Thursday, 19 June 2025

Bills

National Electricity (Victoria) Amendment (VicGrid Stage 2 Reform) 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) (10:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the National Electricity (Victoria) Amendment (VicGrid Stage 2 Reform) Bill 2025:

Opening paragraphs

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 National Electricity (Victoria) Amendment (VicGrid Stage 2 Reform) 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 base my opinion on the reasons outlined in this statement.

Overview of the Bill

The main purposes of the Bill are:

• to amend the National Electricity (Victoria) Act 2005 (NEVA) by:

• making further provision in relation to the operation and governance of the statutory body corporate VicGrid (VicGrid);

• transferring the functions and powers of the CEO VicGrid under the Act to VicGrid;

• modifying the National Electricity (Victoria) Law (National Law), the National Electricity (Victoria) Regulations (Regulations), as they apply as laws of Victoria, and the National Electricity Rules (Rules), as they have the force of law in Victoria, so that VicGrid is conferred the Victorian declared network functions under that Law and the Regulations and Rules;

• transferring certain functions of AEMO under Orders in Council under the Act to VicGrid;

• providing for the issue of grid impact authorities or REZ scheme authorities by VicGrid to certain persons wishing to establish connections to the Victorian declared transmission system for generating systems and integrated resource systems or making changes to existing facilities connected to the Victorian declared transmission system;

• providing for VicGrid to establish and maintain the REZ Community Energy Fund and the Traditional Owners Fund under which supports and benefits will be provided to Victorian communities and traditional owners;

• providing for reviews of the community benefits framework;

• transferring certain property, rights and liabilities of the State relating to the CEO VicGrid functions and powers to VicGrid; and

• transferring certain property, rights and liabilities of the Australian Energy Market Operator (AEMO) relating to its Victorian declared network functions to VicGrid;

• to amend the Electricity Industry Act 2000 (EI Act) by:

• exempting VicGrid from the requirement to hold a licence under that Act to transmit electricity;

• providing for the acquisition of easements in gross by electricity corporations;

• introducing a new compliance and enforcement regime that provides additional land entry powers to facilitate the exercise of existing land access and works powers under that Act; and

• to amend Electricity Industry (Residual Provisions) Act 1993 to repeal a provision relating to the acquisition of easements in gross by electricity corporations.

Human rights issues

The Bill may limit the following human rights: privacy (s 13(a)); freedom of expression (s 15(2)); property (s 20); fair hearing (s 24(1)); and protection against self-incrimination (s 25(2)(k)).

The Bill also promotes a range of human rights under the Charter. This includes promoting First Nations cultural rights (s 19(2)) by establishing the Traditional Owners Fund to confer benefits to Traditional Owners impacted by the construction and operation of system infrastructure, and by requiring grid impact authority holders and REZ authority holders to consult and engage with Traditional Owners. By preserving existing protections in the National Law, such as the protected information provisions, the Bill provides safeguards against the disclosure of personal information, thus promoting the right to privacy (s 13(a)). Finally, the overarching objective of the Bill is to support Victoria’s renewable energy transition and investment in the transmission network, aimed at alleviating the effects of climate change, which promote the right to life (s 9).

Therefore, to the extent that the Bill limits any Charter rights, such limits are reasonable and justifiable in accordance with section 7(2) of the Charter.

Protected information provisions

Division 1 of Part 2 of the Bill inserts new section 16ZS into the NEVA, which modifies the application of Div 6 of Part 5 of the National Law. This Division sets out a regime for the use and disclosure of ‘protected information’. New section 16ZS of the NEVA inserts new subsection 54(1a) into the National Law, which provides that VicGrid must take all reasonable measures to ensure it does not make unauthorised use or disclosure of protected information. This new provision also expands the definition of protected information to include any information that has been given to VicGrid in confidence, or in connection with the performance of a REZ planning function; a landholder payment function; or a statutory function and is prescribed to be confidential information. Accordingly, the effect of the above amendments is to extend the application of this confidentiality regime to include VicGrid.

New section 16ZS of the NEVA modifies the operation of section 54A of the National Law, providing that VicGrid is only authorised to disclose protected information in accordance with Subdivision 2 of Div 6 or the Rules or Regulations. As such, protected information may only be disclosed in specified circumstances and to specified recipients. For example, with the prior written consent of the person from whom the information was obtained (amended s 54B), where disclosure is required or permitted by law or to specified regulatory and integrity bodies, e.g., the Australian Energy Regulator (amended s 54C), for the purposes of court and tribunal proceedings (amended s 54D), or if necessary for the safety, reliability, or security of electricity supply or the national electricity system (inserted s 54G(2a)(a), or if necessary for the proper operation of the market (inserted s 54G(2a)(b)). Additionally, VicGrid may impose conditions in relation to protected information disclosed to specified regulatory and integrity bodies under amended section 54C. Further, after the restricted period has expired, amended section 54H provides that the disclosure of protected information is only authorised if doing so outweighs any detriment to the person who has given it or from whom that person received it.

Additionally, amended section 54E of the National Law requires the omission of protected information from any disclosed documents that would otherwise contain such information. Similarly, amended section 54F precludes VicGrid from disclosing protected information if the report identifies or names an individual, or contains information that enables an individual to be identified.

Further, Division 2 of Part 2 of the Bill inserts new sections 55A and 55B into the NEVA, which authorise VicGrid to withhold protected information from the Treasurer and Minister and from biannual reports and prescribed financial statements subject to certain exemptions (amended ss 55A(3), 55B(3) and 55C(3)), thereby overriding the requirements that would otherwise apply to the VicGrid board as a State business corporation under sections 53, 55(1) and 55(2) of the State Owned Enterprise Act 1992. New section 55H additionally provides that a document that contains protected information within the meaning of the National Law is an exempt document for the purposes of section 38 of the Freedom of Information Act 1982.

Freedom of expression and privacy

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. The right to freedom of expression in section 15 of the Charter has been interpreted as encompassing a right to access information in the possession of government bodies, at least where an individual seeks information in which they have a legitimate interest or on a subject engaging the public interest.

However, section 15(3) provides that the right 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.

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. This is a very broad right protecting a number of personal matters, relevantly a person’s informational privacy. Where personal information is collected, the right extends to providing the person with control over that information, including how the information is used. An interference will be 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.

These amendments may engage the right to freedom of expression under section 15(2) of the Charter by limiting a person’s right to access information about matters of a public interest. They may also engage the right to privacy under section 13(a) of the Charter by authorising the disclosure of personal information. However, the obligation to maintain the confidentiality of protected information already exists in relation to the performance of the declared network functions in Victoria such that the Bill effectively transfers this obligation from AEMO to VicGrid.

Further, these provisions balance the public interest with the need to maintain the confidentiality of protected information. For example, amended section 54G of the National Law permits disclosure only where necessary for the safety, reliability or security of electricity supply and the proper operation of the market, while amended section 54H authorises the disclosure of protected information only if doing so outweighs any detriment to the discloser. Further, amended section 54C ensures that regulatory and other bodies with a legitimate interest can access and use information that is connected with the performance of their functions or the exercise of their powers. By maintaining the imposition of strict limits on the disclosure of protected information these amendments strike an appropriate balance between important objectives such as the protection of the safety and privacy of individuals, and the regulation and operation of the electricity system. I, therefore, consider that any interference with privacy is proportionate to the above legitimate purposes such that these amendments go no further than necessary to achieve them.

While the restrictions upon the ability to access information in the possession of VicGrid imposes limits on the right to freedom of expression, these limits are reasonably necessary to protect the confidentiality of information and the privacy of individuals whose personal information is disclosed to VicGrid as well as the security, effective operation and regulation of the electricity market in Victoria. For example, the disclosure of information obtained for the purpose of REZ planning, which many include sensitive decisions concerning land use and Traditional Owner cultural heritage information, would affect VicGrid’s ability to deliver its functions by undermining stakeholders’ willingness to provide sensitive information and VicGrid’s ability to obtain such information in the future. It is, therefore, necessary to extend the scope of the secrecy provisions to VicGrid’s REZ planning functions. As such, these provisions promote the rights to privacy and reputation under s 13. Given these important objectives, I consider that any limitations imposed on this right are either within the internal limits of section 15(3) or are reasonably justified and proportionate in accordance with section 7(2) of the Charter.

Information gathering powers

Division 1 of Part 2 of the Bill inserts new Part 3A into the NEVA, which modifies the application of the National Law in Victoria. Specifically, new section 16ZR extends the application of the existing information gathering powers of AEMO in Div 5 of Part 5 of the National Law. In so doing, it empowers VicGrid to make general market information orders or serve market information notices that respectively require information from persons of a class specified in the order, or the person to whom the notice is addressed, if VicGrid considers it reasonably necessary for the exercise of a relevant function (amended s 53, National Law). Further, failure to comply with such order or notice is punishable by a civil penalty (amended s 53C(3)-(4), National Law). Additionally, under new section 68A of the NEVA, the knowing provision of false or misleading information in purported compliance with a market information order or notice is also subject to a criminal penalty.

Right to protection against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

To the extent that the mandatory disclosure of prescribed market information is potentially incriminating, these amendments may engage the right in section 25(2)(k) of the Charter. However, these powers are subject to the existing exceptions in section 53C(6) of the National Law, where a person cannot be required to disclose information that is the subject of legal professional privilege, would incriminate the person or make them liable to a criminal penalty. Further, before making a general market information order or serving a market information notice, VicGrid must give the relevant persons an opportunity to make written representations about whether VicGrid should make the order or serve the notice, which it must consider before making a final decision (amended ss 53A and 53B, National Law). Therefore, the Bill preserves the existing protections against self-incrimination as far as possible.

To the extent that the protection against self-incrimination is abrogated in circumstances by these compulsive powers and penalty provisions, I consider that any limitation to the right under s 25(2)(k) is justified having regard to the purposes of the information gathering powers. For these reasons, I consider the Bill is compatible with section 25(2)(k) of the Charter.

Review of information disclosure decisions

Division 1 of Part 2 of the Bill inserts new section 16ZX into the NEVA, which amends the definition of ‘information disclosure decision’ in section 71A of the National Law, to include a decision to disclose information made by VicGrid under section 54H, other than a decision to disclose information given to VicGrid in connection with the performance of a REZ planning function or a landholder payment function. As persons aggrieved by an information disclosure decision are otherwise entitled under the National Law to apply to the Australian Competition Tribunal for merits review of this decision, the effect of this amendment is to provide no access to merits review for disclosure decisions relating to REZ planning and landholder payment functions. Accordingly, this amendment may be relevant to the fair hearing right.

Fair hearing

Section 24(1) of the Charter relevantly provides that 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. While recognising the broad scope of s 24(1), the term ‘proceeding’ and ‘party’ suggest that s 24(1) was intended to apply only to decision-makers who conduct proceedings with parties. As the administrative decisions at issue here do not involve the conduct of proceedings with parties, there is a question as to whether the right to a fair hearing is engaged.

In any event, if a broad reading of s 24(1) is adopted and it is understood that the fair hearing right is engaged by this Bill, this right would nonetheless not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision and 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. The entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited. In the context where merits review is not provided, an administrative decision-making procedure may still be compatible with fair hearing if the procedure is consistent with affording natural justice, and judicial review is available to ensure the decision was lawfully made.

I am satisfied that the fair hearing right is not limited, because VicGrid’s decision to disclose protected information under amended section 54H of the National Law provides affected persons with initial and further disclosure notices, which inform of VicGrid’s intention to disclose the information, specify the nature of the intended disclosure and state VicGrid’s reasons for doing so. Additionally, amended section 54H affords affected persons with a reasonable opportunity to make representations against the disclosure in response to the notices.

Accordingly, the exclusion of merits review under the Bill will not interfere with the right to a fair hearing, because the opportunities to be heard under the National Law are preserved, ensuring that, overall, interested parties will have access to a fair process. Further, all information disclosure decisions made by VicGrid will remain subject to judicial review (existing section 70 of the National Law). As such, I conclude that the fair hearing rights in section 24(1) of the Charter are not limited by the provisions referred to above.

Immunities

Division 2 of Part 2 of the Bill inserts new section 55E(1) into the NEVA, which provides immunity from civil monetary liability to VicGrid and its officers or employees for an act or omission in the purported or actual performance or exercise of any of VicGrid’s functions or powers, unless the act or omission was done or made in bad faith or through negligence.

New section 55F of the NEVA further provides that VicGrid or its officers or employees do not incur any civil monetary liability for any partial or total failure to supply electricity unless the failure is due to an act or omission done or made in bad faith or through negligence. New section 55G similarly provides that VicGrid, its officers, employees or agents incur no civil monetary liability for loss or damage suffered in consequence of the use of computer software to operate the national electricity market.

Further, new section 55E(2) limits the quantum of civil monetary liability for an act or omission done or made negligently in relation to the exercise of any of VicGrid’s functions or powers, to the prescribed amount. The regulations may prescribe the maximum liability amount

Insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, these provisions may engage the right. However, as the National Law already exempts AEMO from liability for acts and omissions done or made in good faith and without negligence, and provides AEMO with limited liability in respect of negligent actions, the effect of these provisions is to extend existing immunities to VicGrid, such that they do not remove existing legal rights (ie those rights were removed by a previous enactment).

Additionally, the immunity provisions are drafted in clear and precise terms, are publicly accessible, and does not operate arbitrarily. As such, any deprivation occasioned by these provisions will be ‘in accordance with law’.

Further, any deprivation of a cause of action is reasonably necessary to achieve the important objective of ensuring that AEMO and VicGrid’s officers and employees can effectively perform their functions and exercise their powers without the threat of significant personal repercussions. The scope of the immunity is also limited to good faith actions and does not extend to include negligence - such that it is proportionate to the legitimate aim sought. Additionally, these immunity provisions may be varied or excluded by agreement (new sections 55E(3) and 55F(2)-(3)). As such, there are no less restrictive means of achieving the Bill’s objectives. Accordingly, the relevant immunity is, in my view, appropriately granted.

The limited liability provision for negligent actions (new s 55E(2)) could also be considered to deprive a person of property through the imposition of quantum limits. However, any such deprivation will also be ‘in accordance with law’ and will therefore not limit the Charter right to property. That is, any interference with the property right will be governed by a clear and publicly accessible process set out in the Bill and regulations. Further, this provision strikes an appropriate balance between the need to provide just compensation for harm and to safeguard the financial viability of VicGrid, such that it is appropriately tailored and the least restrictive means to achieve the legitimate aim sought. Exposure to these types of liability will make VicGrid’s statutory functions very difficult, or prohibitively costly, to perform. The cost of electricity outages can range from hundreds of millions to billions of dollars depending on their duration. If a utility was liable for the consequences of even a minor event, this could result in insolvency and the instability of the national electricity grid.

These provisions do not place new or additional burden on consumers or take away rights. The National Electricity (Victoria) Law already exempts AEMO from liability for acts and omissions done or made in good faith and without negligence, and provides AEMO with limited liability in respect of negligent actions, the effect of these provisions is to extend existing immunities to VicGrid, such that they do not remove existing legal rights (ie those rights were removed by a previous enactment).

Finally, in prescribing the quantum of the limit on damages, the Minister will need to certify a Human Rights Certificate on the compatibility with Charter rights of the amount decided upon. For these reasons, I consider that new section 55D does not engage the right in section 20.

Grid impact authorities and REZ scheme authorities

Division 6 of Part 2 of the Bill inserts new Division 2A into the NEVA, which establishes a scheme for the issue by VicGrid of grid impact authorities, which will be required by persons, known as Connection Applicants, who wish to establish a connection from their generating system or integrated resource system to the declared transmission system if:

• the connection is outside a REZ; or

• within a REZ and their system is a technology type not specified as eligible in a REZ scheme declaration; or

• within a REZ and the system is part of a facility that is predominantly located outside a REZ.

Grid impact authorities will also be required by generators or Integrated Resource Providers that wish to carry out a system change to a generating system or integrated resource system they own, operate or control if:

• the system is part of a facility connected to the declared transmission system outside a REZ; or

• the system is part of an eligible facility connected to the declared transmission system within a REZ.

Importantly, Division 6 of Part 2 of the Bill inserts new s 33F into the NEVA, which allows VicGrid to revoke a grid impact authority if it is of the view that the grid impact authority holder has not complied with a condition to which the grid impact pass authority is subject.

Further, Division 6 of Part 2 of the Bill also inserts new Division 2C into the NEVA, which sets out the framework for the issue of REZ scheme authorities by VicGrid. These authorities will be required by Connection Applicants who wish to connect an eligible generating system or eligible integrated resource system to the declared transmission system in a REZ and by Generators or Integrated Resource Providers who wish to carry out a system change to an eligible facility within a REZ. New Division 2C includes new section 33Q which enables VicGrid to revoke a REZ scheme authority if VicGrid is of the view that the REZ scheme authority holder has not complied with a condition to which the REZ scheme authority is subject.

Finally, Division 6 of Part 2 inserts new section 33S into the NEVA, which provides that a REZ scheme authority cannot be transferred without VicGrid consent. It then inserts new section 33T which steps out the process for a REZ scheme authority holder to apply for VicGrid to consent to the transfer of their REZ scheme authority to another person, and the process for VicGrid to approve or deny the transfer application. Under new section 33T(3), in making a decision, VicGrid must have regard to any matters that are prescribed, and under new section 33T(4), VicGrid must refuse to consent to a transfer of the REZ scheme authority to another person if it is satisfied that the transfer would not be in the public interest.

Both grid impact authority and REZ scheme authority applications must be accompanied by a consultation and engagement plan relating to a process for consultation with impacted communities and traditional owners. The consultation and engagement plan may be approved by VicGrid in granting the authority, and it is then a condition of the authority that these plans be complied with, including the implementation of a complaint handling system and dispute resolution process (new ss 33A(2)(b) and (3), 33B(3), 33C(1)(b), 33K(3) and (4), 33L(3), and 33N(1)(b)). Accordingly, the Bill promotes First Nations cultural rights, which are protected by s 19(2) of the Charter.

Fair hearing

In relation to decisions to issue or renew a licence, unless a decision determines existing rights, it is understood the fair hearing right is unlikely to apply. Accordingly, VicGrid’s power to revoke a grid impact authority or REZ scheme authority (the authorities) - which are similar to a licence - in new sections 33F and 33Q, revokes an existing interest and therefore could engage the right to fair hearing.

The Bill applies various procedural fairness safeguards to a decision to revoke an authority, including the requirement that notice of the proposed decision be provided to the authority holder, which must include the grounds for the proposed revocation (new ss 33F(2)(a) and 33Q(2)(a)), and also invite the authority holder to make written submissions as to why the authority should not be revoked (new ss 33F(2)(b) and 33Q(2)(b)). VicGrid must take into account any submissions made in making its decision regarding revocation (new ss 33F(3) and 33Q(3)). Once the decision to revoke has been made, VicGrid will then be required to give reasons to the authority holder as to why it is revoking the authority (new ss 33F(5)(a) and 33Q(5)(a)) and provide notice as to when the revocation will take effect (new ss 33F(5)(b) and 33P(5)(b)). The authority holder has a right of judicial review of the lawfulness of the decision.

In view of above safeguards, and the fact that the ability to revoke an authority due to a failure to comply with its conditions is an important regulatory function, I do not consider that the fair hearing right has been limited.

I am therefore of the view that these amendments, and in particular new sections 33F and 33Q, are compatible with the right to fair hearing under the Charter.

Right to property

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

The restriction on the transfer of REZ scheme authorities provided by new sections 33S and 33T, such that VicGrid may refuse to consent to a transfer, may engage the right to property under section 20 of the Charter.

While the definition of ‘property’ has not been extensively considered by Victorian courts, the concept may incorporate statutory rights that have the characteristics of traditional property, including transferability, as well as non-traditional rights such as licences. Accordingly, a REZ scheme authority, akin to a type of licence to connect a generating system or integrated resource system to the declared transmission system in a REZ, and which has economic value, may constitute property for the purposes of section 20 of the Charter, when the scope of the right is interpreted broadly.

For property rights to be limited, any interference must constitute a deprivation of property. International jurisprudence indicates that a deprivation of property will extend to include a substantial restriction on a person’s use or enjoyment of their property, which may include a restriction on a person’s ability to dispose of or transfer their property. Assuming that a broad interpretation of ‘deprivation of property’ is accepted by the courts, the restriction on the transfer of a REZ scheme authority may in fact constitute a deprivation of property.

However, any such deprivation would be in ‘accordance with law’ and therefore not constitute a limit on property rights under the Charter. New section 33S of the NEVA is clearly drafted and accessible, such that it enables Victorians to regulate their conduct in accordance with the provision. Accordingly, I am satisfied that new section 33S and does not limit the property right under section 20 of the Charter.

Transfer of property, rights and liabilities

Division 10 of Part 2 of the Bill, which inserts Parts 10 and 11 into the NEVA, provides that all property, rights and liabilities of the Crown or AEMO, wherever located, which are specified under an allocation statement, vest in VicGrid in accordance with the statement. The transfer of these property rights are to remain subject to any encumbrances in effect at the time of transfer (Divisions 2 and 3 of Part 10). Similarly, these Divisions provide that all property, rights and liabilities of AEMO that relate to AEMO’s Victorian network functions, which are specified under an allocation statement, vest in VicGrid in accordance with the statement.

Further, VicGrid is substituted for the Crown in any proceedings pending or existing in any court, tribunal or arbitration to which the Crown was a party and that relate to former Crown property (Division 2 of Part 10, NEVA.) Similarly, VicGrid is substituted in any proceedings pending or existing in any court or tribunal to which the CEO VicGrid or the Administrative Office of VicGrid were a party (Division 2 of Part 10, NEVA). VicGrid is also substituted in any proceedings pending or existing in any court, tribunal or by a dispute resolution panel to which AEMO was a party, or in any court, tribunal or arbitration to which AEMO was a party and that relate to former AEMO property (Division 3 of Part 10, NEVA). Additionally, VicGrid is liable for any criminal fine in respect of any offence of which AEMO was a convicted and committed in the performance of a Victorian network function, and any civil penalty in respect of a breach or contravention of a civil penalty provision by AEMO in performing a Victorian network function, as specified under an allocation statement (Division 3 of Part 10, NEVA). Division 10 of Part 2 of the Bill also inserts a new definition, which defines property to mean ‘any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description’; liabilities to mean ‘all liabilities, duties and obligations, whether actual, contingent or prospective’; and rights to mean ‘all rights, powers, privileges and immunities, whether actual, contingent or prospective’.

Right to property

The transfer of any of the Crown’s property, rights and liabilities to VicGrid is relevant to the property rights of natural persons who hold an interest in the property or liability transferred. However, the transfer will not limit the property rights of persons holding the interest as they are not being deprived of their interest. Rather, the property or liability is transferred from the Crown to a statutory body without altering the substantive content of that property right or liability.

Insofar as a cause of action in relation to any potential liability held by the Crown may be considered ‘property’ within the meaning of section 20 of the Charter, the Bill may engage this right. However, in my opinion, the Bill does not effect a deprivation of property as it does not extinguish any cause of action which a person may have against the Crown, CEO VicGrid or the Administrative Office of VicGrid. Rather, liability is transferred to VicGrid.

Finally, even if the Bill could be considered to deprive a person of property, any such deprivation would be ‘in accordance with law’ and will therefore not limit the Charter right to property. In particular, the new provisions of the NEVA dealing with the transfer of property, rights and liabilities from the Crown to VicGrid, as outlined above, are drafted in clear and precise terms, and are sufficiently accessible to allows persons to regulate their own conduct in relation to them. Accordingly, the Bill to transfer the property to VicGrid does not limit this Charter right.

Acquisition of easements in gross

Right to property

As above, for the purposes of section 20 of the Charter, ‘property’ includes all real property interests recognised under the general law. An easement is a real property interest, and any acquisition of an easement will therefore interfere with the property right of persons whose interest in land is affected. Division 2 of Part 3 of the Bill amends the EI Act to recognise easements in gross acquired by an electricity corporation even though there is no land vested in the corporation. Part 4 of the Bill repeals the equivalent provision from the Electricity Industry (Residual Provisions) Act 1993 and principally re-enacts the substance of that provision into the EI Act. This amendment is not a limitation on the property right in the Charter because it is a process under the EI Act in relation to acquisition of easements which is logical and rational. The amendments does not provide an additional new powers to acquire easements as it is already covered by section 86 of the EI Act, therefore the right in section 20 of the Charter is not limited.

New land entry powers

Division 3 of Part 3 of the Bill inserts new Division 3 into Part 5 of the EI Act, which grants land access powers to authorised officers for the purposes of facilitating access for electricity corporations to enter land and undertake functions under existing section 93(1). The Division introduces a new compliance and enforcement regime that enables authorised officers, accompanied by officers of electricity corporations to enter private land without owner or occupier consent. These powers provide a hierarchy of options that scale in the extent of their interference with rights:

• at the lower end of the scale are further statutory powers of entry (new subdivision 3, specifically new s 93BC);

• at the higher end are entry powers that can only be exercised pursuant to a court order (new subdivision 4, specifically new s 93BG).

Further statutory powers of entry

New section 93BC provides authorised officers with the power to enter any land for the purposes of exercising, or facilitating the exercise by another person, of the land entry and works powers under existing section 93(1). Section 93(1) authorises entry onto land to undertake works (e.g., make surveys, construct any works, or place any structure or equipment). Thus, whilst the new powers do not of themselves authorise the conduct of works, they enable their use in a broader range of circumstances, if authorised under section 93(1) of the EI Act.

Powers of entry in accordance with court order

New section 93BH provides that an authorised officer may apply to the Magistrates’ Court for an entry order for various grounds, including that entry to the land in accordance with sections 93 or 93BC, or the exercise of a power under section 93 in respect of that land, has previously been refused, hindered, delayed or obstructed. The Magistrates’ Court may grant an entry order if satisfied on the evidence, that there are reasonable grounds for making the order (new s 93BJ(1)).

An order issued under new section 93BJ authorises the named authorised officer to use reasonable force to gain entry if it is reasonably necessary to do so, including to remove any obstruction. Under new sections 93BG and 93BM, owners and occupiers of the land subject to such an order, and every other person, are prohibited from obstructing, hindering or delaying the entry of the authorised officer and any person (who belongs to a class) specified in the order, or any authorised activities undertaken pursuant to the authorised entry. The order also empowers authorised officers to give a warning or direction if they reasonably believe that a person is hindering, obstructing or delaying their entry onto land (new s 93BP). Therefore, the Bill introduces a number of new offences to facilitate entry and the undertaking of the section 93 functions.

Powers under both entry authorities

If authorised to enter land under sections 93BC or 93BG, an authorised officer may direct any person who is on that land to state their name and address and provide evidence of their ownership or right of occupation, if the officer believes the person is committing, or has committed, a specified offence (new s 93BO). Further, if a person states a name and address in response to this direction that an authorised officer suspects on reasonable grounds to be false, the officer may direct the person to produce evidence of their name or address. Non compliance with both provisions, without reasonable excuse, is an offence. These powers engage the privacy right in section 13(a) and the right to freedom of expression in section 15(2) (by compelling a person to impart information).

Works powers

Division 1 of Part 3 includes VicGrid into the definition of an electricity corporation for the purposes of Part 5 of the EI Act. Division 4 of Part 3 of the Bill amends the EI Act to temporarily confer works powers on the CEO VicGrid or their authorised representative. The effect of these amendments are to extend to CEO VicGrid (for the interim between Royal Assent and the transfer of functions from CEO VicGrid to VicGrid), and VicGrid thereafter, existing powers of electricity corporations to enter land and undertake works under section 93(1) of the EI Act.

Right to privacy and freedom of expression

Section 13 of the Charter provides that a person has the right to not have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be 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.

• 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. To the extent that the compulsive power to require an owner or occupier’s name, address and proof of ownership or right to occupancy under section 93BO requires a person to provide personal information, this may interfere with the person’s right to privacy in section 13(a) of the Charter. This provision also engages the right to freedom of expression in section 15(2) of the Charter, by compelling a person to impart information.

• However, in my view, any interference with these rights would not be arbitrary or unlawful. This is because establishing a person’s identity is an essential pre-requisite to the proper and lawful discharge of enforcement powers and as such, the Bill serves the legitimate purpose of ensuring that authorised officers are able to enforce offences provided for under the Bill. It is common regulatory power for authorised officers exercising entry powers to require basic information establishing identity, ownership or occupancy. Further, this provision is subject to safeguards, namely the reasonable excuse exception (new s 93BO(2) and (5)). Therefore, I consider that these powers are proportionate to give effect to the legitimate purpose of the Bill so as to be compatible with sections 13(a) or 15(2) of the Charter.

Further, a person’s ‘home’ includes a person’s place of residence. Therefore, entry onto private land may, depending on the type and use of the private property, constitute an interference with the privacy of home.

As entry powers will be restricted to entry onto land rather than residential premises or buildings (new s 93BC(2)), there is generally a lesser expectation of privacy. While the nature of interference may be less severe than an entry into a person’s private residence (e.g., inside their home), the conduct of any works on private land will increase the extent of the interference. For example, entry onto private land for the purpose of constructing infrastructure is likely to amount to a deprivation of an occupier’s right to exercise autonomy over their property. Works may also limit an occupant’s quiet enjoyment of their home owing to the temporary establishment and storage of plant, machinery, equipment, or temporary structures on their land, and to nuisances such as noise from the operation of such plant, machinery or equipment.

This being so, any interference with a property owner’s privacy of home occasioned by this Bill is lawful and not arbitrary as it is authorised by legislation and subject to various statutory limitations. The power to enter land under new section 93BC is subject to a range of procedural safeguards, including obligations of authorised officers to take all reasonable steps to ensure that the entry onto the land is no more disruptive than is reasonably necessary and that they, and any person who accompanies them under section 93BC(3), does not remain on the land for longer than is reasonably necessary, having regard to the purpose of the entry (new section 93BF). Further, new section 93BC(2) prohibits entry onto land contrary to the conditions of the authorisation, or entry into residential premises or buildings.

Moreover, the new statutory powers of entry are subject to strict written notice requirements: the entity that owns or occupies the land must be provided with at least 30 business days’ and 48 hours’ notice of the entry in accordance with the permitted methods specified in new section 93BRA (new s 93BD), and immediately upon entering the land, the authorised officer must take all reasonable steps to ensure that the apparent owner or occupier of that land is given a copy of the notice (new s 93BLA(1)(b)-(2)).

Applications for entry orders are subject to the independent supervision and determination of the Magistrates’ Court based on rules of evidence, which may make an order subject to any conditions it considers appropriate (new s 93BJ(3)), such as specifying time and duration restrictions when entry is permitted (new s 93BJ(2)(f) and 93BJ(3)).

Further safeguards also apply to entry under the authority of an entry order, such as the requirements (with limited exceptions) that the authorised officer make all reasonable efforts to serve a notice of an entry order application in accordance with section 93BH, and if granted, a copy of the order on the owner or occupier of the land, as soon as practicable after applying for an entry order (s 93BHA(1)) or the entry order is made (new s 93BK(1)), and if attempted service is unsuccessful, the authorised officer must cause a copy of the application and entry order to be affixed to, or in a conspicuous place near, an entrance to the land (new ss 93BHA(4) and 93BK(3)). New sections 93BHB and 93BHC further provide that an owner or occupier may object to an entry order application and the Magistrates’ Court may may extend or abridge the time within which an objection may be made. An authorised officer must also take all reasonable steps to ensure that the apparent owner or occupier of that land is given a copy of the notice immediately upon entering the land (new s 93BLA(1)(b)-(2)). If an entry order is granted, the order must not permit entry earlier than 7 days from the order date (new s 93BJ(3)(b)).. The Magistrates’ Court may hear and determine an application even if a person who objects does not appear at the hearing of the application, if the court is satisfied that it is in the interests of justice to do so (new s93BJ(7)).

Immediately on entering the land under the new statutory powers or an entry order, an authorised officer must take all reasonable steps to ensure entry is announced to the owner or occupier (new s 93BLA(2)). Authorised officers are also required to carry and produce for inspection an identification card on request (new s 93BN).

Given the various safeguards outlined above, I consider that the new entry powers are appropriately tailored to reflect the source of the authority to enter land, with the most significant powers (authorising the reasonable use of force to gain entry) being reserved to circumstances where a magistrate has granted an order.

While both tiers of entry powers occasion an interference with privacy, these powers are necessary to facilitate important objectives, being the need to access land to undertake Cultural Heritage Mapping investigations and critical environmental effects assessments, for the purposes of expeditiously developing electricity infrastructure and delivering transmission projects. Delivery of these transmission projects is crucial to enable Victoria to connect generators to the grid by 2030 in accordance with national renewable energy targets. Accordingly, these amendments facilitate an electricity corporation’s right to access land under section 93 of that Act, over landowners and third parties who seek to hinder or obstruct access. Accordingly, the interference with a property owner or occupier’s right to privacy has a legitimate purpose.

As such, any interference with a person’s privacy or home occasioned by these amendments is authorised by legislation that is precise and appropriately circumscribed and proportionate to the legitimate aims sought by those provisions, such that they are lawful and not capable of being exercised arbitrarily. Further, the obligations imposed on authorised officers entering onto private land operate to minimise any interference on the property owner’s rights, thus constituting the least restrictive means reasonably available to achieve the Bill’s purpose. Although the powers involve some interference with the privacy of the residents and occupier(s) of the premises, I consider that the amendments compatible with the right to privacy in section 13 of the Charter.

Right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. A deprivation of property will not be limited to situations of forced transfer or extinguishment of title or ownership but will extend to any substantial restriction on a person’s exclusive possession, use or enjoyment of their property. The powers to enter land for the purpose of carrying out investigations, surveys and works on private land are likely to interfere with the property rights of persons who are by this activity deprived of the exclusive possession, use and enjoyment of their land.

However, the right to property will only be limited where a person is deprived of property ‘other than in accordance with the law’. For a deprivation of property to be ‘in accordance with the law’, the law must be publicly accessible, clear and certain, and must not operate arbitrarily. In this instance, the interference will not be arbitrary, but governed by a clear and accessible process set out in the Bill and subject to reasonable conditions. For example, the powers are subject to strict notice requirements (new ss 93BD, 93BE and 93BK). Other limits and conditions apply to entry powers such as the requirement not to remain on the land for longer than is reasonably necessary, having regard to the purpose of the entry (section 93BF(2)), thus ensuring that the interference with a person’s property is the least restrictive possible whilst also enabling the necessary functions to be carried out.

Additionally, when exercising works powers under section 93(1), the CEO VicGrid or their authorised representative must do as little damage as possible and must, if required, make full compensation to the owner of, and all parties with an interest in, the land for any damage sustained by them in consequence of the exercise of the powers (amended s 93(2) EI Act). The CEO VicGrid or their authorised representative will also be subject to safety duties in relation to works on or in the immediate vicinity of rail infrastructure or rolling stock and the obligation to notify owners or occupiers of land of that land (amended ss 93A and 93B EI Act). VicGrid, as an electricity corporation, will also need to comply with these requirements.

Further, in relation to powers of entry under new section 93BC, the extensive safeguards outlined above demonstrate that any deprivation of property that occurs as a result of the new provisions inserted by the Bill is not arbitrary and will be in accordance with the law. I therefore consider that these clauses are compatible with the right to property.

Fair hearing

Section 24(1) of the Charter, explained above, is relevantly is also engaged in relation to the power of the Magistrates’ Court to grant an entry order if satisfied on the evidence, that there are reasonable grounds for making the order (new s 93BJ(1)). I am satisfied that the fair hearing right is not limited. There are appropriate procedures and safeguards. Applications for entry orders are subject to the independent supervision and determination of the Magistrates’ Court based on rules of evidence, which may make an order subject to any conditions it considers appropriate (new s 93BJ(3)). Owners or occupiers of the land must be notified of the application and may object to the application, which affords procedural fairness (new sections 9BHA and 93BHB). The court must be satisfied that there are reasonable grounds for making the order (new section 93BJ(1)). The Magistrate’s Court decision is subject to any appeal or judicial review. Following the making of the order, there are requirements about maximum duration of the order, giving of notice and service, which affords further procedural fairness (new sections 93BJ(3), 93BJ(6) and 93BK). As such, I conclude that the fair hearing rights in section 24(1) of the Charter are not limited by the provisions referred to above.

Presumption of innocence and right against self-incrimination - ‘reasonable excuse’ offence provisions

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

The Bill introduces offence provisions that contain ‘reverse onus’ elements:

• Obscure, damage or destroy a copy of an application affixed (section 93BHA and 93BK)

• Authorised officer may direct person to identify themselves including if the officer suspects on reasonable grounds that the name or address or evidence of ownership or occupation of the land is false (section 93BO)

• Authorised activities must not be hindered, obstructed or delayed (section 93BM).

These provisions support the enforcement of entry powers in the Bill in a necessary, reasonable and proportionate way. By creating ‘reasonable excuse’ exceptions, these offences in the Bill place an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence.

The provisions in the Bill support the integrity of the entry powers or orders enforcement process including notification, identification of persons who may be subject of an entry power or order for the legitimate purpose of supporting the exercise of powers and functions under section 93 of the EI Act to undertake works (e.g., make surveys, construct any works, or place any structure or equipment). To permit the obstruction, hindrance, and false information or the refusal to co-operate with lawful requests of the authorised officer enforcing a power or court order, and to allow a person to escape sanction for doing so, would fundamentally undermine the enforcement of the scheme.

I do not consider that an evidential onus such as this limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach. For these reasons, I consider the Bill is compatible with section 25(1) and section 25(2)(k) of the Charter. To the extent that that any limitation is imposed on the right in section 25(2)(k), any such limitation is reasonable and justified under section 7(2) of the Charter for the reasons above.

Hon Lily D’Ambrosio

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) (10:09): 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 managing the transition of the energy sector to achieve net-zero emissions by 2045 while ensuring the reliable supply of energy to Victorian consumers. Achievement of this goal, however, requires significant investment in the transmission network to connect and transport that new generation to Victorians.

This Bill amends the National Electricity (Victoria) Act 2005, the National Electricity (Victoria) Law), the National Electricity (Victoria) Regulations, the Electricity Industry Act 2000 and the Electricity Industry (Residual Provisions) Act 1993.

VicGrid, has been established as a State body under the State Owned Enterprises Act 1992 and will transition to a State Business Corporation.

The Bill provides for the following:

Declared Network Functions Transferred

The transfer of functions and powers of the CEO VicGrid under the National Electricity (Victoria) Act 2005 to the statutory body corporate, VicGrid.

The modification of the National Electricity (Victoria) Law and the National Electricity (Victoria) Regulations, as they apply as laws of Victoria, and the National Electricity Rules as they have the force of law in Victoria, so that the statutory body corporate VicGrid is conferred the declared network functions for Victoria under that Law, those Regulations and Rules.

To transfer certain functions of the Australian Energy Market Operator under Order in Council to the statutory body corporate VicGrid.

Access Regime

The establishment of new physical access arrangements in the State through the issue of a Renewable Energy Zone scheme authorities and grid impact authorities by the statutory body corporate VicGrid, to control access to the declared shared network and minimise constraints on generating systems and integrated resource systems within a renewable energy zone.

Community benefits

The establishment of a framework for the funding and payment of benefits to landholders, local communities and Traditional Owners impacted by new transmission, renewable generation and battery storage infrastructure.

Other amendments

To transfer certain property, rights and liabilities from the State relating to the CEO VicGrid, the Australian Market Energy Operator and its subsidiary, Transmission Company Victora Pty Ltd, to the statutory body corporate VicGrid.

The Bill also amends the Electricity Industry Act 2000 and the Electricity Industry (Residual Provisions) Act 1993 to provide for:

Enforcement of access to land

An exemption for the statutory body corporate VicGrid from the requirement to hold a licence to transmit under the Electricity Industry Act 2000.

Establishment of a new power for authorised officers to enter land to facilitate works by an electricity corporation, including a power to service infringement notices.

The acquisition of easements in gross by electricity corporations.

I commend the Bill to the house.

Roma BRITNELL (South-West Coast) (10:10): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

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