Victorian Numbered Acts Victorian Numbered ActsAfter section 54A of the Essential Services Commission Act 2001 insert —
(1) The Commission may accept a written undertaking given by an energy licensee in connection with a matter in relation to which the Commission has a function or power under—
(a) this Act; or
(b) the Electricity Industry Act 2000 ; or
(c) the Gas Industry Act 2001 .
(2) An energy licensee may withdraw or vary the undertaking at any time, but only with the consent of the Commission.
Subject to section 54D, the Commission must not take enforcement action in respect of a matter in relation to which the Commission has a function or power referred to in section 54B against an energy licensee—
(a) who has given an undertaking under section 54B that is in effect in respect of the matter; or
(b) who has given an undertaking in respect of the matter that was in effect and which has been completely discharged.
(1) If the Commission considers that an energy licensee who gave an undertaking under section 54B has contravened any of its terms, the Commission may apply to the Supreme Court for an order under subsection (2).
(2) If the Court is satisfied that the energy licensee has contravened a term of the undertaking, the Court may make all or any of the following orders—
(a) an order directing the energy licensee to comply with that term of the undertaking;
(b) an order directing the energy licensee to pay to the Minister an amount of up to the amount of any financial benefit that the energy licensee has obtained directly or indirectly and that is reasonably attributable to the contravention;
(c) any order that the Court considers appropriate directing the energy licensee to compensate any person who has suffered loss or damage as a result of the contravention;
(d) any other order the Court considers appropriate.
(3) Every amount received by the Minister pursuant to an order of the Supreme Court under subsection (2)(b) must be paid into the Consolidated Fund.
In this Subdivision—
energy industry contravention has the meaning given by section 54F;
"energy industry penalty"—see section 54I(1);
"energy industry penalty notice" means a notice served under section 54G;
"Energy Retail Code" means the document entitled "Energy Retail Code" published by the Commission, as amended from time to time;
"penalty notice" means—
(a) an energy industry penalty notice; or
(b) a wrongful disconnection penalty notice;
"wrongful disconnection contravention" means a contravention referred to in section 54H(1)(c);
"wrongful disconnection penalty notice" means a notice served under section 54H;
wrongful disconnection penalty —see section 54I(2).
(1) An "energy industry contravention" is—
(a) a contravention of a prescribed condition of an energy licence in a prescribed circumstance; or
(b) a contravention of a prescribed provision of a Code of Practice.
(2) However, an energy industry contravention does not include a wrongful disconnection contravention.
(1) The Commission may serve a notice (an energy industry penalty notice ) on an energy licensee if the Commission has reason to believe the energy licensee has engaged in conduct that constitutes an energy industry contravention.
(2) The Commission must, however, serve an energy industry penalty notice not later than 12 months after the date on which the Commission forms a belief that the energy licensee has engaged in conduct that constitutes an energy industry contravention.
(1) The Commission may serve a notice (a wrongful disconnection penalty notice ) on an energy retailer if the Commission has reason to believe—
(a) the supply of electricity or gas to the premises of a customer has been disconnected; and
(b) the energy retailer has arranged for the supply of electricity or gas to be disconnected from the customer's premises and has not complied with a requirement of the Energy Retail Code relating to disconnecting a customer's supply of electricity or gas; and
(c) that conduct constitutes a contravention of a condition of the energy retailer's energy licence that requires compliance with the Energy Retail Code.
(2) The Commission must, however, serve a wrongful disconnection penalty notice not later than 12 months after the date on which the Commission forms a belief that the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention.
(1) The energy industry penalty for an energy industry contravention is $20 000 or any lesser amount that is prescribed for that energy industry contravention.
(2) The wrongful disconnection penalty is $5000.
A penalty notice must state the following—
(a) the date of the notice;
(b) in the case of an energy industry penalty notice—
(i) that it is alleged that the energy licensee has engaged in conduct that constitutes an energy industry contravention; and
(ii) the nature, and a brief description, of the alleged energy industry contravention; and
(iii) the date on which the Commission formed the belief that the energy licensee engaged in the conduct that constitutes the alleged contravention; and
(iv) the condition of the energy licensee's energy licence or the provision of the Code of Practice that it is alleged the energy licensee has contravened;
(c) in the case of a wrongful disconnection penalty notice—
(i) that it is alleged that the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention; and
(ii) the nature, and a brief description, of the circumstances of the disconnection and the requirement of the Energy Retail Code with which it is alleged the energy retailer has not complied; and
(iii) the date and time when the disconnection of the supply of electricity or gas to the premises occurred; and
(iv) the address of the premises referred to in subparagraph (iii); and
(v) the condition of the energy retailer's energy licence requiring the energy retailer to comply with the Energy Retail Code;
(d) the amount of the energy industry penalty or wrongful disconnection penalty for the alleged contravention;
(e) the manner in which the energy industry penalty or wrongful disconnection penalty may be paid;
(f) the time (being not less than 28 days after the date on which the notice is served) within which the energy industry penalty or wrongful disconnection penalty must be paid;
(g) that, if the amount of the energy industry penalty or wrongful disconnection penalty is paid before the end of the time specified in the notice, relevant enforcement action will not be taken by the Commission in relation to the alleged energy industry contravention or wrongful disconnection contravention unless the notice is withdrawn before the end of that time in accordance with section 54N;
(h) that the person is entitled to disregard the notice and defend any proceeding relating to the alleged energy industry contravention or wrongful disconnection contravention;
(i) any other prescribed particulars.
A penalty notice may be served on an energy licensee or energy retailer—
(a) by delivering it personally to the registered office or usual or last known place of business of the energy licensee or energy retailer; or
(b) by sending it by post to the energy licensee or energy retailer at its registered office or usual or last known place of business.
On serving a penalty notice, the Commission must not take any relevant enforcement action in relation to the contravention for which the notice was served if—
(a) the time for payment stated in the notice has not expired; and
(b) the notice has not been withdrawn by the Commission in accordance with section 54N.
The Commission may accept payment of an energy industry penalty or a wrongful disconnection penalty even after the expiration of the time for payment stated in the relevant penalty notice if—
(a) relevant enforcement action has not been taken in relation to the contravention to which the penalty relates; and
(b) the notice has not been withdrawn by the Commission in accordance with section 54N.
(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 energy licensee or energy retailer served with the penalty notice.
(2) A withdrawal notice may be served on an energy licensee or energy retailer—
(a) by delivering it personally to the registered office or usual or last known place of business of the energy licensee or energy retailer; or
(b) by sending it by post to the energy licensee or energy retailer at its registered office or usual or last known place of business.
(3) A penalty notice may be withdrawn even if the relevant energy industry penalty or wrongful disconnection penalty has been paid.
If a penalty notice is withdrawn in accordance with section 54N, the amount of any energy industry penalty or wrongful disconnection penalty paid must be refunded by the Minister and the Consolidated Fund is appropriated by the necessary extent.
No enforcement action may be taken by the Commission against an energy licensee or energy retailer on whom a penalty notice was served in relation to an alleged energy industry contravention or alleged wrongful disconnection contravention if—
(a) the energy industry penalty or wrongful disconnection 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 54N; or
(b) the energy industry penalty or the wrongful disconnection penalty is accepted in accordance with section 54M.
(1) The payment of an energy industry penalty under this Part is not and must not be taken to be an admission of an energy industry contravention or an admission of liability for the purpose of any enforcement action taken in relation to the contravention.
(2) The payment of a wrongful disconnection penalty under this Part is not and must not be taken to be an admission of a wrongful disconnection contravention or an admission of liability for the purpose of any enforcement action taken in relation to the contravention.
(1) Subject to subsection (3), if the conduct of an energy licensee constitutes 2 or more energy industry contraventions, an energy industry penalty notice may be served on the energy licensee in relation to each energy industry contravention.
(2) Subject to subsection (3), if the conduct of an energy retailer constitutes 2 or more wrongful disconnection contraventions, a wrongful disconnection penalty notice may be served on the energy retailer in relation to each wrongful disconnection contravention.
(3) An energy licensee or energy retailer is not liable to pay more than one energy industry penalty or one wrongful disconnection penalty in relation to the same conduct.
(1) The Commission may apply to the Supreme Court for an order under subsection (3) in respect of an energy licensee or energy retailer on whom a penalty notice has been served if—
(a) the Commission has withdrawn the notice under section 54N; or
(b) the Commission has not withdrawn the notice and—
(i) the energy licensee or energy retailer has not paid the energy industry penalty or the wrongful disconnection penalty before the time stated in the notice for payment; or
(ii) the Commission has not accepted payment of the energy industry penalty or the wrongful disconnection penalty under section 54M.
(2) The Court may make an order under subsection (3) if the Court is satisfied that—
(a) in the case of an energy industry penalty notice, the energy licensee has engaged in conduct that constitutes an energy industry contravention; or
(b) in the case of a wrongful disconnection penalty notice, the energy retailer has engaged in conduct that constitutes a wrongful disconnection contravention.
(3) The Court may make all or any of the following orders—
(a) an order directing the energy licensee or energy retailer on whom the penalty notice was served—
(i) to pay to the Minister the energy industry penalty or the wrongful disconnection penalty; or
(ii) to pay to the Minister an amount of up to the amount of any financial benefit that the energy licensee or energy retailer has obtained directly or indirectly and that is reasonably attributable to the energy industry contravention or wrongful disconnection contravention;
(b) any order that the Court considers appropriate directing the energy licensee or energy retailer to compensate any person who has suffered loss or damage as a result of the energy industry contravention or wrongful disconnection contravention;
(c) any other order that the Court considers appropriate.
(1) An energy industry penalty or wrongful disconnection penalty is to be paid to the Minister who must then pay it into the Consolidated Fund.
(2) Every energy industry penalty or wrongful disconnection penalty or other amount received by the Minister pursuant to an order of the Supreme Court under section 54S must be paid into the Consolidated Fund.
(1) The Commission must cause a notice of any enforcement action it takes in respect of an energy licensee to be published on its Internet site.
(2) A notice under subsection (1) must state—
(a) the name of the energy licensee; and
(b) the nature of the enforcement action taken in respect of the energy licensee; and
(c) the status of any proceeding commenced, or action taken, in relation to the enforcement action.
(3) The Commission may also cause a notice that contains an update of the status of any proceeding commenced, or action taken, in relation to the enforcement action, to be published on its Internet site.
(1) The Commission must, as soon as practicable after 30 June (but on or before 30 November) in each year publish on its Internet site a report (a compliance and enforcement report ) on the matters referred to in subsection (2) in respect of the period of 12 months ending with 30 June in that year.
(2) A compliance and enforcement report must include the following (in relation to the period to which the report relates)—
(a) a report on all enforcement action taken by the Commission in respect of each energy retailer;
(b) a report on the extent to which each energy retailer has complied, or failed to comply, with its obligations under its energy licence conditions and the provisions of any Code of Practice;
(c) a report on the performance of each energy retailer measured against the performance indicators;
(d) any other matters the Commission considers appropriate.
(3) The Commission, after each quarter must update the report in respect of that quarter. The Commission must do so before the end of the next quarter.
(4) In this section—
"performance indicators" means the indicators for the performance of an energy retailer determined by the Commission under section 54W;
"quarter" means the period of 3 months ending on 30 September, 31 December, 31 March or 30 June in any year.
For the purposes of a compliance and enforcement report under section 54V, the Commission must determine—
(a) indicators for the performance of an energy retailer in relation to—
(i) disconnections and reconnections of the supply of electricity or gas to the premises of customers; and
(ii) the extent to which the energy retailer has complied with the deemed licence condition in section 40B of the Electricity Industry Act 2000 or section 48A of the Gas Industry Act 2000 ; and
(iii) the number of wrongful disconnection penalty notices (if any) served on the energy retailer under Subdivision 2 and the status of any proceeding commenced, or action taken, in relation to those wrongful disconnection penalty notices; and
(b) any other indicators for the performance of an energy retailer the Commission determines.
(1) A person administering a customer dispute resolution scheme may refer a matter in relation to an energy licensee to the Commission if the person believes that there is a problem with, or change in, the energy licensee's policy, practice or conduct that adversely affects, or has the potential to adversely affect, a number of customers (a systemic issue ).
(2) Without limiting subsection (1), a systemic issue includes any of the following—
(a) a change to the energy licensee's billing, metering, supply or other systems;
(b) an absence of a policy, procedure or guideline in relation to a matter;
(c) inadequate policies, procedures or guidelines;
(d) a failure to comply with applicable legislation (including any regulations) or licence conditions or Codes of Practice;
(e) the conduct of the energy licensee's employee, agent, officer or contractor.
(3) If a person administering a customer dispute resolution scheme refers a systemic issue to the Commission, the Commission must—
(a) as soon as practicable after receiving the referral, provide a copy of the referral to the Minister; and
(b) report to the Minister—
(i) the action (if any) it proposes to take to address the systemic issue; and
(ii) the time within which it intends to take that action; and
(c) as soon as practicable after the period referred to in paragraph (b)(ii) ends, report to the Minister the outcome of the action referred to in paragraph (b)(i).
(4) The Minister may direct the Commission to give a copy of a report given to the Minister under subsection (3)(c) to the person who made the referral under subsection (1).
(5) A person who refers a systemic issue to the Commission must also provide any information about the systemic issue that is available to the person to the Commission.
(6) In this section—
"applicable legislation" means—
(a) this Act; or
(b) the Electricity Industry Act 2000 ; or
(c) the Gas Industry Act 2001 ;
"customer dispute resolution scheme" means a customer dispute resolution scheme approved by the Commission referred to in—
(a) section 28 of the Electricity Industry Act 2000 ; or
(b) section 36 of the Gas Industry
Act 2000 .'.
Part 4—Amendment of Gas Industry Act 2001