Wednesday, 17 May 2023
Bills
Energy Legislation Amendment (Energy Safety) Bill 2023
Energy Legislation Amendment (Energy Safety) Bill 2023
Statement of compatibility
Lily D’AMBROSIO (Mill Park – Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (11:30): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Energy Legislation Amendment (Energy Safety) Bill 2023.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Energy Legislation Amendment (Energy Safety) Bill 2023 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill makes amendments to the Electricity Safety Act 1998, Gas Safety Act 1997 and Pipelines Act 2005 that will improve community safety through more effective and targeted regulation of new and emerging energy safety risks, including those posed by emerging technologies. The Bill will do this by –
• extending the mandatory requirements under the Electricity Safety Act 1998 for major electricity companies to prepare an electricity safety management scheme and bushfire management plan to declared owners and operators of specified electrical installations. These amendments will mean that those businesses identified as posing a greater safety risk to surrounding lands from the operation of their electrical installations will be required to demonstrate a clear plan for mitigating those safety risks. These businesses will also be subject to certain safety duties and obligations commensurate with a major electricity company under the Electricity Safety Act 1998;
• minor technical amendments to ensure the administration of safety management plans by the relevant entity to ensure they remain current to technological changes in electrical installations or the supply of gas;
• align the existing general duties under the Electricity Safety Act 1998 for companies with complex electrical installations with those existing general duties for companies with electricity supply networks;
• require an electricity supplier to preserve the site of a serious electrical incident and a gas company to preserve the site of a gas incident, for inspection by an enforcement officer or authorised inspector;
• extend the period Energy Safe Victoria can hold onto seized things from an affected company (person);
• provide Energy Safe Victoria and the Minister for Energy and Resources with the power to enter into enforceable undertakings with regulated entities as an optional tool from bringing court proceedings; and
• increasing maximum penalties for offences by energy entities relating to maintaining safe networks.
Human rights protected by the Charter that are relevant to the Bill
Section 20 – Property rights
Section 20 of the Charter provides that a person must not be deprived of that person’s property other than in accordance with the law.
Preservation of site of serious incident
Division 2 of Part 12 of the Electricity Safety Act 1998 requires an electricity supplier to report to Energy Safe Victoria, in accordance with the regulations made under that Act, any serious electrical incident which occurs in relation to the supplier’s supply network or any for which it becomes aware, where the incident occurs in relation to an electricity installation that supplies electricity. Similarly, section 36 of the Gas Safety Act 1997 requires a gas company to report to Energy Safe Victoria, in accordance with regulations under that Act, any gas incident which occurs in relation to a facility to that gas company or any incident for which it becomes aware, where it occurs in relation to a gas installation to which it supplies or sells gas.
Once reported, the electricity supplier or gas company has an obligation to investigate an incident. To ensure the preservation of the incident site until this investigation is complete, clause 39 (new section 142A of the Electricity Safety Act 1998) and clause 44 (new section 36A of the Gas Safety Act 1997) of the Bill prohibits an electricity supplier or gas company respectively from, without reasonable excuse, disturbing the incident site until otherwise notified by the authorised officer.
To protect the health or safety of any person in the vicinity of the incident site, the Bill also provides an exemption allowing the incident site to be disturbed for the purpose of aiding an injured person or taking action necessary to make the site safe or prevent a further incident. The primary obligations set out in these new provisions regulate the actions of an electrical supplier or gas company and do not directly engage rights set out in the Charter. However, a safety incident may occur on private property thereby affecting a person’s property right to attend to their land. The intent of the prohibition from disturbing the site where an incident has occurred provides for an investigation to be undertaken and mitigates the potential of further threats to the safety and well-being of the property owner, safety personnel attending the site or others in the surrounding area.
Insofar as these provisions restrict a person’s free access to their property, they do impact on property rights under the Charter. However, this restriction on individual property rights is balanced by the public health and safety considerations conferred by this Bill which justify the limitation to the right to property in these circumstances.
Retention of seized property
Division 2 of Part 11 of the Electricity Safety Act 1998 set out the powers of entry of authorised officers to the extent that it is necessary to do so for the purpose of investigating a serious electricidal incident, determining compliance with an electricity safety management scheme or determining compliance with the Act or regulations made under that Act. Similarly, Division 2 of Part 5 of the Gas Safety Act 1997 set out the powers of entry of authorised officers, to the extent that it is reasonably necessary to do so, for the purpose of investigating a gas incident, determining compliance with a safety case, monitoring the safety of gas installations and determining compliance with this safety Act or the regulations under that Act.
An enforcement officer (under the Electricity Safety Act) or inspector (under the Gas Safety Act) may, amongst other things, seize anything on the land or premises the enforcement officer or inspector believes on reasonable grounds that is necessary to be seized in order to prevent its concealment, loss or destruction. If a thing is seized by an enforcement officer or inspector, the enforcement officer or inspector must take reasonable steps to return the thing to the person from whom it was seized if the reason for its seizure no longer exists. If the thing has not been returned within 14 days after it is seized the enforcement officer or inspector must take reasonable steps to return it unless proceedings have commenced and those proceedings (including any appeal) have not been completed or a court makes an order extending the period of 14 days.
Clause 34 and 56 of the Bill extends the period of 14 days in both the Electricity Safety Act 1998 and Gas Safety Act 1997 to 60 days. This is because the current 14-day period has been found to be insufficient to carry-out fully the necessary technical examination(s) of part or the whole of the effected electricity or gas installation where a serious safety incident has occurred. The extension to the statutory retention period will ensure that adequate time is provided without the need to continually apply to the court to obtain an extension Order (available under both Acts).
For the most part, things seized will be the property of an electricity or gas entity for which the Charter does not apply. However, there is still scope that a thing or things (personal property) may be seized from a property owner on whose property the electrical or gas incident occurred. The seizure of any personal property, lawful under both Acts, would be to determine the cause and effect of a safety incident, thereby potentially mitigating any further damage caused by the incident. On this basis, the public health and safety benefits arising from this Bill justify any potential restriction of property rights under the Charter.
Given the importance served by the new provisions in the Bill to the safety, wellbeing and protection of life and property, it is my view that any potential limitation on the right to property is lawful and non-arbitrary and compatible with the human rights as set out in the Charter.
Hon Lily D’Ambrosio MP
Minister for Energy and Resources
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The provision of an essential service like energy cannot occur without appropriate regard to safety frameworks. Safety is central to the proper delivery of energy and is crucial to safeguarding consumer protection and confidence.
The Bill is a key part of the Government’s broader package of reforms aimed at making Victoria’s energy systems more sustainable and accountable to delivering consumer-focused outcomes.
The Bill will amend the Electricity Safety Act 1998, the Gas Safety Act 1997, and the Pipelines Act 2005, to strengthen the energy safety compliance framework.
Increase in new energy technologies and need for safety framework reform
Over the past two decades, driven by a range of policies at state and federal levels, the electricity sector has been replacing carbon-intensive generation with zero-carbon technologies. At the same time, the sector is moving away from a small number of large-scale facilities, owned and operated by a handful of companies, toward smaller-scale, more widely-distributed, electricity production.
This exponential growth in new energy technologies, particularly in renewable energy and storage has exposed critical gaps and other weaknesses in the energy safety legislative framework. The current safety framework was developed based on the risk profiles of regulated entities in the late 1990s, which did not factor in uptake and investment in small- scale renewable or battery installations. These risks are real, with two serious incidents in 2021 underscoring the inability of Energy Safe Victoria (ESV) to regulate these facilities before these incidents occurred.
Amendments
The Bill makes amendments to the Electricity Safety Act 1998 to allow the Governor in Council, on the recommendation of the Minister for Energy and Resources, to declare certain electricity installations to be of a class to which certain duties and obligations apply. This would make the obligations imposed on these installations comparable with those currently imposed on major distribution and transmission companies. These include enhanced safety obligations, and the requirement to pay levies to ESV.
Other amendments will align the duties and obligations of owners and operators of electricity installations to be commensurate with those of traditional electricity market participants, such as streamlining submissions of electricity safety management plans, as well as reframing their duties aimed at minimising safety risks so far as reasonably practicable.
The Bill also amends the Electricity Safety Act 1998, the Gas Safety Act 1997, and Pipelines Act 2005 to increase civil penalties up to sixfold from their previous amounts. Amendments will provide ESV greater control over any changes to safety management plans and the ability to conduct full revisions of these plans after five years.
The current regime allows for incremental changes to be made which cumulatively can result in significant change to safety management plans. These can be made unilaterally without any notice or acceptance by ESV, making it impracticable for ESV to monitor and enforce compliance with the safety management plans. Amendments will ensure all changes to safety management plans are agreed by ESV, and that full revision of such plans are required every five years.
The Bill will align general duties in the Electricity Safety Act 1998 for complex electrical installations with those for electricity supply networks, and allow operators as well as owners to submit voluntary safety management plans.
The Bill will greatly strengthen ESV’s investigation powers, including the preservation of serious electrical or gas incident sites, and align the period for which ESV can retain seized items. It will change the start of the period in which ESV can bring court proceedings to the time the offence comes to ESV’s notice, rather than the time of commission of the offence.
The Bill will provide both ESV, as regulator under the Electricity Safety Act 1998 and the Gas Safety Act 1997, and the Minister for Energy and Resources, as the regulator under the Pipelines Act 2005, the power to enter enforceable undertakings with regulated entities. It will also increase maximum penalties relating to maintaining safe networks.
I commend the Bill to the house.
Cindy McLEISH (Eildon) (11:30): I move:
That the debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 31 May.