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PARLIAMENT OF VICTORIA
National Electricity (Victoria) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Crown to be bound 2
5. Extra-territorial operation 2
PART 2--NATIONAL ELECTRICITY (VICTORIA) LAW AND
NATIONAL ELECTRICITY (VICTORIA) REGULATIONS 4
6. Application in Victoria of the National Electricity Law 4
7. Application of Regulations under National Electricity Law 4
8. Interpretation of some expressions in the National Electricity
(Victoria) Law and the National Electricity (Victoria)
Regulations 4
9. Proceedings in respect of breaches of the National Electricity
(Victoria) Law, the National Electricity (Victoria) Regulations
and National Electricity Rules 5
10. National Electricity (Victoria) Law and National Electricity
Rules may be relevant legislation 5
11. VENCorp's participation in the national electricity market 6
12. Supreme Court--limitation of jurisdiction 6
PART 3--REPEALS AND AMENDMENTS OF OTHER ACTS 7
13. Repeal 7
14. Electricity Industry Act 2000--References to National
Electricity Code substituted 7
15. Electricity Industry (Residual Provisions) Act 1993--Repeal
of redundant provisions 8
16. Interpretation of Legislation Act 1984--References to
National Electricity (Victoria) Act 1997 substituted 8
ENDNOTES 9
INDEX 10
i
551218B.I1-22/2/2005 BILL LA INTRODUCTION 22/2/2005
PARLIAMENT OF VICTORIA
A BILL
to make provision for the operation of the national electricity market,
to repeal the National Electricity (Victoria) Act 1997, to amend the
Electricity Industry Act 2000, the Electricity Industry (Residual
Provisions) Act 1993 and the Interpretation of Legislation Act
1984 and for other purposes.
National Electricity (Victoria) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to make provision
in relation to the national electricity market.
1
551218B.I1-22/2/2005 BILL LA INTRODUCTION 22/2/2005
National Electricity (Victoria) Act 2005
Act No.
Part 1--Preliminary
s. 2
2. Commencement
This Act comes into operation on a day to be
proclaimed.
3. Definitions
(1) In this Act--
5
"National Electricity (Victoria) Law" means the
provisions applying because of section 6 of
this Act;
"National Electricity (Victoria) Regulations"
means the provisions applying because of
10
section 7 of this Act.
(2) Words and expressions used in the National
Electricity (Victoria) Law and in this Act have the
same respective meanings in this Act as they have
in that Law.
15
(3) Sub-section (2) does not apply to the extent that
the context or subject matter otherwise indicates
or requires.
4. Crown to be bound
This Act, the National Electricity (Victoria) Law
20
and the National Electricity (Victoria) Regulations
bind the Crown, not only in right of Victoria but
also, so far as the legislative power of the
Parliament permits, the Crown in all its other
capacities.
25
5. Extra-territorial operation
It is the intention of the Parliament that the
operation of this Act, the National Electricity
(Victoria) Law and the National Electricity
(Victoria) Regulations should, so far as possible,
30
include operation in relation to the following--
(a) land situated outside Victoria, whether in or
outside Australia;
2
551218B.I1-22/2/2005 BILL LA INTRODUCTION 22/2/2005
National Electricity (Victoria) Act 2005
Act No.
Part 1--Preliminary
s. 5
(b) things situated outside Victoria, whether in
or outside Australia;
(c) acts, transactions and matters done, entered
into or occurring outside Victoria, whether in
or outside Australia;
5
(d) things, acts, transactions and matters,
(wherever situated, done, entered into or
occurring) that would, apart from this Act, be
governed or otherwise affected by the law of
the Commonwealth, another State, a
10
Territory or a foreign country.
_______________
3
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National Electricity (Victoria) Act 2005
Act No.
Part 2--National Electricity (Victoria) Law and National Electricity
s. 6
(Victoria) Regulations
PART 2--NATIONAL ELECTRICITY (VICTORIA) LAW AND
NATIONAL ELECTRICITY (VICTORIA) REGULATIONS
6. Application in Victoria of the National Electricity
Law
The National Electricity Law set out in the
5
Schedule to the National Electricity (South
Australia) Act 1996 of South Australia, as in force
for the time being--
(a) applies as a law of Victoria; and
(b) as so applying may be referred to as the
10
National Electricity (Victoria) Law.
7. Application of Regulations under National
Electricity Law
The Regulations in force for the time being under
Part 4 of the National Electricity (South Australia)
15
Act 1996 of South Australia--
(a) apply as Regulations in force for the
purposes of the National Electricity
(Victoria) Law; and
(b) as so applying may be referred to as the
20
National Electricity (Victoria) Regulations.
8. Interpretation of some expressions in the National
Electricity (Victoria) Law and the National
Electricity (Victoria) Regulations
(1) In the National Electricity (Victoria) Law and the
25
National Electricity (Victoria) Regulations--
"Legislature of this jurisdiction" means the
Parliament of Victoria;
"the jurisdiction" or "this jurisdiction" means
the State of Victoria;
30
4
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National Electricity (Victoria) Act 2005
Act No.
Part 2--National Electricity (Victoria) Law and National Electricity
s. 9
(Victoria) Regulations
"the National Electricity Law" or "this Law"
means the National Electricity (Victoria)
Law.
(2) The Acts Interpretation Act 1915, and other Acts,
of South Australia do not apply to--
5
(a) the National Electricity Law set out in the
Schedule to the National Electricity (South
Australia) Act 1996 of South Australia in its
application as a law of Victoria; or
(b) the regulations in force for the time being
10
under Part 4 of the National Electricity
(South Australia) Act 1996 of South
Australia in their application as Regulations
in force for the purposes of the National
Electricity (Victoria) Law.
15
9. Proceedings in respect of breaches of the National
Electricity (Victoria) Law, the National Electricity
(Victoria) Regulations and National Electricity
Rules
Except as otherwise provided in section 59(1) of
20
the National Electricity (Victoria) Law,
proceedings may not be instituted in a relevant
court in respect of a breach of a provision of the
National Electricity (Victoria) Law, the National
Electricity (Victoria) Regulations or the National
25
Electricity Rules that is not an offence provision
by any person (other than the AER).
10. National Electricity (Victoria) Law and National
Electricity Rules may be relevant legislation
(1) The Governor in Council, by Order published in
30
the Government Gazette, may declare the
provisions of the National Electricity (Victoria)
Law or of the National Electricity Rules, or
specified provisions of that Law or those Rules, to
be relevant legislation for the purposes of
35
5
551218B.I1-22/2/2005 BILL LA INTRODUCTION 22/2/2005
National Electricity (Victoria) Act 2005
Act No.
Part 2--National Electricity (Victoria) Law and National Electricity
s. 11
(Victoria) Regulations
section 10 of the Essential Services Commission
Act 2001.
(2) On the commencement of an Order under sub-
section (1) the provisions declared in the Order
are, despite anything to the contrary in the
5
Essential Services Commission Act 2001, to be
taken to be relevant legislation for the purposes of
section 10 of that Act.
Note: By operation of section 7A(b) of the Electricity Industry
10 Act 2000 the electricity industry is a regulated industry for
the purposes of the Essential Services Commission Act
2001.
11. VENCorp's participation in the national electricity
market
(1) For the purposes of the National Electricity
15
(Victoria) Law VENCorp is deemed to be a
regulated transmission system operator even when
it does not own, control or operate a transmission
system.
(2) In this section--
20
"VENCorp" means Victorian Energy Networks
Corporation established under Part 8 of the
Gas Industry Act 2001.
12. Supreme Court--limitation of jurisdiction
It is the intention of section 9 to alter or vary
25
section 85 of the Constitution Act 1975.
__________________
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National Electricity (Victoria) Act 2005
Act No.
Part 3--Repeals and Amendments of other Acts
s. 13
PART 3--REPEALS AND AMENDMENTS OF OTHER ACTS
13. Repeal
See:
The National Electricity (Victoria) Act 1997 is Act No.
repealed. 29/1997
and
amending
Act Nos
55/1997,
38/2000,
62/2001 and
40/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
14. Electricity Industry Act 2000--References to
5 Act No.
National Electricity Code substituted 68/2000.
Reprint No. 2
(1) In section 3 of the Electricity Industry Act 2000, as at
1 July 2004
for the definition of "National Electricity Code" and
substitute-- amending
Act Nos
' "National Electricity Rules" has the same
10 106/2003,
12/2004,
meaning as in the National Electricity 25/2004,
(Victoria) Law;'. 75/2004,
82/2004,
(2) In sections 19(3) and 31(7) of the Electricity 86/2004 and
91/2004.
Industry Act 2000, for "National Electricity Code LawToday:
and the Code" substitute "National Electricity www.dms.
15
dpc.vic.
Rules and the Rules". gov.au
(3) In section 79(2) of the Electricity Industry Act
2000--
(a) after "the" (where first occurring) insert
"National Electricity (Victoria) Act 2005,
20
the";
(b) for "National Electricity Code" substitute
"National Electricity Rules".
7
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Act No.
Part 3--Repeals and Amendments of other Acts
s. 15
15. Electricity Industry (Residual Provisions) Act
See:
1993--Repeal of redundant provisions
Act No.
130/1993.
Reprint No. 6 (1) In section 3(1) of the Electricity Industry
as at
(Residual Provisions) Act 1993, the definition of
26 May 2004
and "National Electricity Code" is repealed.
5 amending
Act Nos
(2) Section 158BA(1A) of the Electricity Industry
25/2004 and
(Residual Provisions) Act 1993 is repealed.
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
See: 16. Interpretation of Legislation Act 1984--References
Act No.
to National Electricity (Victoria) Act 1997
10096.
Reprint No. 7 substituted
10 as at
19 June 2002
In section 38AB of the Interpretation of
and
Legislation Act 1984--
amending
Act Nos
(a) in the definition of "National Electricity
30/2003 and
61/2004.
(Victoria) Law", for "National Electricity
LawToday:
(Victoria) Act 1997" substitute "National
15 www.dms.
dpc.vic.
Electricity (Victoria) Act 2005";
gov.au
(b) in the definition of "National Electricity
(Victoria) Regulations", for "National
Electricity (Victoria) Act 1997" substitute
"National Electricity (Victoria) Act 2005".
20
8
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National Electricity (Victoria) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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National Electricity (Victoria) Act 2005
Act No.
Index
INDEX
Subject Section
Act
amendments to other Acts 14-16
commencement 2
Crown bound by 4
extra-territorial operation 5
purpose 1
repeals 13
3, 8, 11
Definitions
Essential Services Commission Act 2001
relevant legislation for purposes of Section 10 of 10
9
Legal proceedings
National Electricity Rules
declared to be relevant legislation 10
proceedings in respect of breaches of 9
National Electricity (Victoria) Law
application 6
Crown bound by 4
declared to be relevant legislation 10
definition 3
extra-territorial operation 5
interpretation of some expressions in 3, 8
proceedings in respect of breaches of 9
National Electricity (Victoria) Regulations
application 7
Crown bound by 4
definition 3
extra-territorial operation 5
interpretation of some expressions in 8
proceedings in respect of breaches of 9
13
Repeals
Supreme Court
limitation of jurisdiction 12
VENCorp
participation in national electricity market 11
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National Electricity (Victoria) Act 2005
Act No.
Appendix
App.
APPENDIX
National Electricity (South Australia)
Act 1996 1
An Act to make provision for the operation of a national electricity market
and for other purposes.
-------------------------------------------------------------
Contents
Part 1--Preliminary
1 Short title
3 Interpretation
4 Crown to be bound
5 Extra-territorial operation
Part 2--National Electricity (South Australia) Law and National
Electricity (South Australia) Regulations
6 Application in South Australia of National Electricity Law
7 Application of regulations under National Electricity Law
8 Interpretation of some expressions in National Electricity (South
Australia) Law and National Electricity (South Australia)
Regulations
Part 4--Making of regulations and rules under National
Electricity Law
10 Definitions
11 General regulation-making power for National Electricity Law
12 Specific regulation-making power
13 Making of rules
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App.
Part 5--General
14 Freedom of information
Transitional etc provisions associated with Act or amendments
-------------------------------------------------------------
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Appendix
App.
The Parliament of South Australia enacts as follows:
Part 1--Preliminary
1--Short title
This Act may be cited as the National Electricity (South Australia)
Act 1996.
3--Interpretation
(1) In this Act--
National Electricity (South Australia) Law means the provisions
applying because of section 6 of this Act;
National Electricity (South Australia) Regulations means the
provisions applying because of section 7 of this Act.
(2) Words and expressions used in the National Electricity (South
Australia) Law and in this Act have the same respective meanings
in this Act as they have in that Law.
(3) Subsection (2) does not apply to the extent that the context or
subject matter otherwise indicates or requires.
4--Crown to be bound
This Act, the National Electricity (South Australia) Law and the
National Electricity (South Australia) Regulations bind the Crown,
not only in right of South Australia but also, so far as the legislative
power of the Parliament permits, the Crown in all its other
capacities.
5--Extra-territorial operation
It is the intention of the Parliament that the operation of this Act,
the National Electricity (South Australia) Law and the National
Electricity (South Australia) Regulations should, so far as possible,
include operation in relation to the following:
(a) land situated outside South Australia, whether in or
outside Australia;
(b) things situated outside South Australia, whether in or
outside Australia;
(c) acts, transactions and matters done, entered into or
occurring outside South Australia, whether in or outside
Australia;
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Appendix
App.
(d) things, acts, transactions and matters (wherever situated,
done, entered into or occurring) that would, apart from
this Act, be governed or otherwise affected by the law of
the Commonwealth, another State, a Territory or a
foreign country.
Part 2--National Electricity (South Australia) Law
and National Electricity (South Australia)
Regulations
6--Application in South Australia of National Electricity
Law
The National Electricity Law set out in the Schedule to this Act, as
in force for the time being--
(a) applies as a law of South Australia; and
(b) as so applying may be referred to as the National
Electricity (South Australia) Law.
7--Application of regulations under National Electricity
Law
The regulations in force for the time being under Part 4 of this
Act--
(a) apply as regulations in force for the purposes of the
National Electricity (South Australia) Law; and
(b) as so applying may be referred to as the National
Electricity (South Australia) Regulations.
8--Interpretation of some expressions in National Electricity
(South Australia) Law and National Electricity (South
Australia) Regulations
(1) In the National Electricity (South Australia) Law and the National
Electricity (South Australia) Regulations--
the jurisdiction or this jurisdiction means the State of South
Australia;
Legislature of this jurisdiction means the Parliament of South
Australia;
the National Electricity Law or this Law means the National
Electricity (South Australia) Law;
Supreme Court means the Supreme Court of South Australia.
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Appendix
App.
(2) The Acts Interpretation Act 1915 does not apply to the National
Electricity (South Australia) Law or the National Electricity (South
Australia) Regulations.
Part 4--Making of regulations and rules under
National Electricity Law
10--Definitions
In this Part--
National Electricity Law means the National Electricity Law set
out in the Schedule to this Act as in force for the time being.
11--General regulation-making power for National
Electricity Law
(1) The Governor may make such regulations as are contemplated by,
or necessary or expedient for the purposes of, the National
Electricity Law.
(2) Regulations under this Part may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which they are expressed to apply.
(3) Regulations under this Part may be made only on the unanimous
recommendation of the Ministers of the participating jurisdictions.
(5) Section 10 of the Subordinate Legislation Act 1978 does not apply
to a regulation under this Part.
12--Specific regulation-making power
(1) Without limiting the generality of section 11, the regulations may
deal with matters of a transitional nature 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.
(2) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1) 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 this subsection.
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App.
(3) If a provision of a regulation is 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, the provision must
also provide that the provision does not operate so as--
(a) to prejudicially affect the rights of a person (other than a
participating jurisdiction or NECA, NEMMCO, the
AEMC or the AER) existing before the date of making of
those regulations; or
(b) to impose liabilities on any person (other than a
participating jurisdiction or NECA, NEMMCO, the
AEMC or the AER) in respect of anything done or
omitted to be done before the date of making of those
regulations.
(4) In this section--
matters of a transitional nature includes matters of an application
or savings nature;
NECA means National Electricity Code Administrator Limited
ACN 073 942 775;
new National Electricity Law means the National Electricity Law
set out in the Schedule to this Act as in force from time to time
after the commencement of this subsection, or the Rules as in force
from time to time after the commencement of this subsection;
old National Electricity Law means the National Electricity Law
set out in the Schedule to this Act as in force from time to time
before the commencement of this subsection, or the Code as
defined by that Law and in force from time to time before the
commencement of this subsection.
13--Making of rules
The Subordinate Legislation Act 1978 does not apply to Rules
made under the National Electricity Law.
Part 5--General
14--Freedom of information
The following are exempt agencies for the purposes of the Freedom
of Information Act 1991:
(b) NEMMCO;
(c) an agent of NEMMCO with respect to functions
performed under the Rules.
__________________
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Appendix
App.
Transitional etc provisions associated with Act or
amendments
National Electricity (South Australia) (New National
Electricity Law) Amendment Act 2005
3--Exercise of rule-making power under new National
Electricity Law following assent
(1) The Minister may exercise the power to make Rules under section
90 of the new National Electricity Law before the commencement
of section 12 of this Act, but Rules so made will not take effect
until that commencement or a later day specified in the notice
published under that section.
(2) In this section--
new National Electricity Law means the National Electricity Law
comprised in the Schedule as set out in section 12 of this Act and
under that section to be substituted for the Schedule to the National
Electricity (South Australia) Act 1996.
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Appendix
App.
National Electricity Law
(Schedule to the National Electricity
(South Australia) Act 1996)
NOTES ON SECTIONS
PART 1--PRELIMINARY
Section 1 provides that this Law may be referred to as the National
Electricity Law (the NEL).
Section 2 sets out definitions used in the NEL.
Section 3 provides that Schedule 2 to the NEL, which contains
interpretation provisions, applies to the NEL, to Regulations
made under the National Electricity (South Australia) Act 1996
(the Regulations) and to the National Electricity Rules made
under the NEL (the Rules).
Section 4 provides that Schedule 3 to the NEL, which sets out savings and
transitional provisions, has effect.
Section 5 provides for the participating jurisdictions, which will be South
Australia together with the Commonwealth, any other State and
any Territory that has in place a law that applies the NEL as a
law of that jurisdiction.
Section 6 provides for the relevant Ministers of the participating
jurisdictions.
Section 7 sets out the national electricity market objective.
Section 8 provides that the Ministerial Council on Energy (MCE) may
issue statements of policy principles in relation to any matters
that are relevant to the functions and powers of the Australian
Energy Market Commission (AEMC); such statements must be
published in the South Australian Government Gazette by the
AEMC.
Section 9 provides for the Rules to have the force of law in each of the
participating jurisdictions.
Section 10 provides for the application of the NEL and the Regulations to
coastal waters.
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App.
PART 2--PARTICIPATION IN THE NATIONAL
ELECTRICITY MARKET
Section 11 prohibits a person engaging in certain activities unless the person
is registered or is the subject of a derogation or otherwise
exempted from registration.
Section 12 provides for requests to the National Electricity Market
Management Company (NEMMCO) for registration or
exemption from registration.
Section 13 provides for requests to the Australian Energy Market Regulator
(AER) for exemption from registration in relation to
transmission and distribution systems.
Section 14 is an evidentiary provision relating to registration and exemption.
PART 3--FUNCTIONS AND POWERS OF THE AUSTRALIAN
ENERGY REGULATOR
This Part provides for the functions and powers of the Australian Energy
Regulator established by section 44AE of the Trade Practices Act 1974 of the
Commonwealth (the TPA).
Division 1--General
Section 15 sets out the AER's functions and powers.
Section 16 makes provision in relation to the manner in which the AER
must perform or exercise the AER's economic regulatory
functions or powers.
Section 17 provides that a delegation by the AER under section 44AAH of
the TPA is effective for the purposes of the NEL, Regulations
and Rules.
Section 18 provides that the confidentiality provisions of section 44AAF of
the TPA are effective for the purposes of the NEL, Regulations
and Rules.
Division 2--Investigation Powers
Section 19 sets out definitions for the purposes of this Division.
Section 20 provides that the AER may authorise persons to be authorised
persons for the purposes of this Division.
Section 21 provides for the issue of search warrants by a magistrate.
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App.
Section 22 provides for announcement before entry to a place in execution
of a search warrant.
Section 23 requires certain details of a search warrant to be given to the
occupier of premises.
Section 24 requires a certified copy of a seized document to be provided to
the person from whom it was seized in execution of a search
warrant.
Section 25 provides for return of documents or other things seized in
execution of a search warrant.
Section 26 provides for extension of the period within which a document or
other thing must be returned.
Section 27 creates an offence of obstructing or hindering a person in the
exercise of power under a warrant, for which the penalty is a fine
of up to $2,000 for a natural person or up to $10,000 for a body
corporate.
Section 28 provides that the AER may serve notices requiring information
to be furnished or documents to be produced and creates an
offence of failing to comply with such a notice, for which the
penalty is a fine of up to $2,000 for a natural person or up to
$10,000 for a body corporate.
PART 4--FUNCTIONS AND POWERS OF THE AUSTRALIAN
ENERGY MARKET COMMISSION
This Part provides for the functions and powers of the Australian Energy
Market Commission established by section 5 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia (the AEMC
Act).
Division 1--General
Section 29 sets out the AEMC's functions and powers.
Section 30 provides that a delegation by the AEMC under section 20 of the
AEMC Act is effective for the purposes of the NEL, Regulations
and Rules.
Section 31 provides that the confidentiality provisions of section 24 of the
AEMC Act are effective for the purposes of the NEL,
Regulations and Rules.
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App.
Section 32 provides that the AEMC must have regard to the national
electricity market objective.
Section 33 provides that the AEMC must have regard to any relevant MCE
statements of policy principles in making a Rule or conducting
certain reviews.
Division 2--Rule making Functions and Powers of the AEMC
Section 34 provides for the subject matter of the Rules; Schedule 1 to the
NEL also specifies matters about which the AEMC may make
Rules.
Section 35 provides for the making of Rules in relation to economic
regulation of transmission systems.
Section 36 provides that the Rules are at all times to provide for certain
matters relating to transmission systems.
Section 37 requires documents applied, adopted or incorporated by a Rule
to be publicly available.
Division 3--Committees, Panels and Working Groups of the
AEMC
Section 38 provides for the AEMC to establish a Reliability Panel.
Section 39 provides for establishment of committees, panels (other than the
Reliability Panel) and working groups by the AEMC.
Division 4--MCE Directed Reviews
Section 40 sets out a definition for the purposes of this Division.
Section 41 provides that the MCE may direct the AEMC to conduct
reviews; such a direction must be published in the South
Australian Government Gazette.
Section 42 provides for the terms of reference of MCE directed reviews.
Section 43 requires the AEMC to publish notice of an MCE directed
review.
Section 44 provides for the conduct of MCE directed reviews.
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App.
Division 5--Other Reviews
Section 45 provides for reviews by the AEMC other than MCE directed
reviews.
Division 6--Miscellaneous
Section 46 requires the AEMC to maintain an up to date copy of the Rules
on its website and to make copies of the Rules available for
inspection at its offices.
Section 47 provides for the AEMC to charge fees as specified in the
Regulations.
Section 48 provides for the confidentiality of information provided to the
AEMC for the purposes of a review.
PART 5--ROLE OF NEMMCO UNDER THE NATIONAL
ELECTRICITY LAW
Division 1--General
Section 49 sets out NEMMCO's functions in respect of the national
electricity market.
Section 50 provides for how NEMMCO must perform its functions.
Section 51 provides that NEMMCO is not to be taken to be engaged in
certain activities by reason only of it performing functions
conferred under the NEL and Rules.
Section 52 provides for NEMMCO to be able to delegate functions and
powers.
Division 2--Statutory Funds of NEMMCO
Section 53 sets out definitions for the purposes of this Division.
Section 54 provides for the continuation and establishment of Rule funds.
Section 55 provides for payments into Rule funds.
Section 56 provides for investment of moneys in Rule funds.
Section 57 provides that neither NEMMCO nor its directors are to be taken
to be trustees of a Rule fund.
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PART 6--PROCEEDINGS UNDER THE NATIONAL
ELECTRICITY LAW
Division 1--General
Section 58 sets out definitions for the purposes of this Part.
Section 59 provides that proceedings for breach of the NEL, Regulations or
Rules may not be instituted except as provided in this Part.
Division 2--Proceedings by the AER in respect of this Law, the
Regulations and the Rules
Section 60 provides for the time limit within which proceedings may be
instituted.
Section 61 provides for the orders that may be made in proceedings in
respect of breaches of provisions of the NEL, Regulations or
Rules that are not offence provisions.
Section 62 provides that the Court may, in an order under section 61, also
direct disconnection of loads or suspension of purchase or
supply through the wholesale exchange.
Section 63 provides that the Court may order disconnection in
circumstances, as specified in the Rules, which are not breaches.
Section 64 sets out matters to be taken into account in determining civil
penalties.
Section 65 provides that a breach of a civil penalty provision (as defined in
section 58) is not an offence.
Section 66 provides for breaches of civil penalty provisions involving
continuing failure.
Section 67 provides for liability for one civil penalty in respect of the same
conduct constituting a breach of two or more civil penalty
provisions.
Section 68 provides for aiding, abetting, counselling, procuring or being
knowingly concerned in or party to a breach of a civil penalty
provision.
Section 69 provides that civil penalties are payable to the Commonwealth.
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Division 3--Judicial Review of Decisions and Determinations
under this Law, the Regulations and the Rules
Section 70 provides that aggrieved persons (as defined) may apply for
judicial review in respect of AEMC or NEMMCO decisions and
determinations; the operation of a decision or determination is
not affected by an application for judicial review, unless the
Court otherwise orders.
Section 71 provides for appeals on questions of law against a decision or
determination of a dispute resolution panel (as defined in
section 58).
Division 4--Other Civil Proceedings
Section 72 provides for proceedings in relation to the payment of amounts
required under the Rules to be paid.
Division 5--Infringement Notices
Section 73 sets out a definition of "relevant civil penalty provision" for the
purposes of this Division.
Section 74 provides that the AER may serve infringement notices for
breaches of relevant civil penalty provisions.
Section 75 provides for the form of the infringement notice.
Section 76 sets out the amount of the infringement penalty: $4,000, or such
lesser amount as is prescribed in the Regulations, for a natural
person; or $20,000, or such lesser amount as is prescribed in the
Regulations, for a body corporate.
Section 77 provides that the AER must not, without first withdrawing the
infringement notice, institute proceedings for a breach until the
period for payment under the infringement notice expires.
Section 78 provides for when the AER may accept late payment of an
infringement penalty.
Section 79 provides that the AER may withdraw an infringement notice.
Section 80 provides for refund of an infringement penalty if the
infringement notice is withdrawn.
Section 81 provides for expiation of a breach subject to an infringement
notice.
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Section 82 provides that payment of an infringement penalty is not to be
taken to be an admission of a breach or of liability.
Section 83 provides for payment of one infringement penalty in respect of
the same conduct constituting a breach of two or more civil
penalty provisions for which two or more infringement notices
have been served.
Division 6--Miscellaneous
Section 84 requires the AER to inform certain persons of decisions not to
investigate breaches, institute proceedings or serve infringement
notices.
Section 85 provides that an officer (as defined) of a corporation is also
liable for a breach of an offence provision or civil penalty
provision by the corporation if the officer knowingly authorised
or permitted the breach.
Section 86 provides that an act committed by an officer (as defined) or
employee of a relevant participant (as defined) will be a breach
where the act, if committed by the relevant participant, would be
a breach.
PART 7--THE MAKING OF THE NATIONAL ELECTRICITY
RULES
Division 1--General
Section 87 sets out definitions for the purposes of this Part.
Section 88 sets out the test to be applied by the AEMC in making a Rule;
the test refers to the national market objective (see section 7).
Section 89 provides for certain matters to which the AEMC must have
regard when making jurisdictional derogations.
Division 2--Initial National Electricity Rules
Section 90 provides for the South Australian Minister to make the initial
Rules; a notice of making must be published in the South
Australian Government Gazette and the Rules must be made
publicly available.
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Division 3--Procedure for the Making of a Rule by the AEMC
Section 91 provides for who may request the making of a Rule and also
provides that the AEMC must not make a Rule on its own
initiative except in certain circumstances.
Section 92 sets out what a request for the making of a Rule must contain.
Section 93 provides for how multiple requests for the making of a Rule are
to be treated.
Section 94 provides for initial consideration by the AEMC of a request for a
Rule.
Section 95 requires the AEMC to give notice of a proposed Rule.
Section 96 provides for the making of non-controversial and urgent Rules.
Section 97 provides for the making of written submissions on a proposed
Rule.
Section 98 provides for the holding of a hearing in relation to a proposed
Rule.
Section 99 requires the AEMC to publish its draft determination, including
reasons, in relation to a proposed Rule.
Section 100 provides for written submissions on a draft Rule determination.
Section 101 provides for holding of a pre-final determination in relation to a
draft Rule determination.
Section 102 requires the AEMC to publish its final Rule determination,
including reasons.
Section 103 requires the AEMC to make a Rule as soon as practicable after
publication of its final Rule determination; notice of the making
of a Rule must be published in the South Australian Government
Gazette.
Section 104 provides that a Rule comes into operation on the day the notice
of making is published or on such later date as is specified in
that notice or the Rule.
Section 105 requires the AEMC, without delay after making a Rule, to
publish the Rule on its website and make a copy available for
inspection at its offices.
Section 106 is an evidentiary provision relating to the Rules.
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Division 4--Miscellaneous Provisions Relating to Rule Making by
the AEMC
Section 107 provides for extension of set periods relating to Rule making.
Section 108 provides that the AEMC may publish written submissions and
also provides how confidential information received by it as part
of the Rule making process is to be treated.
PART 8--SAFETY AND SECURITY OF THE NATIONAL
ELECTRICITY SYSTEM
Section 109 sets out definitions for the purposes of this Part.
Section 110 provides for appointment of a jurisdictional system security
coordinator.
Section 111 provides for the preparation of jurisdictional load shedding
guidelines.
Section 112 requires NEMMCO to develop load shedding guidelines for
each participating jurisdiction.
Section 113 provides for exchange of load shedding information in certain
circumstances.
Section 114 requires NEMMCO to use reasonable endeavours to ensure the
national electricity system is operated so as to maintain supply to
sensitive loads.
Section 115 provides for shedding and restoring of loads.
Section 116 provides for action that may be directed or authorised by
NEMMCO to maintain power system security or for public
safety.
Section 117 provides for liaison between NEMMCO and jurisdictions in
cases of emergency.
Section 118 creates an offence of obstructing or hindering the exercise of
powers under section 116, for which the penalty is a fine of up to
$20,000 for a natural person or up to $100,000 for a body
corporate.
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PART 9--IMMUNITIES
Section 119 provides an immunity for NEMMCO and network service
providers in certain circumstances.
Section 120 provides an immunity in relation to failure to supply electricity.
Section 121 provides an immunity from personal liability for AEMC officials
(as defined).
SCHEDULES
Schedule 1 specifies matters about which the AEMC may make Rules;
see also section 34.
Schedule 2 contains interpretation provisions that will apply to the NEL,
Regulations and Rules.
Schedule 3 sets out savings and transitional provisions.
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Schedule--National Electricity Law
Contents
Part 1--Preliminary
1 Citation
2 Definitions
3 Interpretation generally
4 Savings and transitionals
5 Participating jurisdictions
6 Ministers of participating jurisdictions
7 National electricity market objective
8 MCE statements of policy principles
9 National Electricity Rules to have force of law
10 Application of this Law and Regulations to coastal waters of this
jurisdiction
Part 2--Participation in the National Electricity Market
11 Registration required to undertake certain activities in the national
electricity market
12 Registration or exemption of persons participating in the national
electricity market
13 Exemptions for transmission system or distribution system owners,
controllers and operators
14 Evidence as to Registered participants and exemptions
Part 3--Functions and powers of the Australian Energy
Regulator
Division 1--General
15 Functions and powers of the AER
16 Manner in which AER must perform or exercise AER economic
regulatory functions or powers
17 Delegations
18 Confidentiality
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Division 2--Investigation powers
19 Definitions
20 Authorised person
21 Search warrant
22 Announcement before entry
23 Details of warrant to be given to occupier
24 Copies of seized documents
25 Retention and return of seized documents or things
26 Period for retention of documents or things seized may be extended
27 Obstruction of persons authorised to enter
28 Power to obtain information and documents in relation to
performance and exercise of functions and powers
Part 4--Functions and powers of the Australian Energy Market
Commission
Division 1--General
29 Functions and powers of the AEMC
30 Delegations
31 Confidentiality
32 AEMC must have regard to national electricity market objective
33 AEMC must have regard to MCE statements of policy principles in
relation to Rule making and reviews
Division 2--Rule making functions and powers of the AEMC
34 Subject matter for National Electricity Rules
35 Rules in relation to economic regulation of transmission systems
36 National Electricity Rules to always provide for certain matters
relating to transmission systems
37 Documents etc applied, adopted and incorporated by Rules to be
publicly available
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Division 3--Committees, panels and working groups of the AEMC
38 The Reliability Panel
39 Establishment of committees and panels (other than the Reliability
Panel) and working groups
Division 4--MCE directed reviews
40 Definition
41 MCE directions
42 Terms of reference
43 Notice of MCE directed review
44 Conduct of MCE directed review
Division 5--Other reviews
45 Reviews by the AEMC
Division 6--Miscellaneous
46 AEMC must publish and make available up to date versions of the
National Electricity Rules
47 Fees for services provided
48 Confidentiality of information received for the purposes of a review
Part 5--Role of NEMMCO under the National Electricity Law
Division 1--Conferral of certain functions
49 Functions of NEMMCO in respect of national electricity market
50 Operation and administration of national electricity market
51 NEMMCO not to be taken to be engaged in the activity of
controlling or operating a generating, transmission or distribution
system
52 Delegation
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Division 2--Statutory funds of NEMMCO
53 Definitions
54 Rule funds of NEMMCO
55 Payments into Rule funds
56 Investment
57 NEMMCO not trustee
Part 6--Proceedings under the National Electricity Law
Division 1--General
58 Definitions
59 Instituting civil proceedings under this Law
Division 2--Proceedings by the AER in respect of this Law, the
Regulations and the Rules
60 Time limit within which AER may institute proceedings
61 Proceedings for breaches of a provision of this Law, the
Regulations or the Rules that are not offences
62 Additional Court orders for Registered participants in breach
63 Orders for disconnection in certain circumstances where there is no
breach
64 Matters for which there must be regard in determining amount of
civil penalty
65 Breach of a civil penalty provision is not an offence
66 Breaches of civil penalty provisions involving continuing failure
67 Conduct in breach of more than one civil penalty provision
68 Persons involved in breach of civil penalty provision
69 Civil penalties payable to the Commonwealth
Division 3--Judicial review of decisions and determinations under
this Law, the Regulations and the Rules
70 Applications for judicial review
71 Appeals on questions of law from decisions or determinations of
Dispute resolution panels
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Division 4--Other civil proceedings
72 Obligations under Rules to make payments
Division 5--Infringement notices
73 Definition
74 Power to serve a notice
75 Form of notice
76 Infringement penalty
77 AER cannot institute proceedings while infringement notice on foot
78 Late payment of penalty
79 Withdrawal of notice
80 Refund of infringement penalty
81 Payment expiates breach of relevant civil penalty provision
82 Payment not to have certain consequences
83 Conduct in breach of more than one civil penalty provision
Division 6--Miscellaneous
84 AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
85 Offences and breaches by corporations
86 Proceedings for breaches of certain provisions in relation to actions
of officers and employees of relevant participants
Part 7--The making of the National Electricity Rules
Division 1--General
87 Definitions
88 Rule making test to be applied by AEMC
89 AEMC must have regard to certain matters in relation to the
making of jurisdictional derogations
Division 2--Initial National Electricity Rules
90 South Australian Minister to make initial National Electricity Rules
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Division 3--Procedure for the making of a Rule by the AEMC
91 Initiation of making of a Rule
92 Content of requests for a Rule
93 More than one request in relation to same or related subject matter
94 Initial consideration of request for Rule
95 Notice of proposed Rule
96 Non-controversial and urgent Rules
97 Right to make written submissions and comments
98 AEMC may hold public hearings before draft Rule determination
99 Draft Rule determination
100 Right to make written submissions and comments in relation to
draft Rule determination
101 Pre-final Rule determination hearing may be held
102 Final Rule determination as to whether to make a Rule
103 Making of Rule
104 Operation and commencement of Rule
105 Rule that is made to be published on website and made available to
the public
106 Evidence of the National Electricity Rules
Division 4--Miscellaneous provisions relating to Rule making by the
AEMC
107 AEMC may extend certain periods of time specified in Division 3
108 AEMC may publish written submissions and comments unless
confidential
Part 8--Safety and security of the National Electricity System
109 Definitions
110 Appointment of jurisdictional system security coordinator
111 Jurisdictional system security coordinator to prepare jurisdictional
load shedding guidelines
112 NEMMCO to develop load shedding procedures for each
participating jurisdiction
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113 NEMMCO and jurisdictional system security coordinator to
exchange load shedding information in certain circumstances
114 NEMMCO to ensure that the national electricity system is operated
in manner that maintains the supply to sensitive loads
115 Shedding and restoring of loads
116 Actions that may be taken to ensure safety and security of national
electricity system
117 NEMMCO to liaise with Minister of this jurisdiction and others
during an emergency
118 Obstruction of persons exercising certain powers in relation to the
safety and security of the national electricity system.
Part 9--Immunities
119 Immunity of NEMMCO and network service providers
120 Immunity in relation to failure to supply electricity
121 Immunity from personal liability of AEMC officials
Schedule 1--Subject matter for the National Electricity
Rules
Schedule 2--Miscellaneous provisions relating to
interpretation
Schedule 3--Savings and transitionals
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Schedule--National Electricity Law
Part 1--Preliminary
1--Citation
This Law may be referred to as the National Electricity Law.
2--Definitions
In this Law--
AEMC initiated Rule means a Rule of the kind referred to in
section 91(2);
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 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 the Rules that
relates to the making of a transmission determination;
Australian Energy Market Commission or AEMC means the
Australian Energy Market Commission established by section 5 of
the Australian Energy Market Commission Establishment Act 2004
of South Australia;
Australian Energy Regulator or AER means the Australian Energy
Regulator established by section 44AE of the Trade Practices Act
1974 of the Commonwealth;
Court means--
(a) where this Law applies as a law of the Commonwealth,
the Federal Court;
(b) where this Law applies as a law of a participating
jurisdiction that is a State or a Territory, the Supreme
Court of that jurisdiction;
derogation means a jurisdictional derogation or participant
derogation;
draft Rule determination means a determination of the AEMC
under section 99;
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electricity services means services that are necessary or incidental
to the supply of electricity to consumers of electricity, including--
(a) the generation of electricity;
(b) services provided by means of, or in connection with, a
transmission system or distribution system;
(c) the sale of electricity;
Federal Court means the Federal Court of Australia;
final Rule determination means a determination of the AEMC
under section 102;
initial National Electricity Rules means the National Electricity
Rules made under section 90;
jurisdictional derogation means a Rule made at the request of a
Minister of a participating jurisdiction that--
(a) exempts, in a specified case or class of cases, a person or
a body performing or exercising a function or power, or
conferred a right, or on whom an obligation is imposed,
under the Rules (including a Registered participant), or a
class of such a person or body, or NEMMCO, from
complying with a provision, or a part of a provision, of
the Rules in the participating jurisdiction to which the
derogation relates; or
(b) modifies or varies the application of a provision of the
Rules (with or without substitution of a provision of the
Rules or a part of a provision of the Rules) to a person or
a body performing or exercising a function or power, or
conferred a right, or on whom an obligation is imposed,
under the Rules (including a Registered participant), or a
class of such a person or body, or NEMMCO, in the
participating jurisdiction to which the derogation relates;
jurisdictional electricity legislation means any legislation of a
participating jurisdiction (other than national electricity legislation),
or any instrument made or issued under or for the purposes of that
legislation, that regulates the electricity industry operating in that
jurisdiction;
jurisdictional regulator means--
(a) if this Law is applied as a law of the State of New South
Wales, 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;
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(b) if this Law is applied as a law of the State of Victoria, the
Essential Services Commission established by section
7(1) of the Essential Services Commission Act 2001 of
Victoria;
(c) if this Law is applied as a law of the State of Queensland,
the Queensland Competition Authority established by
section 7 of the Queensland Competition Authority Act
1997 of Queensland;
(d) if this Law is applied as a law of the State of South
Australia, the Essential Services Commission established
by section 4(1) of the Essential Services Commission
Act 2002 of South Australia;
(e) if this Law is applied as a law of the Australian Capital
Territory, 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;
(f) if a person or body referred to in paragraphs (a) to (e) is
abolished under an Act of a participating jurisdiction and
another person or body is established under an Act of that
participating jurisdiction with functions and powers that
correspond to the functions and powers of the person or
body referred to in paragraphs (a) to (e), that other person
or body;
(g) if the functions and powers of a person or body referred
to in paragraphs (a) to (e) are transferred to another
person or body established under an Act of the relevant
participating jurisdiction, that other person or body;
(h) any other person or body established under an Act of a
participating jurisdiction that is prescribed by the
Regulations as a jurisdictional regulator of that
jurisdiction;
jurisdictional system security coordinator means a person
appointed under section 110;
MCE means the Ministerial Council on Energy established on 8
June 2001, being the Council of Ministers with primary carriage of
energy matters at national level comprising the Ministers
representing the Commonwealth, the States, the Australian Capital
Territory and the Northern Territory, acting in accordance with its
own procedures;
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MCE statement of policy principles means a statement of policy
principles issued by the MCE under section 8;
Minister of a participating jurisdiction means a Minister who is a
Minister of a participating jurisdiction within the meaning of
section 6;
National Electricity Code means the code of conduct called the
National Electricity Code approved, in accordance with section
6(1) of the old National Electricity Law, as the initial Code for the
purposes of that Law, and as amended from time to time in
accordance with its terms and the old National Electricity Law;
national electricity legislation means--
(a) the National Electricity (South Australia) Act 1996 of
South Australia and Regulations in force under that Act;
and
(b) the National Electricity (South Australia) Law; and
(c) an Act of a participating jurisdiction (other than South
Australia) that applies, as a law of that jurisdiction, any
part of--
(i) the Regulations referred to in paragraph (a); or
(ii) the National Electricity Law set out in the
Schedule to the Act referred to in paragraph (a);
and
(d) the National Electricity Law set out in the Schedule to the
Act referred to in paragraph (a) as applied as a law of a
participating jurisdiction (other than South Australia);
and
(e) the Regulations referred to in paragraph (a) as applied as
a law of a participating jurisdiction (other than South
Australia);
national electricity market means--
(a) the wholesale exchange operated and administered by
NEMMCO under this Law and the Rules; and
(b) the national electricity system;
national electricity market objective means the objective set out in
section 7;
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National Electricity Rules or Rules means--
(a) the initial National Electricity Rules; and
(b) Rules made by the AEMC under this Law, including
Rules that amend or revoke--
(i) the initial National Electricity Rules; or
(ii) Rules made by it;
national electricity system means--
(a) the generating systems and other facilities owned,
controlled or operated in the participating jurisdictions
connected to the interconnected transmission and
distribution system referred to in paragraph (b); and
(b) the interconnected transmission and distribution system
in the participating jurisdictions used to convey and
control the conveyance of electricity to which are
connected--
(i) generating systems and other facilities; and
(ii) loads settled through the wholesale exchange
operated and administered by NEMMCO under
this Law and the Rules;
NEMMCO means National Electricity Market Management
Company Limited ACN 072 010 327;
offence provision means a provision of this Law the breach or
contravention of which exposes a person to a criminal penalty;
old National Electricity Law means the National Electricity Law
set out in the Schedule to the National Electricity (South Australia)
Act 1996 of South Australia as in force from time to time before the
commencement of section 12 of the National Electricity (South
Australia) (New National Electricity Law) Amendment Act 2005 of
South Australia;
participant derogation means a Rule made at the request of a
person who is conferred a right, or on whom an obligation is
imposed, under the Rules (including a Registered participant), or
NEMMCO, that--
(a) exempts, in a specified case or class of cases, that person
or a class of person of which that person is a member, or
NEMMCO, from complying with a provision, or a part of
a provision, of the Rules, including a jurisdictional
derogation; or
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(b) modifies or varies the application of a provision of the
Rules, including a jurisdictional derogation, (with or
without substitution of a provision of the Rules or a part
of a provision of the Rules) to that person or class of
person of which that person is a member, or NEMMCO;
participating jurisdiction means a jurisdiction that is a
participating jurisdiction within the meaning of section 5;
power system security means the safe scheduling and dispatch, and
operation and control, of the national electricity system;
Registered participant means a person who is registered as such by
NEMMCO under this Law and the Rules or is registered as such by
NEMMCO otherwise in accordance with the Rules;
regulated transmission system operator means an owner,
controller or operator of a transmission system--
(a) who is a Registered participant; and
(b) whose revenue or prices are regulated under a
transmission determination;
Regulations means the regulations made under Part 4 of the
National Electricity (South Australia) Act 1996 of South Australia
that apply as a law of this jurisdiction;
regulatory obligation means, in relation to the provision by a
regulated transmission system operator of services that are the
subject of a transmission determination--
(a) a transmission reliability standard;
(b) a transmission service standard;
(c) legislation of a participating jurisdiction or any
instrument made or issued under or for the purposes of
that legislation that levies or imposes a tax that is payable
by a regulated transmission system operator;
(d) legislation of a participating jurisdiction or any
instrument made or issued under or for the purposes of
that legislation that regulates the use of land in a
participating jurisdiction by a regulated transmission
system operator;
(e) legislation of a participating jurisdiction or any
instrument made or issued under or for the purposes of
that legislation that relates to the protection of the
environment;
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(f) legislation of a participating jurisdiction or any
instrument made or issued under or for the purposes of
that legislation (other than national electricity legislation
or legislation or an instrument referred to in paragraphs
(c) to (e)) that materially affects the provision, by a
regulated transmission system operator, of services that
are the subject of a transmission determination,
but does not include a penalty paid or to be paid under legislation
or an instrument referred to in paragraphs (c) to (f);
relevant court means any court of this jurisdiction;
relevant participant means--
(a) a Registered participant; or
(b) NEMMCO; or
(c) a person engaging in an activity in breach of
section 11(1), (2), (3) or (4); or
(d) a person prescribed by the Regulations to be a relevant
participant,
but does not include a Registered participant that is prescribed by
the Regulations not to be a relevant participant;
Reliability Panel means the panel of persons established by the
AEMC under section 38;
transmission determination means a determination of the AER
under the Rules that regulates--
(a) 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 services that are
the subject of economic regulation under the Rules; or
(b) the prices an owner, controller or operator of a
transmission system charges, or may charge for services
provided by that owner, controller or operator that are the
subject of economic regulation under the Rules;
transmission reliability standard means a standard imposed by or
under the Rules or jurisdictional electricity legislation relating to
the reliability or performance of a transmission system;
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transmission service standard means a standard relating to the
standard of services provided by a regulated transmission system
operator by means of, or in connection with, a transmission system
imposed--
(a) by or under jurisdictional electricity legislation; or
(b) by the AER in accordance with the Rules.
3--Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations and the
Rules and any other statutory instrument made under this Law.
4--Savings and transitionals
Schedule 3 to this Law has effect.
5--Participating jurisdictions
(1) The following jurisdictions are participating jurisdictions for the
purposes of this Law--
(a) the State of South Australia; and
(b) the Commonwealth, a Territory or a State (other than
South Australia) if there is in force, as part of the law of
that jurisdiction, a law that corresponds to Part 2 of the
National Electricity (South Australia) Act 1996 of South
Australia.
(2) If a law of a participating jurisdiction referred to in
subsection (1)(b) that corresponds to Part 2 of the National
Electricity (South Australia) Act 1996 of South Australia ceases to
be in force, the jurisdiction ceases to be a participating jurisdiction.
(3) If, at any time, all participating jurisdictions agree that a specified
jurisdiction will cease to be a participating jurisdiction on a
specified date, the jurisdiction ceases to be a participating
jurisdiction on that date.
(4) A notice must be published in the South Australian Government
Gazette of the date on which a jurisdiction ceases to be a
participating jurisdiction under subsection (2) or (3).
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(5) If the legislature of a participating jurisdiction enacts a law that, in
the unanimous opinion of the Ministers of the other participating
jurisdictions, is inconsistent with this Law, those other participating
jurisdictions may give notice to the Minister of the first-mentioned
participating jurisdiction to the effect that, if the inconsistent law
remains in force as an inconsistent law for more than 6 months after
the notice is given, the other participating jurisdictions may declare
that the jurisdiction has ceased to be a participating jurisdiction.
(6) A jurisdiction ceases to be a participating jurisdiction on
publication in the South Australian Government Gazette of a
declaration made by the Ministers of the other participating
jurisdictions in accordance with subsection (5).
6--Ministers of participating jurisdictions
(1) The Ministers of the participating jurisdictions are--
(a) the Minister of the Crown in right of South Australia
administering Part 2 of the National Electricity (South
Australia) Act 1996 of South Australia; and
(b) the Ministers of the Crown in right of the other
participating jurisdictions administering the laws of those
jurisdictions that correspond to Part 2 of the National
Electricity (South Australia) Act 1996 of South Australia.
(2) The State of Tasmania may nominate a Minister of the Crown in
right of that State to be a Minister of a participating jurisdiction and
the nominated Minister is to be treated as such until--
(a) there is in force in Tasmania a law that corresponds to
Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia; or
(b) a date fixed by all participating jurisdictions by
agreement,
whichever first occurs.
(3) A notice of an agreement under subsection (2) must be published in
the South Australian Government Gazette.
7--National electricity market objective
The national electricity market objective is to promote efficient
investment in, and efficient use of, electricity services for the long
term interests of consumers of electricity with respect to price,
quality, reliability and security of supply of electricity and the
reliability, safety and security of the national electricity system.
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8--MCE statements of policy principles
(1) Subject to this section, the MCE may issue a statement of policy
principles in relation to any matters that are relevant to the exercise
and performance by the AEMC of its functions and powers.
(2) Before issuing a statement of policy principles, the MCE must be
satisfied that the statement is consistent with the national electricity
market objective.
(3) As soon as practicable after issuing a statement of policy principles,
the MCE must give a copy of the statement to the AEMC.
(4) The AEMC must publish the statement in the South Australian
Government Gazette and on its website as soon as practicable after
it is given a copy of the statement.
9--National Electricity Rules to have force of law
The National Electricity Rules have the force of law in this
jurisdiction.
10--Application of this Law and Regulations to coastal
waters of this jurisdiction
(1) This Law and the Regulations apply in the coastal waters of this
jurisdiction.
Note--
The Rules apply in this jurisdiction by operation of this
Law.
(2) In this section--
adjacent area has the same meaning as in the Petroleum
(Submerged Lands) Act 1967 of the Commonwealth;
coastal waters of this jurisdiction means any sea that is on the
landward side of the adjacent area of this jurisdiction but is not
within the limits of this jurisdiction.
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Part 2--Participation in the National Electricity
Market
11--Registration required to undertake certain activities in
the national electricity market
(1) A person must not engage in the activity of owning, controlling or
operating a generating system connected to the interconnected
transmission and distribution system unless--
(a) the person is a Registered participant in relation to that
activity; or
(b) the person is the subject of a derogation that exempts the
person, or is otherwise exempted by NEMMCO, from the
requirement to be a Registered participant in relation to
that activity under this Law and the Rules.
Note--
Subsection (1) is a civil penalty provision: See the
definition of "civil penalty provision" in section 58.
(2) A person must not engage in the activity of owning, controlling or
operating a transmission system or distribution system that forms
part of the interconnected transmission and distribution system
unless--
(a) the person is a Registered participant in relation to that
activity; or
(b) the person is the subject of a derogation that exempts the
person, or is otherwise exempted by the AER, from the
requirement to be a Registered participant in relation to
that activity under this Law and the Rules.
Note--
Subsection (2) is a civil penalty provision: See the
definition of "civil penalty provision" in section 58.
(3) A person, other than NEMMCO, must not engage in the activity of
operating or administering a wholesale exchange for electricity.
Note--
Subsection (3) is a civil penalty provision: See the
definition of "civil penalty provision" in section 58.
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(4) A person must not engage in the activity of purchasing electricity
directly through a wholesale exchange unless--
(a) the person is a Registered participant in relation to that
activity; or
(b) the person is the subject of a derogation that exempts the
person, or is otherwise exempted by NEMMCO, from the
requirement to be a Registered participant in relation to
that activity under this Law and the Rules.
Note--
Subsection (4) is a civil penalty provision: See the
definition of "civil penalty provision" in section 58.
12--Registration or exemption of persons participating in
the national electricity market
(1) A person engaged or proposing to engage in an activity referred to
in section 11(1), (2) or (4) may request NEMMCO to register that
person as a Registered participant in relation to that activity for the
purposes of this Law and the Rules.
(2) A person engaged or proposing to engage in an activity referred to
in section 11(1) or (4) may request NEMMCO to exempt that
person from registering as a Registered participant in relation to
that activity for the purposes of this Law and the Rules.
(3) A request under subsection (1) or (2) must be in accordance with
the Rules.
(4) On receipt of a request under subsection (1) to be registered as a
Registered participant, NEMMCO may, subject to the Rules,
register the person in such categories of registration as are specified
in the Rules.
(5) On receipt of a request under subsection (2) to be exempted from
being registered as a Registered participant, NEMMCO may,
subject to the Rules, grant the person the exemption.
(6) Registration as a Registered participant under subsection (4) or an
exemption granted under subsection (5) may be subject to such
terms and conditions as NEMMCO considers appropriate in
accordance with the Rules.
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13--Exemptions for transmission system or distribution
system owners, controllers and operators
(1) A person engaged or proposing to engage in the activity referred to
in section 11(2) may request the AER to exempt that person from
registering as a Registered participant in relation to that activity for
the purposes of this Law and the Rules.
(2) A request under subsection (1) must be in accordance with the
Rules.
(3) On receipt of a request under subsection (1), the AER may, subject
to the Rules, grant the person the exemption.
(4) An exemption granted under subsection (3) may be subject to such
terms and conditions as the AER considers appropriate in
accordance with the Rules.
14--Evidence as to Registered participants and exemptions
(1) A certificate signed by a member of the board of directors of
NEMMCO certifying that a person--
(a) is a Registered participant is evidence that the person is a
Registered participant;
(b) has been granted an exemption under section 12 is
evidence that the person has been granted the exemption.
Note--
A certificate may be in respect of a Registered participant
registered by NEMMCO in accordance with section 12
and the Rules, or in accordance with the Rules alone.
(2) A certificate signed by a member of the AER certifying that a
person has been granted an exemption under section 13 is evidence
that the person has been granted the exemption.
Part 3--Functions and powers of the Australian
Energy Regulator
Division 1--General
15--Functions and powers of the AER
The AER has the following functions and powers--
(a) to monitor compliance by Registered participants and
other persons with this Law, the Regulations and the
Rules; and
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(b) to investigate breaches or possible breaches of provisions
of this Law, the Regulations or the Rules that are not
offence provisions; and
(c) to institute and conduct proceedings--
(i) against relevant participants under section 61 of
this Law or section 44AAG of the Trade
Practices Act 1974 of the Commonwealth; or
(ii) in respect of Registered participants under
section 63 of this Law; or
(iii) against persons under section 68 of this Law;
and
(d) to institute and conduct appeals from decisions in
proceedings referred to in paragraph (c); and
(e) to exempt persons proposing to engage, or engaged, in
the activity of owning, controlling or operating a
transmission system or distribution system forming part
of the interconnected transmission and distribution
system from being registered as Registered participants;
and
(f) AER economic regulatory functions or powers; and
(g) any other functions and powers conferred on it under this
Law and the Rules.
16--Manner in which AER must perform or exercise 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 market objective; and
(b) if the function or power performed or exercised by the
AER relates to the making of a transmission
determination, ensure that the regulated transmission
system operator 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
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(ii) given a reasonable opportunity to make
submissions in respect of that determination
before it is made.
(2) Without limiting subsection (1)(a), the AER, in making a
transmission determination, must in accordance with the Rules--
(a) provide a reasonable opportunity for the regulated
transmission system operator to recover the efficient costs
of complying with a regulatory obligation; and
(b) provide effective incentives to the regulated transmission
system operator to promote economic efficiency in the
provision by it of services that are the subject of the
transmission determination, including--
(i) the making of efficient investments in the
transmission system owned, controlled or
operated by it and used to provide services that
are the subject of the transmission
determination; and
(ii) the efficient provision by it of services that are
the subject of the transmission determination;
and
(c) make allowance for the value of assets forming part of
the transmission system owned, controlled or operated by
the regulated transmission system operator, and the value
of proposed new assets to form part of that transmission
system, that are, or are to be, used to provide services that
are the subject of the transmission determination; and
(d) have regard to any valuation of assets forming part of the
transmission system owned, controlled or operated by the
regulated transmission system operator applied in any
relevant determination or decision.
(3) In this section--
affected Registered participant means a Registered participant
(other than the regulated transmission system operator to whom the
determination will apply) whose interests are affected by the
transmission determination;
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relevant determination or decision means--
(a) any previous transmission determination; or
(b) a determination or decision under the National Electricity
Code or jurisdictional electricity legislation regulating the
revenue earned, or prices charged, by the regulated
transmission system operator in respect of services
provided by it that were regulated under the Code or that
legislation.
17--Delegations
Any delegation by the AER under section 44AAH of the Trade
Practices Act 1974 of the Commonwealth extends to, and has effect
for the purposes of, this Law, the Regulations and the Rules.
18--Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the
Commonwealth extends to, and has effect for the purposes of, this
Law, the Regulations and the Rules.
Division 2--Investigation powers
19--Definitions
In this Division--
authorised person means a person authorised under section 20;
relevant provision means--
(a) a provision of this Law that is not an offence provision;
or
(b) a provision of the Rules.
20--Authorised person
The AER may, in writing, authorise a person to be an authorised
person for the purposes of this Division.
21--Search warrant
(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 believes
on reasonable grounds that--
(a) there is or has been or will be a breach, or a possible
breach, of a relevant provision; and
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(b) there is or may be a thing or things of a particular kind
connected with the breach or possible breach on or in that
place.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit,
of an authorised person that there are reasonable grounds for
suspecting that there is, or may be within the next 7 days, a thing or
things of a particular kind connected with a breach or possible
breach of a relevant provision on or in a place, the magistrate may
issue a search warrant authorising a person named in the warrant--
(a) to enter the place specified in the warrant, with such
assistance and by the use of such force as is necessary
and reasonable;
(b) to search the place or any part of the place;
(c) to search for and seize a thing named or described in the
warrant and which the person believes on reasonable
grounds to be connected with the breach or possible
breach of the relevant provision;
(d) to inspect, examine or photograph anything in the place;
(e) to take extracts from, and make copies of, any documents
in the place;
(f) to take into the place such equipment and materials as the
person requires for exercising the powers.
(3) A search warrant issued under this section must state--
(a) the purpose for which the search is required and the
nature of the suspected breach of the relevant provision;
and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the
day or night or during stated hours of the day or night;
and
(d) a day, not later than 7 days after the issue of the warrant,
on which the warrant ceases to have effect.
(4) Except as provided by this Law, the rules to be observed with
respect to search warrants mentioned in any relevant laws of this
jurisdiction extend and apply to warrants under this section.
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22--Announcement before entry
(1) On executing a search warrant, the person executing the warrant
must announce that he or she is authorised by the warrant to enter
the place and, if the person has been unable to obtain unforced
entry, must give any person at the place an opportunity to allow
entry to the place.
(2) A person need not comply with subsection (1) if he or she believes
on reasonable grounds that immediate entry to the place is required
to ensure the safety of any person or that the effective execution of
the search warrant is not frustrated.
23--Details of warrant to be given to occupier
(1) If the occupier or another person who apparently represents the
occupier is present at premises when a search warrant is being
executed, the person executing the warrant must--
(a) identify himself or herself to that person; and
(b) give the person a copy of the warrant.
(2) A person executing the warrant is not entitled to exercise any
powers under that warrant in relation to premises if the person does
not--
(a) identify himself or herself to the occupier, or any other
person who apparently represents the occupier and who is
present at the premises, before the warrant is executed;
and
(b) give the occupier, or any other person who apparently
represents the occupier and who is present at the
premises, a copy of the warrant.
24--Copies of seized documents
(1) If a person executing a warrant retains possession of a document
seized from a person in accordance with the warrant, the person
must give that other person, within 21 days of the seizure, a copy of
the document certified as correct by the person executing the
warrant.
(2) A copy of a document certified under subsection (1) shall be
received in all relevant courts and all tribunals as evidence of equal
validity to the original.
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25--Retention and return of seized documents or things
(1) If a person executing a warrant seizes a document or other thing in
accordance with the warrant, the person 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.
(2) If the document or thing seized has not been returned within 3
months after it was seized, the person executing the warrant 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.
26--Period for retention of documents or things seized may
be extended
(1) An authorised person may apply to a magistrate--
(a) within 3 months after a document or other thing was
seized in accordance with a warrant; or
(b) if an extension has been granted under this section, before
the end of the period of the extension,
for an extension of the period for which the AER may retain the
document or thing but so that the total period of retention does not
exceed 12 months.
(2) An application must be made before proceedings for the purpose
for which the document or thing was retained have been
commenced.
(3) A magistrate may order such an extension if he or she is satisfied
that--
(a) it is in the interests of justice; and
(b) the total period of retention does not exceed 12 months;
and
(c) retention of the document or other thing is necessary--
(i) for the purposes of an investigation into
whether a breach of a relevant provision has
occurred; or
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(ii) to enable evidence of a breach of a relevant
provision to be obtained for the purposes of a
proceeding under this Law.
(4) If proceedings are commenced for the purpose for which the
document or thing was retained at any time before the expiry of the
period specified in an order under this section, the document or
thing may be retained until those proceedings (including any
appeal) have been completed despite those proceedings being
completed after the period specified in the order.
(5) At least 7 days prior to the hearing of an application under this
section by a magistrate, notice of the application must be sent to the
owner of the document or thing described in the application.
27--Obstruction of persons authorised to enter
A person must not, without reasonable excuse, obstruct or hinder a
person in the exercise of a power under a search warrant under this
Division.
Penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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
furnishing 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 relevant notice.
(2) A relevant notice may require the person to--
(a) furnish 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).
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(3) A person must not--
(a) without reasonable excuse, refuse or fail to comply with a
relevant notice; or
(b) in purported compliance with a relevant notice,
knowingly furnish information that is false or misleading.
Penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
(4) To avoid doubt, it is a reasonable excuse for the purposes of
subsection (3)(a) if a person is not capable of complying with a
relevant notice.
(5) It is also a reasonable excuse for a natural person to--
(a) fail to furnish 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.
(6) This section does not require a person to--
(a) furnish 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.
(7) This section does not require a person to--
(a) give information that would disclose the contents of a
document prepared for the purposes of a meeting 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 of the Commonwealth or of a
State or a Territory; or
(c) give information, or produce a document, that would
disclose the deliberations of the Cabinet of the
Commonwealth or of a State or a Territory.
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(8) In this section--
relevant notice means a notice served under subsection (1).
Part 4--Functions and powers of the Australian
Energy Market Commission
Division 1--General
29--Functions and powers of the AEMC
(1) The AEMC has the following functions and powers--
(a) the Rule making functions and powers conferred on it
under this Law and the Regulations; and
(b) the market development functions conferred on it under
this Law and the Rules; and
(c) any other functions and powers conferred on it under this
Law and the Rules.
(2) The AEMC has power to do all things necessary or convenient to
be done for or in connection with the performance of its functions.
30--Delegations
Any delegation by the AEMC under section 20 of the Australian
Energy Market Commission Establishment Act 2004 of South
Australia extends to, and has effect for the purposes of, this Law,
the Regulations and the Rules.
31--Confidentiality
Section 24 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia extends to, and has
effect for the purposes of, this Law, the Regulations and the Rules.
32--AEMC must have regard to national electricity market
objective
In performing or exercising any function or power under this Law,
the Regulations or the Rules, the AEMC must have regard to the
national electricity market objective.
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33--AEMC must have regard to MCE statements of policy
principles in relation to Rule making and reviews
The AEMC must have regard to any relevant MCE statement of
policy principles--
(a) in making a Rule; or
(b) in conducting a review under section 45.
Division 2--Rule making functions and powers of the
AEMC
34--Subject matter for National Electricity Rules
(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 regulating--
(a) the operation of the national electricity market; and
(b) the operation of the national electricity system for the
purposes of the safety, security and reliability of that
system; and
(c) the activities of persons (including Registered
participants) participating in the national electricity
market or involved in the operation of the national
electricity system.
Note--
The procedure for the making of a Rule by the AEMC is
set out in Division 3 of Part 7.
(2) Without limiting subsection (1), the AEMC, in accordance with this
Law and the Regulations, may make Rules for or with respect to
any matter or thing specified in Schedule 1 to this Law.
(3) Rules made by the AEMC in accordance with this Law and the
Regulations may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which they are expressed to apply;
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(c) confer functions or powers on, or leave any matter or
thing to be decided or determined by--
(i) the AER, the AEMC, NEMMCO or a
jurisdictional regulator; or
(ii) the Reliability Panel or any other panel or
committee established by the AEMC; or
(iii) any other body established, or person
appointed, in accordance with the Rules;
(d) confer rights or impose obligations on any person or a
class of person (other than the AER, the AEMC or a
jurisdictional regulator);
(e) confer a function on the AER, the AEMC, NEMMCO, or
a jurisdictional regulator, to make or issue guidelines,
tests, standards, procedures or any other document
(however described) in accordance with the Rules;
(f) empower or require any person (other than a person
referred to in paragraph (e)) or body to make or issue
guidelines, tests, standards, procedures or any other
document (however described) in accordance with the
Rules;
(g) apply, adopt or incorporate wholly or partially, or as
amended by the Rules, the provisions of any standard,
rule, specification, method or document (however
described) formulated, issued, prescribed or published by
any person, authority or body whether--
(i) as formulated, issued, prescribed or published
at the time the Rules are made or at any time
before the Rules are made; or
(ii) as amended from time to time;
(h) confer a power of direction on the AER, the AEMC,
NEMMCO or a jurisdictional regulator to require a
person conferred a right or on whom an obligation is
imposed under the Rules (including a Registered
participant) to comply with--
(i) a guideline, test, standard, procedure or other
document (however described) referred to in
paragraph (e) or (f); or
(ii) a standard, rule, specification, method or
document (however described) referred to in
paragraph (g);
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(i) if this section authorises or requires Rules that regulate
any matter or thing, prohibit that matter or thing or any
aspect of that matter of thing;
(j) provide for the review of, or a right of appeal against, a
decision or determination made under the Rules and for
that purpose, confer jurisdiction on the Court;
(k) require a form prescribed by or under the Rules, or
information or documents included in, attached to or
given with the form, to be verified by statutory
declaration;
(l) in a specified case or class of case, exempt--
(i) NEMMCO; or
(ii) a Registered participant or class of Registered
participant; or
(iii) any other person or body performing or
exercising a function or power, or conferred a
right, or on whom an obligation is imposed,
under the Rules or a class of any such person or
body,
from complying with a provision, or a part of a provision,
of the Rules;
(m) provide for the modification or variation of a provision of
the Rules (with or without substitution of a provision of
the Rules or a part of a provision of the Rules) as it
applies to--
(i) NEMMCO; or
(ii) a Registered participant or class of Registered
participant; or
(iii) any other person or body performing or
exercising a function or power, or conferred a
right, or on whom an obligation is imposed,
under the Rules or a class of any such person or
body;
(n) confer an immunity on, or limit the liability of, any
person or body performing or exercising a function or
power, or conferred a right, or on whom an obligation is
imposed, under the Rules;
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(o) require a person or body performing or exercising a
function or power, or conferred a right, or on whom an
obligation is imposed, under the Rules to indemnify
another such person or body;
(p) contain provisions of a savings or transitional nature
consequent on the amendment or revocation of a Rule.
35--Rules in relation to economic regulation of transmission
systems
(1) Subject to this section, the AEMC must make Rules for or with
respect to the matters or things specified in items 15 to 24 of
Schedule 1 to this Law on or before 1 July 2006 or any later date
that is prescribed by the Regulations.
(2) In making Rules as required by this section, the AEMC must treat
the Rules as AEMC initiated Rules.
(3) Rules made as required by this section must--
(a) provide a reasonable opportunity for a regulated
transmission system operator to recover the efficient costs
of complying with a regulatory obligation; and
(b) provide effective incentives to a regulated transmission
system operator to promote economic efficiency in the
provision by it of services that are the subject of a
transmission determination, including--
(i) the making of efficient investments in the
transmission system owned, controlled or
operated by it and used to provide services that
are the subject of a transmission determination;
and
(ii) the efficient provision by it of services that are
the subject of a transmission determination; and
(c) require the AER, in making a transmission determination,
to make allowance for the value of assets forming part of
a transmission system owned, controlled or operated by a
regulated transmission system operator, and the value of
proposed new assets to form part of that transmission
system, that are, or are to be, used to provide services that
are the subject of a transmission determination; and
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(d) require the AER to have regard to any valuation of assets
forming part of a transmission system owned, controlled
or operated by a regulated transmission system operator
applied in any relevant determination or decision.
(4) In this section--
relevant determination or decision means--
(a) any previous transmission determination; or
(b) a determination or decision under the National Electricity
Code or jurisdictional electricity legislation regulating the
revenue earned, or prices charged, by a regulated
transmission system operator in respect of services
provided by it that were regulated under the Code or that
legislation.
36--National Electricity Rules to always provide for certain
matters relating to transmission systems
On and from the date Rules are first made as required by
section 35, the National Electricity Rules must at all times provide
for the matters or things specified in items 15 to 24 of Schedule 1
to this Law and the matters or things specified in section 35(3).
37--Documents etc applied, adopted and incorporated by
Rules to be publicly available
(1) The AEMC must make publicly available--
(a) every standard, rule, specification, method or document
(however described) formulated, issued, prescribed or
published by any person, authority or body that is
applied, adopted or incorporated by a Rule; and
(b) if a standard, rule, specification, method or document
(however described) formulated, issued, prescribed or
published by any person, authority or body is applied,
adopted or incorporated by a Rule as amended from time
to time--any amendment to that standard, rule,
specification, method or document.
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(2) In this section--
publicly available, in relation to 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, means--
(a) publishing the standard, rule, specification, method or
document on the AEMC's website; or
(b) specifying a place from which the standard, rule,
specification, method or document may be obtained or
purchased (as the case requires).
Division 3--Committees, panels and working groups of the
AEMC
38--The Reliability Panel
(1) The AEMC must establish a panel of persons to be known as the
Reliability Panel, the composition of which must be in accordance
with the Rules.
(2) The functions and powers of the Reliability Panel are--
(a) to monitor, review and report on, in accordance with the
Rules, the safety, security and reliability of the national
electricity system; and
(b) at the request of the AEMC, to provide advice in relation
to the safety, security and reliability of the national
electricity system; and
(c) any other functions and powers conferred on it under this
Law and the Rules.
(3) At the completion of a review, the Reliability Panel must give a
report to the AEMC.
(4) If requested to do so by the AEMC, the Reliability Panel must
provide advice to the AEMC in relation to the safety, security and
reliability of the national electricity system.
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39--Establishment of committees and panels (other than the
Reliability Panel) and working groups
The AEMC may establish committees and panels (other than the
Reliability Panel) and working groups to--
(a) provide advice on specified aspects of the AEMC's
functions; or
(b) undertake any other activity in relation to the AEMC's
functions as is specified by the AEMC.
Division 4--MCE directed reviews
40--Definition
In this Division--
MCE directed review means a review conducted in accordance
with this Division.
41--MCE directions
(1) The MCE may give a written direction to the AEMC that the
AEMC conduct a review into--
(a) any matter relating to the national electricity market; or
(b) the operation and effectiveness of the Rules; or
(c) any matter relating to the Rules.
(2) A direction given to the AEMC under this section is binding on the
AEMC and must be complied with despite anything to the contrary
in the Rules.
(3) A direction given under this section must be published in the South
Australian Government Gazette.
(4) The AEMC must cause a direction given under this section to be
published on its website.
42--Terms of reference
(1) The terms of reference of a MCE directed review will be as
specified in the direction given by the MCE.
(2) The MCE may in its direction to the AEMC do one or more of the
following--
(a) require the AEMC to give a report on a MCE directed
review to the MCE within a specified period;
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(b) require the AEMC to make the report on a MCE directed
review publicly available or available to specified persons
or bodies;
(c) require the AEMC to make a draft report publicly
available or available to specified persons or bodies
during a MCE directed review;
(d) require the AEMC to consider specified matters in the
conduct of a MCE directed review;
(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 market objective;
(f) give the AEMC other specific directions in respect of the
conduct of a MCE directed review.
43--Notice of MCE directed review
(1) The AEMC must publish notice of a MCE directed review on its
website and in a newspaper circulating generally throughout
Australia.
(2) The AEMC must publish a further such notice if a term of reference
or a requirement or direction relating to the MCE directed review is
varied.
44--Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a MCE
directed review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
Division 5--Other reviews
45--Reviews by the AEMC
(1) The AEMC may conduct a review into--
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
(2) A review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
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(3) During the course of a review, the AEMC may--
(a) consult with any person or body that it considers
appropriate;
(b) establish working groups to assist it in relation to any
aspect, or any matter or thing that is the subject, of the
review;
(c) commission reports by other persons on its behalf on any
aspect, or matter or thing that is the subject, of the
review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must--
(a) publish a report; and
(b) give a copy of the report to the MCE.
Division 6--Miscellaneous
46--AEMC must publish and make available up to date
versions of the National Electricity Rules
The AEMC must, at all times--
(a) publish on its website, the National Electricity Rules, as
in force from time to time; and
(b) make copies of the National Electricity Rules, as in force
from time to time, available to the public for inspection at
its offices during normal business hours.
47--Fees for services provided
(1) The AEMC may charge a fee specified in the Regulations for
services provided by it in performing or exercising any of its
functions or powers under this Law or the Rules.
(2) The fee must not be such as to amount to taxation.
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48--Confidentiality of information received for the purposes
of a review
(1) Information provided to the AEMC for the purposes of a MCE
directed review or a review conducted by the AEMC under
section 45 is confidential information for the purposes of
Division 4 or 5 if--
(a) the person who provides it claims, when providing it to
the AEMC, that it is confidential information; and
(b) the AEMC decides that the information is confidential
information.
(2) Nothing prevents the disclosure of confidential information in a
report to the MCE or a Minister of a participating jurisdiction under
Division 4 or 5, but the AEMC must ensure that the information is
identified as such in the report.
(3) If the AEMC decides that information provided to it for the
purposes of a MCE directed review, or a review conducted by the
AEMC under section 45, is confidential information, the AEMC,
the MCE or a Minister of a participating jurisdiction may only
make public a version of the report from which the information has
been omitted.
(4) If information is omitted from a published version of a report as
being confidential information, a note to that effect must be
included in the report at the place in the report from which the
information is omitted.
(5) In this section--
MCE directed review has the same meaning as in section 40.
Note--
Section 48 of this Law permits the disclosure of confidential
information for the purposes of section 24(2) of the Australian
Energy Market Commission Establishment Act 2004 of South
Australia.
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Part 5--Role of NEMMCO under the National
Electricity Law
Division 1--Conferral of certain functions
49--Functions of NEMMCO in respect of national
electricity market
(1) NEMMCO has the following functions in respect of the national
electricity market--
(a) to operate and administer, in accordance with this Law
and the Rules, the wholesale exchange; and
(b) to promote the development and improve the
effectiveness of the operation and administration of the
wholesale exchange; and
(c) to register persons as Registered participants in
accordance with this Law and the Rules or otherwise in
accordance with the Rules; and
(d) to exempt certain persons from being registered as
Registered participants; and
(e) to maintain and improve power system security; and
(f) to undertake the coordination of the planning of
augmentations to the national electricity system; and
(g) any other functions conferred on it under this Law or the
Rules.
(2) NEMMCO must exercise the functions referred to in this section in
accordance with this Law and the Rules.
50--Operation and administration of national electricity
market
NEMMCO must perform a function referred to in section 49
efficiently and on a full cost recovery but not for profit basis.
51--NEMMCO not to be taken to be engaged in the activity
of controlling or operating a generating, transmission
or distribution system
NEMMCO is not to be taken to be engaged in the activity of
controlling or operating a generating system, transmission system
or distribution system by reason only of it performing the functions
conferred on it under this Law or the Rules.
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52--Delegation
NEMMCO, in accordance with the Rules, may, in writing, delegate
to any person a function or power conferred on it under this Law or
the Rules other than this power of delegation.
Division 2--Statutory funds of NEMMCO
53--Definitions
In this Division--
Code fund has the same meaning as in section 65 of the old
National Electricity Law;
existing Rule fund means a Code fund established by NEMMCO
under section 67 of the old National Electricity Law;
new Rule fund means a fund that NEMMCO is required to
establish in accordance with this Law;
Rule fund means an existing Rule fund or new Rule fund.
54--Rule funds of NEMMCO
(1) Subject to the Rules, NEMMCO must continue to have, in the
books of the corporation, the existing Rule funds.
(2) NEMMCO must, if required to do so by the Rules, establish, in
accordance with the Rules, in the books of the corporation, a new
Rule fund.
55--Payments into Rule funds
(1) NEMMCO must ensure that there is paid into each Rule fund--
(a) all amounts received by NEMMCO that, under the Rules,
are required to be paid into the fund; and
(b) income from investment of money in the fund.
(2) Money of a Rule fund may be applied only in payment of--
(a) amounts that, under the Rules, are required or permitted
to be paid from the fund;
(b) liabilities or expenses of the fund.
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56--Investment
(1) NEMMCO may invest money standing to the credit of a Rule fund.
(2) NEMMCO must, in exercising a power of investment under
subsection (1), exercise the care, diligence and skill that a prudent
person would exercise in managing the affairs of other persons.
57--NEMMCO not trustee
To avoid doubt, it is declared that nothing in this Law or the Rules
is to be taken as constituting NEMMCO, or a director of
NEMMCO, as a trustee of the money of a Rule fund.
Part 6--Proceedings under the National Electricity
Law
Division 1--General
58--Definitions
In this Part--
civil penalty means--
(a) in the case of a breach of a civil penalty provision that is
not a rebidding civil penalty provision by--
(i) a natural person--
(A) an amount not exceeding $20 000;
and
(B) an amount not exceeding $2 000 for
every day during which the breach
continues;
(ii) a body corporate--
(A) an amount not exceeding $100 000;
and
(B) an amount not exceeding $10 000 for
every day during which the breach
continues;
(b) in the case of a breach of a rebidding civil penalty
provision by any person--
(i) an amount not exceeding $1 000 000; and
(ii) an amount not exceeding $50 000 for every day
during which the breach continues;
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civil penalty provision means--
(a) section 11(1), (2), (3) or (4); or
(b) a rebidding civil penalty provision; or
(c) any other provision of this Law or a provision of the
Rules prescribed by the Regulations to be a civil penalty
provision;
Dispute resolution panel means a person or a panel of persons
appointed in accordance with the Rules to hear and determine a
Rule dispute;
rebidding civil penalty provision means a provision of the Rules
that is prescribed by the Regulations to be a rebidding civil penalty
provision;
Rule dispute means a dispute between persons in relation to a
matter or thing arising under the Rules in respect of which the
Rules provide that the dispute must be resolved in accordance with
the Rules.
59--Instituting civil proceedings under this Law
(1) Proceedings may not be instituted in a relevant court in respect of a
breach of a provision of this Law, the Regulations or the Rules that
is not an offence provision by any person (other than the AER)
except as provided for in this Part.
(2) Despite subsection (1), a person may institute a proceeding in the
Court in respect of any matter or thing arising out of or that is the
subject of a Rule dispute if the Rules provide that a proceeding may
be instituted in the Court in respect of that matter or thing.
(3) To avoid doubt, nothing in this Part prevents the use of this Law,
the Regulations or the Rules as evidence in any proceedings.
Division 2--Proceedings by the AER in respect of this Law,
the Regulations and the Rules
60--Time limit within which AER may institute proceedings
A proceeding for a breach of a provision of this Law, the
Regulations or the Rules by a relevant participant that is not an
offence provision may only be instituted by the AER within 6 years
of the date on which the breach occurred.
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61--Proceedings for breaches of a provision of this Law, the
Regulations or the Rules that are not offences
(1) The Court may make an order, on application by the AER on behalf
of the Commonwealth, declaring that a relevant participant is in
breach of a provision of this Law, the Regulations or the Rules that
is not an offence provision.
Note--
A Supreme Court of a participating jurisdiction that is a
State may hear an application by the AER under
subsection (1) by operation of subsection 39(2) of the
Judiciary Act 1903 of the Commonwealth.
(2) If the order declares the relevant participant to be in breach of a
provision of this Law, the Regulations or the Rules that is not an
offence provision, the order may include one or more of the
following--
(a) an order that the relevant participant pay a civil penalty
determined in accordance with this Law, the Regulations
and the Rules;
(b) an order that the relevant participant cease, within a
specified period, the act, activity or practice constituting
the breach;
(c) an order that the relevant participant take such action, or
adopt such practice, as the Court requires for remedying
the breach or preventing a recurrence of the breach;
(d) an order that the relevant participant implement a
specified program for compliance with this Law, the
Regulations and the Rules;
(e) an order of a kind prescribed by the Regulations.
(3) If a relevant participant has engaged, is engaging or is proposing to
engage in any conduct in breach of a provision of this Law, the
Regulations or the Rules that is not an offence provision, the Court
may, on application by the AER, grant an injunction--
(a) restraining the relevant participant from engaging in the
conduct; and
(b) if, in the Court's opinion, it is desirable to do so--
requiring the relevant participant to do something.
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(4) The power of the Court under subsection (3) to grant an injunction
restraining a relevant participant from engaging in conduct of a
particular kind may be exercised--
(a) if the Court is satisfied that the relevant participant has
engaged in conduct of that kind--whether or not it
appears to the Court that the relevant participant intends
to engage again, or to continue to engage, in conduct of
that kind; or
(b) if it appears to the Court that, if an injunction is not
granted, it is likely that the relevant participant will
engage in conduct of that kind--whether or not the
relevant participant has previously engaged in conduct of
that kind and whether or not there is an imminent danger
of substantial damage to any person if the relevant
participant engages in conduct of that kind.
62--Additional Court orders for Registered participants in
breach
An order under section 61 by the Court may, in relation to a
Registered participant that has been declared in that order to be in
breach of a provision of this Law, the Regulations or the Rules that
is not an offence provision, also include either or both of the
following--
(a) a direction that the Registered participant's loads be
disconnected in accordance with the Rules;
(b) a direction that the Registered participant be suspended
from, as the case requires, purchasing or supplying
electricity through the wholesale exchange operated and
administered by NEMMCO.
Note--
There is power under paragraph 44AAG(2)(e) of the
Trade Practices Act 1974 of the Commonwealth to
prescribe, by regulation, an order that may be included in
an order of the Federal Court declaring a person to be in
breach of a law referred to in subsection 44AAG(1) of the
Trade Practices Act 1974 of the Commonwealth. An
order of the kind referred to section 62 of this Law may
be prescribed under that paragraph.
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63--Orders for disconnection in certain circumstances
where there is no breach
(1) The Court, on application by the AER on behalf of the
Commonwealth, may make an order that directs that a Registered
participant's loads be disconnected if a relevant disconnection event
occurs.
(2) In this section--
relevant disconnection event means an event specified in the Rules
as being an event for which a Registered participant's loads may be
disconnected, being an event that does not constitute a breach of the
Rules.
64--Matters for which there must be regard in determining
amount of civil penalty
Every civil penalty ordered to be paid by a relevant participant
declared to be in breach of a provision of this Law, the Regulations
or the Rules must be determined having regard to all relevant
matters, including--
(a) the nature and extent of the breach; and
(b) the nature and extent of any loss or damage suffered as a
result of the breach; and
(c) the circumstances in which the breach took place; and
(d) whether the relevant participant has engaged in any
similar conduct and been found to be in breach of a
provision of this Law, the Rules or the Regulations in
respect of that conduct.
65--Breach of a civil penalty provision is not an offence
A breach of a civil penalty provision is not an offence.
66--Breaches of civil penalty provisions involving
continuing failure
For the purpose of determining the civil penalty for a breach of a
civil penalty provision if the breach consists of a failure to do
something that is required to be done, the breach is to be regarded
as continuing until the act is done despite the fact that any period
within which, or time before which, the act is required to be done
has expired or passed.
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67--Conduct in breach of more than one civil penalty
provision
(1) If the conduct of a relevant participant constitutes a breach of 2 or
more civil penalty provisions, proceedings may be instituted under
this Law against the relevant participant in relation to the breach of
any one or more of those provisions.
(2) However, the relevant participant is not liable to more than one
civil penalty under this Law in respect of the same conduct.
Note--
Clause 39 of Schedule 2 to this Law sets out further provisions in
relation to double jeopardy.
68--Persons involved in breach of civil penalty provision
(1) A person must not--
(a) aid, abet, counsel or procure a breach of a civil penalty
provision by a relevant participant; or
(b) be in any way directly or indirectly knowingly concerned
in, or party to, a breach of a civil penalty provision by a
relevant participant.
(2) A relevant participant who attempts to commit a breach of a civil
penalty provision commits a breach of that provision.
(3) This Law applies to a person who breaches subsection (1) in
relation to a civil penalty provision as if the person were a relevant
participant who has breached the civil penalty provision.
69--Civil penalties payable to the Commonwealth
If a relevant participant is ordered to pay a civil penalty, the penalty
is payable to the Commonwealth.
Division 3--Judicial review of decisions and determinations
under this Law, the Regulations and the Rules
70--Applications for judicial review
(1) A person aggrieved by--
(a) a decision or determination of the AEMC or NEMMCO
under this Law, the Regulations or the Rules; or
(b) a failure by the AEMC or NEMMCO to make a decision
or determination under this Law, the Regulations or the
Rules; or
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(c) conduct engaged in, or proposed to be engaged in, by the
AEMC or NEMMCO for the purpose of making a
decision or determination under this Law, the Regulations
or the Rules,
may apply to the Court for judicial review of the decision or
determination, failure or conduct or proposed conduct.
Note--
The AER is subject to judicial review under the
Administrative Decisions (Judicial Review) Act 1977 of
the Commonwealth.
(2) Unless the Court otherwise orders, the making of an application to
the Court under subsection (1) does not affect the operation of the
decision or determination referred to in that subsection or prevent
the taking of action to implement the decision or determination.
(3) In this section--
person aggrieved includes a person whose interests are adversely
affected.
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 relevant Parts of the Commercial Arbitration Act of this
jurisdiction apply to a decision or determination of a Dispute
resolution panel as if--
(a) the Rules providing for a Rule dispute were an arbitration
agreement within the meaning of that Act; and
(b) a decision or determination of a Dispute resolution panel
were an award of an arbitrator.
(3) In this section--
relevant 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 III, IV and V of the Commercial Arbitration
Act 1984 of New South Wales;
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(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 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,
Parts 3, 4 and 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, Parts III, IV and V of the Commercial
Arbitration Act 1986 of South Australia;
(e) 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 5 of the Commercial
Arbitration Act 1986 of the Australian Capital Territory;
(f) 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 III, IV and V of the
Commercial Arbitration Act 1986 of South Australia.
Division 4--Other civil proceedings
72--Obligations under Rules to make payments
(1) If, under the Rules--
(a) a Registered participant is required to pay an amount to
NEMMCO or another Registered participant; or
(b) NEMMCO is required to pay an amount to a Registered
participant,
and that amount is not paid within 28 days after it is due in
accordance with the Rules, the Registered participant to whom the
amount is due, or NEMMCO (as the case requires), may recover
that amount in a relevant court of competent jurisdiction as a civil
debt payable to them.
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(2) If, under the Rules, a Registered participant is required to pay an
amount to NEMMCO or another Registered participant, or
NEMMCO is required to pay an amount to a Registered participant,
and the Rules do not specify a date for payment of that amount--
(a) that amount must be paid within the period of time
specified in any notice to pay issued by the Registered
participant or NEMMCO (as the case requires) that
specifies that amount; and
(b) the Registered participant that issued the notice to pay, or
NEMMCO (as the case requires), may, if that amount is
not paid within 28 days after it is due in accordance with
that notice, recover that amount in a relevant court of
competent jurisdiction as a civil debt payable to them.
(3) Subsection (1) and (2) apply despite a Registered participant or
NEMMCO disputing, in accordance with the Rules, an amount to
be paid under the Rules, or specified in a notice to pay, unless--
(a) the Rules otherwise provide; or
(b) the parties to the dispute agree otherwise; or
(c) a relevant Dispute resolution panel, in a civil claim Rule
dispute in respect of the payment of an amount referred to
in subsection (1) or (2), determines that the relevant
subsection does not apply; or
(d) a relevant court of competent jurisdiction determines that
subsection (1) or (2) does not apply.
(4) In this section--
civil claim Rule dispute means a dispute between Registered
participants, or between NEMMCO and a Registered participant, in
relation to the payment of an amount under the Rules in respect of
which the Rules provide that the dispute must be resolved in
accordance with the Rules;
relevant Dispute resolution panel means a Dispute resolution
panel appointed to hear and determine a civil claim Rule dispute;
notice to pay includes a statement of payment, settlement
statement, bill or invoice.
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Division 5--Infringement notices
73--Definition
In this Division--
relevant civil penalty provision means a civil penalty provision that
is not a rebidding civil penalty provision.
74--Power to serve a notice
(1) The AER may serve an infringement notice on a relevant
participant that it has reason to believe has breached a relevant civil
penalty provision.
(2) An infringement notice may be served on a relevant participant--
(a) if the relevant participant is a natural person--
(i) by delivering it personally to the person; or
(ii) by sending it by post addressed to the person to
their usual or last known place of residence or
business; or
(b) if the relevant participant is a body corporate--
(i) by delivering it personally to the registered
office or usual or last known place of business
of the body corporate; or
(ii) by sending it by post addressed to the body
corporate to its registered office or usual or last
known place of business.
75--Form of notice
An infringement notice must state--
(a) the date of the notice;
(b) that the alleged breach is a breach of the relevant civil
penalty provision;
(c) the nature, and a brief description, of the alleged breach;
(d) the date, time and place of the alleged breach;
(e) the infringement penalty for the alleged breach;
(f) the manner in which the infringement penalty may be
paid;
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(g) the time (being not less than 28 days after the date on
which the notice is served) within which the infringement
penalty must be paid;
(h) that, if the amount of the infringement penalty is paid
before the end of the time specified in the notice,
proceedings will not be instituted in respect of the alleged
breach by the AER unless the notice is withdrawn before
the end of that time in accordance with section 79;
(i) that the relevant participant is entitled to disregard the
notice and defend any proceedings in respect of the
relevant civil penalty provision;
(j) any other particulars prescribed by the Regulations.
76--Infringement penalty
The infringement penalty for a breach of a relevant civil penalty
provision is--
(a) if the breach is alleged to have been committed by a
natural person--$4 000 or any lesser amount that is
prescribed by the Regulations in relation to the relevant
civil penalty provision;
(b) if the breach is alleged to have been committed by a body
corporate--$20 000 or any lesser amount that is
prescribed by the Regulations in relation to the relevant
civil penalty provision.
77--AER cannot institute proceedings while infringement
notice on foot
On serving an infringement notice under this Division, the AER
must not institute a proceeding in respect of the breach for which
the infringement notice was served if--
(a) the time for payment stated in the infringement notice has
not expired; and
(b) the infringement notice has not been withdrawn by the
AER in accordance with section 79.
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78--Late payment of penalty
The AER may accept payment of the infringement penalty even
after the expiration of the time for payment stated in the
infringement notice if--
(a) a proceeding has not been instituted in respect of the
breach to which the infringement penalty relates; and
(b) the infringement notice has not been withdrawn by the
AER in accordance with section 79.
79--Withdrawal of notice
(1) The AER may withdraw an infringement notice at any time before
the end of the time for payment specified in the notice by serving a
withdrawal notice on the relevant participant served with the
infringement notice.
(2) A withdrawal notice may be served on a relevant participant--
(a) if the relevant participant is a natural person--
(i) by delivering it personally to the person; or
(ii) by sending it by post addressed to the person to
their usual or last known place of residence or
business; or
(b) if the relevant participant is a body corporate--
(i) by delivering it personally to the registered
office or usual or last known place of business
of the body corporate; or
(ii) by sending it by post addressed to the body
corporate to its registered office or usual or last
known place of business.
(3) An infringement notice may be withdrawn even if the infringement
penalty has been paid.
80--Refund of infringement penalty
If an infringement notice is withdrawn in accordance with
section 79, the amount of any infringement penalty paid must be
refunded by the AER.
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81--Payment expiates breach of relevant civil penalty
provision
No proceedings may be taken by the AER against a relevant
participant on whom an infringement notice was served in respect
of an alleged breach of a relevant civil penalty provision if--
(a) the infringement penalty is--
(i) paid within the time for payment stated in the
notice; or
(ii) accepted in accordance with section 78; and
(b) the infringement notice is not withdrawn by the AER
within the time for payment stated in the notice in
accordance with section 79.
82--Payment not to have certain consequences
The payment of an infringement penalty under this Division is not
and must not be taken to be an admission of a breach of a relevant
civil penalty provision or an admission of liability for the purpose
of any proceeding instituted in respect of the breach.
83--Conduct in breach of more than one civil penalty
provision
(1) If the conduct of a relevant participant constitutes a breach of 2 or
more relevant civil penalty provisions, an infringement notice may
be served on the relevant participant under this Division in relation
to the breach of any one or more of those provisions.
(2) However, the relevant participant is not liable to pay more than one
infringement penalty in respect of the same conduct.
Note--
Clause 39 of Schedule 2 to this Law sets out further provisions in
relation to double jeopardy.
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Division 6--Miscellaneous
84--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 relevant participant 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; or
(ii) serve an infringement notice in accordance with
Division 5 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.
85--Offences and breaches by corporations
(1) If a corporation contravenes an offence provision or is in breach of
a civil penalty provision, each officer of the corporation is to be
taken to have contravened the offence provision or to have been in
breach of the civil penalty provision if the officer knowingly
authorised or permitted the contravention or breach.
(2) An officer of a corporation may be proceeded against under an
offence provision or civil penalty provision pursuant to this section
whether or not the corporation has been proceeded against under
the provision.
(3) Nothing in this section affects the liability of a corporation for a
contravention of an offence provision or for a breach of a civil
penalty provision.
(4) In this section--
officer means a director of the corporation or a person who is
otherwise concerned in its management.
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86--Proceedings for breaches of certain provisions in
relation to actions of officers and employees of relevant
participants
(1) If an officer or employee of a relevant participant commits an act in
their capacity as officer or employee of the relevant participant that
would, if that act were committed by the relevant participant,
constitute a breach of a provision of this Law, the Regulations or
the Rules that is not an offence provision, that relevant participant
is to be taken to have contravened that provision.
(2) In this section--
officer means a director of the relevant participant or a person who
is otherwise concerned in the management of the relevant
participant.
Part 7--The making of the National Electricity
Rules
Division 1--General
87--Definitions
In this Part--
interested person or body means a person or body that has made a
written submission or comment under section 97 or 100;
non-controversial Rule means a Rule that is unlikely to have a
significant effect on the national electricity market;
publish means--
(a) in relation to a notice required to be published under this
Part (except section 90 or 103)--publish in the South
Australian Government Gazette, on the AEMC's website
and in a newspaper circulating generally throughout
Australia;
(b) in relation to a proposed Rule referred to in section 95
and any other documents prescribed by the Regulations in
relation to a proposed Rule referred to in section 95--
publish on the AEMC's website and make available at the
offices of the AEMC;
(c) in relation to a draft Rule determination or final Rule
determination--publish on the AEMC's website and
make available at the offices of the AEMC;
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(d) in relation to any submissions or comments received by
the AEMC under this Part--subject to section 108,
publish on the AEMC's website and make available at the
offices of the AEMC;
urgent Rule means a Rule relating to any matter or thing that, if not
made as a matter of urgency, will result in that matter or thing
imminently prejudicing or threatening--
(a) the effective operation or administration of the wholesale
exchange operated and administered by NEMMCO; or
(b) the safety, security or reliability of the national electricity
system.
88--Rule making test to be applied by AEMC
(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 market objective.
(2) For the purposes of subsection (1), the AEMC may give such
weight to any aspect of the national electricity market objective as
it considers appropriate in all the circumstances, having regard to
any relevant MCE statement of policy principles.
89--AEMC must have regard to certain matters in relation
to the making of jurisdictional derogations
In making a jurisdictional derogation, the AEMC must have regard
to whether--
(a) the derogation provides for the orderly transfer of the
regulation of the electricity industry in a participating
jurisdiction under jurisdictional electricity legislation to
the regulation of that industry under the national
electricity legislation; or
(b) the derogation continues existing regulatory arrangements
applying to the electricity industry in a participating
jurisdiction and the Minister of the participating
jurisdiction requesting the derogation has notified, in
writing, the AEMC that he or she considers it necessary
and appropriate that the existing regulatory arrangements
continue; or
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(c) the derogation is necessary to exempt, on an ongoing
basis, generating, transmission or distribution systems or
other facilities owned, controlled or operated in the
participating jurisdiction to which the derogation relates
from complying with technical standards relating to
connection to the national electricity system set out in the
Rules because those systems or facilities, by reason of
their design or construction, are unable to comply with
those standards.
Division 2--Initial National Electricity Rules
90--South Australian Minister to make initial National
Electricity Rules
(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 for or with respect to
any matter or thing referred to in section 34 and Schedule 1 to this
Law.
(2) 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.
(3) The notice referred to in subsection (2)(a) must state the date on
which the Rules commence operation.
(4) The Rules made under subsection (1) may only be made on the
recommendation of the MCE.
(5) If the Minister referred to in subsection (1) makes Rules under that
subsection, the Minister cannot make another Rule under that
subsection.
Division 3--Procedure for the making of a Rule by the
AEMC
91--Initiation of making of a Rule
(1) The AEMC may make a Rule at the request of any person, the
MCE or the Reliability Panel.
Note--
Section 34 and Schedule 1 to this Law specify the subject
matter for Rules.
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(2) Subject to section 35, the AEMC must not make a Rule on its own
initiative unless it considers the Rule--
(a) corrects a minor error in the Rules; or
(b) involves a non-material change to the Rules; or
(c) 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.
(3) A Minister of a participating jurisdiction, after consulting with the
Ministers of the other participating jurisdictions, may request the
AEMC to make a jurisdictional derogation in respect of the
jurisdiction of which he or she is a Minister.
(4) The Reliability Panel may only request the AEMC to make a Rule
that relates to its functions.
Note--
Section 38(2) describes the functions of the Reliability
Panel.
(5) A person conferred a right, or on whom an obligation is imposed,
under the Rules (including a Registered participant) may request
the AEMC to make a participant derogation that relates to, as the
case requires--
(a) that person; or
(b) a class of person of which that person is a member.
(6) NEMMCO may itself, or on behalf of itself and a Registered
participant or a class of Registered participant, request the AEMC
to make a participant derogation that relates to (as the case
requires)--
(a) it; or
(b) it and the Registered participant; or
(c) it and the class of Registered participant.
92--Content of requests for a Rule
(1) A request for the making of a Rule--
(a) must contain the information prescribed by the
Regulations; and
(b) may be accompanied by a draft of the Rule to be made.
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(2) A request for the making of a participant derogation must specify a
date on which the participant derogation, if made, will expire.
(3) A request for the making of a jurisdictional derogation may specify
a date on which the jurisdictional derogation, if made, will expire.
93--More than one request in relation to same or related
subject matter
If the AEMC receives more than one request for the making of a
Rule in respect of the same subject matter or subject matters that
are related subject matters, the AEMC may treat those requests as
one request for the purposes of this Division.
94--Initial consideration of request for Rule
(1) 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.
Note--
Section 34 and Schedule 1 to this Law specify the subject
matter for Rules.
(2) If the AEMC considers that, having regard to the matters set out in
subsection (1)(a) and (b), 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) A decision under subsection (2) must--
(a) set out the reasons for the decision; and
(b) be given to the person or body that made the request
without delay.
(4) If the AEMC considers that, having regard to the matters set out in
subsection (1)(a) and (b), it should take action under this Division
in respect of the request for the making of the Rule, the AEMC
must give notice of the request for the making of a Rule in
accordance with section 95.
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95--Notice of proposed Rule
(1) As soon as practicable after forming an intention to make an
AEMC initiated Rule or considering that it should take action under
this Division in respect of a request for the making of a Rule, the
AEMC must publish--
(a) notice of the intention or request (as the case requires);
and
(b) a draft of the proposed Rule; and
(c) any other documents prescribed by the Regulations.
(2) A notice published under this section must--
(a) invite written submissions and comments from any
person or body in relation to the proposed Rule by the
date specified in the notice by the AEMC, being a date
that is not less than 4 weeks after the date the notice is
published; and
(b) contain any other information prescribed by the
Regulations.
96--Non-controversial and urgent Rules
(1) Subject to this section, if the AEMC considers that--
(a) an AEMC initiated Rule is a non-controversial Rule; or
(b) a request for a Rule is a request for a non-controversial
Rule; or
(c) a request for a Rule is a request for an urgent Rule,
the AEMC may make the relevant Rule in accordance with this
Division (except sections 98 to 101) and as if the period of time
within which the final Rule determination in respect of the relevant
Rule must be published were 4 weeks from the date of publication
of the notice under section 95.
(2) Before making a Rule as set out in subsection (1), the AEMC must
include in a notice under section 95 a statement to the effect that
the AEMC may make the relevant Rule if the AEMC does not
receive a written request, and reasons, not to do so from any person
or body within 2 weeks of publication of that notice.
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(3) The AEMC must not make a Rule in accordance with this section
if, following publication of a notice under section 95 containing a
statement to the effect set out in subsection (2)--
(a) the AEMC receives a written request not to do so; and
(b) the reasons set out in that request are not, in its opinion,
misconceived or lacking in substance.
(4) If the AEMC is of the opinion that the reasons given by a person or
body in a written request for it not to make the non-controversial
Rule or urgent Rule are misconceived or lacking in substance, the
AEMC must--
(a) make a decision to that effect; and
(b) give the person or body its reasons, in writing, for that
decision without delay.
(5) If the AEMC is of the opinion that the reasons given by a person or
body in a written request for it not to make the non-controversial
Rule or urgent Rule, are not misconceived or lacking in substance,
the AEMC must publish a notice to the effect that it will make the
relevant Rule in accordance with this Division (other than this
section).
97--Right to make written submissions and comments
Any person or body, within the period specified in a notice under
section 95, may make a written submission or comment in relation
to the proposed Rule to which the notice relates.
98--AEMC may hold public hearings before draft Rule
determination
(1) The AEMC may (but need not), at any time after publication of a
notice under section 95 and before making a draft Rule
determination, hold a hearing in relation to any proposed Rule.
(2) Notice of a hearing held under this section must--
(a) be published; and
(b) contain the information prescribed by the Regulations (if
any).
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99--Draft Rule determination
(1) Before making a final Rule determination, but within 8 weeks after
the date specified in a notice under section 95, the AEMC must
publish--
(a) a draft Rule determination in relation to the proposed
Rule; and
(b) notice of the draft Rule determination.
(2) A draft Rule determination must contain--
(a) the reasons of the AEMC as to whether or not it should
make the proposed Rule or another Rule, including--
(i) the reasons of the AEMC as to whether it is
satisfied the proposed Rule or the other Rule (if
any) will or is likely to contribute to the
achievement of the national electricity market
objective; and
(ii) the reasons of the AEMC having regard to any
relevant MCE statement of policy principles;
and
(iii) if the proposed Rule or the other Rule (if any) is
a proposed jurisdictional derogation, the
reasons of the AEMC having regard to the
matters specified in section 89; 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) The draft of the Rule to be made need not be the same as the draft
of the proposed Rule to which the notice under section 95 relates.
(4) A notice of the draft Rule determination must--
(a) invite written submissions and comments from any
person or body in relation to the determination within a
period specified by the AEMC, being a period not less
than 6 weeks from the date of publication of the notice;
and
(b) include a statement to the effect that any interested person
or body may request, in writing within one week after the
publication of the notice, the AEMC to hold a hearing in
accordance with section 101; and
(c) contain any other information prescribed by the
Regulations.
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100--Right to make written submissions and comments in
relation to draft Rule determination
Any person or body, within the period specified in a notice under
section 99(1), may make a written submission or comment in
relation to a draft Rule determination to which the notice relates.
101--Pre-final Rule determination hearing may be held
(1) An interested person or body may request, in writing, within one
week after the publication of a notice under section 99(1), the
AEMC to hold a hearing in relation to a draft Rule determination.
(2) Despite subsection (1), the AEMC may decide not to a hold a
hearing in relation to a draft Rule determination.
(3) If the AEMC decides not to hold a hearing under this section, it
must give the interested person or body that requested the hearing
its reasons, in writing, for declining that person's or body's request.
(4) If the AEMC agrees to the request to hold a hearing under this
section, the AEMC must--
(a) appoint a date (being not later than 3 weeks after the date
of publication of the notice under section 99), time and
place for the holding of the hearing; and
(b) publish a notice of that date, time and place.
102--Final Rule determination as to whether to make a Rule
(1) The AEMC must publish a final Rule determination as to whether
to make a proposed Rule and notice of the final Rule determination
within 4 weeks after the close of the period for written submissions
or comments in relation to the draft Rule determination.
(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) 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
market objective; and
(ii) the reasons of the AEMC having regard to any
relevant MCE statement of policy principles;
and
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(iii) if the Rule is a jurisdictional derogation, the
reasons of the AEMC having regard to the
matters specified in section 89; and
(b) any other matters that are prescribed by the Regulations.
(3) A notice of the final Rule determination must contain the
information prescribed by the Regulations.
103--Making of Rule
(1) Subject to this section, if the AEMC, in its final Rule
determination, determines to make a Rule, the AEMC must make
the relevant Rule as soon as practicable after the publication of the
final Rule determination.
(2) Notice of the making of the Rule must be published in the South
Australian Government Gazette as soon as practicable after the
making of the Rule.
(3) The Rule that is made in accordance with subsection (1) need not
be the same as the draft of the proposed Rule to which a notice
under section 95 relates or the draft of a Rule contained in a draft
Rule determination.
(4) In the case of--
(a) a participant derogation; or
(b) a jurisdictional derogation where the request for the
derogation specified a date on which the derogation will
expire,
the AEMC must not make the derogation unless that derogation
specifies a date on which it will expire.
104--Operation and commencement of Rule
A Rule made under section 103 commences operation on the day
the relevant notice is published in the South Australian Government
Gazette or on any day after that day that is provided for in the
relevant notice or the Rule.
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105--Rule that is made to be published on website and made
available to the public
On publication of a notice in accordance with section 103(2), the
AEMC must, without delay--
(a) publish the Rule on its website; and
(b) make copies of the Rule available to the public at its
offices.
106--Evidence of the National Electricity Rules
A document purporting to be a copy of--
(a) the National Electricity Rules; or
(b) the initial National Electricity Rules; or
(c) an amendment to the initial National Electricity Rules or
the National Electricity Rules,
endorsed with a certificate to which the seal of the AEMC has been
duly affixed certifying the document is such a copy, is evidence
that the document is such a copy.
Division 4--Miscellaneous provisions relating to Rule
making by the AEMC
107--AEMC may extend certain periods of time specified in
Division 3
(1) Despite anything to the contrary in this Part, the AEMC may, by
notice, extend a period of time specified in Division 3 if the AEMC
considers that a request for a Rule raises issues of sufficient
complexity or difficulty or there is a material change in
circumstances such that it is in the public interest that the relevant
period of time specified in Division 3 be extended.
(2) A notice under subsection (1) must--
(a) be published; and
(b) set out the period of time specified in Division 3 to be
extended; and
(c) specify a new period of time to apply in the place of the
period of time specified in Division 3.
(3) The AEMC may only extend a period of time under this section
before the expiry of that time.
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108--AEMC may publish written submissions and
comments unless confidential
(1) Subject to this section, the AEMC may publish any information in
any written submission or comment given to it under this Part
unless--
(a) the person or body who gave the information, claims,
when giving it to the AEMC, that it contains confidential
information; and
(b) the AEMC decides that the written submission or
comment contains confidential information.
(2) A written submission or comment given to the AEMC under this
Part that has been claimed under this section to contain confidential
information, and that the AEMC has decided contains confidential
information, may be published if that information is omitted.
(3) If information is omitted from a published written submission or
comment given to the AEMC under this Part as being confidential
information, a note to that effect must be included in the
submission or comment at the place in the submission or comment
from which the information is omitted.
Note--
Section 108 of this Law permits the disclosure of confidential
information for the purposes of section 24(2) of the Australian
Energy Market Commission Establishment Act 2004 of South
Australia.
Part 8--Safety and security of the National
Electricity System
109--Definitions
In this Part--
jurisdictional load shedding guidelines means guidelines prepared
under section 111;
NEMMCO load shedding procedures means procedures developed
under section 112;
sensitive loads means the loads or classes of loads specified as such
in jurisdictional load shedding guidelines.
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110--Appointment of jurisdictional system security
coordinator
(1) A Minister of this jurisdiction may, for the purposes of this Law
and the Rules, appoint a person to be the jurisdictional system
security coordinator for this jurisdiction.
(2) An appointment under subsection (1) must be in writing.
111--Jurisdictional system security coordinator to prepare
jurisdictional load shedding guidelines
(1) The jurisdictional system security coordinator must, subject to the
Rules, prepare, maintain, and if necessary, update guidelines in
relation to the shedding, and restoration, of loads in this jurisdiction
for--
(a) the purpose of enabling NEMMCO to maintain power
system security; or
(b) reasons of public safety.
(2) The guidelines must specify--
(a) loads or classes of loads as sensitive loads; and
(b) requirements in relation to the shedding and restoration of
loads that NEMMCO must comply with, in accordance
with the Rules, in the event that it is necessary to do so
for NEMMCO to maintain power system security, or for
reasons of public safety.
(3) The guidelines must also specify the following lists--
(a) a list of sensitive loads or classes of sensitive loads in this
jurisdiction--
(i) to be shed and restored and the order in which
those loads are to be shed or restored in the
event that it is necessary to do so for
NEMMCO to maintain power system security,
or for reasons of public safety; and
(ii) which must not be shed, or the restoration of
which must not be prevented, without the prior
approval of the jurisdictional system security
coordinator; and
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(b) a list of loads or classes of loads (other than sensitive
loads) to be shed and restored in this jurisdiction and the
order in which those loads are to be shed or restored in
the event that it is necessary to do so for NEMMCO to
maintain power system security, or for reasons of public
safety.
(4) The jurisdictional system security coordinator must give a copy of
the jurisdictional load shedding guidelines and any updated
guidelines to NEMMCO.
112--NEMMCO to develop load shedding procedures for
each participating jurisdiction
(1) NEMMCO must, in accordance with the Rules, develop, maintain,
and if necessary, update procedures in relation to the manner in
which loads or classes of loads (including sensitive loads) will be
shed or restored--
(a) in this jurisdiction in accordance with the jurisdictional
load shedding guidelines; and
(b) as between participating jurisdictions.
(2) NEMMCO must give to the jurisdictional system security
coordinator a copy of the NEMMCO load shedding procedures,
and any updated procedures, applicable to this jurisdiction.
(3) The procedures must be consistent with the relevant jurisdictional
load shedding guidelines.
113--NEMMCO and jurisdictional system security
coordinator to exchange load shedding information in
certain circumstances
(1) For the purpose of enabling NEMMCO to maintain power system
security, or for reasons of public safety, NEMMCO, and the
jurisdictional system security coordinator, may, between
themselves, and with each of the jurisdictional system security
coordinators of the other participating jurisdictions, exchange
information relating to loads and classes of loads to be shed and
restored in this jurisdiction and the other participating jurisdictions
in accordance with--
(a) the Rules; and
(b) jurisdictional load shedding guidelines; and
(c) NEMMCO load shedding procedures.
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(2) Information exchanged under this section may also be given by
NEMMCO, or the jurisdictional system security coordinator, to a
Minister of this jurisdiction--
(a) to enable the Minister to, if necessary--
(i) manage the safety and security of those parts of
the national electricity system in this
jurisdiction; or
(ii) manage the safety and security of a gas system
in this jurisdiction; or
(b) for reasons of public safety.
(3) In this section--
information includes confidential information relating to loads or
classes of loads given to NEMMCO by a Registered participant in
accordance with the Rules.
114--NEMMCO to ensure that the national electricity
system is operated in manner that maintains the supply
to sensitive loads
NEMMCO must use its reasonable endeavours to ensure that the
national electricity system is operated in a manner that maintains
the supply to sensitive loads.
115--Shedding and restoring of loads
(1) Subject to subsection (2), if NEMMCO considers that it is
necessary for loads to be shed in this jurisdiction to maintain power
system security, or for reasons of public safety, NEMMCO may
direct the shedding or restoration of loads (including sensitive
loads) in this jurisdiction in accordance with the NEMMCO load
shedding procedures developed for this jurisdiction.
(2) NEMMCO must use reasonable endeavours to obtain the approval
of the jurisdictional system security coordinator before directing the
shedding, or preventing the restoration of, sensitive loads or a class
of sensitive loads that the jurisdictional system security coordinator
has listed in the jurisdictional load shedding guidelines as requiring
the coordinator's approval before--
(a) those loads or classes of loads may be shed; or
(b) the restoration of those loads or classes of loads may be
prevented.
(3) The jurisdictional system security coordinator must not
unreasonably withhold the approval referred to in subsection (2).
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116--Actions that may be taken to ensure safety and
security of national electricity system
(1) NEMMCO may, if it considers that it is necessary--
(a) to maintain power system security; or
(b) for reasons of public safety,
direct a Registered participant, or authorise a person to direct a
Registered participant, or subject to subsection (2), authorise a
person, to take one or more relevant actions in accordance with the
Rules.
(2) A person authorised under subsection (1) must not take any
relevant action unless the person has directed the Registered
participant to take the action and the Registered participant has
failed to take the action within a reasonable period.
(3) NEMMCO does not incur any civil monetary liability for any
relevant action taken by a Registered participant in accordance with
a direction given by it under this section unless the direction is
given in bad faith.
(4) A person who directs a Registered participant to take a relevant
action, or who takes a relevant action in accordance with an
authorisation under subsection (1), does not incur any civil
monetary liability for the action taken by the Registered participant
or by the person unless the person gives the direction, or takes the
relevant action, in bad faith.
(5) A Registered participant does not incur any civil monetary liability
for a relevant action taken in accordance with a direction given to it
under this section unless that action is taken in bad faith
(6) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil proceeding,
but does not include liability to pay a civil penalty under this Law,
an infringement penalty under Division 5 of Part 6 or the costs of a
proceeding;
relevant action means--
(a) to switch off, or re-route, a generator;
(b) to call equipment into service;
(c) to take equipment out of service;
(d) to commence operation or maintain, increase or reduce
active or reactive power output;
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(e) to shut down or vary operation;
(f) to, in accordance with the Rules and any procedures
made in accordance with the Rules in relation to load
shedding, shed or restore load;
(g) to do any other act or thing necessary to be done to
maintain power system security or for reasons of public
safety.
117--NEMMCO to liaise with Minister of this jurisdiction
and others during an emergency
(1) NEMMCO must, if required to do so by reason, or as a result, of an
emergency direction, liaise with--
(a) a Minister or the jurisdictional system security
coordinator of this jurisdiction; or
(b) if the Minister or jurisdictional system security
coordinator has nominated another person as the person
with whom NEMMCO must liaise, that person.
(2) In this section--
emergency direction means any direction given or issued, or order
given, under or in accordance with any legislation of this
jurisdiction, or instrument made under or for the purposes of that
legislation, during an emergency in this jurisdiction.
118--Obstruction of persons exercising certain powers in
relation to the safety and security of the national
electricity system.
A person must not, without reasonable excuse, obstruct or hinder a
person in the exercise of a power under section 116.
Penalty:
(a) in the case of a natural person--$20 000;
(b) in the case of a body corporate--$100 000.
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Part 9--Immunities
119--Immunity of NEMMCO and network service
providers
(1) NEMMCO or an officer or employee of NEMMCO does not incur
any civil monetary liability for an act or omission in the
performance or exercise, or purported performance or exercise, of a
function or power of NEMMCO under this Law or the Rules unless
the act or omission is done or made in bad faith or through
negligence.
(2) A network service provider or an officer or employee of a network
service provider does not incur any civil monetary liability for an
act or omission in the performance or exercise, or purported
performance or exercise, of a system operations function or power
unless the act or omission is done or made in bad faith or through
negligence.
(3) The civil monetary liability for an act or omission of a kind referred
to in subsection (1) or (2) done or made through negligence may
not exceed the prescribed maximum amount.
(4) The Regulations may, for the purposes of subsection (3), without
limitation--
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances, losses or
periods specified in the Regulations;
(b) prescribe maximum amounts that vary in their application
according to the persons to whom or the events,
circumstances, losses or periods to which they are
expressed to apply;
(c) prescribe the manner in which a maximum amount is to
be divided amongst claimants.
(5) NEMMCO or a network service provider may enter into an
agreement with a person varying or excluding the operation of a
provision of this section and, to the extent of that agreement, that
provision does not apply.
(6) This section does not apply to any liability of an officer or
employee of a body corporate to the body corporate.
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(7) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil proceeding,
but does not include liability to pay a civil penalty under this Law,
an infringement penalty under Division 5 of Part 6 or the costs of a
proceeding;
network service provider means a person who is registered as a
network service provider under this Law and the Rules;
officer, in relation to a body corporate, includes a person who is an
officer within the meaning of section 9 of the Corporations Act
2001 of the Commonwealth;
system operations function or power means a function or power
prescribed as a system operations function or power.
120--Immunity in relation to failure to supply electricity
(1) A Registered participant or NEMMCO, or an officer or employee
of a Registered participant or NEMMCO, does not incur any civil
monetary liability for any partial or total failure to supply electricity
unless the failure is due to an act or omission done or made by the
Registered participant or NEMMCO, or the officer or employee of
a Registered participant or NEMMCO, in bad faith or through
negligence.
(2) A Registered participant or NEMMCO may enter into an
agreement with a person varying or excluding the operation of
subsection (1) and, to the extent of that agreement, that subsection
does not apply.
(3) This section does not apply--
(a) to NEMMCO or an officer or employee of NEMMCO in
relation to an act or omission in the performance or
exercise, or purported performance or exercise, of a
function or power of NEMMCO under this Law or the
Rules; or
(b) to a network service provider or an officer or employee of
a network service provider in relation to an act or
omission in the performance or exercise, or purported
performance or exercise, of a system operations function
or power; or
(c) to any liability of an officer or employee of a body
corporate to the body corporate.
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(4) In this section--
civil monetary liability, network service provider, officer and
system operations function or power have the same meanings as in
section 119.
121--Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official for an act or
omission in good faith in the performance or exercise, or purported
performance or exercise of a function or power under this Law, the
Regulations or the Rules.
(2) A liability that would, but for subsection (1), lie against an AEMC
official lies instead against the AEMC.
(3) In this section--
AEMC official means--
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a member of staff appointed by the AEMC.
Schedule 1--Subject matter for the National
Electricity Rules
(section 34)
Registration
1 The registration of persons as Registered participants or
otherwise for the purposes of this Law and the Rules,
including the deregistration of such persons or suspension of
such registrations.
2 The exemption of persons from the requirement to be
Registered participants.
3 Prudential requirements to be met by a person--
(a) before being registered as a Registered participant;
and
(b) as a Registered participant.
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4 The suspension of Registered participants from participation
in the wholesale exchange operated and administered by
NEMMCO.
Participant fees
5 The determination of fees in respect of services provided to
Registered participants by NEMMCO under the Rules,
including the methodology to be applied to determine those
fees.
6 The imposition on Registered participants of fees referred to
in item 5 and the method of payment and collection of those
fees.
Wholesale exchange
7 The setting of prices for electricity and services purchased
through the wholesale exchange operated and administered
by NEMMCO, including maximum and minimum prices.
8 The methodology and formulae to be applied in setting
prices referred to in item 7.
9 The division of the national electricity market into regions
for the purpose of the operation of the wholesale exchange
operated and administered by NEMMCO.
Operation of generation, transmission and distribution
systems
10 The disconnection of generating systems, transmission
systems, distribution systems or other facilities or loads.
11 The operation of generating systems, transmission systems,
distribution systems or other facilities.
12 The augmentation or expansion in the capacity of
transmission systems and distribution systems.
13 Access to electricity services provided by means of
transmission systems and distribution systems.
14 Access to premises on which there are, and access to,
generating systems or other facilities by owners, controllers
or operators of transmission systems or distribution systems
whose systems are connected to the generating systems or
other facilities to test and inspect the generating systems or
other facilities for the purpose of determining whether those
generating systems or other facilities comply with the Rules.
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Transmission system revenue and pricing
15 The regulation of revenues earned or that may be earned by
owners, controllers or operators of transmission systems
from the provision by them of services that are the subject of
a transmission determination.
16 The regulation of prices charged or that may be charged by
owners, controllers or operators of transmission systems for
the provision by them of services that are the subject of a
transmission determination, and the methodology for the
determination of those prices.
17 Principles to be applied, and procedures to be followed, by
the AER in exercising or performing an AER economic
regulatory function or power.
18 The assessment, or treatment, by the AER, of investment in
transmission systems for the purposes of making a
transmission determination.
19 The economic framework and methodologies to be applied
by the AER for the purposes of item 18.
20 The mechanisms or methodologies for the derivation of the
maximum allowable revenue or prices to be applied by the
AER in making a transmission determination.
21 The valuation, for the purposes of making a transmission
determination, of assets forming part of a transmission
system owned, controlled or operated by a regulated
transmission system operator, and of proposed new assets to
form part of a transmission system owned, controlled or
operated by a regulated transmission system operator, that
are, or are to be, used in the provision of services that are the
subject of a transmission determination.
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--
(a) a depreciation allowance for a regulated
transmission system operator; and
(b) operating costs of a regulated transmission system
operator; and
(c) an allowable rate of return on assets forming part
of a transmission system owned, controlled or
operated by a regulated transmission system
operator.
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23 Incentives for regulated transmission system operators to
make efficient operating and investment decisions.
24 The procedure for the making of a transmission
determination by the AER, including--
(a) the publication of notices by the AER; and
(b) the making of submissions, including by the
regulated transmission system operator to whom
the transmission determination will apply and by
affected Registered participants (within the
meaning of section 16(3)); and
(c) the publication of draft and final determinations
and the giving of reasons; and
(d) the holding of pre-determination conferences.
Distribution system revenue and pricing
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
economic regulation under the Rules.
26 The regulation of prices 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
economic regulation under the Rules, and the methodology
for the determination of those prices.
Metering
27 The metering of electricity to record the production or
consumption of electricity.
28 The registration of metering installations used to meter
electricity.
29 The regulation of persons providing metering services
relating to the metering of electricity.
Disputes in relation to the Rules
30 Disputes under or in relation to the Rules between persons,
including--
(a) the appointment of a person, in accordance with
the Rules, to manage and facilitate the resolution
of such disputes;
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(b) the appointment, by a person referred to in
paragraph (a), of persons (including mediators and
arbitrators) to resolve such disputes;
(c) the procedure for the conduct of such disputes;
(d) the provision for appeals on questions of law
against decisions of persons appointed to resolve
such disputes.
Miscellaneous
31 The calculation or estimation of use of electricity.
32 Procedures and related systems for the electronic exchange
or transfer of information that relates to consumers of
electricity, the provision of metering services and
connection to the national electricity system, and requiring
compliance with such procedures and use of such related
systems.
33 Reviews by or on behalf of--
(a) the AER, the AEMC or NEMMCO; or
(b) the Reliability Panel or any other panel or
committee established by the AEMC; or
(c) any other body established, or person appointed,
in accordance with the Rules.
34 The payment of money (including the payment of
interest)--
(a) for the settlement of transactions for electricity or
services purchased or supplied through the
wholesale exchange operated and administered by
NEMMCO;
(b) to and from a Rule fund (within the meaning of
section 53);
(c) for any service provided under the Rules in respect
of which the Rules require payment.
35 Confidential information held by Registered participants, the
AER, the AEMC, NEMMCO and other persons or bodies
conferred a function, or exercising a power or right, or on
whom an obligation is imposed, under the Rules, and the
manner and circumstances in which that information may be
disclosed.
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36 Any other matter or thing that is the subject of, or is of a
kind dealt with by, a provision of the National Electricity
Code as in operation and effect immediately before the
commencement of section 12 of the National Electricity
(South Australia) (New National Electricity Law)
Amendment Act 2005 of South Australia.
37 Any matter or thing relating to electricity prescribed by the
Regulations.
Schedule 2--Miscellaneous provisions relating to
interpretation
(section 3)
Part 1--Preliminary
1--Displacement of Schedule by contrary intention
(1) The application of this Schedule to this Law, the
Regulations or other statutory instrument (other than the
National Electricity Rules) may be displaced, wholly or
partly, by a contrary intention appearing in this Law or the
Regulations or that statutory instrument.
(2) The application of this Schedule to the National Electricity
Rules (other than clauses 32, 33, 34, 39, 42 and 43 of this
Schedule) may be displaced, wholly or partly, by a contrary
intention appearing in the National Electricity Rules.
Part 2--General
2--Law to be construed not to exceed legislative power
of Legislature
(1) This Law is to be construed as operating to the full extent of,
but so as not to exceed, the legislative power of the
Legislature of this jurisdiction.
(2) Without limiting subclause (1), this Law does not purport to
impose any duty on the AER to perform a function 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".
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(3) 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.
(4) Without limiting subclause (3), if a provision of this Law or
the application of this Law to a person, subject matter or
circumstance is in excess of the legislative power of the
Legislature of this jurisdiction because it purports to impose
a duty on the AER to perform a function or exercise a power
or is otherwise ineffective to impose such a duty, the
provision has effect 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).
(5) This clause applies to this Law in addition to, and without
limiting the effect of, any provision of this Law.
3--Every section to be substantive enactment
Every section of this Law has effect as a substantive
enactment without introductory words.
4--Material that is, and is not, part of Law
(1) The heading to a Chapter, Part, Division or Subdivision into
which this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) A heading to a section or subsection of this Law does not
form part of this Law.
(4) A note at the foot of a provision of this Law does not form
part of this Law.
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5--References to particular Acts and to enactments
In this Law--
(a) an Act of this jurisdiction may be cited--
(i) by its short title; or
(ii) in another way sufficient in an Act of
this jurisdiction for the citation of such
an Act; and
(b) a Commonwealth Act may be cited--
(i) by its short title; or
(ii) in another way sufficient in a
Commonwealth Act for the citation of
such an Act,
together with a reference to the Commonwealth;
and
(c) an Act of another jurisdiction may be cited--
(i) by its short title; or
(ii) in another way sufficient in an Act of the
jurisdiction for the citation of such an
Act,
together with a reference to the jurisdiction.
6--References taken to be included in Act or Law
citation etc
(1) A reference in this Law to an Act includes a reference to--
(a) the Act as originally enacted, and as amended
from time to time since its original enactment; and
(b) if the Act has been repealed and re enacted (with
or without modification) since the enactment of
the reference, the Act as re enacted, and as
amended from time to time since its re enactment.
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(2) A reference in this Law to a provision of this Law or of an
Act includes a reference to--
(a) the provision as originally enacted, and as
amended from time to time since its original
enactment; and
(b) if the provision has been omitted and re enacted
(with or without modification) since the enactment
of the reference, the provision as re enacted, and
as amended from time to time since its re
enactment.
(3) Subclause (1) and (2) apply to a reference in this Law to a
law of the Commonwealth or another jurisdiction as they
apply to a reference in this Law to an Act and to a provision
of an Act.
7--Interpretation best achieving Law's purpose
(1) In the interpretation of a provision of this Law, the
interpretation that will best achieve the purpose or object of
this Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the purpose is
expressly stated in this Law.
8--Use of extrinsic material in interpretation
(1) In this clause--
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
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(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;
ordinary meaning means the ordinary meaning conveyed by
a provision having regard to its context in this Law and to
the purpose of this Law.
(2) Subject to subclause (3), in the interpretation of a provision
of this Law, consideration may be given to 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.
(3) In determining whether consideration should be given to
extrinsic material, and in determining the weight to be given
to extrinsic material, regard is to be had to--
(a) the desirability of a provision being interpreted as
having its ordinary meaning; and
(b) the undesirability of prolonging proceedings
without compensating advantage; and
(c) other relevant matters.
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9--Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of
this Law, strict compliance with the form is not necessary
and substantial compliance is sufficient.
(2) If a form prescribed or approved by or for the purpose of
this Law requires--
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included
in, attached to or given with the form; or
(c) the form, or information or documents included in,
attached to or given with the form, to be verified
in a specified way,
the form is not properly completed unless the requirement is
complied with.
Part 3--Terms and references
10--Definitions
In this Law--
Act means an Act of the Legislature of this jurisdiction;
affidavit, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration and
promise;
amend includes--
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint includes re appoint;
breach includes fail to comply with;
business day means a day that is not--
(a) a Saturday or Sunday;
(b) observed as a public holiday on the same day in
each of the participating jurisdictions;
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calendar month means a period starting at the beginning of
any day of one of the 12 named months and ending--
(a) immediately before the beginning of the
corresponding day of the next named month; or
(b) if there is no such corresponding day, at the end of
the next named month;
calendar year means a period of 12 months beginning on 1
January;
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which
this Law, the Act or provision comes into operation;
confer, in relation to a function, includes impose;
contravene includes fail to comply with;
definition means a provision of this Law (however
expressed) that--
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or
expression;
document includes--
(a) any paper or other material on which there is
writing; or
(b) any paper or other material on which there are
marks, figures, symbols or perforations having a
meaning for a person qualified to interpret them;
or
(c) any disc, tape or other article or any material from
which sounds, images, writings or messages are
capable of being reproduced (with or without the
aid of another article or device);
estate includes easement, charge, right, title, claim, demand,
lien or encumbrance, whether at law or in equity;
expire includes lapse or otherwise cease to have effect;
fail includes refuse;
financial year means a period of 12 months beginning on 1
July;
function includes duty;
Gazette means the Government Gazette of this jurisdiction;
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instrument includes a statutory instrument;
interest, in relation to land or other property, means--
(a) a legal or equitable estate in the land or other
property; or
(b) a right, power or privilege over, or in relation to,
the land or other property;
make includes issue or grant;
minor means an individual who is under 18;
modification includes addition, omission or substitution;
month means a calendar month;
named month means one of the 12 months of the year;
number means--
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a
letter;
oath, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration or
promise;
office includes position;
omit , in relation to a provision of this Law or an Act,
includes repeal;
party includes a body politic or body corporate as well as an
individual;
penalty includes a civil penalty, forfeiture or punishment;
person includes a body politic or body corporate as well as
an individual;
power includes authority;
prescribed means prescribed by the Regulations;
printed includes typewritten, lithographed or reproduced by
any mechanical means;
proceeding means a legal or other action or proceeding;
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property means any legal or equitable estate or interest
(whether present or future, vested or contingent, or tangible
or intangible) in real or personal property of any description
(including money), and includes things in action;
provision , in relation to this Law or an Act, means words or
other matter that form or forms part of this Law or the Act,
and includes--
(a) a Part, Division, Subdivision, section, subsection,
paragraph, subparagraph, subsubparagraph or
Schedule of or to this Law or the Act; or
(b) a section, clause, subclause, item, column, table or
form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
record includes information stored or recorded by means of
a computer;
repeal includes--
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of the law or
instrument concerned; or
(d) exclude from, or include in, the application of the
law or instrument concerned, any person, subject
matter or circumstance;
sign includes the affixing of a seal or the making of a mark;
statutory declaration means a declaration made under an
Act, or under a Commonwealth Act or an Act of another
jurisdiction, that authorises a declaration to be made
otherwise than in the course of a judicial proceeding;
statutory instrument means the Regulations or an
instrument made or in force under this Law;
swear , in relation to a person allowed by law to affirm,
declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing
words in a visible form.
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11--Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression, other parts of
speech and grammatical forms of the word or expression
have corresponding meanings.
(2) Definitions in or applicable to this Law apply except so far
as the context or subject matter otherwise indicates or
requires.
(3) In this Law, words indicating a gender include each other
gender.
(4) In this Law--
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
12--Meaning of may and must etc
(1) In this Law, the word "may", or a similar word or
expression, used in relation to a power indicates that the
power may be exercised or not exercised, at discretion.
(2) In this Law, the word "must", or a similar word or
expression, used in relation to a power indicates that the
power is required to be exercised.
(3) This clause has effect despite any rule of construction to the
contrary.
13--Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory instrument have
the same meanings as they have, from time to time, in this
Law, or relevant provisions of this Law, under or for the
purposes of which the instrument is made or in force.
(2) This clause has effect in relation to an instrument except so
far as the contrary intention appears in the instrument.
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14--References to Minister
(1) In this Law--
(a) a reference to a Minister is a reference to a
Minister of the Crown of this jurisdiction; and
(b) a reference to a particular Minister by title, or to
"the Minister" without specifying a particular
Minister by title, includes a reference to another
Minister, or a member of the Executive Council of
this jurisdiction, who is acting for and on behalf of
the Minister.
(2) In a provision of this Law, a reference to "the Minister",
without specifying a particular Minister by title is a
reference to--
(a) the Minister of this jurisdiction administering the
provision; or
(b) if, for the time being, different Ministers of this
jurisdiction administer the provision in relation to
different matters--
(i) if only one Minister of this jurisdiction
administers the provision in relation to
the relevant matter, the Minister; or
(ii) if two or more Ministers of this
jurisdiction administer the provision in
relation to the relevant matter, any one
of those Ministers; or
(c) if paragraph (b) does not apply and, for the time
being, two or more Ministers administer the
provision, any one of the Ministers.
(3) For the removal of doubt, it is declared that if--
(a) a provision of this Law is administered by two or
more Ministers of this jurisdiction; and
(b) the provision requires or permits anything to be
done in relation to any of the Ministers,
the provision does not require or permit it to be done in a
particular case by or in relation to more than one of the
Ministers.
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15--Production of records kept in computers etc
If a person who keeps a record of information by means of a
mechanical, electronic or other device is required by or
under this Law--
(a) to produce the information or a document
containing the information to a court, tribunal or
person; or
(b) to make a document containing the information
available for inspection by a court, tribunal or
person,
then, unless the court, tribunal or person otherwise directs--
(c) the requirement obliges the person to produce or
make available for inspection, as the case may be,
a document that reproduces the information in a
form capable of being understood by the court,
tribunal or person; and
(d) the production to the court, tribunal or person of
the document in that form complies with the
requirement.
16--References to this jurisdiction to be implied
In this Law--
(a) a reference to an officer, office or statutory body is
a reference to such an officer, office or statutory
body in and for this jurisdiction; and
(b) a reference to a locality or other matter or thing is
a reference to such a locality or other matter or
thing in and of this jurisdiction.
17--References to officers and holders of offices
In this Law, a reference to a particular officer, or to the
holder of a particular office, includes a reference to the
person for the time being occupying or acting in the office
concerned.
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18--Reference to certain provisions of Law
If a provision of this Law refers--
(a) to a Chapter, Part, section or Schedule by a
number and without reference to this Law, the
reference is a reference to the Chapter, Part,
section or Schedule, designated by the number, of
or to this Law; or
(b) to a Schedule without reference to it by a number
and without reference to this Law, the reference, if
there is only one Schedule to this Law, is a
reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph,
subparagraph, subsubparagraph, clause, subclause,
item, column, table or form by a number and
without reference to this Law, the reference is a
reference to--
(i) the Division, designated by the number,
of the Part in which the reference
occurs; and
(ii) the Subdivision, designated by the
number, of the Division in which the
reference occurs; and
(iii) the subsection, designated by the
number, of the section in which the
reference occurs; and
(iv) the paragraph, designated by the
number, of the section, subsection,
Schedule or other provision in which the
reference occurs; and
(v) the paragraph, designated by the
number, of the clause, subclause, item,
column, table or form of or in the
Schedule in which the reference occurs;
and
(vi) the subparagraph, designated by the
number, of the paragraph in which the
reference occurs; and
(vii) the subsubparagraph, designated by the
number, of the subparagraph in which
the reference occurs; and
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(viii) the section, clause, subclause, item,
column, table or form, designated by the
number, of or in the Schedule in which
the reference occurs,
as the case requires.
Part 4--Functions and powers
19--Performance of statutory functions
(1) If this Law confers a function or power on a person or body,
the function may be performed, or the power may be
exercised, from time to time as occasion requires.
(2) If this Law confers a function or power on a particular
officer or the holder of a particular office, the function may
be performed, or the power may be exercised, by the person
for the time being occupying or acting in the office
concerned.
(3) If this Law confers a function or power on a body (whether
or not incorporated), the performance of the function, or the
exercise of the power, is not affected merely because of
vacancies in the membership of the body.
20--Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an
instrument, decision or determination--
(a) the power includes power to amend or repeal the
instrument, decision or determination; and
(b) the power to amend or repeal the instrument,
decision or determination is exercisable in the
same way, and subject to the same conditions, as
the power to make the instrument, decision or
determination.
21--Matters for which statutory instruments may
make provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument
made under this Law may make provision for the matter by
applying, adopting or incorporating (with or without
modification) the provisions of--
(a) an Act or statutory instrument; or
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(b) another document (whether of the same or a
different kind),
as in force at a particular time or as in force from time to
time.
(2) If a statutory instrument applies, adopts or incorporates the
provisions of a document, the statutory instrument applies,
adopts or incorporates the provisions as in force from time
to time, unless the statutory instrument otherwise expressly
provides.
(3) A statutory instrument may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which it is expressed to apply.
(4) A statutory instrument may authorise a matter or thing to be
from time to time determined, applied or regulated by a
specified person or body.
(5) If this Law authorises or requires a matter to be regulated by
statutory instrument, the power may be exercised by
prohibiting by statutory instrument the matter or any aspect
of the matter.
(6) If this Law authorises or requires provision to be made with
respect to a matter by statutory instrument, a statutory
instrument made under this Law may make provision with
respect to a particular aspect of the matter despite the fact
that provision is made by this Law in relation to another
aspect of the matter or in relation to another matter.
(7) A statutory instrument may provide for the review of, or a
right of appeal against, a decision made under the statutory
instrument, or this Law, and may, for that purpose, confer
jurisdiction on any court, tribunal, person or body.
(8) A statutory instrument may require a form prescribed by or
under the statutory instrument, or information or documents
included in, attached to or given with the form, to be
verified by statutory declaration.
(9) In this clause--
statutory instrument does not include the National
Electricity Rules.
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22--Presumption of validity and power to make
(1) All conditions and preliminary steps required for the making
of a statutory instrument are presumed to have been satisfied
and performed in the absence of evidence to the contrary.
(2) A statutory instrument is taken to be made under all powers
under which it may be made, even though it purports to be
made under this Law or a particular provision of this Law.
23--Appointments may be made by name or office
(1) If this Law authorises or requires a person or body--
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing,
the person or body may make the appointment by--
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a
particular office, by reference to the title of the
office concerned.
(2) An appointment of a particular officer, or the holder of a
particular office, is taken to be the appointment of the
person for the time being occupying or acting in the office
concerned.
24--Acting appointments
(1) If this Law authorises a person or body to appoint a person
to act in an office, the person or body may, in accordance
with this Law, appoint--
(a) a person by name; or
(b) a particular officer, or the holder of a particular
office, by reference to the title of the office
concerned,
to act in the office.
(2) The appointment may be expressed to have effect only in
the circumstances specified in the instrument of
appointment.
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(3) The appointer may--
(a) determine the terms and conditions of the
appointment, including remuneration and
allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the appointment,
must be in, or evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than one year during a
vacancy in the office.
(6) If the appointee is acting in the office otherwise than
because of a vacancy in the office and the office becomes
vacant, then, subject to subclause (2), the appointee may
continue to act until--
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy,
whichever happens first.
(7) The appointment ceases to have effect if the appointee
resigns by writing signed and delivered to the appointer.
(8) While the appointee is acting in the office--
(a) the appointee has all the powers and functions of
the holder of the office; and
(b) this Law and other laws apply to the appointee as
if the appointee were the holder of the office.
(9) Anything done by or in relation to a person purporting to act
in the office is not invalid merely because--
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or
had ceased.
(10) If this Law authorises the appointer to appoint a person to
act during a vacancy in the office, an appointment to act in
the office may be made by the appointer whether or not an
appointment has previously been made to the office.
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25--Powers of appointment imply certain incidental
powers
(1) If this Law authorises or requires a person or body to
appoint a person to an office--
(a) the power may be exercised from time to time as
occasion requires; and
(b) the power includes--
(i) power to remove or suspend, at any
time, a person appointed to the office;
and
(ii) power to appoint another person to act in
the office if a person appointed to the
office is removed or suspended; and
(iii) power to reinstate or reappoint a person
removed or suspended; and
(iv) power to appoint a person to act in the
office if it is vacant (whether or not the
office has ever been filled); and
(v) power to appoint a person to act in the
office if the person appointed to the
office is absent or is unable to discharge
the functions of the office (whether
because of illness or otherwise).
(2) The power to remove or suspend a person under
subclause (1)(b) may be exercised even if this Law provides
that the holder of the office to which the person was
appointed is to hold office for a specified period.
(3) The power to make an appointment under subclause (1)(b)
may be exercised from time to time as occasion requires.
(4) An appointment under subclause (1)(b) may be expressed to
have effect only in the circumstances specified in the
instrument of appointment.
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26--Delegation
(1) If this Law authorises a person to delegate a function or
power, the person may, in accordance with this Law,
delegate the power to--
(a) a person by name; or
(b) a particular officer, or the holder of a particular
office, by reference to the title of the office
concerned.
(2) The delegation--
(a) may be general or limited; and
(b) may be made from time to time; and
(c) may be revoked, wholly or partly, by the
delegator.
(3) The delegation, or a revocation of the delegation, must be in,
or evidenced by, writing signed by the delegator or if the
delegator is a body corporate, by a person authorised by the
body corporate for the purpose.
(4) A delegated function or power may be exercised only in
accordance with any conditions to which the delegation is
subject.
(5) The delegate may, in the exercise of a delegated function or
power, do anything that is incidental to the delegated
function or power.
(6) A delegated function or power that purports to have been
exercised by the delegate is taken to have been duly
exercised by the delegate unless the contrary is proved.
(7) A delegated function or power that is duly exercised by the
delegate is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a function or power is,
under this Law, dependent on the delegator's opinion, belief
or state of mind in relation to a matter, the function or
power, when exercised by the delegate, is dependent on the
delegate's opinion, belief or state of mind in relation to the
matter.
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(9) If a function or power is delegated to a particular officer or
the holder of a particular office--
(a) the delegation does not cease to have effect merely
because the person who was the particular officer
or the holder of the particular office when the
power was delegated ceases to be the officer or the
holder of the office; and
(b) the function or power may be exercised by the
person for the time being occupying or acting in
the office concerned.
(10) A function or power that has been delegated may, despite
the delegation, be exercised by the delegator.
27--Exercise of powers between enactment and
commencement
(1) If a provision of this Law (the "empowering provision") that
does not commence on its enactment would, had it
commenced, confer a power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or
administrative character; or
(c) to do another thing,
then--
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling
the exercise of the power or of bringing the
appointment, instrument or other thing into effect,
before the empowering provision commences.
(2) If a provision of an Act of South Australia (the
"empowering provision") that does not commence on its
enactment would, had it commenced, amend a provision of
this Law so that it would confer a power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or
administrative character; or
(c) to do another thing,
then--
(d) the power may be exercised; and
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(e) anything may be done for the purpose of enabling
the exercise of the power or of bringing the
appointment, instrument or other thing into effect,
before the empowering provision commences.
(3) If--
(a) this Law has commenced and confers a power to
make a statutory instrument (the "basic instrument
making power"); and
(b) a provision of an Act of South Australia that does
not commence on its enactment would, had it
commenced, amend this Law so as to confer
additional power to make a statutory instrument
(the "additional instrument making power"),
then--
(c) the basic instrument making power and the
additional instrument making power may be
exercised by making a single instrument; and
(d) any provision of the instrument that required an
exercise of the additional instrument making
power is to be treated as made under
subclause (2).
(4) If an instrument, or a provision of an instrument, is made
under subclause (1) or (2) that is necessary for the purpose
of--
(a) enabling the exercise of a power mentioned in the
subclause; or
(b) bringing an appointment, instrument or other thing
made or done under such a power into effect,
the instrument or provision takes effect--
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later
time (if any) at which, the instrument or provision
is expressed to take effect.
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(5) If--
(a) an appointment is made under subclause (1) or (2);
or
(b) an instrument, or a provision of an instrument,
made under subclause (1) or (2) is not necessary
for a purpose mentioned in subclause (4),
the appointment, instrument or provision takes effect--
(c) on the commencement of the relevant empowering
provision; or
(d) on such later day (if any) on which, or at such later
time (if any) at which, the appointment,
instrument or provision is expressed to take effect.
(6) Anything done under subclause (1) or (2) does not confer a
right, or impose a liability, on a person before the relevant
empowering provision commences.
(7) After the enactment of a provision mentioned in
subclause (2) but before the provision's commencement, this
clause applies as if the references in subclause (2) and (5) to
the commencement of the empowering provision were
references to the commencement of the provision mentioned
in subclause (2) as amended by the empowering provision.
(8) In the application of this clause to a statutory instrument, a
reference to the enactment of the instrument is a reference to
the making of the instrument.
Part 5--Distance and time
28--Matters relating to distance and time
(1) In the measurement of distance for the purposes of this Law,
the distance is to be measured along the shortest road
ordinarily used for travelling.
(2) If a period beginning on a given day, act or event is
provided or allowed for a purpose by this Law, the period is
to be calculated by excluding the day, or the day of the act
or event, and--
(a) if the period is expressed to be a specified number
of clear days or at least a specified number of
days, by excluding the day on which the purpose
is to be fulfilled; and
(b) in any other case, by including the day on which
the purpose is to be fulfilled.
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(3) If the last day of a period provided or allowed by this Law
for doing anything is not a business day in the place in
which the thing is to be or may be done, the thing may be
done on the next business day in the place.
(4) If the last day of a period provided or allowed by this Law
for the filing or registration of a document is a day on which
the office is closed where the filing or registration is to be or
may be done, the document may be filed or registered at the
office on the next day that the office is open.
(5) If no time is provided or allowed for doing anything, the
thing is to be done as soon as possible, and as often as the
prescribed occasion happens.
(6) If, in this Law, there is a reference to time, the reference is,
in relation to the doing of anything in a jurisdiction, a
reference to the legal time in the jurisdiction.
Part 6--Service of documents
29--Service of documents and meaning of service by
post etc
(1) If this Law requires or permits a document to be served on a
person (whether the expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), the
document may be served--
(a) on a natural person--
(i) by delivering it to the person personally;
or
(ii) by leaving it at, or by sending it by post,
facsimile or similar facility to the last
known address of the place of residence
or usual place of business of the person;
or
(iii) by sending it electronically to that
person; or
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(b) on a body corporate--
(i) by leaving it at the registered office or
usual place of business of the body
corporate with an officer of the body
corporate; or
(ii) by sending it by post, facsimile or
similar facility to its registered office or
its usual place of business; or
(iii) by sending it electronically to that body
corporate or an officer of the body
corporate.
(2) Nothing in subclause (1)--
(a) affects the operation of another law that authorises
the service of a document otherwise than as
provided in the subclause; or
(b) affects the power of a court or tribunal to authorise
service of a document otherwise than as provided
in the subclause.
30--Meaning of service by post etc
(1) If this Law requires or permits a document to be served by
post (whether the expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), service--
(a) may be effected by properly addressing, prepaying
and posting the document as a letter; and
(b) is taken to have been effected at the time at which
the letter would be delivered in the ordinary
course of post, unless the contrary is proved.
(2) If this Law requires or permits a document to be served by a
particular postal method (whether the expression "deliver",
"give", "notify", "send" or "serve" or another expression is
used), the requirement or permission is taken to be satisfied
if the document is posted by that method or, if that method
is not available, by the equivalent, or nearest equivalent,
method provided for the time being by Australia Post.
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Part 7--Effect of repeal, amendment or expiration
31--Time of Law, the Regulations or Rules ceasing to
have effect
If a provision of this Law, the Regulations or the Rules is
expressed--
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have
effect, until a specified day,
the provision has effect until the last moment of the
specified day.
32--Repealed Law, Regulation or Rule provisions not
revived
(1) If a provision of this Law is repealed or amended by an Act
of South Australia or a provision of an Act of South
Australia, the provision is not revived merely because the
Act or the provision of the Act--
(a) is later repealed or amended; or
(b) later expires.
(2) If a provision of the Regulations or the Rules is repealed or
amended by a Regulation or a Rule, the provision is not
revived merely because the Regulation or Rule--
(a) is later repealed or amended; or
(b) later expires.
33--Saving of operation of repealed Law, Regulation
or Rule provisions
(1) The repeal, amendment or expiry of a provision of this Law,
the Regulations or the Rules does not--
(a) revive anything not in force or existing at the time
the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the provision or
anything suffered, done or begun under the
provision; or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the provision; or
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(d) affect a penalty incurred in relation to an offence
arising under the provision; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) Any such penalty may be imposed and enforced, and any
such investigation, proceeding or remedy may be begun,
continued or enforced, as if the provision had not been
repealed or amended or had not expired.
34--Continuance of repealed provisions
(1) If an Act of South Australia repeals some provisions of this
Law and enacts new provisions in substitution for the
repealed provisions, the repealed provisions continue in
force until the new provisions commence.
(2) If a Regulation or Rule repeals some provisions of the
Regulations or Rules and enacts new provisions in
substitution for the repealed provisions, the repealed
provisions continue in force until the new provisions
commence.
35--Law and amending Acts to be read as one
This Law and all Acts of this jurisdiction amending this Law
are to be read as one.
Part 8--Offences under this Law
36--Penalty at end of provision
In this Law, a penalty specified at the end of--
(a) a section (whether or not the section is divided
into subsections); or
(b) a subsection (but not at the end of a section); or
(c) a section or subsection and expressed in such a
way as to indicate that it applies only to part of the
section or subsection,
indicates that an offence mentioned in the section,
subsection or part is punishable on conviction or, if no
offence is mentioned, a contravention of the section,
subsection or part constitutes an offence against the
provision that is punishable, on conviction, by a penalty not
more than the specified penalty.
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37--Penalty other than at end of provision
(1) In this Law, a penalty specified for an offence, or a
contravention of a provision, indicates that the offence is
punishable on conviction, or the contravention constitutes an
offence against the provision that is punishable, on
conviction, by a penalty not more than the specified penalty.
(2) This clause does not apply to a penalty to which clause 36
applies.
38--Indictable offences and summary offences
(1) An offence against this Law that is not punishable by
imprisonment is punishable summarily.
(2) An offence against this Law that is punishable by
imprisonment is, subject to subclause (3), punishable on
indictment.
(3) If--
(a) a proceeding for an offence against this Law that
is punishable by imprisonment is instituted in a
court of summary jurisdiction; and
(b) the prosecutor requests the court to hear and
determine the proceeding,
the offence is punishable summarily and the court must hear
and determine the proceeding.
(4) A court of summary jurisdiction must not--
(a) impose, in relation to a single offence against this
Law, a period of imprisonment of more than two
years; or
(b) impose, in relation to offences against the Law,
cumulative periods of imprisonment that are, in
total, more than five years.
(5) Nothing in this clause renders a person liable to be punished
more than once in relation to the same offence.
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39--Double jeopardy
(1) If an act or omission constitutes an offence--
(a) under this Law as applied as a law of this
jurisdiction; and
(b) under this Law as applied as a law of another
jurisdiction,
and the offender has been punished in relation to the offence
under the law mentioned in paragraph (b), the offender is
not liable to be punished in relation to the offence
mentioned in paragraph (a).
(2) If an act or omission constitutes--
(a) a breach of a civil penalty provision of this Law as
applied as a law of this jurisdiction; and
(b) a breach of a civil penalty provision of this Law as
applied as a law of another jurisdiction,
and the person in breach of the civil penalty provision
mentioned in paragraph (a) has been punished in relation to
the civil penalty provision mentioned in paragraph (b), the
person is not liable in relation to the breach of the civil
penalty provision mentioned in paragraph (a).
(3) In subclause (2)--
civil penalty provision has the same meaning as in
section 58.
40--Aiding and abetting, attempts etc
(1) A person who aids, abets, counsels or procures, or by act or
omission is in any way directly or indirectly concerned in or
a party to, the commission of an offence against this Law is
taken to have committed that offence and is liable to the
penalty for the offence.
(2) A person who attempts to commit an offence against this
Law commits an offence and is punishable as if the
attempted offence had been committed.
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Part 9--Instruments under this Law
41--Schedule applies to statutory instruments
(1) This Schedule applies to a statutory instrument, and to
things that may be done or are required to be done under a
statutory instrument, in the same way as it applies to this
Law, and things that may be done or are required to be done
under this Law, except so far as the context or subject matter
otherwise indicates or requires.
(2) The fact that a provision of this Schedule refers to this Law
and not also to a statutory instrument does not, by itself,
indicate that the provision is intended to apply only to this
Law.
42--National Electricity Rules to be construed so as
not to exceed the legislative power of the
Legislature of this jurisdiction or the powers
conferred by this Law
(1) The National Electricity Rules are to be construed as
operating to the full extent of, but so as not to exceed, the
legislative power of the Legislature of this jurisdiction or the
power conferred by this Law under which they are made.
(2) Without limiting subclause (1), the National Electricity
Rules do not purport to impose any duty on the AER to
perform a function 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".
(3) 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 that 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.
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(4) Without limiting subclause (3), if a provision of the National
Electricity Rules or the application of the National
Electricity Rules to a person, subject matter or circumstance
is in excess of the legislative power of the Legislature of this
jurisdiction because it purports to impose a duty on the AER
to perform a function or exercise a power or is otherwise
ineffective to impose such a duty, the provision has effect 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).
(5) This clause applies to the National Electricity Rules in
addition to, and without limiting the effect of, any provision
of the National Electricity Rules, or of this Law under which
they are made.
43--Invalid Rules
(1) If the Court orders (by declaration or otherwise) that a Rule
is invalid, the order of the Court does not--
(a) revive anything not in force or existing at the time
of the order of the Court; or
(b) affect the previous operation of the Rule or
anything suffered, done or begun under the Rule;
or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the Rule; or
(d) affect a penalty arising because of a breach of the
Rule; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) A penalty may be imposed and enforced, and any such
investigation, proceeding or remedy may be begun,
continued or enforced as if the Rule had not been ordered by
the Court as invalid.
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Schedule 3--Savings and transitionals
(section 4)
Part 1--General
1--Definitions
In this Schedule--
ACCC means the Australian Competition and Consumer
Commission established by section 6A of the Trade
Practices Act 1974 of the Commonwealth;
Code participant has the same meaning as in section 3 of
the old National Electricity Law;
commencement day means the day on which section 12 of
the South Australian amending Act comes into operation;
NECA means National Electricity Code Administrator
Limited ACN 073 942 775;
South Australian amending Act means the National
Electricity (South Australia) (New National Electricity Law)
Amendment Act 2005 of South Australia.
Note--
The Regulations may also contain provisions of an
application, savings or transitional nature.
Part 2--General savings provision
2--Saving of operation of old National Electricity Law
(1) Subject to this Schedule, the repeal of the old National
Electricity Law does not--
(a) revive anything not in force or existing at the time
the repeal takes effect; or
(b) affect the previous operation of the old National
Electricity Law or anything suffered, done or
begun under or in accordance with the old
National Electricity Law; or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the old National
Electricity Law; or
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(d) affect a penalty incurred in relation to an offence
arising under the old National Electricity Law or
penalty incurred in relation to a breach of a
provision of the National Electricity Code; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) Subject to this Schedule, any such penalty may be imposed
and enforced, and any such investigation, proceeding or
remedy may be begun, continued or enforced, as if the old
National Electricity Law had not been repealed.
Note--
The substitution of a Schedule to an Act repeals the
Schedule.
Part 3--National Electricity Code changes
3--Current Code change and derogation proposals to
be dealt with under this Law
(1) In this clause--
current Code change proposal means a proposed change to
the National Electricity Code--
(a) that is not a derogation; and
(b) that NECA has not adopted and implemented in
accordance with the National Electricity Code as
at the commencement day;
current Code derogation proposal means an application for
a derogation, or request for an extension of the period for
which a derogation has been granted, that NECA has not
granted in accordance with the National Electricity Code as
at the commencement day;
derogation has the same meaning as in Chapter 10 of the
National Electricity Code;
interested party means--
(a) a Code participant; or
(b) a person who is an interested party within the
meaning of the National Electricity Code;
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relevant Code change step means a requirement under the
National Electricity Code that must be complied with for the
purpose of--
(a) making a change to the National Electricity Code;
or
(b) making a derogation or extending the period for
which a derogation has been granted;
relevant Rule-making step means a requirement under a
provision of Part 7 of this Law that the AEMC must comply
with in the making of a Rule under that Part.
(2) Subject to this clause, on the commencement day every
current Code change proposal is to be taken to be a request
for the making of a Rule under Part 7 of this Law and may
be made by the AEMC in accordance with that Part.
(3) Subject to this clause, on the commencement day every
current Code derogation proposal is to be taken to be a
request for the making of a participant derogation under Part
7 of this Law and may be made by the AEMC in accordance
with that Part.
(4) The AEMC may decide to dispense, or not comply, with a
relevant Rule-making step in respect of a current Code
change proposal or current Code derogation proposal if it is
of the opinion that the relevant Rule-making step duplicates
or is consistent with a relevant Code change step that has
already been taken under the National Electricity Code.
(5) On making a decision under subclause (4), the AEMC must
publish a notice of that decision--
(a) in a newspaper circulating generally throughout
Australia; and
(b) on its website.
Note--
A person aggrieved by a decision of the AEMC under
subclause (4) may apply to the Court under section 70 for
judicial review of the decision.
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4--Current jurisdictional derogation proposals to be
made under this Law
(1) In this clause--
current jurisdictional derogation change proposal means a
change to a jurisdictional derogation in respect of which
NECA has not published a notice of the change in
accordance with clause 9.1.1(h) of the National Electricity
Code;
jurisdictional derogation has the same meaning as in clause
9.1.1 of the National Electricity Code;
relevant jurisdictional derogation change step means a
requirement under Chapter 9 of the National Electricity
Code that must be complied with for the purpose of making
a change to a jurisdictional derogation;
relevant Rule-making step means a requirement under a
provision of Part 7 of this Law that the AEMC must comply
with in the making of a Rule under that Part.
(2) Subject to this clause, on the commencement day, every
current jurisdictional derogation change proposal is to be
taken to be a request for the making of a jurisdictional
derogation under Part 7 of this Law and may be made by the
AEMC in accordance with that Part.
(3) The AEMC may decide to dispense, or not comply, with a
relevant Rule-making step in respect of a current
jurisdictional derogation change proposal if it is of the
opinion that the relevant Rule-making step duplicates or is
consistent with a relevant jurisdictional derogation change
step that has already been undertaken under Chapter 9 of the
National Electricity Code.
(4) On making a decision under subclause (3), the AEMC must
publish a notice of that decision--
(a) in a newspaper circulating generally throughout
Australia; and
(b) on its website.
Note--
A person aggrieved by a decision of the AEMC under
subclause (3) may apply to the Court under section 70 for
judicial review of the decision.
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Part 4--Registration
5--Code participants deemed to be Registered
participants
A Code participant (other than NEMMCO) registered under
the National Electricity Code immediately before the
commencement day is, on that day, deemed to be--
(a) a Registered participant; and
(b) registered under this Law and the National
Electricity Rules in the same category of
registration as the category of registration that the
Code participant was registered under National
Electricity Code immediately before that day.
6--Exemptions
On the commencement day--
(a) an exemption given by NEMMCO under clause
2.2.1(c) of the National Electricity Code in force
immediately before that day is deemed to be an
exemption granted under section 12(5);
(b) an exemption granted by NECA under clause
2.5.1(d) of the National Electricity Code in force
immediately before that day is deemed to be an
exemption granted under section 13(3).
Part 5--References to the National Electricity Code
and specific provisions or terms
7--References to the National Electricity Code
Unless the context otherwise requires, on and from the
commencement day, every reference in a document
(however described) to the National Electricity Code is
deemed to be a reference to the National Electricity Rules.
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8--References to provisions of the National Electricity
Code
Unless the context otherwise requires, on and from the
commencement day, every reference to a provision of the
National Electricity Code in a document (however
described) is deemed to be a reference to the provision of
the National Electricity Rules that corresponds to that
provision of the National Electricity Code.
9--References to Code participants
(1) Unless the context otherwise requires, on and from the
commencement day, every reference in a document
(however described) to a Code participant (other than
NEMMCO) within the meaning of the old National
Electricity Law is deemed to be a reference to a Registered
participant.
(2) Unless the context otherwise requires, on and from the
commencement day, every reference in a document
(however described) to a Code participant (within the
meaning of the old National Electricity Law) that is
NEMMCO is deemed to be a reference to NEMMCO.
Part 6--Investigations and proceedings
10--Investigations into breaches and possible breaches
of the Code
(1) On and from the commencement day, a NECA investigation
may be conducted and completed by the AER in accordance
with this Law, the Regulations and the Rules as if that
investigation were commenced by the AER under this Law,
the Regulations and the Rules.
(2) In this clause--
NECA investigation means an investigation into a breach or
possible breach of the National Electricity Code by NECA
under the old National Electricity Law and National
Electricity Code that--
(a) has been commenced by NECA before the
commencement day; and
(b) has not been completed by NECA before the
commencement day.
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Part 7--Funds
11--Civil penalties fund
(1) On the commencement day, all money standing to the credit
of the civil penalties fund immediately before that day vests
in the AEMC.
(2) In this clause--
civil penalties fund has the same meaning as in section 66
of the old National Electricity Law.
Part 8--Other
12--Continuation of Reliability Panel
(1) On the commencement day--
(a) the persons appointed under clause 8.8 of the
National Electricity Code, and comprising the
Reliability Panel immediately before that day, are
deemed to be the persons appointed to comprise
the Reliability Panel established under section 38;
and
(b) the Reliability Panel established under section 38
is deemed to be the same body as the Reliability
Panel established under clause 8.8 of the National
Electricity Code.
(2) However, despite anything to the contrary in the National
Electricity Rules, the persons deemed to be appointed to
comprise the Reliability Panel under subclause (1) must,
unless they earlier resign from the Reliability Panel, cease to
comprise the Reliability Panel on the day that is 6 months
after the commencement day.
(3) To avoid doubt, each of the persons who cease to be
appointed to comprise the Reliability Panel by operation of
subclause (2), or earlier resign as contemplated by
subclause (2), are eligible to be reappointed to the
Reliability Panel in accordance with section 38 and the
National Electricity Rules.
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13--Jurisdictional system security coordinator
On the commencement day, the Jurisdictional Co-ordinator
appointed by the Minister of this jurisdiction under
clause 4.3.2(e) of the National Electricity Code is deemed to
be appointed as the jurisdictional system security
coordinator under section 110.
14--Rights under certain change of law provisions in
agreements or deeds not to be triggered
(1) The repeal of the old National Electricity Law and the
commencement of this Law and the initial National
Electricity Rules is not to be regarded as a change of law
(however defined) under any agreement or deed in effect on
the commencement day.
Note--
The substitution of a Schedule to an Act repeals
the Schedule.
(2) Subclause (1) applies despite any provision in any
agreement or deed to the contrary.
15--Certain undertakings to cease effect on
commencement day
(1) Any deed entered into by a Code participant for the
purposes of clause 2.8.2 of the National Electricity Code and
in effect immediately before the commencement day, ceases
to have effect on that day.
(2) Subclause (1) does not affect a right, privilege or liability
acquired, accrued or incurred under a deed referred to in that
subclause, or under the National Electricity Code by force of
a deed referred to in that subclause, except as otherwise
provided by the Regulations.
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Part 9--Tasmanian participation in the national
electricity market
16--Jurisdictional derogations relating to Tasmania's
entry into national electricity market
(1) Despite anything to the contrary in this Law, the
Regulations, the Rules or the Australian Energy Market
Commission Establishment Act 2004 of South Australia, the
Minister of the Crown in right of Tasmania nominated under
section 6(2) may, in writing, direct the AEMC to make a
jurisdictional derogation that is substantially the same as the
changes to the National Electricity Code--
(a) authorised by the ACCC under Part VII of the
Trade Practices Act 1974 of the Commonwealth in
the determination of the ACCC entitled
"Tasmanian Derogations and Vesting Contract -
Tasmania's NEM entry", dated 14 November
2001; and
(b) in any determination of the ACCC varying the
authorisation referred to in paragraph (a).
(2) The AEMC must, despite anything to the contrary in this
Law, the Regulations, the Rules or the Australian Energy
Market Commission Establishment Act 2004 of South
Australia, make the jurisdictional derogation as soon as
practicable after being given a direction under subclause (1).
(3) In making the jurisdictional derogation under subclause (2),
the AEMC need not comply with Division 3 of Part 7 of this
Law (other than sections 103(2), 104 and 105).
17--Definition of national electricity system to permit
Tasmania to participate in national electricity
market before commissioning of Basslink
(1) Despite anything to the contrary in this Law, the
Regulations or the Rules, on and from the commencement
day and until the relevant day, every reference in this Law,
the Regulations or the Rules to the interconnected
transmission and distribution system is to be read as
including a reference to the interconnected transmission and
distribution system in the State of Tasmania.
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(2) 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, on being
satisfied that Basslink will connect the electricity grids of
the States of Tasmania and Victoria on a particular day,
publish notice of that day in the South Australian
Government Gazette.
(3) In this clause--
relevant day means the day notified under subclause (2);
Basslink has the same meaning as in the Electricity Supply
Industry Act 1995 of Tasmania.
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1
Consolidated National Electricity (South Australia) Act 1996 incorporating
amendments to be made by the National Electricity (South Australia) (New
National Electricity Law) Amendment Bill 2005.
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