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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to amend the National Electricity (South Australia)
Act 1996.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Definition
4 Amendment provisions
Part 2—Amendment of National Electricity (South
Australia) Act 1996 as part of the national
scheme
5 Amendment of section 2 of the
NEL—Definitions
6 Amendment of the NEL—New sections 2A to 2F
inserted
2A Meaning of access
dispute
2B Meaning of direct control network
service
2C Meaning of negotiated network
service
2D Meaning of regulatory obligation or
requirement
2E Meaning of regulatory
payment
2F Form of regulation
factors
7 Amendment of section 6 of the NEL—Ministers of
participating jurisdictions
8 Amendment of the NEL—Section 7
substituted and new section 7A inserted
7 National
electricity objective
7A Revenue and pricing
principles
9 Amendment of section 8 of the NEL—MCE statements of
policy principles
10 Amendment of the NEL—New Division heading inserted
into Part 2
11 Amendment of section 11 of the NEL—Electricity market
activities in this jurisdiction
12 Amendment of the NEL—New Division 2
inserted into Part 2
Division 2—Regulated network service
providers
14A Regulated transmission system operator must
comply with transmission determination
14B Regulated
distribution system operator must comply with distribution
determination
13 Amendment of section 15 of the NEL—Functions
and powers of AER
14 Amendment of the NEL—New section 16
substituted
16 Manner in which AER performs AER economic
regulatory functions or powers
15 Amendment of the NEL—New
section 18
substituted
18 Confidentiality
16 Amendment of the
NEL—New heading to Division 2 of Part 3
17 Amendment of section 19 of
the NEL—Definitions
18 Amendment of the NEL—New section 20
substituted and new sections 20A and 20B
inserted
20 Authorised
person
20A Identity
cards
20B Return of identity
cards
19 Amendment of section 21 of the NEL—Search
warrant
20 Amendment of the NEL—deletion and substitution of sections
22 and 23
22 Announcement of entry and details of warrant to
be given to occupier or other person at
premises
23 Announcement before
entry
21 Amendment of section 24 of the NEL—Copies of seized
documents
22 Amendment of NEL—New section 25
substituted
25 Retention and return of seized documents or
things
23 Amendment of section 26 of the NEL—Extension of period
of retention of documents or things seized
24 Amendment of section 26 of the
NEL—Obstruction of person authorised to enter
25 Amendment of the
NEL—New Divisions 3 to 7 of Part 3 inserted
Division 3—General information gathering
powers
28 Power to obtain information and documents in
relation to performance and exercise of functions and powers
Division 4—Regulatory information notices and general regulatory
information orders
Subdivision
1—Interpretation
28A Definitions
28B Meaning
of contributing service
28C Meaning of general
regulatory information order
28D Meaning of regulatory
information notice
28E Division does not limit
operation of information gathering powers under Division 3
Subdivision 2—Serving and making of regulatory information
instruments
28F Service and making of regulatory information
instrument
28G Additional matters to be considered for
related provider regulatory information
instruments
28H AER must consult before publishing a
general regulatory information order
28I Publication
requirements for general regulatory information
orders
28J Opportunity to be heard before regulatory
information notice is served
Subdivision 3—Form and content of regulatory information
instruments
28K Form and content of regulatory information
instrument
28L Further provision about the information
that may be specified in a regulatory information
instrument
28M Further provision about manner in which
information must be provided to AER or kept
Subdivision 4—Compliance with regulatory information
instruments
28N Compliance with regulatory information notice
that is served
28O Compliance with general regulatory
information order
28P Exemptions from compliance with
general regulatory information order
28Q Assumptions
where there is non-compliance with regulatory information
instrument
Subdivision 5—General
28R Providing to AER false
and misleading information
28S Person cannot rely on
duty of confidence to avoid compliance with regulatory information
instrument
28T Legal professional privilege not
affected
28U Protection against
self-incrimination
Division 5—Network service provider performance
reports
28V Preparation of network service provider
performance reports
Division 6—Disclosure of confidential information held by
AER
28W Authorised disclosure of information given to the AER
in confidence
28X Disclosure with prior written consent
is authorised
28Y Disclosure for purposes of court and
tribunal proceedings and to accord natural
justice
28Z Disclosure of information given to the AER
with confidential information omitted
28ZA Disclosure
of information given in confidence does not identify
anyone
28ZB Disclosure of confidential information
authorised if detriment does not outweigh public benefit
Division 7—Miscellaneous matters
28ZC Consideration
by the AER of submissions made to it under this
Law
28ZD Use of information provided under a notice
under Division 3 or a regulatory information
instrument
28ZE AER to inform certain persons of
decisions not to investigate breaches, institute proceedings or serve
infringement notices
28ZF AER enforcement
guidelines
28ZG AER must report to MCE if it does not
make network revenue or pricing determination within time
26 Amendment
of the NEL—New section 31
substituted
31 Confidentiality
27 Amendment of
section 32 of the NEL—AEMC must have regard to national electricity
objective
28 Amendment of section 34 of the NEL—Rule making
powers
29 Amendment of the NEL—New sections 35 and 36
substituted
35 Rules relating to MCE or Ministers of
participating jurisdictions require MCE consent
36 AEMC
must not make Rules that create criminal offences or impose civil penalties for
breaches
30 Amendment of section 37 of the NEL—Documents etc
applied, adopted and incorporated by Rules to be publicly
available
31 Amendment of the NEL—deletion of section
40
32 Amendment of section 41 of the NEL—MCE directions
33 Amendment
of section 42 of the NEL—Terms of reference
34 Amendment of section 45
of the NEL—Reviews by AEMC
35 Amendment of section 46 of the
NEL—AEMC must publish and make available up to date versions of
Rules
36 Amendment of section 47 of the NEL—Fees
37 Amendment of
section 48 of the NEL—Confidentiality of information
38 Amendment of
section 49 of the NEL—Functions of NEMMCO in respect of national
electricity market
39 Amendment of the NEL—New Parts 5A and 5B
inserted
Part 5A—Functions and powers of Minister of this participating
jurisdiction
57A Functions and powers of Minister of this
participating jurisdiction
Part 5B—Functions and powers of
Tribunal
57B Functions and powers of Tribunal under this
Law
40 Amendment of section 58 of the
NEL—Definitions
41 Amendment of section 61 of the NEL—Proceedings
for breaches of a provision of this Law, the Regulations or the Rules that are
not offences
42 Amendment of section 62 of the NEL—Additional Court
orders
43 Amendment of section 64 of the NEL—Matters for which there
must be regard in determining amount of civil penalty
44 Amendment of the
NEL—New Division 2A of Part 6 inserted
Division 2A—Proceedings before, and awards etc of, Dispute resolution
panels
69A Commercial Arbitration Acts apply to proceedings
before Dispute resolution panels
45 Amendment of the NEL—New
section 71 substituted
71 Appeals on questions of law from
decisions or determinations of Dispute resolution panels
46 Amendment
of the NEL—New Divisions 3A and 3B of Part 6 inserted
Division 3A—Merits review and other non-judicial review
Subdivision
1—Interpretation
71A Definitions
Subdivision 2—Merits review for reviewable regulatory
decisions
71B Applications for
review
71C Grounds for
review
71D By when an application must be
made
71E Tribunal must not grant leave unless serious
issue to be heard and determined
71F Leave must be
refused if application is about an error relating to revenue amounts below
specified threshold
71G Tribunal must refuse to grant
leave if submission not made or is made
late
71H Tribunal may refuse to grant leave to service
provider in certain cases
71I Effect of application on
operation of reviewable regulatory
decisions
71J Intervention by others in a review
without leave
7IK Leave for reviewable regulatory
decision process participants
71L Leave for user or
consumer intervener
71M Interveners may raise new
grounds for review
71N Parties to a review under this
Subdivision
71O Matters that parties to a review may
and may not be raise in a review
71P Tribunal must make
determination
71Q Target time limit for Tribunal for
making a determination under this
Subdivision
71R Matters to be considered by Tribunal in
making determination
Subdivision 3—Tribunal review of AER information disclosure decisions
under section 28ZB
71S Application for
review
71T Exclusion of public in certain
cases
71U Determination in the
review
71V Tribunal must be taken to have affirmed
decision if decision not made within
time
71W Assistance from the AER in certain
cases
Subdivision 4—General
71X Costs in a
review
71Y Amount of
costs
71Z Review of Division
Division 3B—Enforcement of access
determinations
71ZA Enforcement of access
determinations
71ZB Consent
injunctions
71ZC Interim
injunctions
71ZD Factors relevant to granting a
restraining injunction
71ZE Factors relevant to
granting a mandatory injunction
71ZF Discharge or
variation of injunction or other order
47 Amendment of section 74 of
the NEL—Power to serve a notice
48 Amendment of section 81 of the
NEL—Payment expiates breach of civil penalty provision
49 Amendment of
the NEL—Deletion of section 84
50 Amendment of section 85 of the
NEL—Offences and breaches by corporations
51 Amendment of section 86 of
the NEL—Proceedings for breaches of certain provisions in relation to
actions of officers and employees of relevant participants
52 Amendment of
the NEL—New Subdivision heading inserted into Division 1 of
Part 7
53 Amendment of section 87 of the
NEL—Definitions
54 Amendment of the NEL—New Subdivision 2 of
Division 1 of Part 7 inserted
88 Application of national
electricity objective
88A AEMC must take into account
form of regulation factors in certain cases
88B AEMC
must take into account revenue and pricing principles in certain
cases
55 Amendment of the NEL—New heading to Division 2 of Part
7
56 Amendment of the NEL—New section 90A
inserted
90A South Australian Minister to make further Rules
relating to distribution determinations consumer advocacy and other
matters
57 Amendment of section 91 of the NEL—Initiation of
making of a Rule
58 Amendment of the NEL—New sections 91A and 91B
inserted
91A AEMC may make more preferred Rule in certain
cases
91B AEMC may make Rules that are consequential to
a Rule request
59 Amendment of section 92 of the NEL—Contents of
requests for Rules
60 Amendment of the NEL—New section 92A
inserted
92A Waiver of fee for Rule
requests
61 Amendment of the NEL—New sections 93 and 94
substituted and new section 94A inserted
93 Consolidation of 2
or more Rule requests
94 Initial consideration of
request for Rule
94A AEMC may request further
information from Rule proponent in certain cases
62 Amendment of
section 95 of the NEL—Notice of proposed Rule
63 Amendment of section
96 of the NEL—Publication of non-controversial or urgent final Rule
determination
64 Amendment of the NEL—New section 96A
inserted
96A "Fast track" Rules where previous public
consultation by electricity market regulatory body or an AEMC
review
65 Amendment of section 99 of the NEL—Draft Rule
determinations
66 Amendment of section 101 of the NEL—Pre-final Rule
determination hearings
67 Amendment of section 102 of the NEL—Final
Rule determinations
68 Amendment of the NEL—New section 102A
inserted
102A Further draft Rule determination may be made
where proposed Rule is a proposed more preferable Rule
69 Amendment of
section 107 of the NEL—Extensions of periods of time in Rule making
procedure
70 Amendment of the NEL—New section 107A
inserted
107A AEMC may extend period of time for making of
final Rule determination for further consultation
71 Amendment of
section 108 of the NEL—AEMC may publish written submissions and comments
unless confidential
72 Amendment of the NEL—New section 108A
inserted
108A AEMC must publicly report on Rules not made
within 12 months of public notification of requests
73 Amendment of
section 119 of the NEL—Immunity of NEMMCO and network service
providers
74 Amendment of section 120 of the NEL—Immunity in relation
to failure to supply electricity
75 Amendment of section of the NEL—New
section 122 and new parts 10 and 11 inserted
122 Immunity from
personal liability of Reliability Panel
Part 10—Access Disputes
Division 1—Interpretation and
application
123 Definitions
124 Part
does not limit how disputes about access may be raised or dealt
with
Division 2—Notification of access
dispute
125 Notification of access
dispute
126 Withdrawal of
notification
127 Parties to an access
dispute
Division 3—Access determinations
128 Determination
of access dispute
129 AER may require parties to
mediate, conciliate or engage in an alternative dispute resolution
process
130 Access determination must give effect to
network revenue or pricing determination
131 AER may
terminate access dispute in certain cases
132 AER must
terminate access dispute if there is genuine
competition
133 Restrictions on access
determinations
134 Access determination need not
require the provision of an electricity network service
Division 4—Variation of access
determinations
135 Variation of access
determinations
Division 5—Compliance with access
determinations
136 Compliance with access
determination
Division 6—Access dispute hearing
procedure
137 Hearing to be in
private
138 Right to
representation
139 Procedure of
AER
140 Particular powers of AER in a
hearing
141 Disclosure of
information
142 Power to take evidence on oath or
affirmation
143 Failing to attend as a
witness
144 Failing to answer questions
etc
145 Intimidation
etc
146 Party may request AER to treat material as
confidential
147 Costs
148 Outstanding
costs are a debt due to party awarded the costs
Division 7—Joint access dispute
hearings
149 Definition
150 Joint
dispute hearing
151 Consulting the
parties
152 Constitution and procedure of AER for joint
dispute hearings
153 Record of proceedings
etc
Division 8—Miscellaneous matters
154 Correction of
access determinations for clerical mistakes
etc
155 Subsequent network service provider bound by
access determinations
156 Regulations about the charges
to be paid by parties to access dispute for AER's costs in dispute
hearing
Part 11—General
157 Preventing or hindering
access
158 Failure to make a decision under this Law or
the Rules within time does not invalidate the decision
76 Amendment of
Schedule 1 to the NEL
77 Amendment of Schedule 2 to the NEL—Clause
1
78 Amendment of Schedule 2 to the NEL—Clause 2
79 Amendment of
Schedule 2 to the NEL—Clause 4
80 Amendment of Schedule 2 to the
NEL—Clause 8
81 Amendment of Schedule 2 to the NEL—Clause
10
82 Amendment of Schedule 2 to the NEL—New Parts 6A and 6B of
Schedule 2 inserted
Part 6A—Evidentiary matters
Division 1—Publication on
websites
31AA Definitions
31AB Publication
of relevant AER decisions on websites
Division 2—Evidentiary
certificates
31AC Definitions
31AD Evidentiary
certificates—AER
31AE Evidentiary
certificates—AEMC
31AF Evidentiary
certificates—NEMMCO
Part 6B—Commencement of this Law and Statutory
instruments
31AH Time of commencement of this Law or a
provision of this Law
31AI Time of commencement of a
Rule
83 Amendment of Schedule 2 to the NEL—Clause
39
84 Amendment of Schedule 2 to the NEL—Clause 41
85 Amendment of
Schedule 2 to the NEL—Clause 42
86 Amendment of Schedule 3 to the
NEL—Clause 1
87 Amendment of Schedule 3 to the NEL—New clause 4A
inserted
4A Transitional arrangements relating additional
Minister initiated Rules
88 Amendment of Schedule 3 to the
NEL—New clauses 10A and 10B inserted
10A AER may conduct
investigations into breaches or possible breaches of NEL not investigated by
NECA
10B AER may bring proceedings in relation to
breaches of National Electricity Code in the Court
89 Amendment of
Schedule 3 to the NEL—New clause 18
inserted
18 Operation and effect of Rule 6A.21.2 of the
National Electricity Rules
Part 3—Amendment of National Electricity (South
Australia) Act 1996 to make consequential
amendments
90 Amendment of section 12—Specific
regulation-making power
91 Insertion of section
15
15 Conferral of functions and powers on Commonwealth
bodies
Part 4—Amendment of National Electricity (South
Australia) Act 1996 to address local issues
92 Insertion of
Part 6
Part 6—Transfer of economic regulation of electricity distribution to
AER—local
provisions
16 Interpretation
17 Provision
of information and assistance by ESCoSA
18 Price
determinations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Electricity (South Australia)
(National Electricity Law—Miscellaneous Amendments) Amendment
Act 2007.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does
not apply to this Act or a provision of this Act.
In this Act—
NEL means the National Electricity Law set out in the
Schedule to the National Electricity (South Australia)
Act 1996.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of National Electricity (South Australia)
Act 1996 as part of the national scheme
5—Amendment of
section 2 of the NEL—Definitions
(1) NEL, section 2—before the definition of AEMC initiated
Rule insert:
access determination means a determination of the AER under
Part 10;
access dispute has the meaning given by section 2A;
additional Minister initiated Rules means Rules made under
section 90A by the Minister in right of the Crown of South Australia
administering Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia;
AEMC means the Australian Energy Market Commission
established by section 5 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia;
(2) NEL, section 2, definition of AER economic regulatory function
or power—delete the definition and substitute:
AER means the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974 of the
Commonwealth;
AER economic regulatory decision means a decision (however
described) of the AER under this Law or the Rules performing or exercising an
AER economic regulatory function or power;
AER economic regulatory function or power means a function or
power performed or exercised by the AER under this Law or the Rules that relates
to the economic regulation of services provided by—
(a) a regulated distribution system operator by means of, or in connection
with, a distribution system; or
(b) a regulated transmission system operator by means of, or in connection
with, a transmission system,
and includes a function or power performed or exercised by the AER under
this Law or the Rules that relates to—
(c) the preparation of a network service provider performance
report;
(d) the making of, as the case requires, a distribution determination or
transmission determination;
(e) an access determination;
associate in relation to a person has the same meaning it
would have under Division 2 of Part 1.2 of the Corporations Act 2001 of
the Commonwealth if sections 13, 16(2) and 17 did not form part of that
Act;
(3) NEL, section 2, definitions of Australian Energy Market
Commission and Australian Energy Regulator—delete
the definitions
(4) NEL, section 2—after the definition of derogation
insert:
direct control network service has the meaning given by
section 2B;
distribution determination means a determination of the AER
under the Rules that regulates any 1 or more of the following:
(a) the terms and conditions for the provision of electricity network
services that are the subject of economic regulation under the Rules including
the prices an owner, controller or operator of a distribution system charges or
may charge for those services;
(b) the revenue an owner, controller or operator of a distribution system
earns or may earn from the provision by that owner, controller or operator of
electricity network services that are the subject of economic regulation under
the Rules;
distribution reliability standard means a standard imposed by
or under the Rules or jurisdictional electricity legislation relating to the
reliability or performance of a distribution system;
distribution service standard means a standard relating to
the standard of services provided by a regulated distribution system operator by
means of, or in connection with, a distribution system imposed—
(a) by or under jurisdictional electricity legislation; or
(b) by the AER in accordance with the Rules;
distribution system safety duty means a duty or requirement
under an Act of a participating jurisdiction, or any instrument made or issued
under or for the purposes of that Act, relating to—
(a) the safe distribution of electricity in that jurisdiction;
or
(b) the safe operation of the distribution system in that
jurisdiction;
(5) NEL, section 2—after the definition of draft Rule
determination insert:
electricity network service means a service provided by means
of, or in connection with, a transmission system or distribution
system;
(6) NEL, section 2, definition of electricity
services—delete paragraph (b) and substitute:
(b) electricity network services;
(7) NEL, section 2—after the definition electricity
services insert:
end user means a person who acquires electricity or proposes
to acquire electricity for consumption purposes;
(8) NEL, section 2—after the definition of final Rule
determination insert:
form of regulation factors has the meaning given by section
2F;
general regulatory information order has the meaning given by
section 28C;
(9) NEL, section 2—after the definition of initial National
Electricity Rules insert:
interconnected national electricity system means the
interconnected transmission and distribution system in this jurisdiction and in
the other participating jurisdictions used to convey and control the conveyance
of electricity to which are connected—
(a) generating systems and other facilities; and
(b) loads settled through the wholesale exchange operated and administered
by NEMMCO under this Law and the Rules;
(10) NEL, section 2, definition of jurisdictional electricity
legislation—delete the definition and substitute:
jurisdictional electricity legislation means an Act of a
participating jurisdiction (other than national electricity legislation), or any
instrument made or issued under or for the purposes of that Act, that regulates
the generation, transmission, distribution, supply or sale of electricity in
that jurisdiction;
(11) NEL, section 2, definition of jurisdictional regulator,
paragraphs (a) to (e)—delete the paragraphs and substitute:
(a) if this Law is applied as a law of the State of New South
Wales—
(i) the Independent Pricing and Regulatory Tribunal of New South Wales
established by section 5(1) of the Independent Pricing and Regulatory
Tribunal Act 1992 of New South Wales; or
(ii) if the functions or powers of the Independent Pricing and Regulatory
Tribunal of New South Wales under this Law are transferred to the AER by or
under a law of New South Wales, the AER;
(b) if this Law is applied as a law of the State of
Victoria—
(i) the Essential Services Commission established by section 7(1) of
the Essential Services Commission Act 2001 of Victoria; or
(ii) if the functions or powers of that Essential Services Commission
under this Law are transferred to the AER by or under a law of Victoria, the
AER;
(c) if this Law is applied as a law of the State of
Queensland—
(i) the Queensland Competition Authority established by section 7 of
the Queensland Competition Authority Act 1997 of Queensland; or
(ii) if the functions or powers of the Queensland Competition Authority
under this Law are transferred to the AER by or under a law of Queensland, the
AER;
(d) if this Law is applied as a law of the State of South
Australia—
(i) the Essential Services Commission established by section 4(1) of
the Essential Services Commission Act 2002 of South Australia;
or
(ii) if the functions or powers of that Essential Services Commission
under this Law are transferred to the AER by or under a law of South Australia,
the AER;
(e) if this Law is applied as a law of the Australian Capital
Territory—
(i) the Independent Competition and Regulatory Commission for the
Australian Capital Territory established by section 5(1) of the Independent
Competition and Regulatory Commission Act 1997 of the Australian Capital
Territory; or
(ii) if the functions or powers of the Independent Competition and
Regulatory Commission for the Australian Capital Territory under this Law are
transferred to the AER by or under a law of the Australian Capital Territory,
the AER;
(12) NEL, section 2—after the definition of MCE
insert:
MCE directed review means a review conducted by the AEMC
under Division 4 of Part 4;
(13) NEL, section 2, definition of national electricity market
objective—delete the definition and substitute:
national electricity objective means the objective set out in
section 7;
(14) NEL, section 2, definition of National Electricity
Rules—
(a) after paragraph (a) insert:
(ab) additional Minister initiated Rules; and
(b) in paragraph (b)(i)—after "Rules" insert:
or additional Minister initiated Rules
(15) NEL, section 2, definition of national electricity
system—
(a) delete "interconnected transmission and distribution system referred
to in paragraph (b)" and substitute:
interconnected national electricity system
(b) delete paragraph (b) and substitute:
(b) the interconnected national electricity system;
(16) NEL, section 2—after the definition of national
electricity system insert:
negotiated network service has the meaning given by section
2C;
(17) NEL, section 2—after the definition of NEMMCO
insert:
network revenue or pricing determination means
a distribution determination or a transmission determination;
network service provider means a Registered participant
registered for the purposes of section 11(2) that owns, controls or operates a
transmission system or distribution system that forms part of the interconnected
national electricity system;
network service provider performance report means a report
prepared by the AER under section 28V;
network service user means a user who is provided with an
electricity network service;
(18) NEL, section 2, definition of offence
provision—delete the definition and substitute:
offence provision means a provision of this Law the breach or
contravention of which by a person exposes that person to a finding of guilt by
a court;
officer has the same meaning as officer has in relation to a
corporation under section 9 of the Corporations Act 2001 of the
Commonwealth;
(19) NEL, section 2—after the definition of power system
security insert:
prospective network service user means a person who seeks or
wishes to be provided with an electricity network service;
(20) NEL, section 2—after the definition of Registered
participant insert:
regulated distribution system operator means an owner,
controller or operator of a distribution system—
(a) who is a Registered participant; and
(b) whose revenue from, or prices that are charged for, the provision of
electricity network services are regulated under a distribution
determination;
regulated network service provider means—
(a) a regulated distribution system operator; or
(b) a regulated transmission system operator;
(21) NEL, section 2, definition of regulated transmission system
operator—delete paragraph (b) and substitute:
(b) whose revenue from, or prices that are charged for, the provision of
electricity network services are regulated under a transmission
determination;
(22) NEL, section 2, definition of regulatory
obligation—delete the definition and substitute:
regulatory information instrument means a general regulatory
information order or a regulatory information notice;
regulatory information notice has the meaning given by
section 28D;
regulatory obligation or requirement has the meaning given by
section 2D;
regulatory payment has the meaning given by section
2E;
(23) NEL, section 2—after the definition of Reliability
Panel insert:
revenue and pricing principles means the principles set out
in section 7A;
(24) NEL, section 2, definition of transmission
determination—delete the definition and substitute:
transmission determination means a determination of the AER
under the Rules that regulates any 1 or more of the following:
(a) the terms and conditions for the provision of electricity network
services that are the subject of economic regulation under the Rules including
the prices an owner, controller or operator of a transmission system charges or
may charge for those services;
(b) the revenue an owner, controller or operator of a transmission system
earns or may earn from the provision by that owner, controller or operator of
electricity network services that are the subject of economic regulation under
the Rules;
(25) NEL, section 2—definition of transmission service
standard—delete "Rules." and substitute:
Rules;
(26) NEL, section 2—after the definition of transmission
service standard insert:
transmission system safety duty means a duty or requirement
under an Act of a participating jurisdiction, or any instrument made or issued
under or for the purposes of that Act, relating to—
(a) the safe transmission of electricity in that jurisdiction;
or
(b) the safe operation of the transmission system in that
jurisdiction;
Tribunal means the Australian Competition Tribunal referred
to in the Trade Practices Act 1974 of the Commonwealth and includes a
member of the Tribunal or a Division of the Tribunal performing functions of the
Tribunal.
(27) NEL, section 2—after the definition of distribution
service standard insert:
distribution system means the apparatus, electric lines,
equipment, plant and buildings used to convey or control the conveyance of
electricity that the Rules specify as, or as forming part of, a distribution
system;
(28) NEL, section 2—after the definition of transmission
service standard insert:
transmission system means the apparatus, electric lines,
equipment, plant and buildings used to convey or control the conveyance of
electricity that the Rules specify as, or forming part of, a transmission
system;
6—Amendment of the
NEL—New sections 2A to 2F inserted
NEL—after section 2 insert:
2A—Meaning of access dispute
An access dispute is a dispute between—
(a) a network service user or prospective network service user;
and
(b) a network service provider,
about an aspect of access to an electricity network service specified by
the Rules to be an aspect to which Part 10 applies.
2B—Meaning of direct control network
service
A direct control network service is an electricity network
service—
(a) the Rules specify as a service the price for which, or the revenue to
be earned from which, must be regulated under a distribution determination or
transmission determination; or
(b) if the Rules do not do so, the AER specifies, in a distribution
determination or transmission determination, as a service the price for which,
or the revenue to be earned from which, must be regulated under the distribution
determination or transmission determination.
2C—Meaning of negotiated network
service
A negotiated network service is an electricity network
service—
(a) that is not a direct control network service; and
(b) that—
(i) the Rules specify as a negotiated network service; or
(ii) if the Rules do not do so, the AER specifies as a negotiated network
service in a distribution determination or transmission determination.
2D—Meaning of regulatory obligation or
requirement
(1) A regulatory obligation or requirement is—
(a) in relation to the provision of an electricity network service by a
regulated network service provider—
(i) a distribution system safety duty or transmission system safety duty;
or
(ii) a distribution reliability standard or transmission reliability
standard; or
(iii) a distribution service standard or transmission service standard;
or
(b) an obligation or requirement under—
(i) this Law or Rules; or
(ii) an Act of a participating jurisdiction, or any instrument made or
issued under or for the purposes of that Act, that levies or imposes a tax or
other levy that is payable by a regulated network service provider; or
(iii) an Act of a participating jurisdiction, or any instrument made or
issued under or for the purposes of that Act, that regulates the use of land in
a participating jurisdiction by a regulated network service provider;
or
(iv) an Act of a participating jurisdiction or any instrument made or
issued under or for the purposes of that Act that relates to the protection of
the environment; or
(v) an Act of a participating jurisdiction, or any instrument made or
issued under or for the purposes of that Act (other than national electricity
legislation or an Act of a participating jurisdiction or an Act or instrument
referred to in subparagraphs (ii) to (iv)), that materially affects the
provision, by a regulated network service provider, of electricity network
services that are the subject of a distribution determination or transmission
determination.
(2) A regulatory obligation or requirement does not include an obligation
or requirement to pay a fine, penalty or compensation—
(a) for a breach of—
(i) a distribution system safety duty or transmission system safety duty;
or
(ii) a distribution reliability standard or transmission reliability
standard; or
(iii) a distribution service standard or transmission service standard;
or
(b) under this Law or the Rules or an Act or an instrument referred to in
subsection (1)(b)(ii) to (v).
Note—
See also section 7A(2)(b).
2E—Meaning of regulatory
payment
A regulatory payment is a sum that a regulated network service provider has
been required or allowed to pay to a network service user or an end user for a
breach of, as the case requires—
(a) a distribution reliability standard or transmission reliability
standard; or
(b) a distribution service standard or transmission service
standard,
because it was efficient for the regulated network service provider (in
terms of the provider's overall business) to pay that sum.
Note—
See also section 7A(2)(b).
2F—Form of regulation factors
The form of regulation factors are—
(a) the presence and extent of any barriers to entry in a market for
electricity network services;
(b) the presence and extent of any network externalities (that is,
interdependencies) between an electricity network service provided by a network
service provider and any other electricity network service provided by the
network service provider;
(c) the presence and extent of any network externalities (that is,
interdependencies) between an electricity network service provided by a network
service provider and any other service provided by the network service provider
in any other market;
(d) the extent to which any market power possessed by a network service
provider is, or is likely to be, mitigated by any countervailing market power
possessed by a network service user or prospective network service
user;
(e) the presence and extent of any substitute, and the elasticity of
demand, in a market for an electricity network service in which a network
service provider provides that service;
(f) the presence and extent of any substitute for, and the elasticity of
demand in a market for, electricity or gas (as the case may be);
(g) the extent to which there is information available to a prospective
network service user or network service user, and whether that information is
adequate, to enable the prospective network service user or network service user
to negotiate on an informed basis with a network service provider for the
provision of an electricity network service to them by the network service
provider.
7—Amendment of
section 6 of the NEL—Ministers of participating
jurisdictions
NEL—delete section 6(2) and (3)
8—Amendment of the
NEL—Section 7 substituted and new section 7A
inserted
NEL—delete section 7 and substitute:
7—National electricity
objective
The objective of this Law is to promote efficient investment in, and
efficient operation and use of, electricity services for the long term interests
of consumers of electricity with respect to—
(a) price, quality, safety, reliability and security of supply of
electricity; and
(b) the reliability, safety and security of the national electricity
system.
7A—Revenue and pricing
principles
(1) The revenue and pricing principles are the principles set out in
subsections (2) to (7).
(2) A regulated network service provider should be provided with a
reasonable opportunity to recover at least the efficient costs the operator
incurs in—
(a) providing direct control network services; and
(b) complying with a regulatory obligation or requirement or making a
regulatory payment.
(3) A regulated network service provider should be provided with effective
incentives in order to promote economic efficiency with respect to direct
control network services the operator provides. The economic efficiency that
should be promoted includes—
(a) efficient investment in a distribution system or transmission system
with which the operator provides direct control network services; and
(b) the efficient provision of electricity network services; and
(c) the efficient use of the distribution system or transmission system
with which the operator provides direct control network services.
(4) Regard should be had to the regulatory asset base with respect to a
distribution system or transmission system adopted—
(a) in any previous—
(i) as the case requires, distribution determination or transmission
determination; or
(ii) determination or decision under the National Electricity Code or
jurisdictional electricity legislation regulating the revenue earned, or prices
charged, by a person providing services by means of that distribution system or
transmission system; or
(b) in the Rules.
(5) A price or charge for the provision of a direct control network
service should allow for a return commensurate with the regulatory and
commercial risks involved in providing the direct control network service to
which that price or charge relates.
(6) Regard should be had to the economic costs and risks of the potential
for under and over investment by a regulated network service provider in, as the
case requires, a distribution system or transmission system with which the
operator provides direct control network services.
(7) Regard should be had to the economic costs and risks of the potential
for under and over utilisation of a distribution system or transmission system
with which a regulated network service provider provides direct control network
services.
9—Amendment of
section 8 of the NEL—MCE statements of policy
principles
(1) NEL, section 8(1)—after "powers" insert:
in—
(a) making a Rule; or
(b) conducting a review under section 45
(2) NEL, section 8(2)—delete "market"
10—Amendment of
the NEL—New Division heading inserted into Part 2
NEL—before section 11 insert:
Division 1—Registration
11—Amendment of
section 11 of the NEL—Electricity market activities in this
jurisdiction
(1) NEL, section 11(1)—delete "a generating system connected to the
interconnected transmission and distribution system" and substitute:
, in this jurisdiction, a generating system connected to the interconnected
national electricity system
(2) NEL, section 11(2)—delete "a transmission system or distribution
system that forms part of the interconnected transmission and distribution
system" and substitute:
, in this jurisdiction, a transmission system or distribution system that
forms part of the interconnected national electricity system
(3) NEL, section 11(3)—after "administering" insert:
, in this jurisdiction,
(4) NEL, section 11(4)—after "engage in" insert:
, in this jurisdiction,
12—Amendment of
the NEL—New Division 2 inserted into Part 2
NEL—after section 14 insert:
Division 2—Regulated network service
providers
14A—Regulated transmission system operator must
comply with transmission determination
A regulated transmission system operator must comply with a transmission
determination that applies to the electricity network services provided by that
operator.
Note—
Section 14A is a civil penalty provision: See the definition of
civil penalty provision in section 58.
14B—Regulated distribution system operator must
comply with distribution determination
A regulated distribution system operator must comply with a distribution
determination that applies to the electricity network services provided by that
operator.
Note—
Section 14B is a civil penalty provision: See the definition of
civil penalty provision in section 58.
13—Amendment of
section 15 of the NEL—Functions and powers of AER
(1) NEL, section 15(a)—delete the paragraph and
substitute:
(a) to monitor compliance by—
(i) Registered participants and other persons with this Law, the
Regulations and the Rules; and
(ii) regulated network service providers with network revenue or pricing
determinations; and
(2) NEL, section 15(b)—delete "that are not offence provisions" and
substitute:
, including offences against this Law
(3) NEL, section 15(c)(iii)—delete "; and" and substitute:
; or
(4) NEL, section 15—after paragraph (c)(iii) insert:
(iv) in relation to offences against this Law; and
(5) NEL, section 15—after paragraph (e) insert:
(ea) to prepare and publish reports on the financial and operational
performance of network service providers in providing electricity network
services; and
(eb) to approve compliance programs of service providers relating to
compliance by service providers with this Law or the Rules; and
(6) NEL, section 15—after its present contents (now to be designated
as subsection (1)) insert:
(2) The AER has the power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
14—Amendment of
the NEL—New section 16 substituted
NEL—delete section 16 and substitute:
16—Manner in which AER performs AER economic
regulatory functions or powers
(1) The AER must, in performing or exercising an AER economic regulatory
function or power—
(a) perform or exercise that function or power in a manner that will or is
likely to contribute to the achievement of the national electricity objective;
and
(b) if the function or power performed or exercised by the AER relates to
the making of a distribution determination or transmission determination, ensure
that the regulated network service provider to whom the determination will
apply, and any affected Registered participant, are, in accordance with the
Rules—
(i) informed of material issues under consideration by the AER;
and
(ii) given a reasonable opportunity to make submissions in respect of that
determination before it is made.
(2) In addition, the AER—
(a) must take into account the revenue and pricing
principles—
(i) when exercising a discretion in making those parts of a distribution
determination or transmission determination relating to direct control network
services; or
(ii) when making an access determination relating to a rate or charge for
an electricity network service; and
(b) may take into account the revenue and pricing principles when
performing or exercising any other AER economic function or power, if the AER
considers it appropriate to do so.
(3) For the purposes of subsection (2)(a)(ii), a reference to a
"direct control network service" in the revenue and pricing principles must be
read as a reference to an "electricity network service".
(4) In this section—
affected Registered participant means a Registered
participant (other than the regulated network service provider to whom the
distribution determination or transmission determination will apply) whose
interests are affected by the distribution determination or transmission
determination.
15—Amendment of
the NEL—New section 18 substituted
NEL—delete section 18 and substitute:
18—Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth
has effect for the purposes of this Law, the Regulations and the Rules as if it
formed part of this Law.
Note—
See also Division 6.
16—Amendment of
the NEL—New heading to Division 2 of Part 3
NEL—delete the heading to Division 2 of Part 3 and
substitute:
Division 2—Search warrants
17—Amendment of
section 19 of the NEL—Definitions
NEL, section 19, definition of relevant
provision—delete the definition and substitute:
relevant provision means a provision of this Law, the
Regulations or the Rules.
18—Amendment of
the NEL—New section 20 substituted and new sections 20A and 20B
inserted
NEL—delete section 20 and substitute:
20—Authorised person
(1) The AER may, in writing, authorise a person that the AER considers is
suitably qualified or trained to be an authorised person for the purposes of
this Division.
(2) An authorised person must comply with any direction of the AER in
exercising powers or functions as an authorised person.
20A—Identity cards
(1) The AER must issue an identity card to an authorised person.
(2) The identity card must contain the name, a recent photograph and the
signature of the authorised person.
(3) An authorised person must carry the identity card at all times when
exercising powers or performing functions as an authorised person.
(4) An authorised person must produce his or her identity card for
inspection—
(a) before exercising a power as an authorised person; or
(b) at any time during the exercise of a power as an authorised person, if
asked to do so.
20B—Return of identity cards
If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the AER as soon
as practicable.
Maximum penalty: $500.
19—Amendment of
section 21 of the NEL—Search warrant
(1) NEL—delete section 21(1) and substitute:
(1) An authorised person may apply to a magistrate for the issue of a
search warrant in relation to a particular place if the person—
(a) believes on reasonable grounds that—
(i) there is or has been or will be a breach of a relevant provision;
and
(ii) there is or may be a thing or things of a particular kind connected
with that breach on or in that place; or
(b) reasonably suspects that—
(i) there may have been a breach of a relevant provision; and
(ii) there is or may be a thing or things of a particular kind connected
with that breach on or in that place.
(2) NEL, section 21(2)—delete "authorising a person" and
substitute:
authorising an authorised person
(3) NEL, section 21(2)(d)—delete "photograph" and
substitute:
record an image of
20—Amendment of
the NEL—deletion and substitution of sections 22 and
23
NEL—delete sections 22 and 23 and substitute:
22—Announcement of entry and details of warrant to
be given to occupier or other person at premises
(1) This section applies if the occupier or another person who apparently
represents the occupier is present at premises when a search warrant is being
executed.
(2) The authorised person executing the warrant must—
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the warrant to enter the
place; and
(c) before using force to enter, give the person an opportunity to allow
entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled to
exercise any powers under the warrant in relation to premises if the authorised
person does not comply with subsection (2).
23—Announcement before entry
An authorised person executing a warrant need not comply with
section 22 if he or she believes on reasonable grounds that immediate entry
to premises is required to ensure—
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not
frustrated.
21—Amendment of
section 24 of the NEL—Copies of seized documents
(1) NEL, section 24(1)—delete "a person" where first occurring and
substitute:
an authorised person
(2) NEL, section 24(1)—delete "the person" where twice occurring and
substitute:
the authorised person
22—Amendment of
NEL—New section 25 substituted
NEL—delete section 25 and substitute:
25—Retention and return of seized documents or
things
(1) If an authorised person executing a warrant seizes a document or other
thing in accordance with the warrant, the authorised person must if he or she is
not a person employed by the AER, give the document or other thing seized to the
AER.
(2) The AER must take reasonable steps to return the document or thing to
the person from whom it was seized if the reason for its seizure no longer
exists.
(3) If the document or thing seized has not been returned within
3 months after it was seized, the AER must take reasonable steps to return
it unless—
(a) proceedings for the purpose for which the document or thing was
retained have commenced within that 3 month period and those proceedings
(including any appeal) have not been completed; or
(b) a magistrate makes an order under section 26 extending the period
during which the document or thing may be retained.
23—Amendment of
section 26 of the NEL—Extension of period of retention of documents or
things seized
NEL, section 26(1)—delete "An authorised person" and
substitute:
The AER
24—Amendment of
section 26 of the NEL—Obstruction of person authorised to
enter
NEL, section 27—delete "a person in" and substitute:
an authorised person in
25—Amendment of
the NEL—New Divisions 3 to 7 of Part 3 inserted
NEL—delete section 28 and substitute:
Division 3—General information gathering
powers
28—Power to obtain information and documents in
relation to performance and exercise of functions and
powers
(1) If the AER has reason to believe that a person is capable of providing
information or producing a document that the AER requires for the performance or
exercise of a function or power conferred on it under this Law or the Rules, the
AER may, by notice in writing, serve on that person a notice (a relevant
notice).
(2) A relevant notice may require the person to—
(a) provide to the AER, by writing signed by that person or, in the case
of a body corporate, by a competent officer of the body corporate, within the
time and in the manner specified in the notice, any information of the kind
referred to in subsection (1); or
(b) produce to the AER, or to a person specified in the notice acting on
its behalf, in accordance with the notice, any documents of the kind referred to
in subsection (1).
(3) A person on whom a relevant notice is served must comply with the
relevant notice unless the person has a reasonable excuse.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
(4) A person must not, in purported compliance with a relevant notice,
provide information that the person knows is false or misleading in a material
particular.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
(5) It is a reasonable excuse for the purposes of subsection (3) if
the person served the relevant notice is not capable of complying with that
notice.
(6) It is a reasonable excuse for a natural person to—
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a relevant notice
acting on behalf of the AER,
if to do so might tend to incriminate the person, or make the person liable
to a criminal penalty, under a law of this jurisdiction or another jurisdiction
in Australia (whether or not that other jurisdiction is a participating
jurisdiction).
(7) It is not a reasonable excuse for a person to—
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a relevant notice
acting on behalf of the AER,
on the ground of any duty of confidence.
(8) This section does not require a person to—
(a) provide information that is the subject of legal professional
privilege; or
(b) produce a document the production of which would disclose information
that is the subject of legal professional privilege.
(9) This section does not require a person to—
(a) provide information that would disclose the contents of a document
prepared for the purposes of a meeting of the Cabinet or a committee of the
Cabinet of the Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the purposes of a meeting of the
Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a
Territory; or
(c) provide information, or produce a document, that would disclose the
deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs, by complying with a relevant notice, no liability
for breach of contract, breach of confidence or any other civil wrong.
Division 4—Regulatory information notices and
general regulatory information orders
Subdivision 1—Interpretation
28A—Definitions
In this Division—
contributing service has the meaning given by
section 28B;
related provider means a person who supplies a contributing
service to a regulated network service provider.
28B—Meaning of contributing
service
(1) A contributing service is a service that the AER, in accordance with
this section, decides is a service that contributes in a material way to the
provision of an electricity network service by a regulated network service
provider.
(2) In deciding whether a service is a service that contributes in a
material way to the provision of an electricity network service by a regulated
network service provider, the AER must have regard to—
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the service relative
to—
(i) the electricity network service; and
(ii) all other services supplied by the regulated network service
provider;
(d) whether the service was previously supplied—
(i) by the regulated network service provider; or
(ii) directly or indirectly by an associate of the regulated network
service provider;
(e) whether the service, together with other services, contributes in a
material way to the provision of electricity network services;
(f) any other matter specified under the Rules.
28C—Meaning of general regulatory information
order
A general regulatory information order is an order made by the AER in
accordance with this Division that requires each regulated network service
provider of a specified class, or each related provider of a specified class, to
do either or both of the following:
(a) provide to the AER the information specified in the order;
(b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the order.
28D—Meaning of regulatory information
notice
A regulatory information notice is a notice prepared and served by the AER
in accordance with this Division that requires the regulated network service
provider, or a related provider, named in the notice to do either or both of the
following:
(a) provide to the AER the information specified in the notice;
(b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the notice.
28E—Division does not limit operation of
information gathering powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2—Serving and making of regulatory
information instruments
28F—Service and making of regulatory information
instrument
(1) Subject to this Division, the AER, if it considers it reasonably
necessary for the performance or exercise of its functions or powers under this
Law or the Rules, may—
(a) serve a regulatory information notice on a regulated network service
provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a
regulatory information notice, or make a general regulatory information order,
the AER must have regard to—
(a) the matter to be addressed by—
(i) the service of the regulatory information notice; or
(ii) the making of the general regulatory information order; and
(b) the likely costs that may be incurred by an efficient network service
provider or efficient related provider in complying with the notice or
order.
Note—
The AER must also exercise its powers under this section in a manner that
will or is likely to contribute to the achievement of the national electricity
objective: see section 16.
(3) A regulatory information notice must not be served, or a general
regulatory information order must not be made, solely for the purpose
of—
(a) investigating breaches or possible breaches of provisions of this Law,
the Regulations or the Rules, including offences against this Law; or
(b) instituting and conducting proceedings in relation to breaches of
provisions of this Law, the Regulations or the Rules, including offences against
this Law; or
(c) instituting and conducting appeals from decisions in proceedings
referred to in paragraph (b); or
(d) collecting information for the preparation of a service provider
performance report; or
(e) any application for review of a decision of the AER under Division 3A
of Part 6.
28G—Additional matters to be considered for related
provider regulatory information instruments
(1) This section applies if the AER is intending to—
(a) serve a regulatory information notice on a related provider;
or
(b) make a general regulatory information order that will apply to a class
of related providers.
(2) In addition to the matters set out in section 28F(2), the AER, in
considering whether it is reasonably necessary to serve the regulatory
information notice, or make the general regulatory information order, must have
regard to—
(a) whether the regulated network service provider being supplied a
contributing service by the related provider or related providers to which the
intended regulatory information instrument will apply can—
(i) provide the information to be specified in that instrument;
or
(ii) prepare, maintain or keep the information to be specified in the
particular manner and form to be specified in that instrument; and
(b) the extent to which the related provider or related providers to which
the intended regulatory information instrument will apply is, or are, supplying
a contributing service on a genuinely competitive basis; and
(c) the nature of any ownership or control between—
(i) the regulated network service provider being supplied a contributing
service by a related provider to which the intended regulatory information
instrument will apply; and
(ii) that related provider; and
(d) the nature of any ownership or control as between different related
providers supplying the contributing service to the regulated network service
provider; and
(e) any other matter the AER considers relevant.
(3) For the purposes of subsection (2)(b), in considering whether a
contributing service is being supplied on a genuinely competitive basis, the AER
may take into account—
(a) whether there is effective competition in the market for the supply of
the contributing service; and
(b) whether the related provider supplies the contributing service to a
regulated network service provider under a contract, arrangement or
understanding entered into with that regulated network service provider
following a competitive process for the awarding of the right to enter into that
contract, arrangement or understanding involving persons who were not associates
of the regulated network service provider.
28H—AER must consult before publishing a general
regulatory information order
The AER must, in accordance with the Rules, consult with the public in
relation to the general regulatory information order it proposes to make before
it makes that order.
Note—
See also section 28ZC about what the AER must and may do after
receiving submissions.
28I—Publication requirements for general regulatory
information orders
(1) A general regulatory information order made under
section 28F(1)(b) must be published on the AER's website as soon as
practicable after it is made.
(2) Notice of the making of a general regulatory information order must be
published in a newspaper circulating generally throughout Australia as soon as
practicable after the general regulatory information order is made.
28J—Opportunity to be heard before regulatory
information notice is served
(1) The AER, before serving a regulatory information notice,
must—
(a) notify, in writing, the regulated network service provider, or the
related provider, on whom the AER intends to serve the regulatory information
notice of its intention to do so; and
(b) give the regulated network service provider a draft of the regulatory
information notice it intends to serve.
(2) If the regulatory information notice to be served is an urgent notice,
the AER must, in a notice under subsection (1)—
(a) identify the regulatory information notice to be served as an urgent
notice; and
(b) give its reasons, in writing, why the regulatory information notice to
be served is an urgent notice.
(3) A regulatory information notice is an urgent notice
if—
(a) under the notice the AER will require the regulated network service
provider or related provider to provide information to the AER; and
(b) that requirement has arisen because the AER considers it must deal
with or address a particular matter or thing in order for it to make an AER
economic regulatory decision; and
(c) the AER considers that, having regard to the time within which it must
make that AER economic regulatory decision, the time within which the AER
requires the information is of the essence.
(4) A notice under subsection (1) must—
(a) invite the regulated network service provider, or the related
provider, to make written representations to the AER as to whether the AER
should serve the regulatory information notice on them; and
(b) specify the period within which the regulated network service
provider, or the related provider, may make the representations.
(5) The period that must be specified in accordance with
subsection (4) must be—
(a) in the case of an urgent notice to be served—a period of not
less than 5 business days and not more than 10 business days calculated from the
date of the notice under subsection (1);
(b) in all other cases—a period of at least 20 business days
calculated from the date of the notice under subsection (1).
(6) The AER must consider the written representations made in accordance
with a notice under subsection (1) before making its decision in accordance
with this Division to serve the regulatory information notice.
Subdivision 3—Form and content of regulatory
information instruments
28K—Form and content of regulatory information
instrument
(1) A regulatory information instrument—
(a) must specify the information required to be—
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and form
specified in the instrument; and
(b) may specify the manner and form in which the information described in
the instrument is required to be—
(i) provided to the AER;
(ii) prepared, maintained or kept; and
(c) must state the reasons of the AER for requiring the information
described in the instrument to be—
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and form
specified in the instrument; and
(d) in the case of an instrument requiring information to be provided to
the AER, must specify when the information must be provided.
(2) In the case of a regulatory information notice, the notice must name
the regulated network service provider or the related provider to whom it
applies.
(3) In the case of a general regulatory information order, the order must
specify the class of regulated network service provider, or related provider, to
whom the order applies.
28L—Further provision about the information that
may be specified in a regulatory information instrument
Without limiting section 28K(1)(a), the information that may be
required to be provided to the AER, or to be prepared, maintained or kept, may
include—
(a) historic, current and forecast information (including financial
information);
(b) information that is or may be derived from other information in the
possession or control of the service provider or the related provider to whom
the instrument applies;
(c) information to enable the AER to verify whether the regulated network
service provider to whom the instrument applies is or has been complying with a
requirement under the Rules relating to—
(i) the operational and structural separation of a regulated network
service provider's business; or
(ii) arrangements between a regulated network service provider and an
associate that provides electricity network services;
(d) information to enable the AER to verify compliance with any
requirements for the allocation of costs between electricity services
under—
(i) the Rules; or
(ii) a network revenue or pricing determination.
28M—Further provision about manner in which
information must be provided to AER or kept
Without limiting section 28K(1)(b), a regulatory information
instrument may specify the information described in the
instrument—
(a) be provided to the AER, or prepared, maintained or kept, on an annual
basis or some other basis, including on the occurrence of a specified event or a
state of affairs;
(b) be provided to the AER, or prepared, maintained or kept, in accordance
with specified Rules;
(c) be provided to the AER, or prepared, maintained or kept, in accordance
with any document, code, standard, rule, specification or method formulated,
issued, prescribed or published by the AER or any person, authority or body
whether—
(i) wholly or partially or as amended by the instrument; or
(ii) as formulated, issued, prescribed or published at the time the
instrument is served or published or at any time before the instrument is served
or published; or
(iii) as amended from time to time;
Example—
The AER may require a service provider to provide information in a form and
manner that complies with relevant accounting standards.
(d) be verified by way of statutory declaration by an officer of the
regulated network service provider, or of a related provider, to whom the
instrument applies;
(e) be audited—
(i) by a class of person specified in the instrument before it is provided
to the AER; and
(ii) at the expense of the regulated network service provider or related
provider to whom the instrument applies.
Subdivision 4—Compliance with regulatory
information instruments
28N—Compliance with regulatory information notice
that is served
On being served a regulatory information notice, a person named in the
notice must comply with the notice.
28O—Compliance with general regulatory information
order
(1) On publication of a general regulatory information order in accordance
with section 28I(1), a person who is a member of the class of person to
which a general regulatory information order applies must comply with the
order.
(2) Subsection (1) does not apply to a person who has been given an
exemption under section 28P.
28P—Exemptions from compliance with general
regulatory information order
(1) The AER may exempt a person, or a class of person, from complying with
section 28O—
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the exemption.
(2) An exemption under this section must be in writing.
28Q—Assumptions where there is non-compliance with
regulatory information instrument
(1) This section applies if—
(a) under a regulatory information instrument the AER—
(i) requires a regulated network service provider to provide information
to the AER for the purpose of enabling the AER to make an AER economic
regulatory decision relating to the regulated network service provider;
or
(ii) requires a related provider to provide information to the AER that is
relevant to the making of an AER economic regulatory decision relating to a
regulated network service provider; and
(b) the regulated network service provider or related
provider—
(i) does not provide the information to the AER in accordance with the
applicable regulatory information instrument; or
(ii) provides information that is insufficient (when compared to what was
requested under the applicable regulatory information instrument).
(2) Without limiting sections 28N and 28O and despite anything to the
contrary in this Law or the Rules, the AER—
(a) may make the AER economic regulatory decision on the basis of the
information the AER has at the time it makes that decision; and
(b) in making that decision, may make reasonable assumptions (including
assumptions adverse to the interests of the regulated network service provider)
in respect of the matters the information required under the regulatory
information instrument would have addressed had that information been provided
as required.
Subdivision 5—General
28R—Providing to AER false and misleading
information
A person must not, in purported compliance with a regulatory information
instrument requiring the person to provide information to the AER, provide
information to the AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
28S—Person cannot rely on duty of confidence to
avoid compliance with regulatory information instrument
(1) A person must not refuse to comply with a regulatory information
instrument on the ground of any duty of confidence.
(2) A person incurs, by complying with a regulatory information
instrument, no liability for breach of contract, breach of confidence or any
other civil wrong.
28T—Legal professional privilege not
affected
A regulatory information instrument, and sections 28N and 28O, are not
to be taken as requiring a person to—
(a) provide to the AER information that is the subject of legal
professional privilege; or
(b) produce a document to the AER the production of which would disclose
information that is the subject of legal professional privilege.
28U—Protection against
self-incrimination
(1) It is a reasonable excuse for a natural person to whom
section 28N applies not to comply with a regulatory information notice
served on the person requiring the person to provide information to the AER if
to do so might tend to incriminate the person, or make the person liable to a
criminal penalty, under a law of this jurisdiction or another jurisdiction in
Australia (whether or not that other jurisdiction is a participating
jurisdiction).
(2) It is a reasonable excuse for a natural person to whom
section 28O applies not to comply with a general regulatory information
order made requiring the person to provide information to the AER if to do so
might tend to incriminate the person, or make the person liable to a criminal
penalty, under a law of this jurisdiction or another jurisdiction in Australia
(whether or not that other jurisdiction is a participating
jurisdiction).
Division 5—Network service provider performance
reports
28V—Preparation of network service provider
performance reports
(1) Subject to this section, the AER may prepare a report on the financial
performance or operational performance of 1 or more network service providers in
providing electricity network services.
Note—
The AER may only prepare a report under subsection (1) if the
preparation of the report will or is likely to contribute to the achievement of
the national electricity objective: see section 16.
(2) A report prepared under this section may—
(a) deal with the financial or operational performance of the network
service provider in relation to—
(i) complying with (as the case requires) distribution service standards
or transmission service standards; and
(ii) standards relating to the provision of electricity network services
to network service users or end users; and
(iii) the profitability of network service providers in providing
electricity network services; and
(b) if the AER considers it appropriate, deal with the performance of the
network service provider in relation to other matters or things if that
performance is directly related to the performance or exercise by the AER of an
AER economic regulatory function or power.
(3) A report prepared under this section may include—
(a) information provided to the AER by a person in compliance with a
regulatory information instrument; and
(b) in the case of a report dealing with the financial performance of 1 or
more network service providers, a comparison of the profitability of the network
service providers to which the report relates from the provision of electricity
network services by them.
(4) Before preparing a report under this section, the AER must, in
accordance with the Rules, consult with the persons or bodies specified by the
Rules.
(5) The AER may publish a report prepared under this section on its
website.
Division 6—Disclosure of confidential information
held by AER
28W—Authorised disclosure of information given to
the AER in confidence
The AER is authorised to disclose information given to it in confidence in,
or in connection with, the performance or exercise of its functions or powers
under this Law or the Rules subject to and in accordance with—
(a) this Division; or
(b) section 146.
Note—
See also section 29 of this Law and section 44AAF of the Trade Practices
Act 1974 of the Commonwealth.
28X—Disclosure with prior written consent is
authorised
The AER is authorised to disclose information given to it in confidence if
the AER has the written consent to do so of—
(a) the person who gave the information; or
(b) the person from whom the person referred to in paragraph (a)
received that information.
28Y—Disclosure for purposes of court and tribunal
proceedings and to accord natural justice
The AER is authorised to disclose information given to it in
confidence—
(a) for the purposes of civil or criminal proceedings; or
(b) for the purposes of a proceeding before the Tribunal or a tribunal
established by or under a law of this jurisdiction or another participating
jurisdiction; or
(c) for the purposes of according natural justice to a person affected by
a decision (however described) of the AER under this Law or the Rules.
28Z—Disclosure of information given to the AER with
confidential information omitted
(1) This section applies if—
(a) in compliance with this Law or the Rules or voluntarily, a person
gives the AER information in confidence; and
(b) that information is contained in a document with other
information.
(2) The AER may disclose the document with the information given in
confidence omitted.
(3) The AER must include a note at the place in the document from which
the information given in confidence is omitted to the effect that that
information has been omitted from the document.
28ZA—Disclosure of information given in confidence
does not identify anyone
The AER is authorised to disclose the information given to it in
confidence, in compliance with this Law or the Rules or voluntarily,
if—
(a) it does not disclose any elements of the information that could lead
to the identification of the person to whom that information relates;
or
(b) the manner in which it discloses the information does not identify the
person to whom that information relates.
Example—
Information disclosed under this section may be combined or arranged with
other information provided that the manner in which that information is combined
or arranged will not lead to the identification of the person to whom the
information relates.
28ZB—Disclosure of confidential information
authorised if detriment does not outweigh public benefit
(1) Despite section 28Z or 28ZA but subject to this section, the AER
is authorised to disclose information given to it in confidence after the
restricted period if the AER is of the opinion—
(a) that the disclosure of the information would not cause detriment to
the person who has given it or to the person from whom that person received it;
or
(b) that, although the disclosure of the information would cause detriment
to such a person, the public benefit in disclosing it outweighs that
detriment.
(2) Before disclosing the information, the AER must give the person who
gave the information—
(a) a written notice (an initial disclosure notice)
stating—
(i) that the AER wishes to disclose the information, specifying the nature
of the intended disclosure; and
(ii) that the AER is of the opinion required by subsection (1);
and
(iii) that the person, within the period specified in the notice, may make
representations to the AER not to disclose the information; and
(b) the AER's decision, in writing, setting out the reasons why the
AER—
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(3) If the AER is aware that the person who gave the information in turn
received the information from another person and is aware of that other person's
identity and address, the AER must, before disclosing the information give that
other person—
(a) a written notice (an initial disclosure notice)
stating—
(i) that the AER wishes to disclose the information, specifying the nature
of the intended disclosure; and
(ii) that the AER is of the opinion required by subsection (1);
and
(iii) that the person, within the period specified in the notice, may make
representations to the AER not to disclose the information; and
(b) the AER's decision, in writing, setting out the reasons why the
AER—
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(4) The AER must consider every representation made to it by a person
given an initial disclosure notice within the time specified in the
notice.
(5) The period of time specified in an initial disclosure notice must not
be less than 5 business days after the date the initial disclosure notice is
given to the person.
(6) If after considering the representations, the AER wishes to disclose
the information, the AER must give the person given the initial disclosure
notice—
(a) a written notice (a further disclosure notice)
stating—
(i) that the AER wishes to disclose the information, specifying the nature
of the intended disclosure; and
(ii) that the AER is of the opinion required by subsection (1);
and
(b) the AER's decision, in writing, setting out the reasons why the
AER—
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(7) For the purposes of this section, the disclosure of anything that is
already in the public domain at the time the AER wishes to disclose it cannot
cause detriment to any person referred to in subsection (2) or
(3).
(8) In this section—
restricted period means a period of 5 business days
after—
(a) an initial disclosure notice has been given under this section;
or
(b) a further disclosure notice has been given under this
section,
whichever is the later.
Division 7—Miscellaneous
matters
28ZC—Consideration by the AER of submissions made
to it under this Law
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic regulatory decision,
the AER, in making the decision—
(a) must consider every submission it receives within the period specified
in the notice; and
(b) may, but need not, consider a submission it receives after the period
specified in the notice expires.
28ZD—Use of information provided under a notice
under Division 3 or a regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 28 or a regulatory information instrument for any
purpose connected with the performance or exercise of a function or power of the
AER under this Law or the Rules.
28ZE—AER to inform certain persons of decisions not
to investigate breaches, institute proceedings or serve infringement
notices
(1) If the AER is given information by any person in relation to a breach
or a possible breach of this Law, the Regulations or the Rules by a person
but—
(a) decides not to investigate that breach or possible breach;
or
(b) following an investigation, decides not to—
(i) institute any proceedings in respect of that breach or possible breach
under Part 6; or
(ii) serve an infringement notice in accordance with Division 5 of Part 6
in respect of that breach or possible breach,
the AER must notify that person of that decision in writing.
(2) This section does not apply if the person gave the information to the
AER anonymously.
28ZF—AER enforcement
guidelines
(1) The AER may prepare guidelines about the matters it will have regard
to before—
(a) making an application under section 61; or
(b) serving an infringement notice under section 74.
(2) The AER must publish guidelines prepared under subsection (1) on
its website.
28ZG—AER must report to MCE if it does not make
network revenue or pricing determination within time
(1) If the AER does not make a network revenue or pricing determination
within the period of time specified by this Law or the Rules for the making of
that determination, the AER must give a report to the MCE that—
(a) describes the AER's handling of the matter; and
(b) gives the reasons of the AER for not making the determination within
the specified period; and
(c) specifies a date by when the AER considers the determination will be
made.
(2) A report under subsection (1)—
(a) must be given to the MCE as soon as practicable after the expiry of
the specified period; and
(b) must be published on the AER's website as soon as practicable after it
is given to the MCE in accordance with paragraph (a).
26—Amendment of
the NEL—New section 31 substituted
NEL—delete section 31 and substitute:
31—Confidentiality
Section 24 of the Australian Energy Market Commission Establishment
Act 2004 of South Australia has effect for the purposes of this Law,
the Regulations and the Rules as if it formed part of this Law.
Note—
See also sections 48 and 108.
27—Amendment of
section 32 of the NEL—AEMC must have regard to national electricity
objective
NEL, section 32—delete "market"
28—Amendment of
section 34 of the NEL—Rule making powers
(1) NEL, section 34(1)—delete the subsection and
substitute:
(1) Subject to this Division, the AEMC, in accordance with this Law and
the Regulations, may make Rules, to be known, collectively, as the "National
Electricity Rules", for or with respect to—
(a) regulating—
(i) the operation of the national electricity market;
(ii) the operation of the national electricity system for the purposes of
the safety, security and reliability of that system;
(iii) the activities of persons (including Registered participants)
participating in the national electricity market or involved in the operation of
the national electricity system;
(b) any matter or thing contemplated by this Law, or is necessary or
expedient for the purposes of this Law.
Note—
The procedure for the making of a Rule by the AEMC is set out in Division 3
of Part 7.
(2) NEL, section 34(3)(e)—delete the paragraph and
substitute:
(e) confer a function on the AER, the AEMC, NEMMCO or a jurisdictional
regulator to make, prepare, develop or issue guidelines, tests, standards,
procedures or any other document (however described) in accordance with the
Rules, including guidelines, tests, standards, procedures or any other document
(however described) that leave any matter or thing to be determined by the AER,
the AEMC, NEMMCO or jurisdictional regulator;
29—Amendment of
the NEL—New sections 35 and 36 substituted
NEL, sections 35 and 36—delete the sections and substitute:
35—Rules relating to MCE or Ministers of
participating jurisdictions require MCE consent
The AEMC must not, without the consent of the MCE, make a Rule that confers
a right or function, or imposes an obligation, on the MCE or a Minister of a
participating jurisdiction.
Note—
The term "function" is defined in clause 10 of Schedule 2 to this Law to
include "duty".
36—AEMC must not make Rules that create criminal
offences or impose civil penalties for breaches
The AEMC must not make a Rule that—
(a) creates an offence for a breach of a provision of the Rules;
or
(b) provides for a criminal penalty or civil penalty for a breach of a
provision of the Rules.
30—Amendment of
section 37 of the NEL—Documents etc applied, adopted and incorporated by
Rules to be publicly available
NEL, section 37(2)—delete the subsection and substitute:
(2) For the purposes of subsection (1), the AEMC makes a standard, rule,
specification, method or document (however described) formulated, issued,
prescribed or published by any person, authority or body applied, adopted or
incorporated by any Rule publicly available if the AEMC—
(a) publishes the standard, rule, specification, method or document on the
AEMC's website; or
(b) specifies a place from which the standard, rule, specification, method
or document may be obtained or purchased (as the case requires).
31—Amendment of
the NEL—deletion of section 40
NEL, section 40—delete the section
32—Amendment of
section 41 of the NEL—MCE directions
(1) NEL, section 41(1)(a)—after the paragraph insert:
(ab) any matter relating to any other market for electricity; or
(2) NEL, section 41(1)(c)—delete "Rules." and substitute:
Rules; or
(3) NEL, section 41(1)—after paragraph (c) insert:
(d) the effectiveness of competition in a market for electricity for the
purpose of giving advice about whether to retain, remove or reintroduce price
controls on prices for retail electricity services.
33—Amendment of
section 42 of the NEL—Terms of reference
(1) NEL—after section 42(1) insert:
Example—
The terms of reference may require a MCE directed review to be
conducted—
(a) about a specific matter within a specified time; or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) NEL, section 42(2)—delete "The" and substitute:
Without limiting subsection (1), the
(3) NEL, section 42(2)(e)—delete the paragraph and
substitute:
(e) require the AEMC to have specified objectives in the conduct of a MCE
directed review which need not be limited by the national electricity
objective;
(ea) require the AEMC to assess a particular matter in relation to
services provided in a market for electricity against specified criteria or a
specified methodology;
(eb) require the AEMC—
(i) to assess a particular matter in relation to services provided in a
market for electricity; and
(ii) to develop appropriate and relevant criteria, or an appropriate and
relevant methodology, for the purpose of the required assessment;
34—Amendment of
section 45 of the NEL—Reviews by AEMC
NEL, section 45(4)—delete the subsection and substitute:
(4) At the completion of a review, the AEMC must—
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from which confidential
information has been omitted in accordance with section 48.
35—Amendment of
section 46 of the NEL—AEMC must publish and make available up to date
versions of Rules
(1) NEL, section 46(a)—delete "publish on its website," and
substitute:
maintain, on its website, a copy of
(2) NEL, section 46(b)—delete "normal"
36—Amendment of
section 47 of the NEL—Fees
NEL, section 47(1)—
(a) after "specified" insert:
, or a fee calculated in accordance with a formula or methodology
specified,
(b) after "Law" insert:
, the Regulations
37—Amendment of
section 48 of the NEL—Confidentiality of information
NEL, section 48(5)—delete the subsection and the note at the foot of
the subsection and substitute:
Note—
See also section 31 of this Law and section 24 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia.
38—Amendment of
section 49 of the NEL—Functions of NEMMCO in respect of national
electricity market
NEL, section 49(1)—after the subsection insert:
Note—
NEMMCO also has responsibilities in relation to the administrative costs
associated with the work of the Consumer Advocacy Panel where those costs relate
to the Panel's functions relevant to consumers of electricity. See Part 4 of the
Australian Energy Market Commission Establishment Act 2004 of South
Australia.
39—Amendment of
the NEL—New Parts 5A and 5B inserted
NEL—After section 57 insert:
Part 5A—Functions and powers of Minister of this
participating jurisdiction
57A—Functions and powers of Minister of this
participating jurisdiction
(1) The Minister of this participating jurisdiction has the functions and
powers conferred on him or her under this Law, the Regulations or the
Rules.
(2) The Minister of this participating jurisdiction has power to do all
things necessary or convenient to be done for or in connection with the
performance of his or her functions.
(3) In this section—
Minister of this participating jurisdiction means the
Minister that administers the Act of this jurisdiction that applies this Law as
a law of this jurisdiction.
Part 5B—Functions and powers of
Tribunal
57B—Functions and powers of Tribunal under this
Law
(1) The Tribunal has the functions and powers conferred on it under
Division 3A of Part 6 and any Regulations made for the purposes of that
Division.
(2) The Tribunal has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
40—Amendment of
section 58 of the NEL—Definitions
NEL, section 58, definition of civil penalty
provision—delete the definition and substitute:
civil penalty provision means—
(a) section 11(1), (2), (3) or (4); or
(b) section 14A; or
(c) section 14B; or
(d) section 28N; or
(e) section 28O; or
(f) section 136; or
(g) section 157; or
(h) a rebidding civil penalty provision; or
(i) any other provision of this Law (other than an offence provision) or a
provision of the Rules prescribed by the Regulations to be a civil penalty
provision;
41—Amendment of
section 61 of the NEL—Proceedings for breaches of a provision of this Law,
the Regulations or the Rules that are not offences
NEL, section 61(3)—after "AER" insert:
on behalf of the Commonwealth
42—Amendment of
section 62 of the NEL—Additional Court orders
NEL, section 62—delete the note at the foot of the section
43—Amendment of
section 64 of the NEL—Matters for which there must be regard in
determining amount of civil penalty
(1) NEL, section 64(d)—delete "conduct." and substitute:
conduct; and
(2) NEL—after section 64(d) insert:
(e) whether the service provider had in place a compliance program
approved by the AER or required under the Rules, and if so, whether the service
provider has been complying with that program.
44—Amendment of
the NEL—New Division 2A of Part 6 inserted
NEL—after section 69 insert:
Division 2A—Proceedings before, and awards etc of,
Dispute resolution panels
69A—Commercial Arbitration Acts apply to
proceedings before Dispute resolution panels
(1) The procedural Parts of the Commercial Arbitration Act of this
jurisdiction apply to the hearing of a Rule dispute and decision or
determination of a Dispute resolution panel—
(a) as if—
(i) the Rules providing for a Rule dispute were an arbitration agreement
within the meaning of that Act; and
(ii) a reference in those Parts to an arbitrator or umpire were a
reference to the Dispute resolution panel; and
(iii) a reference to a party to an arbitration agreement, or in an
arbitration proceeding, in those Parts were a reference to a party to the Rule
dispute; and
(iv) in those Parts for "unless otherwise agreed in writing by the parties
to the arbitration agreement" there were substituted "unless the Rules provide
otherwise"; and
(v) a reference to an award of an arbitrator or umpire in those Parts were
a reference to a decision or determination of a Dispute resolution panel;
and
(b) with any other alterations and modifications that are
necessary.
(2) In this section—
procedural Parts of the Commercial Arbitration Act of this
jurisdiction means—
(a) if this Law is applied as a law of the State of New South Wales and a
Rule dispute is heard and determined in that State, Parts 3, 4 and 6 of the
Commercial Arbitration Act 1984 of New South Wales;
(b) if this Law is applied as a law of the State of Victoria and a Rule
dispute is heard and determined in that State, Parts III, IV and VI of the
Commercial Arbitration Act 1984 of Victoria;
(c) if this Law is applied as a law of the State of Queensland and a Rule
dispute is heard and determined in that State, Parts 3, 4 and 6 of the
Commercial Arbitration Act 1990 of Queensland;
(d) if this Law is applied as a law of the State of South Australia and a
Rule dispute is heard and determined in that State, Parts 3, 4 and 6 of the
Commercial Arbitration and Industrial Referral Agreements Act 1986
of South Australia;
(e) if this Law is applied as a law of Tasmania and a Rule dispute is
heard and determined in that State, Parts III, IV and VI of the Commercial
Arbitration Act 1986 of Tasmania;
(f) if this Law is applied as a law of the Australian Capital Territory
and a Rule dispute is heard and determined in that Territory, Parts 3, 4 and 6
of the Commercial Arbitration Act 1986 of the Australian Capital
Territory;
(g) if this Law is applied as a law of another participating jurisdiction
and a Rule dispute is heard and determined in that other participating
jurisdiction, the Parts of an Act of that jurisdiction or an Act of another
participating jurisdiction (as the case requires) prescribed by the Regulations
as corresponding to Parts 3, 4 and 6 of the Commercial Arbitration and
Industrial Referral Agreements Act 1986 of South Australia.
45—Amendment of
the NEL—New section 71 substituted
NEL, section 71—delete the section and substitute:
71—Appeals on questions of law from decisions or
determinations of Dispute resolution panels
(1) A person who is a party to a Rule dispute may appeal to the Court, on
a question of law, against a decision or determination of a Dispute resolution
panel.
(2) The review provisions of the Commercial Arbitration Act of this
jurisdiction apply to a decision or determination of a Dispute resolution
panel—
(a) as if—
(i) the Rules providing for a Rule dispute were an arbitration agreement
within the meaning of that Act; and
(ii) a reference to an arbitration in those provisions were a reference to
the hearing of the Rule dispute; and
(iii) a reference in those provisions to an award of an arbitrator or
umpire were a reference to a decision or determination of a Dispute resolution
panel; and
(iv) a reference to a party to an arbitration agreement, or in an
arbitration proceeding, in those provisions were a reference to a party to the
Rule dispute; and
(v) sections 40 and 41 were omitted; and
(b) with any other alterations and modifications that are
necessary.
(3) In this section—
review provisions of the Commercial Arbitration Act of this
jurisdiction means—
(a) if this Law is applied as a law of the State of New South Wales and a
Rule dispute is heard and determined in that State, Part 5 of the Commercial
Arbitration Act 1984 of New South Wales;
(b) if this Law is applied as a law of the State of Victoria and a Rule
dispute is heard and determined in that State, Part V of the Commercial
Arbitration Act 1984 of Victoria;
(c) if this Law is applied as a law of the State of Queensland and a Rule
dispute is heard and determined in that State, Part 5 of the Commercial
Arbitration Act 1990 of Queensland;
(d) if this Law is applied as a law of the State of South Australia and a
Rule dispute is heard and determined in that State, Part 5 of the
Commercial Arbitration and Industrial Referral Agreements Act 1986
of South Australia;
(e) if this Law is applied as a law of Tasmania and a Rule dispute is
heard and determined in that State, Part V of the Commercial Arbitration Act
1986 of Tasmania;
(f) if this Law is applied as a law of the Australian Capital Territory
and a Rule dispute is heard and determined in that Territory, Part 5 of the
Commercial Arbitration Act 1986 of the Australian Capital
Territory;
(g) if this Law is applied as a law of another participating jurisdiction
and a Rule dispute is heard and determined in that other participating
jurisdiction, the Parts of an Act of that jurisdiction or an Act of another
participating jurisdiction (as the case requires) prescribed by the Regulations
as corresponding to Part 5 of the Commercial Arbitration and Industrial
Referral Agreements Act 1986 of South Australia.
46—Amendment of
the NEL—New Divisions 3A and 3B of Part 6 inserted
NEL—after section 71 insert:
Division 3A—Merits review and other non-judicial
review
Subdivision 1—Interpretation
71A—Definitions
In this Division—
AER information disclosure decision means a decision of the
AER under section 28ZB to disclose information, or the contents of a
document;
affected or interested person or body means—
(a) a regulated network service provider to whom the reviewable regulatory
decision applies;
(b) a network service provider, user, prospective user or end user whose
commercial interests are materially affected by the reviewable regulatory
decision;
(c) a user or consumer association;
applicant means—
(a) an affected or interested person or body who has been granted leave to
apply for review by the Tribunal under Subdivision 2; or
(b) a person who makes an application under section
section 71S;
average annual regulated revenue means the annual average of
regulated revenue calculated for the regulatory period of a network revenue or
pricing determination;
intervener means a person or body referred to in
section 71J, 7IK or 71L who has intervened in a review under Subdivision 2
with the leave of the Tribunal or otherwise;
prospective user means a person who—
(a) is a Registered participant, or is capable of becoming a Registered
participant; and
(b) seeks or wishes to be provided with an electricity service,
but does not include a network service provider;
regulatory period means the period specified in a network
revenue or pricing determination to be the regulatory period;
regulated revenue means the total revenue earned or to be
earned by a regulated network service provider—
(a) under; and
(b) during the regulatory period of,
a network revenue or pricing determination through the provision of the
direct control network services to which that determination applies;
reviewable regulatory decision means—
(a) a network revenue or pricing determination that sets a regulatory
period; or
(b) any other determination (including a distribution determination or
transmission determination) or decision of the AER under the Rules that is
prescribed by the Regulations to be a reviewable regulatory decision,
but does not include a decision of the AER made under Division 6 of Part
3;
review under this Division means a review under Subdivision 2
or Subdivision 3;
small to medium user or end user means a user or end user
whose annual consumption of electricity does not exceed a level (expressed in
megawatt hours) fixed by Regulation for the purposes of this
definition;
user means a person who—
(a) is a Registered participant, or is capable of becoming a Registered
participant; and
(b) is provided with an electricity service,
but does not include a network service provider;
user or consumer association means an association or body
(whether incorporated or unincorporated)—
(a) the members of which include more than 1 user, prospective user or end
user; and
(b) that represents and promotes the interests of those members in
relation to the provision of electricity services;
user or consumer interest group means an association or body
(whether incorporated or unincorporated)—
(a) that has, as an object or purpose, the object or purpose of
representing and promoting the interests of users or prospective users or end
users of electricity services; but
(b) the members of which need not include a user, prospective user or end
user;
user or consumer intervener means—
(a) a user or consumer association; or
(b) a user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so by the AER under
this Law or the Rules.
Subdivision 2—Merits review for reviewable
regulatory decisions
71B—Applications for review
(1) An affected or interested person or body, with the leave of the
Tribunal, may apply to the Tribunal for a review of a reviewable regulatory
decision.
(2) An application must—
(a) be made in the form and manner determined by the Tribunal;
and
(b) specify the grounds for review being relied on.
71C—Grounds for review
(1) An application under section 71B(1) may be made only on 1 or more
of the following grounds:
(a) the AER made an error of fact in its findings of facts, and that error
of fact was material to the making of the decision;
(b) the AER made more than 1 error of fact in its findings of facts, and
that those errors of fact, in combination, were material to the making of the
decision;
(c) the exercise of the AER's discretion was incorrect, having regard to
all the circumstances;
(d) the AER's decision was unreasonable, having regard to all the
circumstances.
(2) It is for the applicant to establish a ground listed in
subsection (1).
71D—By when an application must be
made
An application under section 71B(1) in respect of a reviewable
regulatory decision must be made no later than 15 business days after the
reviewable regulatory decision is published in accordance with this Law or the
Rules.
71E—Tribunal must not grant leave unless serious
issue to be heard and determined
Subject to this Subdivision, the Tribunal must not grant leave to apply
under section 71B(1) unless it appears to the Tribunal that there is a
serious issue to be heard and determined as to whether a ground for review set
out in section 71C(1) exists.
71F—Leave must be refused if application is about
an error relating to revenue amounts below specified
threshold
(1) This section applies if—
(a) leave to apply under section 71B(1) is in relation to a
reviewable regulatory decision that is a network revenue or pricing
determination; and
(b) the ground for review relied on by the applicant relates to the amount
of revenue that may be earned by a regulated network service provider that is
specified in or derived from that decision.
(2) Despite section 71E, the Tribunal must not grant leave to apply under
section 71B(1) even if there is a serious issue to be heard and determined
as to whether a ground for review set out in section 71C(1) exists unless
the amount that is specified in or derived from the decision exceeds the lesser
of $5 000 000 or 2% of the average annual regulated revenue of the
regulated network service provider.
71G—Tribunal must refuse to grant leave if
submission not made or is made late
The Tribunal must not grant leave to apply under section 71B(1) to a
person or body referred to in paragraph (b) or (c) of the definition of
affected or interested person or body if that person or
body—
(a) did not make a submission or comment in relation to the making of the
decision following an invitation by the AER to do so under this Law or the
Rules; or
(b) did make a submission or comment in relation to the making of the
decision following an invitation by the AER to do so under this Law or the Rules
but—
(i) that submission was not made within the time required under this Law
or the Rules following that invitation; and
(ii) the AER chose not to take that submission or comment into account in
making the decision.
71H—Tribunal may refuse to grant leave to service
provider in certain cases
(1) This section applies—
(a) in relation to an application under section 71B(1) by a regulated
network service provider for a review of a reviewable regulatory decision that
applies to the service provider; and
(b) if the Tribunal is satisfied of the matters set out in
section 71E or 71F to grant leave to apply under
section 71B(1).
(2) Despite being satisfied of the matters set out in section 71E or
71F to grant leave to apply under section 71B(1), the Tribunal may refuse
to grant leave to the regulated network service provider if the Tribunal is
satisfied the service provider—
(a) without reasonable excuse—
(i) failed to comply with a request (including a request for relevant
information), or a direction, of the AER made under this Law or the Rules for
the purpose of making the decision; or
(ii) conducted itself in a manner that resulted in the making of the
decision of the AER being delayed; or
(b) misled, or attempted to mislead, the AER on a matter relevant to the
AER's decision.
71I—Effect of application on operation of
reviewable regulatory decisions
An application under section 71B(1)—
(a) does not stay the operation of a network revenue or pricing
determination;
(b) stays the operation of any other reviewable regulatory decision on the
granting of leave to apply by the Tribunal, unless the Tribunal otherwise
orders.
71J—Intervention by others in a review without
leave
Only the following persons may intervene in a review under this Subdivision
without leave of the Tribunal:
(a) a regulated network service provider to whom the reviewable regulatory
decision being reviewed applies (if that provider is not the
applicant);
(b) a Minister of a participating jurisdiction.
7IK—Leave for reviewable regulatory decision
process participants
(1) The Tribunal must grant leave to a person or body to intervene in a
review under this Subdivision if that person or body is a reviewable regulatory
decision process participant.
(2) In this section—
reviewable regulatory decision process participant means a
person or body (other than a user or consumer intervener) with a sufficient
interest in the reviewable regulatory decision being reviewed
who—
(a) has made a submission or comment in relation to the making of that
decision within the time required under this Law or the Rules following an
invitation by the AER to do so; or
(b) has made a submission or comment in relation to the making of that
decision outside the time required under this Law or the Rules following an
invitation by the AER to do so but which the AER chose to take into account in
making that decision.
71L—Leave for user or consumer
intervener
(1) A user or consumer intervener may apply to the Tribunal for leave to
intervene in a review of a reviewable regulatory decision under this
Subdivision.
(2) The Tribunal may grant leave to a user or consumer intervener to
intervene in a review under this Subdivision.
(3) Without limiting subsection (2), the Tribunal may grant leave to
a user or consumer intervener to intervene in a review under this Division if
the Tribunal is satisfied—
(a) the user or consumer intervener, in its application for leave to
intervene, raises a matter that will not be raised by the AER or the applicant;
or
(b) the information or material the user or consumer intervener wishes to
present, or the submissions the user or consumer intervener wishes to make, in
the review is likely to be better presented if submitted by the user or consumer
intervener rather than another party to the review; or
(c) the interests of the user or consumer intervener or its members are
affected by the decision being reviewed.
(4) For the purposes of subsection (3)(c)—
(a) the interests of a user or consumer intervener are to be taken to be
affected if the reviewable regulatory decision being reviewed relates to an
object or purpose of the user or consumer intervener;
(b) the interests of a user or consumer intervener are not to be taken to
not be affected only because those interests do not coincide with the interests
of the applicant.
71M—Interveners may raise new grounds for
review
(1) An intervener may raise in a review under this Subdivision any of the
grounds specified in section 71C even if the ground that is raised by the
intervener is not raised by the applicant.
(2) To avoid doubt, it is for the intervener to establish the ground
referred to in subsection (1).
71N—Parties to a review under this
Subdivision
The parties to a review under this Subdivision are—
(a) the applicant; and
(b) AER; and
(c) an intervener.
71O—Matters that parties to a review may and may
not be raise in a review
(1) The AER, in a review under this Subdivision, may
raise—
(a) a matter not raised by the applicant or an intervener that relates to
a ground for review, or a matter raised in support of a ground for review,
raised by the applicant or an intervener;
(b) a possible outcome or effect on the reviewable regulatory decision
being reviewed that the AER considers may occur as a consequence of the Tribunal
making a determination setting aside or varying the reviewable regulatory
decision.
(2) A party (other than the AER) to a review under this Subdivision may
not raise any matter that was not raised in submissions to the AER before the
reviewable regulatory decision was made.
71P—Tribunal must make
determination
(1) If, following an application, the Tribunal grants leave in accordance
with section 71B(1), the Tribunal must make a determination in respect of
the application.
Note—
See section 71Q for the time limit within which the Tribunal must make
its determination.
(2) A determination under this section may—
(a) affirm, set aside or vary the reviewable regulatory
decision;
(b) remit the matter back to the AER to make the decision again, in
accordance with any direction or recommendation of the Tribunal.
(3) For the purposes of making a determination of the kind in
subsection (2)(a), the Tribunal may perform all the functions and exercise
all the powers of the AER under this Law or the Rules.
(4) In deciding whether to remit a matter back to the AER to make the
decision again, the Tribunal must have regard to the nature and relative
complexities of—
(a) the reviewable regulatory decision; and
(b) the matter the subject of the review.
(5) A determination by the Tribunal affirming, setting aside or varying
the reviewable regulatory decision is, for the purposes of this Law (other than
this Part), to be taken to be a decision of the AER.
71Q—Target time limit for Tribunal for making a
determination under this Subdivision
(1) The Tribunal must use its best endeavours to make a determination in
respect of the application for review under this Subdivision—
(a) within 3 months after the Tribunal grants leave in accordance with
this Subdivision (the standard period); or
(b) if the standard period is extended under this section—that
period as extended.
(2) If the Tribunal is unable to make a determination in respect of the
application within the standard period, or that period as extended, the Tribunal
must, by notice in writing, extend the standard period or that period by a
specified period.
(3) The Tribunal must give a copy of the notice to—
(a) the applicant; and
(b) every other party to the application.
(4) The Tribunal may extend the standard period, or that period as
extended, more than once.
(5) If the Tribunal extends a period, it must publish a notice in a
newspaper circulating generally throughout Australia and on its
website—
(a) stating that it has done so; and
(b) specifying a date by which it must now use its best endeavours to make
the determination.
71R—Matters to be considered by Tribunal in making
determination
(1) Subject to this section, the Tribunal, in reviewing a reviewable
regulatory decision, must not consider any matter other than review related
matter.
(2) The Tribunal, in reviewing a reviewable regulatory decision, must have
regard to any document—
(a) prepared, and used, by the AER for the purpose of making the
reviewable regulatory decision; and
(b) that the AER has made publicly available.
(3) In addition, if in a review, the Tribunal is of the view that a ground
of review has been established, the Tribunal may allow new information or
material to be submitted if the new information or material—
(a) would assist it on any aspect of the determination to be made;
and
(b) was not unreasonably withheld from the AER when it was making the
reviewable regulatory decision.
(4) Subject to this Law, for the purpose of subsection (3)(b),
information or material not provided to the AER following a request for that
information or material by it under this Law or the Rules is to be taken to have
been unreasonably withheld.
(5) Subsection (5) does not limit what may constitute an unreasonable
withholding of information or material.
(6) In this section—
review related matter means—
(a) the application for review and submissions in support of the
application; and
(b) the reviewable regulatory decision and the written record of it and
any written reasons for it; and
(c) in the case of a reviewable regulatory decision that is a network
revenue or pricing determination—any document, proposal or information
required or allowed under the Rules to be submitted as part of the process for
the making of the determination; and
(d) any written submissions made to the AER before the reviewable
regulatory decision was made; and
(e) any reports and materials relied on by the AER in making the
reviewable regulatory decision; and
(f) any draft of the reviewable regulatory decision; and
(g) any submissions on the draft of the reviewable regulatory decision or
the reviewable regulatory decision itself considered by the AER; and
(h) the transcript (if any) of any hearing conducted by the AER for the
purpose of making the reviewable regulatory decision.
Subdivision 3—Tribunal review of AER information
disclosure decisions under section 28ZB
71S—Application for review
(1) A person whose interests are adversely affected by an AER information
disclosure decision may apply to the Tribunal for a review of the
decision.
(2) An application must be made in the form and manner determined by the
Tribunal.
(3) An application may only be made on the ground that—
(a) the decision was not made in accordance with law; or
(b) the decision is unreasonable having regard to all relevant
circumstances.
(4) The person must lodge the application with the Tribunal no later than
5 business days after the date of the notice given under section 28ZB(2), (3) or
(6) to which the AER information disclosure decision relates (whichever is the
later).
(5) An application under this section stays the operation of the decision
until the earlier of—
(a) 20 business days; or
(b) the making of a determination by the Tribunal in respect of the
application.
71T—Exclusion of public in certain
cases
On the application of a party to a review under this Subdivision, the
Tribunal may conduct the review in the absence of the public.
71U—Determination in the
review
(1) Subject to this Division, on receipt of an application under
section 71S, the Tribunal must make a determination in respect of the
application.
(2) A determination under this section must only—
(a) affirm the AER information disclosure decision; or
(b) forbid disclosure by the AER of the information or document to which
the AER information disclosure decision the subject of the review relates;
or
(c) restrict, as specified in the determination, the intended disclosure
by the AER of the information or document to which the AER information
disclosure decision the subject of the review relates.
(3) For the purposes of making a determination of the kind in
subsection (2)(a), the Tribunal may perform all the functions and exercise
all the powers of the AER under this Law or the Rules.
(4) A determination by the Tribunal affirming, forbidding or restricting
the AER information disclosure decision is, for the purposes of this Law (other
than this Part), to be taken to be a decision of the AER.
71V—Tribunal must be taken to have affirmed
decision if decision not made within time
(1) This section applies if the Tribunal does not make a determination
under section 71U within 20 business days after an application is lodged
under section 71S.
(2) The Tribunal must be taken to have made a determination under
section 71U affirming the AER information disclosure decision to which the
application relates.
71W—Assistance from the AER in certain
cases
The member of the Tribunal presiding in the review may require the AER to
give information and other assistance and to make reports, as specified, by the
member for the purposes of the review.
Subdivision 4—General
71X—Costs in a review
(1) Subject to this section, the Tribunal may order that a party to a
review under this Division pay all or a specified part of the costs of another
party to the review.
(2) The Tribunal must not make an order requiring the AER or a
small/medium user or consumer intervener to pay the costs of another party to
the review unless the Tribunal considers that the AER or intervener has
conducted their case in the review without due regard to—
(a) the costs that would have to be incurred by another party to the
review as a result of that conduct; or
(b) the time required by—
(i) the Tribunal to hear the review as a result of that conduct;
or
(ii) another party to prepare their case as a result of that conduct;
or
(c) the submissions or arguments made to the Tribunal by another
party.
(3) The Tribunal may make an order requiring a user or consumer intervener
(that is not a small/medium user or consumer intervener) that has intervened in
the review to pay all or part of the costs of another party to the review if the
Tribunal considers that the intervener has conducted their case in the review
without due regard to—
(a) the costs that would have to be incurred by another party to the
review as a result of that conduct; or
(b) the time required by—
(i) the Tribunal to hear the review as a result of that conduct;
or
(ii) another party to prepare their case as a result of that conduct;
or
(c) the submissions or arguments made to the Tribunal by another
party.
71Y—Amount of costs
If the Tribunal makes an order for costs in a review under this Division,
the Tribunal may in that order fix the amount of costs payable by a party to the
review on—
(a) a party and party basis; or
(b) a solicitor and client basis; or
(c) an indemnity basis; or
(d) any other basis as the Tribunal may decide.
71Z—Review of Division
(1) The MCE must cause a review of this Division to be undertaken within 7
years after the commencement of this Part by a person nominated by the
MCE.
(2) The MCE must specify the matters to be addressed in the
review.
(3) The person undertaking the review must, during the review, invite
public comment and submissions about the matters to be addressed in the
review.
(4) The person undertaking the review must report, in writing, to the MCE
on the outcome of the review by the date specified by the MCE.
Division 3B—Enforcement of access
determinations
71ZA—Enforcement of access
determinations
(1) If the Court is satisfied, on the application of a party to an access
determination, that another party to the determination has engaged, is engaging,
or is proposing to engage in conduct that constitutes a contravention of the
determination, the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks
appropriate—
(i) restraining the other party from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant for
loss or damage suffered as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) The revocation of an access determination does not affect any remedy
under subsection (1) in respect of a contravention of the determination
that occurred when the determination was in force.
(3) If the Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do anything, the Court may make any other orders
(including granting an injunction) that it thinks appropriate against any other
person who was involved in the contravention concerned.
(4) A reference in this section to a person involved in the contravention
is a reference to a person who has—
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or promises or
otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a
party to the contravention; or
(d) conspired with others to effect the contravention.
71ZB—Consent injunctions
On an application for an injunction under section 71ZA, the Court may
grant an injunction by consent of all of the parties to the proceedings, whether
or not the Court is satisfied that the section applies.
71ZC—Interim injunctions
The Court may grant an interim injunction pending determination of an
application under section 71ZA.
71ZD—Factors relevant to granting a restraining
injunction
The power of the Court to grant an injunction under section 71ZA
restraining a person from engaging in conduct may be exercised whether or
not—
(a) it appears to the Court that the person intends to engage again, or to
continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind;
or
(c) there is an imminent danger of substantial damage to any person if the
first mentioned person engages in conduct of that kind.
71ZE—Factors relevant to granting a mandatory
injunction
The power of the Court to grant an injunction under section 71ZA
requiring a person to do a thing may be exercised whether or
not—
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing;
or
(c) there is an imminent danger of substantial damage to any person if the
first mentioned person refuses or fails to do that thing.
71ZF—Discharge or variation of injunction or other
order
The Court may discharge or vary an injunction or order granted under this
Division.
47—Amendment of
section 74 of the NEL—Power to serve a notice
(1) NEL, section 74(1)—delete "The" and substitute:
Subject to this section, the
(2) NEL—after section 74(1) insert:
(1a) The AER must, however, serve an infringement notice not later than 12
months after the date on which the AER forms a belief that there has been a
breach of a civil penalty provision.
48—Amendment of
section 81 of the NEL—Payment expiates breach of civil penalty
provision
NEL, section 81(a) and (b)—delete the paragraphs and
substitute:
(a) the infringement penalty is—
(i) paid within the time for payment stated in the notice; and
(ii) not withdrawn by the AER within the time for payment stated in the
notice in accordance with section 79; or
(b) the infringement penalty is accepted in accordance with section
78.
49—Amendment of
the NEL—Deletion of section 84
NEL, section 84—delete the section
50—Amendment of
section 85 of the NEL—Offences and breaches by
corporations
NEL, section 85(4)—delete the subsection
51—Amendment of
section 86 of the NEL—Proceedings for breaches of certain provisions in
relation to actions of officers and employees of relevant
participants
NEL, section 86(2)—delete the subsection
52—Amendment of
the NEL—New Subdivision heading inserted into Division 1 of
Part 7
NEL—before section 87 insert:
Subdivision 1—Interpretation
53—Amendment of
section 87 of the NEL—Definitions
(1) NEL, section 87, definition of interested person or
body—delete the definition
(2) NEL, section 87—before the definition of non-controversial
Rule insert:
AEMC initiated Rule means a Rule of the kind referred to in
section 91(2);
AEMC Rule review means a review conducted by the AEMC under
Division 5 of Part 4;
electricity market regulatory body means—
(a) the AER;
(b) NEMMCO;
(c) the Reliability Panel;
market initiated proposed Rule means a request for a Rule
made under section 91(1) in respect of which the AEMC publishes a notice
under section 95;
more preferable Rule has the meaning given by
section 91A;
(3) NEL, section 87—after the definition of non-controversial
Rule insert:
proposed Rule means—
(a) a market initiated proposed Rule; or
(b) a proposal for an AEMC initiated Rule; or
(c) a proposed more preferable Rule;
(4) NEL, section 87, definition of publish—after
paragraph (a) insert:
(ab) in relation to a decision under section 94(2)—publish on the
AEMC's website and make available at the offices of the AEMC;
(5) NEL, section 87, definition of publish—after
paragraph (d) insert:
(e) in relation to a report prepared under section 108A—publish on
the AEMC's website and make available at the offices of the AEMC;
54—Amendment of
the NEL—New Subdivision 2 of Division 1 of Part 7
inserted
NEL, section 88—delete the section and substitute:
Subdivision 2—Rule making
tests
88—Application of national electricity
objective
(1) The AEMC may only make a Rule if it is satisfied that the Rule will or
is likely to contribute to the achievement of the national electricity
objective.
(2) For the purposes of subsection (1), the AEMC may give such weight
to any aspect of the national electricity objective as it considers appropriate
in all the circumstances, having regard to any relevant MCE statement of policy
principles.
88A—AEMC must take into account form of regulation
factors in certain cases
In addition to complying with section 88 and 88B, the AEMC must take
into account the form of regulation factors and any other matter the AEMC
considers relevant—
(a) in making a Rule that—
(i) specifies an electricity network service as a direct control network
service or negotiated network service; or
(ii) confers a function or power on the AER to specify under a network
revenue or pricing determination an electricity network service (to which the
relevant determination applies) as—
(A) a direct control network service; or
(B) a negotiated network service; or
(b) in revoking a Rule that has been made or is in force
that—
(i) specifies an electricity network service as a direct control network
service or negotiated network service; or
(ii) confers a function or power on the AER to specify under a network
revenue or pricing determination an electricity network service (to which the
relevant determination applies) as—
(A) a direct control network service; or
(B) a negotiated network service.
88B—AEMC must take into account revenue and pricing
principles in certain cases
In addition to complying with section 88 and 88A, the AEMC must take
into account the revenue and pricing principles in making a Rule for or with
respect to any matter or thing specified in items 15 to 24 and 25 to 26J of
Schedule 1 to this Law.
55—Amendment of
the NEL—New heading to Division 2 of Part 7
NEL—delete the heading to Division 2 of Part 7 and
substitute:
Division 2—Minister initiated National Electricity
Rules
56—Amendment of
the NEL—New section 90A inserted
NEL—after section 90 insert:
90A—South Australian Minister to make further Rules
relating to distribution determinations consumer advocacy and other
matters
(1) The Minister in right of the Crown of South Australia administering
Part 2 of the National Electricity (South Australia) Act 1996 of
South Australia may make Rules—
(a) for or with respect to any matter or thing referred to
in—
(i) items 14A and 14B of Schedule 1 to this Law; and
(ii) items 25 to 26H of Schedule 1 to this Law; and
(iii) items 26I and 26J of Schedule 1 to this Law as they relate to
distribution determinations and access determinations relating to access
disputes about access to electricity network services provided by means of a
distribution system;
(iv) items 26K, 30A to 30D and 34A to 34C of Schedule 1 to this
Law;
(b) for or with respect to any matter or thing contemplated by, or is
necessary or expedient for the purposes of the items of Schedule 1 to this Law
referred to in paragraph (a);
(c) that revoke or amend a Rule as a consequence of the enactment of the
Australian Energy Market Commission Establishment (Consumer Advocacy Panel)
Amendment Act 2007 of South Australia.
(2) Despite anything to the contrary in this Law, the Minister referred to
in subsection (1) may make a Rule under this section that is a derogation
without a request from any person.
(3) Section 34(3) applies to the making of Rules under subsection (1)
as if the Rules being made under subsection (1) were Rules being made by
the AEMC.
(4) As soon as practicable after making Rules under subsection (1),
the Minister referred to in that subsection must—
(a) publish notice of the making of the Rules in the South Australian
Government Gazette; and
(b) make the Rules publicly available.
(5) The notice referred to in subsection (4)(a) must
state—
(a) the date on which the Rules commence operation; or
(b) if different Rules will commence operation on different dates, those
dates.
(6) The Rules made under subsection (1) may only be made on the
recommendation of the MCE.
(7) If the Minister referred to in subsection (1) makes Rules under
that subsection, the Minister cannot make another Rule under that
subsection.
57—Amendment of
section 91 of the NEL—Initiation of making of a Rule
NEL, section 91(2)—delete the subsection and substitute:
(2) The AEMC must not make a Rule without a request under subsection (1)
unless—
(a) it considers the Rule corrects a minor error in the Rules;
or
(b) it considers the Rule involves a non-material change to the Rules;
or
(c) the Rule is in respect of any matter that is prescribed by the
Regulations as a matter on which it may make a Rule on its own
initiative.
58—Amendment of
the NEL—New sections 91A and 91B inserted
NEL—after section 91 insert:
91A—AEMC may make more preferred Rule in certain
cases
The AEMC may make a Rule that is different (including materially different)
from a market initiated proposed Rule (a more preferable Rule) if
the AEMC is satisfied that, having regard to the issue or issues that were
raised by the market initiated proposed Rule (to which the more preferable Rule
relates), the more preferable Rule will or is likely to better contribute to the
achievement of the national electricity objective.
91B—AEMC may make Rules that are consequential to a
Rule request
(1) Despite section 91(2), the AEMC may, having regard to a request to
make a Rule under section 91(1), make a Rule that is necessary or consequential
to the Rule that is to be made on that request.
(2) For the purposes of this Part, the AEMC must treat a Rule it may make
under subsection (1) as if it were part of the Rule to be made on that
request.
59—Amendment of
section 92 of the NEL—Contents of requests for Rules
NEL—after section 92(1)(a) insert:
(ab) must, subject to section 92A, be accompanied by the fee prescribed by
the Regulations (if any); and
60—Amendment of
the NEL—New section 92A inserted
NEL—after section 92 insert:
92A—Waiver of fee for Rule
requests
The AEMC may waive the payment of any fee prescribed by the Regulations for
the purposes of section 92.
61—Amendment of
the NEL—New sections 93 and 94 substituted and new section 94A
inserted
NEL, sections 93 and 94—delete the sections and substitute:
93—Consolidation of 2 or more Rule
requests
(1) If the AEMC considers it necessary or desirable that 2 or more
requests for the making of a Rule should be dealt with together, the AEMC
may—
(a) treat those requests as 1 request for the purposes of this Part (a
consolidated Rule request); or
(b) treat any later request as a submission in relation to the earliest
Rule request.
(2) For the purposes of this Part, the AEMC may treat a consolidated Rule
as being received by it on the day it receives either the first or last of the
Rule requests forming part of the consolidated Rule request.
94—Initial consideration of request for
Rule
(1) Subject to this Part, as soon as practicable after receiving a request
for the making of a Rule, the AEMC must consider whether—
(a) the request for the Rule appears to—
(i) contain the information prescribed by the Regulations; and
(ii) not be misconceived or lacking in substance; and
(b) the subject matter of the request appears to be for or with respect to
a matter in respect of which the AEMC may make a Rule under this Law;
and
Note—
Section 34 and Schedule 1 to this Law specify the subject matter for
Rules.
(c) the subject matter of the request appears to relate to the subject
matter of—
(i) a Rule made, or a request for the making of a Rule under section 91(1)
not proceeded with, in the 12 months immediately before the date of making of
that Rule or that request; or
(ii) a request for the making of a Rule under section 91(1) in
respect of which the AEMC is taking action under this Division.
(2) If the AEMC considers that, having regard to the matters set out in
subsection (1), it should not take any action under this Division in
respect of the request for the making of the Rule, the AEMC must make a decision
to that effect and inform the person or body, in writing, that requested the
Rule of that decision.
(3) Despite subsection (1) or (2), the AEMC may make a decision to
the effect that it should not take any action under this Division in respect of
the request for the making of the Rule if the person or body that made the
request has not complied with a notice in accordance with section 94A.
(4) In making a decision under subsection (3), the AEMC must have
regard to any representation it receives under section 94A(4).
(5) A decision under subsection (2) or (3) must—
(a) set out the reasons for the decision; and
(b) be given to the person or body that made the request without delay;
and
(c) in the case where the decision was made only because of the matters
set out in subsection (1)(c)—be published.
(6) Subject to this Part, if the AEMC considers that, having regard to the
matters set out in subsection (1), it should take action under this
Division in respect of the request for the making of the Rule, the AEMC must
publish notice of the request for the making of a Rule in accordance with
section 95.
94A—AEMC may request further information from Rule
proponent in certain cases
(1) This section applies if the AEMC—
(a) receives a request for the making of a Rule under section 91(1);
and
(b) considers, having regard to the nature and content of the request,
that further information is required from the person or body that has made the
request to assist it to understand the request's purpose or content.
(2) The AEMC may, by notice in writing, request the person or body that
made the request under section 91(1) to provide the AEMC further
information.
(3) A notice under subsection (2) must specify—
(a) the kind of information the AEMC requires from the person or body;
and
(b) the time within which that information must be provided to the
AEMC.
(4) A person or body given a notice under this section may make a written
representation to the AEMC as to why it cannot provide the information specified
in the notice within the time specified in the notice.
62—Amendment of
section 95 of the NEL—Notice of proposed Rule
(1) NEL, section 95(1)—delete the subsection and
substitute:
(1) This section applies if the AEMC—
(a) considers that it should take action under this Division in respect of
a request for the making of a Rule; or
(b) forms an intention to make an AEMC initiated Rule.
(1a) The AEMC must publish—
(a) notice of the request or intention (as the case requires);
and
(b) a draft of the proposed Rule; and
(c) any other document prescribed by the Regulations.
(2) NEL, section 95(2)(a)—delete "after" and substitute:
from
(3) NEL—after section 95(2) insert:
(3) Nothing in this Division is to be taken as requiring the AEMC to
publish notices under this section in the same order as it—
(a) considers that it should take action under this Division in respect of
a request for the making of a Rule; or
(b) forms an intention to make an AEMC initiated Rule.
63—Amendment of
section 96 of the NEL—Publication of non-controversial or urgent final
Rule determination
NEL, section 96(1)—delete "4 weeks" and substitute:
6 weeks
64—Amendment of
the NEL—New section 96A inserted
NEL—after section 96 insert:
96A—"Fast track" Rules where previous public
consultation by electricity market regulatory body or an AEMC
review
(1) This section applies if—
(a) an electricity market regulatory body has—
(i) made a request for the making of a Rule under section 91(1);
and
(ii) consulted with the public on the nature and content of the request
before making that request; or
(b) a person or the MCE has made a request for the making of a Rule under
section 91(1) on the basis of—
(i) a recommendation for the making of a Rule contained in a MCE directed
review; or
(ii) a conclusion for the making of a Rule contained in an AEMC Rule
review.
(2) The AEMC may take action under this Division in respect of the request
without complying with section 95(2)(a) or 98 if it is of the opinion
that—
(a) in the case where the request has been made by an electricity market
regulatory body in the circumstances described in
subsection (1)(a)—the consultation conducted by the electricity
market regulatory body was adequate, having regard to—
(i) the nature and content of that request; and
(ii) the kind of consultation conducted by the electricity market
regulatory body;
(b) in the case where the request has been made by a person or the MCE in
the circumstances described in subsection (1)(b)—
(i) the request reflects, or is consistent with, the relevant
recommendation contained in the MCE directed review or relevant conclusion in
the AEMC Rule review (as the case requires); and
(ii) there was adequate consultation with the public by the AEMC on the
content of the relevant recommendation or relevant conclusion during the MCE
directed review or AEMC Rule review (as the case requires).
(3) To avoid doubt—
(a) section 94 applies to a request for the making of a Rule to which this
section applies; and
(b) section 97 does not apply to a request for the making of a Rule to
which this section applies.
65—Amendment of
section 99 of the NEL—Draft Rule determinations
(1) NEL, section 99(1)—delete the subsection and
substitute:
(1) The AEMC must make a draft Rule determination before making a final
Rule determination in relation to the proposed Rule.
(1a) Subject to this Part, the AEMC must, within 10 weeks after the date
specified in a notice under section 95, publish—
(a) the draft Rule determination; and
(b) notice of the making of the draft Rule determination.
(1b) In the case of a proposed Rule to which section 96A applies, the AEMC
must publish the draft Rule determination and notice of the making of the draft
Rule determination within 5 weeks after the date notice under section 95(1a) is
published.
(2) NEL, section 99(2)—delete the subsection and
substitute:
(2) A draft Rule determination must contain—
(a) the reasons of the AEMC as to whether or not it should make the
proposed Rule, including—
(i) in the case where the proposed Rule is not a proposed more preferable
Rule, the reasons of the AEMC as to whether it is satisfied the proposed Rule
will or is likely to contribute to the achievement of the national electricity
objective; and
(ii) in the case of a proposed more preferable Rule, the reasons of the
AEMC as to whether it is satisfied the proposed more preferable Rule will or is
likely to better contribute to the achievement of the national electricity
objective than the market initiated Rule request to which the more preferable
Rule relates; and
(iii) if the AEMC is required to take into account the form of regulation
factors or the revenue and pricing principles, the reasons of the AEMC taking
those factors or principles (as the case requires) into account; and
(iv) the reasons of the AEMC having regard to any relevant MCE statement
of policy principles; and
(v) the reasons of the AEMC having regard to any other matters the AEMC
considers relevant; and
(b) if the AEMC determines to make a Rule, a draft of the Rule to be made;
and
(c) any other matters that are prescribed by the Regulations.
(3) NEL, section 99(4)—delete "of the draft Rule determination" and
substitute:
referred to in subsection (1a)
66—Amendment of
section 101 of the NEL—Pre-final Rule determination
hearings
(1) NEL, section 101(1)—delete the subsection and
substitute:
(1) The AEMC may (but need not), at any time after publication of a notice
under section 99(1a) and before making a final Rule determination, hold a
hearing in relation to a draft Rule determination.
(1a) In addition, any person or body may request, in writing, within 1
week after the publication of a notice under section 99(1a), the AEMC to hold a
hearing in relation to a draft Rule determination.
(2) NEL—after section 101(2) insert:
(2a) Without limiting the reasons why the AEMC may decide not to a hold a
hearing in relation to a draft Rule determination, the AEMC may decide not to
hold a hearing if—
(a) the person or body that requests the AEMC to hold a hearing does not
make a written submission or comment in accordance with section 100;
and
(b) no other person or body requests the AEMC to hold a hearing.
(3) NEL, section 101(3)—delete the subsection and
substitute:
(3) If the AEMC decides not to hold a hearing after a request under
subsection (2), it must give the person or body that requested the hearing its
reasons, in writing, for declining that person's or body's request.
(4) NEL, section 101(4)—delete "agrees to the request to hold a
hearing under this section" and substitute:
decides to hold a hearing, or agrees to hold a hearing after a request
under subsection (1a)
67—Amendment of
section 102 of the NEL—Final Rule determinations
(1) NEL, section 102(1)—delete the subsection and
substitute:
(1) Subject to section 102A, the AEMC must make a final Rule determination
as to whether to make a proposed Rule.
(1a) Subject to this Part, the AEMC must, within 6 weeks after the period
for written submissions or comments in relation to the draft Rule determination
ends, publish—
(a) the final Rule determination; and
(b) notice of the making of the final Rule determination.
(2) NEL, section 102(2)—delete the subsection and
substitute:
(2) A final Rule determination must contain—
(a) the reasons of the AEMC as to whether or not it should make a Rule,
including—
(i) in the case where the Rule to be made is not a more preferable Rule,
the reasons of the AEMC as to whether it is satisfied the Rule will or is likely
to contribute to the achievement of the national electricity objective;
and
(ii) in the case where the Rule to be made is a more preferable Rule, the
reasons of the AEMC as to whether it is satisfied the more preferable Rule to be
made will or is likely to better contribute to the achievement of the national
electricity objective than the market initiated Rule request to which the more
preferable Rule relates; and
(iii) if the AEMC is required to take into account the form of regulation
factors or the revenue and pricing principles, the reasons of the AEMC taking
those factors or principles (as the case requires) into account; and
(iv) the reasons of the AEMC having regard to any relevant MCE statement
of policy principles; and
(v) the reasons of the AEMC having regard to any other matters the AEMC
considers relevant; and
(b) any other matters that are prescribed by the Regulations.
(3) NEL, section 102(3)—delete "of the final Rule determination" and
substitute:
referred to in subsection (1a)
68—Amendment of
the NEL—New section 102A inserted
NEL—after section 102 insert:
102A—Further draft Rule determination may be made
where proposed Rule is a proposed more preferable Rule
(1) This section applies if the AEMC proposes to make a more preferable
Rule.
(2) Without limiting this Part, the AEMC may take action again under
sections 99 to 101 in respect of the proposed more preferred Rule before making
a final Rule determination in respect of that Rule.
(3) Sections 99 to 101 apply as if, in section 99(1a), for "the date
specified in a notice under section 95" there were substituted "the date of the
previous Rule determination".
69—Amendment of
section 107 of the NEL—Extensions of periods of time in Rule making
procedure
(1) NEL, section 107(1)—delete "in the public interest" and
substitute:
necessary
(2) NEL—after section 107(2) insert:
(2a) A notice under subsection (1) may be published at the same time as a
notice under section 95.
70—Amendment of
the NEL—New section 107A inserted
NEL—after section 107 insert:
107A—AEMC may extend period of time for making of
final Rule determination for further consultation
(1) This section applies if—
(a) a person or body raises an issue in—
(i) a submission or comment in relation to a draft Rule determination;
or
(ii) a hearing held under section 98 or 101; and
(b) the AEMC considers the issue raised by the person or body requires
further public consultation in relation to the proposed Rule or draft Rule
determination.
(2) Despite anything to the contrary in this Part and without limiting
section 107, the AEMC may, by notice, extend the period of time specified in
section 102 within which it must make a final Rule determination.
(3) A notice under subsection (2) must—
(a) be published; and
(b) specify a new period of time to apply in the place of the period of
time specified in section 102; and
(c) specify the issue on which the AEMC requires further public
submissions and comments; and
(d) invite written submissions and comments from any person or body by the
date specified in the notice.
(4) The new period of time must not have the effect of extending the
relevant period of the time specified in section 102 by more than 4
weeks.
(5) The AEMC may only extend the period of time under this section before
the expiry of the time specified in section 102.
(6) Any person or body, within the period specified in a notice under
subsection (2) may make a written submission or comment in relation to the
issue specified in the notice.
71—Amendment of
section 108 of the NEL—AEMC may publish written submissions and comments
unless confidential
NEL, section 108(3)—delete the note at the foot of the subsection and
substitute:
Note—
See also section 31 of this Law and section 24 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia.
72—Amendment of
the NEL—New section 108A inserted
NEL—after section 108 insert:
108A—AEMC must publicly report on Rules not made
within 12 months of public notification of requests
(1) This section applies if the AEMC—
(a) publishes a notice under section 95 in respect of a request for the
making of a Rule; but
(b) does not make a final Rule determination in respect of that request
within 12 months after the publication of that notice (the report trigger
date).
(2) The AEMC must prepare a report on the request as soon as practicable
after the report trigger date.
(3) A report prepared under this section must—
(a) contain the reasons why the final Rule determination has not been made
within 12 months after the publication of the notice under section 95;
and
(b) specify when the AEMC considers it will make the final Rule
determination; and
(c) be published.
73—Amendment of
section 119 of the NEL—Immunity of NEMMCO and network service
providers
NEL, section 119(7), definitions of network service provider
and officer—delete the definitions
74—Amendment of
section 120 of the NEL—Immunity in relation to failure to supply
electricity
NEL, section 120(4)—delete ", network service provider,
officer"
75—Amendment of
section of the NEL—New section 122 and new parts 10 and 11
inserted
NEL—after section 121 insert:
122—Immunity from personal liability of Reliability
Panel
(1) No personal liability attaches to a person appointed to the
Reliability Panel for an act or omission in good faith in the performance or
exercise, or purported performance or exercise of a function or power of the
Reliability Panel under this Law, the Regulations or the Rules.
(2) A liability that would, but for subsection (1), lie against a
person appointed to the Reliability Panel lies instead against the
AEMC.
Part 10—Access Disputes
Division 1—Interpretation and
application
123—Definitions
In this Part—
dispute hearing means a hearing conducted by the AER for the
purpose of making an access determination;
party, in relation to an access dispute, has the meaning
given by section 127.
124—Part does not limit how disputes about access
may be raised or dealt with
This Part is not to be taken to limit how a dispute about access to an
electricity network service may be raised or dealt with.
Division 2—Notification of access
dispute
125—Notification of access
dispute
(1) Subject to this section, if a prospective network service user or
network service user is unable to agree with a network service provider about 1
or more aspects of access to an electricity network service provided by means
of, or in connection with—
(a) a distribution system; or
(b) a transmission system,
owned, controlled or operated by that network service provider, the
prospective network service user, network service user or network service
provider may notify the AER, in writing, that an access dispute
exists.
Note—
Access dispute is defined in section 2A.
(2) A notification must be accompanied by the fee (if any) prescribed by
the Regulations.
(3) On receiving a notification under subsection (1), the AER must
notify, in writing, of the access dispute—
(a) the network service provider, if a prospective network service user or
network service user (as the case requires) notified the AER of the access
dispute under subsection (1);
(b) the prospective network service user or network service user (as the
case requires), if the network service provider notified the AER of the access
dispute under subsection (1).
126—Withdrawal of notification
(1) The person who notified the AER of an access dispute under
section 125(1) may withdraw that notification at any time before the AER
makes an access determination in respect of that access dispute.
(2) The notification must be withdrawn by notice in writing.
(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.
127—Parties to an access
dispute
The parties to an access dispute are—
(a) the person notifying the AER of an access dispute under
section 125(1); and
(b) a person notified by the AER under section 125(3); and
(c) if the AER is of the opinion that the resolution of the access dispute
may involve requiring another person to do something—that other person;
and
(d) any other person who applies in writing to be made a party and is
accepted by the AER as having a sufficient interest.
Division 3—Access
determinations
128—Determination of access
dispute
(1) Unless the AER terminates an access dispute under section 131,
the AER must, subject to this Part and the Rules, make a determination on access
by (as the case requires) the prospective network service user or network
service user.
Note—
A delegate of the AER may make the access determination. See section 17 of
this Law and section 44AAH of the Trade Practices Act 1974 of the
Commonwealth.
(2) In making an access determination the AER must comply with this Part
and the Rules.
(3) An access determination must—
(a) be in writing; and
(b) include a statement of reasons for making the determination;
and
(c) be given to the parties without delay.
(4) An access determination has effect on and from the date specified in
the determination.
129—AER may require parties to mediate, conciliate
or engage in an alternative dispute resolution process
(1) The AER may require the parties, in accordance with the Rules, to
mediate, conciliate or engage in another alternative dispute resolution process
for the purpose of resolving the access dispute.
(2) A party must comply with a requirement under
subsection (1).
130—Access determination must give effect to
network revenue or pricing determination
The AER must, in making an access determination, give effect to a network
revenue or pricing determination—
(a) applying to the electricity network services provided, or to be
provided, that are the subject of the access dispute; and
(b) in effect at the time the determination is made,
(even though that determination may not have been in force when
notification of the access dispute was given).
131—AER may terminate access dispute in certain
cases
(1) The AER may at any time terminate an access dispute (without making an
access determination) if the AER considers that—
(a) the notification of the access dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking
in substance; or
(c) the party who notified the access dispute had, but did not avail
itself of, an opportunity to engage in negotiations in good faith with the other
party before that notification; or
(d) a specified dispute termination circumstance has occurred.
(2) Subject to section 133, the AER may also terminate an access
dispute (without making an access determination) if the AER considers that the
aspect of access about which there is a dispute is expressly or impliedly dealt
with under an agreement between, as the case requires—
(a) the prospective network service user and network service
provider;
(b) the network service user and network service provider.
(3) In this section—
specified dispute termination circumstance means a
circumstance specified by the Rules as being a circumstance, the occurrence of
which, entitles the AER to terminate an access dispute (without making an access
determination).
132—AER must terminate access dispute if there is
genuine competition
Despite anything to the contrary in this Part, the AER must terminate an
access dispute (without making an access determination) if the AER considers
that the electricity network service the subject of the dispute could be
provided on a genuinely competitive basis by a person other than the network
service provider or an associate of the provider.
133—Restrictions on access
determinations
(1) The AER must not make an access determination that—
(a) would have the effect of preventing a network service user obtaining a
sufficient amount of an electricity network service to be able to meet the
network service user's reasonably anticipated requirements, measured at the time
the access dispute was notified; or
(b) subject to subsection (2), is inconsistent with a connection
agreement between the parties to the access dispute.
(2) The AER may make an access determination that is inconsistent with a
connection agreement between the parties to the access dispute if the AER is of
the opinion the connection agreement affects the quality and security of
electricity network service being provided to another person.
(3) In this section—
connection agreement means an agreement between a network
service provider and—
(a) an owner, controller or operator of a generating system about the
connection of that system to a transmission system or distribution system owned,
controlled or operated by the network service provider; or
(b) a person who purchases electricity supplied through a transmission
system or distribution system owned, controlled or operated by the network
service provider about the connection of that person's loads to that
transmission system or distribution system; or
(c) another network service provider about the connection of transmission
systems or distribution systems (as the case requires) owned, controlled or
operated by the providers.
134—Access determination need not require the
provision of an electricity network service
An access determination may, but need not, require a network service
provider to provide an electricity network service to a prospective network
service user.
Division 4—Variation of access
determinations
135—Variation of access
determinations
(1) The AER may vary an access determination on the application of any
party to the determination. However, it cannot vary the final determination if
any other party objects.
Note—
If the parties cannot agree on a variation, a new access dispute can be
notified under section 125.
(2) Section 133 applies to a variation under this section as
if—
(a) an access dispute arising out of the access determination had been
notified when the application was made to the AER for the variation of the
determination; and
(b) the variation were the making of an access determination in the terms
of the varied determination.
Division 5—Compliance with access
determinations
136—Compliance with access
determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
Division 6—Access dispute hearing
procedure
137—Hearing to be in private
(1) Subject to subsection (2), a dispute hearing is to be in
private.
(2) If the parties agree, a dispute hearing or part of a dispute hearing
may be conducted in public.
(3) The AER may give written directions as to the persons who may be
present at a dispute hearing that is conducted in private.
(4) In giving directions under subsection (3), the AER must have
regard to the wishes of the parties and the need for commercial
confidentiality.
138—Right to representation
In a dispute hearing a party may appear in person or be represented by
another person.
139—Procedure of AER
(1) In a dispute hearing the AER—
(a) is not bound by technicalities, legal forms or rules of evidence;
and
(b) must act as speedily as a proper consideration of the access dispute
allows, having regard to the need carefully and quickly to inquire into and
investigate the access dispute and all matters affecting the merits, and fair
settlement, of the access dispute; and
(c) may inform itself about any matter relevant to the access dispute in
any way it thinks appropriate.
(2) The AER may determine the periods that are reasonably necessary for
the fair and adequate presentation of the respective cases of the parties in the
dispute hearing, and may require that the cases be presented within those
periods.
(3) The AER may require evidence or argument to be presented in writing,
and may decide the matters on which the AER will hear oral evidence or
argument.
(4) The AER may determine that a dispute hearing is to be conducted
by—
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
(5) The Rules may make further provision about the procedure for the
conduct of dispute hearings.
140—Particular powers of AER in a
hearing
(1) The AER may do any of the following things for the purpose of
determining an access dispute:
(a) give a direction in the course of, or for the purpose of, a dispute
hearing;
(b) hear and determine the access dispute in the absence of a party who
has been given notice of the dispute hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an independent expert and accept the expert's
report as evidence.
(2) The AER may make an interim determination.
141—Disclosure of information
(1) The AER may give an oral or written order to a person not to divulge
or communicate to anyone else specified information that was given to the person
in the course of an access dispute unless the person has the AER's
permission.
(2) A person must not, without reasonable excuse, refuse or fail to comply
with an order under subsection (1).
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
142—Power to take evidence on oath or
affirmation
(1) The AER may take evidence on oath or affirmation and for that purpose
the AER may administer an oath or affirmation.
(2) The AER may summon a person to appear before the AER
to—
(a) give evidence; or
(b) produce such documents (if any) as are referred to in the summons;
or
(c) give evidence and produce such documents (if any) as are referred to
in the summons.
(3) The powers in this section may be exercised only for the purposes of
hearing and determining an access dispute.
143—Failing to attend as a
witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the AER must not, without reasonable
excuse—
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless
excused, or released from further attendance, by the AER.
Maximum penalty: $2 000.
144—Failing to answer questions
etc
(1) A person appearing as a witness before the AER must not, without
reasonable excuse—
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer by the AER; or
(c) refuse or fail to produce a document that he or she is required to
produce by a summons under this Part served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable excuse for the purposes of subsection (1) for
a natural person to refuse or fail to answer a question or produce a document on
the ground that the answer or the production of the document
might—
(a) tend to incriminate the person; or
(b) expose the person to a criminal penalty.
(3) Subsection (2) does not limit what is a reasonable excuse for the
purposes of subsection (1).
145—Intimidation etc
A person must not—
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another
person,
because that other person—
(c) proposes to produce, or has produced, documents to the AER;
or
(d) proposes to appear, or has appeared, as a witness before the
AER.
Maximum penalty: $2 000.
146—Party may request AER to treat material as
confidential
(1) A party in a dispute hearing may—
(a) inform the AER that, in the party's opinion, a specified part of a
document contains confidential information; and
(b) request the AER not to give a copy of that part to another
party.
(2) On receiving a request, the AER must—
(a) inform the other party or parties that the request has been made and
of the general nature of the matters to which the relevant part of the document
relates; and
(b) ask the other party or parties whether there is any objection to the
AER complying with the request.
(3) If there is an objection to the AER complying with the request, the
party objecting may inform the AER of the objection and of the reasons for
it.
(4) After considering—
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in relation to the
request,
the AER may decide—
(d) not to give the other party or parties a copy of so much of the
document as contains confidential information that the AER thinks should not be
given; or
(e) to give the other party or another specified party a copy of the
whole, or part, of the part of the document that contains confidential
information subject to a condition that the party give an undertaking not to
disclose the information to another person except to the extent specified by the
AER and subject to such other conditions as the AER determines.
147—Costs
(1) Each party is to bear its own costs in a dispute hearing except to the
extent that an order under this section specifies otherwise.
(2) At any time, the AER may order that a party pay all or a specified
part of the costs of another party in a dispute hearing.
(3) The AER may make an order under subsection (2) only if satisfied
that it is fair to do so, having regard to—
(a) whether a party has conducted itself in the dispute hearing in a way
that unnecessarily disadvantaged another party by conduct such
as—
(i) failing to comply with an order or direction of the AER without
reasonable excuse;
(ii) failing to comply with this Law, the Regulations or the
Rules;
(iii) asking for an adjournment as a result of subparagraph (i) or
(ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the AER;
(vi) vexatiously conducting an access dispute;
(b) whether a party has been responsible for prolonging unreasonably the
time taken to complete the dispute hearing;
(c) the relative strengths of the claims made by each of the parties,
including whether a party has made a claim that has no tenable basis in fact or
law;
(d) the nature and complexity of the access dispute;
(e) any other matter the AER considers relevant.
(4) A party to whom an order made under subsection (2) is directed
must comply with the order.
(5) If the AER considers that the representative of a party, rather than
the party, is responsible for conduct described in subsection (3)(a) or
(b), the AER may order that the representative in his or her own capacity
compensate another party for any costs incurred unnecessarily.
(6) Before making an order under subsection (5), the AER must give
the representative a reasonable opportunity to be heard.
(7) A representative of a party to whom an order made under
subsection (5) is directed must comply with the order.
(8) If the AER makes an order for costs before the end of an access
dispute, the AER may require that the order be complied with before it continues
with the proceeding.
(9) If the AER makes an order for costs, the AER may fix the amount of
costs itself.
(10) This section applies to costs incurred by the parties in a dispute
hearing even if the notification of the access dispute to which the dispute
hearing relates is withdrawn.
148—Outstanding costs are a debt due to party
awarded the costs
Costs that are payable under an order under section 147(4) or
(7)—
(a) are a debt due to the party to whom the AER has ordered that they be
paid; and
(b) may be recovered by that party in a court of competent
jurisdiction.
Division 7—Joint access dispute
hearings
149—Definition
In this Division—
nominated dispute has the meaning given by
section 150(2).
150—Joint dispute hearing
(1) This section applies if—
(a) the AER is conducting 2 or more dispute hearings at a particular time;
and
(b) 1 or more matters are common to the access disputes in relation to
which the dispute hearings are being conducted.
(2) The AER may, by notice in writing, decide that it will hold a joint
dispute hearing in respect of such of those access disputes (the nominated
disputes) as are specified in the notice.
(3) The AER may do so only if it considers this would be likely to result
in the nominated disputes being resolved in a more efficient and timely
manner.
151—Consulting the parties
(1) Before making a decision under section 150(2), the AER must give
each party to each nominated dispute a notice in writing—
(a) specifying what the AER is proposing to do; and
(b) inviting the party to make a written submission on the proposal to the
AER within 10 business days after the notice is given.
(2) The AER must have regard to any submission so made in deciding whether
to do so. The AER may have regard to any other matter it considers
relevant.
152—Constitution and procedure of AER for joint
dispute hearings
Division 6 applies to the joint dispute hearing in a corresponding way to
the way in which it applies to a particular dispute hearing.
153—Record of proceedings etc
(1) The AER as constituted for the purposes of the joint dispute hearing
may have regard to any record of the proceedings of the dispute of any nominated
dispute.
(2) The AER as constituted for the purposes of the dispute hearing of each
nominated dispute may, for the purposes of making an access determination in
relation to the access dispute to which that hearing relates—
(a) have regard to any record of the proceedings of the joint dispute
hearing; and
(b) adopt any findings of fact made by the AER as constituted for the
purposes of the joint dispute hearing.
Division 8—Miscellaneous
matters
154—Correction of access determinations for
clerical mistakes etc
If an access determination contains—
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the
description of any person, thing or matter referred to in the determination;
or
(d) a defect in form,
the AER may correct the access determination.
155—Subsequent network service provider bound by
access determinations
(1) An access determination applies to every subsequent network service
provider as if that subsequent network service provider were a party to the
access dispute in respect of which the access determination was made.
(2) In this section—
subsequent network service provider means a network service
provider (other than the network service provider to whom the access
determination applies) who provides electricity network services by means of, or
in connection with, the distribution system or transmission system used to
provide the electricity network services—
(a) the subject of the access dispute; and
(b) in respect of which the access determination was made.
156—Regulations about the charges to be paid by
parties to access dispute for AER's costs in dispute
hearing
The Regulations may provide for the AER to—
(a) charge the parties to an access dispute for its costs in the access
dispute; and
(b) apportion those costs between the parties.
Part 11—General
157—Preventing or hindering
access
(1) A person who is—
(a) a regulated network service provider; or
(b) a person who—
(i) is a party to an agreement with a regulated network service provider
relating to a regulated network service; or
(ii) as a result of an access determination is entitled to a regulated
network service; or
(c) an associate of a regulated network service provider or a person
referred to in paragraph (b),
must not engage in conduct for the purpose of preventing or hindering the
access of another person to a regulated network service.
(2) For the purposes of subsection (1), a person is deemed to engage
in conduct for a particular purpose if—
(a) the conduct is or was engaged in for that purpose or for a purpose
that includes, or included, that purpose; and
(b) that purpose is or was a substantial purpose.
(3) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has been
considered, the existence of that purpose is ascertainable only by inference
from the conduct of the person or of any other person or from other relevant
circumstances.
(4) Subsection (3) does not limit the manner in which the purpose of
a person may be established for the purpose of subsection (1).
(5) In this section—
(a) a reference to engaging in conduct is a reference to doing or refusing
to do any act, including refusing to supply a regulated network service or,
without reasonable grounds, limiting or disrupting a regulated network service,
or making, or giving effect to, a provision of, a contract or arrangement,
arriving at, or giving effect to, a provision of, an understanding or requiring
the giving of, or giving, a covenant;
(b) a reference to refusing to do an act includes a reference
to—
(i) refraining (otherwise than inadvertently) from doing that act;
or
(ii) making it known that that act will not be done.
(6) In this section—
regulated network service means a direct control network
service or a negotiated network service.
(7) Subsection (1) does not apply to conduct engaged in in accordance
with an agreement, if the agreement was in force on 30 March 1995.
Example—
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
regulated network service to a network service user or prospective network
service user for technical or safety reasons without reasonable
grounds.
158—Failure to make a decision under this Law or
the Rules within time does not invalidate the decision
(1) A decision (however described) made under this Law or the Rules by the
AER, AEMC or NEMMCO after the expiry of the period of time specified by this Law
or the Rules for the making of that decision is not to be taken to be an invalid
decision only because the decision is not made within the specified period of
time.
(2) A decision to which subsection (1) applies takes effect on and
from—
(a) the day it is made; or
(b) if it specifies a date for operation or effect that is after the day
it is made, that specified date.
76—Amendment of
Schedule 1 to the NEL
(1) Schedule 1 to the NEL—after item 14 insert:
14A The treatment of parts of a transmission system as
forming part of a distribution system for the purposes of making a network
revenue or pricing determination.
14B The treatment of parts of a distribution system as
forming part of a transmission system for the purposes of making a network
revenue or pricing determination.
(2) Schedule 1 to the NEL, item 16—delete ", and the methodology for
the determination of those prices"
(3) Schedule 1 to the NEL, item 17—after "power" insert:
relating to the making of a transmission determination
(4) Schedule 1 to the NEL—delete items 19 and 20 and
substitute:
19 The economic framework, mechanisms or methodologies to
be applied by the AER for the purposes of item 18.
20 The economic framework, mechanisms or methodologies to
be applied or determined by the AER for the purposes of items 15 and 16
including (without limitation) the economic framework, mechanisms or
methodologies to be applied or determined by the AER for the derivation of the
revenue (whether maximum allowable revenue or otherwise) or prices to be applied
by the AER in making a transmission determination.
(5) Schedule 1 to the NEL—delete item 22 and substitute:
22 The determination by the AER, for the purpose of
making a transmission determination with respect to services that are the
subject of such a determination, of allowances for—
(a) depreciation; and
(b) operating costs of a regulated transmission system operator;
and
(c) if the regulated transmission system operator is a corporation or
other body corporate—
(i) the income tax payable by corporations; or
(ii) amounts payable under a law of this jurisdiction or otherwise that
are equivalent to income tax that would be payable by the operator if that
operator were liable to pay income tax; and
(d) a rate of return on assets forming part of a transmission system
owned, controlled or operated by a regulated transmission system
operator.
(6) Schedule 1 to the NEL, item 21—delete "valuation" and
insert:
regulatory asset base
(7) Schedule 1 to the NEL, item 23—after "decisions"
insert:
including, where applicable, service performance incentive
schemes
(8) Schedule 1 to the NEL—before item 24(a) insert:
(aa) the submission to the AER, by a regulated transmission system
operator, of a proposal relating to the revenues or prices to be regulated by a
transmission determination applying to the operator; and
(9) Schedule 1 to the NEL, item 24(b)—delete "and by affected
Registered participants (within the meaning of section 16(3))"
(10) Schedule 1 to the NEL, items 25 and 26—delete the items and
substitute:
25 The regulation of
revenues earned or that may be earned by owners, controllers or operators of
distribution systems from the provision by them of services that are the subject
of a distribution determination.
26 The regulation of
prices (including the tariffs and classes of tariffs) charged or that may be
charged by owners, controllers or operators of distribution systems for the
provision by them of services that are the subject of a distribution
determination.
26A Principles to be applied, and procedures to be
followed, by the AER in exercising or performing an AER economic regulatory
function or power relating to the making of a distribution
determination.
26B The assessment, or
treatment, by the AER, of investment in distribution systems for the purposes of
making a distribution determination.
26C The economic framework, mechanisms or methodologies
to be applied by the AER for the purposes of item 26B.
26D The economic framework, mechanisms or methodologies
to be applied or determined by the AER for the purposes of items 25 and 26
including (without limitation) the economic framework, mechanisms or
methodologies to be applied or determined by the AER for the derivation of the
revenue (whether maximum allowable revenue or otherwise) or prices to be applied
by the AER in making a distribution determination.
26E The regulatory asset base, for the purposes of making
a distribution determination, of assets forming part of a distribution system
owned, controlled or operated by a regulated distribution system operator, and
of proposed new assets to form part of a distribution system owned, controlled
or operated by a regulated distribution system operator, that are, or are to be,
used in the provision of services that are the subject of a distribution
determination.
26F The determination by the AER, for the purpose of
making a distribution determination with respect to services that are the
subject of such a determination, of allowances for—
(a) depreciation; and
(b) operating costs of a regulated distribution system operator;
and
(c) if the regulated distribution system operator is a corporation or
other body corporate—
(i) the income tax payable by corporations; or
(ii) amounts payable under a law of this jurisdiction or otherwise that
are equivalent to income tax that would be payable by the operator if that
operator were liable to pay income tax; and
(d) a rate of return on assets forming part of a distribution system
owned, controlled or operated by a regulated distribution system
operator.
26G Incentives for regulated distribution system
operators to make efficient operating and investment decisions including, where
applicable, service performance incentive schemes.
26H The procedure for the making of a distribution
determination by the AER, including—
(a) the submission to the AER, by a regulated distribution system
operator, of a proposal relating to the revenues or prices to be regulated by a
distribution determination applying to the operator; and
(b) the publication of notices by the AER; and
(c) the making of submissions, including by the regulated distribution
system operator to whom the distribution determination will apply; and
(d) the publication of draft and final determinations and the giving of
reasons; and
(e) the holding of pre-determination conferences.
Regulatory economic methodologies
26I The regulatory economic methodologies (including the
use of the methodology known as the "building block approach") to be applied by
the AER in—
(a) making a distribution determination or transmission determination;
or
(b) amending a distribution determination or transmission determination;
or
(c) making an access determination.
26J The methodology known as "total factor
productivity"—
(a) as a regulatory economic methodology to be applied by the AER for the
purpose of—
(i) making a distribution determination or transmission determination;
or
(ii) amending a distribution determination or transmission determination;
or
(iii) making an access determination;
(b) as an economic regulatory tool to inform and assist the AER in
applying, or analysing the application of the regulatory economic methodology
known as the "building block approach" by the AER for the purpose
of—
(i) making a distribution determination or transmission determination;
or
(ii) amending a distribution determination or transmission determination;
or
(iii) making an access determination.
Electricity network services
26K Terms and conditions for the provision of electricity
network services.
(11) Schedule 1 to the NEL—after item 30 insert:
Access disputes
30A Specification of disputes as access disputes for the
purposes of Part 10.
30B Notification of access disputes for the purposes of
Part 10.
30C Matters or things to be considered or applied by the
AER in making an access determination.
30D Procedure for the hearing of an access dispute under
Part 10.
(12) Schedule 1 to the NEL—after item 34 insert:
34A Specification and classification of electricity
network services as direct control network services or negotiated network
services.
34B Reporting and disclosing information to the
AER.
(a) on the making of a general regulatory information order;
(b) before the preparation of a network service provider performance
report.
77—Amendment of
Schedule 2 to the NEL—Clause 1
Schedule 2 to the NEL, clause 1(2)—delete "32, 33," and
substitute:
7, 12, 15, 17, 19, 23 to 26 and 31 to
78—Amendment of
Schedule 2 to the NEL—Clause 2
Schedule 2 to the NEL—delete clause 2(2) to (5) and
substitute:
(2) If a provision of this Law, or the application of a provision of this
Law to a person, subject matter or circumstance, would, but for this clause, be
construed as being in excess of the legislative power of the Legislature of this
jurisdiction—
(a) it is a valid provision to the extent to which it is not in excess of
the power; and
(b) the remainder of this Law, and the application of the provision to
other persons, subject matters or circumstances, is not affected.
(3) Without limiting subclause (2), this Law is not to be construed
as imposing any duty on the Tribunal or AER to perform a function or exercise a
power if the imposition of the duty would be in excess of the legislative power
of the Legislature of this jurisdiction.
Note—
The term "function" is defined in clause 10 to include "duty".
(4) In particular, if a provision of this Law appears to impose a duty on
the Tribunal or AER to perform a function or exercise a power in matters or
circumstances in which the assumption of the duty cannot be validly authorised
under the law of the Commonwealth, or is otherwise ineffective, the provision is
to be construed as if its operation were expressly confined to—
(a) acts or omissions of corporations to which section 51(xx) of the
Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the course of, or in relation to,
trade or commerce between this jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or in relation to
things outside Australia.
(5) This clause does not limit the effect that a provision of this Law
would validly have apart from this clause.
79—Amendment of
Schedule 2 to the NEL—Clause 4
Schedule 2 to the NEL—after clause 4(4) insert:
(5) An example (being an example at the foot of a provision of this Law
under the heading "Example" or "Examples") does not form part of this
Law.
80—Amendment of
Schedule 2 to the NEL—Clause 8
(1) Schedule 2 to the NEL, clause 8(1)—delete the definition of
extrinsic material and substitute:
Law extrinsic material means relevant material not forming
part of this Law, including, for example—
(a) material that is set out in the document containing the text of this
Law as printed by authority of the Government Printer of South Australia;
and
(b) a relevant report of a committee of the Legislative Council or House
of Assembly of South Australia that was made to the Legislative Council or House
of Assembly of South Australia before the provision was enacted; and
(c) an explanatory note or memorandum relating to the Bill that contained
the provision, or any relevant document, that was laid before, or given to the
members of, the Legislative Council or House of Assembly of South Australia by
the member bringing in the Bill before the provision was enacted; and
(d) the speech made to the Legislative Council or House of Assembly of
South Australia by the member in moving a motion that the Bill be read a second
time; and
(e) material in the Votes and Proceedings of the Legislative Council or
House of Assembly of South Australia or in any official record of debates in the
Legislative Council or House of Assembly of South Australia; and
(f) a document that is declared by the Regulations to be a relevant
document for the purposes of this clause;
(2) Schedule 2 to the NEL, clause 8(1), definition of ordinary
meaning delete "Law." and substitute:
Law;
(3) Schedule 2 to the NEL, clause 8(1)—after the definition of
ordinary meaning insert:
Rule extrinsic material means—
(a) a draft Rule determination; or
(b) a final Rule determination; or
(c) any document (however described)—
(i) relied on by the AEMC in making a draft Rule determination or final
Rule determination; or
(ii) adopted by the AEMC in making a draft Rule determination or final
Rule determination.
(4) Schedule 2 to the NEL, clause 8(2)—delete extrinsic
material and insert:
Law extrinsic material
(5) Schedule 2 to the NEL—after clause 8(2) insert:
(2a) Subject to subclause (3), in the interpretation of a provision of the
Rules, consideration may be given to Law extrinsic material or Rules extrinsic
material capable of assisting in the interpretation—
(a) if the provision is ambiguous or obscure, to provide an interpretation
of it; or
(b) if the ordinary meaning of the provision leads to a result that is
manifestly absurd or is unreasonable, to provide an interpretation that avoids
such a result; or
(c) in any other case, to confirm the interpretation conveyed by the
ordinary meaning of the provision.
(6) Schedule 2 to the NEL, clause 8(3)—delete "extrinsic material"
(where twice occurring) and insert:
Law extrinsic material or Rule extrinsic material
81—Amendment of
Schedule 2 to the NEL—Clause 10
(1) Schedule 2 to the NEL, clause 10, definition of business
day, paragraph (b) of the definition—after "jurisdictions"
insert:
(except the Commonwealth)
(2) Schedule 2 to the NEL, clause 10, definition of
make—delete the definition and substitute:
make includes—
(a) issue or grant; and
(b) revoke and substitute;
82—Amendment of
Schedule 2 to the NEL—New Parts 6A and 6B of Schedule 2
inserted
Schedule 2 to the NEL—after clause 30 insert:
Part 6A—Evidentiary matters
Division 1—Publication on
websites
31AA—Definitions
In this Division—
relevant AER decision means a decision (however described) or
determination (however described) of the AER under this Law or the
Rules;
relevant notice means a notice under the Rules calling for
submissions or comments in relation to a relevant decision.
31AB—Publication of relevant AER decisions on
websites
(1) For the purposes of this Law, a relevant AER decision or relevant
notice that is required by this Law or the Rules to be published on a website is
to be taken to be published on the website if—
(a) the relevant AER decision or relevant notice is made accessible in
full on the website; or
(b) notice of the making or publication of the AER relevant decision or
relevant notice is made accessible on that website and the relevant AER decision
or relevant notice is made accessible separately in full on that website or in
any other identified location.
(2) The date on which the relevant AER decision or relevant notice is
published on the website is the date notified by the AER on the website as the
date of the relevant AER decision's or relevant notice's publication (being not
earlier than the date on which it was first made so accessible).
Division 2—Evidentiary
certificates
31AC—Definitions
In this Division—
acting SES employee has the same meaning as in section 17AA
of the Acts Interpretation Act 1901 of the Commonwealth;
AEMC chief executive means the chief executive of the AEMC
appointed under section 16 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia;
AEMC Commissioner means a Commissioner within the meaning of
the Australian Energy Market Commission Establishment Act 2004 of
South Australia;
AER member has the same meaning as in the Trade Practices
Act 1974 of the Commonwealth;
relevant notice has the same meaning as in clause
31AA;
SES employee has the same meaning as in section 17AA of the
Acts Interpretation Act 1901 of the Commonwealth.
31AD—Evidentiary
certificates—AER
In any proceedings under this Law, a certificate signed or purported to be
signed by an AER member, or an SES employee or acting SES employee assisting the
AER as mentioned in section 44AAC of the Trade Practices Act 1974 of the
Commonwealth, stating any of the following matters is evidence of the
matter:
(a) a stated document is 1 of the following things made, issued,
developed, prepared, promulgated, served, sent, delivered or given under this
Law or the Rules:
(i) a decision (however described) or determination (however
described);
(ii) an authorisation under section 20;
(iii) a general regulatory information order;
(iv) a notice, notification, direction or requirement;
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day, a person was or was not—
(i) given a decision (however described), or determination (however
described);
(ii) authorised as an authorised person (within the meaning of section
19);
(iii) served a notice under section 28 or a regulatory information
notice;
(iv) notified under section 28J;
(d) on a stated day any of the following were published on the AER's
website:
(i) a decision (however described) or determination (however
described);
(ii) a general regulatory information order;
(iii) a relevant notice.
31AE—Evidentiary
certificates—AEMC
In any proceedings under this Law, a certificate signed or purported to be
signed by a Commissioner or the AEMC chief executive, stating any of the
following matters is evidence of the matter:
(a) a stated document is 1 of the following things made, issued,
developed, prepared, promulgated, served, sent, delivered or given under this
Law or the Rules:
(i) a decision (however described); or
(ii) a determination (however described);
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day a person was or was not given a decision (however
described) or determination (however described);
(d) on a stated day a relevant notice was published on the AEMC's
website.
31AF—Evidentiary
certificates—NEMMCO
In any proceedings under this Law, a certificate signed or purported to be
signed by the chief executive officer of NEMMCO, stating any of the following
matters is evidence of the matter:
(a) a stated document is 1 of the following things made, issued,
developed, prepared, promulgated, served, sent, delivered or given under this
Law or the Rules:
(i) a decision (however described); or
(ii) a determination (however described);
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day a person was or was not given a decision (however
described) or determination (however described);
(d) on a stated day a relevant notice was published on NEMMCO's
website.
Note—
There is no clause 31AG.
Part 6B—Commencement of this Law and Statutory
instruments
31AH—Time of commencement of this Law or a
provision of this Law
If a provision of an Act of South Australia provides that this Law or a
provision of this Law shall commence, or be deemed to have commenced, on a
particular day, it shall commence, or be deemed to have commenced, at the
beginning of that day.
31AI—Time of commencement of a
Rule
(1) If a Rule provides that the Rule shall commence on a particular day,
it shall commence at the beginning of that day.
(2) If a provision of an Act of South Australia provides that a Rule is
deemed to have commenced on a particular day, the Rule shall be deemed to have
commenced at the beginning of that day.
(3) If a notice published in the South Australian Government Gazette under
Division 2 of Part 7 or section 104 provides that a Rule shall
commence on a particular day, the Rule shall commence at the beginning of that
day.
83—Amendment of
Schedule 2 to the NEL—Clause 39
Schedule 2 to the NEL—delete clause 39(3) and substitute:
(3) The Court must not make a declaration that a person is in breach of a
provision of this Law, the Regulations or the Rules that is not an offence
provision if the person has been convicted of an offence constituted by conduct
that is substantially the same as the conduct constituting the breach.
(4) Proceedings for a declaration referred to in subclause (3) are
stayed if—
(a) criminal proceedings are commenced or have already been commenced
against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the breach.
(5) The proceedings for the declaration referred to in subclause (3)
may be resumed if the person is not convicted of the offence. Otherwise, the
proceedings for the declaration must be dismissed.
(6) In this clause—
civil penalty provision has the same meaning as in section
58.
84—Amendment of
Schedule 2 to the NEL—Clause 41
Schedule 2 to the NEL—after clause 41(2) insert:
(3) In this clause—
statutory instrument includes the Regulations or the
Rules.
85—Amendment of
Schedule 2 to the NEL—Clause 42
Schedule 2 to the NEL—delete clause 42(2) to (5) and
substitute:
(2) If a provision of the National Electricity Rules, or the application
of a provision of the National Electricity Rules to a person, subject matter or
circumstance, would, but for this clause, be construed as being in excess of the
legislative power of the Legislature of this jurisdiction or the power conferred
by this Law under which it is made—
(a) it is a valid provision to the extent to which it is not in excess of
the power; and
(b) the remainder of the National Electricity Rules, and the application
of the provision to other persons, subject matters or circumstances, is not
affected.
(3) Without limiting subclause (2), the National Electricity Rules
are not to be construed as imposing any duty on the Tribunal or AER to perform a
function or exercise a power if the imposition of the duty would be in excess of
the legislative power of the Legislature of this jurisdiction.
Note—
The term "function" is defined in clause 10 to include "duty".
(4) In particular, if a provision of the National Electricity Rules
appears to impose a duty on the Tribunal or AER to perform a function or
exercise a power in matters or circumstances in which the assumption of the duty
cannot be validly authorised under the law of the Commonwealth, or is otherwise
ineffective, the provision is to be construed as if its operation were expressly
confined to—
(a) acts or omissions of corporations to which section 51(xx) of the
Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the course of, or in relation to,
trade or commerce between this jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or in relation to
things outside Australia.
(5) This clause does not limit the effect that a provision of the National
Electricity Rules, or the provision of this Law under which it is made, would
validly have apart from this clause.
86—Amendment of
Schedule 3 to the NEL—Clause 1
Schedule 3 to the NEL, clause 1—after the definition of
NECA insert:
new commencement day means the day on which section 88 of the
National Electricity (South Australia) (National Electricity
Law—Miscellaneous Amendments) Amendment Act 2007 of South Australia
comes into operation;
87—Amendment of
Schedule 3 to the NEL—New clause 4A inserted
Schedule 3 to the NEL—after clause 4 insert:
4A—Transitional arrangements relating additional
Minister initiated Rules
(1) This clause applies if the AEMC receives a request under
section 91(1) for the making of a Rule that relates to a Rule that will be
amended or revoked by an additional Minister initiated Rule before all of the
additional Minister initiated Rules have come into operation.
(2) Despite anything to contrary in this Law, the AEMC
may—
(a) if the request relates to a Rule that will be revoked by an additional
Minister initiated Rule—refuse to take action under Part 7 of this Law in
respect of that request; or
(b) if the request relates to a Rule that will be amended by an additional
Minister initiated Rule—treat the request as a request for the making of a
Rule that relates to the additional Minister initiated Rule.
(3) If the AEMC decides to act under this clause, the AEMC must, as soon
as practicable after making the decision—
(a) inform the person or body that made the request of its decision;
and
(b) give that person, reasons in writing, for that decision.
(4) Despite anything to the contrary in this Law, a request for a Rule in
respect of which the AEMC has decided to refuse to take action under Part 7 of
this Law must, on the date of that decision, be taken to have never been
made.
88—Amendment of
Schedule 3 to the NEL—New clauses 10A and 10B
inserted
Schedule 3 to the NEL—after clause 10 insert:
10A—AER may conduct investigations into breaches or
possible breaches of NEL not investigated by NECA
(1) Despite anything to the contrary in this Schedule, the AER may, on and
from the new commencement day, conduct an investigation into a breach or
possible breach of the National Electricity Code.
(2) In conducting an investigation referred to in subclause (1), the
AER has all the functions, and may exercise all the powers, NECA had under the
old National Electricity Law and National Electricity Code to conduct an
investigation into a breach or possible breach of the National Electricity
Code.
10B—AER may bring proceedings in relation to
breaches of National Electricity Code in the Court
(1) In this clause—
AER breach investigation means an investigation conducted and
completed by the AER in accordance with clause 10 or 10A.
(2) On and from the new commencement day, the AER may bring proceedings in
the Court in respect of an AER breach investigation.
(3) Despite anything to the contrary in clause 2, for the purposes this
clause, sections 17(1)(b) and 44 of the old National Electricity Law apply to a
proceeding under this clause as if—
(a) a reference to the Tribunal were a reference to the Court;
and
(b) a reference to NECA were a reference to the AER.
89—Amendment of
Schedule 3 to the NEL—New clause 18 inserted
Schedule 3 to the NEL—after clause 17 insert:
18—Operation and effect of Rule 6A.21.2 of the
National Electricity Rules
Rule 6A.21.2 of the National Electricity Rules is deemed to have the same
force and effect as it would have had if, at the time the Rule was made, section
34(3)(e) (as amended by section 28(2) of the National Electricity (South
Australia) (National Electricity Law—Miscellaneous Amendments) Amendment
Act 2007 of South Australia) were in force.
Part 3—Amendment
of National Electricity (South Australia)
Act 1996 to make consequential amendments
90—Amendment of
section 12—Specific regulation-making power
(1) Section 12(1)—delete subsection (1) and substitute:
(1) Without limiting the generality of section 11, the regulations may
deal with matters of a transitional nature—
(a) relating to the transition from the application of provisions of the
old National Electricity Law to the application of provisions of the new
National Electricity Law; or
(b) on account of any amendments made from time to time to the new
National Electricity Law.
(2) Section 12(2)—after "subsection (1)" insert:
(a)
(3) Section 12—after subsection (2) insert:
(2a) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1)(b) may be expressed to take effect from
a time that is earlier than the beginning of the day on which the regulations
containing the provision are made, not being a time earlier than the
commencement of the relevant amendment.
(4) Section 12(3)(a)—delete "NECA,"
(5) Section 12(3)(b)—delete "NECA,"
(6) Section 12(4), definition of NECA—delete the
definition
After section 14 insert:
15—Conferral of functions and powers on
Commonwealth bodies
(1) Clause 2 of Schedule 2 of the National Electricity Law will have
effect in relation to the operation of any provision of this Act, or any
regulation made under this Act, as if the provision or regulation formed part of
the National Electricity Law.
(2) Subsection (1) does not limit the effect that a provision or
regulation would validly have apart from the subsection.
Part 4—Amendment
of National Electricity (South Australia)
Act 1996 to address local issues
After Part 5 insert:
Part 6—Transfer of economic regulation of
electricity distribution to AER—local provisions
16—Interpretation
(1) In this Part, unless the contrary intention appears—
EPO means the Electricity Pricing Order made by the Treasurer
under section 35B of the Electricity Act 1996 on
11 October 1999, as varied from time to time under that Act;
ESCoSA means the Essential Services Commission established
under the Essential Services Commission Act 2002;
ESCoSA distribution determination means the 2005-2010
Electricity Distribution Price Determination made by ESCoSA in April 2005, as
varied from time to time;
ETSA Utilities has the same meaning as in the EPO;
National Electricity Law means the National Electricity Law
set out in the Schedule to this Act as in force from time to time;
NEC means the National Electricity Code;
network services has the same meaning as in the
Electricity Act 1996;
relevant Amendment Act means the National Electricity
(South Australia) (National Electricity Law—Miscellaneous Amendments)
Amendment Act 2007;
relevant day means the day on which the relevant Amendment
Act comes into operation;
small customer has the same meaning as in the Electricity
Act 1996.
(2) A reference in this Part to the National Electricity Law includes a
reference to the old National Electricity Law.
17—Provision of information and assistance by
ESCoSA
(1) Despite any other Act or law, ESCoSA is authorised, on its own
initiative or at the request of the AER—
(a) to provide the AER with such information (including information given
in confidence) in the possession or control of ESCoSA that is reasonably
required by the AER for the purposes of this Part or the National Electricity
Law; and
(b) to provide the AER with such other assistance as is reasonably
required by the AER to perform or exercise a function or power under this Part
or the National Electricity Law.
(2) Despite any other Act or law, ESCoSA may authorise the AER to disclose
information provided under subsection (1) even if the information was given
to ESCoSA in confidence.
(3) Nothing done, or authorised to be done, by ESCoSA in acting under
subsection (1) or (2)—
(a) constitutes a breach of, or default under, an Act or other law;
or
(b) constitutes a breach of, or default under, a contract, agreement,
understanding or undertaking; or
(c) constitutes a breach of a duty of confidence (whether arising by
contract, in equity or by custom) or in any other way; or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation or fulfils any condition that
allows a person to terminate an agreement or obligation, or gives rise to any
other right or remedy; or
(f) releases a surety or any other obligee wholly or in part from an
obligation.
18—Price determinations
(1) The ESCoSA distribution determination continues in operation for the
purposes of the law of the State despite the amendments to the National
Electricity (South Australia) Law effected by the relevant Amendment Act until
the end of the regulatory period specified by that determination.
(2) ESCoSA—
(a) will continue to be responsible for the operation, administration and
enforcement of the ESCoSA distribution determination; and
(b) will cease to be responsible to make a further distribution
determination in respect of ETSA Utilities from the relevant day.
(3) In connection with the operation of subsections (1) and (2)(a),
the National Electricity Law, the Rules, the NEC and the EPO, as in force from
time to time before the commencement of this subsection, will be taken to
continue to apply with respect to the ESCoSA distribution determination (and the
amendments effected by the relevant Amendment Act will be
disregarded).
(4) On or after the relevant day, the AER must, when acting under the
National Electricity (South Australia) Law—
(a) comply with the requirements under subsection (5); and
(b) give effect to the provisions of the EPO (as in force from time to
time).
(5) The requirements under this subsection are as follows:
(a) the AER must, in making a distribution determination or approving a
pricing proposal for the purposes of the Rules, ensure that the prices charged
to small customers for network services in relation to distribution services in
the State are not subject to variation on the basis of location;
(b) the AER must only approve a distribution loss factor that has been
calculated for the purposes of the Rules by ETSA Utilities if the distribution
loss factor—
(i) has been calculated on a State-wide basis by reference to voltage
level and proximity of a customer's metering point to a transformer;
and
(ii) is not related to the relative length of a distribution line involved
in supplying electricity to the customer;
(c) the AER must determine any transmission loss factor using a single
virtual transmission node for small customers that has been calculated for the
purposes of the Rules by the holder of a licence under the Electricity
Act 1996 authorising the operation of a transmission network on a
State-wide basis;
(d) the AER must ensure that any method of allocation agreed with ETSA
Utilities in relation to transmission use of system costs paid by ETSA Utilities
requires the allocation of those costs to ETSA Utilities' small customers on a
State-wide basis that ensures that the rates charged with respect to all such
small customers are not subject to variation on the basis of location.
(6) In connection with the operation of subsections (4) and
(5)—
(a) the EPO will be taken to continue to apply as if the AER were the
Regulator under the EPO; and
(b) for the avoidance of doubt, in the event of an inconsistency between
the operation or effect of subsection (5) and the EPO, subsection (5)
prevails.
(7) Subsections (4), (5) and (6) apply until the EPO is varied or
revoked so that it no longer applies to distribution determinations.
(8) This section applies despite any provision to the contrary in the
National Electricity Law or the Rules (and, to the extent of any inconsistency
between such a provision and the operation or effect of this section, this
section prevails).