed for the purposes of section 15;

prescribed body means a person, body or agency which is prescribed for the purposes of section 16;

S. 3 def. of Register of Enforcement Action inserted by No. 41/2021 s. 6(1).

Register of Enforcement Action means the register established under section 54ZO(1);

S. 3 def. of Registrar repealed by No. 21/2019 s. 4(b).

S. 3 def. of regulated entity substituted by No. 41/2021 s. 6(2), amended by No. 33/2021 s. 7(ab)
(as amended by No. 41/2021 s. 90).

regulated entity—

(a) means an entity operating in a regulated industry; and

(b) without limiting paragraph (a), includes—

(i) a person who is exempt under section 17 of the Electricity Industry Act 2000 from a requirement to hold a licence and who is required to comply with a Code of Practice as a condition of that exemption; and

(ii) a person who is exempt under section 24 of the Gas Industry Act 2001 from a requirement to hold a licence or obtain registration and who is required to comply with a Code of Practice as a condition of that exemption; and

(iia) a person granted a trial waiver; and

(iii) any other person or class of person prescribed as a regulated entity for Divisions 1 and 2 of Part 7 and section 54ZN for the purposes of this definition;

regulated industry means an industry which provides an essential service and—

(a) is operating under relevant legislation which is specified by the relevant legislation as a regulated industry; or

(b) is declared by an Order under section 4 to be a regulated industry;

relevant legislation means legislation which is specified by that legislation as being relevant legislation;

S. 3 def. of statutory condition inserted by No. 41/2021 s. 6(1).

statutory condition means—

(a) a condition that is set out in relevant legislation which the relevant legislation states is included as a condition of a licence; and

(b) a condition that is deemed or taken to be included as a condition of a licence under relevant legislation;

Example

For example, section 36A of the Electricity Industry Act 2000 sets out a number of conditions to which a licence issued under that Act is subject.

S. 3 def. of statutory insurer inserted by No. 49/2002 s. 19,

S. 3 def. of Tariff Order amended by Nos 43/2013 s. 31(3), 63/2017 s. 21(Sch. 1 item 4.4), 33/2021 s. 7(a).

Tariff Order has the same meaning as in the Electricity Industry Act 2000;

S. 3 def. of taxi non-cash payment transaction industry inserted by No. 43/2013 s. 31(4), repealed by No. 63/2017 s. 21(Sch. 1 item 4.3).

S. 3 def. of trial waiver inserted by No. 33/2021 s. 7(b), amended by No. 6/2024 s. 23(b).

trial waiver means an exemption granted under section 54 of the Electricity Industry Act 2000 or section 55 of the Gas Industry Act 2001.

4 Order declaring a regulated industry

(1) Except as otherwise provided in this section, the Governor in Council may by Order declare an industry to be a regulated industry after having regard to—

(a) the existence of significant and non-transitory market power;

(b) the existence of regulatory benefits which exceed the administration and compliance costs of becoming a regulated industry;

(c) the non-existence of economic regulation specific to that industry by another body under any other State or Commonwealth legislation.

(2) The Order may declare—

(a) which prices are to be prescribed prices in respect of a regulated industry;

(b) which goods and services are to be prescribed goods and services in respect of a regulated industry;

S. 4(2)(c) amended by No. 15/2008 s. 4(1).

(c) powers that are to be exercised by the Commission in respect of a regulated industry under section 34;

S. 4(2)(d) inserted by No. 15/2008 s. 4(2).

(d) decisions or classes of decisions of the Commission under the powers conferred by the Order that are to be determinations for the purposes of this Act.

(3) This section does not apply to the electricity industry or to the Electricity Industry Act 2000.

(4) Subsection (3) does not affect any Order made before 20 June 1995.

(5) This section does not apply to the gas industry or to the Gas Industry Act 2001.

(6) Subsection (5) does not affect any Order made before 1 December 1998.

(7) This section does not apply to—

(a) railways and rail infrastructure;

(b) tramways and tram infrastructure.

S. 4(8) inserted by No. 48/2003 s. 11(2).

(8) This section does not apply to the regulated water industry within the meaning of section 4A of the Water Industry Act 1994.

S. 4(9) inserted by No. 10/2016 s. 169.

(9) While a port Pricing Order is in effect, this section does not apply to—

(a) the ports industry in the port of Melbourne within the meaning of the Port Management Act 1995; or

(b) the Port Management Act 1995 in respect of the port of Melbourne.

5 Interpretation and application of Act

(1) Subject to subsection (2) and sections 33(1) and 34(3), if there is any inconsistency between this Act and any other Act, the provisions of this Act prevail.

Note to s. 5(1) inserted by No. 41/2021 s. 10.

Other Acts, including relevant legislation, may provide that, despite this subsection, the relevant legislation prevails to the extent of any inconsistency with this Act. See, for example, section 4AA of the Water Industry Act 1994.

(2) Subject to subsection (3), if the Commission considers that there is a conflict between the objectives specified in or under this Act and the objectives specified in the relevant legislation under which a regulated industry operates, the Commission must perform its functions and exercise its powers in such a manner as the Commission considers best achieves the objectives specified in the relevant legislation.

(3) Subsection (2) does not apply to the Electricity Industry Act 2000 or to the Gas Industry Act 2001.

(4) Except as otherwise specifically provided, this Act does not apply to or in respect of an essential service unless the essential service is provided by a regulated industry.

6 Crown to be bound

This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2—Essential Services Commission

7 Essential Services Commission

(1) There is established a body corporate called the Essential Services Commission.

(2) The Commission—

(a) has perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name; and

(d) is capable of taking, purchasing, leasing, holding, selling, exchanging and disposing of real and personal property for the purposes of this Act; and

(e) may do and suffer all acts and things which a body corporate may by law do and suffer and which are necessary or convenient for the purposes of this Act.

(3) All courts must take judicial notice of the seal of the Commission affixed to a document and, until the contrary is proved, must presume that it was duly affixed.

(4) The common seal of the Commission must be kept in such custody as the Commission directs and must not be used except as authorised by the Commission.

S. 8 substituted by No. 15/2008 s. 5.

8 Objective of the Commission

(1) In performing its functions and exercising its powers, the objective of the Commission is to promote the long term interests of Victorian consumers.

(2) Without derogating from subsection (1), in performing its functions and exercising its powers in relation to essential services, the Commission must in seeking to achieve the objective specified in subsection (1) have regard to the price, quality and reliability of essential services.

S. 8A inserted by No. 15/2008 s. 5.

8A Matters which the Commission must have regard to

(1) In seeking to achieve the objective specified in section 8, the Commission must have regard to the following matters to the extent that they are relevant in any particular case—

(a) efficiency in the industry and incentives for long term investment;

(b) the financial viability of the industry;

(c) the degree of, and scope for, competition within the industry, including countervailing market power and information asymmetries;

(d) the relevant health, safety, environmental and social legislation applying to the industry;

(e) the benefits and costs of regulation (including externalities and the gains from competition and efficiency) for—

(i) consumers and users of products or services (including low income and vulnerable consumers);

(ii) regulated entities;

(f) consistency in regulation between States and on a national basis;

(g) any matters specified in the empowering instrument.

(2) Without derogating from section 8 or subsection (1), the Commission must also when performing its functions and exercising its powers in relation to a regulated industry do so in a manner that the Commission considers best achieves any objectives specified in the empowering instrument.

9 Commission represents Crown

The Commission represents the Crown.

10 Functions of the Commission

The functions of the Commission are—

(a) to perform such functions as are conferred by this Act and the relevant legislation under which a regulated industry operates;

(b) to advise the Minister on matters relating to the economic regulation of regulated industries, including reliability issues;

(c) when requested by the Minister to do so, to conduct an inquiry into any systemic reliability of supply issues related to a regulated industry or other essential service specified by the Minister in the request;

(d) to conduct inquiries and report under Part 5 on matters relating to regulated industries;

S. 10(da) inserted by No. 41/2021 s. 11.

(da) to make, amend and revoke Codes of Practice under Part 6;

(e) to make recommendations to the Minister as to whether an industry which provides an essential service should become a regulated industry or whether a regulated industry should continue to be a regulated industry;

(f) to conduct public education programs—

(i) for the purpose of promoting its objectives under this Act and the relevant legislation; and

(ii) in relation to significant changes in the regulation of a regulated industry;

(g) to advise the Minister in relation to any other matter referred to the Commission by the Minister;

S. 10(h) amended by No. 32/2002 s. 25(a).

(h) to administer this Act;

S. 10(i) inserted by No. 32/2002 s. 25(b), amended by Nos 72/2006 s. 115(a), 6/2010 s. 203(1)(Sch. 6 item 20) (as amended by No. 45/2010 s. 22), 21/2019 s. 15.

(i) to perform the functions conferred on the Commission by the Commercial Passenger Vehicle Industry Act 2017;

S. 10(j) inserted by No. 72/2006 s. 115(b), amended by No. 70/2007 s. 77(a).

(j) to perform the functions conferred on the Commission by the Victorian Renewable Energy Act 2006;

S. 10(k) inserted by No. 70/2007 s. 77(b), amended by No. 40/2011 s. 23(1).

(k) to perform the functions conferred on the Commission by the Victorian Energy Efficiency Target Act 2007;

S. 10(ka) inserted by No. 65/2015 s. 11, amended by No. 30/2022 s. 42(1).

(ka) to perform the functions conferred on the Commission by Part 8 or 8A of the Local Government Act 1989;

S. 10(kb) inserted by No. 9/2020 s. 387, repealed by No. 30/2022 s. 42(2).

S. 10(l) inserted by No. 40/2011 s. 23(2), amended by Nos 62/2001 s. 66B(a), 63/2011 s. 7(a).

(l) to perform the functions conferred on the Commission by the Accident Towing Services Act 2007.

S. 10(la) inserted by No. 58/2012 s. 92,
repealed by No. 58/2012 s. 134.

S. 10(lb) inserted by No. 81/2012 s. 113(1), repealed by No. 81/2012 s. 113(2).

S. 10(m) inserted by No. 63/2011 s. 7(b), repealed by No. 62/2001 s. 66B(b).

S. 10AAA inserted by No. 21/2019 s. 14.

10AAA Reporting on regulated industry market structure and performance

Without limiting section 10 but subject to this Act and any empowering instrument, the Commission may publicly report on the market structure and performance of a regulated industry.

S. 10AA inserted by No. 49/2015 s. 14, substituted by No. 41/2021 s. 7.

10AA Commission's functions in relation to compliance and enforcement

Without limiting section 10 or relevant legislation, the functions of the Commission include—

(a) to monitor and report on compliance by persons with this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements; and

(b) to investigate contraventions or possible contraventions by persons of this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements; and

(c) to commence and conduct proceedings in relation to contraventions by persons of this Act, relevant legislation in respect of which the Commission has powers or functions and civil penalty requirements.

S. 10AAB inserted by No. 6/2019 s. 7.

10AAB Commission's functions in relation to the retail energy market

Without limiting section 10(a), the Electricity Industry Act 2000 or the Gas Industry Act 2001, the functions oftheCommission under this Act includetomonitor and report on the competitiveness and efficiency of the Victorian retail markets for electricity andgas.

S. 10A inserted by No. 49/2002 s. 20, repealed by No. 15/2008 s. 6(1), new s. 10A inserted by No. 63/2011 s. 8, amended by No. 41/2021 s. 12, repealed by No. 62/2001 s. 66C.

S. 10B inserted by No. 49/2002 s. 20, repealed by No. 15/2008 s. 6(1).

S. 10C inserted by No. 72/2006 s. 116, amended by No. 41/2021 s. 13.

10C Commission's functions in relation to renewable energy

Sections 8, 14, 15, 16, 29 and 30 and Parts 3, 4, 4A, 4B, 4C, 5, 6, 7, 7B and 7C (other than sections 60 and 64) do not apply to the functions of the Commission referred to in section 10(j).

S. 10D inserted by No. 70/2007 s. 78, amended by Nos 41/2021 s. 14, 12/2023 s. 11.

10D Commission's functions in relation to energy efficiency

Sections 8, 14, 15, 16, 29 and 30 and Parts 3, 4, 4A, 4B, 4C, 5, 6, 7B and 7C (other than sections 60, 60A, 60B and 64) do not apply to the functions of the Commission referred to in section 10(k).

S. 10E inserted by No. 65/2015 s. 12.

10E Commission's functions in relation to Councils

(1) The Commission has the following functions in relation to Councils—

(a) monitoring and reviewing Councils' compliance with the caps set under Part 8A of the Local Government Act 1989;

(b) assessing the outcomes as a result of general Orders and special Orders made under Part 8A of the Local Government Act 1989;

(c) identifying trends across the local government sector arising from the caps, and any other impacts of the caps on the sector.

(2) The Commission must prepare an annual report on Councils' compliance with the caps.

(3) The Commission must prepare a biennial report containing—

(a) an assessment of outcomes as a result of general Orders and special Orders made under Part 8A of the Local Government
Act 1989; and

(b) the identification of any trends across the local government sector arising from the caps, and of any other impacts of the caps on the sector.

(4) A report under subsection (2) or (3) must be published on the Commission's internet site.

(5) The Commission must publish notice of the publication of a report under subsection (2) or (3) in the Government Gazette and in a newspaper generally circulating in Victoria as soon as is practicable after the report is published.

(6) A notice under subsection (5) must specify a place where copies of the report are available for inspection.

(7) In performing its functions and exercising its powers under this section and the Local Government Act 1989, the objective of the Commission is to promote the purposes of Part 8A of the Local Government Act 1989.

11 Powers of the Commission

(1) Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and to enable it to achieve its objectives under this Act and under relevant legislation.

(2) Without derogating from subsection (1), the Commission also has such powers as may be conferred on the Commission by the relevant legislation under which a regulated industry operates.

S. 12 substituted by No. 75/2004 s. 3.

12 Commission not subject to direction or control

Except as provided by or under this Act or any other Act, the Commission is not subject to the direction or control of the Minister.

13 Commission may publish statements and guidelines

The Commission may publish statements and guidelines relating to the performance of its functions and the exercise of its powers.

14 Commission must publish Charter

S. 14(1) amended by No. 15/2008 s. 7.

(1) The Commission must develop and publish a Charter of Consultation and Regulatory Practice including guidelines relating to processes for making determinations and other regulatory decisions and conducting inquiries.

(2) The Charter of Consultation and Regulatory Practice—

(a) must include such matters as are prescribed; and

(b) may include any other matters that the Commission considers appropriate.

15 Consultation

(1) This section applies to the Commission and to prescribed agencies for the purpose of ensuring that—

(a) the regulatory and decision making processes of the Commission and prescribed agencies are closely integrated and better informed; and

(b) overlap or conflict between existing and proposed regulatory schemes is avoided.

(2) In this section prescribed agency means a person, body or agency which—

(a) has functions or powers under relevant health, safety, environmental or social legislation applying to a regulated industry; and

(b) is prescribed for the purposes of this section.

(3) The Commission must as early as practicable consult with a relevant prescribed agency—

(a) in the making of a determination; and

(b) in the conduct of an inquiry, after first consulting with the Minister; and

(c) in preparing and reviewing the Charter of Consultation and Regulatory Practice.

(4) If requested in writing to do so by the Commission, a prescribed agency must consult with the Commission—

(a) in relation to any matter specified by the Commission which is relevant to the objectives or functions of the Commission under this Act and under relevant legislation; or

(b) in respect of a matter specified by the Commission which may impact on a regulated industry.

(5) A prescribed agency must ensure that consultation occurs as early as practicable in the regulatory, advisory or decision making processes of the prescribed agency.

(6) The requirements under this section are in addition to any other requirements or processes under any other legislation or regulatory scheme.

16 Memoranda of Understanding

(1) In this section prescribed body means—

(a) a person, body or agency which—

(i) is a prescribed agency; or

(ii) represents the interests of users or consumers; and

(b) is prescribed for the purposes of this section.

(2) The Commission and a prescribed body must enter into a Memorandum of Understanding by a date determined by the Minister.

(3) A Memorandum of Understanding—

(a) must include such matters as are prescribed; and

(b) may include any other matters that the parties consider appropriate.

(4) The Commission must ensure that a Memorandum of Understanding is published—

(b) on the internet.

17 Membership of the Commission

The Commission consists of—

(a) one Commissioner appointed as the Chairperson; and

(b) such number of full-time and part-time additional Commissioners as the Minister considers necessary to enable the Commission to perform its functions.

18 The Chairperson

(1) The Governor in Council may appoint a person as Chairperson who is qualified for appointment because of his or her knowledge of, or experience in, one or more of the fields of industry, commerce, economics, law or public administration.

(2) The Chairperson is to be appointed on such terms and conditions, not inconsistent with this Act, as the Governor in Council determines.

S. 18(3) substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 70.1), 80/2006 s. 26(Sch. item 35.1).

(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Chairperson in respect of his or her office as a Commissioner.

S. 18(4) substituted by No. 75/2004 s. 4.

(4) The Chairperson must not without the consent of the Governor in Council directly or indirectly engage in any paid employment outside of the office of Chairperson.

(5) An act or decision of the Commission is not invalid merely because of a defect or irregularity in, or in connection with, the appointment of the Chairperson or a vacancy in the office of Chairperson.

19 Tenure of office of Chairperson

S. 19(1) substituted by No. 41/2021 s. 15.

(1) Subject to this Act, the Chairperson—

(a) holds office for such a period not exceeding 5 years as is specified in the instrument of appointment; and

(b) subject to this section, is eligible for re‑appointment.

(2) The Chairperson may be suspended from office by the Governor in Council, but must not be removed from office except in accordance with this Act.

(3) The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of any suspension of the Chairperson within 7 sitting days of the House.

(4) The Chairperson so suspended must be restored to office by the Governor in Council unless each House of the Parliament, within 42 days after the day on which the statement is laid before it, and in the same session, declares by resolution that the Chairperson ought to be removed from office and, if each House within that time so declares, the Chairperson must be removed from office by the Governor in Council.

(5) The Chairperson ceases to hold office if he or she becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt debtors or compounds with his or her creditors or makes an assignment of his or her property for their benefit or a deed of arrangement under any law relating to bankruptcy.

(6) The Chairperson ceases to hold office if he or she nominates for election for either House of the Parliament of Victoria or for the Parliament of the Commonwealth or of another State or of a Territory.

(7) The Chairperson may at any time resign by writing signed and addressed to the Governor in Council.

20 Acting appointment

S. 20(1) amended by No. 21/2019 s. 12(1).

(1) The Minister may appoint a person to act in the office of Chairperson—

(a) during a vacancy in that office; or

(b) during any period, or during all periods, when the person holding that office is absent from duty or is, for any other reason, unable to perform the functions of that office—

but a person appointed to act during a vacancy must not continue so to act for more than 6 months.

(2) An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

S. 20(3) amended by No. 21/2019 s. 12(2)(a).

(3) The Minister—

S. 20(3)(a) amended by No. 21/2019 s. 12(2)(b).

(a) subject to this section, may determine the terms and conditions of appointment of a person acting in the office of Chairperson (other than the person's remuneration and allowances); and

(b) may terminate such an appointment at any time.

(4) If a person is acting in the office of Chairperson in accordance with subsection (1)(b) and that office becomes vacant while that person is so acting, that person may continue so to act until—

S. 20(4)(a) amended by No. 21/2019 s. 12(1).

(a) the Minister otherwise directs; or

(b) the vacancy is filled; or

(c) a period of 6 months from the date on which the vacancy occurred expires—

whichever first happens.

S. 20(5) substituted by No. 21/2019 s. 12(3).

(5) While a person is acting in the office of Chairperson in accordance with subsection (1), the person—

(a) has and may exercise all the powers and perform all the functions and duties of that office under this Act; and

(b) is entitled to be paid the remuneration and allowances which the Chairperson would be entitled to when performing the duties and functions of the office of Chairperson; and

(c) is not restricted from engaging in any paid employment outside that office.

(6) The validity of anything done by or in relation to a person purporting to act in the office of Chairperson under an appointment made under subsection (1) shall not be called in question on the ground that—

(a) the occasion for his or her appointment has not arisen; or

(b) that there is a defect or irregularity in or in connection with his or her appointment; or

(c) that the appointment had ceased to have effect; or

(d) that the occasion for him or her to act had not arisen or had ceased.

21 Additional Commissioners

(1) The Governor in Council may appoint persons as additional Commissioners who are qualified for appointment because of their knowledge of, or experience in, one or more of the fields of industry, commerce, economics, law or public administration.

(2) An additional Commissioner is to be appointed on such terms and conditions, not inconsistent with this Act, as the Governor in Council determines.

S. 21(3) substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 70.2), 80/2006 s. 26(Sch. item 35.2).

(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to an additional Commissioner in respect of his or her office as a Commissioner.

22 Tenure of office of additional Commissioners

(1) Subject to this Act, an additional Commissioner—

(a) holds office for such period not exceeding 5 years as is specified in the instrument of appointment; and

(b) subject to this section, is eligible for re-appointment.

(2) An additional Commissioner may be appointed—

(a) on a full-time or part-time basis; and

(b) for—

(i) a specific period; or

(ii) a specific inquiry or determination—

as the Governor in Council determines.

(3) An additional Commissioner may be suspended from office by the Governor in Council, but must not be removed from office except in accordance with this Act.

(4) The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of any suspension of an additional Commissioner within 7 sitting days of the House.

(5) An additional Commissioner so suspended must be restored to office by the Governor in Council unless each House of the Parliament, within 42 days after the day on which the statement is laid before it, and in the same session, declares by resolution that the additional Commissioner ought to be removed from office and, if each House within that time so declares, the additional Commissioner must be removed from office by the Governor in Council.

(6) The additional Commissioner ceases to hold office if he or she becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt debtors or compounds with his or her creditors or makes an assignment of his or her property for their benefit or a deed of arrangement under any law relating to bankruptcy.

(7) The additional Commissioner ceases to hold office if he or she nominates for election for either House of the Parliament of Victoria or for the Parliament of the Commonwealth or of another State or of a Territory.

(8) The additional Commissioner may at any time resign by writing signed and addressed to the Governor in Council.

23 Payment of Chairperson and other Commissioners

The Chairperson and each additional Commissioner is entitled to be paid such remuneration and any travelling and other allowances as the Governor in Council fixes from time to time or as may be fixed in the relevant instrument of appointment.

S. 23A inserted by No. 41/2021 s. 16.

23A Chief executive officer

(1) The Commission may employ a person as the chief executive officer of the Commission.

(2) The chief executive officer is responsible to the Commission for the day-to-day management of the Commission.

(3) The chief executive officer is to be employed as an executive under Part 3 of the Public Administration Act 2004.

(4) If the chief executive officer was, immediately before being appointed, a member of a statutory superannuation scheme within the meaning of the Superannuation (Public Sector) Act 1992, the chief executive officer continues to be a member of that superannuation scheme subject to the Act under which the scheme was created.

(5) The chief executive officer must not be a Commissioner.

24 Staff

S. 24(1) amended by No. 108/2004 s. 117(1) (Sch. 3 item 70.3).

(1) Any employees that are necessary for the purposes of this Act may be employed under Part 3 of the Public Administration Act 2004.

(2) The Commission may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.

25 Consultants

(1) The Commission may engage persons with suitable qualifications and experience as consultants.

(2) An engagement under subsection (1) may be on any terms and conditions the Commission considers appropriate.

S. 26 amended by No. 72/2006 s. 117, substituted by No. 41/2021 s. 17.

26 Delegation

S. 26(1) substituted by No. 6/2024 s. 24.

(1) The Commission, by instrument, may delegate to a person specified in subsection (2) any function or power of the Commission (other than the powers of the Commission under sections 33, 36, 37 and 39) under—

(a) this Act; or

(b) the regulations under this Act; or

(c) any other subordinate instrument under this Act; or

(d) relevant legislation, including any regulations or any other subordinate instrument under relevant legislation; or

(e) any other Act, including—

(i) the regulations under any other Act; and

(ii) any other subordinate instrument under any other Act.

(2) For the purposes of subsection (1), the following persons are specified—

(a) a Commissioner;

(b) the chief executive officer;

(c) a person referred to in section 24;

(d) a member of a Division, committee or panel appointed or designated by the Commission.

S. 26(3) substituted by No. 13/2022 s. 77.

(3) The Commission, by instrument, may delegate the powers of the Commission under section 36, 37 or 39 to—

(a) a Commissioner; or

(b) any person or class of person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act who is—

(i) an executive within the meaning of the Public Administration Act 2004; or

(ii) a person with a classification of Grade 6 or above or Senior Technical Specialist.

27 Declaration of pecuniary interests

(1) If a Commissioner has a pecuniary interest in a matter which he or she is considering or is about to consider in the course of performing his or her duties as a Commissioner, the Commissioner must as soon as practicable after the relevant facts have come to the Commissioner's knowledge declare the nature of that interest to the Minister.

(2) Subsection (1) does not apply if the interest is as a result of the supply of goods or services that are available to members of the public on the same terms and conditions.

(3) Unless the Minister otherwise directs, if a Commissioner has made a declaration under this section, the Commissioner must not take any further part in any decision in relation to the matter.

(4) A failure to comply with this section does not affect the validity of any act or decision of the Commission or a Commissioner.

28 Meetings of the Commission

(1) The Chairperson may convene as many meetings of the Commission as he or she considers necessary for the efficient conduct of its affairs.

S. 28(2) amended by Nos 21/2019 s. 13, 41/2021 s. 18.

(2) The Chairperson must preside at a meeting of the Commission.

(3) Subject to section 30(2), the quorum for a meeting of the Commission is a majority of the Commissioners in office for the time being other than any additional Commissioner to whom section 29(2) applies.

(4) A question arising at a meeting of the Commission is determined by a majority of the votes of the Commissioners present and voting on the question.

S. 28(4A) inserted by No. 15/2008 s. 8.

(4A) The Commission may transact any of its business at a meeting at which the Commissioners or any of the Commissioners participate by audio link or audio visual link.

S. 28(4B) inserted by No. 15/2008 s. 8.

(4B) A Commissioner who participates in a meeting in accordance with subsection (4A) is to be taken to be present at the meeting.

S. 28(4C) inserted by No. 15/2008 s. 8, repealed by No. 11/2021 s. 197.

(5) The person presiding has a deliberative vote and, in the event of an equality of votes on any question, a second or casting vote.

(6) Subject to this Act, the Commission may regulate its own procedure.

29 Conduct of particular inquiry or determination

(1) Subject to subsection (2), the Commission may determine which Commissioner or Commissioners are to be allocated to a particular inquiry or determination.

(2) If the Order appointing a Commissioner specifies that the Commissioner is appointed for the purposes of a particular inquiry or determination, the Commissioner—

(a) must be allocated to that inquiry or determination; and

(b) may only exercise the powers conferred under this Act in relation to that inquiry or determination.

(3) The Commission may constitute a Division of the Commission consisting of one or more Commissioners for the purposes of a particular inquiry or determination as the Commission determines.

(4) Subject to this Act, a Division may regulate its own procedure.

30 Determinations of the Commission

(1) A determination of the Commission must be made at a meeting constituted as required by section 28.

(2) The quorum for a meeting of the Commission at which a determination is to be made in respect of which section 29(2) applies must include the Commissioner or Commissioners appointed for the purposes of the particular inquiry or determination.

31 Matters to be included in annual report

The Commission must include the prescribed information relating to the operation and performance of the Commission in its annual report of operations under Part 7 of the Financial Management Act 1994.

Part 3—Specific powers

S. 31A inserted by No. 41/2021 s. 19.

31A Definitions

In this Part—

prescribed goods and services means any goods or services made, produced or supplied by or within a regulated industry which goods or services are specified in the empowering instrument as being goods or services in respect of which the Commission has power to regulate prices;

prescribed price means the price or price‑range however designated for the supply or sale of any goods or services by or within a regulated industry or particular factors used in price-fixing or terms and conditions relating to the price at which particular goods or services are supplied or sold, being a price, price-range, factor or term and condition specified in the empowering instrument as being a price, price-range, factor or term and condition which the Commission has power to regulate.

32 Price Regulation

(1) The Commission may regulate prescribed prices for or in respect of prescribed goods and services supplied by or within a regulated industry.

S. 32(2) repealed by No. 41/2021 s. 20.

33 Price determinations

(1) This section is subject to anything to the contrary in the empowering instrument specifying the prescribed prices or prescribed goods and services in respect of which the Commission is exercising its power of regulation.

(2) In making a price determination, the Commission must adopt an approach and methodology which the Commission considers will best meet the objectives specified in this Act and any relevant legislation.

S. 33(3) substituted by No. 15/2008 s. 9.

(3) In making a determination under this section, the Commission must have regard to—

(a) the particular circumstances of the regulated industry and the prescribed goods and services for which the determination is being made;

(b) the efficient costs of producing or supplying regulated goods or services and of complying with relevant legislation and relevant health, safety, environmental and social legislation applying to the regulated industry;

(c) the return on assets in the regulated industry;

(d) any relevant interstate and international benchmarks for prices, costs and return on assets in comparable industries;

(e) any other factors that the Commission considers relevant.

S. 33(4) substituted by No. 15/2008 s. 9.

(4) In making a determination under this section, the Commission must ensure that—

(a) the expected costs of the proposed regulation do not exceed the expected benefits; and

(b) the determination takes into account and clearly articulates any trade-offs between costs and service standards.

(5) A price determination by the Commission may regulate a prescribed price for prescribed goods and services in any manner the Commission considers appropriate.

(6) Without limiting the generality of subsection (5), the manner may include—

(a) fixing the price or the rate of increase or decrease in the price;

(b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in the maximum price;

(c) fixing an average price for specified goods or services or an average rate of increase or decrease in the average price;

(d) specifying pricing policies or principles;

(e) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor;

(f) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the rate or supply of the goods or services;

(g) fixing a maximum average revenue or maximum rate of increase or minimum rate of decrease in the maximum average revenue in relation to specified goods or services;

(h) monitoring the price levels of specified goods and services.

34 Other regulatory powers

(1) The Commission may exercise such powers (including the power to make determinations) for or with respect to—

(a) standards and conditions of service and supply;

(b) licensing;

(c) market conduct;

(d) other economic regulatory matters—

as may be conferred on the Commission by the empowering instrument.

S. 34(2) amended by No. 15/2008 s. 10.

(2) In making a determination or other regulatory decision under this section, the Commission must have regard to—

(a) any factors specified in the empowering instrument; and

(b) any other factors that the Commission considers relevant.

(3) This section is subject to anything to the contrary in the empowering instrument.

35 General provisions relating to determinations

(1) A determination must include a statement of the purpose and reasons for the making of the determination.

(2) Notice of the making of a determination must be published—

(b) in a daily newspaper generally circulating in Victoria; and

(c) on the internet.

(3) The notice must include—

(a) a brief description of the nature and effect of the determination; and

(b) details of when the determination takes effect and how a copy of the determination may be obtained from the Commission.

S. 35(4) substituted by No. 6/2024 s. 25.

(4) The Commission must—

(a) publish a copy of the determination on the internet; and

(b) provide a copy of the determination to any person who requests it.

(5) A determination takes effect on and from—

(a) the date on which notice of its making is published in the Government Gazette; or

(b) any later date of commencement as may be specified in the determination.

(6) Subject to anything to the contrary in the empowering instrument, a determination has effect until—

(a) it is amended or revoked by a later determination; or

(b) such other date as is specified in the determination.

(7) A determination is binding on a regulated entity or a regulated industry specified in the determination.

Pt 3A (Heading and ss 35A–35D) inserted by No. 15/2008 s. 11.

Part 3A—Third party access regimes

S. 35A inserted by No. 15/2008 s. 11.

35A Object of Part

The object of this Part is to promote the economically efficient operation of, use of and investment in, the infrastructure by means of which services are provided, thereby promoting effective competition in upstream and downstream markets.

S. 35B inserted by No. 15/2008 s. 11.

35B Application of Part

This Part applies to a regulated industry which has an access regime.

S. 35C inserted by No. 15/2008 s. 11.

35C Pricing principles applying in respect of regulated access prices

The pricing principles relating to the price of access to a service are—

(a) that regulated access prices should—

(i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and

(ii) include a return on investment commensurate with the regulatory and commercial risks involved; and

(b) that the access price structures should—

(i) allow multi-part pricing and price discrimination when it aids efficiency; and

(ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and

(c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity.

S. 35D inserted by No. 15/2008 s. 11.

35D Time limit for determinations relating to third party infrastructure access regimes

(1) Subject to this section, if the Commission has been provided with sufficient information, the Commission must make a determination relating to a third party infrastructure access regime within 6 months after receiving the application or proposal.

(2) The Commission may in accordance with subsection (3) suspend the time limit applying under subsection (1) for a period not exceeding 2 months if—

(a) the Commission does not have sufficient information and any reasonable request for further information has not been complied with; or

(b) further time is required to enable consultation with third parties and the public; or

(c) any other ground specified in the guidelines applies.

(3) If the Commission proposes to suspend the time limit applying under subsection (1), the Commission must—

(a) notify—

(i) the Minister and the parties by notice in writing; and

(ii) the public by a notice published in a daily newspaper circulating generally in Victoria;

(b) specify in the notice—

(i) the reason why the time limit is being suspended; and

(ii) the date by which the Commission proposes to use its best endeavours to make a decision on the application or proposal.

(4) The Commission may suspend the time limit applying under subsection (1) by a further period not exceeding 2 months if the Commission—

(a) first obtains the approval of the Minister; and

(b) complies with subsection (3).

(5) Despite subsection (2)(a), the Commission may make a determination within the time limit applying under subsection (1) on the information available to the Commission if the service provider of a significant infrastructure facility has not provided the further information requested within the specified period.

Pt 4 (Heading and ss 36–39) amended by Nos 49/2002 s. 21, 15/2008 ss 6(3), 12–16, 40/2011 s. 24, 58/2012 ss 93, 135, 21/2019 ss 5, 16, substituted as Pt 4 (Headings and ss 36–39J) by No. 41/2021 s. 5.

Part 4—Information gathering notices

Division 1—Information gathering notices

S. 36 substituted by No. 41/2021 s. 5.

36 Information gathering notices—performing functions or exercising powers

(1) If the Commission considers it necessary for the purposes of performing its functions or exercising its powers, the Commission may serve a notice on a person requiring the person to do one or more of the following—

(a) provide to the Commission, in writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, any information or class of information specified in the notice before a specified time and in a specified manner;

(b) produce to the Commission a document or class of document specified in the notice that is in the person's possession, custody or control, before a specified time and in a specified manner;

(c) appear before the Commission at a time and place specified in the notice to do either or both of the following—

(i) give information*,* including by answering questions, either orally or in writing;

(ii) produce a document or class of document specified in the notice that is in the person's possession, custody or control.

(2) In exercising the power to serve an information gathering notice under subsection (1), the Commission must have regard to—

(a) the relevance of the information, document or evidence sought; and

(b) the estimated compliance costs.

(3) Despite subsection (1), the Commission must not serve an information gathering notice under this section if it could serve one under section 37(1).

(4) A person must not—

(a) without reasonable excuse, refuse or fail to comply with an information gathering notice under subsection (1); or

(b) in purported compliance with an information gathering notice under subsection (1), knowingly—

(i) provide false or misleading information; or

(ii) produce documents that are false or misleading.

See section 39A in relation to the protection against self-incrimination.

(5) The Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter that relates to its powers or functions until—

(a) the Commission commences a proceeding in relation to the matter (other than a proceeding for an injunction, whether interim or final); or

(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.

S. 37 substituted by No. 41/2021 s. 5.

37 Information gathering notices—matters that constitute contravention of essential services requirement

(1) If the Commission believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of an essential services requirement, the Commission may serve a notice on the person requiring the person to do one or more of the following—

(a) provide to the Commission, in writing signed by the person or, in the case of a body corporate, by a competent officer of the body corporate, any information or class of information specified in the notice before a specified time and in a specified manner;

(b) produce to the Commission a document or class of document specified in the notice that is in the person's possession, custody or control, before a specified time and in a specified manner;

(c) appear before the Commission at a time and place specified in the notice to do either or both of the following—

(i) give evidence, including by answering questions, either orally or in writing;

(ii) produce a document or class of document specified in the notice that is in the person's possession, custody or control.

(2) A person must not—

(a) without reasonable excuse, refuse or fail to comply with an information gathering notice under subsection (1); or

(b) in purported compliance with an information gathering notice under subsection (1), knowingly—

(i) provide false or misleading information; or

(ii) produce documents that are false or misleading.

See section 39B in relation to the protection against self-incrimination.

(3) The Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter that constitutes, or may constitute, a contravention of an essential services requirement until—

(a) the Commission commences a proceeding in relation to the matter (other than a proceeding for an injunction, whether interim or final); or

(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.

S. 38 substituted by No. 41/2021 s. 5.

38 Form of information gathering notice

An information gathering notice must—

(a) be in writing; and

(b) specify the following matters—

(i) the person on whom it is served;

(ii) the purpose of the information gathering notice;

(iii) the information or class of information (if any) required to be provided to the Commission and the time and manner by which it must be provided;

(iv) the document or class of document (if any) required to be produced to the Commission and the time and manner by which it must be produced;

(v) the time and place (if any) at which a person is required to appear before the Commission to give information or evidence or to produce a document;

(vi) whether the notice served is under section 36(1) or 37(1); and

(c) include a copy of this Part.

See section 64 for service requirements under this Act, including for information gathering notices.

Division 2—Compliance with information gathering notices

S. 39 substituted by No. 41/2021 s. 5.

39 Power to examine on oath or affirmation

If a person is required to appear before the Commission to give evidence in compliance with an information gathering notice under section 37(1), the Commission may administer an oath or affirmation to the person.

S. 39A inserted by No. 41/2021 s. 5.

39A Protection against self-incrimination—information gathering notices under section 36(1)

(1) It is a reasonable excuse for a natural person to refuse or fail to provide information, in compliance with an information gathering notice under section 36(1), if the provision of the information would tend to incriminate the person or expose the person to a penalty.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce, in compliance with an information gathering notice under section 36(1), if the production of the document would tend to incriminate the person or expose the person to a penalty.

(3) It is not a reasonable excuse for a body corporate to refuse or fail to provide information or produce a document, in compliance with an information gathering notice under section 36(1), if the provision of the information or production of the document would tend to incriminate the body corporate or expose the body corporate to a penalty.

(4) Any information given or document produced by a natural person or body corporate in compliance with an information gathering notice under section 36(1) is not admissible as evidence against that natural person or body corporate in any proceeding, other than in—

(a) a proceeding arising out of the false or misleading nature of the information or document; or

(b) a review under Part 7B; or

(c) a proceeding for a monetary benefits order under section 61B.

S. 39B inserted by No. 41/2021 s. 5.

39B Protection against self-incrimination—information gathering notices under section 37(1)

(1) It is not a reasonable excuse for a natural person or a body corporate to refuse or to fail to provide information, produce a document or give evidence, in compliance with an information gathering notice under section 37(1), if the provision of the information, production of the document or giving of the evidence would tend to incriminate the natural person or body corporate or expose the natural person or body corporate to a penalty.

(2) Any information provided, document produced or evidence given by a natural person, in compliance with an information gathering notice under section 37(1), is not admissible as evidence against that natural person in a criminal proceeding, other than in a proceeding arising out of the false or misleading nature of the information or document.

(3) Any information provided, document produced or evidence given by a body corporate, in compliance with an information gathering notice under section 37(1), is not admissible as evidence against that body corporate in a criminal proceeding, other than—

(a) in a proceeding arising out of the false or misleading nature of the information or document; or

(b) in a criminal proceeding under this Act or relevant legislation.

S. 39C inserted by No. 41/2021 s. 5.

39C Offence of coercion etc. against person who complies with information gathering notice

A person must not, because another person complied, or intends to comply, with an information gathering notice—

(a) threaten, intimidate or coerce the other person; or

(b) take, threaten to take, incite or be involved in any action that causes the other person to suffer any loss, injury or disadvantage.

Penalty: 120 penalty units.

S. 39D inserted by No. 41/2021 s. 5.

39D No liability for loss, damage or injury

A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving, in good faith, of any information, document or evidence to the Commission in compliance with an information gathering notice.

Division 3—Documents

S. 39E inserted by No. 41/2021 s. 5.

39E Powers in relation to documents

If a document is produced to the Commission in compliance with an information gathering notice, the Commission may do one or more of the following—

(a) inspect the document or authorise a person to inspect the document;

(b) make copies of or take extracts of the document;

(c) seize the document if the Commission—

(i) considers the document necessary for obtaining evidence for the purpose of any proceeding against a person under this Act or relevant legislation; or

(ii) believes on reasonable grounds that it is necessary to seize the document to prevent its concealment, loss or destruction or its use in the contravention of an essential services requirement;

(d) secure a seized document against interference;

(e) retain possession of the document in accordance with this Part.

S. 39F inserted by No. 41/2021 s. 5.

39F Copies of seized documents

(1) If the Commission retains possession of a document seized from a person under this Part, the Commission must give the person, as soon as practicable after the seizure, a copy of the document certified as correct by the Commission.

(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals as evidence of equal validity to the original.

S. 39G inserted by No. 41/2021 s. 5.

39G Retention and return of seized documents

(1) Subject to subsection (2), the Commission must take reasonable steps to ensure that a document seized by the Commission under this Part is returned to the relevant person not later than 3 months after its seizure.

(2) The Commission is only required to return a document under subsection (1) if the Commission is satisfied that—

(a) the document is not required (or is no longer required) for the purpose for which it was seized; and

(b) the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure under section 39E(c); and

(c) the document is not subject to a dispute as to the ownership which would be appropriately resolved by making an application under section 39H for the return of the document.

(3) This section does not apply if the Magistrates' Court makes an order under section 39I extending the period during which the document may be retained.

(4) Nothing in this section prevents the return of a document to its owner at any time if the Commission considers there is no need for its continued retention.

(5) In this section—

relevant person, in relation to a document, means—

(a) the person from whom the document was seized; or

(b) the owner of the document if the person from whom it was seized is not entitled to possess it.

S. 39H inserted by No. 41/2021 s. 5.

39H Application for return of seized document

(1) For the purposes of section 39G(2)(c), an application for the return of a document seized under this Part may be made to the Magistrates' Court by—

(a) the person from whom it was seized; or

(b) a person who claims to be the owner.

(2) A person who makes an application under subsection (1) must serve a copy of the application on the Commission.

(3) The Commission is entitled to appear before the Magistrates' Court and be heard in relation to an application under subsection (1).

(4) The Magistrates' Court may make an order for the return of the document to the person from whom it was seized or, if that person is not entitled to possess it, to the owner, if the Court is satisfied that—

(a) the document is not required (or is no longer required) for the purpose for which it was seized; and

(b) the continued retention of the document is not necessary to prevent the document being used in a way that would justify its seizure under section 39E(c).

S. 39I inserted by No. 41/2021 s. 5.

39I Magistrates' Court may extend 3-month period

(1) The Commission may apply to the Magistrates' Court for an extension, not exceeding 3 months, of the period for which the Commission may retain a document seized under this Part—

(a) not later than 3 months after seizing the document; or

(b) before the end of the period of the extension, if an extension has been granted under subsection (2).

(2) The Magistrates' Court may order such an extension if the Court is satisfied that—

(a) it is in the interests of justice; and

(b) the total period of retention does not exceed 12 months; and

(c) retention of the document is necessary—

(i) for the purposes of an investigation into whether a contravention of an essential services requirement has occurred; or

(ii) to enable evidence of a contravention of an essential services requirement to be obtained for the purposes of a proceeding under this Act or relevant legislation.

(3) The Magistrates' Court must consider the interests of the owner of the document and may adjourn an application to enable notice of the application to be given to any person.

Division 4—When Commission must not serve information gathering notice

S. 39J inserted by No. 41/2021 s. 5.

39J Matters about which the Commission must not serve information gathering notice

(1) The Commission must not serve an information gathering notice in respect of information, a document or evidence specified in subsection (2).

(2) For the purposes of subsection (1), the following information, documents and evidence are specified—

(a) financial and business records that the Commission may require a person to make available to it under section 56 of the Port Management Act 1995;

(b) information that the Commission may direct a person to provide it with under section 185E(5)(b) of the Local Government Act 1989;

(c) information or documents that the Commission may require from a person under section 60 of the Victorian Energy Efficiency Target Act 2007;

(d) information or documents that the Commission may require from a person under section 85 of the Victorian Renewable Energy Act 2006;

S. 39J(2)(e) amended by No. 6/2024 s. 26(a).

(e) evidence or documents that the Commission may require from a person under section 212E of the Accident Towing Services Act 2007.

S. 39J(2)(f) repealed by No. 6/2024 s. 26(b).

Pt 4A (Heading and ss 39K, 39L) inserted by No. 41/2021 s. 5.

Part 4A—Provision of information relating to regulated entities

S. 39K inserted by No. 41/2021 s. 5.

39K Provision of information relating to regulated entities

(1) The Commission, by written notice, may request a regulated entity to provide to the Commission any information or class of information relating to the regulated entity in the manner and form specified in the notice.

(2) A regulated entity must comply with a request under subsection (1).

(3) If information relating to a regulated entity is held by a third party, the Commission may require the regulated entity to enter into an arrangement with the third party under which the third party is to provide the information to the Commission.

(4) In exercising the power to make a request under subsection (1) or to require a regulated entity to enter into an arrangement under subsection (3), the Commission must have regard to—

(a) the relevance of the information, document or evidence sought; and

(b) the estimated compliance costs.

(5) The Commission may specify the kind or class of information which a regulated entity must maintain for the purposes of this section in a Code of Practice.

S. 39L inserted by No. 41/2021 s. 5.

39L Matters about which the Commission must not gather information under this Part

(1) The Commission must not make a request under section 39K(1) or require a regulated entity to enter an into arrangement under section 39K(3) in respect of specified information, a document or evidence specified in subsection (2).

(2) For the purposes of subsection (1), the following information, documents and evidence are specified—

(a) financial and business records that the Commission may require a person to make available to it under section 56 of the Port Management Act 1995;

S. 39L(2)(b) amended by No. 6/2024 s. 27(a).

(b) evidence or documents that the Commission may require from a person under section 212E of the Accident Towing Services Act 2007.

S. 39L(2)(c) repealed by No. 6/2024 s. 27(b).

Pt 4B (Headings and ss 39M–39ZK) inserted by No. 41/2021 s. 5.

Part 4B—Inspection powers

Division 1—Inspectors

S. 39M inserted by No. 41/2021 s. 5.

39M Appointment of inspectors

(1) The Commission may appoint, by instrument, any of the following persons as an inspector—

(a) an employee of the Commission;

(b) a person employed under Part 3 of the Public Administration Act 2004;

(c) any other person employed by the State;

(d) any other person who the Commission considers has appropriate skills, qualifications and experience.

(2) The Commission must not appoint a person as an inspector unless the Commission is satisfied that the person is appropriately qualified or has successfully completed appropriate training.

(3) In exercising powers or performing functions as an inspector, an inspector must comply with any direction of the Commission.

S. 39N inserted by No. 41/2021 s. 5.

39N Inspector's identification

(1) The Commission must issue an identification card to each inspector.

(2) The identification card must contain a photograph of the inspector to whom it is issued.

S. 39O inserted by No. 41/2021 s. 5.

39O Production of identification

An inspector must produce their identification card for inspection—

(a) before exercising a power under this Part; and

(b) at any time during the exercise of a power under this Part, if asked to do so.

Penalty: 10 penalty units.

Division 2—Entry and search of premises with consent

S. 39P inserted by No. 41/2021 s. 5.

39P Entry and search with consent

(1) If an inspector believes on reasonable grounds that a person may have contravened an essential services requirement, the inspector, with the consent of the occupier of the premises, may—

(a) enter and search the premises; and

(b) exercise a power set out in subsection (2) at the premises.

(2) For the purposes of subsection (1)(b), an inspector has the power to—

(a) seize any document or computer that the inspector finds on the premises, if the inspector believes on reasonable grounds that the document or computer is connected with the alleged contravention; or

(b) require any document on the premises to be produced for examination and, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—

(i) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; or

(ii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document; or

(c) make any still or moving image, audio recording or audio visual recording, if the inspector believes on reasonable grounds that it is necessary to do so for the purpose of establishing the alleged contravention.

S. 39Q inserted by No. 41/2021 s. 5.

39Q Notice before entry and search

An inspector must not enter and search any premises under section 39P unless, before the occupier consents to the entry, the inspector has—

(a) produced the inspector's identification for inspection; and

(b) informed the occupier—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any document or computer found during the search; and

(iii) that the occupier may refuse to give consent to the taking of any copy or extract from a document found during the search; and

(iv) that the occupier may refuse to produce any document required to be produced for examination; and

(v) that the occupier may refuse to give consent to the making of any still or moving image, audio recording or audio visual recording; and

(vi) that any document or computer seized or taken during the search with the consent of the occupier may be used in evidence in a proceeding.

S. 39R inserted by No. 41/2021 s. 5.

39R Acknowledgement of consent to entry and search

(1) If an occupier of premises consents to the entry and search of premises by an inspector under section 39P, the inspector must, before entering the premises, ask the occupier to sign an acknowledgement.

(2) For the purposes of subsection (1), the acknowledgement must state—

(a) that the occupier has been informed—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any document or computer found during the search; and

(iii) that the occupier may refuse to give consent to the taking of any document or any copy or extract from a document found on the premises during the search; and

(iv) that the occupier may refuse to produce any document required to be produced for examination; and

(v) that the occupier may refuse to give consent to the making of any still or moving image, audio recording or audio visual recording; and

(vi) that any document or computer seized or taken during the search with the consent of the occupier may be used in evidence in a proceeding; and

(b) that the occupier has consented to the entry and search; and

(c) the date and time that the occupier consented.

(3) If an occupier of premises consents to the seizure or taking of any document or computer during a search of the premises by the inspector, the inspector must, before seizing or taking the document or computer, ask the occupier to sign an acknowledgement.

(4) For the purposes of subsection (3), the acknowledgement must state—

(a) that the occupier has consented to the seizure or taking of the document or computer; and

(b) the date and time that the occupier consented.

(5) An inspector must give a copy of a signed acknowledgement to the occupier before leaving the premises.

(6) If, in any proceeding, a signed acknowledgement is not produced to the court or a tribunal, it must be presumed until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the document or computer.

Division 3—Entry and search of premises with warrant

S. 39S inserted by No. 41/2021 s. 5.

39S Search warrants

(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector has reasonable grounds to suspect that—

(a) there is, or may be within the next 72 hours, on the premises evidence that a person may have contravened an essential services requirement; or

(b) there is evidence in digital or electronic format that a person may have contravened an essential services requirement which is accessible from the premises.

(2) A magistrate may issue a search warrant if the magistrate is satisfied that there are reasonable grounds to suspect that—

(a) there is, or may be within the next 72 hours, on the premises a document or a computer, or a document or a computer of a particular kind, connected with an alleged contravention by a person of an essential services requirement; or

(b) there is information in digital or electronic format connected with an alleged contravention by a person of an essential services requirement which is accessible from the premises.

S. 39T inserted by No. 41/2021 s. 5.

39T Form and content of search warrants

(1) A search warrant issued under section 39S(2) may authorise the inspector named in the warrant to enter premises specified in the warrant, if necessary by force, and do one or more of the following—

(a) in the case of a document, or document of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—

(i) require the document to be produced for inspection; or

(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts from the document; or

(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;

(b) in the case of a computer, or a computer of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that the computer is connected with the alleged contravention—

(i) search for the computer; or

(ii) seize the computer; or

(iii) secure the computer against interference;

(c) make an image of the hard drive of a computer, or a computer of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that information contained on the hard drive is connected with the alleged contravention;

(d) in the case of information in electronic or digital format described in the warrant that is accessible from the premises, if the inspector believes on reasonable grounds that the information is connected with the alleged contravention—

(i) access the information by means of any computer located on the premises; or

(ii) download or make an electronic copy of that information; or

(iii) make or produce a physical copy of that information.

(2) A search warrant issued under section 39S(2) may authorise, in addition to an inspector, any other person named or otherwise identified in the warrant to execute the warrant.

(3) A search warrant issued under section 39S(2) must state—

(a) the purpose for which the search is required and the nature of the alleged contravention; and

(b) any conditions to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) Except as provided by this section, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 39S(2).

(5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form set out in the rules of court under that Act.

(6) Despite section 78 of the Magistrates' Court Act 1989, a search warrant must not authorise an inspector to arrest a person.

S. 39U inserted by No. 41/2021 s. 5.

39U Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer

(1) This section applies if a magistrate is satisfied that there are reasonable grounds to believe that there is information in digital or electronic format connected with a contravention by a person of an essential services requirement that is accessible from particular premises.

(2) Subject to subsection (3), a warrant issued by a magistrate under section 39S(2) may authorise the inspector named in the warrant to require a person to provide any information or assistance that is reasonable and necessary to allow the inspector or another person to do one or more of the following—

(a) access information held in, or accessible from, any computer located on the premises;

(b) download or make an electronic copy of that information;

(c) make or produce a physical copy of that information.

(3) The inspector may require a person to provide the information or assistance referred to in subsection (2) if the person—

(a) is one of the following—

(i) the person alleged to have contravened the essential services requirement;

(ii) the owner or lessee of the computer;

(iii) an employee of the owner or lessee of the computer;

(iv) a person engaged under a contract for services by the owner or lessee of the computer; and

(b) has relevant knowledge of—

(i) the computer or a computer network of which the computer forms or formed part; or

(ii) the measures applied to protect information held in, or accessible from, the computer.

S. 39V inserted by No. 41/2021 s. 5.

39V Announcement before entry

(1) On executing a search warrant issued under section 39S(2), the inspector named in the warrant—

(a) must announce that the warrant authorises the inspector to enter the premises; and

(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector is not required to comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the search warrant is not frustrated.

S. 39W inserted by No. 41/2021 s. 5.

39W Details of warrant to be given to occupier

(1) If the occupier is present at premises where a search warrant is being executed, the inspector must—

(a) identify themselves to the occupier; and

(b) give to the occupier a copy of the warrant.

(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—

(a) identify themselves to a person at the premises; and

(b) give to the person a copy of the warrant.

S. 39X inserted by No. 41/2021 s. 5.

39X Seizure of documents or computers not mentioned in the warrant

A search warrant issued under section 39S(2) authorises an inspector, in addition to the seizure of any document or computer of the kind described in the warrant, to seize or take a document or computer which is not of the kind described in the warrant, if—

(a) the inspector believes on reasonable grounds that the document or computer—

(i) is of a kind which could have been included in a search warrant issued under section 39S(2); or

(ii) will afford evidence about the alleged contravention by a person of an essential services requirement; and

(b) the inspector believes on reasonable grounds that it is necessary to seize that document or computer in order to prevent its concealment, loss or destruction or its use in the alleged contravention by a person of an essential services requirement.

Division 4—Documents and computers

S. 39Y inserted by No. 41/2021 s. 5.

39Y Copies of seized documents

(1) If an inspector retains possession of a document seized from a person under this Part, the inspector must give the person, as soon as practicable after the seizure, a copy of the document certified as correct by the inspector.

(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals as evidence of equal validity to the original.

S. 39Z inserted by No. 41/2021 s. 5.

39Z Retention and return of seized documents or computers

(1) Subject to subsection (2), an inspector must take reasonable steps to ensure that a document or computer that the inspector has seized under this Part is returned to the relevant person not later than 3 months after its seizure.

(2) The inspector is only required to return a document or computer under subsection (1), if the inspector is satisfied that—

(a) the document or computer is not required (or is no longer required) for the purpose for which it was seized; and

(b) the continued retention of the document or computer is not necessary to prevent the document or computer being used in a way that would justify its seizure under this Part; and

(c) the document or computer is not subject to a dispute as to ownership which would be appropriately resolved by making an application under section 39ZA for the return of the document or computer.

(3) This section does not apply if the Magistrates' Court makes an order under section 39ZB extending the period during which the document or computer may be retained.

(4) Nothing in this section affects a lien or other security over a computer.

(5) Nothing in this section prevents the return of a document or computer to its owner at any time if the Commission considers there is no reason for its continued retention.

(6) In this section—

relevant person, in relation to a document or computer means—

(a) the person from whom the document or computer was seized; or

(b) the owner of the document or computer if the person from whom it was seized is not entitled to possess it.

S. 39ZA inserted by No. 41/2021 s. 5.

39ZA Application for return of seized documents or computers

(1) For the purposes of section 39Z(2)(c), an application for the return of a document or computer seized under this Part may be made to the Magistrates' Court by—

(a) the person from whom it was seized; or

(b) a person who claims to be the owner.

(2) A person who makes an application under subsection (1) must serve a copy of the application on the Commission.

(3) The Commission is entitled to appear before the Magistrates' Court and be heard in relation to an application under subsection (1).

(4) The Magistrates' Court may make an order for the return of the document or computer to the person from whom it was seized or, if that person is not entitled to possess it, to the owner, if the Court is satisfied that—

(a) the document or computer is not required (or is no longer required) for the purpose for which it was seized; and

(b) the continued retention of the document or computer is not necessary to prevent the document or computer being used in a way that would justify its seizure under this Part.

S. 39ZB inserted by No. 41/2021 s. 5.

39ZB Magistrates' Court may extend 3-month period

(1) If an inspector seizes a document or computer under this Part, the inspector may apply to the Magistrates' Court for an order for an extension, not exceeding 3 months, of the period for which the inspector may retain the document or computer.

(2) An application under subsection (1) must be made—

(a) not later than 3 months after seizing a document or computer under this Part; or

(b) if an extension has been granted under this section, before the end of the period of the extension.

(3) The Magistrates' Court may make the order if the Court is satisfied that—

(a) it is in the interests of justice; and

(b) the total period of retention does not exceed 12 months; and

(c) retention of the document or computer is necessary—

(i) for the purposes of an investigation into whether a contravention of an essential services requirement has occurred; or

(ii) to enable evidence of an alleged contravention of an essential services requirement to be obtained for the purposes of a proceeding under this Act or relevant legislation.

(4) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or computer described in the application.

Division 5—Offences

S. 39ZC inserted by No. 41/2021 s. 5.

39ZC Refusal or failure to comply with requirement

A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector under this Part.

S. 39ZD inserted by No. 41/2021 s. 5.

39ZD Protection against self-incrimination

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person or expose the person to a penalty.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person or expose the person to a penalty.

(3) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required under section 39U to provide, if the provision of the information or assistance would tend to incriminate the person or expose the person to a penalty.

S. 39ZE inserted by No. 41/2021 s. 5.

39ZE Offence to hinder or obstruct inspector

A person must not, without reasonable excuse, hinder or obstruct an inspector who is exercising a power under this Part.

S. 39ZF inserted by No. 41/2021 s. 5.

39ZF Offence to impersonate inspector

A person who is not an inspector must not, in any way, hold themselves out to be an inspector.

Division 6—Miscellaneous

S. 39ZG inserted by No. 41/2021 s. 5.

39ZG Requirement to assist inspector during entry

An inspector exercising a power of entry under this Part may require a person at the premises—

(a) to give information to the inspector, orally or in writing; and

(b) to produce documents to the inspector; and

(c) to give reasonable assistance to the inspector.

S. 39ZH inserted by No. 41/2021 s. 5.

39ZH Entry to be reported to the Commission

(1) If an inspector exercises a power of entry under Division 3, the inspector must report the exercise of the power to the Commission not later than 7 days after the entry.

(2) The report must include all relevant details of the entry including—

(a) the time and place of the entry; and

(b) the purpose of the entry; and

(c) a description of things done while on the premises, including details of—

(i) documents seized, copies made and extracts taken; and

(ii) computers seized; and

(d) the time of departure.

S. 39ZI inserted by No. 41/2021 s. 5.

39ZI Register of exercise of powers of entry

The Commission must keep and maintain a register containing the particulars of all matters reported to the Commission under section 39ZH.

S. 39ZJ inserted by No. 41/2021 s. 5.

39ZJ Complaints

(1) A person may complain to the Commission about the exercise of a power by an inspector under this Part.

(2) The Commission must—

(a) investigate any complaint made to the Commission; and

(b) provide a written report to the complainant on the results of the investigation.

Division 7—When inspector must not exercise search and seizure powers or apply for search warrants

S. 39ZK inserted by No. 41/2021 s. 5.

39ZK Matters about which inspectors must not exercise search and seizure powers or apply for search warrants

An inspector must not exercise a power or apply for the issue of a search warrant under this Part—

(a) on the grounds that a person may have contravened a provision of Part 3 of the Grain Handling and Storage Act 1995; or

(b) on the grounds that a person may have contravened Part 3 of the Port Management Act 1995 or for the purposes of conducting an inquiry under section 49Z of that Act.

Pt 4C (Heading and s. 39ZL) inserted by No. 41/2021 s. 5.

Part 4C—Court may order compliance with requirements

S. 39ZL inserted by No. 41/2021 s. 5.

39ZL Powers of court if requirement of Commission or inspector not complied with

(1) Subject to subsection (2), if the Commission is satisfied that a person has failed, without reasonable excuse, to comply with a requirement under section 36, 37 or 39ZG, the Commission may apply to a court for an order directing the person to comply with the requirement.

(2) The Commission must not make an application under subsection (1) if the person to whom the failure relates has been charged with an offence under section 36(4), 37(2) or 39ZC (as the case requires).

(3) On an application under subsection (1), the court may—

(a) order the person to comply with the requirement within a period specified in the order; and

(b) make any other orders it considers appropriate.

(4) If a proceeding is commenced under this section in relation to a failure to comply with a requirement, the person to whom the failure relates cannot be charged with an offence under section 36(4), 37(2) or 39ZC (as the case requires).

Part 5—Inquiries and reports

40 Inquiry by Commission

The Commission may after consultation with the Minister conduct an inquiry if the Commission considers an inquiry is necessary or desirable for the purpose of carrying out its functions.

41 Minister may refer matter for inquiry

(1) The Commission must conduct an inquiry into any matter which the Minister by written notice refers to the Commission under this Part.

S. 41(1A) inserted by No. 15/2008 s. 17.

(1A) The Minister is responsible for referring any matter to the Commission for an inquiry unless relevant legislation provides that the Minister administering the relevant legislation may refer a matter to the Commission for an inquiry.

S. 41(1B) inserted by No. 15/2008 s. 17.

(1B) Before referring a matter to the Commission for an inquiry, the Minister must consult with any Minister who has responsibilities in respect of that matter.

(2) The written notice must specify the terms of reference for the inquiry.

(3) The Minister may—

(a) specify a period within which a report is to be submitted to the Minister;

(b) require the Commission to make a draft report publicly available or available to specified persons or bodies during the inquiry;

(c) require the Commission to consider specified matters;

(d) give the Commission specific directions in respect of the conduct of the inquiry.

(4) The Commission must report to the Minister on the results of any inquiry.

(5) The Minister may amend the terms of reference or extend the period within which a report is to be submitted to the Minister.

S. 41A inserted by No. 15/2008 s. 18.

41A Minister may limit use of powers under section 37

If any inquiry is to be conducted into a matter that does not relate to a regulated industry, the Minister may give the Commission specific directions in respect of the conduct of the inquiry which limit the use of the powers conferred on the Commission under section 37 in the manner specified in the specific directions.

42 Notice of inquiry

(1) The Commission must after notifying the Minister publish notice of an inquiry—

(b) in a daily newspaper generally circulating in Victoria; and

(c) on the internet.

(2) The notice must specify—

(a) the purpose of the inquiry;

(b) the period during which the inquiry is to be held;

(c) the period within which, and the form in which, members of the public may make submissions, including details of public hearings;

(d) the matters that the Commission would like submissions to deal with.

S. 42(2A) inserted by No. 15/2008 s. 19.

(2A) The Commission may specify in the notice under subsection (2) that if a submission is not received within the period specified under subsection (2)(c), the Commission may decide not to consider the submission.

(3) If the inquiry relates to a matter referred to the Commission by the Minister, the notice must include the terms of reference and the matters specified in section 41(3).

(4) The Commission must publish a further notice if the Minister amends the terms of reference or extends the period within which the report is to be submitted to the Minister.

(5) The Commission must send a copy of any notice published under this section to the relevant regulated entities and any person or body that the Commission considers should be notified.

43 Conduct of inquiry

(1) Subject to this Act, the Commission may conduct an inquiry in such a manner as the Commission considers appropriate.

(2) In conducting an inquiry, the Commission is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as the Commission considers appropriate.

(3) The Commission may receive written submissions or statements.

(4) The Commission—

(a) must hold at least one public hearing; and

(b) has a discretion as to whether any person may appear before the Commission in person or be represented by another person.

(5) The Commission may determine that a hearing or a part of a hearing be held in private if it is satisfied that—

(a) it would be in the public interest; or

(b) the evidence is of a confidential or commercially-sensitive nature.

(6) In conducting an inquiry the Commission may—

(a) consult with any person that it considers appropriate;

(b) hold public seminars and conduct workshops;

(c) establish working groups and task forces.

S. 44 repealed by No. 15/2008 s. 20.

45 Reports

(1) The Commission must submit a copy of its final report on an inquiry to the Minister.

(2) If, in the opinion of the Commission, a final report will contain confidential or commercially-sensitive information, the Commission must divide the report into—

(a) a document containing the confidential or commercially-sensitive information; and

(b) another document containing the rest of the report.

S. 45(3) amended by Nos 21/2019 s. 6, 41/2021 s. 21.

(3) For the purposes of subsection (2), any information that the Commission may disclose under section 60C is not confidential or commercially-sensitive unless VCAT prohibits or restricts the disclosure of the information under section 56(b)(ii).

(4) If the Commission submits a final report to the Minister in the form required by subsection (2), a reference to the final report in subsections (5), (6) and (7) is to be read as a reference to the document described in subsection (2)(b).

(5) The Minister must cause a copy of the final report to be laid before each House of the Parliament within 7 sitting days of the House after receiving the final report.

(6) The Minister must, after the final report has been laid before each House of the Parliament, or if the Parliament is not sitting, within 30 days after receiving a final report, ensure that a copy of the final report is available for public inspection.

(7) After the Minister has made a final report publicly available, the Commission must ensure that copies are made publicly available.

46 Special reports

(1) If in the course of an inquiry the Commission considers that there is another matter on which the Commission should report to the Minister, the Commission may do so, in the final report or in a special report.

(2) If the Commission prepares a special report, subsections (5), (6) and (7) of section 45 apply to the special report as if it were a final report.

Pt 6 (Heading and ss 47–52) amended by Nos 40/2003 s. 23, 91/2004 s. 26, expired by force of No. 62/2001 s. 47,
new Pt 6 (Heading and ss 47–51) inserted by No. 15/2008 s. 21.

Part 6—Codes of Practice

New s. 47 inserted by No. 15/2008 s. 21.

47 Power to make Codes of Practice

S. 47(1) substituted by No. 41/2021 s. 22(1).

(1) The Commission may make, amend or revoke Codes of Practice for or with respect to a regulated industry in accordance with this Part.

(2) Without limiting the generality of subsection (1), a Code of Practice may provide for any matter relating to—

(a) requiring a specified regulated entity or a specified class of regulated entity to develop, issue and comply with customer-related standards, procedures, policies and practices (including with respect to the payment of compensation to customers) in accordance with the Code of Practice;

(b) specifying minimum customer-related standards, procedures, policies and practices for inclusion by a specified regulated entity or a specified class of regulated entity in a customer charter for specific services;

S. 47(2)(ba) inserted by No. 41/2021 s. 22(2).

(ba) requiring a specified regulated entity or a specified class of regulated entity to comply with any of the following—

(i) term and conditions of contracts;

(ii) requirements in relation to the supply of goods or services;

(iii) requirements to assist customers who are experiencing financial hardship or family violence;

(iv) requirements in relation to customers who use life support equipment;

(c) requiring a specified regulated entity or a specified class of regulated entity to enter into an agreement with another specified regulated entity or another specified class of regulated entity for the purpose of ensuring that obligations relating to customer-related standards can be met;

(d) specifying principles for the negotiation of agreements required under paragraph (c) between regulated entities in relation to standards and conditions of service and supply;

(e) requiring regulated entities to maintain specified accounting records and to prepare accounts according to specified principles.

(3) A Code of Practice may establish principles giving practical guidance in relation to the performance of the functions and the exercise of the powers of the Commission.

S. 47(3A) inserted by No. 41/2021 s. 22(3).

(3A) A Code of Practice may—

(a) specify that it applies for the purposes of the Electricity Industry Act 2000 or the Gas Industry Act 2001; and

(b) specify any information, document, matter or thing required or permitted by the Electricity Industry Act 2000 or the Gas Industry Act 2001 to be specified to give effect to those Acts.

(4) A Code of Practice may—

S. 47(4)(a) substituted by No. 41/2021 s. 22(4)(a).

(a) confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies;

(b) direct how any matter or thing is to be done;

(c) create an enforceable legal right;

S. 47(4)(d) substituted by No. 41/2021 s. 22(4)(b).

(d) be of general or limited application;

S. 47(4)(e) inserted by No. 41/2021 s. 22(4)(b).

(e) differ according to differences in time, place and circumstances;

S. 47(4)(f) inserted by No. 41/2021 s. 22(4)(b).

(f) specify that a provision of the Code of Practice is a civil penalty requirement;

S. 47(4)(g) inserted by No. 41/2021 s. 22(4)(b).

(g) provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the Code of Practice, whether—

(i) unconditionally or on specified conditions; or

(ii) either wholly or to such an extent as is specified.

S. 47(4A) inserted by No. 41/2021 s. 22(5).

(4A) A Code of Practice has effect despite anything to the contrary in any agreement or contract.

S. 47(4B) inserted by No. 41/2021 s. 22(5).

(4B) A Code of Practice takes effect on the day that it is published under section 49 or on a later day as is specified in that Code of Practice.

(5) A Code of Practice is not a determination.

(6) A reference in this Part to—

(a) a proposed Code of Practice includes a reference to a proposed amendment to a Code of Practice;

(b) a Code of Practice includes a reference to an amendment to a Code of Practice.

New s. 48 inserted by No. 15/2008 s. 21.

48 Power to apply, adopt or incorporate

(1) A Code of Practice may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—

(a) wholly or partially or as amended by the Code of Practice; or

(b) as formulated, issued, prescribed or published at the time the Code of Practice is made or at any time before then; or

(c) as formulated, issued, prescribed or published from time to time.

(2) If a Code of Practice has applied, adopted or incorporated any matter contained in any document, code, standard, rule, specification or method as formulated, issued, prescribed or published from time to time and that document, code, standard, rule, specification or method is at any time amended, until the Commission causes notice to be published in the Government Gazette of that amendment, the document, code, standard, rule, specification or method is to be taken not to have been so amended.

(3) Without limiting the generality of subsection (1), a Code of Practice may apply, adopt or incorporate by reference any benchmarks, standards or technical references.

New s. 49 inserted by No. 15/2008 s. 21, substituted by Nos 41/2021 s. 23, 6/2024 s. 28.

49 Publication of Codes of Practice and amendments

The Commission must cause—

(a) a notice of the making or amendment of a Code of Practice to be published in the Government Gazette; and

(b) a copy of any Code of Practice or amendment to a Code of Practice it makes to be published on the Commission's Internet site.

New s. 50 inserted by No. 15/2008 s. 21, substituted by No. 41/2021 s. 24.

50 Automatic revocation of Codes of Practice after 10 years

Unless sooner revoked, a Code of Practice made under section 47(1) is revoked by virtue of this section on the day which is the tenth anniversary of the making of the Code of Practice.

New s. 51 inserted by No. 15/2008 s. 21, repealed by No. 41/2021 s. 25.

S. 52 expired by force of No. 62/2001 s. 47.

Pt 7 (Heading) substituted by No. 41/2021 s. 8.

Part 7—Enforcement

Pt 7 Div. 1 (Heading and ss 53, 54) amended by Nos 15/2008 ss 22, 23, 49/2015 ss 15(1), 16, substituted as Pt 7 Div. 1 (Headings and ss 53–54R) by No. 41/2021 s. 9.

Division 1—Contravention order and related orders

Subdivision 1—Contravention order

S. 53 substituted by No. 41/2021 s. 9.

53 Contravention order

(1) A court may make an order, on application of the Commission or a person authorised by the Commission, that a regulated entity has contravened a civil penalty requirement.

(2) A court may make an order, on application of the Commission or a person authorised by the Commission, that a person who is an officer of a body corporate which is a regulated entity has contravened a civil penalty requirement if the person is taken to have contravened the civil penalty requirement under section 60A(1).

If the court makes a contravention order it may make a civil penalty order, an adverse publicity order under section 54F or an order under section 54G or 54H.

Subdivision 2—Civil penalty orders

S. 54 substituted by No. 41/2021 s. 9.

54 Civil penalty orders

(1) If a court makes a contravention order against a person, the court may order the person to pay a civil penalty of an amount not exceeding—

(a) in the case of an energy licensee, the civil penalty amount in section 54A(1) in respect of that contravention; or

(b) in the case of an officer of a body corporate that is an energy licensee, the civil penalty amount in section 54B(1) in respect of that contravention; or

(c) in the case of a regulated entity (other than an energy licensee), the civil penalty amount in section 54C(1) in respect of that contravention; or

(d) in the case of an officer of a body corporate that is a regulated entity (other than an energy licensee), the civil penalty amount in section 54D in respect of that contravention.

1 An energy licensee is a regulated entity. An energy licensee is the holder of a licence issued under Part 2 of the Electricity Industry Act 2000 or a licence issued under Part 3 of the Gas Industry Act 2001. The electricity industry and the gas industry are regulated industries for the purposes of this Act—see section 7A of the Electricity Industry Act 2000 and section 17 of the Gas Industry Act 2001.

2 A civil penalty payable under this section is a debt due to the Commission and the Commission may recover the civil penalty in the court—see section 54ZS.

(2) A person must pay an amount under subsection (1) to the Commission for payment into the Essential Services Commission Enforcement Fund.

(3) Without limiting the matters to which the court may have regard in making an order under subsection (1), the court must have regard to the following—

(a) the nature and extent of the contravention;

(b) the circumstances in which the contravention took place;

(c) whether previously the regulated entity has engaged in conduct that constitutes a contravention of a civil penalty requirement or similar conduct; or

(d) any loss or damage experienced by any other person as a result of the contravention;

(e) if the Commission served a compliance notice on the regulated entity in relation to a contravention, whether the regulated entity has complied or failed to comply with the notice.

New s. 54A inserted by No. 41/2021 s. 9.

54A Civil penalty amount—energy licensees

(1) For the purposes of section 54(1)(a), the civil penalty amount is an amount equal to the greater of—

(a) an amount equal to 1200 penalty units or, if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; or

(b) if the court can determine the value of any monetary benefits acquired by, or accrued or accruing to, the energy licensee (or any body corporate related to the energy licensee), as a result of the contravention, an amount that is 3 times the amount of the monetary benefits; or

(c) if the court cannot determine the value of the monetary benefits, 10% of the annual turnover of the energy licensee during the 12 month period ending at the end of the month in which the energy licensee contravened the civil penalty requirement.

(2) For the purposes of subsection (1)(a), the other amount may be less than an amount equal to 1200 penalty units, but must not exceed an amount equal to 60 000 penalty units.

(3) Subsection (1)(b) and (c) only apply in a particular case if the Commission or the person authorised by the Commission, in applying for a contravention order, requests that those provisions apply in that particular case.

(4) In this section, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act.

New s. 54B inserted by No. 41/2021 s. 9.

54B Civil penalty amount—officers of energy licensees

(1) For the purposes of section 54(1)(b), the civil penalty amount is—

(a) an amount equal to 240 penalty units; or

(b) if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount.

(2) For the purposes of subsection (1)(b), the other amount may be less than an amount equal to 240 penalty units but must not exceed an amount equal to 3000 penalty units.

New s. 54C inserted by No. 41/2021 s. 9.

54C Civil penalty amount—other regulated entities

(1) For the purposes of section 54(1)(c), the civil penalty amount is—

(a) in the case of a natural person—

(i) an amount equal to 240 penalty units; or

(ii) if another, lesser amount is provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; and

(b) in the case of a body corporate, an amount equal to the greater of—

(i) an amount equal to 1200 penalty units or, if another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount; or

(ii) if the court can determine the value of any monetary benefits acquired by, or accrued or accruing to, the body corporate (or any body corporate related to the body corporate), as a result of the contravention, an amount that is 3 times the amount of the monetary benefits.

(2) Subsection (1)(b)(ii) only applies in a particular case if the Commission or the person authorised by the Commission, in applying for a contravention order, requests that the provision applies in that particular case.

(3) In this section, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act.

New s. 54D inserted by No. 41/2021 s. 9.

54D Civil penalty amount—officers of other regulated entities

For the purposes of section 54(1)(d), the civil penalty amount is—

(a) an amount equal to 240 penalty units; or

(b) if another, lesser amount is provided for the contravention of that civil penalty requirement in accordance with section 54E, that other amount.

New s. 54E inserted by No. 41/2021 s. 9.

54E How other civil penalty amounts are to be provided

For the purposes of sections 54A(1), 54B(1), 54C(1) and 54D, another amount for the contravention of a civil penalty requirement may be provided as follows—

(a) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(i), (c) or (e)(ii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement;

(b) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(ii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the determination was made;

(c) for a contravention of a civil penalty requirement of a kind referred to in paragraph (b) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the licence was issued;

(d) for a contravention of a civil penalty requirement of a kind referred to in paragraph (d) of the definition of civil penalty requirement, the amount is prescribed in regulations made under the relevant legislation that applies to the regulated industry in which the regulated entity, or officer of a regulated entity, against whom the civil penalty order is made, is operating;

(e) for a contravention of a civil penalty requirement of a kind referred to in paragraph (e)(i) of the definition of civil penalty requirement, the amount is specified for the contravention of that civil penalty requirement in this Act;

(f) for a contravention of a civil penalty requirement referred to in paragraph (f)(i) of the definition of civil penalty requirement, the amount is specified for the contravention of that civil penalty requirement in the relevant legislation that specified the civil penalty requirement;

(g) for a contravention of a civil penalty requirement referred to in paragraph (f)(ii) of the definition of civil penalty requirement, the amount is prescribed in the regulations made under the relevant legislation that prescribed the provision of the relevant legislation;

(h) for a contravention of a civil penalty requirement referred to in paragraph (g)(i) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the Electricity Industry Act 2000;

(i) for a contravention of a civil penalty requirement referred to in paragraph (g)(ii) or (iii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the Gas Industry Act 2001.

Subdivision 3—Adverse publicity orders and other orders

New s. 54F inserted by No. 41/2021 s. 9.

54F Adverse publicity orders

(1) If a court makes a contravention order against a regulated entity, the court may make an adverse publicity order against the regulated entity.

(2) In making an adverse publicity order, the court may specify the period within which the order must be complied with and may impose any other requirement that the court considers necessary or expedient to make the order effective.

(3) This section does not limit a court's powers under any other provision of this Act.

(4) In this section—

adverse publicity order means an order that—

(a) requires a regulated entity to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the regulated entity has possession of or access to; or

(b) requires a regulated entity to publish, at the regulated entity's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.

New s. 54G inserted by No. 41/2021 s. 9.

54G Orders requiring provision of services, education, etc.

(1) If a court makes a contravention order against a regulated entity, the court may make one or more of the orders specified in subsection (2).

(2) The orders are—

(a) an order directing the regulated entity to perform a specified service, that relates to the conduct which constituted the contravention, for the benefit of the community or a section of the community; or

(b) an order for the purpose of ensuring that the regulated entity does not engage in the conduct, similar conduct or related conduct that constituted the contravention during the period of the order (which must not be longer than 3 years) including—

(i) an order directing the regulated entity to establish a compliance program for employees or other persons involved in the regulated entity's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to such conduct; and

(ii) an order directing the regulated entity to establish an education and training program for employees or other persons involved in the regulated entity's business, being a program designed to ensure the employees' or other persons' awareness of the responsibilities and obligations in relation to such conduct; and

(iii) an order directing the regulated entity to revise the internal operations of the regulated entity's business which led to the regulated entity engaging in such conduct.

(3) In making an order under this section, the court may specify the period within which specified actions must be taken and may impose any other requirement that the court considers necessary or expedient to make the order effective.

(4) This section does not limit a court's powers under any other provision of this Act.

New s. 54H inserted by No. 41/2021 s. 9.

54H Compensation and other orders

(1) If a court makes a contravention order against a regulated entity, the court may make any order it considers fair in relation to the regulated entity if it is satisfied that another person (the injured person) has suffered or may suffer loss or damage as a result of the contravention.

(2) Without limiting subsection (1), the orders that may be made under this section include—

(a) an order that the whole or any part of a contract between the regulated entity and the injured person who is affected by the contravention or any agreement collateral to such a contract is void on and from the time specified in the order; or

(b) an order that the contract or agreement is varied in the manner specified in the order and may specify in the order that the variation takes effect from the time specified in the order; or

(c) an order that all or any of the provisions in the contract are to be enforced or are not to be enforced; or

(d) an order that the regulated entity refund to the injured person money paid by the injured person under the contract or agreement; or

(e) an order that the regulated entity pay the amount of any loss or damage suffered by the injured person as a result of the contravention to the injured person.

(3) In making an order under this section, the court may specify the period within which specified actions must be taken and may impose any other requirement that the court considers necessary or expedient to make the order effective.

(4) This section does not limit a court's powers under any other provision of this Act.

Subdivision 4—Matters related to proceedings for contravention order

New s. 54I inserted by No. 41/2021 s. 9.

54I Proceedings under this Division are civil proceedings

(1) Nothing in this Division is to be construed as limiting any other power of the court.

(2) A proceeding under this Division is a civil proceeding for all purposes.

As to the standard of proof in a civil proceeding, see section 140 of the Evidence Act 2008.

S. 54IA inserted by No. 14/2025 s. 40.

54IA Time period to commence civil proceeding under this Division

(1) Despite anything to the contrary in section 5(5) of the Limitation of Actions Act 1958, a civil proceeding under this Division in relation to the contravention of a civil penalty requirement may be commenced within 6 years after the date on which the contravention occurred, whether the contravention occurred before, on or after the commencement of section 40 of the Regulatory Legislation Amendment (Reform) Act 2025.

(2) Nothing in subsection (1) affects the prosecution of any offence under this Act.

New s. 54J inserted by No. 41/2021 s. 9.

54J Authority to commence proceedings

In a proceeding under this Division, it must be presumed, in the absence of evidence to the contrary, that the person commencing the proceeding was authorised to commence the proceeding.

New s. 54K inserted by No. 41/2021 s. 9.

54K Civil proceedings after criminal proceedings

A court must not make a contravention order against a person if the person has contravened a civil penalty requirement and has been convicted of an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

New s. 54L inserted by No. 41/2021 s. 9.

54L Criminal proceeding during proceeding for civil penalty order

(1) A proceeding for a contravention order against a person is stayed if—

(a) a criminal proceeding is commenced or has already been commenced against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

(2) If the person—

(a) is not convicted of the offence—the proceeding for the contravention order may be resumed; or

(b) is convicted of the offence—the proceeding for the contravention order is dismissed.

New s. 54M inserted by No. 41/2021 s. 9.

54M Criminal proceedings commenced after proceeding for contravention order

A criminal proceeding may be commenced against a person for conduct that is substantially the same as conduct constituting the contravention of a civil penalty requirement regardless of whether a contravention order has been made against the person.

New s. 54N inserted by No. 41/2021 s. 9.

54N Evidence given or produced during proceeding for contravention order

(1) This section applies to information given and documents produced by an individual in a proceeding for a contravention order against the individual.

(2) The information and documents are not admissible in evidence in a criminal proceeding against the individual for an offence constituted by conduct that is substantially the same as the conduct for which the contravention order was sought.

New s. 54O inserted by No. 41/2021 s. 9.

54O Conduct contravening more than one civil penalty requirement

(1) If a person contravenes 2 or more civil penalty requirements, a proceeding for a contravention order may be commenced against the person in relation to the contravention of any one or more of those civil penalty requirements.

(2) Despite subsection (1), a person is not liable to pay more than one civil penalty in relation to the same conduct.

New s. 54P inserted by No. 41/2021 s. 9.

54P Multiple contraventions of civil penalty requirements

(1) Subject to subsection (2), a court may order that a person pay a single civil penalty for multiple contraventions of a civil penalty requirement if—

(a) the multiple contraventions are based on the same facts; or

(b) the multiple contraventions form, or are part of, a series of contraventions of the same or a similar nature.

(2) A single civil penalty ordered under subsection (1) must not exceed the sum of the maximum penalties that the court may have ordered if separate civil penalties were ordered for each of the contraventions.

New s. 54Q inserted by No. 41/2021 s. 9.

54Q Multiple proceedings for contravention order to be heard together

A court may direct that 2 or more proceedings for a contravention order are to be heard together.

New s. 54R inserted by No. 41/2021 s. 9.

54R Jurisdictional limit of Magistrates' Court does not apply to civil penalty order

The jurisdictional limit for a civil proceeding specified under section 100(1) of the Magistrates' Court Act 1989 does not apply to a proceeding for a contravention order under this Division.

Pt 7 Div. 2 (Heading and ss 54B–54X) inserted by No. 49/2015 s. 17, substituted as Pt 7 Div. 2 (Heading and ss 54S–54ZC) by No. 41/2021 s. 9.

Division 2—Penalty notice regime

S. 54S substituted by No. 41/2021 s. 9.

54S Power to serve a penalty notice

(1) If the Commission has reason to believe that a regulated entity has contravened a civil penalty requirement, the Commission may serve a notice on the regulated entity.

(2) The Commission must not serve a penalty notice later than 12 months after the date on which the Commission forms a belief that the regulated entity has contravened the civil penalty requirement.

S. 54T substituted by No. 41/2021 s. 9.

54T Notice penalties

(1) The notice penalty for a contravention of a civil penalty requirement by a regulated entity (other than an energy licensee) is—

(a) in the case of a natural person—

(i) an amount equal to 20 penalty units; or

(ii) if there is another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount; or

(b) in the case of a body corporate—

(i) an amount equal to 120 penalty units; or

(ii) if there is another, lesser amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount.

(2) The notice penalty for a contravention of a civil penalty requirement by an energy licensee is—

(a) an amount equal to 200 penalty units; or

(b) if there is another amount provided for the contravention of that civil penalty requirement in accordance with section 54U, that other amount.

(3) For the purposes of subsection (2)(b), the other amount may be less than an amount equal to 200 penalty units but must not exceed an amount equal to 1500 penalty units.

S. 54U substituted by No. 41/2021 s. 9.

54U How other notice penalty amounts are to be provided

For the purposes of section 54T(1) and (2), another notice penalty amount for the contravention of a civil penalty requirement may be provided as follows—

(a) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(i), (c) or (e)(ii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement;

(b) for a contravention of a civil penalty requirement of a kind referred to in paragraph (a)(ii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the determination was made;

(c) for a contravention of a civil penalty requirement of a kind referred to in paragraph (b) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the relevant legislation under which the licence was issued;

(d) for a contravention of a civil penalty requirement of a kind referred to in paragraph (d) of the definition of civil penalty requirement, the amount is prescribed in regulations made under the relevant legislation that applies to the regulated industry in which the regulated entity, or officer of a regulated entity, against whom the civil penalty order is made, is operating;

(e) for a contravention of a civil penalty requirement of a kind referred to in paragraph (e)(i) of the definition of civil penalty requirement, the amount is specified for the contravention of that civil penalty requirement in this Act;

(f) for a contravention of a civil penalty requirement referred to in paragraph (f)(i) of the definition of civil penalty requirement, the amount is specified for the contravention of that civil penalty requirement in the relevant legislation that specified the civil penalty requirement;

(g) for a contravention of a civil penalty requirement referred to in paragraph (f)(ii) of the definition of civil penalty requirement, the amount is prescribed in the regulations made under the relevant legislation that prescribed the provision of the relevant legislation;

(h) for a contravention of a civil penalty requirement referred to in paragraph (g)(i) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the Electricity Industry Act 2000;

(i) for a contravention of a civil penalty requirement referred to in paragraph (g)(ii) or (iii) of the definition of civil penalty requirement, the amount is prescribed for the contravention of that civil penalty requirement in regulations made under the Gas Industry Act 2001.

Notice penalties must be paid into the Essential Services Commission Enforcement Fund—see section 54ZQ.

S. 54V substituted by No. 41/2021 s. 9.

54V Form of penalty notice

A penalty notice must state the following—

(a) the date of the notice;

(b) the name and address of the regulated entity served with the penalty notice;

(c) in relation to the alleged contravention—

(i) that it is alleged that the regulated entity has engaged in conduct that constitutes a contravention of a civil penalty requirement; and

(ii) the nature, and a brief description of, the alleged contravention; and

(iii) the date on which the contravention is alleged to have occurred;

(d) the amount of the notice penalty for the alleged contravention;

(e) the manner in which the notice penalty may be paid into the Essential Services Commission Enforcement Fund;

(f) the time (being not less than 28 days after the date on which the notice is served) within which the notice penalty must be paid;

(g) that, if the amount of the notice penalty is paid before the end of the time specified in the notice, the Commission will not commence—

(i) a proceeding against the regulated entity in relation to the alleged contravention for a contravention order, unless the notice is withdrawn before the end of that time in accordance with section 54Y; or

(ii) a criminal proceeding against the regulated entity for an offence constituted by conduct that is substantially the same as the conduct that constitutes the alleged contravention, unless the notice is withdrawn before the end of that time in accordance with section 54Y;

(h) that failure to pay the notice penalty before the end of the time specified in the notice may result in the Commission commencing—

(i) a proceeding against the regulated entity for a contravention order in relation to the alleged contravention; or

(ii) a criminal proceeding against the regulated entity for an offence constituted by conduct that is substantially the same as the conduct that constitutes the alleged contravention;

(i) that the regulated entity is entitled to disregard the notice and defend any proceeding relating to the alleged contravention;

(j) any other prescribed particulars.

S. 54W substituted by No. 41/2021 s. 9.

54W Commission must not commence certain proceedings while penalty notice on foot or until time for payment has expired

(1) The Commission must not commence a proceeding specified in subsection (2) against a regulated entity if—

(a) the Commission has served a penalty notice on the regulated entity; and

(b) the time for payment stated in the notice has not expired; and

(c) the notice has not been withdrawn by the Commission in accordance with section 54Y.

(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention for which the penalty notice was served; or

(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention for which the penalty notice was served.

1 Subject to this section, the Commission or a person authorised by the Commission may make an application for a contravention order.

2 Section 54ZA provides that the Commission must not make an application for a contravention order if a notice penalty is paid within the time for payment stated in the notice and the notice is not withdrawn by the Commission within the time for payment stated in the notice.

S. 54X substituted by No. 41/2021 s. 9.

54X Late payment

(1) The Commission may accept payment of a notice penalty even after the expiration of the time for payment stated in the relevant penalty notice if—

(a) the Commission has not commenced a proceeding specified in subsection (2); and

(b) the notice has not been withdrawn by the Commission in accordance with section 54Y.

(a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates; or

(b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention to which the penalty relates.

S. 54Y inserted by No. 41/2021 s. 9.

54Y Withdrawal of penalty notice

(1) The Commission may withdraw a penalty notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the regulated entity served with the penalty notice.

(2) A penalty notice may be withdrawn even if the notice penalty has been paid.

S. 54Z inserted by No. 41/2021 s. 9.