Subdiv 1Preliminary

Subdivision 1—Preliminary S. 16VA inserted by No. 28/2020 s. 3. 16VA Definitions and interpretation ***2018 rate of return instrument*** means the first rate of return instrument made by the AER under section 18I of the National Electricity (Victoria) Law; ***applicable 2016–2020 distribution determination*** means— (a) the AusNet 2016–2020 distribution determination; or (b) the Citipower 2016–2020 distribution determination; or (c) the Jemena 2016–2020 distribution determination; or (d) the Powercor 2016–2020 distribution determination; or (e) the United Energy 2016–2020 distribution determination; ***applicable 2021–2026 distribution determination*** means the distribution determination applying to electricity network services provided by a Victorian DNSP that applies immediately after the applicable 2016–2020 distribution determination applying to the services provided by the Victorian DNSP ceases effect; ***AusNet 2016–2020 distribution determination*** means the distribution determination made by the AER on 26 May 2016 under clause 6.11.1 of the Rules that applies to electricity network services provided by AusNet Electricity Services Pty Ltd (ABN 91 064 651 118)— ***Citipower 2016–2020 distribution determination*** means the distribution determination made by the AER on 26 May 2016 under clause 6.11.1 of the Rules that applies to electricity network services provided by Citipower Pty Ltd (ABN 76 064 651 056)— ***constituent decision*** has the meaning given by clause 6.12.1 of the Rules; ***determination extension period***, for an applicable 2016–2020 distribution determination, means the period— (a) commencing on 1 January 2021; and (b) ending on 30 June 2021; ***Jemena 2016–2020 distribution determination*** means the distribution determination made by the AER on 26 May 2016 under clause 6.11.1 of the Rules that applies to electricity network services provided by Jemena Electricity Networks (Vic) Ltd (ABN 82 064 651 083)— ***modify*** includes add, omit or substitute; ***Powercor 2016–2020 distribution determination*** means the distribution determination made by the AER on 26 May 2016 under clause 6.11.1 of the Rules that applies to electricity network services provided by Powercor Australia Limited (ABN 89 064 651 109)— ***publish***, in relation to a modification made by the AER under section 16VJ, or a variation decision, means publish as defined under Chapter 10 of the Rules; ***United Energy 2016–2020 distribution determination*** means the distribution determination made by the AER on 26 May 2016 under clause 6.11.1 of the Rules that applies to electricity network services provided by United Energy Distribution Pty Ltd (ABN 70 064 651 029)— ***variation decision*** means a decision under section 16VK(2); ***Victorian DNSP*** means any of the following entities— (a) AusNet Electricity Services Pty Ltd (ABN 91 064 651 118); (b) Citipower Pty Ltd (ABN 76 064 651 056); (c) Jemena Electricity Networks (Vic) Ltd (ABN 82 064 651 083); (d) Powercor Australia Limited (ABN 89 064 651 109); (e) United Energy Distribution Pty Ltd (ABN 70 064 651 029). (2) Words and expressions used in this Division that are defined in Chapter 10 of the Rules— (b) are to be read subject to any modifications made to those words or expressions under this Division. Subdivision 2—Regulatory years for distribution determinations S. 16VB inserted by No. 28/2020 s. 3. 16VB Meaning of regulatory year for the purposes of distribution determinations on and after 1 July 2021 Despite anything to the contrary in the National Electricity (Victoria) Law or the Rules, on and after 1 July 2021 a regulatory year for a regulatory control period in respect of a regulated distribution system operator is a consecutive period of 12 months commencing on 1 July every year. Subdivision 3—Extension of operation of 2016–2020 distribution determinations S. 16VC inserted by No. 28/2020 s. 3. 16VC Regulatory control period includes determination extension period (2) For the purposes of the National Electricity (Victoria) Law, the Rules, an applicable 2016–2020 distribution determination and this Division— (a) the regulatory control period for which a Victorian DNSP is subject to a control mechanism imposed by the applicable 2016–2020 distribution determination is— (i) the 5 regulatory years which apply since the commencement of the determination; and (ii) the determination extension period; and (b) the determination extension period is taken to be a regulatory year. S. 16VD inserted by No. 28/2020 s. 3. 16VD Pricing proposals for extended period of applicable 2016‑2020 distribution determinations (2) Subject to this Division, a Victorian DNSP must submit a pricing proposal under clause 6.18.2 of the Rules for approval under the Rules, for the determination extension period. The determination extension period is taken to be a regulatory year of the regulatory control period for which a Victorian DNSP is subject to a control mechanism imposed by an applicable 2016–2020 distribution determination—see section 16VC. (3) The pricing proposal mentioned in subsection (2) must comply with the Victorian DNSP's applicable 2016–2020 distribution determination regardless of whether the determination has been varied by the AER under section 16VK. (4) In addition, the pricing proposal mentioned in subsection (2) may include tariffs that reflect the efficient costs that the Victorian DNSP incurs as a direct result of the enactment of Subdivision 3. (5) For the purposes of this section— (a) a Victorian DNSP's tariff structure statement applying to the Victorian DNSP during the initial regulatory control period is taken to be a constituent decision, or constituent component, of the Victorian DNSP's applicable 2016–2020 distribution determination; and (b) the initial regulatory control period is taken to include the determination extension period for the Victorian DNSP's applicable 2016–2020 distribution determination. Initial regulatory control period is defined in clause 11.75.1 of the Rules. Subdivision 4—Orders in Council relating to applicable distribution determinations S. 16VE inserted by No. 28/2020 s. 3. 16VE Order setting requirements for modifications and variations to certain instruments (1) The Governor in Council, by Order published in the Government Gazette, for the purposes of giving effect to Subdivision 3, may do any one or more of the following— (a) specify particular modifications that must, or must not, be made to the 2018 rate of return instrument under section 16VJ, including modifications relating to— (i) the formulas or methodologies set out in the 2018 rate of return instrument under which a return on debt trailing average portfolio calculation is determined; (ii) the methodology or criteria set out in the 2018 rate of return instrument under which a return on debt averaging period is determined; (b) set out principles with which variations made to an applicable 2016–2020 distribution determination under section 16VK, or an applicable 2021–2026 distribution determination, must conform; (c) set out objectives which must be met by— (i) variations made to an applicable 2016–2020 distribution determination under section 16VK; or (ii) an applicable 2021–2026 distribution determination; (d) specify particular variations which must, or must not, be made to an applicable 2016–2020 distribution determination under section 16VK; (e) specify matters as matters to which an applicable 2016–2020 distribution determination, or an applicable 2021–2026 distribution determination, must, or must not, apply. (2) Without limiting subsection (1), an Order under that subsection may relate to any of the following— (a) a constituent decision, or component, of an applicable 2016–2020 distribution determination or an applicable 2021–2026 distribution determination, including a building block determination that is a constituent decision or constituent component of— (i) an applicable 2016–2020 distribution determination; (ii) an applicable 2021–2026 distribution determination; (b) any efficient costs that the Victorian DNSP incurs as a direct result of the enactment of Subdivision 3 and how those costs may be recovered under— (i) an applicable 2016–2020 distribution determination; (ii) an applicable 2021–2026 distribution determination. S. 16VF inserted by No. 28/2020 s. 3. 16VF Order modifying the National Electricity (Victoria) Law and Rules (1) The Governor in Council, by Order published in the Government Gazette, for the purposes of giving effect to an Order under section 16VE, may do either or both of the following— (a) modify the operation of the National Electricity (Victoria) Law as it applies as a law in Victoria; (b) modify the operation of the Rules (including definitions in Chapter 10 of the Rules) as they have the force of law in Victoria. (2) Without limiting subsection (1), an Order under that subsection may include a modification that provides that— (a) a specified provision of the Rules does not have the force of law in Victoria; (b) a specified definition in the Rules (including Chapter 10 of the Rules) does not have the force of law in Victoria. S. 16VG inserted by No. 28/2020 s. 3. 16VG General provisions apply to Orders under this Subdivision (1) An Order under section 16VE or 16VF may— (a) be of limited or general application; (b) differ according to time, place or circumstances; (c) confer functions and powers on, or leave any matter or thing to be decided by, the AER, or impose any duty on the AER; (d) contain provisions of a savings or transitional nature on the making of the Order; (e) make any modifications in relation to, or provide for, any matter that is— (i) incidental to a matter set out in the Order; or (ii) necessary to give effect to a matter set out in the Order. (2) An Order under section 16VE or 16VF has effect as from the date specified in the Order. S. 16VH inserted by No. 28/2020 s. 3. 16VH Functions and powers conferred and duties imposed on AER A function or power conferred or a duty imposed on the AER by an Order under this Subdivision is taken to be conferred or imposed by this Act. See sections 44AH and 44AI of the Competition and Consumer Act 2010 of the Commonwealth. S. 16VI inserted by No. 28/2020 s. 3. 16VI Effect of Orders under this Subdivision (1) An Order under this Subdivision has effect according to its tenor in relation to the following despite anything to the contrary in— (a) this Act; (b) any agreement or contract. (2) In addition— (a) the National Electricity (Victoria) Law applies as a law of Victoria subject to an Order under this Subdivision; and (b) the Rules have the force of law in Victoria subject to an Order under this Subdivision; and (c) the 2018 rate of return instrument has the force of law in Victoria subject to any modifications under section 16VJ or any Order under this Subdivision; and (d) an applicable 2016–2020 distribution determination (whether or not varied under section 16VK) has effect subject to any Order under this Subdivision; and (e) an applicable 2021–2026 distribution determination has effect subject to any Order under this Subdivision. Subdivision 5—Application of modified rate of return instrument S. 16VJ inserted by No. 28/2020 s. 3. 16VJ Application of modified 2018 rate of return instrument (2) The rate of return on capital calculated in accordance with the 2018 rate of return instrument applies, subject to any modifications under subsection (3), to the making of an AER economic regulatory decision in relation to the determination extension period of an applicable 2016–2020 distribution determination. (3) The AER, for the purposes of giving effect to Subdivision 3, may modify the application of the 2018 rate of return instrument to the making of an AER economic regulatory decision in relation to the determination extension period of an applicable 2016–2020 distribution determination. (4) Without limiting subsection (3), a modification under that subsection may relate to— (a) the formulas or methodologies set out in the 2018 rate of return instrument under which a return on debt trailing average portfolio calculation is determined; (b) the methodology or criteria set out in the 2018 rate of return instrument under which a return on debt averaging period is determined. (5) The AER must not make a modification under subsection (3) that is inconsistent with any applicable Order under this Division. (6) The AER must publish any modification under subsection (3). Subdivision 6—AER variations to applicable 2016–2020 distribution determinations S. 16VK inserted by No. 28/2020 s. 3. 16VK AER variations to applicable 2016–2020 distribution determinations (2) Subject to this Division, the AER may make a variation— (a) to any constituent decision, or constituent component, of an applicable 2016–2020 distribution determination, including a building block determination, that the AER considers necessary to be made as a consequence of the enactment of Subdivision 3; and (b) to any other part of an applicable 2016–2020 distribution determination that the AER considers necessary to be made as a consequence of— (i) the enactment of Subdivision 3; or (ii) the making of a variation under paragraph (a). (3) Without limiting subsection (2), the AER may, if the AER considers it necessary for a Victorian DNSP to recover the efficient costs it incurs as a direct result of the enactment of Subdivision 3, make any necessary variations under that subsection to an applicable 2016–2020 distribution determination to enable the Victorian DNSP to recover those costs. (4) The AER must not make a variation decision that includes the matter mentioned under subsection (3) unless the Victorian DNSP submits a pricing proposal under section 16VD that extends to the efficient costs that the Victorian DNSP incurs as a direct result of the enactment of Subdivision 3. (5) The AER must not make a variation decision that is inconsistent with any applicable Order under this Division. (6) The AER must publish a variation decision. Subdivision 7—Other matters S. 16VL inserted by No. 28/2020 s. 3. 16VL Definitions In this Subdivision— ***commencement day*** means the day on which section 3 of the **National Energy Legislation Amendment Act 2020** comes into operation; ***relevant distribution determination***, for a Victorian DNSP, means the first distribution determination that is to apply to electricity network services provided by the Victorian DNSP after the applicable 2016–2020 distribution determination ceases effect. S. 16VM inserted by No. 28/2020 s. 3. 16VM Failure to make a decision under the Law or Rules within time does not invalidate the decision (a) the AER makes a decision (however described) under the National Electricity (Victoria) Law or Rules in relation to the making of a distribution determination that is to apply to electricity network services provided by a Victorian DNSP for the regulatory control period commencing on 1 July 2021; and (b) the decision is made after the expiry of the period of time specified by the National Electricity (Victoria) Law or the Rules for the making of that decision. (2) Despite anything to the contrary in the National Electricity (Victoria) Law or the Rules, the decision is not to be taken to be an invalid decision only because the decision is not made within the specified period of time. (3) A decision to which this section applies takes effect on and after— (a) the day it is made; or (b) if it specifies a date for operation or effect that is after the day it is made, that specified date. S. 16VN inserted by No. 28/2020 s. 3. 16VN Failure to meet particular pricing proposal timeframe does not invalidate relevant distribution determinations (1) This section applies if before the commencement day a Victorian DNSP, in relation to the making of a relevant distribution determination for the Victorian DNSP, submitted a regulatory proposal, a proposed tariff structure statement and an exemption application (if required) to the AER under clause 6.8.2(b) of the Rules on a day that resulted in a period of time that was less than the minimum period of time required under that clause. (2) Despite anything to the contrary in the National Electricity (Victoria) Law or Rules, on and after the commencement day, the relevant distribution determination is not to be taken to be invalid only because the Victorian DNSP did not comply with clause 6.8.2(b) of the Rules. S. 16VO inserted by No. 28/2020 s. 3. 16VO Failure to meet particular consultation timeframe does not invalidate relevant distribution determinations (1) This section applies if before the commencement day the AER, in relation to the making of a relevant distribution determination for a Victorian DNSP— (a) did the thing required by clause 6.9.3(b) or (b2) of the Rules after the time within which the clause requires it to be done; or (b) specified a time for the purposes of clause 6.9.3(c) of the Rules in an invitation published under clause 6.9.3(b) of the Rules that resulted in a period of time that was less than the minimum period of time required under clause 6.9.3(c) of the Rules. (2) Despite anything to the contrary in the National Electricity (Victoria) Law or Rules, on and after the commencement day, the relevant distribution determination is not to be taken to be invalid only because the AER, as the case requires— (a) did the thing required by clause 6.9.3(b) or (b2) of the Rules after the time within which the clause required that thing to be done; and (b) specified a time for the purposes of clause 6.9.3(c) of the Rules in an invitation published under clause 6.9.3(b) of the Rules that resulted in a period of time that was less than the minimum period of time required under clause 6.9.3(c) of the Rules. S. 16VP inserted by No. 28/2020 s. 3. 16VP Modified 2018 rate of return instrument may affect certain pre‑2018 AER economic regulatory decisions Despite section 18V of the National Electricity (Victoria) Law, the 2018 rate of return instrument, as modified under section 16VF of this Act, may affect an AER economic regulatory decision made before the commencement of that instrument in relation to an applicable 2016–2020 distribution determination. S. 16VQ inserted by No. 28/2020 s. 3. 16VQ Validation of certain regulatory information notices served on Victorian DNSPs (1) A relevant regulatory information notice prepared, or purportedly prepared, and served before the commencement day that would have been validly prepared if this Division had been in operation at the time that the relevant regulatory information notice was prepared, or purportedly prepared, is, on and after the commencement day, taken to always had the same force and effect as it would have had if this Division had been in operation at that time. ***relevant regulatory information notice*** means— (a) a regulatory information notice served on a Victorian DNSP that refers to or states a regulatory control period in respect of that Victorian DNSP that commences on 1 July 2021 and ends on 30 June 2026; or (b) a regulatory information notice served on a Victorian DNSP on 4 October 2019 or 7 November 2019. Div. 7 (Heading and ss 16W–16ZI) inserted by No. 10/2020 s. 4.