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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 102
As laid on the table and read a first time, 2 June 2004
South Australia
Australian
Energy Market Commission Establishment Bill 2004
A Bill For
An Act to establish the Australian Energy Market
Commission; and for other purposes.
Contents
1 Short title
2 Commencement
3 Interpretation
4 Crown to be bound
5 Australian Energy Market Commission
6 Functions
7 Operations outside State
8 Objectives
9 Independence
10 AEMC may publish statements, reports
and guidelines
11 Memorandum of Understanding
12 Membership of AEMC
13 Terms and conditions of appointment
14 Acting Chairperson
15 Vacancies or defects in appointment
16 Chief executive
17 Other staff
18 Public Sector Management Act not
to apply
19 Consultants
20 Delegation
21 Meetings of AEMC
22 Disclosure of interest
23 Common seal and execution of documents
24 Confidentiality
25 Annual performance plan and budget
26 Accounts and audit
27 Annual report
28 Regulations
Schedule 1—Temporary
provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Australian Energy Market
Commission Establishment Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention
appears—
AEMC means the Australian Energy Market Commission established under
section 5;
Chairperson means the Commissioner appointed to be the Chairperson of the
AEMC under section 12;
Commissioner means the Chairperson or another Commissioner appointed to the
AEMC under section 12;
Gas Pipelines Access Application Act means—
(a) the Gas Pipelines Access (South Australia) Act 1997;
or
(b) the Gas Pipelines Access (Commonwealth) Act 1998 of
the Commonwealth; or
(c) the Gas Pipelines Access Act 1998 of the Australian
Capital Territory; or
(d) the Gas Pipelines Access (New South Wales) Act 1998
of New South Wales; or
(e) the Gas Pipelines Access (Northern Territory) Act 1998
of the Northern Territory; or
(f) the Gas Pipelines Access (Queensland) Act 1998 of
Queensland; or
(g) the Gas Pipelines Access (Tasmania) Act 2000 of
Tasmania; or
(h) the Gas Pipelines Access (Victoria) Act 1998 of
Victoria; or
(i) the Gas Pipelines Access (Western Australia) Act 1998
of Western Australia;
Gas Pipelines Access Law means the Gas Pipelines Access Law as
applied by a Gas Pipelines Access Application Act;
Gas Pipelines Access Regulations means—
(a) the Gas Pipelines Access (South Australia)
Regulations 1999 as applied by a Gas Pipelines Access Application Act;
or
(b) the Gas Pipelines Access (Western Australia) Regulations
2000 of Western Australia;
Jurisdictional Energy Law means a law of the Commonwealth, or a
State or Territory of the Commonwealth, that relates to energy and is
prescribed by regulation for the purposes of this definition;
MCE
means the Ministerial Council on Energy established on 8 June 2001, being the
Council of Ministers with primary carriage of energy matters at national level
comprising Ministers representing the Commonwealth, the States, the Australian
Capital Territory and the Northern Territory;
MCE (States and Territories) means the MCE when making decisions, in
accordance with its procedures, with the participation only of Ministers
representing the States and Territories;
National Electricity Application Act means—
(a) the National Electricity (South Australia) Act 1996;
or
(b) the Electricity (National Scheme) Act 1997 of
the Australian Capital Territory; or
(c) the National Electricity (New South Wales) Act 1997
of New South Wales; or
(d) the Electricity - National Scheme (Queensland)
Act 1997 of Queensland; or
(e) the Electricity—National Scheme (Tasmania) Act 1999 of
Tasmania;
(f) the National Electricity (Victoria) Act 1997 of
Victoria; or
(g) an Act of the Commonwealth, or any other State or Territory
of the Commonwealth, that applies the National Electricity Law as a law of that
jurisdiction;
National Electricity Code means the Code as defined in section 3 of
the National Electricity Law;
National Electricity Law means the National Electricity Law as
applied by a National Electricity Application Act;
National Electricity Regulations means the National Electricity (South
Australia) Regulations as applied by a National Electricity Application
Act;
National Energy Law means—
(a) a National Electricity Application Act; or
(b) the National Electricity Law; or
(c) the National Electricity Regulations; or
(d) the National Electricity Code; or
(e) a Gas Pipelines Access Application Act; or
(f) the Gas Pipelines Access Law; or
(g) the Gas Pipelines Access Regulations; or
(h) the National Third Party Access Code for Natural Gas
Pipeline Systems;
National Third Party Access Code for Natural Gas Pipeline
Systems means the
National Third Party Access Code for Natural Gas Pipeline Systems referred to
in the Gas Pipelines Access Law.
(2) A
reference in this Act to an Act, regulations or law of another jurisdiction is
a reference to the Act, regulations or law as amended and in force for the time
being, or to any Act, regulations or law enacted or made in substitution for
the Act, regulations or law.
This Act binds the Crown, not only in right of South Australia but
also, so far as the legislative power of the Parliament permits, the Crown in all
its other capacities.
5—Australian Energy Market Commission
(1) The
Australian Energy Market Commission is established.
(2) The AEMC—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued in its
corporate name.
(3) The
AEMC has all the powers of a natural person together with powers conferred on
the AEMC by or under this Act, National Energy Laws or Jurisdictional Energy
Laws.
The AEMC has the following functions:
(a) the rule-making, market development and other functions
conferred on the AEMC under National Energy Laws or Jurisdictional Energy Laws;
(b) the provision of advice to the MCE as requested by the MCE.
The AEMC may perform its functions and exercise its powers in and
outside the State.
The AEMC must, in the performance of its functions, have regard to
any relevant objectives set out in National Energy Laws.
(1) The
AEMC is not subject to direction by the Minister in the performance of its
functions.
(2) Subsection (1)
does not limit any provision of the National Energy Laws about the giving of
directions to the AEMC by the MCE.
10—AEMC may publish statements, reports and guidelines
The AEMC may publish statements, reports and guidelines relating
to the performance of its functions.
11—Memorandum of Understanding
(1) The
AEMC may enter into a Memorandum of Understanding with other bodies for the
purposes of facilitating and coordinating the performance of its functions.
(2) The
AEMC must ensure that the Memorandum of Understanding is published.
The AEMC is to consist of 3 Commissioners
appointed by the Governor on the recommendation of the Minister, of whom—
(a) 1,
who will be appointed to be the Chairperson, will be a person nominated for
such appointment by the MCE (States and Territories); and
(b) 1
will be a further person nominated by the MCE (States and Territories); and
(c) 1
will be a person nominated by the Minister of the Commonwealth who is a member
of the MCE.
13—Terms and conditions of appointment
(1) A Commissioner will be appointed— .
(a) for a term of 5 years; and
(b) on conditions as to remuneration and other matters specified
in the instrument of appointment, being conditions that the Minister has recommended
to the Governor in accordance with a resolution of the MCE.
(2) The Governor may remove a Commissioner from
office—
(a) for breach of, or non-compliance with, a condition of
appointment; or
(b) for misconduct; or
(c) for failure or incapacity to carry out official functions
satisfactorily.
(3) The office of a Commissioner becomes vacant
if the Commissioner—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is removed from office under subsection (2).
(4) On
the office of a Commissioner becoming vacant, a person must be appointed in
accordance with this Act to the vacant office.
(1) The
Minister may appoint a Commissioner nominated by the MCE (States and
Territories) as an Acting Chairperson to act in the office of the Chairperson
during any period for which the Chairperson is unable to perform official
functions or the office of the Chairperson is vacant.
(2) A
person so appointed has, while so acting, all the functions and powers of the
Chairperson.
(3) The
conditions of appointment of an Acting Chairperson will be as determined by the
Minister in accordance with a resolution of the MCE (States and Territories).
15—Vacancies or defects in appointment
An act or proceeding of the AEMC is not invalid by reason only of
a vacancy in its membership or a defect in the appointment of a Commissioner.
(1) There
is to be a chief executive of the AEMC.
(2) The
chief executive is to be appointed by the AEMC on conditions determined by the
AEMC.
(3) The
chief executive is, subject to the control and direction of the AEMC,
responsible for giving effect to the decisions and policies of the AEMC.
17—Other staff
The members of the staff of the AEMC (other than the chief
executive) are to be persons appointed by the AEMC on conditions determined by
the AEMC.
18—Public Sector Management Act not to apply
The Public Sector Management Act 1995 does not apply
in relation to the chief executive and other staff of the AEMC.
The AEMC may engage consultants on conditions considered
appropriate by the AEMC.
(1) Subject
to this section and the National Energy Laws, the AEMC may delegate functions
or powers to a Commissioner or the chief executive or some other member of the
staff of the AEMC.
(2) A delegation under this section—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not prevent the delegator from acting in any matter.
(1) The
Chairperson may convene as many meetings of the AEMC as he or she considers
necessary for the efficient conduct of its affairs.
(2) The
Chairperson must convene a meeting of the AEMC if requested to do so in writing
signed by the other Commissioners.
(3) The
Chairperson must preside at a meeting of the AEMC.
(4) A
quorum of the AEMC consists of the Chairperson and another Commissioner.
(5) A
decision concurred in by 2 Commissioners at a meeting of the AEMC is a decision
of the AEMC.
(6) Each
Commissioner present at a meeting of the AEMC has 1 vote on a question arising
for decision.
(7) If the AEMC so determines, a Commissioner
or Commissioners may participate in, and form part of a quorum for, a meeting
of the AEMC by means of any of the following methods of communication:
(a) telephone;
(b) closed circuit television;
(c) another method of communication determined by the AEMC.
(8) The
AEMC must have accurate minutes kept of its meetings.
(9) Subject
to this Act, the AEMC may regulate its own procedure.
(1) If
a Commissioner has any direct or indirect interest in a matter being
considered, or about to be considered, by the AEMC, being an interest that
could conflict with the proper performance of the Commissioner's functions in
relation to a matter arising at a meeting of the AEMC, the Commissioner must as
soon as practicable disclose the interest at a meeting of the AEMC.
(2) The
disclosure, and any decision made by the AEMC in relation to the disclosure,
must be recorded in the minutes of the meeting.
23—Common seal and execution of documents
(1) The
common seal of the AEMC must not be affixed to a document except in pursuance
of a decision of the AEMC and the affixing of the seal must be attested by the
signatures of 1 or more Commissioners.
(2) The
AEMC may, by instrument under its common seal, authorise a Commissioner, an
employee of the AEMC (whether nominated by name or by office or title) or any
other person to execute documents on behalf of the AEMC subject to conditions
and limitations (if any) specified in the instrument of authority.
(3) Without
limiting subsection (2), an authority may be given so as to authorise 2 or more
persons to execute documents jointly on behalf of the AEMC.
(4) A document is duly executed by the AEMC if—
(a) the common seal of the AEMC is affixed to the document in
accordance with this section; or
(b) the document is signed on behalf of the AEMC by a person or
persons in accordance with an authority conferred under this section.
(5) Where
an apparently genuine document purports to bear the common seal of the AEMC, it
will be presumed in any legal proceedings, in the absence of proof to the
contrary, that the common seal of the AEMC has been duly affixed to that
document.
(1) The AEMC must take all reasonable measures
to protect from unauthorised use or disclosure information—
(a) given to it in confidence in or in connection with the
performance of its functions or the exercise of its powers; or
(b) that is obtained by compulsion in exercise
of its powers.
(2) For
the purposes of subsection (1), the disclosure of information as required
or permitted by a law of the State, or a law of the Commonwealth or another
State or Territory of the Commonwealth, is taken to be authorised use and
disclosure of the information.
(3) Disclosing
information to a person or body prescribed by the regulations for the purpose
of this subsection is authorised use and disclosure of the information.
(4) A
person or body to whom information is disclosed under subsection (3) may
use the information for any purpose connected with the performance of the
person's, or body's, functions.
(5) The
AEMC may impose conditions to be complied with in relation to information
disclosed under subsection (3).
(6) For the purposes of subsection (1),
the use or disclosure of information by a person for the purposes of performing
the person's functions as—
(a) a Commissioner or a member of the staff of the AEMC; or
(b) a consultant engaged by the AEMC,
is taken to be authorised use or disclosure of the
information.
(7) Regulations
made for the purposes of this section may specify uses of information and
disclosures of information that are authorised uses and authorised disclosures
for the purposes of this section.
(8) Nothing
in subsections (2) to (7) limits what may constitute authorised use or
disclosure of information.
(9) Information
that is classified as confidential by the AEMC under a National Energy Law is
not liable to disclosure under the Freedom of Information Act 1991.
25—Annual performance plan and budget
(1) The
AEMC must, from time to time, prepare and submit to the Minister a performance
plan and budget for the next financial year or for some other period determined
by the Minister.
(2) The
plan and the budget must conform with any requirements
of the Minister as to the form of the plan or budget or the matters to be
addressed by the plan or budget.
(1) The
AEMC must ensure that proper accounts are kept in relation to its financial
affairs and that financial statements are prepared in accordance with the Public
Finance and Audit Act 1987.
(2) The
Auditor-General may at any time, and must at least once in each year, audit the
accounts of the AEMC.
(1) The
AEMC must, within 3 months after the end of each financial year, deliver to the
Minister a report on its operations during that financial year.
(2) The
Minister must, on receipt of the report, deliver a copy of the report to each
of the other Ministers who are members of the MCE.
(3) The
Minister must cause a copy of the report to be laid before both Houses of
Parliament within 12 sitting days after receipt of the report.
The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
Schedule 1—Temporary provisions
1—Temporary financial provision
Despite section 9, the Minister may
give directions to the AEMC requiring the AEMC—
(a) to enter into specified loan agreements;
(b) to make specified payments from its funds during a period
not exceeding 2 years from the commencement of this section.
2—Transfer of assets etc of NECA or NEMMCO
The regulations may transfer to the AEMC and make other provision in respect of assets or liabilities of NECA (as defined in section 3 of the National Electricity Law) or NEMMCO (as defined in section 3 of the National Electricity Law).