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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
National Energy Retail Law (South Australia)
(Implementation) Amendment Bill 2012
A BILL FOR
An Act to amend the National
Energy Retail Law (South Australia) Act 2011.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of National Energy
Retail Law (South Australia) Act 2011
4Insertion of Parts
5, 6 and 7
Part 5—Implementation of national law in
South Australia
Division
1—Preliminary
15Preliminary
Division 2—Application of
law—electricity
16Application of
law—electricity
Division 3—South Australian
arrangements
17Consumption
thresholds
18Standing offer
prices
19Small market
offer customers
20Price
comparator
21Retailer
of last resort scheme
22Small compensation claims
regime
23Minimum
standards of service for customers
24Late payment fees
25Immunity in relation to failure to supply
electricity
Division
4—Miscellaneous
26Application of Essential Services Commission
Act 2002
27Delegation by
Minister
28Extension
of AER functions and powers
29Regulations
Part 6—Validation of instruments and
decisions of AER—energy retail laws
30Validation of instruments and decisions made by
AER
31AER—authorisation of preparatory
steps
Part 7—Transitional
provisions
32Interpretation
33Conditions—exempt
entities
34Customer
contracts—electricity
35Customer connection
contracts—electricity
36Customer
contracts—gas
37Customer connection
contracts—gas
38Complaints and dispute
resolution
39Provision of information and assistance by
Commission
40Transitional regulation-making
power
Part 3—Amendment of National Energy
Retail Law
5Amendment of section 76—Formation of
deemed AER approved standard connection contract
6Substitution of
section 88
88Requirement for
authorisation or exemption
7Amendment of
section 89—Applications
8Insertion of
section 96A
96ARetailer
authorisation may be held jointly
9Insertion of
section 104A
104AChange
in legal structures
10Amendment of section 107—Power
to revoke retailer authorisation
11Amendment of
section 132—Designation of registered RoLR for RoLR event
12Amendment of section 136—Issue of
RoLR notice
13Amendment of
section 139—Publication requirements for RoLR events
14Amendment of section 187—Making of
claims
15Amendment of section 204—Functions
and powers of AER (including delegations)
16Amendment of
section 206—Power to obtain information and documents
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Energy Retail Law (South
Australia) (Implementation) Amendment Act 2012.
(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—
(a) a provision in Part 2 amends the National
Energy Retail Law (South Australia) Act 2011; and
(b) a provision in Part 3 amends the National Energy Retail
Law set out in the Schedule to the
National
Energy Retail Law (South Australia) Act 2011.
Part 2—Amendment
of National Energy Retail Law (South Australia)
Act 2011
4—Insertion
of Parts 5, 6 and 7
After Part 4 insert:
Part 5—Implementation of national law in South
Australia
Division 1—Preliminary
15—Preliminary
(1) In this Part—
Commission means the Essential Services Commission
established under the
Essential
Services Commission Act 2002.
(2) Part 2 applies subject to the operation of this Part.
Division 2—Application of
law—electricity
16—Application of
law—electricity
Insofar as the National Energy Retail Law applies to electricity,
the
National
Energy Retail Law (South Australia)—
(a) will only apply in relation to the sale of electricity to customers
whose premises are connected, or to be connected, to the interconnected national
electricity system within the meaning of the NEL; and
(b) will not apply in relation to any area prescribed by the regulations
for the purposes of this paragraph.
Division 3—South Australian
arrangements
17—Consumption thresholds
(1) Despite
section 6 of the National
Energy Retail Law (South Australia), the Governor may, by regulation
made under this section for the purposes of the consumption thresholds referred
to in section 5 of that Law—
(a) determine or make provision for determining the upper consumption
thresholds and lower consumption thresholds for business customers;
and
(b) prescribe a procedure for reviewing consumption thresholds so
determined.
(2) In connection with the operation of
subsection (1)—
(a) without limitation, a regulation made for the purposes of that
subsection may differ in its application to different classes of business
customers or different regulatory requirements, or both; and
(b) a regulation made for the purposes of that subsection will apply to
the exclusion of any inconsistent provision made by the National Regulations
under section 6 of the National Energy Retail Law; and
(c) the National Energy Retail Rules, insofar as they apply as part
of the law of South Australia, are modified to the extent necessary to give
effect to a regulation made for the purposes of that subsection.
18—Standing offer prices
(1) For the
purposes of the National
Energy Retail Law (South Australia), a designated retailer will be taken
to include—
(a) in relation to the provision of electricity—an entity or
entities prescribed by the regulations for the purposes of this paragraph;
and
(b) in relation to the provision of gas—an entity or entities
prescribed by the regulations for the purposes of this paragraph.
(2) Section 11
of the National Energy Retail Law will not apply in this
jurisdiction.
(3) Section 22
of the National
Energy Retail Law (South Australia) will only apply in relation to an
entity prescribed under
subsection (1)
(and the regulations may make any provision in connection with the operation of
this subsection).
(4) A standing
offer price of an entity prescribed under
subsection (1)
(being relevant for the purposes of the National
Energy Retail Law (South Australia)) will be—
(a) in relation to the provision of electricity to a particular
customer—the price (or prices) fixed by the Commission under
section 36AA(4a) of the Electricity
Act 1996 as the standing contract price for a class of customers to
which the customer belongs and will include all of the tariffs and charges that
a retailer charges a small customer for or in connection with the sale and
supply of energy to a small customer under the retailer's form of standard
retail contract;
(b) in relation to the provision of gas to a particular customer—the
price (or prices) fixed by the Commission under section 34A(4a) of the
Gas
Act 1997 as the standing contract price for a class of customers to
which the customer belongs and will include all of the tariffs and charges that
a retailer charges a small customer for or in connection with the sale and
supply of energy to a small customer under the retailer's form of standard
retail contract.
(5) For the purposes of
subsection (4)—
(a) any provision of the Electricity
Act 1996 or the Gas
Act 1997 (as the case requires) that may be relevant to fixing
prices that will apply under that subsection will apply in connection with the
operation of that subsection; and
(b) the Essential
Services Commission Act 2002 will apply—
(i) in relation to the activities of the Commission in connection with the
operation of that subsection; and
(ii) in relation to any determination of the Commission that applies to an
entity prescribed under
subsection (1).
(6) Section 23(5) of the National
Energy Retail Law (South Australia) will not apply in relation to a
variation of the standing offer price of an entity prescribed under
subsection (1)
that applies under
subsection (4).
(7) In addition to
the requirements of the National
Energy Retail Law (South Australia), an entity prescribed under
subsection (1)
must publish on its website (and keep up to date) a price list setting out all
of its tariffs and charges in connection with the sale or supply of energy to
its small customers when the entity is acting as a financially responsible
retailer under a deemed customer retail arrangement under Division 9 of
Part 2 of that Law or as a retailer of last resort under Part 6 of
that Law.
(8) A price list published under
subsection (7)
must comply with any requirements prescribed by the National Energy Retail
Law (South Australia) in relation to the publication or presentation of any
standing offer price.
(9) A reference in
section 55(2) of the National
Energy Retail Law (South Australia) to a retailer's standing offer
prices will, in the case of an entity prescribed under
subsection (1),
be taken to be a reference to the prices published under
subsection (7).
(10) To avoid doubt, the preceding subsections do not affect the
application of section 23 of the National
Energy Retail Law (South Australia) to a retailer that is not an entity
prescribed under
subsection (1).
19—Small market offer
customers
Section 31 of the National
Energy Retail Law will not apply in this jurisdiction.
20—Price comparator
(1) The Commission must maintain on a website a price
comparator.
(2) The purpose of a price comparator under this section is to assist a
small customer under the National
Energy Retail Law (South Australia) to compare—
(a) the standing offer price available to that customer; and
(b) market offer prices that are generally available to classes of small
customers in South Australia,
in accordance with any code made by the Commission for the purposes of this
section.
(3) A price comparator must make it clear to small customers that it only
provides a guide.
(4) A price comparator may, in addition to the information about the price
of the standing offers and market offers listed in the comparator, include such
other information as the Commission considers will achieve the purpose of a
price comparator.
(5) The Commission
may develop and make available a single price comparator that compares prices
for the provision of both electricity and gas.
(6) The Commission must update the price comparator information as soon as
practicable after a retailer informs the Commission of any variations to the
retailer's standing offer price or relevant market offer price.
(7) In the development and updating of a price comparator, the Commission
must undertake such consultation as it considers appropriate.
(8) A difference between information made available under a price
comparator and a retailer's standing offer price, market offer prices or any
variation to those prices does not affect the operation of that retailer's
prices or variations to those prices.
(9) A retailer must
submit to the Commission, in the manner and form (including by the date or
dates) required by the Commission, information and data relating
to—
(a) the presentation of standing offer prices and market offer prices that
are generally available to classes of small customers in this State (including
any variation of the prices); and
(b) the purposes of a price comparator for this State.
Maximum penalty: $1 000 000.
(10) An offence against
subsection (9)
may be prosecuted as an indictable offence or a summary offence at the
discretion of the prosecutor but, if prosecuted as a summary offence, the
maximum penalty that may be imposed is a fine not exceeding
$20 000.
(11) The Commission may impose a requirement under
subsection (9)
in any code made by the Commission for the purposes of this section, or in such
other manner as the Commission thinks fit.
(12) Part 4 of the Essential
Services Commission Act 2002 will apply in relation to a code under
this section subject to such modifications as may be prescribed by regulations
made for the purposes of this subsection.
(13) This section expires on the day on which a local instrument of this
jurisdiction declares that section 62 of the National
Energy Retail Law (South Australia) applies in relation to this
jurisdiction.
21—Retailer of last resort
scheme
(1) A reference in section 145(4) of the National
Energy Retail Law (South Australia) to a retailer's standing offer
prices will be taken to be—
(a) in the case of an entity prescribed under
section 18(1)—the
prices published under
section 18(7);
(b) in any other case—the entity's standing offer price under
section 23 of the Law.
(2) Despite any other provision made by or under the National
Energy Retail Law (South Australia) or any jurisdictional energy
legislation, a standing offer price may be varied at any time as a result of a
RoLR cost recovery scheme.
22—Small compensation claims
regime
(1) Subject to
subsection (2),
Part 7 of the National Energy Retail Law will not apply in this
jurisdiction.
(2) Part 7 of
the National Energy Retail Law will apply in this jurisdiction (and form
part of the
National
Energy Retail Law (South Australia)) from a date to be fixed by
proclamation.
23—Minimum standards of service for
customers
(1) A retailer must
comply with any requirements imposed under the regulations relating to minimum
standards of service for customers, or customers of a prescribed
class.
(2)
Subsection (1) will
be taken to be a civil penalty provision under the National
Energy Retail Law (South Australia).
(3) In addition, a
minimum standard of service for customers prescribed under this section will be
taken to be a requirement of the National
Energy Retail Law (South Australia) for the purposes of Part 12 of
that Law (and will be subject to the compliance, performance, monitoring,
information, data, audit and reporting requirements of that Part).
(4) Without limiting
subsection (3)
(or any other provision), the functions and powers of the AER under Part 12
of the National
Energy Retail Law (South Australia) will extend in relation to any
minimum standard of service to customers prescribed under this
section.
24—Late payment fees
(1) A retailer may impose a fee for late payment of a bill for a customer
retail service.
(2) However, if the service is provided under a customer retail contract
with a small customer—
(a) the fee must not exceed the reasonable costs of the retailer in
recovering an overdue amount; and
(b) if the customer lodges a complaint in relation to the bill under
Part 4 of the National
Energy Retail Law (South Australia), the retailer must not take steps to
recover a fee for late payment while the complaint is being dealt with under
that Part.
25—Immunity in relation to failure to supply
electricity
(1) Section 316(2)
of the National
Energy Retail Law (South Australia) will be taken to allow a distributor
of electricity to enter into an agreement with a small customer varying or
excluding the operation of subsection (1) of section 316 of that Law
and, to the extent of that agreement, that subsection does not apply.
(2) However, an agreement under
subsection (1)—
(a) must comply with any requirement prescribed by the regulations;
and
(b) may not apply in relation to an act or omission of a kind excluded
from the operation of this section by the regulations.
Division 4—Miscellaneous
26—Application of Essential Services Commission
Act 2002
A retailer will be taken to be a regulated entity operating in a regulated
industry for the purposes of the Essential
Services Commission Act 2002.
27—Delegation by Minister
(1) The Minister may delegate a function or power conferred on the
Minister under this Act or the National
Energy Retail Law (South Australia)—
(a) to a particular person or body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(b) does not derogate from the power of the Minister to act in a matter;
and
(c) is revocable at will by the Minister.
(4) In any legal proceedings an apparently genuine certificate,
purportedly given by the Minister, containing particulars of a delegation under
this will, in the absence of proof to the contrary, be accepted as proof that
the delegation was made in accordance with the particulars.
28—Extension of AER functions and
powers
(1) The following
provisions of the National
Energy Retail Law (South Australia) apply as if a reference in any such
provision to the Law included a reference to this Part, and Parts 6
and 7, of this Act:
(a) Parts 8, 12, 13, 14 and 15; and
(b) any other provision prescribed by the regulations for the purposes of
this subsection.
(2)
Subsection (1) does
not apply—
(a) to or in relation to section 20 of this Act; or
(b) so as to require the AER to administer any procedures prescribed under
section 40(2) of this Act; or
(c) to or in relation to any other provision prescribed by the regulations
for the purposes of this subsection.
(3) The Governor may, by regulation, modify any provision that applies
under
subsection (1)
insofar as it applies to a Part of this Act referred to in that
subsection.
(4) Without limiting
subsection (1) or
Division 2 of Part 8 of the National
Energy Retail Law (South Australia), the AER may require information or
a document to be provided or produced by a person under that Division that
relates to a matter that arose before the commencement of that Law.
29—Regulations
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Part.
(2) Without limiting
subsection (1), the
regulations may—
(a) require a retailer to comply with any prescribed codes or rules
relating to the electricity supply industry or the gas supply industry made by
the Commission under the Essential
Services Commission Act 2002; and
(b) prescribe obligations and other requirements that a retailer must
comply with in relation to the provision of services, including with respect to
the connection, de-energisation or re-energisation of premises.
(3) The regulations may—
(a) be of general application or limited in application according to the
persons, areas, times or circumstances to which it is expressed to
apply;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined, regulated or prohibited according to the discretion of
the Minister or the Commission.
(4) In addition, the
Governor may, by regulation—
(a) amend or vary the operation of the National
Energy Retail Regulations (South Australia); or
(b) amend or vary the operation of the National
Energy Retail Rules,
insofar as they apply as part of the law of South Australia.
Part 6—Validation of instruments and decisions of
AER—energy retail laws
30—Validation of instruments and decisions made by
AER
(1) This section applies to an instrument or decision made by the AER
if—
(a) the instrument or decision was made—
(i) on or after the time that this Act was enacted; but
(ii) before the time (the application time) that the
National Energy Retail Law first started to apply under this Act as a law
of South Australia; and
(b) had the National Energy Retail Law started so to apply the
making of the instrument or decision would have been authorised by or under one
of the following laws (the authorising law):
(i) the National
Energy Retail Law (South Australia);
(ii) the National
Energy Retail Regulations (South Australia);
(iii) this Act;
(iv) an instrument made or having effect under this Act; and
(c) in a case in which the making of the instrument or decision would be
so authorised subject to the satisfaction of any conditions or other
requirements (for example, consultation or publication requirements)—the
AER has done anything that would, if the National Energy Retail Law had
started so to apply, be required under the authorising law for the instrument or
decision to be so authorised.
(2) For the purposes of the authorising law—
(a) the instrument or decision is taken to be valid; and
(b) the instrument or decision has effect from the application
time—
(i) as varied, and unless revoked, by any other instrument or decision to
which this section applies; and
(ii) subject to that law as so applying.
(3) For the purposes of this section—
(a) guidelines are an example of an instrument; and
(b) the following are examples of decisions:
(i) appointments;
(ii) determinations;
(iii) approvals.
31—AER—authorisation of preparatory
steps
(1) This section applies if—
(a) the AER is required to do something (a preparatory step)
before making a decision or making an instrument under one of the following (the
authorising law):
(i) the National
Energy Retail Law (South Australia);
(ii) the National
Energy Retail Regulations (South Australia);
(iii) this Act;
(iv) an instrument made or having effect under this Act; and
(b) the AER takes the preparatory step—
(i) on or after the time that this Act was enacted; but
(ii) before the time that the National Energy Retail Law first
started to apply under this Act as a law of South Australia.
(2) For the purposes of the authorising law, the AER is taken to have
complied with the requirement to take the preparatory step.
Part 7—Transitional provisions
32—Interpretation
In this Part—
authorised entity means a relevant entity that, on the
relevant day, is taken to be the holder of a retailer authorisation;
Commission means the Essential Services Commission
established under the
Essential
Services Commission Act 2002;
exempt entity means a relevant entity that, on the relevant
day, is taken to be an exempt seller;
NERL entity means an entity that, on the relevant day,
becomes a regulated entity under the
National
Energy Retail Law (South Australia);
relevant day means the day fixed by the Governor by
proclamation under section 4 as the day on which the National Energy
Retail Law applies in this jurisdiction;
relevant entity means an entity—
(a) that, immediately before the relevant day—
(i) held a licence under Part 3 of the Electricity
Act 1996 or held an exemption from the requirement to hold such a
licence under that Act; or
(ii) held a licence under Part 3 of the Gas
Act 1997 or held an exemption from the requirement to hold such a
licence under that Act; and
(b) that, on the relevant day, is taken to be—
(i) the holder of a retailer authorisation; or
(ii) an exempt seller,
by virtue of the operation of the National Regulations.
33—Conditions—exempt
entities
(1) The conditions that will apply to an exempt entity on the relevant day
for the purposes of the National
Energy Retail Law (South Australia) will be conditions determined by the
Minister under this section.
(a) furnish written notice of the conditions to the exempt entity;
and
(b) furnish a copy of the notice of the conditions to the AER.
(3) The AER must, as soon as practicable after receiving a copy of a
notice under
subsection (2),
publish the conditions on the AER's website.
(4) The conditions determined by the Minister under this section will be
taken to be conditions imposed by the AER under section 112 of the National
Energy Retail Law (South Australia).
(5) The AER must consult with the Minister before it varies or revokes a
condition determined by the Minister under this section.
34—Customer
contracts—electricity
(1) A contract for the
sale of electricity between an authorised entity and a customer that is
constituted by a standing contract under section 36AA of the Electricity
Act 1996 and is in force immediately before the relevant day will,
on the relevant day, be taken to be replaced with a contract between the
authorised entity and the customer in the form of the entity's standard retail
contract applying under Division 3 of Part 2 of the National
Energy Retail Law (South Australia) for the provision of the relevant
services.
(2) A market contract
for the sale of electricity between an authorised entity and a customer under
Part A of the Energy Retail Code (ERC/03) published by the
Commission under the
Essential
Services Commission Act 2002 and in force immediately before the
relevant day will, on the relevant day, be taken to be a market retail contract
under section 33 of the National
Energy Retail Law (South Australia) (and the minimum requirements that
apply under Division 4 of Part 2 of the National
Energy Retail Law (South Australia) will apply in relation to that
contract).
(3) A customer may exercise any right to withdraw from a contract under
subsection (2)
during a cooling-off period that existed immediately before the relevant day as
if the Electricity
Act 1996 still applied (and then
subsection (2) will
cease to apply in relation to that contract).
(4) Where an authorised
entity is, immediately before the relevant day, required to sell electricity to
a customer under section 36AB of the Electricity
Act 1996, the default contract arrangement in place between the
entity and the customer will be taken to constitute a deemed customer retail
arrangement between the entity and the customer under Division 9 of
Part 2 of the National
Energy Retail Law (South Australia) with the terms and conditions
applying under that Division.
(5) A request made to a designated retailer under section 36AA of the
Electricity
Act 1996 before the relevant day that, immediately before the
relevant day, is yet to be subject to a contract between the designated retailer
and the relevant customer under the Electricity
Act 1996 will be taken to be a request for an offer under
section 22 of the National
Energy Retail Law (South Australia).
(6) The prices applicable to a contract that is taken to exist under the
National
Energy Retail Law (South Australia) by operation of this section will,
on the relevant day, be the prices that would have applied under the Electricity
Act 1996 on that day had this Act not been enacted (subject to any
variation made under the National
Energy Retail Law (South Australia) on or after the relevant
day).
(7) In connection with the operation of a preceding
subsection—
(a) any security deposit paid by a customer under the Electricity
Act 1996 that is being held by a relevant entity immediately before
the relevant day will continue to have effect as if it had been paid under the
National
Energy Retail Law (South Australia); and
(b) a notification given by a party to a contract before the relevant day
(and still valid and operative immediately before the relevant day) will, if
such a notification may be made under the National
Energy Retail Law (South Australia), continue and have effect as if it
had been given under that Law; and
(c) any direct debit arrangement for the payment of a bill in operation
for the purposes of a contract that is subject to the operation of a preceding
subsection (and in force immediately before the relevant day) will continue to
have effect; and
(d) a payment plan or other arrangement in operation for the purposes of a
contract that is subject to the operation of a preceding subsection (and in
force immediately before the relevant day) will continue to have effect as if it
had been entered into under the National
Energy Retail Law (South Australia).
(8) In this section—
designated retailer means an entity prescribed for the
purposes of section 18(1)(a) of this Act.
35—Customer connection
contracts—electricity
(1) A contract for the
supply of electricity between a distributor of electricity and a customer under
the Electricity
Act 1996 that is constituted by the standard connection and supply
contract under Part B of the Electricity Distribution Code EDC/09)
published by the Commission under the
Essential
Services Commission Act 2002 and is in force immediately before the
relevant day will, on the relevant day, be taken to be replaced with a contract
between the distributor and the customer in the form of the distributor's deemed
standard connection contract applying under Division 4 of Part 3 of
the National
Energy Retail Law (South Australia) for the provision of the relevant
services.
(2) Any other contract for the supply of electricity between a distributor
of electricity and a customer under the Electricity
Act 1996 in force immediately before the relevant day will, on the
relevant day, be taken to be a negotiated connection contract under the National
Energy Retail Law (South Australia) (with the terms and conditions
applying immediately before the relevant day being taken to be the terms and
conditions applying under the National
Energy Retail Law (South Australia).
(3) This section does not apply if the distributor does not become a NERL
entity on the relevant day.
(4) An offer to a customer to provide a connection to a supply of
electricity under the Electricity
Act 1996 by an entity that becomes a distributor under the National
Energy Retail Law (South Australia) made before the relevant day (and
still operative immediately before the relevant day)—
(a) must be maintained as an open offer for a period of 60 days, or
for such other period as may be specified in the offer (with the period starting
on the making of the offer); and
(b) will be taken to be a distributor's connection offer for the purposes
of section 70(2)(a) of the National
Energy Retail Law (South Australia).
36—Customer
contracts—gas
(1) A contract for
the sale of gas between an authorised entity and a customer that is constituted
by a standing contract under section 34A of the Gas
Act 1997 and is in force immediately before the relevant day will,
on the relevant day, be taken to be replaced with a contract between the
authorised entity and the customer in the form of the entity's standard retail
contract applying under Division 3 of Part 2 of the National
Energy Retail Law (South Australia) for the provision of the relevant
services.
(2) A market
contract for the sale of gas between an authorised entity and a customer under
Part A of the Energy Retail Code (ERC/03) published by the
Commission under the
Essential
Services Commission Act 2002 and in force immediately before the
relevant day will, on the relevant day, be taken to be a market retail contract
under section 33 of the National
Energy Retail Law (South Australia) (and the minimum requirements that
apply under Division 4 of Part 2 of the National
Energy Retail Law (South Australia) will apply in relation to that
contract).
(3) A customer may exercise any right to withdraw from a contract under
subsection (2)
during a cooling-off period that existed immediately before the relevant day as
if the Gas
Act 1997 still applied (and then
subsection (2)
will cease to apply in relation to that contract).
(4) Where an
authorised entity is, immediately before the relevant day, required to sell gas
to a customer under section 34B of the Gas
Act 1997, the default contract arrangement in place between the
entity and the customer will be taken to constitute a deemed customer retail
arrangement between the entity and the customer under Division 9 of
Part 2 of the National
Energy Retail Law (South Australia) with the terms and conditions
applying under that Division.
(5) A request made to a designated retailer under section 34A of the
Gas
Act 1997 before the relevant day that, immediately before the
relevant day, is yet to be subject to a contract between the designated retailer
and the relevant customer under the Gas
Act 1997 will be taken to be a request for an offer under
section 22 of the National
Energy Retail Law (South Australia).
(6) The prices applicable to a contract that is taken to exist under the
National
Energy Retail Law (South Australia) by operation of this section will,
on the relevant day, be the prices that would have applied under the Gas
Act 1997 on that day had this Act not been enacted (subject to any
variation made under the National
Energy Retail Law (South Australia) on or after the relevant
day).
(7) In connection with the operation of a preceding
subsection—
(a) any security deposit paid by a customer under the Gas
Act 1997 that is being held by a relevant entity immediately before
the relevant day will continue to have effect as if it had been paid under the
National
Energy Retail Law (South Australia); and
(b) a notification given by a party to a contract before the relevant day
(and still valid and operative immediately before the relevant day) will, if
such a notification may be made under the National
Energy Retail Law (South Australia), continue and have effect as if it
had been given under that Law; and
(c) any direct debit arrangement for the payment of a bill in operation
for the purposes of a contract that is subject to the operation of a preceding
subsection (and in force immediately before the relevant day) will continue to
have effect; and
(d) a payment plan or other arrangement in operation for the purposes of a
contract that is subject to the operation of a preceding subsection (and in
force immediately before the relevant day) will continue to have effect as if it
had been entered into under the National
Energy Retail Law (South Australia).
(8) In this section—
designated retailer means an entity prescribed for the
purposes of section 18(1)(b) of this Act.
37—Customer connection
contracts—gas
(1) A contract for the supply of gas between a distributor of gas and a
customer in force immediately before the relevant day will, on the relevant day,
be taken to be a negotiated connection contract under the National
Energy Retail Law (South Australia) (with the terms and conditions
applying immediately before the relevant day being taken to be the terms and
conditions applying under the National
Energy Retail Law (South Australia)).
(2) If a customer is being supplied with gas under the Gas
Act 1997 immediately before the relevant day without being a party
to a contract with the distributor of that gas in relation to that supply then,
on the relevant day, a customer connection contract will be taken to exist
between the customer and the distributor under Part 3 of the National
Energy Retail Law (South Australia) (with the terms and conditions
applying under Division 4 of Part 3 of that Law).
(3) This section does not apply if the distributor does not become a NERL
entity on the relevant day.
38—Complaints and dispute
resolution
(1) On and from the relevant day, a complaint made to a NERL entity or an
energy ombudsman (including a complaint made before the relevant day) will
proceed under Part 4 of the National
Energy Retail Law (South Australia) (even if the complaint involves a
matter arising when the Electricity
Act 1996 or the Gas
Act 1997 (as the case requires) applied in relation to the
matter).
(2) On and from the relevant day, a dispute arising under the Electricity
Act 1996 or the Gas
Act 1997 in relation to a NERL entity will proceed before the
energy ombudsman under Part 4 of the National
Energy Retail Law (South Australia) (including a dispute referred to an
energy ombudsman before the relevant day).
39—Provision of information and assistance by
Commission
(1) Despite any
other Act or law, the Commission 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 the Commission that is reasonably
required by the AER for the purposes of this Act or the National
Energy Retail Law (South Australia); 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 Act or
the National
Energy Retail Law (South Australia).
(2) Despite any
other Act or law, the Commission may authorise the AER to disclose information
provided under
subsection (1)
even if the information was given to the Commission in confidence.
(3) Nothing done, or authorised to be done, by the Commission 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.
40—Transitional regulation-making
power
(1) Without limiting
any other provision, the Governor may, by regulation, make any provision of a
saving or transitional nature—
(a) relating to the transition from the application of the Electricity
Act 1996 or the Gas
Act 1997 to the application of provisions of the National
Energy Retail Law (South Australia) (including in connection with the
operation or effect of the National Energy Retail Law); or
(b) relating to the operation or effect of the National
Electricity (South Australia) Law or the National
Gas (South Australia) Law on account of, or in connection with, the
commencement of the National
Energy Retail Law (South Australia).
(2) Without limiting
subsection (1), the
Governor may, by regulation—
(a) prescribe procedures that will apply as if they were procedures made
by AEMO under section 144 of the National
Energy Retail Law (South Australia); and
(b) vary or revoke procedures made by AEMO under section 144 of that
Law.
(3) A regulation under
subsection (2) may
only apply to or in relation to a relevant entity.
(4) In the event of an inconsistency between a regulation made under
subsection (1)
or
(2) and any provision of
the National
Energy Retail Law (South Australia) (or any instrument made under that
Law), the regulation will apply to the extent of the inconsistency.
(5) A provision of a
regulation made under this section may, if the regulation so provides, take
effect from the commencement of the National
Energy Retail Law (South Australia) or from a later day.
(6) To the extent to which a provision takes effect under
subsection (5) from
a day earlier than the day of the regulation's publication in the Gazette, the
provision does not operate to the disadvantage of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
Part 3—Amendment
of National Energy Retail
Law
5—Amendment
of section 76—Formation of deemed AER approved standard connection
contract
(1) Section 76—after subsection (4) insert:
(4a) In the case of an existing connection where—
(a) a deemed standard connection contract applies in relation to a large
customer and particular premises; and
(b) a deemed AER approved standard connection contract for the relevant
class of large customers of the distributor is approved and published under
section 75,
the deemed AER approved standard connection contract takes effect between
the customer and the distributor when the customer receives notice of the
contract.
(2) Section 76(5)—delete "(4)" and substitute:
(4a)
Section 88—delete the section and substitute:
88—Requirement for authorisation or
exemption
(1) A person (the
seller) must not, in this jurisdiction, engage in the activity of
selling energy to a person for premises unless—
(a) the seller is the holder of a current retailer authorisation;
or
(b) the seller is an exempt seller.
(2)
Subsection (1)
does not limit—
(a) in the case of the sale of electricity—any requirement under
section 11(4) of the NEL relating to the purchasing of electricity through
a wholesale exchange; or
(b) in the case of the sale of gas—
(i) any requirement under section 91LB of the NGL, as it applies to
this jurisdiction in relation to a user or non-scheme pipeline user (within the
meaning of the NGL), to be registered (or exempted from registration) in this
jurisdiction in order to participate in a regulated retail gas market;
or
(ii) any requirement under section 91BJ of the NGL, as it applies in
relation to a declared wholesale gas market, to be registered (or exempted from
registration) in order to participate in that market and to sell natural gas to
customers that has been transported through the relevant declared transmission
system; or
(iii) any requirement under section 91BRD of the NGL, as it applies
to a short term trading market, to be registered (or exempted from registration)
in order to participate in that market.
(3) A person must not engage in an activity referred to in
subsection (1)
unless the person has complied with any requirement referred to in
subsection (2)
(to the extent that any such requirement applies in relation to the person) (but
nothing in this subsection requires a requirement under
subsection (2)
to be satisfied before the AER may grant a retailer authorisation or confer an
exemption under this Part).
Note—
This section is a civil penalty provision.
7—Amendment
of section 89—Applications
Section 89—after its present contents (now to be designated as
subsection (1)) insert:
(2) An application
may be made by 2 or more persons acting in their capacity as members of a
partnership or joint venture.
(3) If an application is made under
subsection (2),
a reference to an applicant under this Part will be taken to be a reference to
the persons who made the application jointly (and they may satisfy any criteria
or other requirement on a joint basis).
After section 96 insert:
96A—Retailer authorisation may be held
jointly
(1) A retailer authorisation may be held jointly by 2 or more
persons.
(2) If a retailer authorisation is held jointly by 2 or more persons,
those persons are jointly and severally liable to meet requirements imposed
under any of the energy laws.
After section 104 insert:
104A—Change in legal
structures
(1) For the
purposes of this Division, if a retailer authorisation is held jointly by
2 or more persons as members of a partnership or joint venture, a change in
the persons constituting the partnership or joint venture (as the case may be)
will be taken to be a transfer of the retailer authorisation.
(2) The AER may, in a case where
subsection (1)
applies—
(a) require that an application be made in accordance with the AER
Retailer Authorisation Guidelines (including as to the provision of
information); and
(b) apply this Division in relation to any such application according to
such modifications as the AER may determine to be appropriate in the
circumstances.
10—Amendment
of section 107—Power to revoke retailer
authorisation
Section 107(2)(a)(i) and (ii)—delete subparagraphs (i)
and (ii) and substitute:
(i) in the case of electricity—is in breach of a requirement
referred to in section 88(2)(a); or
(ii) in the case of gas—is in breach of a requirement referred to in
section 88(2)(b); or
11—Amendment
of section 132—Designation of registered RoLR for RoLR
event
Section 132—after subsection (3) insert:
(3a) The appointment of the default RoLR as the designated RoLR under
subsection (1) also operates subject to—
(a) any other provision made in the RoLR notice for the RoLR event;
and
(b) any determination by the AER in the circumstances of the particular
case (including a determination that has the effect of over-riding the operation
of subsection (1) so that an appointment under that subsection will be
taken not to have been made).
12—Amendment
of section 136—Issue of RoLR notice
(1) Section 136(1)—delete subsection (1) and
substitute:
(1) The AER may
decide to issue a notice (a RoLR notice) on the occurrence of a
RoLR event.
(1a) The AER must decide whether or not to issue a notice under
subsection (1)
as soon as practicable after the RoLR event occurs.
(2) Section 136(2)—delete "The RoLR notice" and
substitute:
A RoLR notice
(3) Section 136(3)—delete "The RoLR notice" and
substitute:
A RoLR notice
(4) Section 136(4)—delete "The RoLR notice" and
substitute:
A RoLR notice
13—Amendment
of section 139—Publication requirements for RoLR
events
(1) Section 139—before subsection (1) insert:
(a1) This section applies if a RoLR notice is issued by the AER.
(2) Section 139(1)—delete "a RoLR event" and
substitute:
the RoLR event
14—Amendment
of section 187—Making of claims
Section 187(2)—delete "A small customer may make a claim for
compensation in respect of a claimable incident from a distributor who provides
customer connection services to premises of the customer—" and
substitute:
A completed claim form must include the following:
15—Amendment
of section 204—Functions and powers of AER (including
delegations)
Section 204(1)(g)—after "this Law" insert:
, the National Regulations
16—Amendment
of section 206—Power to obtain information and
documents
Section 206(1)—delete "or the Rules" and substitute:
, the National Regulations, the Rules or an application Act