Moorabool and Central Highlands Power Alliance Incorporated v Minister for Energy and Resources

[2024] VSCA 201

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Ministerial orders
4. › Validity of executive orders disapplying statutory provisions
5. › Whether orders within power conferred by enabling Act
6. › Whether orders modified provisions outside scope of power
7. › National Electricity (Victoria) Act 2005 (Vic), ss 16Y, 16ZC
1. Statutory Interpretation
2. › Construction of empowering provisions
3. › Henry VIII clauses
4. › Strict construction of provisions permitting executive to override Act of Parliament
5. › General and specific powers
6. › Whether general power to 'regulate' can be used to do that which is subject of specific limited power
7. › Anthony Hordern principle
8. › National Electricity (Victoria) Act 2005 (Vic), s 16Y(1)
1. Statutory Interpretation
2. › Ambulatory references
3. › Meaning of 'Rules' in applied national legislation
4. › Whether reference to 'Rules' in National Electricity Law means Rules as modified by Victorian ministerial orders
5. › National Electricity Law, s 49(2)
6. › National Electricity (Victoria) Act 2005 (Vic), ss 16Y, 16ZC
1. Energy Law
2. › National Electricity Market
3. › Regulatory Investment Test for Transmission
4. › Ministerial power to disapply RIT-T process for specified augmentations
5. › Interaction between AEMO's National Transmission Planner functions and ministerial orders
6. › Whether orders inconsistent with obligation to have regard to National Electricity Objective
7. › National Electricity (Victoria) Act 2005 (Vic), ss 16Y, 16ZC
8. › National Electricity Law, ss 49, 50C, 50F

Quick Take

The Minister's power under s 16Y of the NEVA to disapply or modify the National Electricity Law is confined to the declared network functions subdivision, but the power to disapply or modify the Rules is unrestricted. References to 'Rules' in the National Electricity Law, as applied in Victoria, mean the Rules as they have the force of law in Victoria subject to ministerial orders under s 16Y. Section 16Y(4) operates automatically to consequentially disapply or modify provisions without requiring express specification by the Minister. The Minister may direct AEMO to identify a particular preferred option for a specified augmentation, and such a direction is not inconsistent with AEMO's obligation under s 49(3) to have regard to the National Electricity Objective.