Thursday, 20 February 2025
Bills
Energy and Land Legislation Amendment (Energy Safety) Bill 2025
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Bills
Energy and Land Legislation Amendment (Energy Safety) Bill 2025
Introduction and first reading
The ACTING PRESIDENT (John Berger) (17:31): I have received the following message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Electricity Safety Act 1998, the Gas Safety Act 1997, the Pipelines Act 2005, the Energy Safe Victoria Act 2005 and the Land Act 1958 and for other purposes.’
That the bill be now read a first time.
Motion agreed to.
Read first time.
Statement of compatibility
Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (17:32): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 and Land Legislation Amendment (Energy Safety) Bill 2025 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, 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 Electricity Safety Act 1998, the Gas Safety Act 1997, the Pipelines Act 2005 and the Energy Safe Victoria Act 2005 to continue to make the energy safety legislation framework in Victoria fit for purpose for the energy transition. It does this by expanding and strengthening the regulatory tools available to Energy Safe Victoria and the courts under the energy safety framework, aligning Energy Safe Victoria’s powers with those available to other, similar regulators and streamlining the approach to safety risks and regulatory responses where relevant across each Act.
The Bill also amends the Land Act 1958 to provide increased certainty of tenure for proposed projects on unreserved Crown land that are also subject to the Environment Effects Act 1978 regime. While a decision to grant a lease of Crown land may engage human rights, the amendment in the Bill is limited to dealing with the procedure for making such a decision rather than the substantive effects of such a decision and therefore does not engage relevant human rights.
The following amendments in the Bill may engage human rights contained in the Charter of Human Rights Act 2006 by amending:
the Electricity Safety Act 1998 to abolish the Electric Line Clearance Consultative Committee and the Victorian Electrolysis Committee; reform the process for making the regulations that prescribe the Code of Practice for Electric Line Clearance; expand Energy Safe Victoria’s existing power to issue an improvement notice and introduce a new power for Energy Safe Victoria to issue a prohibition notice;
the Electricity Safety Act 1998, Gas Safety Act 1997 and Pipelines Act 2005 to enable a court to issue an adverse publicity order power and a warrant to enter land or premises where necessary to mitigate safety risks;
the Electricity Safety Act 1998 and Gas Safety Act 1997 to provide Energy Safe Victoria and the court with a new injunction power to stop conduct that contravenes or threatens to contravene those Acts or regulations made under those Acts.
Human rights
This Statement of Compatibility commences with an outline of the rights generally engaged by the Bill and then discusses the compatibility of relevant Parts of the Bill with those rights.
The human rights protected by the Charter that are relevant to this 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 court-ordered community work as a condition of release from detention, work or service required because of an emergency threatening the Victorian community or a part of that community, or 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 the 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 freedom of expression (section 15(2))
Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.
Right to take part in public life (section 18)
Section 18 of the Charter provides every person in Victoria has the right and is to have the opportunity to participate in the conduct of public affairs, directly or through freely chosen representatives.
While the scope of section 18 has not been thoroughly examined in Victorian Civil and Administrative Tribunal or Victorian courts, the International Covenant on Civil and Political Rights indicates that public affairs is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative power and the formulation and implication of policy at local levels.
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. Deprivation of property will therefore not limit the right to property under section 20 where there is a law that authorises the deprivation and that law is adequately accessible, clear and certain, and sufficiently precise.
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.
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
New injunction power: clauses 31 and 62 of the Bill
Clauses 31 and 62 of the Bill insert new sections 141F into the Electricity Safety Act 1998 and 109DA into the Gas Safety Act 1997 to provide the court with a new power to issue injunctions if the court is satisfied that a person has engaged or is proposing to engage in conduct that constitutes, would constitute, or may lead to a contravention of a provision of the Electricity Safety Act 1998 or the Gas Safety Act 1997 or regulations made under those Acts. The court can grant an injunction under these new sections whether or not the person has engaged in the conduct before, will engage in the conduct in future or there is an imminent danger of substantial damage to any other person. Energy Safe Victoria or a person prescribed in regulations can apply for an injunction and the application may be made ex parte. I note that the regulations would only prescribe a person other than Energy Safe Victoria for the purposes of exercising the power to apply for an injunction if it was deemed necessary to support Energy Safe Victoria’s exercise of enforcement powers. The person would need to be suitable and possess the knowledge required to make such an application.
An injunction may require a person to do or not do various activities including requiring a person at their own cost to institute an employee training program, carry out or arrange for work to be carried out and arrange for testing of an electrical installation or equipment in accordance with the regulations. The Supreme Court can also grant an injunction restraining a person from carrying on a business that involves carrying out activities regulated by the Electricity Safety Act 1997 or the Gas Safety Act 1997.
Energy Safe Victoria or a person prescribed in regulations can apply for an injunction and the application may be made ex parte.
Right to freedom from forced work (sections 11(2), 11(3)(c))
The right to freedom from forced work under section 11(2) of the Charter is engaged by the new injunction power, because an injunction may require a person to undertake work or testing to rectify or avoid a contravention of provision under the relevant Act or regulations made under that Act.
However, the right to freedom from forced work is likely not limited, as any forced labour required under an injunction would from part of normal civil obligations (section 11(3)(c)) and is therefore explicitly excluded from the scope of forced or compulsory labour under 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 clauses 31 and 62 of the Bill.
Right to privacy (section 13(a))
The right to privacy under section 13(a) of the Charter is engaged by the new injunction power, because the person subject to an injunction may be restrained from carrying on a business that involves regulated activities under the Electricity Safety Act 1998 or the Gas Safety Act 1997.
The right to privacy may be engaged where the Supreme Court issues an injunction that has a sufficient impact upon a person’s capacity to pursue employment.
However, any interference with the right will not be arbitrary because it will be done in accordance with the law as set out in new sections 141F(5) of the Electricity Safety Act 1998 and new section 109DA(5) of the Gas Safety Act 1997.
I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not limited by clauses 31 and 62 of the Bill.
Right to a fair hearing (section 24(1))
The right to a fair hearing under section 24(1) of the Charter is engaged and may be limited by the new injunction power, because the applicant for the injunction may make the application ex parte.
This may limit the right to a fair hearing, because the person subject to the injunction will not have an opportunity to respond to the application for the injunction.
I consider that any such limitation of the right to a fair hearing would be reasonable, justified and for a legitimate purpose, as an application for an injunction on an ex parte basis may be necessary to ensure Energy Safe Victoria can respond quickly to contraventions of the relevant legislation and that action is taken to prevent, minimise or remedy any safety risks that the contravention may cause.
I am also satisfied that appropriate safeguards are in place, including that a court will retain the discretion to refuse to hear the application ex parte, including when hearing the injunction ex parte would result in an unfair hearing.
Accordingly, to the extent that the Bill limits the right to a fair hearing under section 24(1) of the Charter, I am satisfied that any limitations are justified on the basis that they are reasonable and have a legitimate purpose. I am therefore satisfied that the right to a fair hearing is not limited by clauses 31 and 62 of the Bill.
Expansion of improvement notice power and introduction of new prohibition notice: clauses 33, 34 and 35 of the Bill
The Bill expands the existing improvement notice power and introduces a new prohibition notice power in the Electricity Safety Act 1998.
Clause 33 of the Bill expands the improvement notice power so that an improvement notice can be issued where a person is contravening the Electricity Safety Act 1998 or regulations made under that Act or, if a person has already engaged in a contravention, it is likely that the contravention will be continued or repeated, instead of a contravention to Division 2 or 3 of Part 10 of the Act only. It also provides that the Chairperson of Energy Safe Victoria, in addition to an authorised officer, can issue an improvement notice. An improvement notice may require the person to remedy the contravention.
Clause 34 of the Bill introduces a new power for authorised officers and the Chairperson of Energy Safe Victoria to issue a prohibition notice under the Electricity Safety Act 1998 to prohibit a person from carrying on an activity that involves or will involve immediate risk to the safe supply or use of electricity. Clause 35 of the Bill expands the existing power for authorised officers to include a direction to take measures to remedy a contravention of the Act in an improvement notice, so that the Chairperson of Energy Safe Victoria or an authorised officer can include a direction in a prohibition notice to take measures to remedy any contravention, risk, matter or activity to which the notice relates. It is already an offence to not comply with an improvement notice and the Bill will make it an offence to not comply with a prohibition notice.
Right to freedom from forced work (sections 11(2), 11(3)(c))
The right under section 11(2) is engaged by the expanded improvement notice power and the new prohibition notice power, because a person subject to one of these notices may be required to stop a certain activity or to take specific measures to remedy a contravention, a possible contravention of the Electricity Safety Act 1998, or a risk, matter or activity to which the notice relates. 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 forced 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 clauses 33, 34 and 35 of the Bill.
Right to a fair hearing (section 24)
The right to a fair hearing under section 24(1) of the Charter may be engaged by the expanded improvement notice power and the new prohibition power, because a broad reading of the right may encompass the decision-making procedures of administrative decision-makers, such as Energy Safe Victoria.
The right to a fair hearing is concerned with the procedural fairness of a decision.
The power to issue an improvement notice under section 143 of the Electricity Safety Act 1998, which will be expanded by clause 33 of the Bill, and the new power to issue a prohibition notice inserted by clause 34 of the Bill both require Energy Safe Victoria to provide the affected person with the reason for the notice and in the case of an improvement notice, the date by which the affected person must remedy the contravention. Energy Safe Victoria may direct the affected person to take a specific action under an improvement and prohibition notice. I note that Energy Safe Victoria is not required to give the affected person prior notice that they will be subject to an improvement notice or a prohibition notice, nor does it provide an opportunity for a person to provide reasons to Energy Safe Victoria 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 Energy Safe Victoria to act quickly and mitigate safety risks to the community.
Further, any limitation caused by the absence of an ability to provide reasons to Energy Safe Victoria as to why the notice should not be issued is reasonable, as a person can apply to the Victorian Civil and Administrative Tribunal for review of the decision. The requirement to comply with an improvement notice or prohibition notice does not apply during any period that the operation of the relevant notice is stayed by the Tribunal.
Further, an improvement notice or prohibition notice does not in and of itself impose a penalty. While it is an offence under existing section 144 of the Electricity Safety Act 1998 to not comply with an improvement notice, and an offence under new section 144B inserted by clause 34 of the Bill to not comply with a prohibition notice, prosecution of these offences by Energy Safe Victoria 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 clauses 33, 34 and 35 of the Bill.
New power for Energy Safe Victoria to immediately suspend a registration or licence: clauses 46, 47 and 48
Clauses 46 and 47 of the Bill provide new powers for Energy Safe Victoria to immediately suspend an electrical contractor’s registration or an electrical worker’s license in whole or in part, where Energy Safe Victoria considers it is in the interests of the public to do so. To exercise the power, Energy Safe Victoria must either intend to commence or have already commenced an inquiry to determine whether there is proper cause for taking formal disciplinary action against the contractor or licensee under sections 34 or 41 of the Electricity Safety Act. If the grounds for suspension cease to exist or Energy Safe Victoria decides not to commence an inquiry, Energy Safe Victoria must revoke the immediate suspension.
The suspension takes effect when the notice is given to the electrical contractor or worker. Energy Safe Victoria is not required to give the contractor or worker prior notice.
Clause 48 amends the Electricity Safety Act 1998 to provide that the affected contractor or licensee can apply to the Victorian Civil and Administrative Tribunal for review of a decision to immediately suspend their registration or license.
The right to privacy and reputation (section 13)
The right to privacy may be engaged in circumstances where the 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 immediately suspend a registration or licence may engage the right to privacy under section 13(a) of the Charter, because the person whose registration or license is suspended may be restrained from carrying on their business, or working as an electrical worker, 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 clauses 46 and 47 of the Bill.
Right to property (section 20)
A licence or registration under the Electricity Safety Act 1998 could be construed as a registered contractor or licensed electrical worker’s property. The right to property under section 20 of the Charter may be engaged by the new immediate suspension power as it could be considered to facilitate a deprivation of a person’s property. However, a person would only be deprived of their property in accordance with the legislative framework set out in clauses 46 and 47 respectively, which, in my view, provide an accessible, clear, certain and precise legislative framework that authorises immediate suspension of a registration or license under the Electricity Safety Act 1998. Any immediate suspension undertaken in accordance with these provisions would be done in accordance with the law.
I am therefore satisfied that the right to property under section 20 of the Charter is not limited by clauses 46 and 47 of the Bill.
Right to a fair hearing (section 24)
The right to a fair hearing under section 24(1) of the Charter may be engaged by the new immediate suspension power, because a broad reading of the right may encompass the decision-making procedures of administrative decision-makers, such as Energy Safe Victoria.
While Energy Safe Victoria is not required to give the affected person notice of the immediate suspension prior to the suspension taking effect, clauses 46 and 47 set out a detailed process that requires Energy Safe Victoria to give written notice to the affected person setting out relevant details of the suspension and within five days, written reasons for the suspension. The suspension must also be revoked if the grounds for suspension no longer exist. Further, the affected person will have the right to apply to the Victorian Civil and Administrative Tribunal for review of a decision. This provides the holder of the license or registration with procedural fairness, including an avenue of review of the 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 46 and 47 of the Bill.
Right not to be tried or punished more than once (section 26)
The immediate suspension power may engage the right to not be tried or punished more than once under section 26 of the Charter, because Energy Safe Victoria may have regard to whether the contractor or licensee has been the subject of multiple other adverse disciplinary actions when deciding whether it is in the public interest to suspend the registration or licence. Disciplinary action may be taken in various circumstances, including if a person has been convicted of certain offences punishable by imprisonment for 6 months or more.
However, even if a persons’ license or registration is suspended due to multiple adverse disciplinary actions which include action taken due to being convicted of one of the specified offences, in my view, the right is not limited as the immediate suspension is imposed on public interest grounds, to protect the community, and not as punishment
I am satisfied that the right to not be tried or punished more than once is not limited by clauses 46 and 47 of the Bill.
New power to allow a court to make an adverse publicity order, clauses 51, 80 and 91
Clauses 51, 80 and 91 insert new provisions into the Electricity Safety Act 1998, Gas Safety Act 1997 and Pipelines Act 2005 to provide the court with a new power to make an adverse publicity order.
If the court convicts a person, or finds a person guilty of an offence against the relevant Act or regulations made under that Act, the court may make an order requiring the person to undertake either or both of the following actions: publicise the offence, its consequences and any other related matter or notify a specified person of the offence, its consequences and any other related matter. If the person does not undertake these actions in a satisfactory way, Energy Safe Victoria may apply to the court for an order authorising Energy Safe to take the actions on the person’s behalf.
An adverse publicity order serves the important purpose of seeking to promote accountability by preventing a person from concealing that they have been convicted of an offence and have been subject to a penalty. This helps to create better outcomes for consumers, who will be made aware of the previous conduct of service providers they may be considering engaging related to the provision of essential services in their homes or businesses. The risk of an adverse publicity order and the resulting damage to a person’s reputation may create a greater deterrence than a monetary penalty, which will in turn encourage greater compliance with the relevant Act by industry.
Right to privacy (section 13)
This new power engages the right to not have a person’s privacy unlawfully or arbitrarily interfered with under section 13(a) of the Charter and the right to not have a person’s reputation unlawfully attacked under section 13(b) of the Charter, by mandating that a person must make the commission of an offence known to the public or to a specific person, or both.
I consider it likely that the information that a person will be required to publish under an adverse publicity order will already be in the public domain as a consequence of judicial proceedings held in open court.
In my view, the not to have a person’s privacy unlawfully or arbitrarily interfered with under section 13(a) and the right to not have one’s reputation unlawfully attacked under section 13(b) of the Charter will not be limited, because any interference with a person’s privacy or damage to the person’s reputation will not be unlawful as it will be in accordance with an accessible and precise legislative framework. Further, any interference with a person’s privacy will not be arbitrary as the required disclosure of information serves the legitimate purpose of promoting public and consumer safety.
I am satisfied that the right to privacy and reputation under section 13 of the Charter is not limited by the new adverse publicity order powers in clauses 51, 80 and 91 of the Bill.
Right to freedom of expression (section 15)
The new power engages and may limit the right to freedom of expression, because it compels a person to publish certain information. To the extent that the right to freedom of expression may be limited, I am satisfied that any such limitation is justified, given the important consumer safety and deterrent purposes that adverse publicity orders serve, as described above.
New power for Energy Safe Victoria to enter residences to investigate safety or compliance issues with a warrant: clauses 25, 57 and 84
Clauses 25, 57and 84 of the Bill amend the Electricity Safety Act 1998, Gas Safety Act 1997 and the Pipelines Act 2005 to introduce a new power for authorised officers to apply for a warrant to enter land or premises (including residential premises) where there is a safety risk or risk of significant damage to property, or where non-compliance with a direction issued under those Acts may cause the same risks. The warrant may authorise the authorised officer to exercise search, inspection, record-making, seizure and examination powers upon entering the premises.
Right to privacy (section 13)
As a warrant for entrance to residential premises may be issued under the new powers, the right to not have a person’s home unlawfully or arbitrarily interfered with under section 13(a) of the Charter is engaged but is not limited.
Depending on the occupants of the residential premises, the right to not have a person’s family unlawfully or arbitrarily interfered with under the same section may also be engaged, to the extent that entrance and exercise of powers upon entry may disturb the occupants of the household.
In my view, any interference with the right to privacy under the new power is not arbitrary, as the Magistrates’ Court will need to be satisfied that there are reasonable grounds to suspect that the risks described above exist and that entrance is warranted in all the circumstances before issuing the warrant authorising entry, nor will it be unlawful, because it will be a process carried by a court that is reasonable, rational and logical in accordance with the criteria in the legislative framework
I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not arbitrary and therefore not limited by the new entry power inserted into the Electricity Safety Act 1998, Gas Safety Act 1997 and Pipelines Act 2005.
Right to property (section 20)
Clauses 25, 57 and 84 arguably engage the right to property in section 20 of the Charter, which provides that a person must not be deprived of their property other than in accordance with the law. For an unlawful deprivation of property to occur, the interest affected, or interfered with, must be ‘property’, which is likely to include all real and personal property interests recognises under general law.
The process and parameters for entry onto land or premises, and the powers that may be exercised with respect to property at that land or premises, including powers to inspect and make records and examine, test and seize items, are set out under the relevant provisions of the Acts. In my view, these existing provisions provide an accessible, clear, certain and precise legal framework that authorises the exercise of these powers.
Therefore, to the extent that these provisions may engage the right to property, any deprivation of property will be in accordance with the law and therefore I am satisfied that the right to property is not limited.
New powers for authorised officers to request assistance of any person for exercising powers under the Electricity Safety Act and the Gas Safety Act, clauses 29 and 61
Clauses 29 and 61 introduce a new power for authorised officers to request the assistance of a person for entry to land or premises, which includes residential premises, to exercise enforcement powers under the Electricity Safety Act and Gas Safety Act, and creates new offences for refusing entry or obstructing a person assisting an authorised officer. The purpose of these new provisions is to ensure authorised officers can get assistance to exercise their powers when required and without interference, for example, if they require an electrician to assist with disconnecting or removing unsafe electrical equipment, from the land or premises.
The right to privacy and reputation (section 13)
Clauses 29 and 61 engage the right to privacy in section 13, as they will require a person to allow a person assisting an authorised officer to enter the land or premises that they are occupying and to assist in the exercise of powers including inspecting and making records and examining, testing and seizing items, and this may occur at a person’s home. As above, a person has the right not to have that person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with.
While clauses 29 and 61 engage the right to privacy, I do not consider this right is limited. The entry onto a land or premises by the person assisting an authorised officer is set out within the relevant provisions, and only occurs where the authorised officer is exercising enforcement powers set out in the relevant legislative framework. Further, the requirement to allow a person assisting an enforcement officer entry and not to obstruct or hinder the person, is proportionate to the legitimate aim of ensuring that authorised officers can safely and effectively exercise their enforcement powers. Therefore, any limit on the right to privacy will not be unlawful or arbitrary.
The right to property (section 20)
Clauses 29 and 61 arguably engage the right to property in section 20 of the Charter, which provides that a person must not be deprived of their property other than in accordance with the law. For an unlawful deprivation of property to occur, the interest affected, or interfere with, must be ‘property’, which is likely to include all real and personal property interests recognises under general law.
The process and parameters for entry onto land or premises, and the powers that may be exercised with respect to property at that land or premises, including powers to inspect and make records and examine, test and seize items, are set out under the relevant provisions of the Acts. In my view, these existing provisions provide an accessible, clear, certain and precise framework that authorises the exercise of these powers.
Therefore, to the extent that these provisions may engage the right to property, any deprivation of property will be in accordance with the law and therefore I am satisfied that the right is not limited.
Reforms to abolish the Electric Line Clearance Consultative Committee and the Victorian Electrolysis Committee, clauses 16, 17 and 18
Clauses 16 and 18 of the Bill abolish the Electric Line Clearance Consultative Committee and the Victorian Electrolysis Committee which are required to provide advice on specific matters to Energy Safe Victoria or the Minister, to provide greater flexibility for Energy Safe Victoria to establish advisory committees under existing powers under the Energy Safe Victoria Act 2005 as need arises. Clause 17 of the Bill repeals section 89(1)(a) of the Electricity Safety Act 1998, which provides that Energy Safe Victoria must refer all matters with respect to the contents of the regulations that prescribe the Code of Practice for Electric Line Clearance, before the Governor in Council makes the regulations.
Right to freedom of expression (section 15(2)) and right to take part in public life (section 18(1))
The abolition of these committees and the repeal of section 89(1)(a) may engage section 15(2) of the Charter because it will remove the ability of committee members to impart information and ideas when providing advice in accordance with the functions of those committees. The abolition of these committees may also engage section 18(1) of the Charter, as membership of these committees could be construed as a form of participation in the conduct of public affairs.
However, in my view, the rights are not limited because the members of the committees will not be prevented from expressing their views on the matters that the committees could previously advise on. For example, former members could still provide their views on the making of regulations via the Regulatory Impact Statements consultation processes required under the Subordinate Legislation Act 1994, and are not prevented from using other forums to provide their views to Energy Safe Victoria or the Minister. The Bill just removes the ability to provide formal views via the committees.
I am therefore satisfied that the rights to freedom of expression in section 15(2) and to take part in public life in section 18(1) of the Charter are not limited by clauses 16, 17 and 18 of the Bill.
Reforms to amend requirements for the Code of Practice for Electric Line Clearance, clause 49
Clause 49 of the Bill amends the process for prescribing the Code of Practice for Electric Line Clearance, including to remove the requirement to make the draft regulations prescribing the Code available for public comment for 90 days and to consider any comments made during that period. Following the amendments, the process for making these regulations will be governed by the requirements of the Subordinate Legislation Act 1994.
Right to freedom of expression (section 15(2)) and right to take part in public life (section 18(1))
Removing the requirement to make the draft regulations available for public comment for 90 days may engage section 15(2) and 18(1) of the Charter as the consultation process provides an opportunity for members of the public to express their views on the draft regulations, and participate in the conduct of public affairs.
However, in my view the rights are not limited because when making the regulations prescribing the Code of Practice for Electric Line Clearance, the Government will have to comply with the requirements of the Subordinate Legislation Act 1994, including the public consultation requirements in relation to Regulatory Impact Statements prepared for regulations.
I am therefore satisfied that the rights to freedom of expression in section 15(2) and to take part in public life in section 18(1) of the Charter are not limited by clause 49 of the Bill.
Conclusion
I am therefore of the view that the Bill is compatible with the Charter.
Hon Ingrid Stitt MP
Minister for Mental Health
Minister for Ageing
Minister for Multicultural Affairs
Second reading
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
Safety must be a priority in the delivery of essential services like energy. Most importantly, energy safety brings invaluable benefits by protecting life and property. But it is also a crucial part of building the community acceptance and trust we need during the energy transition. That is why this Bill is so important – the reforms it introduces will have long term benefits to the safety of Victorians, and ensure consumer protection and confidence in our energy safety regulator, Energy Safe Victoria (Energy Safe).
The Bill will amend the Electricity Safety Act 1998, Gas Safety Act 1997, Pipelines Act 2005 and Energy Safe Victoria Act 2005 to strengthen Victoria’s energy safety framework.
The Bill will also amend the Land Act 1958 to provide improved certainty to invest in complex projects on unreserved Crown land in Victoria.
A new energy safety regulatory environment
Victoria’s energy sector is undergoing rapid transformation, driven by the growth of both utility-scale and residential generation and storage. The shift from a few large-scale facilities to smaller, widely distributed energy resources has occurred alongside other changes like the rising number and variety of electrical appliances (such as electric space and water heating and induction cooktops, along with rooftop solar, household batteries and electric scooters and other vehicles) in the community.
Victoria’s energy safety framework was designed for a centralised, fossil-fuel based network, and has not kept pace with these evolving technologies, creating regulatory gaps. Legislative reform is required to respond to contemporary energy safety risks.
A suite of reforms to strengthen Energy Safe’s regulatory framework for safety and flexibility
This Bill will make amendments to the Electricity Safety Act, Gas Safety Act and Pipelines Act to strengthen Energy Safe’s ability to mitigate safety issues early, monitor compliance with directions, and take enforcement actions. It introduces a new entry power with a warrant, where there is a risk to the health and safety of a person or of significant damage to property that does not amount to an emergency. These reforms will add to Energy Safe’s suite of regulatory tools and reflect similar powers available to the new Building and Plumbing Commission, which will replace the Victorian Building Authority.
The Bill removes the need for Energy Safe authorised officers to obtain written consent before exercising certain powers, and allows officers to request assistance from any person for the purpose of entry in exercising their powers under the relevant Act. This will enable authorised officers to act swiftly to resolve safety risks involving new technologies requiring specialist knowledge. Authorised officers will need to report their use of entry powers to Energy Safe, and Energy Safe will continue to maintain a register of the entry power usage.
The Bill enables additional offences against the Electricity Safety Act and the Gas Safety Act to be enforced via infringement notices, providing additional flexibility. These reforms will mean that Energy Safe is able to issue on the spot infringements for a wider range of relatively minor offences, allowing for a more efficient and appropriate response.
The Bill will introduce new powers for the courts to issue injunctions and adverse publicity notices. This will enable the Courts to require an entity to comply with requirements under the relevant act, and strengthen the deterrent effect of penalties by introducing reputational risks for non-compliance, and improve public awareness about energy safety issues.
The Bill will provide Energy Safe with new powers to suspend electrical contractor registrations, or electrical worker licenses, where it is the public interest to do so, and to issue prohibition notices to prevent certain activities and address immediate risks to the safe supply or use of electricity. The Bill also expands Energy Safe’s powers to issue improvement notices to enable Energy Safe to take a proactive approach compelling compliance with the Electricity Safety Act and regulations, and to address risks before they arise.
A wide range of penalties under the Electricity Safety Act and Gas Safety Act will be increased to act as a strong deterrent, recognising the potentially dangerous or damaging consequences of non-compliance. These increased penalties will better reflect the seriousness of the offences, and bring the penalties into line with similar offences in similar legislative frameworks. The primary goal of increasing these penalties is to protect consumer safety, especially building occupants at risk from unsafe electrical and gasfitting work, which could lead to serious injury, illness, or death.
Bushfire mitigation plans for specified operators will now be required every five years instead of annually, bringing them into line with the equivalent plans required for major electricity companies. Energy Safe will maintain strong oversight of all Bushfire Mitigation Plans and will have the power to require a plan to be revised in certain circumstances, for example, if there are changes in an operator’s risk profile or government policies.
In addition, the Electric Line Clearance Consultative Committee and the Victorian Electrolysis Committee will no longer be required by legislation to enable Energy Safe to undertake more flexible technical engagement with industry and community. The consultative role can be performed, informally or formally, by other persons or committees on an ad hoc or ongoing basis.
The Bill makes other minor and technical amendments to improve Energy Safe’s operational efficiency and effectiveness such as changing terminology, aligning regulation making processes with Subordinate Legislation Act requirements and removing a duplicated duty.
The Bill will amend the Energy Safe Victoria Act to require that Energy Safe submit a corporate plan every three years, rather than every year, with annual updates in the intervening years to the Minister and Treasurer. This will enable Energy Safe to develop a more forward looking, strategic plan with multi-year actions.
The Bill will provide the Minister for Environment with the power to enter into an agreement to lease under section 134 of the Land Act for projects on unreserved Crown land that are subject to the Environment Effects Act 1978. These types of projects are proposed only once or twice a year but may have strategic importance to Victoria.
Increasing certainty about future land tenure for proponents of complex projects seeks to support further investment in EES processes and future project needs. The reforms in the Bill seek to provide that certainty by removing any doubt that the Minister for Environment can enter into Agreements to Lease in these specific, limited circumstances where a project is proposed on unreserved Crown land that is also subject to the robust Environmental Effects Act regime.
Community safety is the highest priority of this Government, and I will continue to focus my efforts, and those of my department on addressing community concerns. The introduction of this Bill shows that we are unwavering in our commitment to the safety of Victorians.
These reforms are a key component of enacting the Government’s election commitment to ensure regulatory settings are keeping pace with emerging technologies to protect worker and community safety, by strengthening Energy Safe’s suite of regulatory and enforcement tools.
I commend the Bill to the house.
Evan MULHOLLAND (Northern Metropolitan) (17:33): I move:
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.