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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Energy Consumers Australia)
Bill 2014
A BILL FOR
An Act to amend the Australian
Energy Market Commission Establishment Act 2004; the National
Electricity (South Australia) Act 1996; and the National
Gas (South Australia) Act 2008.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment
of Australian Energy Market Commission Establishment
Act 2004
Division 1—Amendment of
Act
4Amendment of section
3—Interpretation
5Amendment of section 26—Accounts and
audit
6Amendment of section 27—Annual
report
7Repeal of Parts 3 and
4
8Amendment of section 48—Certain Acts not
to apply
9Amendment of section
49—Regulations
Division 2—Transitional
provisions
10Interpretation
11ECA to decide certain
funding applications
12AEMC to make grants in
relation to certain funding applications
13Criteria and
guidelines
14Amount held by AEMC for funding of Panel to be
paid to ECA
15Staff
16Contracts,
etc
17Final reporting
requirements associated with Panel
18Transfer of certain records
19Immunity from liability
20Other
provisions
Part 3—Amendment
of National Electricity Law
21Amendment of section
2—Definitions
22Insertion of section
90E
90ESouth Australian
Minister to make initial Rules relating to Energy Consumers
Australia
23Amendment of Schedule 1—Subject matter
for the National Electricity Rules
24Amendment of Schedule
2—Miscellaneous provisions relating to interpretation
25Amendment of Schedule 3—Savings and
transitionals
Part 12—Transitional provision related
to ECA amendments
25Transitional provision—AEMO's consumer
advocacy funding obligation
Part 4—Amendment
of National Gas Law
26Amendment of section
2—Definitions
27Insertion of section
294E
294ESouth Australian
Minister to make initial Rules relating to Energy Consumers
Australia
28Amendment of Schedule 1—Subject matter
for the National Gas Rules
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Energy Consumers
Australia) Act 2014.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act—
(a) a provision in
Part 2 amends the
Australian
Energy Market Commission Establishment Act 2004; and
(b) a provision in
Part 3 amends the
National Electricity Law set out in the Schedule to the National
Electricity (South Australia) Act 1996; and
(c) a provision in
Part 4 amends the
National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008.
Part 2—Amendment
of Australian Energy Market Commission
Establishment Act 2004
4—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of Chairperson—delete the
definition and substitute:
Chairperson means the Commissioner appointed to be
Chairperson of the AEMC under section 12;
(2) Section 3(1), definitions of Panel, Panel
member and small to medium consumer—delete the
definitions
5—Amendment
of section 26—Accounts and audit
(1) Section 26(1a)—delete subsection (1a)
(2) Section 26(2)—delete "and the account established for the
purposes of Part 4"
6—Amendment
of section 27—Annual report
Section 27(1a)—delete subsection (1a)
Parts 3 and 4—delete Parts 3 and 4
8—Amendment
of section 48—Certain Acts not to apply
(1) Section 48(1)(d) to (f) (inclusive)—delete paragraphs (d)
to (f)
(2) Section 48(2)(b)—delete paragraph (b)
9—Amendment
of section 49—Regulations
Section 49—after its present contents (now to be designated as
subsection (1)) insert:
(2) The Governor
may, by regulation, make additional provisions of a saving or transitional
nature consequent on the enactment of the Statutes
Amendment (Energy Consumers Australia) Act 2014.
(3) A provision of
a regulation made under
subsection (2)
may, if the regulations so provide, take effect from the commencement of this
subsection or from a later day.
(4) To the extent to which a provision takes effect under
subsection (3)
from a day earlier than the day of the publication of the regulation 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.
Division 2—Transitional
provisions
(1) Terms used in this Division that are defined in the Australian
Energy Market Commission Establishment Act 2004 have the same
respective meanings as in that Act.
(2) In this Division—
commencement day means the day on which
section 7 of this
Act comes into operation;
Energy Consumers Australia or ECA means the
company incorporated, or to be incorporated, by the name Energy Consumers
Australia Limited;
Panel and Panel member have the same respective
meanings as in the
Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day).
11—ECA
to decide certain funding applications
(1) This section applies to an application for funding lodged with the
Panel under section 29(2) of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) and not determined by the Panel
immediately before the commencement day.
(a) determine an application to which this section applies in accordance
with its constitution; and
(b) in so acting, apply any criteria or guidelines determined or developed
under section 45 of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) and applying to the Panel in relation
to the application at the time the application was made.
12—AEMC
to make grants in relation to certain funding applications
(1) This section applies to an application for funding lodged with the
Panel under section 29(2) of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) in relation to which the Panel
determined that a grant should be made and gave a direction to that effect to
the AEMC for the purposes of section 46(1) of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) but, immediately before the
commencement day, the AEMC had not made the grant.
(2) Despite the
repeal of Part 4 of the Australian
Energy Market Commission Establishment Act 2004 by
section 7 of this
Act, the AEMC must make the grant in relation to an application to which this
section applies.
Any criteria or guidelines determined or developed under section 45 of
the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) will continue to apply for the purposes
of the determination of applications for funding by ECA until criteria or
guidelines are prepared by the ECA in accordance with its constitution and
published on a website determined by ECA.
14—Amount
held by AEMC for funding of Panel to be paid to ECA
(1) Subject to this
section, the AEMC must, in relation to any amount held by the AEMC for the
purposes of the Panel immediately before the commencement day (the
relevant amount), within 30 days after the commencement
day—
(a) make any grants
under
section 12 from the
relevant amount; and
(b) pay from the
relevant amount—
(i) any remuneration or other amounts payable under an instrument of
appointment to a Panel member in respect of work performed by the Panel before
the commencement day; and
(ii) any employee entitlements (including remuneration and superannuation)
of the Executive Director and other staff members of the Panel accrued before
the commencement day; and
(iii) the reasonable administrative costs incurred by the AEMC before the
commencement day associated with the work of the Panel, its Executive Director
and other staff members (including costs incurred in relation to the provision
of services shared by the AEMC and the Panel (but only in so far as such costs
relate to the provision of services to the Panel)); and
(iv) if the AEMC terminates the employment of the Executive Director or
any other staff member of the Panel within 30 days after the commencement
day—an amount equivalent to any liabilities, calculated as if the
termination took effect on the commencement day, that arise from the
termination.
(2) In addition, the
AEMC and AEMO must, before the expiry of the 30 day period referred to in
subsection (1),
agree on any addition to or deduction from the relevant amount that must be made
to reflect—
(a) any contribution to the relevant amount owed by the AEMC or AEMO;
or
(b) any amount owed to the AEMC or AEMO from the relevant
amount.
(3) The AEMC must, after giving effect to
subsections (1)
and
(2), pay the remainder of
the relevant amount to ECA as soon as is reasonably practicable after the expiry
of the 30 day period referred to in
subsection (1).
(4) If, after the expiry of the 30 day period referred to in
subsection (1), the
AEMC gives notice to ECA of a payment within the ambit of
subsection (1)(b)
that the AEMC is required to make, the AEMC and ECA may agree on the payment by
ECA to the AEMC of the amount specified in the notice.
(1) A person who was,
immediately before the commencement day, the Executive Director or a staff
member of the Panel appointed by the AEMC under section 37 of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) will, on that commencement day, be
taken to be employed as a member of the staff of the AEMC appointed by the AEMC
under section 17 of that Act.
(2) The transfer of a person's employment under
subsection (1)—
(a) will be taken to provide for continuity of employment without
termination of the relevant employee's service; and
(b) will not affect—
(i) the existing term or conditions of employment or existing or accrued
rights to leave; or
(ii) a process commenced for variation of those conditions or
rights.
(1) All rights,
obligations and liabilities of the AEMC and the Panel—
(a) under a contract or
agreement entered into by the AEMC in accordance with a direction given by the
Panel for the purposes of section 46(1) of the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day); or
(b) relating to a grant
made by the AEMC under
section 12,
are transferred to ECA.
(2) The transfer of rights, obligations and liabilities under this
section—
(a) operates by force of this section and despite the provisions of any
other law; and
(b) takes effect—
(i) in the case of the rights, obligations and liabilities referred to in
subsection (1)(a)—on
the commencement day; and
(ii) in the case of the rights, obligations and liabilities referred to in
subsection (1)(b)—on
the execution of the grant by the AEMC.
(3) A reference to the AEMC or the Panel in an instrument or agreement
that gives rise to or evidences a right, obligation or liability referred to in
subsection (1)
will have effect as if it were a reference to ECA.
(4) This section applies within the State, and outside of the State to the
full extent of the extraterritorial power of the Parliament.
17—Final
reporting requirements associated with Panel
(1) ECA must include in
its first annual report (published in accordance with its constitution) the
information (including audited financial statements of the Panel) that the Panel
would have been required to include in an annual report under section 47 of
the Australian
Energy Market Commission Establishment Act 2004 (as in force
immediately before the commencement day) had the Panel not been dissolved on
account of the commencement of
section 7 of this
Act.
(2) An audit of the
last financial statements of the Panel must be undertaken in accordance with any
requirements of the AEMC.
(3) The persons who, immediately before the commencement day, are Panel
members must ensure that all information in the possession of the Panel that is
necessary or convenient to the operation of
subsections (1)
and
(2) is kept available for
the purposes of those subsections.
18—Transfer
of certain records
(1) The following records in the custody of the Panel immediately before
the commencement day will, on the commencement day or as soon as is reasonably
practicable after the commencement day, be placed in the custody of
ECA:
(a) records relating to a contract or agreement of a kind referred to in
section 16(1);
(b) records which are relevant to the last annual report that the Panel
would have been required to prepare (see
section 17(1))
(including records relating to the last financial statements referred to in
section 17(2)).
(2) Records relating to the last financial statements of the Panel placed
in the custody of ECA under this section must be kept available for the purposes
of
section 17(2).
(1) Despite the repeal
of section 40 of the Australian
Energy Market Commission Establishment Act 2004, no personal
liability attaches to a person who was, immediately before the commencement day,
a Panel member or member of the staff of the Panel for an act or omission in
good faith in the performance or exercise, or purported performance or exercise,
before the commencement day, of a function of power associated with the
activities of the Panel.
(2) A liability that would, but for
subsection (1),
lie against a person lies instead against the AEMC.
(1) Nothing done under this Division—
(a) constitutes a breach of contract or confidence, or other civil wrong;
or
(b) places a person in breach of, or constitutes a default
under—
(i) a statutory or non-statutory law or obligation; or
(ii) a provision in an agreement, arrangement or understanding including
(for example) a provision prohibiting, restricting or regulating the assignment,
transfer, sale or disposal of property or the disclosure of information;
or
(c) fulfils a condition that allows a person to exercise a power, right or
remedy in respect of, or to terminate, an agreement or obligation; or
(d) gives rise to a remedy for a party to a contract or instrument because
of a change in the beneficial or legal ownership of property; or
(e) avoids a contract or instrument or renders it unenforceable;
or
(f) frustrates a contract; or
(g) releases any surety or other obligor wholly or in part from any
obligation.
(2) The transfer of a liability of the AEMC or the Panel to ECA under this
Division releases the AEMC or the Panel from the liability.
Part 3—Amendment
of National Electricity
Law
21—Amendment
of section 2—Definitions
(1) Section 2(1), definition of additional Minister initiated
Rules—delete "or 90D" and substitute:
, 90D or 90E
(2) Section 2(1)—after the definition of draft Rule
determination insert:
ECA amendments means the amendments to this Law made by the
Statutes
Amendment (Energy Consumers Australia) Act 2014 of South
Australia;
(3) Section 2(1)—after the definition of end user
insert:
Energy Consumers Australia or ECA means the
company incorporated, or to be incorporated, by the name Energy Consumers
Australia Limited;
After section 90D insert:
90E—South Australian Minister to make initial Rules
relating to Energy Consumers Australia
(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 (the
South Australian Minister) may make Rules—
(a) for or with
respect to Energy Consumers Australia (including provisions for its funding);
and
(b) for or with respect to any other subject contemplated by, or
consequential on, the ECA amendments; and
(c) that revoke or amend a Rule as a consequence of the enactment of the
ECA amendments.
(2) Section 34(3) applies to Rules made under
subsection (1)
in the same way as it applies to Rules made by the AEMC.
(3) As soon as
practicable after making Rules under
subsection (1),
the South Australian Minister must—
(a) publish notice
of the making of the Rules in the South Australian Government Gazette;
and
(b) make the Rules publicly available.
(4) The notice referred to in
subsection (3)(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.
(5) The Rules made under
subsection (1)
may only be made on the recommendation of the MCE.
(6) Once the first Rules have been made under
subsection (1),
no further Rules can be made under that subsection.
23—Amendment
of Schedule 1—Subject matter for the National Electricity
Rules
Schedule 1—after item 30J insert:
Energy Consumers Australia
30K Energy
Consumers Australia (including provisions for its funding)
24—Amendment
of Schedule 2—Miscellaneous provisions relating to
interpretation
Schedule 2, Part 8, clause 39(6), definition of civil penalty
provision—delete "section 58" and substitute:
section 2AA(1)
25—Amendment
of Schedule 3—Savings and transitionals
Schedule 3—after Part 11 insert:
Part 12—Transitional provision related to ECA
amendments
25—Transitional provision—AEMO's consumer
advocacy funding obligation
(1) AEMO may, until 30 June 2016, recover under this clause the
amount of its consumer advocacy funding obligation under Rule 8.10 of the
Rules (as in force immediately after the commencement of Rules made under
section 90E of this Law) as a component of the participant fees payable by
Registered participants who are Market Customers.
(2) AEMO's consumer advocacy funding obligation is, despite anything to
the contrary in the structure of participant fees determination, to be recovered
under this clause in accordance with a schedule prepared by AEMO and published
on its website.
(3) AEMO is not required to consult on the schedule.
(4) In this clause—
structure of participant fees determination means the
Structure of Participant Fees in the National Energy Market Determination and
Report, dated 21 March 2011 and applying for the period from
1 July 2011 to 30 June 2016.
Part 4—Amendment
of National Gas Law
26—Amendment
of section 2—Definitions
(1) Section 2(1)—after the definition of draft Rule
determination insert:
ECA amendments means the amendments to this Law made by the
Statutes
Amendment (Energy Consumers Australia) Act 2014 of South
Australia;
(2) Section 2(1)—after the definition of end user
insert:
Energy Consumers Australia or ECA means the
company incorporated, or to be incorporated, by the name Energy Consumers
Australia Limited;
(3) Section 2(1), definition of initial National Gas
Rules—delete "or 294C" and substitute:
, 294C, 294D or 294E
After section 294D insert:
294E—South Australian Minister to make initial
Rules relating to Energy Consumers Australia
(1) The Minister in
right of the Crown of South Australia administering Part 2 of the National
Gas (South Australia) Act 2008 of South Australia (the South
Australian Minister) may make Rules—
(a) for or with
respect to Energy Consumers Australia (including provisions for its funding);
and
(b) for or with respect to any other subject contemplated by, or
consequential on, the ECA amendments; and
(c) that revoke or amend a Rule as a consequence of the enactment of the
ECA amendments.
(2) Section 74(3) applies to Rules made under
subsection (1)
in the same way as it applies to Rules made by the AEMC.
(3) As soon as
practicable after making Rules under
subsection (1),
the South Australian Minister must—
(a) publish notice
of the making of the Rules in the South Australian Government Gazette;
and
(b) make the Rules publicly available.
(4) The notice referred to in
subsection (3)(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.
(5) The Rules made under
subsection (1)
may only be made on the recommendation of the MCE.
(6) Once the first Rules have been made under
subsection (1),
no further Rules can be made under that subsection.
28—Amendment
of Schedule 1—Subject matter for the National Gas
Rules
Schedule 1, item 80B—delete "The Consumer Advocacy Panel" and
substitute:
Energy Consumers Australia