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Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013

No. 11 of 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENT OF ELECTRICITY INDUSTRY ACT 2000 4

Division 1—Repeal of separation of generation, transmission and distribution restrictions 4

3 Condition restricting generating capacity 44 Repeal of provisions providing for the separation of generation,

transmission and distribution sectors 4

Division 2—Advanced metering infrastructure amendments 4

5 Definitions for the purpose of Division 6A of Part 2 (advanced metering infrastructure) 4

6 New section 46C substituted and new section 46CA inserted 546C Licence condition requiring compliance with Order 546CA Exempt seller condition requiring compliance with

Order 57 New section 46D substituted 6

46D Orders in relation to advanced metering infrastructure 68 Interrelationship of Orders and other provisions relating to

tariffs 139 New Part 8 inserted 14

PART 8—SAVINGS AND TRANSITIONALS 14

120 Transitional provision—Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013 14

1

PART 3—AMENDMENT OF GAS INDUSTRY ACT 2001 15

10 Repeal of prohibited interests provisions 15

PART 4—AMENDMENT OF NATIONAL ELECTRICITY (VICTORIA) ACT 2005 16

11 New Division heading inserted 1612 New Division heading inserted 1613 New section 16BA inserted 16

16BA Modification of National Electricity Rules to be consistent with advanced metering infrastructure Orders 16

14 New definition inserted for the purposes of Part 4 1715 New section 22A inserted 17

22A Specified regulatory law or instrument provisions are ESC enforceable regulatory requirements 17

16 References to the Essential Services Commission to be reconstrued 18

17 Essential Services Commission to have certain enforcement functions and powers 18

18 Enforcement of specified economic regulatory provisions and instruments by the ESC 19

19 New section 28A inserted 1928A Provision of information and assistance by AER to

the ESC 19

PART 5—AMENDMENT OF NATIONAL GAS (VICTORIA) ACT 2008 21

20 New definition inserted for the purposes of Part 5 2121 New section 20A inserted 21

20A Specified gas distribution system law or instrument provisions are ESC enforceable regulatory requirements 21

22 References to the Essential Services Commission to be reconstrued 21

23 Essential Services Commission to have certain enforcement functions and powers 22

24 Enforcement of specified economic regulatory provisions and instruments by the ESC 22

25 New section 34A inserted 2334A Provision of information and assistance by AER to

the ESC 2326 Declared distribution systems and declared transmission

systems 2427 Defined terms for the purposes of the National Gas (Victoria)

Law and National Gas Rules 24

PART 6—REPEAL OF AMENDING ACT 26

28 Repeal of amending Act 26═══════════════

ENDNOTES 27

Energy Legislation Amendment (Flexible Pricing and Other Matters)

Act 2013†

No. 11 of 2013

[Assented to 13 March 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Electricity Industry Act 2000—

(i) to repeal the electricity industry cross-ownership restrictions; and

Victoria

1

(ii) to make amendments in relation to the subject matter of advanced metering infrastructure Orders in Council; and

(b) to amend the Gas Industry Act 2001 to repeal the gas industry cross-ownership restrictions; and

(c) to amend the National Electricity (Victoria) Act 2005—

(i) to provide for a mechanism to address inconsistencies between the National Electricity Rules and advanced metering infrastructure Orders in Council under the Electricity Industry Act 2000; and

(ii) to enable the Essential Services Commission to take enforcement action in respect of contraventions or likely contraventions by electricity distributors of laws and instruments relating to the economic regulation of the provision of electricity distribution services; and

(d) to amend the National Gas (Victoria) Act 2008—

(i) to enable the Essential Services Commission to take enforcement action in respect of contraventions or likely contraventions by gas distribution companies of laws or instruments relating to the economic regulation of the provision of gas distribution services; and

(ii) to enable a distribution system or transmission system to be declared in relation to specific provisions of the National Gas (Victoria) Law.

Section Page

2

s. 1

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision referred to in subsection (1) does not come into operation before 1 December 2013, it comes into operation on that day.

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Section Page

3

s. 2

PART 2—AMENDMENT OF ELECTRICITY INDUSTRY ACT 2000

Division 1—Repeal of separation of generation, transmission and distribution restrictions

3 Condition restricting generating capacitySee:Act No.68/2000.Reprint No. 6as at17 March 2011and amendingAct Nos74/2010, 50/2011, 59/2011, 21/2012 and 51/2012.LawToday:www.legislation.vic.gov.aus. 3

Section 24 of the Electricity Industry Act 2000 is repealed.

4 Repeal of provisions providing for the separation of generation, transmission and distribution sectors

Part 3 of the Electricity Industry Act 2000 is repealed.

Division 2—Advanced metering infrastructure amendments

Part 6—Repeal of Amending Act


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5 Definitions for the purpose of Division 6A of Part 2 (advanced metering infrastructure)

In section 46B of the Electricity Industry Act 2000—

(a) the definitions of exempted retailer and relevant licensee are repealed;

(b) insert the following definitions—

"exempt seller means a person who—

(a) engages in the supply and sale of electricity; and

(b) is exempted from the requirement to obtain a licence in respect of that activity under an Order under section 17;

relevant entity means a retailer, exempt seller or distribution company determined in accordance with an Order under section 46D to be a relevant entity.".

6 New section 46C substituted and new section 46CA inserted

For section 46C of the Electricity Industry Act 2000 substitute—

"46C Licence condition requiring compliance with Order

A licence held by a relevant entity that is a retailer or distribution company is taken to include a condition requiring the retailer or distribution company to comply with an Order under section 46D.

46CA Exempt seller condition requiring compliance with Order

s. 6Part 6—Repeal of Amending Act


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An Order under section 17 exempting an exempt seller that is a relevant entity from the requirement to obtain a licence in order to engage in the supply and sale of electricity is taken to include a condition requiring the exempt seller to comply with an Order under section 46D.".

7 New section 46D substituted

For section 46D of the Electricity Industry Act 2000 substitute—

"46D Orders in relation to advanced metering infrastructure

(1) The Governor in Council, by notice published in the Government Gazette, may make an Order for or with respect to—

(a) the regulation of advanced metering infrastructure and associated services and systems;

(b) the regulation of the installation, operation and maintenance of advanced metering infrastructure and associated systems;

(c) the regulation of access to, or use of, advanced metering infrastructure and associated services and systems;

(d) the regulation of access to and use of, or ownership of, data or information obtained or transmitted from, or sent



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through, advanced metering infrastructure and associated services and systems, including the purpose for which that data or information is obtained, transmitted or sent.

(2) Without limiting subsection (1), an Order under subsection (1) may—

(a) specify a process for determining who is to be a relevant entity;

(b) specify the minimum functionality required of advanced metering infrastructure supplied or installed by or on behalf of a relevant entity and the associated services and systems required for its support;

(c) specify minimum standards of performance and service that must be met by a relevant entity in respect of the provision, installation, maintenance and operation of advanced metering infrastructure and associated services and systems;

(d) require trials of technologies to be conducted by or on behalf of a relevant entity to identify the most cost-effective methods for the delivery of advanced metering infrastructure and associated services and systems and specify the nature and timing of those trials;

(e) determine the number of customers or supply points (or both) in respect of which a relevant entity is required to supply or install advanced metering infrastructure and associated services and systems;



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(f) specify the factors to be used to determine the customers referred to in paragraph (e);

(g) determine the date or dates by which, and the location at which, the advanced metering infrastructure and associated services and systems must be supplied or installed and the date or dates by which the infrastructure, services and systems must become operational;

(h) specify how customers are to be notified when advanced metering infrastructure and associated services and systems become operational;

(i) specify the entity that is responsible for the installation, operation and maintenance of advanced metering infrastructure and associated services and systems;

(j) if a retailer is a relevant entity, specify the responsibilities of the entity on being notified of a customer's election to transfer to another retailer or an exempt seller, to ensure there is no cost impediment or other impediment to that transfer arising from the provision of advanced metering infrastructure;

(k) specify the responsibilities of an exempt seller on being notified of a customer's election to transfer to another exempt seller or a retailer, to ensure there is no cost impediment or other impediment to that transfer arising from the provision of advanced metering infrastructure;



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(l) provide for the setting and regulation of the prices, fees and charges that a relevant entity who is a distribution company may charge for or in connection with the costs of, or in relation to, the provision, installation, maintenance and operation of advanced metering infrastructure and associated services and systems;

(m) empower the recovery of the prices, fees and charges referred to in paragraph (l) from—

(i) a retailer who is a relevant entity or a class or classes of retailers who are relevant entities supplied with electricity by the distribution company, or all customers of a retailer who is a relevant entity or a class or classes of customers of a retailer who is a relevant entity and is so supplied;

(ii) an exempt seller or a class or classes of exempt sellers supplied with electricity by the distribution company, or all customers of an exempt seller or a class or classes of customers of an exempt seller who is so supplied;

(n) specify the structure of AMI tariffs or classes of AMI tariffs at which a relevant entity will distribute, supply or sell electricity;

(o) require a relevant entity that is a retailer or exempt seller to offer a specified customer, or a customer of a specified class, a choice of AMI tariffs or classes of AMI tariffs at which the entity will



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supply or sell electricity to the customer;

(p) require a relevant entity that is a retailer or exempt seller to transfer a customer being supplied and sold electricity by the entity at a specified AMI tariff or at a specified class of AMI tariff to another AMI tariff at the request of the customer;

(q) require a relevant entity that is a distribution company to, at the request of a retailer of a customer of that retailer, assign a specified AMI tariff or a specified class of AMI tariff at which electricity is distributed or sold by the entity to that customer;

(r) prohibit the imposition of a fee or charge for a transfer or assignment referred to in paragraph (p) or (q);

(s) require a relevant entity to give a specified customer, or a customer of a specified class, or a person or entity authorised by a customer—

(i) information of an explanatory kind about advanced metering infrastructure;

(ii) information about when a specified AMI tariff, or a specified class of AMI tariffs, may take effect;

(iii) notification of the date when, or the period within which, electricity will be supplied and sold to that specified customer, or customers of that specified class, at specified AMI tariffs;



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(iv) information as to the basis on which a specified AMI tariff, or a specified class of AMI tariffs, is calculated;

(v) information about the supply and installation of advanced metering infrastructure;

(vi) specified electricity usage, billing and metering data relating to the consumption of electricity metered through advanced metering infrastructure and associated services and systems;

(vii) any other information related to electricity supplied and sold through advanced metering infrastructure and associated services and systems;

(t) specify how information referred to in paragraph (s) is to be given to a specified customer, or a customer of a specified class, or a person or entity authorised by a customer;

(u) require a relevant entity to—

(i) prepare, publish and maintain specified information; or

(ii) give specified information to a specified customer, or a customer of a specified class, or to a person or entity authorised by the customer—

to enable the customer to compare offers for the supply and sale of



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electricity that is to be supplied and sold at specified AMI tariffs;

(v) specify how information referred to in paragraph (u) is to be published;

(w) require a relevant entity to obtain the specified consent of a customer before that customer agrees—

(i) to the supply and sale of electricity to that customer at a specified AMI tariff, or a specified class of AMI tariffs;

(ii) to a variation to a specified AMI tariff, or a specified class of AMI tariffs at which electricity is supplied or sold to that customer;

(x) require a relevant entity to keep confidential specified customer information, including historical electricity usage, billing and metering data relating to the consumption of electricity metered through advanced metering infrastructure and associated services and systems;

(y) require a relevant entity to provide specified information to another relevant entity (the second entity) for the purpose of enabling the second entity to comply with a requirement made under paragraph (s) or (u);

(z) specify how information referred to in paragraph (y) is to be given to the second entity;

(za) require a relevant entity to assist, in a specified manner, a specified customer, or a customer of a specified class, to



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enable the customer to determine whether the customer may benefit from being supplied and sold electricity at a specified AMI tariff;

(zb) require a relevant entity to establish and maintain a specified method, format, process or procedure (which may be an electronic method, format, process or procedure) by which a specified customer, or a customer of a specified class, who is supplied and sold electricity at an AMI tariff may access—

(i) data relating to electricity consumption by that customer;

(ii) information about that AMI tariff and other AMI tariffs;

(zc) provide for when a specified AMI tariff, or a specified class of AMI tariffs, may have effect;

(zd) specify the requirements to be met by a relevant entity before the entity may offer to supply and sell, or distribute and supply, electricity to a specified customer, or a customer of a specified class, at a specified AMI tariff or specified class of AMI tariffs;

(ze) prohibit or regulate the provision of supply capacity control services and load management services by means of advanced metering infrastructure and associated services and systems;



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(zf) provide for audits of activities of a relevant entity for the purpose of determining whether the relevant entity is complying with section 46C or 46CA.".

8 Interrelationship of Orders and other provisions relating to tariffs

In section 46DA of the Electricity Industry Act 2000, for "46D(j) to (s)" substitute "46D".

9 New Part 8 inserted

After Part 7 of the Electricity Industry Act 2000 insert—

"PART 8—SAVINGS AND TRANSITIONALS

120 Transitional provision—Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013

(1) Unless the context otherwise requires, on and after the commencement of section 5 of the Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013, every reference in a current AMI Order to a relevant licensee is taken to be a reference to a relevant entity.

(2) In this section, current AMI Order means an Order under section 46D that is in force immediately before the commencement of section 5 of the Energy Legislation

s. 8s. 9Part 6—Repeal of Amending Act


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Amendment (Flexible Pricing and Other Matters) Act 2013.

__________________".

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PART 3—AMENDMENT OF GAS INDUSTRY ACT 2001

10 Repeal of prohibited interests provisionsSee:Act No.31/2001.Reprint No. 5as at16 August 2012and amendingAct No.51/2012.LawToday:www.legislation.vic.gov.aus. 10

Part 6 of the Gas Industry Act 2001 is repealed.

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PART 4—AMENDMENT OF NATIONAL ELECTRICITY (VICTORIA) ACT 2005

11 New Division heading insertedSee:Act No.8/2005.Reprint No. 1as at20 May 2010and amendingAct Nos55/2010, 74/2010, 21/2012 and 51/2012.LawToday:www.legislation.vic.gov.aus. 11

After section 16 of the National Electricity (Victoria) Act 2005 insert the following Division heading—

"Division 2A—Feed-in tariff modifications".

12 New Division heading inserted

After section 16AB of the National Electricity (Victoria) Act 2005 insert the following Division heading—

"Division 2B—Metering".

13 New section 16BA inserted

After section 16B of the National Electricity (Victoria) Act 2005 insert—



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"16BA Modification of National Electricity Rules to be consistent with advanced metering infrastructure Orders

(1) The Minister, by Order published in the Government Gazette, may declare that—

(a) a provision of Chapter 7 of the National Electricity Rules—

(i) does not have the force of law in Victoria;

(ii) has the force of law in Victoria subject to modifications, if any, specified in the Order;

(b) Rule 6.18 of the National Electricity Rules has the force of law in Victoria subject to the modifications specified in the Order.

(2) The Minister may make an Order under subsection (1)(a) or (b) for the purpose of any matter necessary or consequential on the making of an Order under Division 6A of Part 2 of the Electricity Industry Act 2000.

(3) Despite section 6, the National Electricity Rules have the force of law in Victoria subject to any Order under subsection (1) that is in force.".

14 New definition inserted for the purposes of Part 4

In section 17 of the National Electricity (Victoria) Act 2005 insert the following definition—

"ESC enforceable regulatory requirement means a relevant regulatory law or instrument, or a provision of a relevant regulatory law or instrument, specified under an Order under section 22A;".



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15 New section 22A inserted

After section 22 of the National Electricity (Victoria) Act 2005 insert—

"22A Specified regulatory law or instrument provisions are ESC enforceable regulatory requirements

The Minister, by Order published in the Government Gazette, may specify a relevant regulatory law or instrument, or a provision of a relevant regulatory law or instrument, as an ESC enforceable regulatory requirement.".

16 References to the Essential Services Commission to be reconstrued

In section 23(3) National Electricity (Victoria) Act 2005, for "unless the context otherwise requires" substitute "or the Essential Services Commission, as the case requires".

17 Essential Services Commission to have certain enforcement functions and powers

At the end of section 24 of National Electricity (Victoria) Act 2005 insert—

"(2) On and after the commencement of section 17 of the Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013, the ESC has every function or power under a specified law, instrument or provision necessary for it to perform a function or duty or exercise a power under the Essential Services Commission Act 2001.

(3) Subsection (2) applies despite anything to the contrary in subsection (1).

(4) In subsection (2), specified law, instrument or provision means—



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(a) a relevant regulatory law or instrument; or

(b) a specified distribution licence condition; or

(c) a specified ESC code or guideline provision.".

18 Enforcement of specified economic regulatory provisions and instruments by the ESC

At the end of section 26 of the National Electricity (Victoria) Act 2005 insert—

"(2) Subsection (1) does not apply to a contravention or likely contravention by a relevant distributor of a condition of the distribution licence held by that distributor that requires compliance with an ESC enforceable regulatory requirement.".


After section 28 of the National Electricity (Victoria) Act 2005 insert—

"28A Provision of information and assistance by AER to the ESC

(1) Despite any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006), the AER is authorised, on its own initiative or at the request of the ESC—

(a) to provide the ESC with relevant regulatory information that is reasonably required by the ESC for the purposes of performing a function or duty or exercising a power under the Essential Services Commission Act



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2001 in relation to a contravention or likely contravention by a relevant distributor of a condition of the distribution licence held by that distributor constituted by a contravention or likely contravention of an ESC enforceable regulatory requirement; and

(b) to provide the ESC with such other assistance as is reasonably required by the ESC to perform a function or duty, or exercise a power referred to in paragraph (a).

(2) Nothing done, or authorised to be done, by the AER in acting under subsection (1)—

(a) constitutes a breach of, or default under, an Act or other law; or

(b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or

(c) constitutes a breach of a duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or

(d) constitutes a civil or criminal wrong; or

(e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or

(f) releases a surety or any other obligee wholly or in part from an obligation.

(3) In this section—



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relevant regulatory information means information (including information given in confidence) in the possession or control of the AER that the AER has obtained in performing a function or duty or exercising a power under this Part.".

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PART 5—AMENDMENT OF NATIONAL GAS (VICTORIA) ACT 2008

20 New definition inserted for the purposes of Part 5See:Act No.30/2008and amendingAct Nos30/2008, 59/2008, 23/2009, 10/2010, 21/2012 and 43/2012.LawToday:www.legislation.vic.gov.aus. 20

In section 17 of the National Gas (Victoria) Act 2008 insert the following definition—

"ESC enforceable regulatory requirement means a relevant gas distribution system law or instrument, or a provision of a relevant gas distribution system law or instrument, specified under an Order under section 20A;".


After section 20 of the National Gas (Victoria) Act 2008 insert—

"20A Specified gas distribution system law or instrument provisions are ESC enforceable regulatory requirements

The Minister, by Order published in the Government Gazette, may specify a relevant gas distribution system law or instrument, or a provision of a relevant gas distribution system law or instrument, as an ESC enforceable regulatory requirement.".



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22 References to the Essential Services Commission to be reconstrued

In section 28(3) of the National Gas (Victoria) Act 2008, for "unless the context otherwise requires" substitute "or the Essential Services Commission, as the case requires".

23 Essential Services Commission to have certain enforcement functions and powers

At the end of section 29 of the National Gas (Victoria) Act 2008 insert—

"(2) On and after the commencement of section 23 of the Energy Legislation Amendment (Flexible Pricing and Other Matters) Act 2013, the ESC has every function or power under a specified law or instrument necessary for it to perform a function or duty or exercise a power under the Essential Services Commission Act 2001.

(3) Subsection (2) applies despite anything to the contrary in subsection (1).

(4) In subsection (2), specified law or instrument means—

(a) a relevant gas distribution system law or instrument; or

(b) a condition of a distribution licence held by a gas distribution company.".

24 Enforcement of specified economic regulatory provisions and instruments by the ESC




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"(2) Subsection (1) does not apply to a contravention or likely contravention by a gas distribution company of a condition of the distribution licence held by that company that requires compliance with an ESC enforceable regulatory requirement.".


After section 34 of the National Gas (Victoria) Act 2008 insert—

"34A Provision of information and assistance by AER to the ESC

(1) Despite any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006), the AER is authorised, on its own initiative or at the request of the ESC—

(a) to provide the ESC with relevant regulatory information that is reasonably required by the ESC for the purposes of performing a function or duty or exercising a power under the Essential Services Commission Act 2001 in relation to a contravention or likely contravention by a gas distribution company of the distribution licence held by that company constituted by a contravention or likely contravention of an ESC enforceable regulatory requirement; and

(b) to provide the ESC with such other assistance as is reasonably required by the ESC to perform a function or duty,



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or exercise a power referred to in paragraph (a).

(2) Nothing done, or authorised to be done, by the AER in acting under subsection (1)—

(a) constitutes a breach of, or default under, an Act or other law; or

(b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or

(c) constitutes a breach of a duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or

(d) constitutes a civil or criminal wrong; or

(e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or

(f) releases a surety or any other obligee wholly or in part from an obligation.

(3) In this section—

relevant regulatory information means information (including information given in confidence) in the possession or control of the AER that the AER has obtained in performing a function or duty or exercising a power under this Part.".

26 Declared distribution systems and declared transmission systems




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"(2) A declaration in an Order under subsection (1) may be in relation to a specified provision of the National Gas (Victoria) Law.".

27 Defined terms for the purposes of the National Gas (Victoria) Law and National Gas Rules

(1) In the heading to section 45 of the National Gas (Victoria) Act 2008, after "Law" insert "and National Gas Rules".

(2) In section 45 of the National Gas (Victoria) Act 2008, after "National Gas (Victoria) Law" insert "and the National Gas Rules".

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PART 6—REPEAL OF AMENDING ACT

28 Repeal of amending Act

This Act is repealed on 1 December 2014.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 12 December 2012

Legislative Council: 21 February 2013

The long title for the Bill for this Act was "A Bill for an Act to amend the Electricity Industry Act 2000, the Gas Industry Act 2001, the National Electricity (Victoria) Act 2005 and the National Gas (Victoria) Act 2008 and for other purposes."

Documents

Energy Legislation Amendment (Flexible Pricing and …FILE/13-011a.docx · Web viewEnergy Legislation Amendment (Flexible Pricing and Other Matters) ... Energy Legislation Amendment