Essential Services Commission Act 2001 (review)

This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.

Essential services include services provided by the electricity, gas, water, rail, ports, towing, grain handling, non-cash payment transaction and commercial passenger vehicle industries.

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Cases we can hear

Under the Essential Services Commission Act 2001, we can review decisions made by the Essential Services Commission:

• to send an information gathering notice under section 36 – section 55(1)(a) of the Act
• to send a compliance notice – section 55(1)(ab)
• to disclose information or the contents of a document given to the Commission by the person under a notice given under section 60C(3)(c) or (d) – section 55(1)(b)
• a determination, other than a price determination under section 33, about:
  • tariffs for the sale of electricity regulated by Order under section 13 of the Electricity Industry Act 2000
  • tariffs for the sale of gas regulated by Order under section 21 of the Gas Industry Act 2001.
  • section 55(1)(c)
• that a provider of prescribed port services has not complied with a port Pricing Order in a significant and substantial way – section 55(1)(d)
• about a port Pricing Order – section 55(1)(e)
• under section 69 of the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016 – section 55(1)(f)
• a determination under section 49ZA of the Port Management Act 1995 – section 55(1)(g)

Legislation that gives VCAT the power to hear these applications

Section 55 of the Essential Services Commission Act 2001

Who can apply?

Anyone whose interests are affected by a decision or determination by the Essential Services Commissioner can apply to VCAT for a review. 

A person who represents a consumer or user group may also apply to VCAT for a review of a decision or determination contemplated by sections 55(1)(a), (ab), (b) or (c).

Reasons for applying

To apply about a determination under section 55(1)(c), you may only do so because you believe the determination was biased, was based on the wrong facts or the facts were interpreted incorrectly.

To make any other application, you may only do so because you believe the decision, requirement or determination was not made according to the law or it was unreasonable under the circumstances.

Documentation you need to apply

Provide a decision letter from the Essential Services Commission with your application.

Time limits

The following time limits apply to applications made under the Act:

• an application under sections 55(1)(a), (ab), (b) or (e) must be made within 14 working days of the notice or decision being given or made
• an application under sections 55(1)(c), (f) or (g) must be made within 21 working days after the determination or decision is published or made
• an application under sections 55(1)(d) must be made within 21 working days after the final report containing the decision is laid before each House of Parliament or, a copy is made available for public inspection. 

If you apply outside of the time limit, VCAT may extend the time for making an application. You must ask for an extension of time by indicating this on the ‘extension of time’ question of the application form and briefly explaining why your application was late.

VCAT will ask the decision maker if they agree to any extension. If the decision maker does not agree, VCAT may hold a preliminary hearing before deciding whether to grant an extension.

Putting the original decision on hold

If you make an application under section 55(1)(a), you don't need to comply with the information gathering notice until your application is withdrawn or dismissed. 

If you make an application under section 55(1)(b), the Commission must not take any action to give effect to the decision until your application is determined. 

In all other circumstances, applying for a review does not put the original decision on hold and that decision stands until VCAT makes its decision. 

If you want the original decision put on hold, you must ask for this by indicating you want a ‘stay’ on the application form and briefly explaining why you are seeking a stay. 

VCAT will ask the decision maker if they agree to any stay. If the decision maker does not agree, VCAT may hold a preliminary hearing before deciding whether to grant a stay.

What can VCAT order?

In some applications made under section 55(1)(c), VCAT can:

• determine whether there was bias and if so, set aside the determination and remit (send back) to the Commission along with any VCAT orders (directions) or recommendations about the amendment.

In all other applications VCAT can:

• affirm the original decision, in which case the original decision will stand
• vary the decision
• set aside the decision and send back to the Commission along with any VCAT orders (directions) or recommendations about the decision.

Apply

We can explain the application process and what the form is asking you for. Contact us to get support.

We can't give you legal advice. This means we can't tell you what to write in your application or recommend how to get the outcome you want.

Seek legal help if you're unsure about your options or need advice about your claim.

Do I need a lawyer or professional representative?

You don't need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission. Be aware that the regulatory body in most cases uses legal representation.

Find legal services that may be able to assist you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.