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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Electricity Industry Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Licensing of electricity supply
Division 1 -- Licence classification and area
4. Classification of licences 5
5. Licence area 6
Division 2 -- Licensing requirements
6. Licensing extends to statutory providers 6
7. Requirement for licence 6
8. Power to exempt 7
Division 3 -- General licensing provisions
9. Authority to consider public interest 8
10. Application for licence 9
11. Authority may determine licence terms and conditions 9
12. Regulations as to licence terms and conditions 10
13. Licence condition: performance audit 10
14. Licence condition: asset management system 10
15. Duration of licence 11
16. Renewal of licence 11
17. Licence fees 11
18. Transfer of licence 12
19. Decisions as to grant, renewal or transfer of licence 12
20. Other laws not affected 13
21. Amendment of licence on application of licensee 13
22. Amendment of licence on initiative of Authority 14
23. Notice of decisions 14
249--2C page i
Electricity Industry Bill 2003
Contents
24. Licences to be available for inspection 15
25. Regulations about public consultation 15
Division 4 -- Exclusive licences
26. Regulations may authorise an exclusive licence 15
27. Requirements for regulations 16
28. Application for and grant of licence 16
29. Prohibition of further licences 17
30. Trade practices authorisation 17
Division 5 -- Interruption of supply
31. Interruption of supply 17
Division 6 -- Enforcement
32. Failure to comply with licence 19
33. Right of licensee to make submissions 19
34. Exception where public health endangered 20
35. Cancellation of licence 20
36. Duty to leave system in safe condition 21
Division 7 -- Other functions of the Authority
37. Authority to administer licensing scheme 22
38. Authority to monitor licensing scheme and licence
compliance 22
39. Authority may issue codes 23
Division 8 -- Powers in relation to land
40. Power of public authority to grant certain interests 23
41. Taking of interest or easement for purposes of licence 24
42. Vesting of interest or easement 25
43. Proceedings and liability 25
44. Easements in gross 26
Division 9 -- Extension of Energy Operators
(Powers) Act 1979 to licensees
45. Extension of certain provisions of Energy Operators
(Powers) Act 1979 26
Division 10 -- Transitional provision
46. Transitional provision for existing operators 27
Part 3 -- Supply of electricity to certain
customers
Division 1 -- Preliminary
47. Terms used in this Part 29
page ii
Electricity Industry Bill 2003
Contents
Division 2 -- Supply contracts
48. Regulations as to supply contracts 29
49. Form of contract to be submitted with application for
grant, renewal or transfer 30
50. Licence application not to be granted unless standard
form contract approved 31
51. Approval of standard form contract 31
52. Amendment or replacement of standard form contract 32
53. Authority may direct that amendment be made 32
54. Licence condition: contracts 33
55. Contracts with corporations 34
56. Enforcement of obligation in section 55(2) 35
Division 3 -- Connection to distribution system
57. Terms used in this Division 36
58. Regulations as to connection 36
Division 4 -- Default supplier
59. Regulations as to default supplier 37
Part 4 -- Extension and expansion
policies for certain corporations
60. Terms used in this Part 39
61. Draft policy to be submitted to Coordinator 39
62. Approval of policy 40
63. Amendment or replacement of policy 40
64. Coordinator may direct that amendment be made 41
65. Licence condition: extension and expansion 41
66. Regulations as to content of policies 42
Part 5 -- Last resort supply
arrangements
67. Terms used in this Part 43
68. Authority to ensure supply plan in place in designated
areas 43
69. Requirements for last resort supply plan 43
70. How plan brought into operation 44
71. Supplier of last resort 44
72. Functions of supplier of last resort 45
73. Approval or determination of plan 45
74. Amendment of plan by supplier 45
page iii
Electricity Industry Bill 2003
Contents
75. Authority may make amendment 46
76. Licence condition: last resort supply 46
77. Provision may be made by regulation 46
Part 6 -- Code of conduct for supply of
electricity to small use customers
78. Terms used in this Part 48
79. Code of conduct 49
80. Code is subsidiary legislation 49
81. Consultative committee 50
82. Licence condition: code of conduct 50
83. Enforcement of code of conduct against marketing
agents 50
84. Code may provide for vicarious liability 51
85. Code may include presumption of authority 51
86. Authority to monitor compliance 51
87. Comment to be sought on amendment or replacement
of code 51
88. Review of code 52
89. Further provisions about opportunity to comment 52
Part 7 -- Electricity ombudsman
scheme
Division 1 -- Preliminary
90. Terms used in this Part 54
91. Regulations as to electricity ombudsman scheme 54
Division 2 -- Approval of electricity ombudsman
scheme
92. Authority may approve scheme 55
93. Requirements for scheme or amendment to be
approved 56
94. Revocation of approval 56
Division 3 -- Scheme operation
95. Customer may have decision or complaint reviewed 56
96. Jurisdiction of courts and tribunals 57
97. Enforcement against marketing agents and others 57
98. Authority to monitor compliance with decisions 57
page iv
Electricity Industry Bill 2003
Contents
Division 4 -- Membership of approved scheme by
licensee
99. Proof of membership in applications relating to
licence 58
100. Prerequisite to grant, renewal or transfer of licence 58
101. Licence condition: membership of scheme 59
Part 8 -- Access to services of network
infrastructure facilities
Division 1 -- Preliminary
102. Purposes of this Part 60
103. Terms used in this Part 60
Division 2 -- Establishment of Code
104. Minister to establish Code 61
105. Other matters for which Code may make provision 64
106. Code does not affect existing agreements 64
107. Code is subsidiary legislation 65
108. Public comment on amendment or replacement of
Code 65
109. Exception to section 108 66
110. Consultation with network service providers on
amendment or replacement of Code 67
111. Review of Code 68
112. Functions of the Authority 69
113. The arbitrator 69
Division 3 -- Enforcement
114. References to contravening the Code 69
115. Prohibitions on hindering or preventing access 70
116. Proceedings 70
117. Criminal proceedings do not lie 71
118. Regulations as to enforcement of Code 71
Division 4 -- Transitional
119. Value of existing facilities 72
120. Expiry 73
Part 9 -- Wholesale electricity market
121. Terms used in this Part 74
122. Regulations for a wholesale electricity market 74
123. Market rules 75
page v
Electricity Industry Bill 2003
Contents
124. Matters to be dealt with in regulations 75
125. Appeals 78
126. Immunity of certain participants 79
127. Trade practices authorisation by regulation 80
128. Review of market operation 80
129. Public consultation 81
Part 10 -- Other matters
130. Review by the Board 83
131. Regulations 85
132. Regulations as to fees and charges for supply and
services 85
133. Regulations as to fees and charges for functions of
arbitrator and Board 86
Schedule 1 -- Licence terms and
conditions 87
Schedule 2 -- Objectives to be met by
the electricity ombudsman scheme 90
Objectives stated 90
Schedule 3 -- Transitional provisions 92
Division 1 -- Initial customer service code of conduct 92
1. Approval of initial customer service code of conduct 92
2. Appointment of initial committee 92
3. Regulations for transitional matters 93
Division 2 -- Initial electricity ombudsman scheme 93
4. Approval of initial electricity ombudsman scheme 93
5. Regulations for transitional matters 94
Defined Terms
page vi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Electricity Industry Bill 2003
A Bill for
An Act to govern the operation and regulation of the Western
Australian electricity industry and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Electricity Industry Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Electricity Industry Act 2003.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Terms used in this Act
In this Act, unless the contrary intention appears --
10 "arbitrator" has the meaning given to that term in the Gas
Pipelines Access (Western Australia) Act 1998 section 61;
"Authority" means the Economic Regulation Authority
established by the Economic Regulation Authority
Act 2003;
15 "Board" has the meaning given to that term in the Gas
Pipelines Access (Western Australia) Act 1998 section 49;
"customer" means a person to whom electricity is sold for the
purpose of consumption;
"distribution licence" means a licence with the classification
20 described in section 4(1)(c);
"distribution system" means any apparatus, equipment, plant
or buildings used, or to be used, for, or in connection with,
the transportation of electricity at nominal voltages of less
than 66 kV;
25 "electricity" includes electrical energy of any kind however
produced, stored, transported or consumed;
"generating works" means any apparatus, equipment, plant or
buildings used, or to be used, for, or in connection with, the
generation of electricity;
page 2
Electricity Industry Bill 2003
Preliminary Part 1
s. 3
"generation licence" means a licence with the classification
described in section 4(1)(a);
"integrated regional licence" means a licence with the
classification described in section 4(1)(e);
5 "licence" means --
(a) a generation licence;
(b) a transmission licence;
(c) a distribution licence;
(d) a retail licence; or
10 (e) an integrated regional licence;
"licence area" means the area or areas designated in a licence
under section 5;
"licensee" means the holder of a licence and includes any
transferee of a licence under section 18;
15 "operate", in relation to generating works, a transmission
system, or a distribution system, includes --
(a) to maintain the works or system; and
(b) to make any modifications necessary or desirable for
the operation of the works or system;
20 "relevant corporation" means Western Power Corporation or a
body corporate that is a subsidiary, as defined in section 3
of the Electricity Corporation Act 1994, of Western Power
Corporation;
"retail licence" means a licence with the classification
25 described in section 4(1)(d);
"South West interconnected system" means the
interconnected transmission and distribution systems,
generating works and associated works --
(a) located in the South West of the State and extending
30 generally between Kalbarri, Albany and Kalgoorlie;
and
page 3
Electricity Industry Bill 2003
Part 1 Preliminary
s. 3
(b) into which electricity is supplied by --
(i) one or more of the electricity generation
plants at Kwinana, Muja, Collie and Pinjar; or
(ii) any prescribed electricity generation plant;
5 "supply" means to do any one or more of the following --
(a) generate;
(b) transport through a transmission system;
(c) transport through a distribution system;
(d) sell;
10 "transmission licence" means a licence with the classification
described in section 4(1)(b);
"transmission system" means any apparatus, equipment, plant
or buildings used, or to be used, for, or in connection with,
the transportation of electricity at nominal voltages of
15 66 kV or higher;
"Western Power Corporation" means the body corporate that
is Western Power Corporation under section 4(1) of the
Electricity Corporation Act 1994.
page 4
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Licence classification and area Division 1
s. 4
Part 2 -- Licensing of electricity supply
Division 1 -- Licence classification and area
4. Classification of licences
(1) Licences are classified as follows --
5 (a) generation, which authorises the licensee --
(i) to construct and operate one or more generating
works; or
(ii) to operate one or more existing generating
works;
10 (b) transmission, which authorises the licensee --
(i) to construct and operate one or more
transmission systems; or
(ii) to operate one or more existing transmission
systems;
15 (c) distribution, which authorises the licensee --
(i) to construct and operate one or more distribution
systems; or
(ii) to operate one or more existing distribution
systems;
20 (d) retail, which authorises the licensee to sell electricity to
customers;
(e) integrated regional, which authorises the licensee to
carry out one or more of the activities described in
paragraphs (a) to (d) for the purpose of supplying
25 electricity to customers otherwise than through the
South West interconnected system.
(2) A licence must be designated by reference to one of the
classifications referred to in subsection (1).
page 5
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 2 Licensing requirements
s. 5
5. Licence area
(1) A licence must be designated to apply to one or more areas of
the State specified in the licence.
(2) If 2 or more areas are specified in a licence those areas need not
5 be contiguous.
Division 2 -- Licensing requirements
6. Licensing extends to statutory providers
The requirements of this Division apply to a person despite the
fact that the person, in supplying electricity, is performing a
10 function that --
(a) is authorised or provided for by or under a written law;
or
(b) has been approved under a written law.
7. Requirement for licence
15 (1) A person must not construct or operate generating works except
under the authority of a generation licence or an integrated
regional licence.
(2) A person must not construct or operate a transmission system
except under the authority of a transmission licence or an
20 integrated regional licence.
(3) A person must not construct or operate a distribution system
except under the authority of a distribution licence or an
integrated regional licence.
(4) A person must not sell electricity to customers except under the
25 authority of a retail licence or an integrated regional licence.
page 6
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Licensing requirements Division 2
s. 8
(5) A person does not commit an offence under subsection (1), (2)
or (3) if the generating works, transmission system or
distribution system concerned is or are used, or to be used,
solely for the supply of electricity for consumption by --
5 (a) the person who owns, controls or operates the works or
system;
(b) if the person referred to in paragraph (a) is a body
corporate, a related body corporate (as defined in the
Corporations Act 2001 of the Commonwealth section 9)
10 of the person; or
(c) a person who is in partnership with, or is a participant in
a joint venture arrangement with, the person referred to
in paragraph (a) in relation to that supply.
(6) A person does not commit an offence under subsection (4) if the
15 person is the holder of a generation licence and the electricity is
sold solely for consumption by another person on the premises
on which generating works to which the licence applies are
located.
Penalty applicable to this section: $100 000.
20 Daily penalty applicable to this section: $5 000.
8. Power to exempt
(1) The Governor may by order published in the Gazette exempt
any person or class of persons from all or any of the provisions
of section 7(1) to (4).
25 (2) An order under subsection (1) may provide for circumstances in
which, and conditions subject to which, an exemption is to
apply.
(3) An exemption is of no effect at any time when a condition to
which it is subject is not being observed.
30 (4) The Governor must not make an order under subsection (1)
unless he or she is satisfied that it would not be contrary to the
public interest to do so.
page 7
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 3 General licensing provisions
s. 9
(5) Without limiting the other matters that may be taken into
account, matters that are to be taken into account by the
Governor in determining whether the making of the order would
not be contrary to the public interest are --
5 (a) environmental considerations;
(b) social welfare and equity considerations, including
community service obligations;
(c) economic and regional development, including
employment and investment growth;
10 (d) the interests of customers generally or of a class of
customers;
(e) the interests of any licensee, or applicant for a licence, in
respect of the area or areas to which the order, if made,
would apply;
15 (f) the importance of competition in electricity industry
markets;
(g) the policy objectives of government in relation to the
supply of electricity.
(6) The Interpretation Act 1984 section 43(4) and (7) to (9) apply to
20 an order under subsection (1) as if the order were subsidiary
legislation.
Division 3 -- General licensing provisions
9. Authority to consider public interest
(1) The Authority must not exercise a power conferred by this
25 Division unless the Authority is satisfied that it would not be
contrary to the public interest to do so.
(2) Without limiting the other matters that may be taken into
account, the Authority, in determining whether the exercise of
the power would not be contrary to the public interest, is to take
30 into account the matters referred to in section 8(5) but as if the
area or areas referred to in section 8(5)(e) were the area or areas
page 8
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
General licensing provisions Division 3
s. 10
to which the licence in respect of which the power is exercised
applies.
10. Application for licence
(1) An application for a licence must be --
5 (a) made in a form approved by the Authority; and
(b) accompanied by the prescribed application fee.
(2) An applicant must provide any additional information that the
Authority may require for the proper consideration of the
application.
10 11. Authority may determine licence terms and conditions
(1) A licence is subject to any terms and conditions that are
determined by the Authority.
(2) Without limiting subsection (1), terms and conditions
determined under that subsection may include provisions
15 relating to any matter provided for by Schedule 1.
(3) The terms and conditions of licences that --
(a) have the same classification under section 4; and
(b) have the same licence area or licence areas that overlap
to a significant extent,
20 must be substantially similar, except to the extent that the
Authority considers that --
(c) it is not practicable to make them substantially similar;
or
(d) a difference is necessary to reflect particular supply
25 circumstances.
(4) Terms and conditions determined under subsection (1) must not
be inconsistent with --
(a) any other terms and conditions provided for in this Act
or the regulations that apply to the licence;
page 9
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 3 General licensing provisions
s. 12
(b) the Code for the time being in force under section 104;
or
(c) regulations made under the Electricity Act 1945
section 32.
5 12. Regulations as to licence terms and conditions
The regulations may prescribe terms and conditions that are to
be taken to be included in --
(a) every licence;
(b) every licence of a prescribed class; or
10 (c) a licence held by a relevant corporation.
13. Licence condition: performance audit
(1) It is a condition of every licence that the licensee must, not less
than once in every period of 24 months (or any longer period
that the Authority allows) calculated from the grant of the
15 licence, provide the Authority with a performance audit
conducted by an independent expert acceptable to the Authority.
(2) A performance audit is an audit of the effectiveness of measures
taken by the licensee to meet the performance criteria specified
in the licence.
20 (3) The Authority must give the Minister a report on each
performance audit within 2 months after its receipt of the audit.
14. Licence condition: asset management system
(1) It is a condition of every licence, other than a retail licence, that
the licensee must --
25 (a) provide for an asset management system in respect of
the licensee's assets;
(b) notify details of the system and any substantial changes
to it to the Authority; and
page 10
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
General licensing provisions Division 3
s. 15
(c) not less than once in every period of 24 months (or any
longer period that the Authority allows) calculated from
the grant of the licence, provide the Authority with a
report by an independent expert acceptable to the
5 Authority as to the effectiveness of the system.
(2) An asset management system is to set out measures that are to
be taken by the licensee for the proper maintenance of assets
used in the supply of electricity and in the operation of, and,
where relevant, the construction of, any generating works,
10 transmission system or distribution system.
15. Duration of licence
(1) The Authority may grant or renew a retail licence for any period
not exceeding 15 years that the Authority considers appropriate.
(2) The Authority may grant or renew a licence other than a retail
15 licence for any period not exceeding 30 years that the Authority
considers appropriate.
16. Renewal of licence
(1) An application for the renewal of a licence must be --
(a) made in a form approved by the Authority; and
20 (b) accompanied by the prescribed application fee.
(2) An applicant must provide any additional information that the
Authority may require for the proper consideration of the
application.
17. Licence fees
25 (1) A licensee must pay to the Authority the prescribed licence
fee --
(a) within one month after the day of grant or renewal of the
licence; and
(b) within one month after each anniversary of that day
30 during the term of the licence.
page 11
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 3 General licensing provisions
s. 18
(2) The regulations may prescribe different licence fees for each of
the classifications referred to in section 4.
(3) The Authority may recover any outstanding licence fee in a
court of competent jurisdiction as a debt due by the licensee to
5 the State.
18. Transfer of licence
(1) A licence cannot be transferred except with the approval of the
Authority.
(2) Approval for the purposes of subsection (1) may be given on
10 such terms and conditions as are determined by the Authority.
(3) An application for approval to transfer a licence must be --
(a) made in a form approved by the Authority; and
(b) accompanied by the prescribed application fee.
(4) An applicant must provide any additional information that the
15 Authority may require for the proper consideration of the
application.
19. Decisions as to grant, renewal or transfer of licence
(1) Subject to section 9, the Authority must grant, renew or approve
the transfer of a licence if it is satisfied that the applicant --
20 (a) has, and is likely to retain; or
(b) will acquire within a reasonable time after the grant,
renewal or transfer, and is then likely to retain,
the financial and technical resources to undertake the activities
authorised, or to be authorised, by the licence.
25 (2) The Authority must take all reasonable steps to make a decision
in respect of an application for --
(a) the grant or renewal of a licence; or
(b) approval to transfer a licence,
within 90 days after the application is made.
page 12
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
General licensing provisions Division 3
s. 20
(3) The duties imposed on the Authority by subsections (1) and (2)
apply only if --
(a) an application has been made in accordance with
section 10, 16 or 18, as the case may be;
5 (b) section 50 or 100 does not prohibit the grant or renewal
of the licence or the approval of the transfer; and
(c) where a requirement has been made under
section 10(2), 16(2) or 18(4), the relevant information
has been provided to the Authority.
10 20. Other laws not affected
The grant, renewal or transfer of a licence does not affect the
licensee's obligations to comply with any other written law in
relation to the matters covered by the licence.
21. Amendment of licence on application of licensee
15 (1) A licensee may apply to the Authority at any time for
amendment of the licence.
(2) An application for the amendment of a licence must be --
(a) made in a form approved by the Authority; and
(b) accompanied by the prescribed application fee.
20 (3) An applicant must provide any additional information that the
Authority may require for the proper consideration of the
application.
(4) The Authority may grant the application if --
(a) it has been made in accordance with subsection (2); and
25 (b) where a requirement has been made under
subsection (3), the relevant information has been
provided to the Authority.
page 13
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 3 General licensing provisions
s. 22
22. Amendment of licence on initiative of Authority
(1) The Authority may, on its own initiative, determine that a
licence is to be amended.
(2) A licence must specify the procedure to be followed in making
5 such a determination, including the manner in which an
amendment is to be notified to the licensee, and the
determination may only be made in accordance with that
procedure.
(3) An amendment under this section cannot take effect until it is
10 notified to the licensee under the procedure referred to in
subsection (2).
(4) This section applies to the substitution of a new licence for an
existing licence in the same way as it applies to the amendment
of a licence.
15 23. Notice of decisions
(1) The Authority must ensure that notice of the grant, renewal,
transfer or amendment of a licence is published in the Gazette as
soon as is practicable after the grant, renewal, transfer or
amendment.
20 (2) The notice must include --
(a) the date of the grant, renewal, transfer or amendment;
(b) the name and business address of the licensee;
(c) the term of the licence;
(d) a description of the licence area;
25 (e) in the case of an amendment, details of the amendment;
(f) the place where a copy of the licence and any plan may
be inspected under section 24; and
(g) the Authority's internet website address.
page 14
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Exclusive licences Division 4
s. 24
(3) The Authority must ensure that written notice of a decision to
refuse to grant, renew, or approve the transfer of, a licence,
together with a statement of the reasons for the decision, is
given to the applicant within 14 days after the decision is made.
5 24. Licences to be available for inspection
The Authority must make available for public inspection at the
Authority's office during normal office hours and on the
Authority's internet website --
(a) a copy of every licence in force from time to time; and
10 (b) if any licence area is specified by reference to a plan, a
copy of the plan.
25. Regulations about public consultation
The regulations may require the Authority, before it makes a
decision on any application for the grant, renewal, transfer or
15 amendment of a licence under this Division, to undertake public
consultation in accordance with the procedure specified in the
regulations.
Division 4 -- Exclusive licences
26. Regulations may authorise an exclusive licence
20 (1) The Governor may, on the recommendation of the Minister,
make regulations designating one or more areas of the State as
an area in respect of which an exclusive licence may be granted
for a specified period.
(2) If 2 or more areas are designated under subsection (1) those
25 areas need not be contiguous.
(3) The specified period (the "period of exclusivity") is not to
exceed 10 years.
page 15
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 4 Exclusive licences
s. 27
27. Requirements for regulations
(1) The Minister may, under section 26, recommend the making of
regulations only if he or she considers that --
(a) without the grant of an exclusive licence of that kind in
5 respect of the area during the period of exclusivity there
will be no supply of electricity, or a limited supply, in
the area during that period;
(b) it is not contrary to the public interest that an exclusive
licence of that kind have effect in respect of the area
10 during the period of exclusivity; and
(c) the regulations will provide for an open and competitive
tender process to be carried out to determine the person
to whom the licence must be granted.
(2) Without limiting the other matters that may be taken into
15 account, for the purposes of subsection (1)(b), the Minister is to
take into account the matters referred to in section 8(5) but as if
the area or areas referred to in section 8(5)(e) were the area
referred to in subsection (1)(b).
(3) Regulations made under section 26 --
20 (a) are to set out the requirements to be observed before an
application for an exclusive licence may be made;
(b) are to set out the requirements to be observed, in
addition to the other provisions of this Part, before an
exclusive licence may be granted; and
25 (c) may provide for the terms and conditions of an
exclusive licence in addition to those otherwise provided
for by this Part.
28. Application for and grant of licence
(1) An application for an exclusive licence may only be made if the
30 Minister has determined that he or she is satisfied that all of the
requirements of the regulations to be observed before such an
application may be made have been complied with.
page 16
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Interruption of supply Division 5
s. 29
(2) Despite section 19, an exclusive licence may only be granted by
the Authority under that section if the Minister has determined
that he or she is satisfied that all of the requirements of the
regulations relevant to the grant of the licence have been
5 observed.
(3) A determination under subsection (1) or (2) is to be made by
instrument published in the Gazette.
29. Prohibition of further licences
If --
10 (a) an exclusive licence is granted in respect of an area in
accordance with regulations made under section 26; and
(b) the licence is not cancelled under section 35 or
surrendered,
no other person is to be granted a licence of the same kind to
15 have effect in respect of that area during the period of
exclusivity.
30. Trade practices authorisation
For the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code --
20 (a) the grant of an exclusive licence as provided by
regulations made under section 26; and
(b) conduct authorised or required by or under any such
licence,
are specifically authorised to the extent that the grant or conduct
25 would otherwise contravene that Act or that Code.
Division 5 -- Interruption of supply
31. Interruption of supply
(1) A licensee may interrupt, suspend or restrict the supply of
electricity provided by the licensee if in the licensee's opinion it
page 17
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 5 Interruption of supply
s. 31
is necessary to do so because of an accident, emergency,
potential danger or other unavoidable cause.
(2) A licensee is not liable for any loss or damage that arises from
an interruption, suspension or restriction under subsection (1)
5 except to the extent that --
(a) the interruption, suspension or restriction results from --
(i) a negligent act or omission of the licensee or an
officer or employee of the licensee; or
(ii) an act or omission of the licensee or an officer or
10 employee of the licensee done or made in bad
faith;
or
(b) an agreement to which the licensee is a party provides
otherwise.
15 (3) A licensee must take reasonable steps to minimise the extent or
duration of any interruption, suspension or restriction under
subsection (1).
(4) This section is in addition to --
(a) any powers that the licensee has under the Electricity
20 Act 1945 or the Electricity Corporation Act 1994 in
relation to the interruption, suspension or restriction of
the supply of electricity;
(b) the provisions of the Energy Operators (Powers)
Act 1979 sections 48 and 57 if those provisions are
25 prescribed provisions (as defined in section 45(1)) in
respect of the licensee; and
(c) any contractual rights that the licensee may have to
interrupt, suspend or restrict the supply of electricity,
and does not limit those powers, provisions or rights.
page 18
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Enforcement Division 6
s. 32
Division 6 -- Enforcement
32. Failure to comply with licence
(1) If, in the opinion of the Authority, a licensee contravenes a
licence, the Authority may cause a notice to be served on the
5 licensee requiring the licensee to rectify the contravention
within a specified period.
(2) If, in the opinion of the Authority, a licensee fails to comply
with a notice under subsection (1), the Authority may, subject to
section 33, do one or more of the following --
10 (a) serve a letter of reprimand on the licensee;
(b) order the licensee to pay a monetary penalty fixed by the
Authority but not exceeding $100 000;
(c) cause the contravention to be rectified to the satisfaction
of the Authority.
15 (3) Persons authorised by the Authority in writing may enter any
premises and do all things that are necessary for the purposes of
subsection (2)(c).
(4) The Authority may recover --
(a) a penalty imposed under subsection (2)(b); or
20 (b) the costs and expenses of any action taken under
subsection (2)(c),
in a court of competent jurisdiction as a debt due by the licensee
to the State.
33. Right of licensee to make submissions
25 The Authority is not to take any action under section 32(2)(b)
or (c) unless the Authority has --
(a) notified the licensee of the proposed action and the
reasons for it; and
(b) given the licensee a reasonable opportunity to make
30 submissions on the matter.
page 19
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 6 Enforcement
s. 34
34. Exception where public health endangered
If, in the opinion of the Authority, the health or safety of
members of the public is or may be at risk as a result of the
contravention of a licence, the Authority may cause the
5 contravention to be rectified under section 32(2)(c) without --
(a) serving notice on the licensee under section 32(1); or
(b) complying with section 33.
35. Cancellation of licence
(1) The Governor may cancel a licence if he or she is satisfied that
10 the licensee --
(a) is in default as defined in subsection (2);
(b) has failed to pay a licence fee as required under
section 17;
(c) in the case of a company, is an externally-administered
15 body corporate as defined in the Corporations Act 2001
of the Commonwealth section 9; or
(d) has within a period of 24 months been convicted of
more than 3 offences for which the prescribed
punishment is a fine of $10 000 or more or
20 imprisonment for 12 months or more.
(2) For the purposes of subsection (1)(a) a licensee is in default if
the Governor is satisfied that --
(a) the licensee has failed to comply with a term or
condition of the licence;
25 (b) the failure is material in terms of the operation of the
licence as a whole;
(c) the Minister has given to the licensee written notice of
the failure and the fact that in the Minister's opinion
paragraph (b) applies to it; and
30 (d) the licensee has not, within the time specified in the
notice, either remedied the failure or shown cause why
the licence should not be cancelled.
page 20
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Enforcement Division 6
s. 36
(3) If a licence is cancelled under this section the Authority must
ensure that notice of the cancellation is published in the Gazette.
(4) Regulations may be made under section 131 providing, in the
event of a licence being cancelled, for --
5 (a) the vesting of assets, rights and interests of the former
licensee in a person (including the Minister as a
corporation) for the purpose of enabling electricity to be
supplied after the cancellation;
(b) the conferral of powers and duties for that purpose;
10 (c) the discharge or assignment of liabilities;
(d) the disposal of property; and
(e) all matters that are necessary or convenient for dealing
with the consequences of the cancellation and the
vesting referred to in paragraph (a).
15 (5) If --
(a) a licence other than a retail licence is cancelled under
this section; and
(b) regulations of the kind referred to in subsection (4)(a)
are made,
20 Division 8 applies, with all necessary changes, for the purpose
of enabling electricity to be supplied after the cancellation, as if
references in that Division to a licensee were references to the
person in whom the assets, rights and interests of the former
licensee are vested under the regulations.
25 36. Duty to leave system in safe condition
(1) Following the cancellation of a licence under section 35, the
former licensee --
(a) must ensure that any generating works, transmission
system or distribution system constructed or operated by
30 the former licensee under the licence is left in a safe
condition; and
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Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 7 Other functions of the Authority
s. 37
(b) is not to remove any part of the works or system except
with the approval of the Minister.
(2) If, in the opinion of the Minister, a former licensee contravenes
subsection (1), the Minister may cause the contravention to be
5 rectified to the satisfaction of the Minister.
(3) Persons authorised by the Minister may enter any land or
premises and do all things that are necessary for the purposes of
subsection (2).
(4) The Minister may recover the costs and expenses of any action
10 taken under subsection (2) in a court of competent jurisdiction
as a debt due by the former licensee to the State.
Division 7 -- Other functions of the Authority
37. Authority to administer licensing scheme
It is a function of the Authority to administer the licensing
15 scheme provided for in this Part.
38. Authority to monitor licensing scheme and licence
compliance
It is a function of the Authority --
(a) to monitor and report to the Minister on the operation of
20 the licensing scheme provided for in this Part; and
(b) to inform the Minister about any failure by a licensee to
meet performance criteria or other requirements of its
licence.
page 22
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Powers in relation to land Division 8
s. 39
39. Authority may issue codes
(1) The Authority may prepare and issue a code or codes in respect
of the matters referred to in subsection (2).
(2) A code may make provision for and in relation to any one or
5 more of the following --
(a) metering of the supply of electricity by licensees
including --
(i) the provision, operation and maintenance of
metering equipment; and
10 (ii) ownership of and access to metering data;
(b) the transfer of customers between licensees;
(c) methods or principles to be applied by licensees in the
preparation of accounts for customers;
(d) standards relating to the quality and reliability of the
15 supply of electricity that are to be observed by the
holders of transmission licences or distribution licences;
(e) any other matter prescribed by the regulations.
(3) A code is subsidiary legislation for the purposes of the
Interpretation Act 1984.
20 (4) A provision of a code is of no effect to the extent that it is
inconsistent with a provision of this Act or another written law.
(5) The regulations may require the Authority, before it issues a
code, to undertake public consultation in accordance with the
procedure specified in the regulations.
25 Division 8 -- Powers in relation to land
40. Power of public authority to grant certain interests
(1) In this section --
"public authority" means --
(a) a Minister of the Crown;
page 23
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 8 Powers in relation to land
s. 41
(b) an agency, authority or instrumentality of the Crown
in right of the State or a local government; or
(c) a body, whether corporate or unincorporate, that is
established or continued for a public purpose by or
5 under a written law and prescribed for the purposes
of this definition;
"relevant interest" means a lease, easement, licence or other
authority necessary or expedient to enable the licensee to
construct, alter, operate or maintain generating works, a
10 transmission system or a distribution system, as the case
may be.
(2) A public authority may grant to a licensee, on such terms and
conditions as are agreed between the authority and the licensee,
a relevant interest in respect of land held by the public authority
15 in fee simple.
41. Taking of interest or easement for purposes of licence
(1) For the purpose of enabling a licensee to supply electricity as
authorised by a licence, an interest in land or easement over
land may be taken under the Land Administration Act 1997
20 Part 9 as if for a public work within the meaning of that Act.
(2) The power conferred by subsection (1) may only be exercised
on the recommendation of the Minister administering this Act.
(3) If in the opinion of the Minister administering this Act an
interest in land or easement over land is appropriate to a
25 licensee's needs in respect of --
(a) generating works;
(b) a transmission system operating at 200 kV or higher; or
(c) any other electricity transmission system of a kind
prescribed for the purposes of this subsection,
30 that Minister is to advise the licensee of that opinion and the
licensee is required to acquire that interest in land or easement
over land where practicable by agreement but otherwise by
page 24
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Powers in relation to land Division 8
s. 42
taking it under the Land Administration Act 1997 Part 9 as if for
a public work within the meaning of that Act.
(4) The requirement imposed by subsection (3) applies to a licensee
even if the provisions of sections 28(3)(c) and 46 of the Energy
5 Operators (Powers) Act 1979, or any of those provisions, are
prescribed provisions as defined in section 45(1).
(5) The requirement imposed by subsection (3) does not extend to
land that is vested in, or otherwise occupied or managed by or
on behalf of, the Crown or a public authority as defined in
10 section 40(1).
(6) Any costs and expenses incurred in the taking of an interest or
easement under this section --
(a) are to be paid by the licensee; and
(b) may be recovered in a court of competent jurisdiction as
15 a debt due by the licensee to the State.
(7) For the purposes of this section a reference to an interest in land
in the Land Administration Act 1997 Part 9 includes an
easement over land.
42. Vesting of interest or easement
20 (1) Despite anything in the Land Administration Act 1997 Part 9, on
the taking of an interest in land or easement over land under
section 41, the interest or easement vests in the licensee.
(2) The Land Administration Act 1997 Part 9 applies, with all
necessary changes, in relation to the recording or registering of
25 an interest or easement taken under section 41.
43. Proceedings and liability
(1) Proceedings in respect of compensation, or otherwise for the
purpose of complying with the Land Administration Act 1997
Parts 9 and 10, may be taken against the licensee.
page 25
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 9 Extension of Energy Operators (Powers) Act 1979 to licensees
s. 44
(2) The licensee is liable in respect of the taking of an interest in
land or easement over land under section 41 to the same extent
as the Minister administering the Land Administration Act 1997
would have been liable if the taking had been for the purpose of
5 a public work.
44. Easements in gross
An easement may be taken under section 41 without there being
a dominant tenement and there may be made appurtenant or
annexed to any such easement another easement or the benefit
10 of a restriction as to the user of the land.
Division 9 -- Extension of Energy Operators (Powers) Act 1979
to licensees
45. Extension of certain provisions of Energy Operators (Powers)
Act 1979
15 (1) A reference to an energy operator in a provision of the Energy
Operators (Powers) Act 1979 that is prescribed in the
regulations (a "prescribed provision") includes a licensee if
the regulations provide that the provision is prescribed in
respect of the licensee or a class of licensees to which the
20 licensee belongs.
(2) Regulations made for the purposes of this section may --
(a) restrict the operation of, or add a further requirement to,
a prescribed provision in relation to a licensee or class of
licensees;
25 (b) impose conditions or restrictions on the doing of any
thing authorised by a prescribed provision by a licensee
or a member of a class of licensees;
(c) prohibit a licensee or a member of a class of licensees
from doing any thing authorised by a prescribed
30 provision; or
page 26
Electricity Industry Bill 2003
Licensing of electricity supply Part 2
Transitional provision Division 10
s. 46
(d) require a consent or approval to be obtained for the
doing of, or the manner of doing, any thing authorised
by a prescribed provision.
(3) Regulations made for the purposes of this section are not to
5 prescribe the Energy Operators (Powers) Act 1979
sections 28(3)(e) and 45(4) to (16) in respect of a licensee other
than a relevant corporation.
(4) If the provisions of the Energy Operators (Powers) Act 1979
referred to in subsection (3) are prescribed provisions in respect
10 of a relevant corporation, Division 8 does not apply to the
corporation.
(5) In this section --
"licensee" includes any person in whom the assets, rights and
interests of a former licensee are vested under regulations
15 referred to in section 35(4).
Division 10 -- Transitional provision
46. Transitional provision for existing operators
(1) In this section --
"commencement day" means the day on which this Part comes
20 into operation.
(2) This section applies to every person (an "existing operator")
who immediately before the commencement day was
undertaking any activity that, after that day, is required to be
licensed under section 7.
25 (3) An existing operator who wishes to apply for a licence in
respect of an activity referred to in subsection (2) must do so
within 12 months after the commencement day.
page 27
Electricity Industry Bill 2003
Part 2 Licensing of electricity supply
Division 10 Transitional provision
s. 46
(4) An existing operator is to be treated as if the person were the
holder of the relevant licence --
(a) until the expiry of 18 months after the commencement
day; or
5 (b) until --
(i) a licence of that kind is granted to the person or
is refused; and
(ii) in the case of a refusal, the time for an
application for review of the decision under
10 section 130 expires without an application being
made or an application is made but is
unsuccessful,
whichever happens first.
(5) For the purposes of subsection (4)(b)(ii) an application is
15 unsuccessful if it --
(a) results in the refusal referred to in subsection (4)(b)(i)
being confirmed; or
(b) is withdrawn, discontinued or dismissed.
page 28
Electricity Industry Bill 2003
Supply of electricity to certain customers Part 3
Preliminary Division 1
s. 47
Part 3 -- Supply of electricity to certain customers
Division 1 -- Preliminary
47. Terms used in this Part
In this Part, unless the contrary intention appears --
5 "customer" means a customer who consumes not more than
160 MWh of electricity per annum;
"non-standard contract" means a contract entered into
between a licensee and a customer, or a class of customers,
that is not a standard form contract;
10 "retail licensee" means the holder of a retail licence or an
integrated regional licence;
"standard form contract" means a contract that is approved
under section 51.
Division 2 -- Supply contracts
15 48. Regulations as to supply contracts
(1) The regulations may provide for and in relation to --
(a) the terms, conditions and provisions of --
(i) a standard form contract; and
(ii) a non-standard contract,
20 under which a retail licensee sells electricity to
customers;
(b) the right of a customer at his or her discretion to rescind
a contract during a specified period after it is entered
into (a "cooling-off period");
25 (c) the supply of electricity, and payment for electricity
supplied, during a cooling-off period;
(d) the format of, and manner of expression to be used in, a
contract referred to in paragraph (a); and
page 29
Electricity Industry Bill 2003
Part 3 Supply of electricity to certain customers
Division 2 Supply contracts
s. 49
(e) the provision of information about contracts by a retail
licensee to customers.
(2) The regulations may --
(a) require a retail licensee to offer to supply electricity to
5 customers under a standard form contract;
(b) prescribe the circumstances in which the obligation
referred to in paragraph (a) arises; and
(c) without limiting section 12, provide that it is a condition
of every retail licence and every integrated regional
10 licence that the retail licensee must comply with the
obligation referred to in paragraph (a).
(3) The regulations may provide --
(a) for and in relation to the standards of service that a retail
licensee is to provide to customers in connection with
15 the supply of electricity; and
(b) for the inclusion in contracts referred to in
subsection (1)(a) of requirements that the retail licensee
comply with any such standard.
(4) The regulations may apply, adopt or incorporate any provision
20 of a code or a standard that is contained in another document,
and may do so --
(a) with or without modification; or
(b) as the provision is in force --
(i) at the time when the regulations are made; or
25 (ii) from time to time.
49. Form of contract to be submitted with application for grant,
renewal or transfer
(1) An applicant for the grant or renewal of a retail licence or an
integrated regional licence must submit with the application a
30 draft of the standard form contract under which the applicant
will supply electricity to customers pursuant to the licence.
page 30
Electricity Industry Bill 2003
Supply of electricity to certain customers Part 3
Supply contracts Division 2
s. 50
(2) Where an application is made under section 18 for the transfer
of a retail licence or an integrated regional licence to be
approved, the proposed transferee must submit with the
application a draft of the standard form contract under which the
5 proposed transferee will supply electricity to customers pursuant
to the licence if the transfer is approved.
(3) The requirement in subsection (1) and (2) only applies if the
applicant or proposed transferee intends to supply electricity to
customers pursuant to the licence.
10 50. Licence application not to be granted unless standard form
contract approved
(1) Despite section 19, the Authority must not grant or renew, or
approve a transfer of, a retail licence or an integrated regional
licence unless --
15 (a) the applicant or the proposed transferee has submitted a
draft form of contract as required by section 49; and
(b) the Authority has approved the standard form contract
under which the applicant or proposed transferee will
supply electricity to customers pursuant to the licence.
20 (2) If when a retail licence or an integrated regional licence was
granted or renewed, or the transfer of a retail licence or an
integrated regional licence was approved, subsection (1) did not
apply because of section 49(3), the licensee may at any
subsequent time submit to the Authority a draft of a standard
25 form contract under which the licensee will supply electricity to
customers pursuant to the licence if the standard form contract
is approved by the Authority.
51. Approval of standard form contract
(1) Subject to subsection (2), the Authority may at its discretion
30 approve or refuse to approve a standard form contract submitted
under section 49 or 50(2).
page 31
Electricity Industry Bill 2003
Part 3 Supply of electricity to certain customers
Division 2 Supply contracts
s. 52
(2) The Authority must not give an approval if it considers that the
standard form contract --
(a) will not meet the requirements of the regulations in
respect of such contracts; or
5 (b) will be inconsistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the licence
concerned.
(3) The Authority must take all reasonable steps to make a decision
10 under subsection (1) within 45 days after the standard form
contract is submitted to it.
52. Amendment or replacement of standard form contract
(1) A retail licensee may submit to the Authority for approval --
(a) any amendment to the standard form contract approved
15 under section 51; or
(b) a replacement for the standard form contract so
approved.
(2) Section 51 applies to an amendment or a replacement submitted
under subsection (1) in the same way as it applied to the
20 standard form contract or the original standard form contract.
53. Authority may direct that amendment be made
(1) This section applies if, in the opinion of the Authority, a
standard form contract approved under this Division --
(a) no longer meets the requirements of the regulations in
25 respect of such contracts; or
(b) is no longer consistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the licence
concerned.
page 32
Electricity Industry Bill 2003
Supply of electricity to certain customers Part 3
Supply contracts Division 2
s. 54
(2) The Authority may direct the retail licensee concerned --
(a) to submit an appropriate amendment to the form of
contract to the Authority for approval under
section 52(1); and
5 (b) to do so within a specified period.
(3) In subsection (2)(a) --
"appropriate amendment" means an amendment --
(a) specified by the Authority; or
(b) otherwise determined by the Authority to be suitable
10 for approval.
54. Licence condition: contracts
(1) It is a condition of every retail licence and integrated regional
licence that, subject to any exception provided for in the
regulations, the licensee must not supply electricity to a
15 customer otherwise than under --
(a) a standard form contract; or
(b) a non-standard contract that complies with this Act.
(2) It is also a condition of every retail licence and integrated
regional licence that the licensee must comply with a direction
20 given to the licensee under section 53.
(3) For the purposes of subsection (1)(b), a non-standard contract
complies with this Act if it --
(a) meets the requirements of the regulations in respect of
such contracts; and
25 (b) is not inconsistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the licence
concerned.
page 33
Electricity Industry Bill 2003
Part 3 Supply of electricity to certain customers
Division 2 Supply contracts
s. 55
55. Contracts with corporations
(1) In this section --
"commencement day" means the day on which this Division
comes into operation;
5 "corporation" means a relevant corporation;
"prescribed form of contract" means a form of contract
prescribed under subsection (7);
"relevant contract" means --
(a) a contract referred to in subsection (6) between a
10 corporation and a customer; or
(b) a contract in the form of a prescribed form of contract
entered into by a corporation and a customer other
than a contract referred to in paragraph (a).
"tariff customer" of a corporation means a person who,
15 immediately before the commencement day, was supplied
with electricity by the corporation (otherwise than under a
written contract) in relation to which the person was liable
to pay fees and charges prescribed under the Energy
Operators (Powers) Act 1979 section 124.
20 (2) A corporation is required to offer to supply electricity under a
prescribed form of contract to customers who request supply on
or after the commencement day.
(3) If, following the grant of a retail licence or an integrated
regional licence to a corporation, the corporation is required by
25 regulations referred to in section 48(2) to offer to supply
electricity to customers under a standard form contract, then on
and from the day on which that obligation has effect --
(a) the obligation in subsection (2) ceases to have effect;
and
30 (b) any relevant contract in force on that day is to be taken
to be amended so that its terms, conditions and
provisions are consistent with those of the standard form
contract.
page 34
Electricity Industry Bill 2003
Supply of electricity to certain customers Part 3
Supply contracts Division 2
s. 56
(4) The regulations may --
(a) provide for exceptions to the obligation in
subsection (2);
(b) provide for and in relation to the standards of service
5 that a corporation is to provide to customers in
connection with the supply of electricity;
(c) provide for the inclusion in relevant contracts of
requirements that the corporation comply with any such
standard.
10 (5) Section 48(4) applies to regulations made for the purposes of
subsection (4)(b).
(6) A tariff customer of a corporation is to be taken on and from the
commencement day to have entered into a contract with the
corporation for the supply of electricity.
15 (7) The Minister, by order published in the Gazette, is to prescribe a
form of contract for the purposes of subsection (6), and the
contract referred to in subsection (6) is to be taken to be in the
form so prescribed.
(8) An order under subsection (7) --
20 (a) may specify different forms of contract in respect of
different classes of tariff consumers; and
(b) may be amended, replaced or revoked by the Minister
by order published in the Gazette.
56. Enforcement of obligation in section 55(2)
25 (1) If, in the opinion of the Authority, a corporation fails to comply
with the obligation in section 55(2), the Authority may, subject
to subsection (2), do one or more of the following --
(a) serve a letter of reprimand on the corporation; or
(b) order the corporation to pay a monetary penalty fixed by
30 the Authority but not exceeding $100 000.
page 35
Electricity Industry Bill 2003
Part 3 Supply of electricity to certain customers
Division 3 Connection to distribution system
s. 57
(2) The Authority is not to take action under subsection (1)(b)
unless the Authority has --
(a) notified the corporation of the proposed action and the
reasons for it; and
5 (b) given the corporation a reasonable opportunity to make
submissions on the matter.
(3) The Authority may recover a penalty imposed under
subsection (1)(b) in a court of competent jurisdiction as a debt
due by the corporation to the State.
10 Division 3 -- Connection to distribution system
57. Terms used in this Division
In this Division, unless the contrary intention appears --
"connect" means to connect to a distribution system;
"premises" means premises owned or occupied by a new or
15 existing customer.
58. Regulations as to connection
(1) The regulations may make provision for and in relation to the
connection of premises.
(2) Without limiting subsection (1), the regulations may --
20 (a) require a retail licensee to make arrangements with the
holder of a distribution licence or integrated regional
licence for the connection of premises of a prescribed
class;
(b) require the holder of a distribution licence or an
25 integrated regional licence to connect premises of a
prescribed class to the holder's distribution system;
(c) prescribe the circumstances in which an obligation
referred to in paragraph (a) or (b) arises;
(d) authorise the holder of a distribution licence or an
30 integrated regional licence to adopt a method of
connection that results in the least cost to the holder; and
page 36
Electricity Industry Bill 2003
Supply of electricity to certain customers Part 3
Default supplier Division 4
s. 59
(e) make provision for and in relation to the costs of
connection, including provision as to who is liable to
pay those costs.
(3) Without limiting section 12, the regulations may provide --
5 (a) that it is a condition of every retail licence and every
integrated regional licence that the holder of the licence
must comply with the obligation referred to in
subsection (2)(a); and
(b) that it is a condition of every distribution licence and
10 every integrated regional licence that the holder of the
licence must comply with the obligation referred to in
subsection (2)(b).
Division 4 -- Default supplier
59. Regulations as to default supplier
15 The regulations may --
(a) require that a default supplier be determined, in
accordance with the regulations, for each connection
point as defined in the regulations;
(b) require that the default supplier so determined be a retail
20 licensee that supplies electricity at the relevant
connection point;
(c) require that a register be established and maintained, in
accordance with the regulations, showing the name of
the default supplier for the time being determined for
25 each connection point;
(d) provide that if a customer commences to take a supply
of electricity at premises without entering into a contract
for the supply with a retail licensee, the electricity is
deemed to be supplied under the standard form contract
30 of the default supplier for the connection point in respect
of those premises as determined under the regulations;
and
page 37
Electricity Industry Bill 2003
Part 3 Supply of electricity to certain customers
Division 4 Default supplier
s. 59
(e) make provision for and in relation to the effect of
contracts of the kind referred to in paragraph (d),
including --
(i) the period for which such contracts continue in
5 force; and
(ii) the exclusion or modification of any term,
condition or provision of such contracts.
page 38
Electricity Industry Bill 2003
Extension and expansion policies for certain corporations Part 4
s. 60
Part 4 -- Extension and expansion policies for
certain corporations
60. Terms used in this Part
In this Part, unless the contrary intention appears --
5 "approved policy" means an extension and expansion policy
approved under section 62 as amended from time to time
and includes any replacement for the policy approved
under section 63;
"Coordinator" means the Coordinator of Energy referred to in
10 section 4 of the Energy Coordination Act 1994;
"corporation" means a relevant corporation;
"extension and expansion policy" means documentation that
sets out arrangements for and in relation to --
(a) the geographic extension of a particular system;
15 (b) the expansion of the electrical capacity of that
system; and
(c) the connection of customers to that system;
"licence" means a transmission licence, distribution licence or
an integrated regional licence;
20 "system" means a transmission system or distribution system.
61. Draft policy to be submitted to Coordinator
(1) In subsection (2) --
"prescribed period" means --
(a) 3 months after a written request by the Coordinator; or
25 (b) any longer period allowed by the Coordinator in a
particular case.
(2) A corporation must, within the prescribed period, submit to the
Coordinator a draft extension and expansion policy for each
system operated by the corporation.
page 39
Electricity Industry Bill 2003
Part 4 Extension and expansion policies for certain corporations
s. 62
(3) An extension and expansion policy submitted by a corporation
may relate to one or more or all of the systems operated by the
corporation.
62. Approval of policy
5 (1) Subject to subsection (2), the Coordinator may --
(a) approve an extension and expansion policy submitted
under section 61; or
(b) direct that it be amended and approve it in an amended
form.
10 (2) The Coordinator must not approve an extension and expansion
policy if the Coordinator considers that it --
(a) will not meet the requirements of the regulations in
respect of such policies; or
(b) will be inconsistent with this Act or any other written
15 law.
(3) Without limiting the other matters that may be taken into
account, in exercising the powers conferred by this section and
sections 63 and 64 the Coordinator is to take into account the
matters referred to in section 8(5) but as if the area or areas
20 referred to in section 8(5)(e) were the area to be affected by the
exercise of the powers.
63. Amendment or replacement of policy
(1) A corporation may submit to the Coordinator for approval --
(a) an amendment to an approved policy; or
25 (b) a replacement for an approved policy.
(2) The Coordinator may approve or refuse to approve an
amendment or replacement submitted under subsection (1).
page 40
Electricity Industry Bill 2003
Extension and expansion policies for certain corporations Part 4
s. 64
(3) The Coordinator must not approve an amendment or
replacement if the Coordinator considers that it --
(a) will not meet the requirements of the regulations in
respect of such policies; or
5 (b) will be inconsistent with this Act or any other written
law.
64. Coordinator may direct that amendment be made
(1) This section applies if, in the opinion of the Coordinator, an
approved policy --
10 (a) no longer meets the requirements of the regulations in
respect of such policies; or
(b) is no longer consistent with this Act or any other written
law.
(2) The Coordinator may direct the corporation concerned --
15 (a) to submit an appropriate amendment to the approved
policy to the Coordinator for approval under
section 63(1); and
(b) to do so within a specified period.
(3) In subsection (2)(a) --
20 "appropriate amendment" means an amendment --
(a) specified by the Coordinator; or
(b) otherwise determined by the Coordinator to be
suitable for approval.
65. Licence condition: extension and expansion
25 It is a condition of every licence held by a corporation that the
corporation must --
(a) comply with the obligation in section 61 in relation to
the system to which the licence applies;
(b) comply with a direction given to the corporation under
30 section 62(1)(b) that relates to the extension and
page 41
Electricity Industry Bill 2003
Part 4 Extension and expansion policies for certain corporations
s. 66
expansion policy for the system to which the licence
applies;
(c) comply with a direction given to the corporation under
section 64(2) that relates to the approved policy for the
5 system to which the licence applies; and
(d) implement arrangements set out in the approved policy
for the system to which the licence applies.
66. Regulations as to content of policies
The regulations may prescribe matters that are to be dealt with
10 or set out in an extension and expansion policy including --
(a) methods or principles to be applied by a corporation in
relation to --
(i) the extension and expansion of the system to
which the policy relates; and
15 (ii) the connection of customers to that system;
(b) procedures to be followed by a corporation --
(i) in undertaking the extension and expansion of
the system to which the policy relates; and
(ii) in connecting customers to that system;
20 (c) criteria or parameters to be applied by a corporation
when determining the eligibility of particular classes of
customers for connection to the system to which the
policy relates; and
(d) information about the costs of implementing the policy.
page 42
Electricity Industry Bill 2003
Last resort supply arrangements Part 5
s. 67
Part 5 -- Last resort supply arrangements
67. Terms used in this Part
In this Part, unless the contrary intention appears --
"designated area" means an area designated under
5 section 68(1);
"last resort supply plan" means a plan that meets the
requirements of section 69;
"retail licence" includes an integrated regional licence;
"supplier of last resort" has the meaning given to that term in
10 section 69(1).
68. Authority to ensure supply plan in place in designated areas
(1) The Authority may, by notice published in the Gazette,
designate an area to which a retail licence applies as an area for
which there is to be a last resort supply plan.
15 (2) The Authority is to ensure --
(a) that, as soon as is practicable after an area becomes a
designated area, a last resort supply plan for the
designated area is approved or determined by the
Authority under section 73; and
20 (b) that, at all times thereafter, there is a last resort supply
plan for the designated area that has been approved or
determined by the Authority under section 73.
69. Requirements for last resort supply plan
(1) A last resort supply plan for a designated area is one that deals
25 with the supply of electricity to customers in the area by the
holder of a retail licence (the "supplier of last resort") if the
plan comes into operation under section 70.
(2) A last resort supply plan must set out the arrangements, and
make the provisions, that are necessary for the supply of
30 electricity as mentioned in subsection (1).
page 43
Electricity Industry Bill 2003
Part 5 Last resort supply arrangements
s. 70
(3) A last resort supply plan must --
(a) make provision for any matter or circumstance that is
prescribed; and
(b) otherwise comply with the regulations.
5 (4) A last resort supply plan is of no effect to the extent that it is
inconsistent with any enactment.
70. How plan brought into operation
(1) This section applies if, and only if, the retail licence of the
supplier to whose customers a last resort supply plan applies --
10 (a) has been cancelled under section 35;
(b) has expired and has not been renewed; or
(c) has been surrendered.
(2) If this section applies, the Authority may, by notice published in
the Gazette, determine that the last resort supply plan comes
15 into operation on a day specified in the notice.
(3) An order under subsection (2) is to specify the name of the
supplier to whose customers the last resort supply plan applies.
71. Supplier of last resort
(1) The Authority may, by notice in writing to the holder of a retail
20 licence (the "licensee") --
(a) designate the licensee as the supplier of last resort for a
designated area; or
(b) cancel a designation so made.
(2) The Authority is to consult with the licensee before a notice is
25 given under subsection (1).
(3) The designation of the licensee cannot be expressed to have
effect for more than 2 years, but on the expiry of the designation
the licensee may be re-designated, whether once or more than
once.
page 44
Electricity Industry Bill 2003
Last resort supply arrangements Part 5
s. 72
(4) Unless another supplier of last resort for a designated area is
designated for the time being under subsection (1), Western
Power Corporation is the supplier of last resort for the
designated area.
5 72. Functions of supplier of last resort
The supplier of last resort for a designated area is to --
(a) prepare a draft last resort supply plan for that area and
submit it to the Authority within 3 months after
becoming the supplier of last resort or within such
10 longer period as the Authority may allow;
(b) consult with the Authority with a view to obtaining
approval of the draft plan; and
(c) carry out the arrangements and other provisions in the
last resort supply plan approved or determined by the
15 Authority under section 73, if the plan comes into
operation under section 70.
73. Approval or determination of plan
(1) The Authority may --
(a) approve a draft last resort supply plan submitted under
20 section 72; or
(b) request that it be amended and approve it in an amended
form.
(2) If a plan has not been approved by the Authority within a period
that it considers reasonable and notifies to the supplier of last
25 resort, the Authority may determine the contents of the last
resort supply plan.
74. Amendment of plan by supplier
(1) With the approval of the Authority, the supplier of last resort for
a designated area may amend the last resort supply plan for that
30 area.
page 45
Electricity Industry Bill 2003
Part 5 Last resort supply arrangements
s. 75
(2) The supplier of last resort is to submit any proposed amendment
to the Authority for approval.
(3) If an amendment is so submitted the Authority may --
(a) approve it;
5 (b) request that it be changed and approve it in a changed
form; or
(c) refuse to approve it.
75. Authority may make amendment
The Authority may at any time, after consultation with the
10 supplier of last resort for a designated area, amend the last resort
supply plan for that area.
76. Licence condition: last resort supply
It is a condition of every retail licence that --
(a) if the licensee is designated under section 71(1) for a
15 designated area; and
(b) so long as the designation under section 71(1) remains
in force,
the licensee will perform the functions of the supplier of last
resort for the designated area, and in particular will carry out the
20 arrangements and provisions in the last resort supply plan if it
comes into operation under section 70.
77. Provision may be made by regulation
The regulations may make provision for and in relation to --
(a) the preparation and approval process for a last resort
25 supply plan under sections 72 and 73, and the
amendment of a plan;
(b) last resort supply arrangements under a plan, including
for and in relation to --
(i) the commencement of arrangements;
page 46
Electricity Industry Bill 2003
Last resort supply arrangements Part 5
s. 77
(ii) the extent to which particular arrangements are
to apply to a particular class of customers;
(iii) notification to customers and other affected
persons of matters relating to the arrangements,
5 including --
(I) the commencement of arrangements;
(II) the effect of the arrangements and steps
that will or may be taken; and
(III) rights, powers, duties and procedures
10 that apply under the arrangements;
(iv) the identification of the customers affected by
the commencement of arrangements and the
provision of identifying information to the
supplier of last resort;
15 (v) the transfer of customers to the supplier of last
resort and the nature of the relationship between
them;
(vi) the terms and conditions of supply of electricity
under the arrangements, including those relating
20 to pricing and the imposition of charges;
(vii) the recovery of costs by the supplier of last
resort;
(viii) the duration and cessation of any obligation to
supply electricity under the arrangements; and
25 (ix) other rights, powers and duties of --
(I) the Authority;
(II) the supplier of last resort;
(III) customers; and
(IV) other persons,
30 in connection with the carrying out of the
arrangements or the operation of a last resort
supply plan.
page 47
Electricity Industry Bill 2003
Part 6 Code of conduct for supply of electricity to small use
customers
s. 78
Part 6 -- Code of conduct for supply of electricity to
small use customers
78. Terms used in this Part
In this Part, unless the contrary intention appears --
5 "code of conduct" means the code of conduct approved under
section 79;
"committee" means the committee established under
section 81;
"customer" means a customer who consumes not more than
10 160 MWh of electricity per annum;
"electricity marketing agent" means --
(a) a person who acts on behalf of the holder of a retail
licence or an integrated regional licence --
(i) for the purpose of obtaining new customers
15 for the licensee; or
(ii) in dealings with existing customers in relation
to contracts for the supply of electricity by the
licensee;
(b) a person who acts --
20 (i) on behalf of one or more customers; or
(ii) as an intermediary between one or more
customers and a licensee,
in respect of the supply of electricity to the customer
or customers;
25 (c) a person who engages in any other activity relating to
the marketing of electricity that is prescribed for the
purposes of this definition; and
(d) a representative, agent or employee of a person
referred to in paragraph (a), (b) or (c);
page 48
Electricity Industry Bill 2003
Code of conduct for supply of electricity to small use Part 6
customers
s. 79
"marketing" includes engaging or attempting to engage in any
of the following activities by any means, including door to
door or by telephone or other electronic means --
(a) negotiations for, or dealings in respect of, a contract
5 for the supply of electricity to a customer; or
(b) advertising, promotion, market research or public
relations in relation to the supply of electricity to
customers.
79. Code of conduct
10 (1) The Authority may, in consultation with the committee, approve
a code of conduct under this section.
(2) The code of conduct is to regulate and control the conduct of --
(a) the holders of retail licences, distribution licences and
integrated regional licences; and
15 (b) electricity marketing agents,
with the object of --
(c) defining standards of conduct in the supply and
marketing of electricity to customers; and
(d) protecting customers from undesirable marketing
20 conduct.
(3) The code of conduct may contain such ancillary and incidental
provisions as are necessary or expedient for the purposes of
subsection (2).
(4) In the case of the initial code of conduct, subsection (1) has
25 effect subject to Schedule 3 clause 1.
80. Code is subsidiary legislation
The code of conduct is subsidiary legislation for the purposes of
the Interpretation Act 1984.
page 49
Electricity Industry Bill 2003
Part 6 Code of conduct for supply of electricity to small use
customers
s. 81
81. Consultative committee
(1) The Authority is to establish a committee to advise it on matters
relating to the code of conduct.
(2) The Authority --
5 (a) is to determine the membership, constitution and
procedures of the committee; and
(b) may discharge, alter, or reconstitute the committee.
(3) The Authority may determine that a member of the committee is
to receive remuneration or an allowance, and if the Authority so
10 determines it is to fix the remuneration or allowance on the
recommendation of the Minister for Public Sector Management.
(4) Subject to this section, the committee may determine its own
procedure.
(5) The Authority is to provide the committee with such support
15 services as it may reasonably require.
(6) In the case of the initial code of conduct, this section has effect
subject to Schedule 3 clause 2.
82. Licence condition: code of conduct
It is a condition of every retail licence, distribution licence and
20 integrated regional licence that the licensee is to comply with
the provisions of the code of conduct that apply to the licensee.
83. Enforcement of code of conduct against marketing agents
The code of conduct may provide --
(a) that the contravention of a provision of the code of
25 conduct by an electricity marketing agent constitutes an
offence; and
(b) that an offence is punishable by a penalty not
exceeding --
(i) $5 000 for an individual; and
30 (ii) $20 000 for a body corporate.
page 50
Electricity Industry Bill 2003
Code of conduct for supply of electricity to small use Part 6
customers
s. 84
84. Code may provide for vicarious liability
The code of conduct may provide for and in relation to the
liability of the holder of a retail licence or an integrated regional
licence, in the absence of excusatory circumstances, for an act
5 or omission of the licensee's electricity marketing agents that
contravene the code of conduct.
85. Code may include presumption of authority
The code of conduct may provide for a presumption that a
person who carries out any marketing activity in the name of or
10 for the benefit of --
(a) the holder of a retail licence or an integrated regional
licence; or
(b) an electricity marketing agent,
is to be taken, unless the contrary is proved, to have been
15 employed or authorised by that licensee or electricity marketing
agent to carry out that activity.
86. Authority to monitor compliance
It is a function of the Authority to monitor and enforce
compliance with the code of conduct.
20 87. Comment to be sought on amendment or replacement
of code
(1) Whenever the Authority proposes to exercise the power --
(a) to amend the code of conduct; or
(b) to repeal and replace it,
25 the Authority must --
(c) refer the proposed amendment or replacement to the
committee for its advice; and
(d) have regard to any advice given by the committee.
page 51
Electricity Industry Bill 2003
Part 6 Code of conduct for supply of electricity to small use
customers
s. 88
(2) Before the committee gives its advice to the Authority, it must,
in accordance with section 89, give any interested person an
opportunity to offer comments on the amendment or
replacement.
5 (3) The committee must take into account any comments received
under subsection (1) in formulating its advice.
88. Review of code
(1) The committee must carry out a review of the code of conduct
as soon as is practicable after --
10 (a) the first anniversary of its commencement; and
(b) the expiry of each 2 yearly interval after that
anniversary.
(2) The object of a review is to re-assess the suitability of the
provisions of the code of conduct for the purposes of
15 section 79(2).
(3) The committee must, in accordance with section 89, give any
interested person an opportunity to offer comments relevant to
the review.
(4) The committee must take into account any comments received
20 under subsection (3) in carrying out the review.
(5) The committee must prepare a report based on the review and
give it to the Authority.
89. Further provisions about opportunity to comment
For the purposes of sections 87(2) and 88(3) --
25 (a) an interested person is a person --
(i) who the committee considers has a particular
interest in the amendment, replacement or
review; or
page 52
Electricity Industry Bill 2003
Code of conduct for supply of electricity to small use Part 6
customers
s. 89
(ii) who is determined by the Authority, by notice in
writing to the committee, to have such an
interest;
(b) an opportunity to offer comments is an opportunity to
5 furnish written comments to the committee within --
(i) a period specified by the Authority by notice in
writing to the committee; or
(ii) in the absence of such a notice, a period
determined by the committee.
page 53
Electricity Industry Bill 2003
Part 7 Electricity ombudsman scheme
Division 1 Preliminary
s. 90
Part 7 -- Electricity ombudsman scheme
Division 1 -- Preliminary
90. Terms used in this Part
In this Part and in Schedule 2, unless the contrary intention
5 appears --
"approved scheme" means a scheme approved under
section 92;
"customer" means --
(a) a customer who consumes not more than 160 MWh
10 of electricity per annum; and
(b) if a dispute or complaint is prescribed for the
purposes of section 92(1)(d) a person who is involved
in that dispute or complaint as a customer;
"customer contract" means --
15 (a) a standard form contract; or
(b) a non-standard contract,
as defined in section 47;
"electricity ombudsman" has the meaning given to that term in
section 92(1);
20 "electricity marketing agent" has the meaning given to that
term in section 78;
"licensee" means the holder of retail licence, distribution
licence or integrated regional licence.
91. Regulations as to electricity ombudsman scheme
25 The regulations may provide for and in relation to --
(a) the establishment and operation of a scheme of the kind
referred to in section 92; and
(b) the functions of the electricity ombudsman under such a
scheme.
page 54
Electricity Industry Bill 2003
Electricity ombudsman scheme Part 7
Approval of electricity ombudsman scheme Division 2
s. 92
Division 2 -- Approval of electricity ombudsman scheme
92. Authority may approve scheme
(1) The Authority may, by instrument in writing, approve a scheme
that provides for a person (the "electricity ombudsman") to
5 investigate and deal with --
(a) disputes and complaints under customer contracts;
(b) disputes between --
(i) customers and licensees; or
(ii) customers and electricity marketing agents;
10 (c) complaints by customers about --
(i) licensees; or
(ii) electricity marketing agents;
and
(d) any other kind of dispute or complaint (whether or not
15 under a customer contract) that is prescribed by the
regulations.
(2) A scheme may treat a failure to make a decision within a
specified period as a decision of a particular kind.
(3) A scheme may be made applicable to a dispute or complaint that
20 arose before the commencement of the scheme, but not earlier
than 12 months before that commencement.
(4) The Authority may, by instrument in writing, approve an
amendment to an approved scheme.
(5) Notice of an approval under subsection (1) is to be published in
25 the Gazette.
(6) In the case of the initial electricity ombudsman scheme, this
section has effect subject to Schedule 3 clause 4.
page 55
Electricity Industry Bill 2003
Part 7 Electricity ombudsman scheme
Division 3 Scheme operation
s. 93
93. Requirements for scheme or amendment to be approved
The Authority may approve a scheme, or an amendment to an
approved scheme, only if it is satisfied that the scheme, or the
scheme as amended, meets --
5 (a) the objectives set out in Schedule 2; and
(b) any other prescribed objective.
94. Revocation of approval
(1) Subject to subsection (2), the Authority may, by instrument in
writing, revoke the status of a scheme as an approved scheme if
10 it is satisfied that the scheme no longer meets the objectives
referred to in section 93.
(2) In exercising the power of revocation the Authority must --
(a) follow any prescribed procedure; and
(b) comply with any other prescribed requirements.
15 (3) A copy of an instrument under subsection (1) is to be laid before
each House of Parliament within 14 sitting days of that House
after the day on which the revocation took effect.
Division 3 -- Scheme operation
95. Customer may have decision or complaint reviewed
20 (1) A customer may apply to the electricity ombudsman under an
approved scheme for a review of a decision or complaint to
which the scheme relates.
(2) Where an application is so made the electricity ombudsman
may, in respect of the decision or complaint --
25 (a) make any order or determination;
(b) give any direction; or
(c) decline to deal with a matter on any ground,
that is provided for by the scheme.
page 56
Electricity Industry Bill 2003
Electricity ombudsman scheme Part 7
Scheme operation Division 3
s. 96
96. Jurisdiction of courts and tribunals
(1) Nothing in this Part or in an approved scheme affects the
jurisdiction of a court or tribunal.
(2) The electricity ombudsman must decline to deal with a matter
5 if --
(a) it has been or is being dealt with by a court or tribunal;
or
(b) in his or her opinion the matter should be dealt with by a
court or tribunal.
10 97. Enforcement against marketing agents and others
(1) The regulations may make it an offence for an electricity
marketing agent to fail to comply with a decision or direction of
the electricity ombudsman under an approved scheme.
(2) If a dispute or complaint involving a person other than a
15 licensee or an electricity marketing agent is prescribed for the
purposes of section 92(1)(d), the regulations may make it an
offence for the person to fail to comply with a decision or
direction of the electricity ombudsman under an approved
scheme.
20 (3) Regulations made for the purposes of this section may provide
for penalties for an offence against the regulations not
exceeding --
(a) $5 000 for an individual; and
(b) $20 000 for a body corporate.
25 98. Authority to monitor compliance with decisions
It is a function of the Authority to monitor and enforce
compliance with decisions and directions of the electricity
ombudsman under an approved scheme.
page 57
Electricity Industry Bill 2003
Part 7 Electricity ombudsman scheme
Division 4 Membership of approved scheme by licensee
s. 99
Division 4 -- Membership of approved scheme by licensee
99. Proof of membership in applications relating to licence
(1) An applicant for the grant of a retail licence, distribution licence
or integrated regional licence who proposes to supply electricity
5 to customers must produce with the application evidence
showing that the applicant will, if a licence is granted, be a
member of an approved scheme.
(2) An applicant for the renewal of a retail licence, distribution
licence or integrated regional licence who supplies electricity to
10 customers must produce with the application evidence showing
that the applicant will, if the licence is renewed, continue to be a
member of an approved scheme.
(3) Where an application is made under section 18 for approval to
transfer a retail licence, distribution licence or integrated
15 regional licence to a person who proposes to supply electricity
to customers, the proposed transferee must produce with the
application evidence showing that the proposed transferee will,
if the transfer is approved, be a member of an approved scheme.
100. Prerequisite to grant, renewal or transfer of licence
20 Despite section 19 the Authority is not to grant or renew, or
approve a transfer of, a retail licence, distribution licence or
integrated regional licence to a person who proposes to supply
electricity to customers unless it is satisfied that the licensee, or
the proposed transferee --
25 (a) is a member of an approved scheme; or
(b) will, if the licence is granted or the transfer is approved,
be a member of an approved scheme.
page 58
Electricity Industry Bill 2003
Electricity ombudsman scheme Part 7
Membership of approved scheme by licensee Division 4
s. 101
101. Licence condition: membership of scheme
It is a condition of every retail licence, distribution licence and
integrated regional licence that the licensee cannot supply
electricity to customers unless the licensee --
5 (a) is a member of an approved scheme; and
(b) is bound by, and will comply with any decision or
direction of the electricity ombudsman under, the
scheme.
page 59
Electricity Industry Bill 2003
Part 8 Access to services of network infrastructure facilities
Division 1 Preliminary
s. 102
Part 8 -- Access to services of network infrastructure
facilities
Division 1 -- Preliminary
102. Purposes of this Part
5 The purposes of this Part are --
(a) to provide access to services; and
(b) to give effect to the relevant principles of the
Competition Principles Agreement in respect of the
provision of access to services.
10 103. Terms used in this Part
In this Part, unless the contrary intention appears --
"access" has a meaning corresponding with the meaning that it
has when used in the expression "access to a service" in the
Trade Practices Act 1974 of the Commonwealth;
15 "access agreement" means an agreement under the Code
between a network service provider and another person
(a "network user") for that person to have access to
services;
"access arrangement" means an arrangement lodged under
20 section 104(2)(c) that has been approved by the Authority;
"Code" means the Code for the time being in force under
section 104;
"Competition Principles Agreement" means the Competition
Principles Agreement made on 11 April 1995 by the
25 Commonwealth, the States and the Territories as in force
for the time being;
"network infrastructure facilities" means --
(a) the electrical equipment that is used only in order to
transfer electricity to or from an electricity network at
30 the relevant point of connection including any
page 60
Electricity Industry Bill 2003
Access to services of network infrastructure facilities Part 8
Establishment of Code Division 2
s. 104
transformers or switchgear at the relevant point or
which is installed to support or to provide backup to
that electrical equipment as is necessary for that
transfer; and
5 (b) the wires, apparatus, equipment, plant and buildings
used to convey, and control the conveyance of,
electricity,
which together are operated by a person (a "network
service provider") for the purpose of transporting
10 electricity from generators of electricity to other electricity
networks or to end users of electricity;
"services" means --
(a) the conveyance of electricity and other services
provided by means of network infrastructure
15 facilities; and
(b) services ancillary to such services.
Division 2 -- Establishment of Code
104. Minister to establish Code
(1) The Minister is to establish a Code for the purposes of, and in
20 accordance with, this Part.
(2) Provision is to be made in the Code --
(a) prescribing network infrastructure facilities that are to
be covered by the Code with effect from the coming into
operation of the Code;
25 (b) prescribing the process through which the Minister is to
decide whether other network infrastructure facilities are
to become covered by the Code or whether network
infrastructure facilities that are covered by the Code are
to cease to be covered by the Code, and the manner in
30 which the decision is to be published and come into
effect;
page 61
Electricity Industry Bill 2003
Part 8 Access to services of network infrastructure facilities
Division 2 Establishment of Code
s. 104
(c) as to the lodgment by the network service provider of an
arrangement for network infrastructure facilities covered
by the Code setting out --
(i) the policies applying to access to services;
5 (ii) the basic terms and conditions that will apply to
access to services unless an access agreement
contains different terms and conditions; and
(iii) any other matters prescribed by the Code;
(d) as to the production by the network service provider of
10 information to enable persons to understand the
derivation of the elements of an arrangement for
network infrastructure facilities lodged under
paragraph (c), whether or not that arrangement has
become an access arrangement;
15 (e) as to the approval by the Authority of arrangements
lodged under paragraph (c) and the matters to which the
Authority is to have regard in deciding whether to give
its approval;
(f) as to the registration of access arrangements;
20 (g) for persons to have access to services as provided for in
the access arrangement for the relevant network
infrastructure facilities and in accordance with --
(i) access agreements; or
(ii) determinations made by way of arbitration;
25 (h) setting out, or providing for access arrangements to set
out --
(i) network access pricing regulation principles;
(ii) rights, powers and duties that are to apply to and
in relation to the negotiation, making, and
30 implementation of access agreements; and
(iii) duties and requirements in relation to the
provision of access to services that are to be
complied with by the relevant network service
provider;
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Establishment of Code Division 2
s. 104
(i) setting out the obligations of a network service provider
in respect of the segregation of the functions and
business of providing services from the network service
provider's other functions and business and enabling the
5 Authority to add to those obligations or waive any of
them;
(j) as to services between related bodies corporate (as
defined in the Corporations Act 2001 of the
Commonwealth section 9);
10 (k) setting out rights and obligations of network users;
(l) for the formulation by a network service provider, and
approval by the Authority, of metering and other
technical codes for the purposes of access to services
that are to be complied with by access users and other
15 persons specified in the Code;
(m) as to matters relating to metering data including
security, access, audit requirements and retention;
(n) as to the disclosure and use of confidential information;
and
20 (o) for the Authority to have supervisory and other
functions for the purposes of the Code, including a
function of determining certain requirements in relation
to access to network infrastructure facilities that are to
be complied with by the network service provider, a
25 person making a proposal for access to services and the
arbitrator.
(3) A decision under the Code as to whether network infrastructure
facilities are to become covered by the Code or are to cease to
be covered by the Code is not liable to be challenged in, or
30 reviewed or called in question by, a court or tribunal otherwise
than under section 130.
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Electricity Industry Bill 2003
Part 8 Access to services of network infrastructure facilities
Division 2 Establishment of Code
s. 105.
105. Other matters for which Code may make provision
(1) The Code may also make provision for or in relation to --
(a) the arbitration by the arbitrator of disputes between a
network service provider and a person who has made a
5 proposal for access to services;
(b) other functions of the arbitrator;
(c) the functions of the Authority;
(d) the regulation of matters --
(i) of a savings, transitional or supplementary
10 nature; or
(ii) that are otherwise necessary or convenient for
the purposes of this Part.
(2) Transitional provisions referred to in subsection (1)(d)(i) may
authorise the Minister to determine by order published in the
15 Gazette how any matter in progress immediately before the
commencement of this Part is to be treated, after that
commencement, for the purposes of the provisions of the Code.
106. Code does not affect existing agreements
(1) The making of the Code or the approval of an access
20 arrangement --
(a) does not affect the terms and conditions, or the
operation, of an agreement for access to services in
operation immediately before the commencement of the
Code or the approval of the arrangement whether under
25 the Electricity Corporation Act 1994 or otherwise; and
(b) does not afford a party to the agreement any ground or
reason for not complying with the agreement according
to its terms and conditions.
(2) Subsection (1)(a) or (b) does not apply if the Code or the
30 agreement provides otherwise.
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Establishment of Code Division 2
s. 107
107. Code is subsidiary legislation
(1) In this section --
"Code" includes --
(a) an amendment of the Code; or
5 (b) a code repealing and replacing the Code.
(2) The Code is subsidiary legislation for the purposes of the
Interpretation Act 1984.
(3) The Code is to be laid before each House of Parliament within
6 sitting days of that House next following publication of the
10 Code in the Gazette.
(4) Notice of motion to disallow the Code or any part of the Code
may be given in either House of Parliament within 10 sitting
days of that House after the Code has been laid before it under
subsection (3).
15 (5) Within 10 sitting days of a House of Parliament after notice of
motion has been given in that House under subsection (4), that
House may pass a resolution disallowing the Code or any part of
the Code.
(6) If the Code is not laid before both Houses of Parliament under
20 subsection (3), or is disallowed by either House under
subsection (5), the Code ceases to have effect, but without
affecting the validity or curing the invalidity of anything done
or the omission of anything in the meantime.
(7) If a resolution has been passed under subsection (5), notice to
25 that effect is to be published in the Gazette within 21 days.
108. Public comment on amendment or replacement of Code
(1) Before the Minister exercises the power --
(a) to amend the Code; or
(b) to repeal and replace it,
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Division 2 Establishment of Code
s. 109
the Minister must make the proposed amendment or
replacement available for public comment in accordance with
subsection (2).
(2) The Minister must --
5 (a) cause a notice giving a general description of the
proposal to be published --
(i) in an issue of a daily newspaper circulating
throughout the Commonwealth; and
(ii) in an issue of a daily newspaper circulating
10 throughout the State,
and on an appropriate internet website; and
(b) include in the notice the following information --
(i) the places at which a copy of the proposal may
be obtained;
15 (ii) a statement that written submissions on the
proposal may be made to the Minister by any
person within a specified period; and
(iii) the address to which the submissions may be
delivered or posted.
20 (3) The period specified under subsection (2)(b)(ii) is not to be less
than 30 days after both of the notices under subsection (2)(a)
have been published.
(4) The Minister must have regard to any submission made in
accordance with the notice.
25 109. Exception to section 108
(1) Section 108(1) does not apply if the Minister is satisfied that a
proposed amendment to the Code is --
(a) of a minor nature; or
(b) required to be made urgently.
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Establishment of Code Division 2
s. 110
(2) If in reliance on subsection (1)(b) the Minister amends the Code
without complying with section 108(1) --
(a) the Minister must call for public comment on the
amendment as soon as is practicable after it has come
5 into force; and
(b) section 108(2) and (3) apply with all necessary
modifications.
(3) Having regard to any submissions made on the amendment, the
Minister must consider whether the Code should be amended --
10 (a) to reverse the effect of the amendment; or
(b) in some other manner.
110. Consultation with network service providers on amendment
or replacement of Code
(1) Without limiting section 108, if the Minister considers that a
15 proposed amendment or replacement of the Code may affect a
network service provider, the Minister must consult with the
network service provider and have regard to any submissions
that the network service provider makes in relation to the
proposal.
20 (2) If a network service provider considers that the Code, or a
provision of it, has, as a result of altered circumstances, become
unreasonable or inappropriate in its application to the network
service provider, the network service provider may make a
submission to the Minister requesting that the Code be amended
25 or be repealed and replaced.
(3) The Minister must consider a submission made under
subsection (2) and, if requested by the network service provider,
consult with the network service provider in relation to it.
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Part 8 Access to services of network infrastructure facilities
Division 2 Establishment of Code
s. 111
111. Review of Code
(1) The Minister must cause a review of the Code to be carried out
as soon as is practicable after --
(a) the fifth anniversary of its commencement; and
5 (b) the expiry of each 5 yearly interval after that
anniversary.
(2) The purpose of a review is to assess the suitability of the
provisions of the Code to achieve the purposes of this Part.
(3) Before carrying out a review of the Code, the Authority must
10 call for public comment in accordance with subsection (4).
(4) The Authority must --
(a) cause notice of the review to be published --
(i) in an issue of a daily newspaper circulating
throughout the Commonwealth; and
15 (ii) in an issue of a daily newspaper circulating
throughout the State,
and on an appropriate internet website; and
(b) include in the notice --
(i) a statement that written submissions on the Code
20 may be made by any person within a specified
period; and
(ii) the address to which the submissions may be
delivered or posted.
(5) The period specified under subsection (4)(b)(i) is not to be less
25 than 30 days after both of the notices under subsection (4)(a)
have been published.
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Access to services of network infrastructure facilities Part 8
Enforcement Division 3
s. 112
112. Functions of the Authority
The Authority --
(a) is responsible for monitoring and enforcing compliance
by network service providers with this Part, the Code
5 and access arrangements; and
(b) also has the functions given by particular provisions of
this Part and the Code.
113. The arbitrator
When the Gas Pipelines Access (Western Australia) Act 1998
10 Part 6 Division 3 refers to the functions of the arbitrator those
functions include functions under the Code.
Division 3 -- Enforcement
114. References to contravening the Code
A reference in this Division to contravening a provision of the
15 Code includes a reference to --
(a) attempting to contravene such a provision;
(b) aiding, abetting, counselling or procuring a person to
contravene such a provision;
(c) inducing, or attempting to induce, a person, whether by
20 threats or promises or otherwise, to contravene such a
provision;
(d) being in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person
of such a provision; or
25 (e) conspiring with others to contravene such a provision.
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Part 8 Access to services of network infrastructure facilities
Division 3 Enforcement
s. 115
115. Prohibitions on hindering or preventing access
(1) The network service provider in relation to network
infrastructure facilities covered by the Code must not engage in
conduct aimed at hindering or preventing --
5 (a) access by any person to services in accordance with the
Code;
(b) the making of access agreements or any particular
agreement in respect of those facilities; or
(c) the access to which a person is entitled under an access
10 agreement or a determination made by way of
arbitration.
(2) A person who has access to services under an access agreement
must not engage in conduct aimed at hindering or preventing
access by another person to services of network infrastructure
15 facilities covered by the Code.
(3) Subsections (1) and (2) do not apply to conduct that the network
service provider, or a person referred to in subsection (2), is
entitled to engage in under this Act, the Code or some other
written law or under an access agreement.
20 Penalty: $100 000.
Daily penalty: $20 000.
116. Proceedings
(1) Civil proceedings cannot be brought in respect of a matter
arising under the Code except --
25 (a) in accordance with the regulations;
(b) by arbitration under the Code; or
(c) in accordance with section 130.
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Enforcement Division 3
s. 117
(2) Nothing in subsection (1) affects the right of a person --
(a) to bring civil proceedings in respect of any matter or
thing, or seek any relief or remedy, if the cause of action
arises, or the relief or remedy is sought, on grounds that
5 do not rely on the Code; or
(b) to bring proceedings for judicial review of a decision
under this Act or the Code of the Minister, the arbitrator
or the Board.
117. Criminal proceedings do not lie
10 (1) Criminal proceedings (including proceedings under The
Criminal Code section 177 or 178) do not lie against a person
by reason only that the person has contravened a provision of
the Code.
(2) Nothing in subsection (1) affects section 115.
15 118. Regulations as to enforcement of Code
(1) The regulations may prescribe all matters that are necessary or
convenient to be prescribed for the enforcement of the Code.
(2) Without limiting section 131 or subsection (1), the regulations
may --
20 (a) provide that a provision of the Code specified in the
regulations, or of a class specified in the regulations, is a
civil penalty provision for the purposes of the
regulations;
(b) prescribe, for a contravention of a civil penalty
25 provision --
(i) an amount not exceeding $100 000; and
(ii) in addition a daily amount not exceeding
$20 000,
that the Supreme Court may determine is payable by a
30 person who contravenes the provision;
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Part 8 Access to services of network infrastructure facilities
Division 4 Transitional
s. 119
(c) provide for and regulate the taking of proceedings
before the Supreme Court in respect of alleged
contraventions of civil penalty provisions and provide
for the orders that can be made in those proceedings;
5 (d) provide for the manner in which amounts received by
way of civil penalties are to be dealt with and applied;
(e) provide for and regulate the taking of proceedings
before the Supreme Court for an injunction restraining
engagement in conduct contravening a provision of the
10 Code and provide for the granting of an injunction
(including an interim injunction) and the rescission or
variation of an injunction so granted;
(f) provide for and regulate the taking of proceedings
before the Supreme Court for a declaration as to whether
15 a provision of the Code is being or has been contravened
and provide for the orders that can be made in those
proceedings; and
(g) provide for and regulate the taking of action for the
recovery of an amount of loss or damage suffered
20 because of conduct contravening a provision of the
Code.
(3) In subsection (2)(b)(ii) --
"daily amount" means an amount for each day or part of a day
during which the contravention continues.
25 Division 4 -- Transitional
119. Value of existing facilities
(1) In this section --
"existing facilities" means network infrastructure facilities of a
relevant corporation;
30 "ministerial valuation" means a valuation of existing facilities
obtained by the Minister under subsection (2).
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Transitional Division 4
s. 120
(2) The Minister may at any time commission a suitably qualified
and experienced person to --
(a) undertake a valuation of existing facilities in accordance
with the asset valuation methodology known as
5 depreciated optimised replacement cost; and
(b) provide that valuation to the Minister.
(3) If --
(a) it is necessary under the Code or an access arrangement,
or it is otherwise appropriate, for the Authority or any
10 other person to have regard to the depreciated optimised
replacement cost of existing facilities for the purpose of
network access price regulation in respect of access to
services of those facilities; and
(b) there is a ministerial valuation of those facilities,
15 the ministerial valuation is taken to be the depreciated optimised
replacement cost of those facilities.
120. Expiry
This Division expires at the expiration of the period of 3 years
from the day on which it comes into operation.
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Electricity Industry Bill 2003
Part 9 Wholesale electricity market
s. 121
Part 9 -- Wholesale electricity market
121. Terms used in this Part
(1) In this Part, unless the contrary intention appears --
"confer" includes impose;
5 "market" has the meaning given to that term in section 122;
"market rules" has the meaning given to that term in
section 123(1).
(2) A person is a "participant" for the purposes of this Part if --
(a) the person is registered in accordance with the market
10 rules as required under the regulations;
(b) functions are conferred on the person under the
regulations or the market rules; or
(c) functions relating to this Part are conferred on the
person by another written law.
15 122. Regulations for a wholesale electricity market
(1) Regulations are to be made for the purpose of establishing a
market (the "market") in relation to the wholesale supply of
electricity in the South West interconnected system.
(2) The objectives of the market are --
20 (a) to promote the economically efficient, safe and reliable
production and supply of electricity and electricity
related services in the South West interconnected
system;
(b) to encourage competition among generators and retailers
25 in the South West interconnected system, including by
facilitating efficient entry of new competitors;
(c) to avoid discrimination in that market against particular
energy options and technologies, including sustainable
energy options and technologies such as those that make
30 use of renewable resources or that reduce overall
greenhouse gas emissions;
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s. 123
(d) to minimise the long-term cost of electricity supplied to
customers from the South West interconnected system;
and
(e) to encourage the taking of measures to manage the
5 amount of electricity used and when it is used.
123. Market rules
(1) Without limiting section 122, the regulations are to provide for
there to be rules (the "market rules") relating to the market and
to the operation of the South West interconnected system setting
10 out or dealing with such matters as are prescribed by the
regulations.
(2) The market rules are not subsidiary legislation for the purposes
of the Interpretation Act 1984 and section 42 of that Act does
not apply to them or to rules amending them or repealing and
15 replacing them.
(3) The Interpretation Act 1984 sections 43 (other than
subsection (6)), 44, 48, 48A, 50(1), 53, 55, 56, 58, 59, 75 and 76
and Part VIII apply to the market rules as if they were
subsidiary legislation.
20 (4) The regulations may provide for --
(a) the establishment of the initial market rules;
(b) the amendment, or repeal and replacement, of the
market rules by rules made in accordance with the
regulations and the market rules; and
25 (c) the publication, commencement, and laying before each
House of Parliament, of the initial market rules and rules
amending, or repealing and replacing, the market rules.
124. Matters to be dealt with in regulations
(1) The regulations may prescribe all matters that are necessary or
30 convenient to be prescribed for the purpose set out in
section 122(1) and to achieve the objectives set out in
section 122(2).
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s. 124
(2) Without limiting section 122, 123 or 131 or subsection (1), the
regulations may --
(a) regulate the conduct of persons and impose obligations
on them;
5 (b) confer functions, or authorise the market rules to confer
functions, on the Minister or any other person (including
a person holding an office under a written law or a body
established under a written law);
(c) provide for the establishment, or authorise the
10 formation, of a body (including a body corporate) and
confer functions, or authorise the market rules to confer
functions, on a body so established or formed;
(d) provide for the relationship between the Minister, or
another Minister, and a participant referred to in
15 section 121(2)(b) or (c) in respect of the performance of
the functions of the participant;
(e) provide, or authorise the market rules to provide, for the
resolution of disputes between participants;
(f) provide that a contravention of a regulation is an
20 offence;
(g) prescribe a penalty of not more than $100 000, with or
without a daily penalty of not more that $20 000, for an
offence against the regulations;
(h) provide that a provision of the market rules specified in
25 the regulations, or of a class specified in the regulations,
is a civil penalty provision for the purposes of the
regulations;
(i) prescribe, for a contravention of a civil penalty
provision --
30 (i) an amount not exceeding $100 000; and
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s. 124
(ii) in addition a daily amount not exceeding
$20 000,
that may, in accordance with the regulations, be
demanded from or imposed upon a person who
5 contravenes the provision;
(j) provide for demands for the payment of amounts
referred to in paragraph (i) and the enforcement of
demands for their payment;
(k) provide for and regulate the taking of proceedings in
10 respect of alleged contraventions of provisions of the
market rules, provide for the orders that can be made
and other sanctions that can be imposed in those
proceedings and provide for the enforcement of those
orders and sanctions;
15 (l) provide for the manner in which amounts received by
way of civil penalties are to be dealt with and applied;
(m) provide for and regulate the making of applications for,
and the issue of, warrants relating to the investigation of
alleged contraventions of provisions of the market rules
20 and for the powers exercisable under warrants; and
(n) in respect of costs incurred in the performance of
functions conferred on a participant referred to in
section 121(2)(b) or (c), provide for --
(i) the implementation of accounting arrangements
25 to enable those costs to be identified;
(ii) the allocation of those costs between
participants; and
(iii) the recovery of those costs.
(3) Without limiting subsection (2)(a), the regulations may prohibit
30 persons from engaging in an activity specified in the regulations
unless they are registered in accordance with the market rules.
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Electricity Industry Bill 2003
Part 9 Wholesale electricity market
s. 125. Appeals
(4) Without limiting subsection (2)(n), if it is inappropriate to
prescribe a set fee or charge in connection with the performance
of a particular function the regulations may provide for the
method of calculating the fee or charge, including calculation
5 according to the cost of performing that function.
(5) A reference in subsection (2) to contravening a provision of the
market rules includes a reference to --
(a) attempting to contravene such a provision;
(b) aiding, abetting, counselling or procuring a person to
10 contravene such a provision;
(c) inducing, or attempting to induce, a person, whether by
threats or promises or otherwise, to contravene such a
provision;
(d) being in any way, directly or indirectly, knowingly
15 concerned in, or party to, the contravention by a person
of such a provision; or
(e) conspiring with others to contravene such a provision.
(6) In subsection (2)(i)(ii) --
"daily amount" means an amount for each day or part of a day
20 during which the contravention continues.
125. Appeals
(1) Application may be made to the Board for the review by the
Board of decisions of a participant referred to in section
121(2)(b) or (c) that are made under the regulations or the
25 market rules and are not of a class specified in the regulations.
(2) Regulations may --
(a) provide for the powers of the Board; and
(b) apply provisions of the Gas Pipelines Access (Western
Australia) Act 1998 with or without modifications,
30 in relation to reviews provided for in those regulations.
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s. 126. Immunity of certain participants
(3) Nothing in subsection (1) prevents or affects the review by a
court or tribunal, according to law, of decisions of participants
made under the regulations or the market rules.
126. Immunity of certain participants
5 (1) In this section --
"civil monetary penalty" 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 the regulations;
10 "market governance participant" means a participant referred
to in section 121(2)(b) or (c);
"officer" of a body corporate includes a person who is an
officer within the meaning of the Corporations Act 2001 of
the Commonwealth section 82A;
15 "system management participant" means a market
governance participant the functions of which include a
function under the regulations or the market rules specified
in the regulations as a system management function.
(2) A market governance participant, or an officer or employee of a
20 market governance participant, does not incur any civil
monetary liability for an act or omission done or made in good
faith in the performance, or purported performance, of a
function under the regulations or the market rules.
(3) If an act or omission done or made after the expiration of the
25 period of 12 months from the establishment of the initial market
rules is negligent --
(a) the immunity given by subsection (2) does not apply to
that act or omission; but
(b) as long as that act or omission is done or made in good
30 faith, the civil monetary penalty for it is not to exceed
the prescribed maximum amount.
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s. 127
(4) Regulations may exempt a specified market governance
participant, other than a system management participant, from
the operation of subsection (3)(a).
(5) The regulations may, for the purposes of subsection (3)(b),
5 without limitation --
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances losses or
periods to which they are expressed to apply;
(b) prescribe maximum amounts that vary in their
10 application according to the persons to whom, or the
events, circumstances losses or periods to which, they
are expressed to apply; or
(c) prescribe a manner in which the maximum amount is to
be divided amongst claimants.
15 (6) This section does not apply to any liability of an officer of a
body corporate to the body corporate.
127. Trade practices authorisation by regulation
(1) In this section --
"arrangement" includes any contract, arrangement or
20 understanding, or any market practice or market or
customer restriction, division, allocation or segregation of
any nature, or a course of conduct or dealing.
(2) The regulations may authorise or approve any arrangement, act,
matter or thing in relation to the market rules for the purposes of
25 the Trade Practices Act 1974 of the Commonwealth and the
Competition Code.
128. Review of market operation
(1) The Authority is to review the operation of the market as soon
as practicable after the expiration of 3 years from the
30 commencement of this Part and thereafter as soon as practicable
after the expiration of 3 years from a report being laid before
each House of Parliament under subsection 5(a).
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s. 129
(2) The purpose of the review is to assess the extent to which the
objectives set out in section 122(2) have been or are being
achieved.
(3) Not later than 3 years and 6 months after the commencement of
5 this Part, or after the last preceding report was laid before each
House of Parliament under subsection (5)(a), as the case may
be, the Authority is to give the Minister a written report based
on the review.
(4) If the Authority considers that some or all of the objectives set
10 out in section 122(2) have not been and are not being achieved,
the report is to set out recommendations as to how those
objectives can be achieved.
(5) As soon as practicable after receiving the report, the Minister is
to --
15 (a) cause the report to be laid before each House of
Parliament; and
(b) prepare a response to the report and cause the response
to be laid before each House of Parliament.
(6) As soon as practicable after the report is laid before each House
20 of Parliament, the Authority is to post a copy of the report on an
internet website maintained by the Authority.
129. Public consultation
(1) In the course of conducting a review under section 128(1), the
Authority is to seek public comment on the extent to which the
25 objectives set out in section 122(2) have been or are being
achieved (the "issue").
(2) The Authority is to cause a notice giving a general description
of the issue to be --
(a) published in a daily newspaper circulating throughout
30 the State; and
(b) posted on an internet website maintained by the
Authority.
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s. 129
(3) The notice is to include --
(a) a statement that any person may, within a specified
period, make written submissions on the issue to the
Authority; and
5 (b) the address to which the submissions may be delivered
or posted.
(4) The period specified under subsection (3)(a) is not to end less
than 30 days after the day on which the notice is published
under subsection (2)(a).
10 (5) The Authority is to have regard to any submission made in
accordance with the notice.
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Other matters Part 10
s. 130
Part 10 -- Other matters
130. Review by the Board
(1) In this section --
"Code" means the Code for the time being in force under
5 section 104;
"gas pipelines access provisions" means the Gas Pipelines
Access (Western Australia) Act 1998 Schedule 1.
(2) This section applies to --
(a) a decision of the Authority to refuse to grant or renew a
10 licence;
(b) a decision of the Authority to refuse to approve the
transfer of a licence;
(c) a decision of the Authority to refuse to amend a licence
under section 21;
15 (d) a decision of the Authority as to the length of the period
for which a licence is granted or renewed;
(e) a decision of the Authority as to any term or condition
of a licence;
(f) a decision of the Authority to amend a licence under
20 section 22;
(g) a decision of the Authority to refuse to approve --
(i) a standard form contract under section 51; or
(ii) an amendment to, or replacement for, a standard
form contract under section 52;
25 (h) a direction given by the Authority under section 53;
(i) a decision by the Minister that network infrastructure
facilities are to become covered by the Code or are to
cease to be covered by the Code;
(j) a decision by the Authority to add to the obligations of a
30 network service provider under the Code in respect of
the segregation of the functions and business of
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Electricity Industry Bill 2003
Part 10 Other matters
s. 130
providing services from the network service provider's
other functions and business, or to waive any of those
obligations;
(k) a decision by the Authority to approve or not to approve
5 an arrangement lodged under section 104(2)(c); or
(l) a decision by the Authority to release confidential data
given to the Authority for the performance of its
functions under Part 8.
Note: See Economic Regulation Authority Act 2003 Part 6.
10 (3) A person adversely affected by a decision or direction to which
this section applies may apply to the Board for a review of the
decision.
(4) Section 38(2) to (5) and (7) to (12) of the gas pipelines access
provisions apply to the application and to the review of the
15 decision or direction as if references in them to --
(a) the relevant appeals body were references to the Board;
(b) a decision included references to a direction;
(5) The application operates to stay the decision or direction unless,
in the case of a decision under subsection (2)(j), the Board
20 determines otherwise.
(6) In the case of a decision under subsection (2)(k), section 39(2)
to (5) of the gas pipelines access provisions also apply to the
application and to the review of the decision as if references in
them to --
25 (a) the relevant appeals body were references to the Board;
(b) the relevant regulator were references to the Authority.
(7) In the case of a decision under subsection (2)(l), section 43(2) to
(4) of the gas pipelines access provisions also apply to the
application and to the review of the decision as if references in
30 them to --
(a) the relevant appeals body were references to the Board;
(b) the relevant regulator were references to the Authority.
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Electricity Industry Bill 2003
Other matters Part 10
s. 131
(8) When the Gas Pipelines Access (Western Australia) Act 1998
Part 6 Division 2 refers to the functions of, and proceedings
before, the Board those functions and proceedings include
functions and proceedings under this section.
5 (9) For the purposes of subsection (8), the references in the Gas
Pipelines Access (Western Australia) Act 1998 sections 57(1)
and 59(4) to the Gas Pipelines Access (Western Australia) Law
are taken to be references to the Code.
131. Regulations
10 The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
132. Regulations as to fees and charges for supply and services
15 (1) Without limiting section 131, the regulations may --
(a) fix the fees and charges, or the means of determining the
fees and charges, that, unless otherwise agreed, are to be
payable by customers of a prescribed class in relation
to --
20 (i) the supply of electricity in prescribed
circumstances; or
(ii) the provision of any prescribed service;
and
(b) deal with any other matter relating to the fixing or
25 determination of fees and charges.
(2) Without limiting subsection (1), the regulations may make
provision for and in relation to discounts, rebates, or
concessions to be made available to customers of a prescribed
class or in prescribed circumstances in respect of fees or charges
30 payable in relation to the supply of electricity or the provision of
a prescribed service.
page 85
Electricity Industry Bill 2003
Part 10 Other matters
s. 133
133. Regulations as to fees and charges for functions of
arbitrator and Board
(1) Without limiting section 131, regulations may make provision
for and in connection with the performance of the respective
5 functions of the arbitrator and the Board under this Act.
(2) If it is inappropriate to prescribe a set fee or charge in
connection with the performance of a particular function the
regulations may provide for the method of calculating the fee or
charge, including calculation according to the cost of
10 performing that function.
(3) Without limiting subsection (1) or (2) the regulations may --
(a) authorise the Board to fix, and determine the incidence
of liability for, the cost and expenses of the hearing and
determination of proceedings before the Board; and
15 (b) make any incidental or supplementary provision that is
expedient for the purposes of paragraph (a).
(4) The application of subsection (3) extends to the cost and
expenses of proceedings that are commenced but discontinued
or otherwise not brought to finality.
20
page 86
Electricity Industry Bill 2003
Schedule 1
Schedule 1 -- Licence terms and conditions
[s. 11]
A licence may include provisions --
(a) if the licence is a generation licence or integrated regional licence,
5 requiring the licensee to prepare and implement strategies for the
management of greenhouse gas emissions;
(b) if the licence is a generation licence, a retail licence or an
integrated regional licence, requiring the licensee to maintain and
publish specified records in respect of greenhouse gas emissions
10 caused by, or associated with, the generation of electricity supplied
by the licensee;
(c) if the licence is a retail licence or an integrated regional licence,
requiring the licensee to prepare and implement strategies to
encourage the use of renewable energy;
15 (d) if the licence is a retail licence or an integrated regional licence,
requiring the licensee to give information to customers on matters
relating to electricity consumption, electricity conservation and the
efficient use of electricity;
(e) if the licence is a retail licence or an integrated regional licence,
20 specifying methods or principles to be applied by the licensee in
determining fees or charges payable by customers of a class
prescribed under section 132(1)(a) ("tariff customers");
(f) if the licence is a retail licence or an integrated regional licence,
requiring the licensee, when seeking payment by tariff customers
25 of a fee or charge, to specify --
(i) the portion of the fee or charge that is attributable to the cost
of generating the electricity supplied;
(ii) the portion of the fee or charge that is attributable to the cost
of transporting that electricity through a transmission
30 system; and
(iii) the portion of the fee or charge that is attributable to the cost
of transporting that electricity through a distribution system;
(g) if the licence is a retail licence or an integrated regional licence,
regulating the extent to which the licensee's customers may be of a
35 particular class;
page 87
Electricity Industry Bill 2003
Schedule 1
(h) requiring the licensee to maintain specified accounting records;
(i) preventing the licensee from engaging in or undertaking specified
business activities or any other business in the electricity industry
in the State;
5 (j) specifying methods or standards to be applied in supplying
electricity under the authority of the licence;
(k) requiring the licensee to observe specified codes (including any
codes issued by the Authority under section 39) with such
modifications or exemptions as may be determined by the
10 Authority;
(l) specifying procedures for surrender of the licence;
(m) requiring the licensee to provide to the Authority, in the manner
and form determined by the Authority, specified information on
any matter relevant to the operation or enforcement of the licence,
15 the operation of the licensing scheme provided for in Part 2, or the
performance of the Authority's functions under that Part;
(n) requiring the licensee to lodge with the Authority securities in an
amount and of a nature acceptable to the Authority securing the
performance by the licensee of the requirements, responsibilities
20 and obligations under the licence;
(o) relating to the performance of functions by the licensee
including --
(i) the range of functions that may be performed by the
licensee;
25 (ii) performance criteria to be met by the licensee; and
(iii) community service obligations, that is obligations that are
not commercially justified, to be discharged by the licensee;
(p) requiring the licensee to publish specified information in relation to
its performance under the licence;
30 (q) relating to obligations of the licensee with respect to public
authorities and other licensees;
(r) regulating the construction or operation, or both, of any generating
works, transmission system or distribution system to which the
licence applies;
page 88
Electricity Industry Bill 2003
Schedule 1
(s) relating to the disposal or transfer of property, rights or liabilities
of a specified kind either during the term of the licence or on or
after its expiration by effluxion of time including provisions --
(i) prohibiting any disposal or transfer of property except with
5 the approval of a specified person;
(ii) prohibiting the giving of any encumbrance over specified
property except with the approval of the Authority;
(iii) requiring the transfer of property, rights or liabilities of a
specified kind to a specified person on or within a specified
10 time after the expiration of the licence;
(iv) with respect to the consideration to be provided in respect of
any disposal or transfer;
(v) with respect to the arbitration of disputes that arise in
connection with any disposal or transfer; and
15 (vi) of a supplementary, consequential or transitional nature in
relation to any disposal or transfer.
page 89
Electricity Industry Bill 2003
Schedule 2
Schedule 2 -- Objectives to be met by the electricity
ombudsman scheme
[s. 93]
Objectives stated
5 The objectives referred to in section 93 are that --
(a) all licensees who are required to be members of the
scheme --
(i) are members of the scheme;
(ii) have agreed to be bound by decisions and directions
10 of the electricity ombudsman under the scheme; and
(iii) as members, are so bound;
(b) the scheme will be appropriately funded by the licensees who
are required to be members;
(c) the scheme has satisfactory arrangements in place to deal
15 with all disputes and complaints referred to in section 92(1);
(d) the electricity ombudsman will be able to operate
independently of all licensees in performing his or her
functions under the scheme;
(e) the scheme will be accessible to customers;
20 (f) membership of the scheme will --
(i) be accessible to all potential members; and
(ii) provide appropriate representation for all members on
the governing body of the scheme;
(g) without limiting any other application of the scheme, the
25 scheme will apply to all disputes and complaints referred to
in section 92(1);
(h) the scheme will operate expeditiously and without cost to
customers;
(i) the scheme will satisfy best practice benchmarks for schemes
30 of a similar kind, both in terms of its constitution and
procedure and in terms of its day to day operations;
page 90
Electricity Industry Bill 2003
Schedule 2
(j) the scheme will provide for a monetary limit on claims
covered by the scheme of an amount or amounts approved by
the Authority;
(k) the scheme will maintain the capacity of the electricity
5 ombudsman, where appropriate, to refer disputes or
complaints to other forums; and
(l) the scheme will require the electricity ombudsman to inform
the Authority of substantial breaches of --
(i) any licence condition; or
10 (ii) the code of conduct under Part 6,
of which the ombudsman becomes aware.
page 91
Electricity Industry Bill 2003
Schedule 3
Schedule 3 -- Transitional provisions
[s. 79, 81]
Division 1 -- Initial customer service code of conduct
1. Approval of initial customer service code of conduct
5 (1) The initial code of conduct under section 79 is to be approved by the
Minister instead of by the Authority.
(2) The Minister is to act under subclause (1) in consultation with the
committee.
(3) The provisions of --
10 (a) Part 6; and
(b) the Interpretation Act 1984 section 25 in its application to
that Part,
are modified so far as is necessary to enable effect to be given to
subclauses (1) and (2).
15 (4) The code of conduct approved in accordance with this clause is to be
taken, for the purposes of Part 6, to be a code of conduct approved by
the Authority under Part 6.
2. Appointment of initial committee
(1) The Minister instead of the Authority is to --
20 (a) determine the initial membership, constitution and procedures
of the committee under section 81; and
(b) appoint the initial members of the committee,
and may make the initial determinations under section 81(3).
(2) The provisions of --
25 (a) section 81; and
(b) the Interpretation Act 1984 section 25 in its application to
that section,
are modified so far as is necessary to enable effect to be given to
subclause (1).
page 92
Electricity Industry Bill 2003
Schedule 3
(3) The committee established in accordance with this clause is to be
taken, for the purposes of section 81 to be the committee established
by the Authority under that section.
3. Regulations for transitional matters
5 If in the opinion of the Minister an anomaly arises in --
(a) the carrying out of clause 1 or 2; or
(b) the operation of Part 6 in accordance with the Interpretation
Act 1984 section 25,
the Governor may by regulations make such provision as is
10 necessary --
(c) to remove the anomaly; and
(d) to achieve the purpose of clause 1(1) or 2(1).
Division 2 -- Initial electricity ombudsman scheme
4. Approval of initial electricity ombudsman scheme
15 (1) The Minister instead of the Authority is to --
(a) approve the initial electricity ombudsman scheme under
sections 92 and 93; and
(b) give the initial approval required for the purposes of
Schedule 2 paragraph (j).
20 (2) The provisions of --
(a) Part 7 Division 2;
(b) Schedule 2; and
(c) the Interpretation Act 1984 section 25 in its application to the
provisions mentioned in paragraphs (a) and (b),
25 are modified so far as is necessary to enable effect to be given to
subclause (1).
(3) A scheme approved in accordance with this clause is to be taken, for
the purposes of Part 7, to be a scheme approved by the Authority
under Division 2 of that Part.
page 93
Electricity Industry Bill 2003
Schedule 3
5. Regulations for transitional matters
If in the opinion of the Minister an anomaly arises in --
(a) the carrying out of clause 4; or
(b) the operation of Part 7 Division 2 in accordance with the
5 Interpretation Act 1984 section 25,
the Governor may by regulations make such provision as is
necessary --
(c) to remove the anomaly; and
(d) to achieve the purpose of clause 4.
page 94
Electricity Industry Bill 2003
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
access.......................................................................................................103(1)
access agreement......................................................................................103(1)
access arrangement...................................................................................103(1)
appropriate amendment ................................................................... 53(3), 64(3)
approved policy.............................................................................................. 60
approved scheme............................................................................................ 90
arbitrator .......................................................................................................... 3
arrangement .............................................................................................125(1)
Authority.......................................................................................................... 3
Board............................................................................................................... 3
Civil monetary penalty ................................................................................. 126
Code ........................................................................ 103(1), 107(1), 127, 128(1)
code of conduct .............................................................................................. 78
commencement day......................................................................... 46(1), 55(1)
committee ...................................................................................................... 78
Competition Principles Agreement ...........................................................103(1)
confer.......................................................................................................121(1)
connect .......................................................................................................... 57
cooling-off period.......................................................................................48(1)
Coordinator .................................................................................................... 60
corporation...........................................................................................55(1), 60
customer .........................................................................................3, 47, 78, 90
customer contract ........................................................................................... 90
daily amount ................................................................................118(3), 124(7)
designated area............................................................................................... 67
distribution licence ........................................................................................... 3
distribution system ........................................................................................... 3
efficient cost of supply.................................................................................. 127
electricity ......................................................................................................... 3
electricity marketing agent........................................................................ 78, 90
Electricity Networks Corporation ................................................................. 127
electricity ombudsman..........................................................................90, 92(1)
Electricity Retail Corporation ......................................................................... 67
existing facilities ......................................................................................119(1)
existing operator.........................................................................................46(2)
extension and expansion policy....................................................................... 60
gas pipelines access provisions .................................................................128(1)
generating works .............................................................................................. 3
page 95
Electricity Industry Bill 2003
Defined Terms
generation licence............................................................................................. 3
integrated regional licence ................................................................................ 3
issue.........................................................................................................127(1)
last resort supply plan..................................................................................... 67
licence........................................................................................................ 3, 60
licence area ...................................................................................................... 3
licensee .................................................................................. 3, 45(5), 71(1), 90
market..........................................................................................121(1), 122(1)
market governance participant ...................................................................... 126
market rules .................................................................................121(1), 123(1)
marketing....................................................................................................... 78
ministerial valuation .................................................................................119(1)
network infrastructure facilities.................................................................103(1)
network service provider ..........................................................................103(1)
network user.............................................................................................103(1)
new corporation .........................................................................................46(1)
non-standard contract ..................................................................................... 47
officer .......................................................................................................... 126
operate ............................................................................................................. 3
participant ................................................................................................121(2)
period of exclusivity...................................................................................26(3)
premises......................................................................................................... 57
prescribed form of contract.........................................................................55(1)
prescribed period........................................................................................61(1)
prescribed provision ...................................................................................45(1)
public authority ..........................................................................................40(1)
Regional Power Corporation................................................................... 67, 127
regulated retail tariffs.................................................................................... 127
relevant contract.........................................................................................55(1)
relevant corporation.......................................................................................... 3
relevant interest ..........................................................................................40(1)
retail licence............................................................................................... 3, 67
retail licensee ................................................................................................. 47
services ....................................................................................................103(1)
South West interconnected system .................................................................... 3
standard form contract .................................................................................... 47
supplier of last resort ............................................................................67, 69(1)
supply .............................................................................................................. 3
system............................................................................................................ 60
system management participant .................................................................... 126
tariff customers .............................................................................. 55(1), Sch. 1
tariff equalisation contribution ...................................................................... 127
Tariff Equalisation Fund............................................................................... 127
page 96
Electricity Industry Bill 2003
Defined Terms
transmission licence ......................................................................................... 3
transmission system.......................................................................................... 3
user .............................................................................................................. 127
Western Power Corporation.............................................................................. 3
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