Thursday, 20 March 2025

Bills

Victorian Energy Efficiency Target Amendment (Energy Upgrades for The Future) Bill 2025

Statement of compatibility

Lily D’AMBROSIO (Mill Park – Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (10:08): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Victorian Energy Efficiency Target Amendment (Energy Upgrades for the Future) Bill 2025:

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 Victorian Energy Efficiency Target Amendment (Energy Upgrades for the Future) Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

This Bill amends the Victorian Energy Efficiency Target Act 2007 so that the Victorian Energy Efficiency Target Scheme, also known as the Victorian Energy Upgrades (VEU) program, can continue to support energy efficiency in Victorian households and businesses. The Bill does this by extending the operation of the VEET Scheme to the end of 2045, allowing the VEU program to provide incentives for mandated upgrades, increasing the flexibility of Victorian Energy Efficiency Certificate surrender deadlines and providing the regulator, the Essential Services Commission, with a range of new and expanded enforcement tools to encourage and enforce compliance with the Act and regulations made under the Act.

The VEET Scheme regulates the participation of accredited persons and scheme participants. These entities are often businesses, body corporates and sole traders. However, to the extent that accredited persons and scheme participants are natural persons, the following amendments in the Bill may engage human rights contained in the Charter of Human Rights Act 2006:

• The prescription of several existing, and new, requirements under the VEET Act as civil penalty requirements for the purposes of the Essential Services Commission Act 2001.

• The new proposed power of the Essential Services Commission to issue an improvement notice to former or current accredited persons and scheme participants, or persons that hold themselves out to be acting under or in accordance with the VEET scheme.

• The new proposed power of the Essential Services Commission to issue a prohibition notice to scheme participants, or persons that hold themselves out to be acting under or in accordance with the VEET scheme.

• The new requirement for scheme participants to undertake training and provide evidence of that training to the accredited person they are undertaking the prescribed activity or regulated action on the behalf of, before undertaking that activity or action.

• The inclusion of new matters the Essential Services Commission may consider when determining whether a person applying for accreditation is a fit and proper person and new grounds on which the Essential Services Commission may suspend or cancel a person’s accreditation.

• The new proposed power of the Essential Services Commission to require an accredited person to provide consumer information in, or attached to, a Victorian Energy Efficiency Certificate.

• The expansion of information that the Commission (or a person authorised by the Commission) may divulge or communicate to accredited persons.

Human rights

The human rights protected by the Charter that are relevant to the Bill are as follows:

Right to freedom from forced work (section 11)

Section 11 of the Charter provides that a person must not be held in slavery or servitude, or made to perform forced or compulsory labour. ‘Forced or compulsory labour’ does not include work or service that forms part of normal civil obligations.

Right to privacy and reputation (section 13)

Section 13(a) of the Charter provides that a person has the right not to have that person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be therefore lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person. The right to privacy may be engaged in circumstances where there is a sufficient impact upon a person’s capacity to experience a private life, maintain social relations or pursue employment.

Section 13(b) of the Charter relevantly provides that a person has the right not to have their reputation unlawfully attacked. An ‘attack’ on reputation will be lawful if it is permitted by a precise and appropriately circumscribed law.

Right to property (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or the common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

The Charter does not define the term “property” and very little Victorian jurisprudence exists with respect to the meaning of “property” under the Charter. The rights recognised as possessions under the European Convention on Human Rights may inform how a court will understand property under section 20. Patents and licenses have before been recognised as possessions.

Right to a fair hearing (section 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Rights in criminal proceedings (section 25)

Section 25 of the Charter provides a number of rights related to criminal proceedings. Subsection 25(1) provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. Subsection 25(2)(k) provides that a person charged with a criminal offence is entitled without discrimination to not be compelled to testify against themselves or to confess guilt (referred to within this Statement as the protection against self-incrimination).

Right not to be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with the law. The right is relevant where legislative provisions may impose trial and punishment more than once for the same offence. However, the right does not prevent other non-penal consequences from flowing from the same conduct that gave rise to a criminal conviction and punishment. The right must consider whether the provision is penal in nature rather than the type of proceeding involved.

Human rights issues

Civil penalty requirements: clauses 16, 23, 30, 33 and 36 of the Bill

Clauses 16, 23, 30, 33 and 36 of the Bill all amend the Table in Schedule 1 to the VEET Act. That Table, as provided for by section 40B of the VEET Act, sets out civil penalty requirements for the purposes of the Essential Services Commission Act 2001, in addition to the regulated entity the civil penalty requirement relates to and the civil penalty amount.

The clauses of the Bill described above provide for some existing, and some new, requirements contained in the VEET Act to be civil penalty requirements. This applies the Essential Services Commission Act 2001 enforcement and civil penalty regime to the provisions of the VEET Act specified as civil penalty requirements in the Table in Schedule 1 to the VEET Act. The enforcement and civil penalty regime provides the Essential Services Commission with a range of civil enforcement tools. Some of these requirements are also current or new offences under the VEET Act.

Right to not be tried or punished more than once (section 26)

To the extent that the new civil penalty requirements are also existing or new offences, these clauses engage the right to not be tried or punished more than once under section 26 of the Charter, as on the face of the clauses, there appears to be a possibility that a natural person who has been tried and finally convicted of an offence may be subsequently tried for a civil penalty and/or subject to a civil penalty order for the same underlying conduct.

However, in my view and as explained below, the right not to be tried or punished more than once is not limited by clauses 16, 23, 30, 33 and 36.

First, section 54K of the Essential Services Commission Act 2001 prohibits a court from making a contravention order against a person if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The right may also be engaged because criminal proceedings can be commenced after a contravention order has been made against a person for substantially the same conduct, as provided by section 54M of the Essential Services Commission Act 2001. However, section 54N of that Act provides that the same evidence used in the proceedings for the contravention order is inadmissible in evidence in that subsequent criminal proceeding.

Further, section 40D of the VEET Act expressly provides that a contravention of a civil penalty provision is not an offence.

Moreover, any civil penalty imposed by a court under the Essential Services Commission Act 2001 does not serve a punitive or penal function, as section 54(2) of that Act requires a person who is subject to a civil penalty order to pay the civil penalty amount into the Essential Services Commission Enforcement Fund, which supports the regulatory functions of the Commission (section 54ZQ(b) of that Act).

I am therefore satisfied that the prescription of existing and new requirements under the VEET Act as civil penalty requirements for the purposes of the Essential Services Commission Act 2001 does not limit the right to not be tried or punished more than once.

New improvement notice power: clause 20 of the Bill

Clause 20 of the Bill inserts new section 40AB into the Act, which introduces a new power for the Essential Services Commission to issue an improvement notice to a person who is or was at any time an accredited person, is or was at any time a scheme participant, or has at any time held themselves out to be an accredited person or a scheme participant or otherwise to be acting under or in accordance with the VEET scheme.

The Essential Services Commission may only issue an improvement notice if it believes on reasonable grounds that the person is contravening or has contravened a provision of the VEET Act or the regulations in relation to the undertaking of a prescribed activity, or the undertaking of a regulated action in relation to a prescribed activity, or if the person in undertaking a prescribed activity has provided an appliance, equipment or service that has caused or is likely to cause harm to human health or safety, or damage to property.

It is an offence to not comply with the notice and compliance with the notice is a civil penalty requirement.

Right to freedom from forced work (sections 11(2), 11(3)(c))

The right under section 11(2) is engaged by the new improvement notice power, because a person subject to one of these notices may be required to take any action that the Essential Services Commission reasonably considers necessary to remedy the contravention or anything causing the contravention or to remedy the activity that has caused or is likely to cause harm to human health or safety or damage to property. This could be viewed as requiring a person to perform forced or compulsory labour.

However, in my view the right to freedom from forced work is not limited, as any labour required under these provisions would from part of normal civil obligations and is therefore specifically excluded from the scope of section 11(2) by section 11(3)(c) of the Charter.

I am therefore satisfied that the right to freedom from forced work in section 11(2) of the Charter is not limited by clause 20 of the Bill.

Right to a fair hearing (section 24)

The right to a fair hearing under section 24 of the Charter may be engaged by the new improvement notice power, because a broad reading of the right may encompass the decision-making procedures of administrative decision-makers, such as the Essential Services Commission.

The right to a fair hearing is concerned with the procedural fairness of a decision.

The power to issue an improvement notice under new section 40AB of the Act as inserted by clause 20 requires the Essential Services Commission to provide the affected person with the grounds on which the notice is given and the date the person must comply with the notice, in addition to other information as specified in section 40AB.

I note that the Essential Services Commission is not required to give the affected person prior notice that they will be subject to an improvement notice, nor does it provide an opportunity for a person to provide reasons to the Essential Services Commission as to why the notice should not be issued. In my view, any limitation to procedural fairness and therefore the right to a fair hearing caused by the absence of prior notice or opportunity for the affected person to provide reasons is justified, as this will enable the Essential Services Commission to act quickly, including to mitigate safety risks to the community and remedy contraventions of the Act and Regulations.

Further, any limitation caused by the absence of an ability to provide reasons to the Essential Services Commission as to why the notice should not be issued is reasonable, as a person can apply to the Essential Services Commission for an internal review of the decision and to the Victorian Civil and Administrative Tribunal for review of the decision, as provided for in clauses 21 and 22 of the Bill. The requirement to comply with an improvement notice does not apply during any period that the operation of the relevant notice is stayed by the Tribunal.

Further, an improvement notice does not in and of itself impose a penalty. While it is an offence under new section 40AB(5) inserted by clause 20 of the Bill to not comply with an improvement notice, and compliance with this requirement is also a civil penalty requirement, prosecution of an offence or the commencement of a civil proceeding by Essential Services Commission must comply with all relevant court processes and rules, which provides the affected person with procedural fairness.

Therefore, if a broad reading is adopted and the right to a fair hearing is engaged, I am satisfied that the right to a fair hearing is not limited by clause 20 of the Bill.

New prohibition notice power: clause 27 of the Bill

Clause 27 of the Bill inserts new section 40AC into the Act, which introduces a new power for the Essential Services Commission to issue a prohibition notice to a person who is or was at any time a scheme participant, or has at any time held themselves out to be a scheme participant or otherwise to be acting under or in accordance with the VEET scheme.

The Essential Services Commission may only issue a prohibition notice if it believes on reasonable grounds that the person is contravening or has contravened a provision of the VEET Act or the regulations in relation to the undertaking of a prescribed activity, or the undertaking of a regulated action in relation to a prescribed activity, or if the person has engaged in or proposes to engage in an activity that has caused or is likely to cause harm to human health or safety, or damage to property and, having regard to the nature of the contravention or the activity, prohibiting the person from undertaking a prescribed activity or a regulated action is necessary to prevent harm to human health or safety or damage to property.

Further, new section 40AE provides for the Essential Services Commission to, on its own initiative, revoke a prohibition notice or vary a prohibition notice if the Essential Services Commission receives or otherwise becomes aware of information that relates to the grounds on which the prohibition notice was issued and was not known to the ESC at the time the notice was issued.

It is an offence to not comply with the notice and compliance with the notice is a civil penalty requirement.

Right to freedom from forced work (sections 11(2), 11(3)(c))

The right under section 11(2) is engaged by the new improvement notice power, because a person subject to one of these notices issued under section 40AC or amended under section 40AE may be required to take any action that the Commission reasonably considers necessary to remedy the contravention or anything causing the contravention or to remedy the activity that has caused or is likely to cause harm to human health or safety or damage to property. This could be viewed as requiring a person to perform forced or compulsory labour.

However, in my view the right to freedom from forced work is not limited, as any labour required under these provisions would from part of normal civil obligations and is therefore specifically excluded from the scope of section 11(2) by section 11(3)(c) of the Charter.

I am therefore satisfied that the right to freedom from forced work in section 11(2) of the Charter is not limited by clause 27 of the Bill.

Right to a fair hearing (section 24)

The right to a fair hearing under section 24 of the Charter may be engaged by the new prohibition notice power and the power to vary or revoke the notice, because a broad reading of the right may encompass the decision-making procedures of administrative decision-makers, such as the Essential Services Commission.

The right to a fair hearing is concerned with the procedural fairness of a decision.

The power to issue a prohibition notice under new section 40AC of the Act as inserted by clause 27 requires the Essential Services Commission to provide the affected person with the grounds on which the notice is given, what the person must not do, any actions the person must take and the date the person must comply with the notice.

I note that the Essential Services Commission is not required to give the affected person prior notice that they will be subject to a prohibition notice.

However, a person may apply to the Essential Services Commission under new section 40AD inserted by clause 27, to revoke a prohibition notice that applies to the person, to vary the period for which a prohibition notice applies, or to vary the action (if any) required by the notice. This application must include evidence of a relevant change in circumstances since the prohibition notice was issued and evidence demonstrating that the person is suitable to undertake the conduct the notice prohibits them from undertaking. When making its decision, the Essential Services Commission must consider such an application, consider the information and evidence provided in the application and any conduct of the applicant when it issued the prohibition notice and then inform the affected person of its decision.

If the Essential Services Commission proposes to vary or revoke the prohibition notice under new section 40AE, they must give the person subject to the notice written notice advising of the Essential Services Commission’s proposed action and inviting written submissions from the person affected, which the Essential Services Commission must consider before making the decision. Once the Essential Services Commission makes its decision, it must give the affected person notice of that decision.

In my view, any limitation to procedural fairness and therefore the right to a fair hearing caused by the absence of prior notice or opportunity for the affected person to provide reasons before an initial notice is issued under new section 40AC is justified, as this will enable the Essential Services Commission to act quickly and mitigate safety risks to the community.

Any limitation caused by the absence of an ability to provide reasons to the Essential Services Commission as to why the initial notice should not be issued is reasonable, as a person can apply to the Essential Services Commission to vary or revoke the notice and for an internal review of the decision and to the Victorian Civil and Administrative Tribunal for review of the decision, as provided for in clauses 28 and 29 of the Bill. The requirement to comply with an improvement notice does not apply during any period that the operation of the relevant notice is stayed by the Tribunal.

A person can also seek an internal review and a review by the Victorian Civil and Administrative Tribunal of the Essential Services Commission’s decision to not vary or revoke the notice upon application under section 40AD.

Further, a prohibition notice does not in and of itself impose a penalty. While it is an offence under new section 40AC(4) inserted by clause 27 of the Bill to not comply with a prohibition notice, and compliance with this requirement is also a civil penalty requirement, prosecution of an offence or the commencement of a civil proceeding by Essential Services Commission must comply with all relevant court processes and rules, which provides the affected person with procedural fairness.

Therefore, if a broad reading is adopted and the right to a fair hearing is engaged, I am satisfied that the right to a fair hearing is not limited by clause 27 of the Bill.

Right to privacy (section 13(a))

As discussed above, the right to privacy may be engaged in circumstances where there is a sufficient impact upon a person’s capacity to experience a private life, maintain social relations or pursue employment. The new power to issue a prohibition notice that may prohibit the affected person from undertaking prescribed activities or regulated actions may engage the right to privacy under section 13(a) of the Charter, because the person who is subject to the prohibition notice may be restrained from carrying on their business, or working as a scheme participant, which may impact their capacity to pursue employment.

However, in my view, any interference with the right will not be unlawful because it is authorised by an accessible and precise legislative framework, nor arbitrary, because it has a legitimate purpose of protecting community safety.

I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not limited by clause 27 of the Bill.

New requirement for scheme participants to provide evidence of training to accredited persons: clause 34

Clause 34 of the Bill requires a scheme participant to provide evidence to the relevant accredited person of the completion of mandated training under new sections 14FA(1) and (2), inserted by clause 34 of the Bill. Provision of this evidence is a civil penalty requirement.

Right to privacy (section 13(a))

To the extent that the information which a person must provide to the Essential Services Commission under clause 34 may contain personal information, this clause may engage the right to privacy in section 13(1) of the Charter.

However, in my view, any interference with the right will not be unlawful because it is authorised by an accessible and precise legislative framework, nor arbitrary, because it has a legitimate purpose of ensuring scheme participants are adequately trained and competent before undertaking prescribed activities and regulated actions in homes and businesses. This will in turn support consumers.

I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not limited by clause 34 of the Bill.

Power to consider additional matters in a fit and proper person test and competent and capable person test: clauses 18 and 25

Clause 18 inserts new section 10C(ga) into the Act, which provides for the Essential Services Commission to be able to consider whether an improvement notice has been issued to the person and, if so, whether the person has complied with the notice, when determining whether a person is a competent and capable person for the purposes of accreditation.

Clause 25 inserts new section 10B(k) into the Act, which provides for the Essential Services Commission to be able to have regard to a contravention by the person of section 40AC(5), when determining whether a person is a fit and proper person. New section 40AC(5), inserted by clause 27, makes it an offence for an accredited person to require or authorise any other person to undertake, on the accredited person’s behalf, a prescribed activity of any part of a prescribed activity or a regulated action in relation to a prescribed activity if the accredited person knows, or reasonably ought to know, that the other person is prohibited from undertaking that prescribed activity or regulated action.

Section 9 of the Act provides that an application for the grant or renewal of accreditation must include a declaration that the applicant is, for the purposes of accreditation, a fit and proper person and a competent and capable person. The Essential Services Commission can require an applicant to provide evidence to support these declarations under section 10A and must refuse an application if the Essential Services Commission is not satisfied that the person is a fit and proper person, or a competent and capable person under section 11.

Existing section 14D goes on to provide that an accredited person must not, without reasonable excuse, fail to disclose to the Essential Services Commission any adverse matter within 14 days of becoming aware of that matter. An adverse matter means, if the Essential Services Commission were to have regard to it, the Essential Services Commission would determine the person is not a fit and proper person or a competent and capable person for the purposes of accreditation.

Right to privacy (section 13(a))

To the extent that the information which a person must provide to the Commission under existing sections 9, 10A and 14D due to the amendments contained in clauses 18 and 25 of the Bill may include personal information, these clauses may engage the right to privacy in section 13(a) of the Charter.

However, in my view, any interference with the right will not be unlawful because it is authorised by an accessible and precise legislative framework, nor arbitrary, because it has a legitimate purpose of ensuring accredited persons are fit, proper, competent and capable to participate in the VEET Scheme.

Furthermore, existing section 65 of the VEET Act contains an important privacy safeguard, by making it an offence to disclose confidential information obtained during the exercise of powers or functions under, or in connection with, the VEET Act, except in limited circumstances.

I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not limited by clauses 18 and 25 of the Bill.

Presumption of innocence (section 25(1)) and protection against self-incrimination (section 25(2)(k))

Due to the amendments in clauses 18 and 25, an accredited person may be required under section 14D to disclose whether they have not complied with an improvement notice or contravened new section 40AC(5). It is an offence to not comply with an improvement notice and new section 40AC(5) is an offence.

It is therefore relevant to note that, while section 14D is an existing section of the Act, it engages the presumption of innocence because the ‘reasonable excuse’ exception places an evidential burden on a person accused of the offence. However, it does not transfer the legal burden of proof to the accused. Once the accused has adduced (or pointed to) evidence of a reasonable excuse, which will ordinarily be particularly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. I do not consider that an evidential onus of this kind limits the right to be presumed innocent in section 25(1) of the Charter.

It is also relevant to note that section 14D of the Act engages the protection against self-incrimination, to the extent that a person may be required to disclose information which could tend to incriminate them, new section 14D may engage the protection against self-incrimination under section 25(2)(k) of the Charter.

In my view, however, the right is not limited because the duty to disclose is subject to a ‘reasonable excuse’ defence, which expressly includes under existing section 14E that that it is a reasonable excuse for the purposes of existing section 14D(1) for a person to refuse or fail to disclose an adverse matter within the meaning of that section if the disclosure of the adverse matter would tend to incriminate the person.

Additional grounds related to suspending or cancelling a person’s accreditation: 19 and 26

Clause 19 and 26 insert new sections 14(1)(ga) and (gb) respectively into the Act, which provide for the Essential Services Commission to suspend or cancel a person’s accreditation, or cancel a person’s accreditation and prohibit a person from applying for accreditation for a maximum period of five years, if the Essential Services Commission believes on reasonable grounds that a person has failed to comply with an improvement notice or has contravened section 40AC(5).

While section 14 is existing, meaning the Essential Services Commission already has the power to take the actions described above, as the Bill will add additional grounds on which the Essential Services Commission can exercise these powers, it is relevant to discuss the human rights engaged by section 14 as amended.

Privacy (section 13(1))

Restrictions upon a person’s ability to work may engage the right to privacy in circumstances where they have a sufficient impact upon a person’s capacity to experience a private life, maintain social relations or pursue employment. Therefore, clauses 19 and 26, amending section 14, may empower the Commission to interfere with a person’s right to privacy.

The additional grounds inserted by clauses 19 and 26 are appropriately tailored to the objective of enabling the Commission to ensure accredited persons are of good character and to protect the reputation and integrity of the VEET scheme. There are express time limits on suspension or disqualification in existing section 14.

Moreover, a person may apply for the Commission to reconsider a decision made under section 14 and apply to VCAT for review of any such decision. This offers further protection against any arbitrary interferences with privacy under section 14 as amended by clauses 19 and 26.

Property (section 20)

Insofar as an accreditation could be characterised as ‘property’ under section 20 of the Charter, the Commission’s powers to suspend or cancel an accreditation or account may be considered to affect a deprivation of a person’s property.

However, I do not consider that section 14 as amended by clauses 19 and 26 limit the Charter right to property because any deprivation of property made pursuant to the sections inserted into the VEET Act by those clauses will be ‘in accordance with law’. In particular, the detailed list of grounds pursuant to which the Commission may suspend or cancel an accreditation protects against arbitrary exercises of the Commission’s powers.

Fair hearing (section 24)

As discussed above, a person may apply to the Commission to reconsider any decision of the Commission under existing section 14 and may apply to VCAT for review of any such decision.

Therefore, if a broad reading is adopted and the right to a fair hearing is engaged, I am satisfied that the right to a fair hearing is not limited by clauses 19 and 26 of the Bill.

Power to require an accredited person to provide consumer information in, or attached to, a Victorian Energy Efficiency Certificate: clause 38

Clause 38 inserts new sections 21(4) and (5) into the Act, to provide that the Essential Services Commission may require a certificate to contain, or an accredited person to provide to the Essential Services Commission, the consumer’s contact details, the address of the premises at which the prescribed activity was undertaken and the name, ABN and contact details of any scheme participant involved in the activity or regulated actions. A certificate must already contain the name of the consumer of electricity or gas.

This information that the Essential Services Commission may request under section 21(4) will already have been provided to the accredited person during the course of undertaking the prescribed activity.

The requirement to provide this information when requested by the Essential Services Commission engages the right to privacy with respect to the consumer of electricity or gas, and the scheme participant (if that scheme participant is a natural person).

In my view, any interference with the right will not be unlawful because it is authorised by an accessible and precise legislative framework, nor arbitrary, because it has a legitimate purpose of ensuring the Essential Services Commission is able to contact consumers and scheme participants where issues arise and monitor compliance with the code of conduct contained in Schedule 6 to the Victorian Energy Efficiency Target Regulations 2018.

Furthermore, any interference with a person’s privacy will be modest, as there is a reduced expectation of privacy in the context of a regulated industry like the VEET scheme. Persons participating in the scheme do so voluntarily, and so any decision to disclose personal information to an accredited person is ultimately at the discretion of the consumer or scheme participant. In addition, in the Commission is a ‘public authority’ under the Charter, so it must act in accordance with human rights (including the right to privacy) when disclosing personal information (section 38 of the Charter).

Expansion of information that the Commission (or a person authorised by the Commission) may divulge or communicate to accredited persons: clause 51

Clause 51 substitutes existing section 66(1)(m) of the Act, to provide that that Division 3 of Part 8 does not prevent the Essential Services Commission or person authorised by the Essential Services Commission from divulging or communicating information to an accredited person for the purpose of informing the accredited person of the details of any improvement notice or prohibition notice issued to a person, a scheme participant’s conduct when undertaking a prescribed activity or regulated action or a scheme participant’s compliance with this Act and the regulations, in addition to the existing power to provide information to accredited persons regarding a scheme participant’s compliance with the code of conduct.

To the extent that the information which the Commission may provide to these persons and bodies includes personal information, clause 51 will engage the right to privacy in sections 13(a) of the Charter. However, in my opinion, the right is not limited as any interference with privacy effected pursuant to section 66 (as amended) will be lawful, as the section is accessible and precisely formulated, and non-arbitrary.

To the extent that this information may constitute an attack on a person’s reputation, clause 51 will engage the right to privacy in section 13(b) of the Charter. However, in my opinion, the right is not limited as any attack on a person’s reputation will be lawful, as the section is accessible and precisely formulated, and for the purpose of ensuring that accredited persons can make informed decisions related to engaging persons who have been issued improvement notices or prohibition notices, or are prohibited from engaging in certain activities or from undertaking certain regulated actions under the VEET Scheme.

Furthermore, any interference with a person’s privacy will be modest, as there is a reduced expectation of privacy in the context of a regulated industry like the VEET scheme. Persons participating in the scheme do so voluntarily, and so any decision to disclose personal information to the Commission is ultimately at the discretion of the participant. In addition, the Commission is a ‘public authority’ under the Charter, so it must act in accordance with human rights (including the right to privacy) when disclosing personal information (section 38 of the Charter).

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon. Lily D’Ambrosio MP

Minister for Energy and Resources

Second reading

Lily D’AMBROSIO (Mill Park – Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (10:08): I move:

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 Victorian Government is committed to supporting Victorians with the cost of living, reducing emissions, managing the impacts of climate change and growing our economy. Supporting energy efficiency is at the heart of this approach, saving energy consumers money, making them more comfortable in their homes and businesses and reducing emissions from the energy sector. Energy efficiency schemes also encourage investment, employment and technology development in industries that supply goods and services which reduce the use of electricity and gas.

The Victorian Energy Upgrades (VEU) program is the largest energy efficiency scheme in the country. It is a major contributor to the achievement of Victoria’s interim emissions reductions targets, established under the Climate Change Act 2017.

Since the program commenced in 2009, over 2.5 million households and businesses have participated in the program. To date, it has reduced Victoria’s greenhouse gas emissions by over 88.1 million tonnes. In 2024, more than 488,000 households and 22,000 businesses received discounted energy efficiency products and services through the VEU program. On average, households that undertake energy efficiency upgrades under VEU save $110 and businesses save $3,700 on their annual energy bills. Businesses who have undertaken bespoke energy efficiency upgrades have saved tens of thousands of dollars off their operating costs, significantly reducing their emissions and their energy bills.

To date, the VEU program has created benefits for both participating and non-participating households and businesses through the reduced demand for energy brought about by improved energy efficiency, which puts downward pressure on retail energy prices. Between 2021 and 2025, the VEU program will avoid $3.8 billion in energy system costs, so even those who do not participate in the program will save on their bills. The scheme has been a major contributor to Victorians enjoying the benefits of some of the lowest wholesale electricity prices in the national energy market.

A two-year strategic review of the VEU program is currently underway, with a particular focus on ensuring the program is fit for purpose for the future and can enable electrification at scale. This includes understanding any barriers to participation that households and businesses face, industry challenges, and the effectiveness of current regulation, metrics and activities. While the review will inform the VEU program’s direction with interim findings and recommendations, the program is continually undergoing changes to ensure that it is best positioned to support Victorian energy consumers. This Bill progresses time-critical changes to the VEET Act to ensure the continued effectiveness of the program while the review is underway.

This Bill will extend the VEU program’s legislated end date from 2030 until 2045, to align with our State’s net zero emissions target, ensure continued support for more Victorian energy consumers to make the switch to electricity and provide continued certainty for businesses to invest in the program. Making the switch to electric appliances helps our homes and businesses to shift away from the more expensive to run gas appliances and is a significant factor in reducing Victoria’s emissions.

Work is currently underway in Victoria on several regulatory measures which could drive the replacement of more than 1.4 million gas appliances by 2030. This could include new minimum energy efficiency standards for rented homes and requirements for new residential buildings to be all-electric, in addition to commercial buildings.

Reducing the upfront costs for energy consumers throughout this transition is vital. Therefore, the Bill will amend the Act to clarify the ‘additionality requirement’ and explicitly allow for activities that may be mandated by another law or regulation to be prescribed under the VEU program in future. This will allow consumers to continue receiving discounts for energy upgrades in their homes and businesses, and facilitate the uptake of mandated activities when deemed necessary. This will facilitate a smooth transition under any new regulatory requirements and in turn allow the program to remain fit for purpose in the future of electrification.

Without changes to the existing additionality requirements, VEU may not be able to support potential new building minimum standards in the future, which will provide broader whole of system benefits to all Victorians – for example by taking pressure off limited gas supplies for gas-dependent customers.

In the absence of a VEU financial discount to reduce the capital costs for replacing gas appliances and undertaking efficiency upgrades, some households and businesses, especially those with low incomes, are likely to either delay replacement, or purchase cheaper but less efficient electric appliances. This may lock households and businesses into higher energy bills, delay the transition from gas to electricity, and put upward pressure on energy prices.

By amending the additionality requirements, the long-term energy savings under VEU will result in greater emissions reductions, in addition to reductions in ongoing energy demand, therefore reducing the need to build new energy infrastructure in Victoria, contributing to lower wholesale electricity costs. Avoiding a need to build new infrastructure will prevent these associated costs from being passed through to Victorian energy consumers.

The Bill also enables the program’s targets for the years 2026 and 2027 to be set in regulations, rather than in a five-year tranche, to allow targets beyond this to incorporate the findings of the strategic review. This will ensure that the program’s annual targets best reflect the current market conditions, while supporting energy consumers and climate change mitigation goals.

Consumer protection, safety and integrity are essential to ensure public trust in the program and that its benefits continue to be realised. The Bill will introduce new provisions to modernise and expand the program regulator’s compliance and enforcement powers to be consistent with other regulatory schemes. This includes enabling the regulator, the Essential Services Commission, to mandate training requirements for installers and issue improvement and prohibition notices to non-compliant scheme participants. Improvement and prohibition notices will strengthen the enforcement mechanisms available to the Commission.

Currently the Commission’s powers are principally focused on accredited persons, with limited powers to take action against scheme participants who may perform activities on behalf of accredited persons. The Bill will also introduce new civil penalty requirements which will provide the Commission with discretion in how best to enforce compliance. These reforms are necessary to ensure that the Commission can more effectively administer the scheme, minimise non-compliance and pursue effective enforcement.

The Bill will also make it easier for obligated parties – electricity and gas retailers – to comply with their obligations to buy and surrender certificates by making the scheme more flexible – removing technical restrictions on the creation and surrender of certificates to enable energy retailers to meet obligations under the VEU program and ensure the program’s yearly targets are met.

Finally, the Bill provides the ability to allow for future VEU program discounts to be created specifically for vulnerable and low-income consumers. This will enable greater access to participate in the VEU program in future, especially as cost-of-living pressures continue.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:08): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 3 April.