EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 118

Issued by authority of the Parliamentary Secretary to the Treasurer

Trade Practices Act 1974

Trade Practices Amendment Regulations 1974

 

This explanatory statement relates to the Trade Practices Amendment Regulations (No. 1) and is made for the purposes of the Legislative Instruments Act 2003.

 

Section 172 of the Trade Practices Act 1974 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Section 44AAG of the Act provides that the Federal Court may make an order, on application by the Australian Energy Regulator on behalf of the Commonwealth, declaring that a person is in breach of a uniform energy law that is applied as a law of the Commonwealth or a State/Territory energy law.  This section commenced operation on 23 May 2005.

 

Paragraph 44AAG(2)(e) of the Act provides that if the order declares the person to be in breach of such a law, the order may include an order of a kind prescribed by regulations made under the Act.

 

The purpose of the Regulations was to insert the new regulation 6AA in the Trade Practices Regulations 1974. The new regulation 6AA(1) specifies that the following kinds of orders are prescribed for the purposes of paragraph 44AAG(2)(e) of the Act:

 

• an order that includes a direction that the loads of the person to whom the order applies be disconnected in accordance with the rules; and
• an order that includes a direction that the person to whom the order applies be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by NEMMCO.  NEMMCO refers to the National Electricity Market Management Company, the operator of the electricity wholesale exchange.

 

The new regulation 6AA allows the Federal Court to make orders similar to the orders that can be made by the Court under section 62 of the National Electricity Law (which is the Schedule to the National Electricity (South Australia) Act 1996 of South Australia).  In that provision, ‘the Court’ means, where the National Electricity Law applies as a law of a participating jurisdiction of a State or Territory, the Supreme Court of that jurisdiction.  This means the Supreme Court of South Australia, New South Wales, Victoria, Queensland, Tasmania and the Australian Capital Territory.  The Court also means the Federal Court where the Australian Energy Market Act 2004 applies the National Electricity Law as a law of the Commonwealth, namely in offshore adjacent areas.  The new regulation, by operation of subsection 44AAG(2) of the Act, gives the Federal Court jurisdiction to make these orders in relation to all participating jurisdictions, not just in relation to offshore adjacent areas.

 

The new regulation 6AA also clarifies that the reference to rules in subregulation 6AA(1) means rules mentioned in paragraph (c) of the definition of South Australian Electricity Legislation in section 44AB of the Act, to the extent that they apply as part of:

 

       (a)   a uniform energy law that is applied as a law of the Commonwealth; or

       (b)   a State/Territory energy law.

 

The rules will therefore include the National Electricity Rules made by the South Australian Minister under section 90 of the new National Electricity Law, and then made by the Australian Energy Market Commission under the new National Electricity Law.

 

Details of the Regulations are set out in the Attachment.

 

The Trade Practices Amendment Regulations (No. 1) commenced on the day after they were registered.

 

The Trade Practices Amendment Regulations (No. 1) reflects reforms being made to the National Electricity Law.  Given this, no separate consultation on the Trade Practices Amendment Regulations (No. 1) was necessary.

 

ATTACHMENT

 

Details of the Trade Practices Amendment Regulations 2005 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Trade Practices Amendment Regulations 2005 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Trade Practices Regulations 1974

 

This regulation provides that the Trade Practices Regulations 1974 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – regulation 6AA

 

This item inserts regulation 6AA into the Principal Regulations. Subregulation 6AA(1) prescribes the following kinds of orders for the purposes of paragraph 44AAG(2)(e) of the Act:

 

• an order that includes a direction that the loads of the person to whom the order applies be disconnected in accordance with the rules; and
• an order that includes a direction that the person to whom the order applies be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by NEMMCO.  NEMMCO refers to the National Electricity Market Management Company, the operator of the electricity wholesale exchange.

 

The new regulation 6AA allows the Federal Court to make orders similar to the orders that can be made by the Court under section 62 of the National Electricity Law (which is the Schedule to the National Electricity (South Australia) Act 1996 of South Australia).  In this provision, ‘the Court’ means, where the National Electricity Law applies as a law of a participating jurisdiction of a State or Territory, the Supreme Court of that jurisdiction.  This means the Supreme Court of South Australia, New South Wales, Victoria, Queensland, Tasmania and the Australian Capital Territory.  The Court also means the Federal Court where the Australian Energy Market Act 2004 applies the National Electricity Law as a law of the Commonwealth, namely in offshore adjacent areas.  The new regulation, by operation of subsection 44AAG(2) of the Act, gives the Federal Court jurisdiction to make these orders in relation to all participating jurisdictions, not just in relation to offshore adjacent areas.

 

Subregulation 6AA(2) provides that the reference to rules means rules mentioned in paragraph (c) of the definition of South Australian Electricity Legislation in section 44AB of the Act, to the extent that they apply as part of:

 

       (a)   a uniform energy law that is applied as a law of the Commonwealth; or

       (b)   a State/Territory energy law.