54ZRefund of notice penalty

54Z Refund of notice penalty If a penalty notice is withdrawn in accordance with section 54Y, the amount of any notice penalty paid must be refunded by the Commission from the Essential Services Commission Enforcement Fund. S. 54ZA inserted by No. 41/2021 s. 9. 54ZA Payment expiates contravention (1) The Commission must not commence a proceeding specified in subsection (3) against a regulated entity on whom a penalty notice was served if— (a) the notice penalty is paid within the time for payment stated in the notice and the notice is not withdrawn by the Commission within the time for payment stated in the notice in accordance with section 54Y; or (b) the notice penalty is accepted in accordance with section 54X. (2) The Commission must not commence a proceeding specified in subsection (3) against a person who is an officer of a body corporate that is a regulated entity if— (a) a penalty notice is served on the regulated entity; and (b) either— (i) the notice penalty is paid within the time for payment stated in the notice and the notice is not withdrawn by the Commission within the time for payment stated in the notice in accordance with section 54Y; or (ii) the notice penalty is accepted in accordance with section 54X. (3) For the purposes of subsections (1) and (2) the proceedings are— (a) a proceeding for a contravention order in relation to conduct that is substantially the same as the conduct constituting the contravention to which the notice penalty relates; or (b) a criminal proceeding for an offence constituted by conduct that is substantially the same as the conduct constituting the contravention to which the notice penalty relates. S. 54ZB inserted by No. 41/2021 s. 9. 54ZB Payment not to have certain consequences (1) The payment of a notice penalty under this Part is not and must not be taken to be an admission of— (a) a contravention of a civil penalty requirement; or (b) liability or guilt for the purposes of a proceeding specified in subsection (2). (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. (3) The payment of a notice penalty under this Part must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. S. 54ZC inserted by No. 41/2021 s. 9. 54ZC Multiple contraventions (1) Subject to this section, if the conduct of a regulated entity constitutes 2 or more contraventions of one or more civil penalty requirements, a penalty notice may be served on the regulated entity in relation to each contravention. (2) A regulated entity is not liable to pay more than one notice penalty if the same conduct constitutes 2 or more contraventions of one or more civil penalty requirements. (3) A regulated entity whose conduct constitutes 2 or more contraventions of one or more civil penalty requirements is not liable to pay an amount under this Division more than the highest of the maximum notice penalties for the contraventions. New Pt 7 Div. 3 (Heading and ss 54ZD–54ZF) inserted by No. 41/2021 s. 9. Division 3—Enforceable undertakings S. 54ZD inserted by No. 41/2021 s. 9. 54ZD Enforceable undertakings (1) The Commission may accept a written undertaking given by a person in connection with a matter in relation to which the Commission has a function or power under this Act or relevant legislation. (2) A person who gives an enforceable undertaking may withdraw or vary the undertaking at any time, but only with the consent of the Commission. S. 54ZE inserted by No. 41/2021 s. 9. 54ZE Enforcement of enforceable undertakings (1) If the Commission considers that a person who gave an enforceable undertaking has contravened any of its terms, the Commission may apply to a court for an order under subsection (2). (2) If the court is satisfied that the person has contravened a term of the enforceable undertaking, the court may make all or any of the following orders— (a) an order directing the person to comply with that term of the enforceable undertaking; (b) any order that the court considers appropriate directing the person to compensate any person who has suffered loss or damage as a result of the contravention; (c) any other order the court considers appropriate. (3) This section does not limit a court's power to make a monetary benefits order under section 54ZF. S. 54ZF inserted by No. 41/2021 s. 9. 54ZF Monetary benefits order—contravention of enforceable undertaking (1) If a court is satisfied that a person has contravened a term of an enforceable undertaking, the court may make an order under subsection (3). (2) The court may make an order under subsection (3) on application of the Commission or a person authorised by the Commission. (3) The court may order the person to pay an amount not exceeding the amount that the court is satisfied represents the amount of any monetary benefits acquired by the person, or accrued or accruing to the person, as a result of the contravention of the term of the enforceable undertaking. (4) A person must pay an amount under subsection (3) to the Commission for payment into the Essential Services Commission Enforcement Fund. An amount that is ordered to be paid under this section is a debt due to the Commission and the Commission may recover the amount in the court—see section 54ZS. New Pt 7 Div. 4 (Heading and s. 54ZG) inserted by No. 41/2021 s. 9. Division 4—Compliance notices S. 54ZG inserted by No. 41/2021 s. 9. 54ZG Compliance notice (1) The Commission may serve a notice on a person requiring the person to do either or both of the following if the Commission has reason to believe that the person has contravened, or is contravening, a civil penalty requirement— (a) comply with a civil penalty requirement; (b) remedy a contravention of a civil penalty requirement. (2) A notice under subsection (1) must— (a) specify that it is alleged that the person has contravened, or is contravening, a civil penalty requirement; and (b) specify the nature, and provide a brief description of, the alleged contravention; and (c) specify the date on which the contravention is alleged to have occurred; and (d) if the notice requires the person to comply with a civil penalty requirement, specify the actions that the person must take to comply with the civil penalty requirement; and (e) if the notice requires the person to remedy an alleged contravention, specify the actions that the person must take to remedy the alleged contravention; and (f) specify that the service of the notice does not prevent the Commission from— (i) commencing a proceeding specified in subsection (3) against the person in relation to the contravention; or (ii) commencing a criminal proceeding for conduct that is substantially the same as the conduct constituted by the contravention. (3) For the purposes of subsection (2)(f)(i) the following proceedings are specified— (a) a proceeding for a contravention order; (b) a proceeding for an injunction under Division 5. Pt 7 Div. 5 (Heading and ss 54ZH–54ZL) inserted by No. 41/2021 s. 9. Division 5—Injunctions S. 54ZH inserted by No. 41/2021 s. 9. 54ZH Injunctions (1) A court may grant an injunction in any terms that it considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute— (a) a contravention of a determination, condition or provision referred to in subsection (2); or (b) attempting to contravene a determination, condition or provision referred to in subsection (2); or (c) aiding, abetting, counselling or procuring a person to contravene a determination, condition or provision referred to in subsection (2); or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene a determination, condition or provision referred to in subsection (2); or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a determination, condition or provision referred to in subsection (2); or (f) conspiring with others to contravene a determination, condition or provision referred to in subsection (2). (2) For the purposes of subsection (1), the determinations, conditions and provisions are— (a) a determination made by the Commission under this Act or relevant legislation (other than a determination made under Division 1A or 3 of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**); or (b) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing under relevant legislation; or (c) a condition, including a statutory condition, of a licence (other than a condition requiring compliance with a Code of Practice) issued to a regulated entity operating in a regulated industry that the Commission is responsible for licensing by reason of an Order made under section 4; or (d) a provision of a Code of Practice; or (e) a provision of this Act; or (f) a provision of relevant legislation (other than a provision that includes a statutory condition) in respect of which the Commission has powers or functions; or (g) a provision of the following Orders— (i) an Order made under section 13(1), 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), 48C(1) or 48D(1) of the **Gas Industry Act 2001**. (3) The court may grant the injunction under subsection (1) on application by the Commission or any other person. (4) An application for an injunction under subsection (1) may be made *ex parte*. (5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) in a regulated industry— (a) for a specified period; or (b) except on specified terms and conditions. (6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following— (a) refund money; (b) transfer property; (c) disclose information about the person's business activities or business associates; (d) honour a promise. (7) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind. (8) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. S. 54ZI inserted by No. 41/2021 s. 9. 54ZI Consent injunctions If an application is made under section 54ZH, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceeding, whether or not the court is satisfied as required by section 54ZH(1). S. 54ZJ inserted by No. 41/2021 s. 9. 54ZJ Interim injunctions If an application is made under section 54ZH, the court may, if it considers that it is desirable to do so, grant an interim injunction under this section pending the determination of the application. S. 54ZK inserted by No. 41/2021 s. 9. 54ZK Variation and discharge of injunctions A court may vary or discharge— (a) an injunction that it has granted under section 54ZH or 54ZI; or (b) an interim injunction that it has granted under section 54ZJ. S. 54ZL inserted by No. 41/2021 s. 9. 54ZL Undertakings as to damages and costs (1) In any application under section 54ZH, the court must accept an undertaking by the Commission and must not require a further undertaking from any other person, if— (a) the court would, but for this subsection, require a person to give an undertaking as to damages or costs; and (b) the Commission gives the undertaking. (2) Despite subsection (1), in an application for an injunction under section 54ZH, if the application has been made by the Commission and if the court has determined to grant an interim injunction, the Court must not, as a condition of granting an interim injunction, require the Commission or any other person to give any undertaking as to damages or costs. Pt 3 Div. 6 (Heading and s. 54ZM) inserted by No. 41/2021 s. 9. Division 6—Declarations S. 54ZM inserted by No. 41/2021 s. 9. 54ZM Declarations (1) A person may commence a proceeding in a court seeking, in relation to a determination, condition or provision referred to in section 54ZH(2)(a) to (g), the making of— (a) a declaration in relation to the operation or effect of the determination, condition or provision; or (b) a declaration in relation to the validity of any act or thing done, proposed to be done or purported to have been done in respect of the determination, condition or provision. (2) The Commission may commence a proceeding in a court seeking, in relation to a matter arising under this Act or relevant legislation, the making of a declaration of the kind that may be made under subsection (1)(a). Pt 3 Div. 7 (Heading and s. 54ZN) inserted by No. 41/2021 s. 9. Division 7—Other persons involved in contraventions of civil penalty requirements S. 54ZN inserted by No. 41/2021 s. 9. 54ZN Persons involved in contraventions (1) A person must not— (a) attempt to contravene a civil penalty requirement; or (b) aid, abet, counsel or procure a contravention of a civil penalty requirement; or (c) induce (by threats, promises or otherwise) a contravention of a civil penalty requirement; or (d) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty requirement; or (e) conspire to contravene a civil penalty requirement. (2) Divisions 1, 3, 4, 5 and 6 apply to a person who contravenes subsection (1) in relation to a civil penalty requirement as if the person had contravened the requirement. (3) Division 1 applies to a person who contravenes subsection (1) in relation to a civil penalty requirement as if any reference to a regulated entity or energy licensee were a reference to the person. Pt 3 Div. 8 (Heading and s. 54ZO) inserted by No. 41/2021 s. 9. Division 8—Register of Enforcement Action S. 54ZO inserted by No. 41/2021 s. 9. 54ZO Register of Enforcement Action (1) The Commission must establish and maintain a register of— (a) contravention orders; and (b) penalty notices that have been paid; and (c) enforceable undertakings. (2) The Commission must enter the following details in the Register of Enforcement Action— (a) for a contravention order— (i) the nature of the contravention order; and (ii) the name of the person against whom the contravention order was made; and (iii) any order made under Division 1, including the amount of any civil penalty under a civil penalty order; and (iv) the date on which the contravention order or other order referred to in subparagraph (iii) was made; (b) for a penalty notice— (i) the name of the person on whom the penalty notice was served; and (ii) the date the penalty notice was paid; and (iii) the civil penalty requirement that was contravened; and (iv) a short description of the nature of the contravention; (c) for an enforceable undertaking— (i) the name of the person who gave the enforceable undertaking; and (ii) the date the enforceable undertaking was given; and (iii) a copy of the enforceable undertaking. (3) The Commission must make the Register of Enforcement Action publicly available on an Internet site operated by the Commission, free of charge. Pt 7A (Headings and ss 54ZP–54ZV) inserted by No. 41/2021 s. 9. Part 7A—Funds Division 1—Essential Services Commission Enforcement Fund S. 54ZP inserted by No. 41/2021 s. 9. 54ZP Essential Services Commission Enforcement Fund (1) There must be established in the Public Account as part of the Trust Fund an account to be known as the Essential Services Commission Enforcement Fund. (2) Money must not be paid out of the Essential Services Commission Enforcement Fund except in accordance with this Division. S. 54ZQ inserted by No. 41/2021 s. 9. 54ZQ Payments into the Essential Services Commission Enforcement Fund There must be paid into the Essential Services Commission Enforcement Fund— (a) any fine ordered by a court to be paid on a finding of guilt in respect of an offence against— (i) this Act; or (ii) relevant legislation in respect of which the Commission has powers or functions; or (iii) the **Victorian Energy Efficiency Target Act 2007**, if the Commission was a party to the proceeding; or (iv) the **Victorian Renewable Energy Act 2006**, if the Commission was a party to the proceeding; and (b) any amount paid to the Commission under a civil penalty order; and (c) any notice penalty paid; and (d) any amount paid to the Commission under a monetary benefits order; and (e) any energy efficiency shortfall penalty paid to the Commission under the **Victorian Energy Efficiency Target Act 2001**; and (f) any renewable energy shortfall penalty paid to the Commission under the **Victorian Renewable Energy Act 2006**; and (g) any costs awarded to the Commission in any court proceeding under this Act or relevant legislation; and (h) any other amount required under this Act, relevant legislation or any other Act to be paid into the Essential Services Commission Enforcement Fund; and S. 54ZQ(ha) inserted by No. 23/2022 s. 13. (ha) money appropriated by Parliament for the purposes of the Essential Services Commission Enforcement Fund; and (i) money that is received from the investment of money in the Essential Services Commission Enforcement Fund; and (j) interest that is received on money invested in the Essential Services Commission Enforcement Fund. S. 54ZR inserted by No. 41/2021 s. 9. 54ZR Payments out of the Essential Services Commission Enforcement Fund There must be paid out of the Essential Services Commission Enforcement Fund— (a) amounts authorised by the Commission to fund the costs of performing its functions under section 10AA; and S. 54ZR(ab) inserted by No. 23/2022 s. 14. (ab) amounts authorised by the Commission to fund the costs of monitoring and reporting on compliance with— (i) the **Victorian Energy Efficiency Target Act 2007**; or (ii) the **Victorian Renewable Energy Act 2006**; and S. 54ZR(ac) inserted by No. 23/2022 s. 14. (ac) amounts authorised by the Commission to fund the costs of investigating contraventions or possible contraventions of— (i) the **Victorian Energy Efficiency Target Act 2007**; or (ii) the **Victorian Renewable Energy Act 2006**; and (b) amounts authorised by the Commission to fund the costs of proceedings in relation to contraventions of— (i) a civil penalty requirement; or (ii) the **Victorian Energy Efficiency Target Act 2007**; or (iii) the **Victorian Renewable Energy Act 2006**; and (c) reasonable expenses incurred in administering the Essential Services Commission Enforcement Fund; and (d) any refunds of notice penalties; and (e) amounts authorised by the Treasurer, in consultation with the Commission and the Minister, to be paid into the Consolidated Fund. S. 54ZS inserted by No. 41/2021 s. 9. 54ZS Recovery of amounts ordered to be paid into the Essential Services Commission Enforcement Fund (1) If a court orders a person to pay an amount specified in subsection (2)— (a) the amount is a debt due to the Commission; and (b) the Commission may recover the amount in any court of competent jurisdiction*.* (2) For the purposes of subsection (1), the following amounts are specified— (a) an amount required to be paid under a civil penalty order; (b) an amount required to be paid under a monetary benefits order. (3) Any amount recovered by the Commission under subsection (1) must be paid into the Essential Services Commission Enforcement Fund. Division 2—Essential Services Commission Operating Fund S. 54ZT inserted by No. 41/2021 s. 9. 54ZT Essential Services Commission Operating Fund (1) There must be established in the Public Account as part of the Trust Fund an account to be known as the Essential Services Commission Operating Fund. (2) Money must not be paid out of the Essential Services Commission Operating Fund except in accordance with this Division. S. 54ZU inserted by No. 41/2021 s. 9. 54ZU Payments into the Essential Services Commission Operating Fund There must be paid into the Essential Services Commission Operating Fund— (a) any fees paid under relevant legislation, to the extent that the fees relate to the functions of the Commission; and (b) any fees paid under the **Victorian Energy Efficiency Target Act 2007**; and (c) any fees paid under the **Victorian Renewable Energy Act 2006**; and (d) any other amount required under this Act, relevant legislation or any other Act to be paid into the Essential Services Commission Operating Fund; and S. 54ZU(da) inserted by No. 23/2022 s. 15. (da) money appropriated by Parliament for the purposes of the Essential Services Commission Operating Fund; and (e) money that is received from the investment of money in the Essential Services Commission Operating Fund; and (f) interest received on money invested in the Essential Services Commission Operating Fund. S. 54ZV inserted by No. 41/2021 s. 9. 54ZV Payments out of the Essential Services Commission Operating Fund There must be paid out of the Essential Services Commission Operating Fund— S. 54ZV(a) amended by No. 23/2022 s. 16. (a) amounts authorised by the Commission to fund the costs of performing its functions, including its functions under section 10AA; and (b) the costs and expenses of VCAT in relation to proceedings under this Act or relevant legislation; and (c) reasonable expenses incurred in administering the Essential Services Commission Operating Fund; and (d) any refunds of fees referred to in section 54ZU(a), (b) or (c); and (e) amounts authorised by the Treasurer, in consultation with the Commission and the Minister. Pt 7 Div. 3 (Heading) inserted by No. 49/2015 s. 15(2), amended by No. 21/2019 s. 7, renumbered as Pt 7B (Heading) by No. 41/2021 s. 26.