Federal Register of Legislation - Australian Government

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A Bill for an Act to continue the National Electricity Law as a Commonwealth law, and for other purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 31 Oct 2012
Introduced HR 29 Oct 2012

2010‑2011‑2012

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

National Electricity Bill 2012

 

No.      , 2012

 

(Mr Oakeshott)

 

 

 

A Bill for an Act to continue the National Electricity Law as a Commonwealth law, and for other purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                           16

Division 1—General                                                                                                    16

1............ Short title........................................................................................... 16

1A......... Commencement................................................................................. 17

Division 2—Application of this Act                                                                     18

1B......... Act binds the Crown......................................................................... 18

1D......... Extra‑territorial application................................................................ 18

1E.......... Concurrent operation......................................................................... 18

1F.......... Act not to apply so as to exceed Commonwealth power................... 18

1G......... Acquisition of property..................................................................... 19

1H......... Commonwealth not to discriminate or give preference...................... 20

Division 3—Definitions                                                                                              21

2............ Definitions........................................................................................ 21

2A......... Meaning of access dispute................................................................ 39

2AA...... Meaning of civil penalty provision and conduct provision................ 39

2B......... Meaning of direct control network service........................................ 40

2C......... Meaning of negotiated network service............................................. 40

2D......... Meaning of regulatory obligation or requirement............................ 41

2E.......... Meaning of regulatory payment........................................................ 42

2F.......... Form of regulation factors................................................................. 42

3............ Interpretation generally...................................................................... 43

6............ State or Territory Energy Ministers................................................... 43

6A......... Nominated distributors...................................................................... 43

7............ National electricity objective.............................................................. 45

7A......... Revenue and pricing principles......................................................... 45

8............ MCE statements of policy principles................................................. 46

9............ National Electricity Rules.................................................................. 47

10A....... Modification of corporations legislation by National Electricity Rules 47

Part 2—Participation in the National Electricity Market                            48

Division 1—Registration                                                                                           48

11.......... Electricity market activities................................................................ 48

12.......... Registration or exemption of persons participating in national electricity market      49

13.......... Exemptions for transmission system or distribution system owners, controllers and operators               50

14.......... Evidence of registration or exemption............................................... 50

Division 2—Regulated network service providers                                     51

14A....... Regulated transmission system operator must comply with transmission determination          51

14B....... Regulated distribution system operator must comply with distribution determination              51

Part 3—Functions and powers of the Australian Energy Regulator   52

Division 1—General                                                                                                    52

15.......... Functions and powers of AER.......................................................... 52

16.......... Manner in which AER performs AER economic regulatory functions or powers   53

Division 2—Search warrants                                                                                 55

19.......... Definitions........................................................................................ 55

20.......... Authorised person............................................................................. 55

20A....... Identity cards..................................................................................... 55

20B....... Return of identity cards..................................................................... 55

21.......... Search warrant.................................................................................. 56

22.......... Announcement of entry and details of warrant to be given to occupier or other person at premises         57

23.......... Announcement before entry.............................................................. 57

24.......... Copies of seized documents.............................................................. 58

25.......... Retention and return of seized documents or things.......................... 58

26.......... Extension of period of retention of documents or things seized........ 58

27.......... Obstruction of person authorised to enter......................................... 59

27A....... Powers conferred on magistrate........................................................ 60

Division 3—General information gathering powers                                  61

28.......... Power to obtain information and documents in relation to performance and exercise of functions and powers       61

Division 4—Regulatory information notices and general regulatory information orders          64

Subdivision 1—Interpretation                                                                              64

28A....... Definitions........................................................................................ 64

28B....... Meaning of contributing service........................................................ 64

28C....... Meaning of general regulatory information order.............................. 65

28D....... Meaning of regulatory information notice......................................... 65

28E........ Division does not limit operation of information gathering powers under Division 3              65

Subdivision 2—Serving and making of regulatory information instruments                65

28F........ Service and making of regulatory information instrument................. 65

28G....... Additional matters to be considered for related provider regulatory information instruments   66

28H....... AER must consult before publishing a general regulatory information order           68

28I......... Publication requirements for general regulatory information orders.. 68

28J........ Opportunity to be heard before regulatory information notice is served 68

Subdivision 3—Form and content of regulatory information instruments 70

28K....... Form and content of regulatory information instrument.................... 70

28L........ Further provision about the information that may be specified in a regulatory information instrument    70

28M...... Further provision about manner in which information must be provided to AER or kept        71

Subdivision 4—Compliance with regulatory information instruments     72

28N....... Compliance with regulatory information notice that is served........... 72

28O....... Compliance with general regulatory information order..................... 72

28P........ Exemptions from compliance with general regulatory information order 73

28Q....... Assumptions where there is non‑compliance with regulatory information instrument             73

Subdivision 5—General                                                                                          74

28R....... Providing to AER false and misleading information......................... 74

28S........ Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument  74

28T........ Legal professional privilege not affected........................................... 74

28U....... Protection against self‑incrimination................................................. 75

Division 5—Network service provider performance reports               76

28V....... Preparation of network service provider performance reports........... 76

Division 6—Disclosure of confidential information held by AER       78

28W...... Authorised disclosure of information given to the AER in confidence 78

28X....... Disclosure with prior written consent is authorised.......................... 78

28Y....... Disclosure for purposes of court and tribunal proceedings and to accord natural justice          78

28Z........ Disclosure of information given to the AER with confidential information omitted 78

28ZA..... Disclosure of information given in confidence does not identify anyone 79

28ZAB.. Disclosure of information that has entered the public domain........... 79

28ZB..... Disclosure of confidential information authorised if detriment does not outweigh public benefit             80

Division 7—Miscellaneous matters                                                                     83

28ZC..... Consideration by the AER of submissions made to it under this Act 83

28ZD..... Use of information provided under a notice under section 28 or a regulatory information instrument     83

28ZE..... AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices............................................................................................... 83

28ZF..... AER enforcement guidelines............................................................. 84

28ZG..... AER must report to MCE if it does not make network revenue or pricing determination within time      84

28ZH..... Single documentation........................................................................ 85

28ZI...... Use of information............................................................................ 85

Part 3A—Establishment of the Australian Energy Market Commission                86

28ZJA... Establishment of the Australian Energy Market Commission........... 86

28ZJB... Functions.......................................................................................... 86

28ZJC... Powers.............................................................................................. 87

28ZJD... Objectives......................................................................................... 87

28ZJE.... Independence.................................................................................... 87

28ZJF.... AEMC may publish statements, reports and guidelines.................... 87

28ZJG... Memorandum of Understanding....................................................... 87

28ZJH... Membership of AEMC..................................................................... 87

28ZJI..... Terms and conditions of appointment............................................... 88

28ZJJ.... Acting Chairperson or Commissioner............................................... 88

28ZJK... Vacancies or defects in appointment................................................. 90

28ZJL.... Chief executive.................................................................................. 90

28ZJM.. Other staff......................................................................................... 90

28ZJN... Immunity........................................................................................... 90

28ZJO... Consultants....................................................................................... 90

28ZJP.... Delegation......................................................................................... 91

28ZJQ... Meetings of AEMC.......................................................................... 91

28ZJR... Disclosure of interest........................................................................ 92

28ZJS.... Common seal and execution of documents....................................... 92

28ZJT.... Confidentiality................................................................................... 93

28ZJU... Annual performance plan and budget................................................ 94

28ZJV... Accounts and audit............................................................................ 94

Part 4—Functions and powers of the Australian Energy Market Commission under this Act                95

Division 1—General                                                                                                    95

29.......... Functions and powers of the AEMC................................................ 95

29AI...... Commonwealth consent to conferral of functions etc. on AEMC..... 95

29AJ..... How duty is imposed........................................................................ 96

29AK.... When a State/Territory energy law etc. imposes a duty..................... 97

29AL..... Powers of the AEMC....................................................................... 98

32.......... AEMC must have regard to national electricity objective.................. 98

33.......... AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews              98

Division 2—Rule making functions and powers of the AEMC             99

34.......... Rule making powers......................................................................... 99

35.......... Rules relating to MCE or State or Territory Ministers require MCE consent           102

36.......... AEMC must not make Rules that create criminal offences or impose civil penalties for breaches            102

37.......... Documents etc applied, adopted and incorporated by Rules to be publicly available                102

Division 3—Committees, panels and working groups of the AEMC 104

38.......... The Reliability Panel....................................................................... 104

39.......... Establishment of committees and panels (other than the Reliability Panel) and working groups              104

Division 4—MCE directed reviews                                                                   105

41.......... MCE directions............................................................................... 105

42.......... Terms of reference.......................................................................... 105

43.......... Notice of MCE directed review....................................................... 106

44.......... Conduct of MCE directed review.................................................... 107

Division 5—Other reviews                                                                                     108

45.......... Reviews by AEMC......................................................................... 108

Division 6—Miscellaneous                                                                                     109

46.......... AEMC must publish and make available up to date versions of Rules 109

47.......... Fees................................................................................................. 109

48.......... Confidentiality of information......................................................... 109

Part 5—Role of AEMO under National Electricity Law                          111

Division 1—General                                                                                                  111

49.......... AEMO’s statutory functions........................................................... 111

49AA.... Constitutional limits on AEMO’s statutory functions..................... 112

49A....... AEMO’s power to carry out statutory functions............................. 112

49B....... Delegation....................................................................................... 112

Division 2—AEMO’s adoptive jurisdiction functions                             114

Subdivision 1—Preliminary                                                                                114

50.......... Application of this Division............................................................ 114

50A....... AEMO to account to relevant Minister for performance of adoptive functions        114

Subdivision 2—AEMO’s additional advisory functions                              114

50B....... Additional advisory functions......................................................... 114

50BA.... Constitutional limits on AEMO’s additional advisory functions..... 115

Subdivision 3—AEMO’s declared network functions                                   115

50C....... AEMO’s declared network functions............................................. 115

50CA.... Constitutional limits on AEMO’s declared network functions........ 116

50D....... Network agreement......................................................................... 116

50E........ Connection agreements................................................................... 117

50F........ Augmentation.................................................................................. 118

50G....... AEMO to have qualified exemption for performing statutory functions  119

50H....... Resolution of dispute arising from attempt to negotiate a network agreement or augmentation connection agreement........................................................................................................ 120

50J........ General principles governing determinations.................................. 121

Division 3—Information etc to be provided to Ministers                      123

51.......... Ministerial request........................................................................... 123

51A....... Compliance with request................................................................. 123

51B....... Quarterly report............................................................................... 123

Division 4—Fees and charges                                                                              124

52.......... AEMO fees and charges................................................................. 124

Division 5—Information gathering                                                                   126

53.......... Information gathering powers......................................................... 126

53A....... Making and publication of general market information order.......... 127

53B....... Service of market information notice............................................... 127

53C....... Compliance with market information instrument............................. 128

53D....... Use of information.......................................................................... 129

53E........ Providing false or misleading information...................................... 129

Division 6—Protected information                                                                    130

Subdivision 1—AEMO’s obligation to protect information                       130

54.......... Protected information...................................................................... 130

Subdivision 2—Disclosure of protected information held by AEMO       130

54A....... Authorised disclosure of protected information.............................. 130

54B....... Disclosure with prior written consent............................................. 131

54C....... Disclosure required or permitted by law etc.................................... 131

54D....... Disclosure for purposes of court and tribunal proceedings............. 132

54E........ Disclosure of document with omission of protected information.... 132

54F........ Disclosure of non‑identifying information...................................... 132

54G....... Disclosure of protected information for safety, proper operation of the market etc  132

54H....... Disclosure of protected information authorised if detriment does not outweigh public benefit 133

Division 7—AEMO’s statutory funds                                                              136

55.......... Definitions...................................................................................... 136

55A....... AEMO’s Rule funds....................................................................... 136

55B....... Payments into and out of Rule funds.............................................. 136

55C....... Investment....................................................................................... 136

Part 5A—Functions and powers of Minister                                                    138

57A....... Functions and powers of Minister.................................................. 138

Part 5B—Functions and powers of Tribunal                                                   139

57B....... Functions and powers of Tribunal under this Act........................... 139

Part 5C—Consumer Advocacy Panel                                                                   140

Division 1—Establishment and functions of the Panel                            140

57CA.... Establishment of Panel.................................................................... 140

57CB..... Functions of the Panel..................................................................... 140

57CBAI Commonwealth consent to conferral of functions etc. on Panel...... 141

57CBAJ How duty is imposed...................................................................... 142

57CBAK......................... When a State/Territory energy law etc. imposes a duty  143

57CC..... Objectives....................................................................................... 143

57CD.... Independence.................................................................................. 144

Division 2—Membership of Panel                                                                      145

57CE..... Membership of Panel...................................................................... 145

57CF..... Terms and conditions of appointment............................................. 145

57CG.... Removal from office....................................................................... 146

57CH.... Vacation of office............................................................................ 146

57CI...... Acting appointments as Chairperson or Panel member................... 147

Division 3—The Panel’s Executive Director and other staff              148

57CJ...... Executive Director and other staff................................................... 148

Division 4—The Panel’s proceedings                                                               149

57CK..... Meetings of the Panel...................................................................... 149

57CL..... Disclosure of interest...................................................................... 149

Division 5—Immunity                                                                                               151

57CM.... Immunity......................................................................................... 151

Division 6—Panel funding, grants and annual report                             152

57CN.... Budgets........................................................................................... 152

57CO.... Funding for administrative costs associated with Panel.................. 153

57CP..... Grant funding.................................................................................. 154

57CQ.... Provision of funding....................................................................... 154

57CR..... Criteria and guidelines for grant allocation...................................... 155

57CS..... Implementation of determinations of Panel..................................... 155

57CT..... Annual report.................................................................................. 156

Part 6—Proceedings under this Act                                                                       158

Division 1—General                                                                                                  158

59.......... Instituting civil proceedings under this Act..................................... 158

Division 1A—Enforceable undertakings                                                        159

59A....... Enforceable undertakings................................................................ 159

Division 2—Proceedings by the AER in respect of this Act, the regulations and the Rules       160

60.......... Time limit within which AER may institute proceedings................ 160

61.......... Proceedings for breaches of a provision of this Act, the regulations or the Rules that are not offences   160

61A....... Proceedings for declaration that a person is in breach of a conduct provision          161

61B....... Actions for damages by persons for breach of conduct provisions. 162

62.......... Additional Court orders.................................................................. 163

63.......... Orders for disconnection in certain circumstances where there is no breach            163

64.......... Matters for which there must be regard in determining amount of civil penalty       163

65.......... Breach of a civil penalty provision is not an offence....................... 164

66.......... Breaches of civil penalty provisions involving continuing failure... 164

67.......... Conduct in breach of more than one civil penalty provision............ 164

68.......... Persons involved in breach of civil penalty provision or conduct provision             164

68A....... Attempt to breach civil penalty provision........................................ 165

69.......... Civil penalties payable to the Commonwealth................................. 165

Division 2A—Proceedings before, and awards etc of, Dispute resolution panels            166

69A....... Commercial Arbitration Acts apply to proceedings before Dispute resolution panels              166

Division 3—Judicial review of AEMO decisions and determinations under this Act, the regulations and the Rules                                                                                                168

70.......... Applications for judicial review...................................................... 168

71.......... Appeals on questions of law from decisions or determinations of Dispute resolution panels  168

Division 3A—Merits review and other non‑judicial review                170

Subdivision 1—Interpretation                                                                            170

71A....... Definitions...................................................................................... 170

Subdivision 2—Merits review for reviewable regulatory decisions         172

71B....... Applications for review................................................................... 172

71C....... Grounds for review......................................................................... 173

71D....... By when an application must be made............................................ 173

71E........ Tribunal must not grant leave unless serious issue to be heard and determined        173

71F........ Leave must be refused if application is about an error relating to revenue amounts below specified threshold        173

71G....... Tribunal must refuse to grant leave if submission not made or is made late             174

71H....... Tribunal may refuse to grant leave to service provider in certain cases 174

71I......... Effect of application on operation of reviewable regulatory decisions 175

71J........ Intervention by others in a review without leave............................. 175

7IK........ Leave for reviewable regulatory decision process participants........ 176

71L........ Leave for user or consumer intervener............................................ 176

71M...... Interveners may raise new grounds for review............................... 177

71N....... Parties to a review under this Subdivision...................................... 177

71O....... Matters that parties to a review may and may not raise in a review. 177

71P........ Tribunal must make determination.................................................. 178

71Q....... Target time limit for Tribunal for making a determination under this Subdivision    179

71R....... Matters to be considered by Tribunal in making determination....... 179

Subdivision 3—Tribunal review of information disclosure decisions     181

71S........ Application for review.................................................................... 181

71T........ Exclusion of public in certain cases................................................. 181

71U....... Determination in the review............................................................ 181

71V....... Tribunal must be taken to have affirmed decision if decision not made within time 182

71W...... Assistance from AER or AEMO.................................................... 182

Subdivision 4—General                                                                                        183

71X....... Costs in a review............................................................................. 183

71Y....... Amount of costs.............................................................................. 184

71Z........ Review of Division......................................................................... 184

Division 3B—Enforcement of access determinations                              185

71ZA..... Enforcement of access determinations............................................. 185

71ZB..... Consent injunctions......................................................................... 186

71ZC..... Interim injunctions.......................................................................... 186

71ZD..... Factors relevant to granting a restraining injunction........................ 186

71ZE..... Factors relevant to granting a mandatory injunction........................ 186

71ZF..... Discharge or variation of injunction or other order......................... 186

Division 4—Other civil proceedings                                                                 188

72.......... Obligations under Rules to make payments.................................... 188

Division 5—Infringement notices                                                                       190

73.......... Definition........................................................................................ 190

74.......... Power to serve a notice................................................................... 190

75.......... Form of notice................................................................................. 190

76.......... Infringement penalty....................................................................... 191

77.......... AER cannot institute proceedings while infringement notice on foot 191

78.......... Late payment of penalty.................................................................. 192

79.......... Withdrawal of notice....................................................................... 192

81.......... Payment expiates breach of civil penalty provision......................... 193

82.......... Payment not to have certain consequences...................................... 193

83.......... Conduct in breach of more than one civil penalty provision............ 193

Division 6—Miscellaneous                                                                                     194

85.......... Offences and breaches by corporations........................................... 194

86.......... Corporations also in breach if officers and employees are in breach 194

Part 7—The making of the National Electricity Rules                                195

Division 1—General                                                                                                  195

Subdivision 1—Interpretation                                                                            195

87.......... Definitions...................................................................................... 195

Subdivision 2—Rule making tests                                                                      196

88.......... Application of national electricity objective..................................... 196

88A....... AEMC must take into account form of regulation factors in certain cases                197

88B....... AEMC must take into account revenue and pricing principles in certain cases         197

89.......... AEMC must have regard to certain matters in relation to the making of jurisdictional derogations          198

Division 2—Minister initiated National Electricity Rules                     199

90.......... Minister to make initial National Electricity Rules........................... 199

90A....... Minister to make further Rules relating to distribution determinations consumer advocacy and other matters         199

90B....... Minister to make initial Rules related to AEMO’s functions under this Act             200

90C....... Minister to make initial Rules related to smart meters..................... 201

90D....... Minister may make initial Rules relating to implementation of NERL and NERR    202

Division 3—Procedure for the making of a Rule by the AEMC       204

91.......... Initiation of making of a Rule.......................................................... 204

91A....... AEMC may make more preferred Rule in certain cases.................. 205

91B....... AEMC may make Rules that are consequential to a Rule request... 205

92.......... Contents of requests for Rules........................................................ 206

92A....... Waiver of fee for Rule requests....................................................... 206

93.......... Consolidation of 2 or more Rule requests....................................... 206

94.......... Initial consideration of request for Rule.......................................... 207

94A....... AEMC may request further information from Rule proponent in certain cases        208

95.......... Notice of proposed Rule................................................................. 209

96.......... Publication of non‑controversial or urgent final Rule determination 209

96A....... “Fast track” Rules where previous public consultation by electricity market regulatory body or an AEMC review 210

97.......... Right to make written submissions and comments.......................... 212

98.......... AEMC may hold public hearings before draft Rule determination.. 212

99.......... Draft Rule determinations............................................................... 212

100........ Right to make written submissions and comments in relation to draft Rule determination       213

101........ Pre‑final Rule determination hearings............................................. 214

102........ Final Rule determinations................................................................ 214

102A..... Proposal to make more preferable Rule........................................... 215

103........ Making of Rule............................................................................... 216

104........ Operation and commencement of Rule............................................ 216

105........ Rule that is made to be published on website and made available to the public        217

106........ Evidence of the National Electricity Rules....................................... 217

Division 4—Miscellaneous provisions relating to Rule making by the AEMC  218

107........ Extensions of periods of time in Rule making procedure................ 218

107A..... AEMC may extend period of time for making of final Rule determination for further consultation         218

108........ AEMC may publish written submissions and comments unless confidential           219

108A..... AEMC must publicly report on Rules not made within 12 months of public notification of requests      220

Part 8—Safety and security of the National Electricity System            221

109........ Definitions...................................................................................... 221

110........ Appointment of jurisdictional system security coordinator............. 221

111........ Jurisdictional system security coordinator to prepare jurisdictional load shedding guidelines  222

112........ AEMO to develop load shedding procedures for each participating jurisdiction      223

113........ Exchange of information................................................................. 223

114........ AEMO to ensure maintenance of supply of sensitive loads............ 225

115........ Shedding and restoring of loads...................................................... 225

115A..... Determination of customer load shedding arrangement................... 225

116........ Actions that may be taken to ensure safety and security of national electricity system             226

117........ AEMO to liaise during an emergency............................................. 228

118........ Obstruction and non‑compliance..................................................... 228

Part 8A—Smart metering services                                                                          229

Division 1—Interpretation                                                                                     229

118A..... Definitions...................................................................................... 229

Division 2—Ministerial pilot metering determinations                           230

118B..... Ministerial pilot metering determinations........................................ 230

118C..... Consultation with interested persons required before making Ministerial pilot metering determination   231

Division 3—Ministerial smart meter rollout determinations              232

118D..... Ministerial smart meter rollout determinations................................ 232

118E...... Public consultation required before making Ministerial smart meter rollout metering determination        233

Division 4—Provisions applicable to Ministerial smart metering determinations           234

118F...... Compliance with Ministerial smart metering determinations........... 234

118G..... Minister must consult with State or Territory Energy Ministers..... 234

118H..... Content of Ministerial smart metering determinations..................... 234

118I....... Publication and giving of Ministerial smart metering determinations 234

118J...... When Ministerial smart metering determinations take effect........... 235

118K..... AEMC must publish Ministerial smart metering determination it receives on its website        235

Part 9—Immunities                                                                                                           236

119........ Immunity of AEMO and network service providers....................... 236

120........ Immunity in relation to failure to supply electricity......................... 237

120A..... Immunity in relation to use of computer software........................... 238

120B..... Immunity from liability—dispute resolution................................... 238

121........ Immunity from personal liability of AEMC officials...................... 238

122........ Immunity from personal liability of Reliability Panel...................... 239

Part 10—Access Disputes                                                                                              240

Division 1—Interpretation and application                                                  240

123........ Definitions...................................................................................... 240

124........ Part does not limit how disputes about access may be raised or dealt with               240

124A..... Constitutional limits........................................................................ 240

Division 2—Notification of access dispute                                                     241

125........ Notification of access dispute.......................................................... 241

126........ Withdrawal of notification............................................................... 241

127........ Parties to an access dispute............................................................. 242

Division 3—Access determinations                                                                   243

128........ Determination of access dispute...................................................... 243

129........ AER may require parties to mediate, conciliate or engage in an alternative dispute resolution process     243

130........ Access determination must give effect to network revenue or pricing determination                243

131........ AER may terminate access dispute in certain cases......................... 244

132........ AER must terminate access dispute if there is genuine competition 244

133........ Restrictions on access determinations............................................. 245

134........ Access determination need not require the provision of an electricity network service             246

Division 4—Variation of access determinations                                        247

135........ Variation of access determinations.................................................. 247

Division 5—Compliance with access determinations                               248

136........ Compliance with access determination............................................ 248

Division 6—Access dispute hearing procedure                                           249

137........ Hearing to be in private................................................................... 249

138........ Right to representation.................................................................... 249

139........ Procedure of AER........................................................................... 249

140........ Particular powers of AER in a hearing............................................ 250

141........ Disclosure of information............................................................... 250

142........ Power to take evidence on oath or affirmation................................ 251

143........ Failing to attend as a witness........................................................... 251

144........ Failing to answer questions etc....................................................... 251

145........ Intimidation etc................................................................................ 252

146........ Party may request AER to treat material as confidential.................. 252

147........ Costs............................................................................................... 253

148........ Outstanding costs are a debt due to party awarded the costs........... 255

Division 7—Joint access dispute hearings                                                     256

149........ Definition........................................................................................ 256

150........ Joint dispute hearing....................................................................... 256

151........ Consulting the parties...................................................................... 256

152........ Constitution and procedure of AER for joint dispute hearings........ 257

153........ Record of proceedings etc............................................................... 257

Division 8—Miscellaneous matters                                                                   258

154........ Correction of access determinations for clerical mistakes etc.......... 258

155........ Subsequent network service provider bound by access determinations 258

156........ Regulations about the charges to be paid by parties to access dispute for AER’s costs in dispute hearing               258

Part 11—General                                                                                                               260

157........ Preventing or hindering access........................................................ 260

158........ Failure to make a decision under this Act or the Rules within time does not invalidate the decision        261

159........ Regulations..................................................................................... 262

Schedule 1—Subject matter for the National Electricity Rules         263

Registration.................................................................................................... 263

Participant fees............................................................................................... 263

Wholesale exchange....................................................................................... 263

Operation of generation, transmission and distribution systems.................... 264

Transmission system revenue and pricing...................................................... 264

Distribution system revenue and pricing........................................................ 266

Regulatory economic methodologies.............................................................. 268

Electricity network services............................................................................ 269

Sale and supply of electricity to retail customers............................................ 269

Metering 270

Disputes in relation to the Rules..................................................................... 270

Access disputes.............................................................................................. 270

AEMO.. 270

National transmission planning...................................................................... 271

Miscellaneous................................................................................................ 271

Schedule 2—Miscellaneous provisions relating to interpretation    273

Part 1—Preliminary                                                                                                         273

1............ Displacement of Schedule by contrary intention............................. 273

Part 3—Terms and references                                                                                   274

10.......... Definitions...................................................................................... 274

Part 6A—Evidentiary matters                                                                                   277

Division 1—Publication on websites                                                                 277

31AA.... Definitions...................................................................................... 277

31AB.... Publication of relevant AER decisions on websites........................ 277

Division 2—Evidentiary certificates                                                                 278

31AC.... Definitions...................................................................................... 278

31AD.... Evidentiary certificates—AER........................................................ 278

31AE..... Evidentiary certificates—AEMC..................................................... 279

31AF..... Evidentiary certificates—AEMO.................................................... 279

Part 7—Effect of repeal, amendment or expiration                                     281

31.......... Time of Act, the regulations or Rules ceasing to have effect........... 281

 


A Bill for an Act to continue the National Electricity Law as a Commonwealth law, and for other purposes

The Parliament of Australia enacts:

Part 1Preliminary

Division 1General

1  Short title

                   This Act may be cited as the National Electricity Act 2012.

1A  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 1A and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 1B to 159 and Schedules 1 and 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.


 

Division 2Application of this Act

1B  Act binds the Crown

                   This Act binds the Crown in each of its capacities.

1D  Extra‑territorial application

                   It is the intention of the Parliament that the operation of this Act should, as far as possible, include operation in relation to the following:

                     (a)  things situated in or outside Australia;

                     (b)  acts, transactions and matters done, entered into or occurring in or outside Australia;

                     (c)  things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be covered or otherwise affected by the law of a State, a Territory or a foreign country.

1E  Concurrent operation

                   Except as provided by the regulations, this Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

1F  Act not to apply so as to exceed Commonwealth power

             (1)  Unless the contrary intention appears, if a provision of this Act:

                     (a)  would, apart from this section, have an application (an invalid application) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            because of which the provision exceeds the Commonwealth’s legislative power; and

                     (b)  also has at least one application (a valid application) in relation to:

                              (i)  one or more particular persons, things, matters, places, circumstances or cases; or

                             (ii)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

                            that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

             (2)  Despite subsection (1), the provision is not to have a particular valid application if:

                     (a)  apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

                     (b)  the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

             (3)  Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

             (4)  This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

1G  Acquisition of property

                   This Act, or any instrument made under this Act, does not apply to the extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

1H  Commonwealth not to discriminate or give preference

                   A power conferred by this Act must not be exercised in such a way as to:

                     (a)  discriminate between States or parts of States within the meaning of subparagraph 51(ii) of the Constitution; or

                     (b)  give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.


 

Division 3Definitions

2  Definitions

             (1)  In this Act:

access determination means a determination of the AER under Part 10.

access dispute has the meaning given by section 2A.

additional advisory functions: AEMO’s additional advisory functions are as set out in subsection 50B(1).

additional Minister initiated Rules means Rules made under section 90A, 90B or 90C by the Minister.

adoptive jurisdiction means (according to context):

                     (a)  a State or Territory for which AEMO is authorised to exercise its additional advisory functions; or

                     (b)  a State or Territory for which AEMO is authorised to exercise its declared network functions.

AEMC means the Australian Energy Market Commission established under Part 3A.

AEMC initiated Rule means a Rule of the kind referred to in subsection 91(2).

AEMO amendments means:

                     (a)  the amendments to the Schedule to the National Electricity (South Australia) Act 1996 of South Australia made by the National Electricity (South Australia) (National Electricity Law—Australian Energy Market Operator) Amendment Act 2009 of South Australia; and

                     (b)  the amendments to the Rules referred to in that Schedule made by the National Electricity (South Australia) (National Electricity Rules—Australian Energy Market Operator) Amendment Rules 2009 of South Australia.

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010.

AER economic regulatory decision means a decision (however described) of the AER under this Act or the Rules performing or exercising an AER economic regulatory function or power.

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Act or the Rules that relates to:

                     (a)  the economic regulation of services provided by:

                              (i)  a regulated distribution system operator by means of, or in connection with, a distribution system; or

                             (ii)  a regulated transmission system operator or AEMO by means of, or in connection with, a transmission system; or

                     (b)  the preparation of a network service provider performance report; or

                     (c)  the making of a transmission determination or distribution determination; or

                     (d)  an access determination.

associate in relation to a person has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 if sections 13, 16(2) and 17 did not form part of that Act.

augmentation of a transmission or distribution system means work to enlarge the system or to increase its capacity to transmit or distribute electricity.

augmentation connection agreement means an agreement for connecting an augmentation to a declared shared network.

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327).

Note:          Before its change of name, AEMO was known as NEMMCO.

changeover date means 1 July 2009 or some other date (before the commencement of this Act) fixed as the changeover date by a notice in the South Australian Government Gazette published by the South Australian Minister on the recommendation of the MCE.

civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Act or a liability for the costs of a proceeding.

civil penalty means:

                     (a)  in the case of a breach of a civil penalty provision (other than a rebidding civil penalty provision) by:

                              (i)  a natural person:

                                        (A)  an amount not exceeding 200 penalty units; and

                                        (B)  an amount not exceeding 20 penalty units for every day during which the breach continues; or

                             (ii)  a body corporate:

                                        (A)  an amount not exceeding 1,000 penalty units; and

                                        (B)  an amount not exceeding 100 penalty units for every day during which the breach continues; or

                     (b)  in the case of a breach of a rebidding civil penalty provision by any person:

                              (i)  an amount not exceeding 10,000 penalty units; and

                             (ii)  an amount not exceeding 500 penalty units for every day during which the breach continues.

civil penalty provision: see subsection 2AA(1).

conduct provision: see subsection 2AA(2).

connection service means a connection service within the meaning of the Rules.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means any of the following:

                     (a)  trade or commerce among the States;

                     (b)  trade or commerce between Australia and places outside Australia;

                     (c)  trade or commerce between a State and a Territory, or between 2 Territories.

court means any court.

Court means any of the following courts:

                     (a)  the Federal Court;

                     (b)  the Supreme Court of a State or Territory.

declared network functions: AEMO’s declared network functions are as set out in subsection 50C(1).

derogation means a jurisdictional derogation or participant derogation.

declared power system of an adoptive jurisdiction has the meaning given by an Act of the adoptive jurisdiction.

declared shared network of an adoptive jurisdiction means the jurisdiction’s declared transmission system excluding any part of it that is a connection asset within the meaning of the Rules.

declared transmission system of an adoptive jurisdiction has the meaning given by an Act of the adoptive jurisdiction and includes any augmentation of the defined declared transmission system.

declared transmission system operator of an adoptive jurisdiction has the meaning given by an Act of the adoptive jurisdiction.

direct control network service has the meaning given by section 2B.

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute.

distribution determination means a determination of the AER under the Rules that regulates any 1 or more of the following:

                     (a)  the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a distribution system charges or may charge for those services;

                     (b)  the revenue an owner, controller or operator of a distribution system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules.

distribution reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a distribution system.

distribution service standard means a standard relating to the standard of services provided by a regulated distribution system operator by means of, or in connection with, a distribution system imposed:

                     (a)  by or under jurisdictional electricity legislation; or

                     (b)  by the AER in accordance with the Rules.

distribution system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or as forming part of, a distribution system.

distribution system safety duty means a duty or requirement under a law of a State or Territory, or any instrument made or issued under or for the purposes of that law, relating to:

                     (a)  the safe distribution of electricity in that State or Territory; or

                     (b)  the safe operation of a distribution system in that State or Territory.

draft Rule determination means a determination of the AEMC under section 99.

electricity network service means a service provided by means of, or in connection with, a transmission system or distribution system.

electricity services means services that are necessary or incidental to the supply of electricity to consumers of electricity, including:

                     (a)  the generation of electricity; and

                     (b)  electricity network services; and

                     (c)  the sale of electricity.

end user means a person who acquires electricity for consumption purposes, and includes a retail customer.

energy ombudsman has the same meaning as in the National Energy Retail Law.

Federal Court means the Federal Court of Australia.

final Rule determination means a determination of the AEMC under section 102.

form of regulation factors has the meaning given by section 2F.

general market information order means an order under paragraph 53(1)(a) requiring information from persons of a class specified in the order.

general regulatory information order has the meaning given by section 28C.

initial National Electricity Rules means the National Electricity Rules made under section 90.

interconnected national electricity system means the interconnected transmission and distribution system used to convey and control the conveyance of electricity to which are connected:

                     (a)  generating systems and other facilities; and

                     (b)  loads settled through the wholesale exchange operated and administered by AEMO under this Act and the Rules.

jurisdictional derogation means a Rule made at the request of a Minister of a State or Territory that:

                     (a)  exempts, in a specified case or class of cases, a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, from complying with a provision, or a part of a provision, of the Rules in the State or Territory to which the derogation relates; or

                     (b)  modifies or varies the application of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, in the State or Territory to which the derogation relates.

jurisdictional electricity legislation means an Act of a State or Territory, or any instrument made or issued under or for the purposes of that Act, that regulates the generation, transmission, distribution, supply or sale of electricity in that jurisdiction.

Jurisdictional Energy Law means a law of the Commonwealth, or a State or Territory, that relates to energy and is prescribed by regulation for the purposes of this definition.

jurisdictional regulator means the following:

                     (a)  in New South Wales:

                              (i)  the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales; or

                             (ii)  to the extent that functions or powers of the Independent Pricing and Regulatory Tribunal of New South Wales under this Act are transferred to the AER by or under a law of New South Wales, the AER;

                     (b)  in Victoria:

                              (i)  the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria; or

                             (ii)  to the extent that functions or powers of that Essential Services Commission under this Act are transferred to the AER by or under a law of Victoria, the AER;

                     (c)  in Queensland:

                              (i)  the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland; or

                             (ii)  to the extent that functions or powers of the Queensland Competition Authority under this Act are transferred to the AER by or under a law of Queensland, the AER;

                     (d)  in South Australia:

                              (i)  the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia; or

                             (ii)  to the extent that functions or powers of that Essential Services Commission under this Act are transferred to the AER by or under a law of South Australia, the AER;

                     (e)  in the Australian Capital Territory:

                              (i)  the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory; or

                             (ii)  to the extent that functions or powers of the Independent Competition and Regulatory Commission for the Australian Capital Territory under this Act are transferred to the AER by or under a law of the Australian Capital Territory, the AER;

                    (ea)  in any other State or Territory—the AER;

                      (f)  if a person or body referred to in paragraphs (a) to (e) is abolished under an Act of the relevant State or Territory and another person or body is established under an Act of that State or Territory with functions and powers that correspond to the functions and powers of the person or body referred to in paragraphs (a) to (e), that other person or body;

                     (g)  if the functions and powers of a person or body referred to in paragraphs (a) to (e) are transferred to another person or body established under an Act of the relevant State or Territory, that other person or body;

                     (h)  any other person or body established under an Act of a State or Territory that is prescribed by the regulations as a jurisdictional regulator of that State or Territory.

jurisdictional system security coordinator means a person appointed under section 110.

local energy instrument means a regulation, rule, order, declaration or other instrument if:

                     (a)  the instrument is made or has effect under a law of a State or Territory; and

                     (b)  the law of the State or Territory applies a uniform energy law as a law of its own jurisdiction.

market information instrument means a general market information order or a market information notice.

market information notice means a notice under paragraph 53(1)(b) requiring information from the person to whom the notice is addressed.

MCE means the Ministerial Council on Energy established on 8 June 2001, being the Council of Ministers with primary carriage of energy matters at national level comprising the Ministers representing the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, acting in accordance with its own procedures.

MCE directed review means a review conducted by the AEMC under Division 4 of Part 4.

MCE statement of policy principles means a statement of policy principles issued by the MCE under section 8.

MCE (States and Territories) means the MCE when making decisions, in accordance with its procedures, with the participation only of Ministers representing the States and Territories.

Ministerial Gazette notice means a notice in the Gazette published by the Minister on the recommendation of the MCE.

Ministerial pilot metering determination means a determination made under section 118B.

Ministerial smart metering determination means:

                     (a)  a Ministerial smart meter rollout determination; or

                     (b)  a Ministerial pilot metering determination.

Ministerial smart meter rollout determination means a determination made under section 118D.

National Electricity Code means the code of conduct called the National Electricity Code approved, in accordance with subsection 6(1) of the old National Electricity Law, as the initial Code for the purposes of that Law, and as amended from time to time in accordance with its terms and the old National Electricity Law.

national electricity legislation means this Act and the regulations.

national electricity market means:

                     (a)  the wholesale exchange operated and administered by AEMO under this Act and the Rules; and

                     (b)  the national electricity system.

national electricity objective means the objective set out in section 7.

National Electricity Rules or Rules means:

                     (a)  the initial National Electricity Rules; and

                   (ab)  additional Minister initiated Rules; and

                     (b)  Rules made by the AEMC under this Act, including Rules that amend or revoke:

                              (i)  the initial National Electricity Rules or additional Minister initiated Rules; or

                             (ii)  Rules made by it.

national electricity system means:

                     (a)  the generating systems and other facilities owned, controlled or operated in the States and Territories connected to the interconnected national electricity system; and

                     (b)  the interconnected national electricity system.

National Energy Law means:

                     (a)  the national electricity legislation; or

                     (b)  the National Electricity Rules; or

                     (c)  a National Gas Application Act; or

                     (d)  the National Gas Law; or

                     (e)  the National Gas Regulations; or

                      (f)  the National Gas Rules; or

                     (g)  a National Energy Retail Law Application Act; or

                     (h)  the National Energy Retail Law; or

                      (i)  the National Energy Retail Regulations; or

                      (j)  the National Energy Retail Rules.

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia.

National Energy Retail Law Application Act means:

                     (a)  the National Energy Retail Law (South Australia) Act 2011 of South Australia; or

                     (b)  any other Act of a State or Territory that applies the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction.

National Energy Retail Rules has the same meaning as in the National Energy Retail Law.

National Gas Application Act means:

                     (a)  the National Gas (South Australia) Act 2008 of South Australia; or

                     (b)  the Australian Energy Market Act 2004; or

                     (c)  any other Act of a State or Territory that applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction.

National Gas Law means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia.

National Gas Regulations means regulations that, under a National Gas Application Act, apply as regulations for the purposes of a National Gas Law.

National Gas Rules has the same meaning as in the National Gas Law.

national transmission grid means the transmission systems that form part of the interconnected national electricity system.

National Transmission Planner means AEMO acting in the performance of NTP functions.

negotiated network service has the meaning given by section 2C.

NEMMCO means National Electricity Market Management Company Limited (ACN 072 010 327).

Note:          NEMMCO becomes AEMO (without change of corporate identity). A reference to NEMMCO is a reference to AEMO before its change of name.

network agreement means the agreement required by subsection 50D(1).

network revenue or pricing determination means a distribution determination or a transmission determination.

network service provider means a Registered participant registered for the purposes of subsection 11(2) that owns, controls or operates a transmission system or distribution system that forms part of the interconnected national electricity system.

network service provider performance report means a report prepared by the AER under section 28V.

network service user means a user who is provided with an electricity network service.

NTP functions means the functions described in subsection 49(2).

offence provision means a provision of this Act the breach or contravention of which by a person exposes that person to a finding of guilt by a court.

officer has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001.

old National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time before the commencement of section 12 of the National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 of South Australia.

Panel means the Consumer Advocacy Panel established under Part 5C.

participant derogation means a Rule made at the request of a person who is conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or AEMO, that:

                     (a)  exempts, in a specified case or class of cases, that person or a class of person of which that person is a member, or AEMO, from complying with a provision, or a part of a provision, of the Rules, including a jurisdictional derogation; or

                     (b)  modifies or varies the application of a provision of the Rules, including a jurisdictional derogation, (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to that person or class of person of which that person is a member, or AEMO;

participating jurisdiction means a participating jurisdiction within the meaning of the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force at any time before this Act commenced.

power system security means the safe scheduling and dispatch, and operation and control, of the national electricity system.

prospective network service user means a person who seeks or wishes to be provided with an electricity network service.

protected information has the meaning given by subsection 54(1).

rebidding civil penalty provision means a provision of the Rules that is prescribed by the regulations to be a rebidding civil penalty provision.

Registered participant means a person who is registered as such by AEMO under this Act and the Rules or is registered as such by AEMO otherwise in accordance with the Rules.

regulated distribution system operator means an owner, controller or operator of a distribution system:

                     (a)  who is a Registered participant; and

                     (b)  whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a distribution determination.

regulated network service provider means:

                     (a)  a regulated distribution system operator; or

                     (b)  a regulated transmission system operator.

regulated transmission system operator means an owner, controller or operator of a transmission system:

                     (a)  who is a Registered participant; and

                     (b)  whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a transmission determination.

regulatory information instrument means a general regulatory information order or a regulatory information notice.

regulatory information notice has the meaning given by section 28D.

regulatory obligation or requirement has the meaning given by section 2D.

regulatory payment has the meaning given by section 2E.

relevant court means:

                     (a)  the Federal Court; or

                     (b)  the Supreme Court of a State or Territory in which any part of the national electricity system is located.

Reliability Panel means the panel of persons established by the AEMC under section 38.

retail customer means a person to whom electricity is sold by a retailer, and supplied in respect of connection points, for the premises of the person, and includes a person (or a person who is of a class of persons) prescribed by the Rules for the purposes of this definition.

retailer means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law in respect of the sale of electricity.

revenue and pricing principles means the principles set out in section 7A.

Rule dispute means a dispute between persons in relation to a matter or thing arising under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules.

shared network capability service means a service described in subsection 50D(1) as a shared network capability service.

shared transmission service means a service classified under the Rules as a shared transmission service.

smart meter amendments means the amendments to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia made by section 5 of the National Electricity (South Australia) (Smart Meters) Amendment Act 2009 of South Australia.

South Australian Energy Retail Legislation means:

                     (a)  the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and

                     (b)  any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.

The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.

South Australian Gas Legislation means:

                     (a)  the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and

                     (b)  any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

State or Territory Energy Minister means a Minister who is a Minister referred to in section 6.

State/Territory energy law means any of the following laws:

                     (a)  a uniform energy law that applies as a law of a State or Territory;

                     (b)  a law of a State or Territory that applies a law mentioned in paragraph (a) as a law of its own jurisdiction;

                     (c)  any other provisions of a law of a State or Territory that:

                              (i)  relate to energy; and

                             (ii)  are prescribed by the regulations for the purposes of this paragraph;

                            being those provisions as in force from time to time.

statutory functions, in relation to AEMO, means functions or powers conferred under:

                     (a)  this Act or the Rules; or

                     (b)  the National Gas Law, the National Gas Rules, or related subordinate legislation.

superseded jurisdictional rules means:

                     (a)  legislation (including subordinate legislation) of a participating jurisdiction regulating the electricity industry in that jurisdiction that:

                              (i)  was in force immediately before the changeover date; and

                             (ii)  was superseded by the AEMO amendments; and

                     (b)  a licence condition governing the activities of the licensee in, or in relation to, an electricity market in a participating jurisdiction:

                              (i)  in force immediately before the changeover date; and

                             (ii)  superseded by the AEMO amendments; and

                     (c)  a guideline, code, standard or other instrument governing the operation or regulation of an electricity market in a participating jurisdiction:

                              (i)  made or issued by the jurisdictional regulator; and

                             (ii)  in force immediately before the changeover date; and

                            (iii)  superseded by the AEMO amendments.

transmission determination means a determination of the AER under the Rules that regulates any 1 or more of the following:

                     (a)  the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a transmission system charges or may charge for those services;

                     (b)  the revenue an owner, controller or operator of a transmission system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules.

transmission reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a transmission system.

transmission service standard means a standard relating to the standard of services provided by a regulated transmission system operator by means of, or in connection with, a transmission system imposed:

                     (a)  by or under jurisdictional electricity legislation; or

                     (b)  by the AER in accordance with the Rules.

transmission system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or forming part of, a transmission system.

transmission system safety duty means a duty or requirement under an Act of a State or Territory, or any instrument made or issued under or for the purposes of that Act, relating to:

                     (a)  the safe transmission of electricity in that State or Territory; or

                     (b)  the safe operation of a transmission system in that State or Territory.

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal.

uniform energy law means:

                     (a)  the South Australian Gas Legislation; or

                     (b)  the Western Australian Gas Legislation; or

                     (c)  the South Australian Energy Retail Legislation; or

                     (d)  provisions of a law of a State or Territory that:

                              (i)  relate to energy; and

                             (ii)  are prescribed by the regulations for the purposes of this subparagraph;

                            being those provisions as in force from time to time.

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments came into force.

Western Australian Gas Legislation means:

                     (a)  the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and

                     (b)  any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

             (2)  A reference in this Act to an end user includes a reference to a prospective end user.

2A  Meaning of access dispute

                   An access dispute is:

                     (a)  a dispute between a network service user (or prospective network service user) and a network service provider about an aspect of access to an electricity network service specified by the Rules to be an aspect to which Part 10 applies; or

                     (b)  without limiting paragraph (a)—a dispute between a retail customer (or other person specified by the Rules) and a regulated distribution system operator about an aspect of access to a connection service specified by the Rules to be an aspect to which Part 10 applies.

2AA  Meaning of civil penalty provision and conduct provision

             (1)  A civil penalty provision is:

                     (a)  a provision of this Act specified in the table; or

                     (b)  a rebidding civil penalty provision; or

                     (c)  a provision of this Act (other than an offence provision) or the Rules that is prescribed by the regulations to be a civil penalty provision.

 

Table of civil penalty provisions

Provision

Section heading

Subsections 11(1), (2), (3) and (4)

Electricity market activities in this jurisdiction

Section 14A

Regulated transmission system operator must comply with transmission determination

Section 14B

Regulated distribution system operator must comply with distribution determination

Section 28N

Compliance with regulatory information notice that is served

Section 28O

Compliance with general regulatory information order

Subsection 50D(1)

Network agreement

Subsections 50F(1), (4) and (5)

Augmentation

Subsections 53C(3) and (4)

Compliance with market information instrument

Section 136

Compliance with access determination

Section 157(1)

Preventing or hindering access

 

             (2)  A conduct provision is a provision of this Act (other than an offence provision) or the Rules that is prescribed by the regulations to be a conduct provision.

2B  Meaning of direct control network service

                   A direct control network service is an electricity network service:

                     (a)  the Rules specify as a service the price for which, or the revenue to be earned from which, must be regulated under a distribution determination or transmission determination; or

                     (b)  if the Rules do not do so, the AER specifies, in a distribution determination or transmission determination, as a service the price for which, or the revenue to be earned from which, must be regulated under the distribution determination or transmission determination.

2C  Meaning of negotiated network service

                   A negotiated network service is an electricity network service:

                     (a)  that is not a direct control network service; and

                     (b)  that:

                              (i)  the Rules specify as a negotiated network service; or

                             (ii)  if the Rules do not do so, the AER specifies as a negotiated network service in a distribution determination or transmission determination.

2D  Meaning of regulatory obligation or requirement

             (1)  A regulatory obligation or requirement is any of the following:

                     (a)  in relation to the provision of an electricity network service by a regulated network service provider:

                              (i)  a distribution system safety duty or transmission system safety duty; or

                             (ii)  a distribution reliability standard or transmission reliability standard; or

                            (iii)  a distribution service standard or transmission service standard; or

                     (b)  an obligation or requirement under:

                              (i)  this Act or Rules; or

                            (ia)  the National Energy Retail Law or the National Energy Retail Rules; or

                             (ii)  an Act of a State or Territory, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a regulated network service provider; or

                            (iii)  an Act of a State or Territory, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in the State or Territory by a regulated network service provider; or

                            (iv)  an Act of a State or Territory or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or

                             (v)  an Act of a State or Territory, or any instrument made or issued under or for the purposes of that Act (other than an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a regulated network service provider, of electricity network services that are the subject of a distribution determination or transmission determination.

             (2)  A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation:

                     (a)  for a breach of:

                              (i)  a distribution system safety duty or transmission system safety duty; or

                             (ii)  a distribution reliability standard or transmission reliability standard; or

                            (iii)  a distribution service standard or transmission service standard; or

                     (b)  under this Act or the Rules, the National Energy Retail Law or the National Energy Retail Rules or an Act or an instrument referred to in subparagraphs (1)(b)(ii) to (v).

Note 1:       See also paragraph 7A(2)(b).

Note 2:       The RoLR cost recovery scheme is dealt with under Part 6 of the National Energy Retail Law.

2E  Meaning of regulatory payment

                   A regulatory payment is a sum that a regulated network service provider has been required or allowed to pay to a network service user or an end user for a breach of, as the case requires:

                     (a)  a distribution reliability standard or transmission reliability standard; or

                     (b)  a distribution service standard or transmission service standard;

because it was efficient for the regulated network service provider (in terms of the provider’s overall business) to pay that sum.

Note:          See also paragraph 7A(2)(b).

2F  Form of regulation factors

                   The form of regulation factors are:

                     (a)  the presence and extent of any barriers to entry in a market for electricity network services;

                     (b)  the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other electricity network service provided by the network service provider;

                     (c)  the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other service provided by the network service provider in any other market;

                     (d)  the extent to which any market power possessed by a network service provider is, or is likely to be, mitigated by any countervailing market power possessed by a network service user or prospective network service user;

                     (e)  the presence and extent of any substitute, and the elasticity of demand, in a market for an electricity network service in which a network service provider provides that service;

                      (f)  the presence and extent of any substitute for, and the elasticity of demand in a market for, electricity or gas (as the case may be);

                     (g)  the extent to which there is information available to a prospective network service user or network service user, and whether that information is adequate, to enable the prospective network service user or network service user to negotiate on an informed basis with a network service provider for the provision of an electricity network service to them by the network service provider.

3  Interpretation generally

                   Schedule 2 to this Act applies to this Act, the regulations and the Rules and any other statutory instrument made under this Act.

6  State or Territory Energy Ministers

                   The State or Territory Energy Minister, of a State or Territory, is the Minister (if any) representing the State or Territory concerned on the MCE.

6A  Nominated distributors

             (1)  The regulations may:

                     (a)  nominate an entity, being an entity that is licensed or otherwise authorised under the jurisdictional electricity legislation of a State or Territory to operate a distribution system but that is not a regulated distribution system operator (within the meaning of this Act) in respect of that distribution system, as an entity to which this section applies (the nominated distributor); and

                     (b)  apply to the nominated distributor specified provisions of the Rules that relate to the following matters:

                              (i)  the provision of connection services to retail customers;

                             (ii)  retail support obligations between regulated distribution system operators and retailers;

                            (iii)  credit support arrangements between regulated distribution system operators and retailers.

             (2)  The application of any such specified provisions of the Rules to the nominated distributor is subject to such modifications as may be specified in the regulation.

             (3)  The nominated distributor:

                     (a)  must comply with the Rules to the extent that the Rules are applied by the regulation to the nominated distributor; and

                     (b)  may, to the extent that the Rules apply to the nominated distributor, be proceeded against under this Act for any breach of those Rules.

             (4)  A nomination of an entity by a regulation may be made for:

                     (a)  the whole or a specified part of a geographical area; or

                     (b)  the whole or a specified part of a distribution system that is owned, controlled or operated by the entity;

or for both.

             (5)  The regulations must not nominate an entity for the purposes of this section unless:

                     (a)  the entity is a constitutional corporation; or

                     (b)  the specified provisions of the Rules that are applied to the entity apply, or are applied, in the course of, or for the purposes of, constitutional trade or commerce.

             (6)  Before the Governor‑General makes a regulation for the purposes of subsection (1), the Minister must be satisfied that the State or Territory Energy Minister for the State or Territory concerned agrees to the nomination of the entity and the application of the specified provisions of the Rules to the entity.

7  National electricity objective

                   The objective of this Act is to promote efficient investment in, and efficient operation and use of, electricity services for the long term interests of consumers of electricity with respect to:

                     (a)  price, quality, safety, reliability and security of supply of electricity; and

                     (b)  the reliability, safety and security of the national electricity system.

7A  Revenue and pricing principles

             (1)  The revenue and pricing principles are the principles set out in subsections (2) to (7).

             (2)  A regulated network service provider should be provided with a reasonable opportunity to recover at least the efficient costs the operator incurs in:

                     (a)  providing direct control network services; and

                     (b)  complying with a regulatory obligation or requirement or making a regulatory payment.

             (3)  A regulated network service provider should be provided with effective incentives in order to promote economic efficiency with respect to direct control network services the operator provides. The economic efficiency that should be promoted includes:

                     (a)  efficient investment in a distribution system or transmission system with which the operator provides direct control network services; and

                     (b)  the efficient provision of electricity network services; and

                     (c)  the efficient use of the distribution system or transmission system with which the operator provides direct control network services.

             (4)  Regard should be had to the regulatory asset base with respect to a distribution system or transmission system adopted:

                     (a)  in any previous:

                              (i)  as the case requires, distribution determination or transmission determination; or

                             (ii)  determination or decision under the National Electricity Code or jurisdictional electricity legislation regulating the revenue earned, or prices charged, by a person providing services by means of that distribution system or transmission system; or

                     (b)  in the Rules.

             (5)  A price or charge for the provision of a direct control network service should allow for a return commensurate with the regulatory and commercial risks involved in providing the direct control network service to which that price or charge relates.

             (6)  Regard should be had to the economic costs and risks of the potential for under and over investment by a regulated network service provider in, as the case requires, a distribution system or transmission system with which the operator provides direct control network services.

             (7)  Regard should be had to the economic costs and risks of the potential for under and over utilisation of a distribution system or transmission system with which a regulated network service provider provides direct control network services.

8  MCE statements of policy principles

             (1)  Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the exercise and performance by the AEMC of its functions and powers in:

                     (a)  making a Rule; or

                     (b)  conducting a review under section 45.

             (2)  Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national electricity objective.

             (3)  As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC.

             (4)  The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement.

9  National Electricity Rules

                   A Rule made under this Act is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the Rule.

10A  Modification of corporations legislation by National Electricity Rules

             (1)  A relevant provision of a Rule made under this Act may modify the operation of the corporations legislation in relation to the provisions of Chapter 5 of the Corporations Act 2001.

             (2)  In this section:

corporations legislation has the meaning given by section 9 of the Corporations Act 2001.

relevant provision, of a Rule, means a provision that relates to any of the following:

                     (a)  the application by AEMO of money in any security deposit fund;

                     (b)  the functions of AEMO under procedures relating to defaults by retailers;

                     (c)  the application (or drawing on) of credit support held by a regulated distribution system operator in respect of a retailer who is the subject of a RoLR event within the meaning of Part 6 of the National Energy Retail Law.


 

Part 2Participation in the National Electricity Market

Division 1Registration

11  Electricity market activities

             (1)  A person must not engage in the activity of owning, controlling or operating a generating system connected to the interconnected national electricity system unless:

                     (a)  the person is a Registered participant in relation to that activity; or

                     (b)  the person is the subject of a derogation that exempts the person, or is otherwise exempted by AEMO, from the requirement to be a Registered participant in relation to that activity under this Act and the Rules.

Note:          Subsection (1) is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).

             (2)  A person must not engage in the activity of owning, controlling or operating a transmission system or distribution system that forms part of the interconnected national electricity system unless:

                     (a)  the person is a Registered participant in relation to that activity; or

                     (b)  the person is the subject of a derogation that exempts the person, or is otherwise exempted by the AER, from the requirement to be a Registered participant in relation to that activity under this Act and the Rules.

Note:          Subsection (2) is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).

             (3)  A person, other than AEMO, must not engage in the activity of operating or administering a wholesale exchange for electricity in relation to the national electricity system or any part of it.

Note:          Subsection (3) is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).

             (4)  A person must not engage in the activity of purchasing electricity directly through a wholesale exchange in relation to the national electricity system or any part of it unless:

                     (a)  the person is a Registered participant in relation to that activity; or

                     (b)  the person is the subject of a derogation that exempts the person, or is otherwise exempted by AEMO, from the requirement to be a Registered participant in relation to that activity under this Act and the Rules.

Note:          Subsection (4) is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).

12  Registration or exemption of persons participating in national electricity market

             (1)  A person engaged or proposing to engage in an activity referred to in subsection 11(1), (2) or (4) may request AEMO to register that person as a Registered participant in relation to that activity for the purposes of this Act and the Rules.

             (2)  A person engaged or proposing to engage in an activity referred to in subsection 11(1) or (4) may request AEMO to exempt that person from registering as a Registered participant in relation to that activity for the purposes of this Act and the Rules.

             (3)  A request under subsection (1) or (2) must be in accordance with the Rules.

             (4)  On receipt of a request under subsection (1) to be registered as a Registered participant, AEMO may, subject to the Rules, register the person in such categories of registration as are specified in the Rules.

             (5)  On receipt of a request under subsection (2) to be exempted from being registered as a Registered participant, AEMO may, subject to the Rules, grant the person the exemption.

             (6)  Registration as a Registered participant under subsection (4) or an exemption granted under subsection (5) may be subject to such terms and conditions as AEMO considers appropriate in accordance with the Rules.

13  Exemptions for transmission system or distribution system owners, controllers and operators

             (1)  A person engaged or proposing to engage in the activity referred to in subsection 11(2) may request the AER to exempt that person from registering as a Registered participant in relation to that activity for the purposes of this Act and the Rules.

             (2)  A request under subsection (1) must be in accordance with the Rules.

             (3)  On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the person the exemption.

             (4)  An exemption granted under subsection (3) may be subject to such terms and conditions as the AER considers appropriate in accordance with the Rules.

14  Evidence of registration or exemption

             (1)  A certificate signed by an authorised officer certifying that a person named in the certificate is a Registered participant, or has been granted an exemption from registration under section 12 or 13 is evidence of the registration or exemption.

Note:          A certificate may be in respect of a Registered participant registered in accordance with section 12 and the Rules, or in accordance with the Rules alone.

             (2)  In this section:

authorised officer means:

                     (a)  for issuing a certificate that a person is a Registered participant or exempted from registration under section 12—AEMO’s CEO or a person authorised by AEMO’s CEO to issue certificates under this section; or

                     (b)  for issuing a certificate that a person is exempted from registration under section 13—a member of the AER.


 

Division 2Regulated network service providers

14A  Regulated transmission system operator must comply with transmission determination

                   A regulated transmission system operator must comply with a transmission determination that applies to the electricity network services provided by that operator.

Note:          Section 14A is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).

14B  Regulated distribution system operator must comply with distribution determination

                   A regulated distribution system operator must comply with a distribution determination that applies to the electricity network services provided by that operator.

Note:          Section 14B is a civil penalty provision. See the definition of civil penalty provision in subsection 2AA(1).


 

Part 3Functions and powers of the Australian Energy Regulator

Division 1General

15  Functions and powers of AER

             (1)  The AER has the following functions and powers:

                     (a)  to monitor compliance by:

                              (i)  Registered participants and other persons with this Act, the regulations and the Rules; and

                             (ii)  regulated network service providers with network revenue or pricing determinations; and

                            (iii)  AEMO with this Act, the Rules, the regulations or a transmission determination; and

                     (b)  to investigate breaches or possible breaches of provisions of this Act, the regulations or the Rules, including offences against this Act; and

                     (c)  to institute and conduct proceedings:

                              (i)  against persons under section 61 of this Act or section 44AAG of the Competition and Consumer Act 2010; or

                             (ii)  in respect of Registered participants under section 63 of this Act; or

                            (iii)  against persons under section 68 of this Act; or

                            (iv)  in relation to offences against this Act; and

                     (d)  to institute and conduct appeals from decisions in proceedings referred to in paragraph (c); and

                     (e)  to exempt persons proposing to engage, or engaged, in the activity of owning, controlling or operating a transmission system or distribution system forming part of the interconnected transmission and distribution system from being registered as Registered participants; and

                    (ea)  to prepare and publish reports on the financial and operational performance of network service providers in providing electricity network services; and

                   (eb)  to approve compliance programs of service providers relating to compliance by service providers with this Act or the Rules; and

                      (f)  AER economic regulatory functions or powers; and

                     (g)  any other functions and powers conferred on it under this Act and the Rules.

             (2)  The AER has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

             (3)  However, the AER:

                     (a)  cannot make a transmission determination:

                              (i)  regulating the revenue AEMO earns or may earn; or

                             (ii)  regulating the price of electricity network services provided by AEMO unless the services are shared transmission services provided by means of, or in connection with, a declared shared network; and

                     (b)  cannot regulate by transmission determination or in any other way the price of any other service provided by AEMO, or the amount of any other charge made by AEMO.

16  Manner in which AER performs AER economic regulatory functions or powers

             (1)  The AER must, in performing or exercising an AER economic regulatory function or power:

                     (a)  perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national electricity objective; and

                     (b)  if the function or power performed or exercised by the AER relates to the making of a distribution determination or transmission determination, ensure that the regulated network service provider to whom the determination will apply, any affected Registered participant and, if AEMO is affected by the determination, AEMO, are, in accordance with the Rules:

                              (i)  informed of material issues under consideration by the AER; and

                             (ii)  given a reasonable opportunity to make submissions in respect of that determination before it is made.

             (2)  In addition, the AER:

                     (a)  must take into account the revenue and pricing principles:

                              (i)  when exercising a discretion in making those parts of a distribution determination or transmission determination relating to direct control network services; or

                             (ii)  when making an access determination relating to a rate or charge for an electricity network service; and

                     (b)  may take into account the revenue and pricing principles when performing or exercising any other AER economic regulatory function or power, if the AER considers it appropriate to do so.

             (3)  For the purposes of subsection (2)(a)(ii), a reference to a direct control network service in the revenue and pricing principles must be read as a reference to an electricity network service.

             (4)  In this section:

affected Registered participant means a Registered participant (other than the regulated network service provider to whom the distribution determination or transmission determination will apply) whose interests are affected by the distribution determination or transmission determination.


 

Division 2Search warrants

19  Definitions

                   In this Division:

authorised person means a person authorised under section 20.

relevant provision means a provision of this Act, the regulations or the Rules.

20  Authorised person

             (1)  The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division.

             (2)  An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person.

20A  Identity cards

             (1)  The AER must issue an identity card to an authorised person.

             (2)  The identity card must contain the name, a recent photograph and the signature of the authorised person.

             (3)  An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.

             (4)  An authorised person must produce his or her identity card for inspection:

                     (a)  before exercising a power as an authorised person; or

                     (b)  at any time during the exercise of a power as an authorised person, if asked to do so.

20B  Return of identity cards

                   If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable.

Maximum penalty: 5 penalty units.

21  Search warrant

             (1)  An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person:

                     (a)  believes on reasonable grounds that:

                              (i)  there is or has been or will be a breach of a relevant provision; and

                             (ii)  there is or may be a thing or things of a particular kind connected with that breach on or in that place; or

                     (b)  reasonably suspects that:

                              (i)  there may have been a breach of a relevant provision; and

                             (ii)  there is or may be a thing or things of a particular kind connected with that breach on or in that place.

             (2)  If a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a relevant provision on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant:

                     (a)  to enter the place specified in the warrant, with such assistance and by the use of such force as is necessary and reasonable;

                     (b)  to search the place or any part of the place;

                     (c)  to search for and seize a thing named or described in the warrant and which the person believes on reasonable grounds to be connected with the breach or possible breach of the relevant provision;

                     (d)  to inspect, examine or record an image of anything in the place;

                     (e)  to take extracts from, and make copies of, any documents in the place;

                      (f)  to take into the place such equipment and materials as the person requires for exercising the powers.

             (3)  A search warrant issued under this section must state:

                     (a)  the purpose for which the search is required and the nature of the suspected breach of the relevant provision; and

                     (b)  any conditions to which the warrant is subject; and

                     (c)  whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

                     (d)  a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

22  Announcement of entry and details of warrant to be given to occupier or other person at premises

             (1)  This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed.

             (2)  The authorised person executing the warrant must:

                     (a)  identify himself or herself to that person; and

                     (b)  announce that he or she is authorised by the warrant to enter the place; and

                     (c)  before using force to enter, give the person an opportunity to allow entry; and

                     (d)  give the person a copy of the warrant.

             (3)  The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2).

23  Announcement before entry

                   An authorised person executing a warrant need not comply with section 22 if he or she believes on reasonable grounds that immediate entry to premises is required to ensure:

                     (a)  the safety of any person; or

                     (b)  that the effective execution of the search warrant is not frustrated.

24  Copies of seized documents

             (1)  If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant.

             (2)  A copy of a document certified under subsection (1) shall be received in all relevant courts and all tribunals as evidence of equal validity to the original.

25  Retention and return of seized documents or things

             (1)  If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the AER, give the document or other thing seized to the AER.

             (2)  The AER must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

             (3)  If the document or thing seized has not been returned within 3 months after it was seized, the AER must take reasonable steps to return it unless:

                     (a)  proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

                     (b)  a magistrate makes an order under section 26 extending the period during which the document or thing may be retained.

26  Extension of period of retention of documents or things seized

             (1)  The AER may apply to a magistrate:

                     (a)  within 3 months after a document or other thing was seized in accordance with a warrant; or

                     (b)  if an extension has been granted under this section, before the end of the period of the extension;

for an extension of the period for which the AER may retain the document or thing but so that the total period of retention does not exceed 12 months.

             (2)  An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced.

             (3)  A magistrate may order such an extension if he or she is satisfied that:

                     (a)  it is in the interests of justice; and

                     (b)  the total period of retention does not exceed 12 months; and

                     (c)  retention of the document or other thing is necessary:

                              (i)  for the purposes of an investigation into whether a breach of a relevant provision has occurred; or

                             (ii)  to enable evidence of a breach of a relevant provision to be obtained for the purposes of a proceeding under this Act.

             (4)  If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order.

             (5)  At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be sent to the owner of the document or thing described in the application.

27  Obstruction of person authorised to enter

                   A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division.

Maximum penalty:

                     (a)  in the case of natural person—20 penalty units;

                     (b)  in the case of a body corporate—100 penalty units.

27A  Powers conferred on magistrate

             (1)  A power conferred on a magistrate by this Division is conferred on the magistrate in a personal capacity and not as a court or a member of a court. The magistrate need not accept the power conferred.

             (2)  A magistrate exercising such a power has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.


 

Division 3General information gathering powers

28  Power to obtain information and documents in relation to performance and exercise of functions and powers

             (1)  If the AER has reason to believe that a person is capable of providing information or producing a document that the AER requires for the performance or exercise of a function or power conferred on it under this Act or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice).

             (2)  A relevant notice may require the person to:

                     (a)  provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or

                     (b)  produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1).

             (3)  A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse.

Maximum penalty:

                     (a)  in the case of a natural person—20 penalty units;

                     (b)  in the case of a body corporate—100 penalty units.

             (4)  A person must not, in purported compliance with a relevant notice, provide information that the person knows is false or misleading in a material particular.

Maximum penalty:

                     (a)  in the case of a natural person—20 penalty units;

                     (b)  in the case of a body corporate—100 penalty units.

             (5)  It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice.

             (6)  It is a reasonable excuse for a natural person to:

                     (a)  fail to provide information of the kind referred to in subsection (1) to the AER; or

                     (b)  fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER;

if to do so might tend to incriminate the person, or make the person liable to a criminal penalty.

             (7)  It is not a reasonable excuse for a person to:

                     (a)  fail to provide information of the kind referred to in subsection (1) to the AER; or

                     (b)  fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER;

on the ground of any duty of confidence.

             (8)  This section does not require a person to:

                     (a)  provide information that is the subject of legal professional privilege; or

                     (b)  produce a document the production of which would disclose information that is the subject of legal professional privilege.

             (9)  This section does not require a person to:

                     (a)  provide information that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or

                     (b)  produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or

                     (c)  provide information, or produce a document, that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory.

           (10)  A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.


 

Division 4Regulatory information notices and general regulatory information orders

Subdivision 1Interpretation

28A  Definitions

                   In this Division:

contributing service has the meaning given by section 28B.

related provider means a person who supplies a contributing service to a regulated network service provider.

28B  Meaning of contributing service

             (1)  A contributing service is a service that the AER, in accordance with this section, decides is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider.

             (2)  In deciding whether a service is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider, the AER must have regard to:

                     (a)  the nature and kind of the service;

                     (b)  when the service was first supplied;

                     (c)  the nature and extent of the contribution of the service relative to:

                              (i)  the electricity network service; and

                             (ii)  all other services supplied by the regulated network service provider;

                     (d)  whether the service was previously supplied:

                              (i)  by the regulated network service provider; or

                             (ii)  directly or indirectly by an associate of the regulated network service provider;

                     (e)  whether the service, together with other services, contributes in a material way to the provision of electricity network services;

                      (f)  any other matter specified under the Rules.

28C  Meaning of general regulatory information order

                   A general regulatory information order is an order made by the AER in accordance with this Division that requires each regulated network service provider of a specified class, or each related provider of a specified class, to do either or both of the following:

                     (a)  provide to the AER the information specified in the order;

                     (b)  prepare, maintain or keep information specified in the notice in a manner and form specified in the order.

28D  Meaning of regulatory information notice

                   A regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the regulated network service provider, or a related provider, named in the notice to do either or both of the following:

                     (a)  provide to the AER the information specified in the notice;

                     (b)  prepare, maintain or keep information specified in the notice in a manner and form specified in the notice.

28E  Division does not limit operation of information gathering powers under Division 3

                   This Division does not limit the operation of Division 3.

Subdivision 2Serving and making of regulatory information instruments

28F  Service and making of regulatory information instrument

             (1)  Subject to this Division, the AER, if it considers it reasonably necessary for the performance or exercise of its functions or powers under this Act or the Rules, may:

                     (a)  serve a regulatory information notice on a regulated network service provider or a related provider; or

                     (b)  make a general regulatory information order.

             (2)  In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the AER must have regard to:

                     (a)  the matter to be addressed by:

                              (i)  the service of the regulatory information notice; or

                             (ii)  the making of the general regulatory information order; and

                     (b)  the likely costs that may be incurred by an efficient network service provider or efficient related provider in complying with the notice or order.

Note:          The AER must also exercise its powers under this section in a manner that will or is likely to contribute to the achievement of the national electricity objective: see section 16.

             (3)  A regulatory information notice must not be served, or a general regulatory information order must not be made, solely for the purpose of:

                     (a)  investigating breaches or possible breaches of provisions of this Act, the regulations or the Rules, including offences against this Act; or

                     (b)  instituting and conducting proceedings in relation to breaches of provisions of this Act, the regulations or the Rules, including offences against this Act; or

                     (c)  instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or

                     (d)  collecting information for the preparation of a service provider performance report; or

                     (e)  any application for review of a decision of the AER under Division 3A of Part 6.

28G  Additional matters to be considered for related provider regulatory information instruments

             (1)  This section applies if the AER is intending to:

                     (a)  serve a regulatory information notice on a related provider; or

                     (b)  make a general regulatory information order that will apply to a class of related providers.

             (2)  In addition to the matters set out in subsection 28F(2), the AER, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to:

                     (a)  whether the regulated network service provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can:

                              (i)  provide the information to be specified in that instrument; or

                             (ii)  prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and

                     (b)  the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and

                     (c)  the nature of any ownership or control between:

                              (i)  the regulated network service provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and

                             (ii)  that related provider; and

                     (d)  the nature of any ownership or control as between different related providers supplying the contributing service to the regulated network service provider; and

                     (e)  any other matter the AER considers relevant.

             (3)  For the purposes of paragraph (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the AER may take into account:

                     (a)  whether there is effective competition in the market for the supply of the contributing service; and

                     (b)  whether the related provider supplies the contributing service to a regulated network service provider under a contract, arrangement or understanding entered into with that regulated network service provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the regulated network service provider.

28H  AER must consult before publishing a general regulatory information order

                   The AER must, in accordance with the Rules, consult with the public in relation to the general regulatory information order it proposes to make before it makes that order.

Note:          See also section 28ZC about what the AER must and may do after receiving submissions.

28I  Publication requirements for general regulatory information orders

             (1)  A general regulatory information order made under paragraph 28F(1)(b) must be published on the AER’s website as soon as practicable after it is made.

             (2)  Notice of the making of a general regulatory information order must be published in a newspaper circulating generally throughout Australia as soon as practicable after the general regulatory information order is made.

28J  Opportunity to be heard before regulatory information notice is served

             (1)  The AER, before serving a regulatory information notice, must:

                     (a)  notify, in writing, the regulated network service provider, or the related provider, on whom the AER intends to serve the regulatory information notice of its intention to do so; and

                     (b)  give the regulated network service provider a draft of the regulatory information notice it intends to serve.

             (2)  If the regulatory information notice to be served is an urgent notice, the AER must, in a notice under subsection (1):

                     (a)  identify the regulatory information notice to be served as an urgent notice; and

                     (b)  give its reasons, in writing, why the regulatory information notice to be served is an urgent notice.

             (3)  A regulatory information notice is an urgent notice if:

                     (a)  under the notice the AER will require the regulated network service provider or related provider to provide information to the AER; and

                     (b)  that requirement has arisen because the AER considers it must deal with or address a particular matter or thing in order for it to make an AER economic regulatory decision; and

                     (c)  the AER considers that, having regard to the time within which it must make that AER economic regulatory decision, the time within which the AER requires the information is of the essence.

             (4)  A notice under subsection (1) must:

                     (a)  invite the regulated network service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and

                     (b)  specify the period within which the regulated network service provider, or the related provider, may make the representations.

             (5)  The period that must be specified in accordance with subsection (4) must be:

                     (a)  in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1);

                     (b)  in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1).

             (6)  The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice.

Subdivision 3Form and content of regulatory information instruments

28K  Form and content of regulatory information instrument

             (1)  A regulatory information instrument:

                     (a)  must specify the information required to be:

                              (i)  provided to the AER;

                             (ii)  prepared, maintained or kept in the particular manner and form specified in the instrument; and

                     (b)  may specify the manner and form in which the information described in the instrument is required to be:

                              (i)  provided to the AER;

                             (ii)  prepared, maintained or kept; and

                     (c)  must state the reasons of the AER for requiring the information described in the instrument to be:

                              (i)  provided to the AER;

                             (ii)  prepared, maintained or kept in the particular manner and form specified in the instrument; and

                     (d)  in the case of an instrument requiring information to be provided to the AER, must specify when the information must be provided.

             (2)  In the case of a regulatory information notice, the notice must name the regulated network service provider or the related provider to whom it applies.

             (3)  In the case of a general regulatory information order, the order must specify the class of regulated network service provider, or related provider, to whom the order applies.

28L  Further provision about the information that may be specified in a regulatory information instrument

                   Without limiting paragraph 28K(1)(a), the information that may be required to be provided to the AER, or to be prepared, maintained or kept, may include the following:

                     (a)  historic, current and forecast information (including financial information);

                     (b)  information that is or may be derived from other information in the possession or control of the service provider or the related provider to whom the instrument applies;

                     (c)  information to enable the AER to verify whether the regulated network service provider to whom the instrument applies is or has been complying with a requirement under the Rules relating to:

                              (i)  the operational and structural separation of a regulated network service provider’s business; or

                             (ii)  arrangements between a regulated network service provider and an associate that provides electricity network services;

                     (d)  information to enable the AER to verify compliance with any requirements for the allocation of costs between electricity services under:

                              (i)  the Rules; or

                             (ii)  a network revenue or pricing determination.

28M  Further provision about manner in which information must be provided to AER or kept

                   Without limiting paragraph 28K(1)(b), a regulatory information instrument may require that the information specified in the instrument:

                     (a)  be provided to the AER, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or a state of affairs;

                     (b)  be provided to the AER, or prepared, maintained or kept, in accordance with specified Rules;

                     (c)  be provided to the AER, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER or any person, authority or body whether:

                              (i)  wholly or partially or as amended by the instrument; or

                             (ii)  as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or

                            (iii)  as amended from time to time;

Example: The AER may require a service provider to provide information in a form and manner that complies with relevant accounting standards.

                     (d)  be verified by way of statutory declaration by an officer of the regulated network service provider, or of a related provider, to whom the instrument applies;

                     (e)  be audited:

                              (i)  by a class of person specified in the instrument before it is provided to the AER; and

                             (ii)  at the expense of the regulated network service provider or related provider to whom the instrument applies.

Subdivision 4Compliance with regulatory information instruments

28N  Compliance with regulatory information notice that is served

                   On being served a regulatory information notice, a person named in the notice must comply with the notice.

Note:          This section is a civil penalty provision.

28O  Compliance with general regulatory information order

             (1)  On publication of a general regulatory information order in accordance with subsection 28I(1), a person who is a member of the class of person to which a general regulatory information order applies must comply with the order.

             (2)  Subsection (1) does not apply to a person who has been given an exemption under section 28P.

Note:          This section is a civil penalty provision.

28P  Exemptions from compliance with general regulatory information order

             (1)  The AER may exempt a person, or a class of person, from complying with section 28O:

                     (a)  unconditionally or on specified conditions; or

                     (b)  wholly or to the extent as is specified in the exemption.

             (2)  An exemption under this section must be in writing.

28Q  Assumptions where there is non‑compliance with regulatory information instrument

             (1)  This section applies if:

                     (a)  under a regulatory information instrument the AER:

                              (i)  requires a regulated network service provider to provide information to the AER for the purpose of enabling the AER to make an AER economic regulatory decision relating to the regulated network service provider; or

                             (ii)  requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a regulated network service provider; and

                     (b)  the regulated network service provider or related provider:

                              (i)  does not provide the information to the AER in accordance with the applicable regulatory information instrument; or

                             (ii)  provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument).

             (2)  Without limiting sections 28N and 28O and despite anything to the contrary in this Act or the Rules, the AER:

                     (a)  may make the AER economic regulatory decision on the basis of the information the AER has at the time it makes that decision; and

                     (b)  in making that decision, may make reasonable assumptions (including assumptions adverse to the interests of the regulated network service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required.

Subdivision 5General

28R  Providing to AER false and misleading information

                   A person must not, in purported compliance with a regulatory information instrument requiring the person to provide information to the AER, provide information to the AER that the person knows is false or misleading in a material particular.

Maximum penalty:

                     (a)  in the case of a natural person—20 penalty units;

                     (b)  in the case of a body corporate—100 penalty units.

28S  Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument

             (1)  A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence.

             (2)  A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong.

28T  Legal professional privilege not affected

                   A regulatory information instrument, and sections 28N and 28O, are not to be taken as requiring a person to:

                     (a)  provide to the AER information that is the subject of legal professional privilege; or

                     (b)  produce a document to the AER the production of which would disclose information that is the subject of legal professional privilege.

28U  Protection against self‑incrimination

             (1)  It is a reasonable excuse for a natural person to whom section 28N applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction).

             (2)  It is a reasonable excuse for a natural person to whom section 28O applies not to comply with a general regulatory information order made requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction).


 

Division 5Network service provider performance reports

28V  Preparation of network service provider performance reports

             (1)  Subject to this section, the AER may prepare a report on the financial performance or operational performance of 1 or more network service providers in providing electricity network services.

Note:          The AER may only prepare a report under subsection (1) if the preparation of the report will or is likely to contribute to the achievement of the national electricity objective: see section 16.

             (2)  A report prepared under this section may:

                     (a)  deal with the financial or operational performance of the network service provider in relation to:

                              (i)  complying with (as the case requires) distribution service standards or transmission service standards; and

                             (ii)  standards relating to the provision of electricity network services to network service users or end users; and

                            (iii)  the profitability of network service providers in providing electricity network services; and

                     (b)  if the AER considers it appropriate, deal with the performance of the network service provider in relation to other matters or things if that performance is directly related to the performance or exercise by the AER of an AER economic regulatory function or power.

             (3)  A report prepared under this section may include:

                     (a)  information provided to the AER by a person in compliance with a regulatory information instrument; and

                     (b)  in the case of a report dealing with the financial performance of 1 or more network service providers, a comparison of the profitability of the network service providers to which the report relates from the provision of electricity network services by them.

             (4)  Before preparing a report under this section, the AER must, in accordance with the Rules, consult with the persons or bodies specified by the Rules.

          (4A)  Any information that is used to prepare a report under this section may be used by the AER in preparing any report under the National Energy Retail Law or the National Energy Retail Rules, including (but not limited to) a retail market performance report under Division 2 of Part 12 of that Law.

             (5)  The AER may publish a report prepared under this section on its website.


 

Division 6Disclosure of confidential information held by AER

28W  Authorised disclosure of information given to the AER in confidence

                   The AER is authorised to disclose information given to it in confidence in, or in connection with, the performance or exercise of its functions or powers under this Act or the Rules subject to and in accordance with:

                     (a)  this Division; or

                     (b)  section 146.

Note:          See also section 29 of this Act and section 44AAF of the Competition and Consumer Act 2010.

28X  Disclosure with prior written consent is authorised

                   The AER is authorised to disclose information given to it in confidence if the AER has the written consent to do so of:

                     (a)  the person who gave the information; or

                     (b)  the person from whom the person referred to in paragraph (a) received that information.

28Y  Disclosure for purposes of court and tribunal proceedings and to accord natural justice

                   The AER is authorised to disclose information given to it in confidence:

                     (a)  for the purposes of civil or criminal proceedings; or

                     (b)  for the purposes of a proceeding before the Tribunal; or

                     (c)  for the purposes of according natural justice to a person affected by a decision (however described) of the AER under this Act or the Rules.

28Z  Disclosure of information given to the AER with confidential information omitted

             (1)  This section applies if:

                     (a)  in compliance with this Act or the Rules or voluntarily, a person gives the AER information in confidence; and

                     (b)  that information is contained in a document with other information.

             (2)  The AER may disclose the document with the information given in confidence omitted.

             (3)  The AER must include a note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document.

28ZA  Disclosure of information given in confidence does not identify anyone

                   The AER is authorised to disclose the information given to it in confidence, in compliance with this Act or the Rules or voluntarily, if:

                     (a)  it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates; or

                     (b)  the manner in which it discloses the information does not identify the person to whom that information relates.

Example:    Information disclosed under this section may be combined or arranged with other information provided that the manner in which that information is combined or arranged will not lead to the identification of the person to whom the information relates.

28ZAB  Disclosure of information that has entered the public domain

                   The AER is authorised to disclose information given to it in confidence, in compliance with this Act or the Rules or voluntarily, if the information is already in the public domain.

28ZB  Disclosure of confidential information authorised if detriment does not outweigh public benefit

             (1)  Despite section 28Z, 28ZA or 28ZAB but subject to this section, the AER is authorised to disclose information given to it in confidence after the restricted period if the AER is of the opinion:

                     (a)  that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or

                     (b)  that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

             (2)  Before disclosing the information, the AER must give the person who gave the information:

                     (a)  a written notice (an initial disclosure notice) stating:

                              (i)  that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that the AER is of the opinion required by subsection (1); and

                            (iii)  that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

                     (b)  the AER’s decision, in writing, setting out the reasons why the AER:

                              (i)  wishes to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (3)  If the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person’s identity and address, the AER must, before disclosing the information give that other person:

                     (a)  a written notice (an initial disclosure notice) stating:

                              (i)  that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that the AER is of the opinion required by subsection (1); and

                            (iii)  that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

                     (b)  the AER’s decision, in writing, setting out the reasons why the AER:

                              (i)  wishes to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (4)  The AER must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice.

             (5)  The period of time specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

             (6)  If after considering the representations, the AER wishes to disclose the information, the AER must give the person given the initial disclosure notice:

                     (a)  a written notice (a further disclosure notice) stating:

                              (i)  that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that the AER is of the opinion required by subsection (1); and

                     (b)  the AER’s decision, in writing, setting out the reasons why the AER:

                              (i)  wishes to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (7)  For the purposes of this section, the disclosure of anything that is already in the public domain at the time the AER wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).

             (8)  In this section:

restricted period means a period of 5 business days after:

                     (a)  an initial disclosure notice has been given under this section; or

                     (b)  a further disclosure notice has been given under this section;

whichever is the later.


 

Division 7Miscellaneous matters

28ZC  Consideration by the AER of submissions made to it under this Act

                   If, under this Act or the Rules, the AER publishes a notice inviting submissions in relation to the making of an AER economic regulatory decision, the AER, in making the decision:

                     (a)  must consider every submission it receives within the period specified in the notice; and

                     (b)  may, but need not, consider a submission it receives after the period specified in the notice expires.

28ZD  Use of information provided under a notice under section 28 or a regulatory information instrument

                   The AER may use information provided to it by a person in compliance with a notice under section 28 or a regulatory information instrument for any purposes connected with the performance or exercise of a function or power of the AER under:

                     (a)  this Act or the Rules; or

                     (b)  the National Gas Law or the National Gas Rules; or

                     (c)  the National Energy Retail Law or the National Energy Retail Rules.

28ZE  AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices

             (1)  If the AER is given information by any person in relation to a breach or a possible breach of this Act, the regulations or the Rules by a person but:

                     (a)  decides not to investigate that breach or possible breach; or

                     (b)  following an investigation, decides not to:

                              (i)  institute any proceedings in respect of that breach or possible breach under Part 6; or

                             (ii)  serve an infringement notice in accordance with Division 5 of Part 6 in respect of that breach or possible breach;

the AER must notify that person of that decision in writing.

             (2)  This section does not apply if the person gave the information to the AER anonymously.

28ZF  AER enforcement guidelines

             (1)  The AER may prepare guidelines about the matters it will have regard to before:

                     (a)  making an application under section 61; or

                     (b)  serving an infringement notice under section 74; or

                     (c)  accepting an enforceable undertaking under section 59A.

             (2)  The AER must publish guidelines prepared under subsection (1) on its website.

28ZG  AER must report to MCE if it does not make network revenue or pricing determination within time

             (1)  If the AER does not make a network revenue or pricing determination within the period of time specified by this Act or the Rules for the making of that determination, the AER must give a report to the MCE that:

                     (a)  describes the AER’s handling of the matter; and

                     (b)  gives the reasons of the AER for not making the determination within the specified period; and

                     (c)  specifies a date by when the AER considers the determination will be made.

             (2)  A report under subsection (1):

                     (a)  must be given to the MCE as soon as practicable after the expiry of the specified period; and

                     (b)  must be published on the AER’s website as soon as practicable after it is given to the MCE in accordance with paragraph (a).

28ZH  Single documentation

             (1)  This section applies if the AER is authorised to prepare a document under this Act or the Rules for a purpose and is also authorised to prepare a document or documents under any of the following:

                     (a)  the National Gas Law;

                     (b)  the National Gas Rules;

                     (c)  the National Energy Retail Law;

                     (d)  the National Energy Retail Rules;

for the same or a similar, related or corresponding purpose.

             (2)  The AER may satisfy the requirements of this Act and the Rules regarding the document under this Act and the Rules by preparing and making (and where relevant publishing) a single document.

Note:          See also section 68A of the National Gas Law and section 219 of the National Energy Retail Law.

28ZI  Use of information

             (1)  The AER may use the information obtained under this Act or the Rules for a purpose connected with the performance or exercise of a function or power of the AER under any of the following:

                     (a)  the National Gas Law;

                     (b)  the National Gas Rules;

                     (c)  the National Energy Retail Law;

                     (d)  the National Energy Retail Rules.

             (2)  The AER may use the information obtained under any such Act or Rules for a purpose connected with the performance or exercise of a function or power of the AER under this Act or the Rules.

             (3)  This section does not limit any other provision of this Act that provides for the use of information obtained under this Act or the Rules.

Note:          See also section 68B of the National Gas Law and section 220 of the National Energy Retail Law.


 

Part 3AEstablishment of the Australian Energy Market Commission

  

28ZJA  Establishment of the Australian Energy Market Commission

             (1)  The Australian Energy Market Commission (the AEMC) is established by this section.

             (2)  The AEMC:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  must have a seal; and

                     (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

Note:          The Commonwealth Authorities and Companies Act 1997 applies to the AEMC. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of executive officers.

             (3)  All courts, judges and persons acting judicially must:

                     (a)  take judicial notice of the imprint of the seal of the AEMC appearing on a document; and

                     (b)  presume that the document was duly sealed.

28ZJB  Functions

                   The AEMC has the following functions:

                     (a)  the rule‑making, market development and other functions conferred on the AEMC under National Energy Laws or Jurisdictional Energy Laws;

                     (b)  the provision of advice to the MCE as requested by the MCE;

                     (c)  other functions conferred on the AEMC under this Act or any other law of the Commonwealth, a State or a Territory;

                     (d)  other functions that are reasonably incidental to any of the foregoing.

28ZJC  Powers

                   The AEMC has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

28ZJD  Objectives

                   The AEMC must, in the performance of its functions, have regard to any relevant objectives set out in National Energy Laws.

28ZJE  Independence

             (1)  The AEMC is not subject to direction by the Minister in the performance of its functions.

             (2)  Subsection (1) does not limit any provision of the National Energy Laws about the giving of directions to the AEMC by the MCE.

28ZJF  AEMC may publish statements, reports and guidelines

                   The AEMC may publish statements, reports and guidelines relating to the performance of its functions.

28ZJG  Memorandum of Understanding

             (1)  The AEMC may enter into a Memorandum of Understanding with other bodies for the purposes of facilitating and coordinating the performance of its functions.

             (2)  The AEMC must ensure that the Memorandum of Understanding is published.

28ZJH  Membership of AEMC

                   The AEMC is to consist of 3 Commissioners appointed by the Governor‑General, of whom:

                     (a)  1, who will be appointed to be the Chairperson, will be a person nominated for such appointment by the MCE (States and Territories); and

                     (b)  1 will be a further person nominated by the MCE (States and Territories); and

                     (c)  1 will be a person nominated by the Minister of the Commonwealth who is a member of the MCE.

28ZJI  Terms and conditions of appointment

             (1)  A Commissioner will be appointed:

                     (a)  for a term, not exceeding 5 years, specified in the instrument of appointment (and, at the expiration of a term of office, is eligible for reappointment); and

                     (b)  on conditions as to remuneration and other matters specified in the instrument of appointment.

           (1a)  The term of office and conditions of appointment of a Commissioner must be matters that the Minister has recommended to the Governor in accordance with a resolution of the MCE.

             (2)  The Governor‑General may remove a Commissioner from office:

                     (a)  for breach of, or non‑compliance with, a condition of appointment; or

                     (b)  for misconduct; or

                     (c)  for failure or incapacity to carry out official functions satisfactorily.

             (3)  The office of a Commissioner becomes vacant if the Commissioner:

                     (a)  dies; or

                     (b)  completes a term of office and is not reappointed; or

                     (c)  resigns by written notice to the Minister; or

                     (d)  is removed from office under subsection (2).

             (4)  On the office of a Commissioner becoming vacant, a person must be appointed in accordance with this Act to the vacant office.

28ZJJ  Acting Chairperson or Commissioner

             (1)  The Minister may appoint a Commissioner or an Acting Commissioner nominated by the MCE (States and Territories) as an Acting Chairperson to act in the office of the Chairperson during any period for which the Chairperson is unable to perform official functions or the office of the Chairperson is vacant.

             (2)  A person appointed under subsection (1) has, while acting in the office of the Chairperson, all the functions and powers of the Chairperson.

             (3)  The Minister may appoint a person nominated by the MCE (States and Territories) as an Acting Commissioner to act in the office of the Commissioner appointed, or to be appointed, on the nomination of the MCE (States and Territories) under paragraph 28ZJH(b) during any period for which that Commissioner is unable to perform official functions or that office is vacant.

             (4)  The Minister may appoint a person nominated by the Minister of the Commonwealth who is a member of the MCE as an Acting Commissioner to act in the office of the Commissioner appointed, or to be appointed, on the nomination of that Minister under paragraph 28ZJH(c) during any period for which that Commissioner is unable to perform official functions or that office is vacant.

             (5)  Without limiting any other power of appointment under this section, the Minister may appoint a person nominated by the MCE (States and Territories) as an Acting Commissioner to act in the office of a Commissioner during any period for which that Commissioner is acting in the office of the Chairperson.

             (6)  A person appointed under subsection (3), (4) or (5) has, while acting in the office of a Commissioner, all the functions and powers of a Commissioner.

             (7)  The conditions of appointment of an Acting Chairperson or Acting Commissioner will be as determined by the Minister in accordance with a resolution of the MCE.

             (8)  An act or proceeding of the AEMC is not invalid by reason only of a defect in appointment under this section or the fact that a person appointed under this section acts in the office concerned when the circumstances for so acting have not yet arisen or have ceased to exist.

28ZJK  Vacancies or defects in appointment

                   An act or proceeding of the AEMC is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a Commissioner.

28ZJL  Chief executive

             (1)  There is to be a chief executive of the AEMC.

             (2)  The chief executive is to be appointed by the AEMC on conditions determined by the AEMC.

             (3)  The chief executive is, subject to the control and direction of the AEMC, responsible for giving effect to the decisions and policies of the AEMC.

28ZJM  Other staff

                   The members of the staff of the AEMC (other than the chief executive) are to be persons appointed by the AEMC on conditions determined by the AEMC.

28ZJN  Immunity

             (1)  No personal liability attaches to a Commissioner or a member of the staff of the AEMC for an act or omission in good faith in the performance or exercise, or purported performance or exercise, of a function or power associated with the activities of the AEMC under this Act.

             (2)  A liability that would, but for subsection (1), lie against a person lies instead against the AEMC.

28ZJO  Consultants

                   The AEMC may engage consultants on conditions considered appropriate by the AEMC.

28ZJP  Delegation

             (1)  Subject to this section and the National Energy Laws, the AEMC may delegate functions or powers to a Commissioner or the chief executive or some other member of the staff of the AEMC.

             (2)  A delegation under this section:

                     (a)  must be in writing; and

                     (b)  may be conditional or unconditional; and

                     (c)  is revocable at will; and

                     (d)  does not prevent the delegator from acting in any matter.

28ZJQ  Meetings of AEMC

             (1)  The Chairperson may convene as many meetings of the AEMC as he or she considers necessary for the efficient conduct of its affairs.

             (2)  The Chairperson must convene a meeting of the AEMC if requested to do so in writing signed by the other Commissioners.

             (3)  The Chairperson must preside at a meeting of the AEMC.

             (4)  A quorum of the AEMC consists of the Chairperson and another Commissioner.

             (5)  A decision concurred in by 2 Commissioners at a meeting of the AEMC is a decision of the AEMC.

             (6)  Each Commissioner present at a meeting of the AEMC has 1 vote on a question arising for decision.

             (7)  If the AEMC so determines, a Commissioner or Commissioners may participate in, and form part of a quorum for, a meeting of the AEMC by means of any of the following methods of communication:

                     (a)  telephone;

                     (b)  closed circuit television;

                     (c)  another method of communication determined by the AEMC.

             (8)  The AEMC must have accurate minutes kept of its meetings.

             (9)  Subject to this Act, the AEMC may regulate its own procedure.

28ZJR  Disclosure of interest

             (1)  If a Commissioner has any direct or indirect interest in a matter being considered, or about to be considered, by the AEMC, being an interest that could conflict with the proper performance of the Commissioner’s functions in relation to a matter arising at a meeting of the AEMC, the Commissioner must as soon as practicable disclose the interest at a meeting of the AEMC.

             (2)  The disclosure, and any decision made by the AEMC in relation to the disclosure, must be recorded in the minutes of the meeting.

28ZJS  Common seal and execution of documents

             (1)  The common seal of the AEMC must not be affixed to a document except in pursuance of a decision of the AEMC and the affixing of the seal must be attested by the signatures of 1 or more Commissioners.

             (2)  The AEMC may, by instrument under its common seal, authorise a Commissioner, an employee of the AEMC (whether nominated by name or by office or title) or any other person to execute documents on behalf of the AEMC subject to conditions and limitations (if any) specified in the instrument of authority.

             (3)  Without limiting subsection (2), an authority may be given so as to authorise 2 or more persons to execute documents jointly on behalf of the AEMC.

             (4)  A document is duly executed by the AEMC if:

                     (a)  the common seal of the AEMC is affixed to the document in accordance with this section; or

                     (b)  the document is signed on behalf of the AEMC by a person or persons in accordance with an authority conferred under this section.

             (5)  Where an apparently genuine document purports to bear the common seal of the AEMC, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of the AEMC has been duly affixed to that document.

28ZJT  Confidentiality

             (1)  The AEMC must take all reasonable measures to protect from unauthorised use or disclosure information:

                     (a)  given to it in confidence in or in connection with the performance of its functions or the exercise of its powers; or

                     (b)  that is obtained by compulsion in exercise of its powers.

             (2)  For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the State, or a law of the Commonwealth or another State or Territory of the Commonwealth, is taken to be authorised use and disclosure of the information.

             (3)  Disclosing information to a person or body prescribed by the regulations for the purpose of this subsection is authorised use and disclosure of the information.

             (4)  A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the person’s, or body’s, functions.

             (5)  The AEMC may impose conditions to be complied with in relation to information disclosed under subsection (3).

             (6)  For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of performing the person’s functions as:

                     (a)  a Commissioner or a member of the staff of the AEMC; or

                     (b)  a consultant engaged by the AEMC;

is taken to be authorised use or disclosure of the information.

             (7)  Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.

             (8)  Nothing in subsections (2) to (7) limits what may constitute authorised use or disclosure of information.

             (9)  Section 38 of the Freedom of Information Act 1982 applies to a document containing information that is classified as confidential by the AEMC under a National Energy Law.

28ZJU  Annual performance plan and budget

             (1)  The AEMC must, from time to time, prepare and submit to the Minister a performance plan and budget for the next financial year or for some other period determined by the Minister.

             (2)  The plan and the budget must conform with any requirements of the Minister as to the form of the plan or budget or the matters to be addressed by the plan or budget.

28ZJV  Accounts and audit

                   The AEMC must ensure that proper accounts are kept in relation to its financial affairs and that financial statements are prepared in accordance with the Commonwealth Authorities and Companies Act 1997.


 

Part 4Functions and powers of the Australian Energy Market Commission under this Act

Division 1General

29  Functions and powers of the AEMC

             (1)  The AEMC has the following functions and powers:

                     (a)  the Rule making functions and powers conferred on it under this Act and the regulations; and

                     (b)  the market development functions conferred on it under this Act and the Rules; and

                     (c)  any other functions and powers conferred on it under this Act and the Rules.

             (2)  The AEMC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Note:          State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 29AI.

29AI  Commonwealth consent to conferral of functions etc. on AEMC

General rule

             (1)  A State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the AEMC for the purposes of that law or instrument.

Note:          Section 29AK sets out when such a law or instrument imposes a duty on the AEMC.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law or local energy instrument to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AEMC; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The AEMC cannot perform a duty or function, or exercise a power, under a State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.

             (4)  A local energy instrument may confer functions or powers, or impose duties, on the AEMC only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.

             (5)  To avoid doubt, if a State/Territory energy law is also a local energy instrument, subsection (4) applies to the law.

29AJ  How duty is imposed

Application

             (1)  This section applies if a State/Territory energy law or local energy instrument purports to impose a duty on the AEMC.

Note 1:       Section 29AK sets out when such a law or instrument imposes a duty on the AEMC.

Note 2:       Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AEMC.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 29AI to the imposition of the duty by that law or instrument).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

             (5)  The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the AEMC.

             (6)  Subsections (1) to (5) do not limit section 29AI.

29AK  When a State/Territory energy law etc. imposes a duty

                   For the purposes of sections 29AI and 29AJ, a State/Territory energy law or local energy instrument imposes a duty on the Panel if:

                     (a)  the law or instrument confers a function or power on the Panel; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the Panel to perform the function or to exercise the power.

29AL  Powers of the AEMC

                   The AEMC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Note:          State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 29AI.

32  AEMC must have regard to national electricity objective

                   In performing or exercising any function or power under this Act, the regulations or the Rules, the AEMC must have regard to the national electricity objective.

33  AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews

                   The AEMC must have regard to any relevant MCE statement of policy principles:

                     (a)  in making a Rule; or

                     (b)  in conducting a review under section 45.


 

Division 2Rule making functions and powers of the AEMC

34  Rule making powers

             (1)  Subject to this Division, the AEMC, in accordance with this Act and the regulations, may make Rules, to be known, collectively, as the National Electricity Rules, for or with respect to:

                     (a)  regulating:

                              (i)  the operation of the national electricity market;

                             (ii)  the operation of the national electricity system for the purposes of the safety, security and reliability of that system;

                            (iii)  the activities of persons (including Registered participants) participating in the national electricity market or involved in the operation of the national electricity system;

                            (iv)  the provision of connection services to retail customers; and

                    (aa)  facilitating and supporting the provision of services to retail customers; and

                     (b)  any matter or thing contemplated by this Act, or is necessary or expedient for the purposes of this Act.

Note 1:       The procedure for the making of a Rule by the AEMC is set out in Division 3 of Part 7.

Note 2:       Rules are legislative instruments but are not disallowable: see section 9.

             (2)  Without limiting subsection (1), the AEMC, in accordance with this Act and the regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Act.

             (3)  Rules made by the AEMC in accordance with this Act and the regulations may:

                     (a)  be of general or limited application;

                     (b)  vary according to the persons, times, places or circumstances to which they are expressed to apply;

                     (c)  confer functions or powers on, or leave any matter or thing to be decided or determined by:

                              (i)  the AER, the AEMC, AEMO or (with the jurisdictional regulator’s agreement) a jurisdictional regulator; or

                             (ii)  the Reliability Panel or any other panel or committee established by the AEMC; or

                            (iii)  any other body established, or person appointed, in accordance with the Rules;

                     (d)  confer rights or impose obligations on any person or a class of person (other than the AER, the AEMC or a jurisdictional regulator);

                     (e)  confer a function on the AER, the AEMC, AEMO or a jurisdictional regulator to make, prepare, develop or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules, including guidelines, tests, standards, procedures or any other document (however described) that leave any matter or thing to be determined by the AER, the AEMC, AEMO or jurisdictional regulator;

                      (f)  empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

                    (fa)  provide for procedures governing the operation of the national electricity market and the sale and supply of electricity to retail customers;

                     (g)  apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether:

                              (i)  as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or

                             (ii)  as amended from time to time;

                     (h)  confer a power of direction on the AER, the AEMC, AEMO or a jurisdictional regulator to require a person conferred a right or on whom an obligation is imposed under the Rules (including a Registered participant) to comply with:

                              (i)  a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e), (f) or (fa); or

                             (ii)  a standard, rule, specification, method or document (however described) referred to in paragraph (g);

                      (i)  if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing;

                      (j)  provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court;

                     (k)  require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration;

                      (l)  in a specified case or class of case, exempt:

                              (i)  AEMO; or

                             (ii)  a Registered participant or class of Registered participant; or

                            (iii)  any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

                            from complying with a provision, or a part of a provision, of the Rules;

                    (m)  provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) as it applies to:

                              (i)  AEMO; or

                             (ii)  a Registered participant or class of Registered participant; or

                            (iii)  any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

                     (n)  confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules;

                     (o)  require a person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules to indemnify another such person or body;

                     (p)  contain provisions of a savings or transitional nature consequent on the amendment or revocation of a Rule.

35  Rules relating to MCE or State or Territory Ministers require MCE consent

                   The AEMC must not, without the consent of the MCE, make a Rule that confers a right or function, or purports to impose an obligation, on the MCE or a State or Territory Energy Minister.

Note:          The term function is defined in clause 10 of Schedule 2 to this Act to include a duty.

36  AEMC must not make Rules that create criminal offences or impose civil penalties for breaches

                   The AEMC must not make a Rule that:

                     (a)  creates an offence for a breach of a provision of the Rules; or

                     (b)  provides for a criminal penalty or civil penalty for a breach of a provision of the Rules.

37  Documents etc applied, adopted and incorporated by Rules to be publicly available

             (1)  The AEMC must make publicly available:

                     (a)  every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and

                     (b)  if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document.

             (2)  For the purposes of subsection (1), the AEMC makes a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule publicly available if the AEMC:

                     (a)  publishes the standard, rule, specification, method or document on the AEMC’s website; or

                     (b)  specifies a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires).


 

Division 3Committees, panels and working groups of the AEMC

38  The Reliability Panel

             (1)  The AEMC must establish a panel of persons to be known as the Reliability Panel, the composition of which must be in accordance with the Rules.

             (2)  The functions and powers of the Reliability Panel are:

                     (a)  to monitor, review and report on, in accordance with the Rules, the safety, security and reliability of the national electricity system; and

                     (b)  at the request of the AEMC, to provide advice in relation to the safety, security and reliability of the national electricity system; and

                     (c)  any other functions and powers conferred on it under this Act and the Rules.

             (3)  At the completion of a review, the Reliability Panel must give a report to the AEMC.

             (4)  If requested to do so by the AEMC, the Reliability Panel must provide advice to the AEMC in relation to the safety, security and reliability of the national electricity system.

39  Establishment of committees and panels (other than the Reliability Panel) and working groups

                   The AEMC may establish committees and panels (other than the Reliability Panel) and working groups to:

                     (a)  provide advice on specified aspects of the AEMC’s functions; or

                     (b)  undertake any other activity in relation to the AEMC’s functions as is specified by the AEMC.


 

Division 4MCE directed reviews

41  MCE directions

             (1)  The MCE may give a written direction to the AEMC that the AEMC conduct a review into:

                     (a)  any matter relating to the national electricity market; or

                   (ab)  any matter relating to any other market for electricity; or

                     (b)  the operation and effectiveness of the Rules; or

                     (c)  any matter relating to the Rules; or

                     (d)  the effectiveness of competition in a market for electricity for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail electricity services.

             (2)  A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.

             (3)  A direction given under this section must be published in the Gazette.

             (4)  The AEMC must cause a direction given under this section to be published on its website.

             (5)  The MCE may only give a direction to conduct a review that relates to:

                     (a)  the activities of constitutional corporations; or

                     (b)  purposes relating to constitutional trade or commerce.

42  Terms of reference

             (1)  The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.

Example:    The terms of reference may require a MCE directed review to be conducted:

(a)    about a specific matter within a specified time; or

(b)    whenever a specified event occurs; or

(c)    on an annual basis.

             (2)  Without limiting subsection (1), the MCE may in its direction to the AEMC do one or more of the following:

                     (a)  require the AEMC to give a report on a MCE directed review to the MCE within a specified period;

                     (b)  require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;

                     (c)  require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;

                     (d)  require the AEMC to consider specified matters in the conduct of a MCE directed review;

                     (e)  require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national electricity objective;

                    (ea)  require the AEMC to assess a particular matter in relation to services provided in a market for electricity against specified criteria or a specified methodology;

                   (eb)  require the AEMC:

                              (i)  to assess a particular matter in relation to services provided in a market for electricity; and

                             (ii)  to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;

                      (f)  give the AEMC other specific directions in respect of the conduct of a MCE directed review.

43  Notice of MCE directed review

             (1)  The AEMC must publish notice of a MCE directed review on its website and in a newspaper circulating generally throughout Australia.

             (2)  The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied.

44  Conduct of MCE directed review

                   Subject to any requirement or direction of the MCE, a MCE directed review:

                     (a)  may be conducted in such manner as the AEMC considers appropriate; and

                     (b)  may (but need not) involve public hearings.


 

Division 5Other reviews

45  Reviews by AEMC

             (1)  The AEMC may conduct a review into:

                     (a)  the operation and effectiveness of the Rules; or

                     (b)  any matter relating to the Rules.

             (2)  A review:

                     (a)  may be conducted in such manner as the AEMC considers appropriate; and

                     (b)  may (but need not) involve public hearings.

             (3)  During the course of a review, the AEMC may:

                     (a)  consult with any person or body that it considers appropriate;

                     (b)  establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject, of the review;

                     (c)  commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject, of the review;

                     (d)  publish discussion papers or draft reports.

             (4)  At the completion of a review, the AEMC must:

                     (a)  give a copy of the report to the MCE; and

                     (b)  publish a report or a version of a report from which confidential information has been omitted in accordance with section 48.


 

Division 6Miscellaneous

46  AEMC must publish and make available up to date versions of Rules

                   The AEMC must, at all times:

                     (a)  maintain, on its website, a copy of the National Electricity Rules, as in force from time to time; and

                     (b)  make copies of the National Electricity Rules, as in force from time to time, available to the public for inspection at its offices during business hours.

47  Fees

             (1)  The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the regulations for services provided by it in performing or exercising any of its functions or powers under this Act, the regulations or the Rules.

             (2)  The fee must not be such as to amount to taxation.

48  Confidentiality of information

             (1)  Information provided to the AEMC for the purposes of a MCE directed review or a review conducted by the AEMC under section 45 is confidential information for the purposes of Division 4 or 5 if:

                     (a)  the person who provides it claims, when providing it to the AEMC, that it is confidential information; and

                     (b)  the AEMC decides that the information is confidential information.

             (2)  Nothing prevents the disclosure of confidential information in a report to the MCE or a State or Territory Energy Minister under Division 4 or 5, but the AEMC must ensure that the information is identified as such in the report.

             (3)  If the AEMC decides that information provided to it for the purposes of a MCE directed review, or a review conducted by the AEMC under section 45, is confidential information, the AEMC, the MCE or a Minister of a participating jurisdiction may only make public a version of the report from which the information has been omitted.

             (4)  If information is omitted from a published version of a report as being confidential information, a note to that effect must be included in the report at the place in the report from which the information is omitted.

Note:          See also sections 28ZJT and 31.


 

Part 5Role of AEMO under National Electricity Law

Division 1General

49  AEMO’s statutory functions

             (1)  AEMO has the following functions:

                     (a)  to operate and administer a wholesale exchange for the national electricity system;

                     (b)  to promote the development and improve the effectiveness of the operation and administration of the wholesale exchange for the national electricity system;

                     (c)  to register persons as Registered participants;

                     (d)  to exempt certain persons from being registered as Registered participants;

                     (e)  to maintain and improve power system security;

                      (f)  to facilitate retail customer transfer, metering and retail competition;

                     (g)  for an adoptive jurisdiction—the additional advisory functions or declared network functions (as the case requires);

                     (h)  any functions conferred by jurisdictional electricity legislation;

                      (i)  any other functions conferred under this Act or the Rules.

Note 1:       AEMO has additional functions under its Constitution.

Note 2:       It should be noted that AEMO’s statutory functions include its functions under the National Gas Law, the National Gas Rules and related subordinate legislation: see definition of statutory functions in section 2.

Note 3:       AEMO also has responsibilities, under Division 6 of Part 5C, related to administrative costs associated with the work of the Consumer Advocacy Panel.

Note 4:       AEMO has additional functions and powers under the National Energy Retail Law and the National Energy Retail Rules.

             (2)  In its role as National Transmission Planner, AEMO has the following functions:

                     (a)  to prepare, maintain and publish a plan for the development of the national transmission grid (the National Transmission Network Development Plan) in accordance with the Rules;

                     (b)  to establish and maintain a database of information relevant to planning the development of the national transmission grid and to make the database available to the public;

                     (c)  to keep the national transmission grid under review and provide advice on the development of the grid or projects that could affect the grid;

                     (d)  to provide a national strategic perspective for transmission planning and coordination;

                     (e)  any other functions conferred on AEMO under this Act or the Rules in its capacity as National Transmission Planner.

             (3)  AEMO must, in carrying out functions referred to in this section, have regard to the national electricity objective.

49AA  Constitutional limits on AEMO’s statutory functions

                   Section 49 only confers functions on AEMO:

                     (a)  for purposes relating to constitutional corporations; or

                     (b)  for purposes relating to constitutional trade or commerce.

49A  AEMO’s power to carry out statutory functions

                   AEMO has the power to do all things necessary or convenient for or in connection with its statutory functions.

49B  Delegation

             (1)  Subject to subsection (2) and the Rules, AEMO may delegate any of its functions or powers under this Act or the Rules to:

                     (a)  a director, officer or employee of AEMO; or

                     (b)  a member of a committee established by AEMO.

             (2)  However, a function or power classified by the regulations as non‑delegable cannot be delegated.

             (3)  A delegate may, subject to AEMO’s directions, subdelegate a delegated function or power to a director, officer or employee of AEMO.

             (4)  A delegate (or subdelegate) must comply with any direction given by AEMO that is relevant to the exercise of the delegated functions or powers.


 

Division 2AEMO’s adoptive jurisdiction functions

Subdivision 1Preliminary

50  Application of this Division

             (1)  Subdivision 2 applies to, and in relation to, a State or Territory if (and only if) an Act of the State or Territory, or an instrument made under such an Act, declares that it does so apply.

             (2)  Subdivision 3 applies to, and in relation to, a State or Territory if (and only if) an Act of the State or Territory, or an instrument made under such an Act, declares that it does so apply.

             (3)  A Rule or other form of subordinate legislation made for the purposes of Subdivision 2 or 3 applies to and in relation to a State or Territory if (and only if) the relevant Subdivision applies to and in relation to that State or Territory.

50A  AEMO to account to relevant Minister for performance of adoptive functions

             (1)  AEMO must, at the written request of the Minister of an adoptive jurisdiction, provide information about the performance of its adoptive functions with respect to that jurisdiction.

             (2)  Protected information provided in response to a request under subsection (1) must be identified as such by AEMO at the time of providing the information.

             (3)  No fee is to be charged for the provision of information under this section.

Subdivision 2AEMO’s additional advisory functions

50B  Additional advisory functions

             (1)  AEMO’s additional advisory functions are as follows:

                     (a)  to prepare and publish a report on an adoptive jurisdiction’s declared power system;

                     (b)  to report to the Minister of an adoptive jurisdiction on matters relevant to the future capacity and reliability of the declared power system.

             (2)  The additional advisory functions are to be exercised as follows:

                     (a)  a report on an adoptive jurisdiction’s declared power system is to be prepared and published under paragraph (1)(a) at the request of the Minister of the relevant State or Territory;

                     (b)  a report is to be provided under paragraph (1)(b) at the request of the Minister of the relevant jurisdiction or on AEMO’s own initiative.

             (3)  A report under paragraph (1)(a) must include an assessment of the performance of connections between transmission systems and distribution systems in the relevant jurisdiction and the need (if any) for new connections.

             (4)  A request under paragraph (1)(a) or (1)(b) may be for a single report or for reports to be made on an annual or other periodic basis.

50BA  Constitutional limits on AEMO’s additional advisory functions

                   This Division only confers additional advisory functions on AEMO:

                     (a)  for purposes relating to a constitutional corporation; or

                     (b)  for purposes relating to constitutional trade or commerce.

Subdivision 3AEMO’s declared network functions

50C  AEMO’s declared network functions

             (1)  AEMO’s declared network functions are as follows:

                     (a)  to plan, authorise, contract for, and direct, augmentation of the declared shared network;

                     (b)  to provide information about the planning processes for augmentation of the declared shared network;

                     (c)  to provide information and other services to facilitate decisions for investment and the use of resources in the adoptive jurisdiction’s electricity industry;

                     (d)  to provide shared transmission services by means of, or in connection with, the declared shared network;

                     (e)  any other functions, related to the declared transmission system or electricity network services provided by means of or in connection with the declared transmission system, conferred on it under this Act or the Rules;

                      (f)  any other functions, related to the declared transmission system or electricity network services provided by means of or in connection with the declared transmission system, conferred on it under a law of the adoptive jurisdiction.

             (2)  AEMO:

                     (a)  is not limited in planning augmentation of the declared shared network to its role as National Transmission Planner; and

                     (b)  may make or issue market information instruments as may be necessary or expedient for that or any other declared network function.

50CA  Constitutional limits on AEMO’s declared network functions

                   This Division only confers declared network functions on AEMO:

                     (a)  for purposes relating to constitutional corporations; or

                     (b)  for purposes relating to constitutional trade or commerce.

50D  Network agreement

             (1)  A declared transmission system operator must have an agreement (a network agreement) with AEMO:

                     (a)  for the provision of electricity network services (shared network capability services) for the performance of AEMO’s declared network functions; and

                     (b)  containing such other provisions as may be required by the Rules.

Note:          Subsection (1) is a civil penalty provision.

             (2)  A declared transmission system operator or a prospective declared transmission system operator must, if asked to do so by AEMO, offer to enter into a network agreement with AEMO subject to and in accordance with the Rules.

             (3)  The offer must be submitted within 20 business days after the date of the request.

             (4)  The terms and conditions of a network agreement under this section are to be regarded as protected information but are liable to disclosure under the provisions of Division 6 that allow for the disclosure of protected information.

Exception:  Insofar as the terms and conditions of a network agreement can be inferred from a determination to be published on AEMO’s website under subsection 50H(6), they are not to be regarded as protected information.

             (5)  The Rules may require or regulate the provision of shared network capability services.

             (6)  If there is any inconsistency between a network agreement and a transmission determination as to the price of electricity network services to be provided by means of, or in connection with, the declared transmission system, the transmission determination prevails.

             (7)  In this section:

prospective declared transmission system operator means a person who is to carry out an augmentation of the declared transmission system and who may therefore become a declared transmission system operator on completion of the augmentation.

50E  Connection agreements

             (1)  A person to whom this section applies must have connection agreements as follows:

                     (a)  an agreement with AEMO for the provision of shared transmission services; and

                     (b)  an agreement with the relevant declared transmission system operator for the provision of connection services as defined in the Rules.

             (2)  An agreement required by this section must be in accordance with the Rules.

             (3)  If:

                     (a)  a person to whom this section applies (the applicant) wants to connect to a declared shared network; but

                     (b)  the fault levels at the proposed connection point would, if the connection were allowed, be likely to exceed the limits fixed under the Rules;

AEMO may, as a condition of entering into a connection agreement with the applicant, require the applicant to make a contribution to the cost of carrying out the augmentation to the declared shared network necessary to reduce fault levels to an acceptable level.

             (4)  This section applies to each of the following:

                     (a)  a network service provider for a distribution system situated in the adoptive jurisdiction;

                     (b)  another network service user who is provided with electricity network services by means of, or in connection with, the declared shared network.

50F  Augmentation

             (1)  A declared transmission system operator must not augment the declared shared network, or any part of the declared shared network, unless:

                     (a)  AEMO authorises or directs the operator to carry out the augmentation; or

                     (b)  the operator wins a competitive tender conducted by AEMO to carry out the augmentation; or

                     (c)  the augmentation is authorised by the Rules.

             (2)  In deciding whether a proposed augmentation to the declared shared network should proceed, AEMO:

                     (a)  must undertake a cost benefit analysis; and

                     (b)  must apply a probabilistic (as distinct from a deterministic) approach to determining the benefit of an augmentation unless:

                              (i)  a probabilistic approach will not produce a materially different result; or

                             (ii)  it is not reasonably practicable to use a probabilistic approach; or

                            (iii)  a probabilistic approach is, for some other reason, inappropriate.

Example:    Probabilistic planning is not relevant to negotiated network services. Hence, if the services to be provided as a result of the augmentation are negotiated network services, a probabilistic approach would be inappropriate.

             (3)  Subject to the Rules, AEMO must conduct a competitive tender to determine who will carry out an augmentation to a declared shared network.

             (4)  A declared transmission system operator:

                     (a)  must do anything required by the Rules to facilitate the planning, construction or operation of an augmentation; and

                     (b)  must, at AEMO’s request, do anything else reasonably required by AEMO to facilitate the planning, construction or operation of an augmentation.

Example:    A declared transmission system operator will be required by the Rules to enter into an augmentation connection agreement with the person responsible for operation of an augmentation to connect the augmentation with the declared shared network.

             (5)  A declared transmission system operator must not engage in conduct that has the effect of preventing or hindering the planning, construction or operation of an augmentation.

Note:          Subsections (1), (4) and (5) are civil penalty provisions: See the definition of civil penalty provision in subsection 2AA(1).

50G  AEMO to have qualified exemption for performing statutory functions

             (1)  For performing statutory functions, AEMO:

                     (a)  is not required to be registered as a Registered participant; and

                     (b)  is not subject to the provisions of the Rules applicable to network service providers.

             (2)  However:

                     (a)  a Rule applicable to a Registered participant or a network service provider extends (with or without modification) to AEMO if provision is made for its application (or modified application) to AEMO by the Rules; and

                     (b)  provision may be made for extending the application of such a Rule to AEMO even though AEMO does not own, control or operate the declared shared network.

50H  Resolution of dispute arising from attempt to negotiate a network agreement or augmentation connection agreement

             (1)  The AER may, on application by AEMO or 1 or more declared transmission system operators, make a determination to resolve a dispute arising from an attempt to negotiate:

                     (a)  a network agreement or an augmentation connection agreement; or

                     (b)  an amendment to a network agreement or an augmentation connection agreement.

             (2)  The determination may determine the terms and conditions of the agreement or the amendment.

             (3)  If the AER determines the terms and conditions of an agreement or an amendment, an agreement is taken to arise between the interested parties, or the agreement between the interested parties is taken to be amended, in accordance with the AER’s determination.

             (4)  A determination may only be made under this section if:

                     (a)  the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

                     (b)  the AER has given AEMO and all declared transmission system operators that are to be affected by the determination an opportunity to make representations about the terms of the proposed determination.

             (5)  A determination under this section takes effect on a date specified in the determination.

             (6)  A determination under this section must be published on AEMO’s website.

             (7)  In this section, a reference to a declared transmission system operator extends to a prospective declared transmission system operator within the meaning of subsection 50D(7).

50J  General principles governing determinations

             (1)  A determination under this Subdivision must be compatible with the proper performance of AEMO’s declared network functions.

             (2)  In determining a dispute about a network agreement or an augmentation connection agreement, or an amendment to a network agreement or an augmentation connection agreement, the AER must have regard to the Rules and the allocation of functions, powers and duties between AEMO and the declared transmission system operator, so far as relevant to:

                     (a)  the allocation of risk under such an agreement; or

                     (b)  the provision of shared network capability services; or

                     (c)  any other matter that has a bearing on the subject matter of such an agreement.

             (3)  A determination cannot alter the allocation of risk under an existing network agreement unless AEMO agrees.

             (4)  The provisions applicable to the determination of an access dispute apply to a determination by the AER under this Subdivision with the following changes:

                     (a)  paragraph 131(1)(c), subsection 131(2) and sections 132 and 133 do not apply; and

                     (b)  any further changes necessary to adapt those provisions to the determination of a dispute under this Division.

             (5)  In this section, a reference to a declared transmission system operator extends to a prospective declared transmission system operator within the meaning of subsection 50D(7).


 

Division 3Information etc to be provided to Ministers

51  Ministerial request

             (1)  The MCE or a State or Territory Energy Minister may ask AEMO for information, a report or other services.

             (2)  The request may be accompanied by a written statement of the purpose for which the information, report or other services are sought.

51A  Compliance with request

             (1)  AEMO must comply with a request under this Division.

             (2)  However, if compliance with the request would involve disclosure of protected information, AEMO may only provide the information if its disclosure is authorised under this Act or the Rules.

Note:          The Minister of an adoptive jurisdiction may be entitled to certain protected information under section 50A.

51B  Quarterly report

             (1)  AEMO must report to the MCE in each quarter on its work under this Division for the previous quarter.

             (2)  The report must:

                     (a)  summarise each request received in the relevant quarter; and

                     (b)  state by whom each request was made.


 

Division 4Fees and charges

52  AEMO fees and charges

             (1)  AEMO may:

                     (a)  determine fees and charges for services provided by it under this Act or the Rules; and

                     (b)  charge for and recover the fees and charges in accordance with this Act and the Rules.

             (2)  The fees and charges for a service are to be determined on a non‑profit basis that:

                     (a)  provides for full recovery of the costs of providing the service; and

                     (b)  does not amount to taxation; and

                     (c)  is consistent with the requirements of the Rules.

             (3)  Exact equivalence is not required between the costs of providing a service and the revenue derived from providing the service in a particular accounting period if there are reasonable grounds to believe that costs will over time approximate revenue.

Note:          This section does not prevent AEMO from generating a profit from the performance of non‑statutory functions (such as the provision of consultancy services). Any such profit would not, however, be available for distribution to members.

             (4)  Despite the above provisions, a component of AEMO’s fees and charges may, if the Rules so provide, relate to costs that are not specifically referable to services provided under this Act or the Rules.

Note:          As a general rule, AEMO’s expenditures will be allocated to services provided to the electricity industry or the gas industry. Subsection (4) deals with costs that cannot be wholly attributed to either industry.

             (5)  This section does not limit AEMO’s power to determine, charge for and recover fees and charges for carrying out functions conferred by jurisdictional legislation.

             (6)  In this section:

service includes the performance of statutory functions.


 

Division 5Information gathering

53  Information gathering powers

             (1)  If AEMO considers it reasonably necessary to do so for the exercise of a relevant function, it may:

                     (a)  make a general market information order requiring information from persons of a class specified in the order; or

                     (b)  serve a market information notice requiring information from the person to whom the notice is addressed.

             (2)  A relevant function is:

                     (a)  an NTP function; or

                     (b)  an additional advisory function; or

                     (c)  a declared network function; or

                     (d)  any other statutory function for which this Act authorises AEMO to gather information by means of a market information instrument.

             (3)  In considering whether to make a general market information order or to issue a market information notice and, if so, the terms of the order or notice, AEMO must have regard to the reasonable costs of efficient compliance.

             (4)  A market information instrument:

                     (a)  must specify:

                              (i)  the information, or categories of information, that is to be provided to AEMO; and

                             (ii)  the time by which the information is required; and

                            (iii)  in the case of a general market information order—the class of persons to which the order applies; and

                            (iv)  in the case of a market information notice—the name of the person to whom the notice is addressed; and

                     (b)  may specify the manner and form in which information must be provided.

             (5)  Without limiting subsection (4), a market information instrument:

                     (a)  may require information of any of the following kinds:

                              (i)  historic, current and forecast information;

                             (ii)  information that may be derived from other information in the possession or control of the person required to provide the information; and

                     (b)  may require the provision of information on an annual or other periodic basis.

53A  Making and publication of general market information order

             (1)  Before making a final decision to make a general market information order, AEMO must:

                     (a)  invite persons of the class to which the proposed order is addressed to make representations about the terms of the proposed order within a period (at least 20 business days) specified in the invitation; and

                     (b)  consider any written representations made in response to the invitation within the specified period.

             (2)  As soon as practicable after a general market information order is made:

                     (a)  the order must be published on AEMO’s website; and

                     (b)  notice of the making of the order must be published in a newspaper circulating generally throughout Australia.

53B  Service of market information notice

             (1)  Before serving a market information notice, AEMO must:

                     (a)  give the person on whom AEMO intends to serve the market information notice (the respondent) written notice of its intention to do so; and

                     (b)  give the respondent a draft of the market information notice.

             (2)  A notice under subsection (1) must:

                     (a)  invite the respondent to make written representations to AEMO about whether AEMO should serve the market information notice; and

                     (b)  specify the period (at least 20 business days) allowed for making the representations.

             (3)  AEMO must consider written representations made in response to the invitation within the specified period before making a final decision to serve the market information notice.

53C  Compliance with market information instrument

             (1)  A market information instrument takes effect as follows:

                     (a)  in the case of a general market information order—on publication on AEMO’s website; or

                     (b)  in the case of a market information notice—on service of the notice on the person to whom it is addressed.

             (2)  AEMO may, by written notice, exempt a person from compliance with a general market information order:

                     (a)  unconditionally or on specified conditions; and

                     (b)  wholly or to a specified extent.

             (3)  Subject to any exemption, a person who is a member of a class to which a general market information order applies must comply with the order.

Note:          Subsection (3) is a civil penalty provision.

             (4)  A person on whom a market information notice is served must comply with the notice.

Note:          Subsection (4) is a civil penalty provision.

             (5)  The duty to comply with a market information instrument prevails over a duty of confidence.

             (6)  However:

                     (a)  a person cannot be required by a market information instrument to disclose information that is the subject of legal professional privilege; and

                     (b)  a natural person cannot be required by a market information instrument to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

             (7)  A person incurs no liability, by complying with a market information instrument, for breach of contract, breach of confidence or any other civil wrong.

53D  Use of information

                   Subject to this Act, the Rules and the regulations, AEMO may use information obtained by market information instrument or in any other way for any purpose connected with the exercise of any of its statutory functions.

53E  Providing false or misleading information

                   A person must not, in purported compliance with a market information instrument, provide information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

                     (a)  in the case of a natural person—20 penalty units;

                     (b)  in the case of a body corporate—100 penalty units.


 

Division 6Protected information

Subdivision 1AEMO’s obligation to protect information

54  Protected information

             (1)  AEMO must take all reasonable measures to protect from unauthorised use or disclosure information (protected information):

                     (a)  given to it in confidence; or

                     (b)  given to it in connection with the performance of its statutory functions and classified under the Rules or the regulations as confidential information.

             (2)  AEMO makes unauthorised use of protected information if (and only if) it uses the information contrary to this Act, the Rules or the regulations.

Note:          Section 53D authorises AEMO (subject to the Act, the Rules and the regulations) to use information (whether obtained by market information instrument or in any other way) for any purpose connected with the exercise of any of its statutory functions.

             (3)  AEMO makes an unauthorised disclosure of protected information if the disclosure is not authorised under this Act, the Rules or the regulations.

Subdivision 2Disclosure of protected information held by AEMO

54A  Authorised disclosure of protected information

             (1)  AEMO is authorised to disclose protected information in accordance with this Subdivision.

             (2)  AEMO may also be authorised to disclose protected information by the Rules or the regulations (or both).

54B  Disclosure with prior written consent

                   AEMO is authorised to disclose protected information if it has the written consent of the person from whom the information was obtained.

54C  Disclosure required or permitted by law etc

             (1)  The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised.

             (2)  The disclosure of protected information to any of the following is authorised:

                     (a)  the Australian Competition and Consumer Commission;

                     (b)  the Australian Energy Regulator;

                     (c)  the Australian Energy Market Commission;

                     (d)  the Economic Regulation Authority of Western Australia;

                     (e)  a jurisdictional regulator;

                      (f)  if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end‑use consumer information—the energy ombudsman;

                     (g)  a prescribed body;

                     (h)  any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers.

             (3)  A person or body to whom protected information is disclosed under subsection (2) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.

             (4)  AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2).

             (5)  The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO or a body mentioned in subsection (2) is authorised.

54D  Disclosure for purposes of court and tribunal proceedings

                   AEMO is authorised to disclose protected information for the purposes of:

                     (a)  civil or criminal proceedings; or

                     (b)  a proceeding before the Tribunal or a tribunal established by or under a law of the Commonwealth, a State or a Territory.

54E  Disclosure of document with omission of protected information

             (1)  If a document contains both protected information and other information, AEMO may disclose the document with the omission of the protected information.

             (2)  AEMO must include a note at the place in the document from which the protected information is omitted to the effect that protected information has been omitted from the document.

54F  Disclosure of non‑identifying information

                   AEMO is authorised to disclose protected information if:

                     (a)  it does not disclose any elements of the information that could lead to the identification of the person to whom the information relates; or

                     (b)  the manner in which it discloses the information does not identify the person to whom that information relates.

Example:    Protected information may be combined or arranged with other information to prevent the identification of the person to whom the protected information relates.

54G  Disclosure of protected information for safety, proper operation of the market etc

             (1)  AEMO is authorised to disclose protected information if:

                     (a)  the disclosure is necessary for:

                              (i)  the safety, reliability or security of the supply of electricity; or

                             (ii)  the safety, reliability or security of the national electricity system; or

                     (b)  the disclosure is necessary for the proper operation of the national electricity market; or

                     (c)  the information is customer profiling information for facilitating retail competition; or

                     (d)  the information is in the public domain.

             (2)  AEMO may impose conditions to be complied with in relation to information disclosed under subsection (1)(a), (b) or (c).

54H  Disclosure of protected information authorised if detriment does not outweigh public benefit

             (1)  Subject to this section, AEMO is authorised to disclose protected information after the restricted period if AEMO is of the opinion:

                     (a)  that the disclosure of the information would not cause detriment to the person who has given it or to a person from whom that person received it; or

                     (b)  that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

             (2)  Before disclosing the protected information, AEMO must give the person who gave the protected information:

                     (a)  a written notice (an initial disclosure notice) stating:

                              (i)  that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that AEMO is of the opinion required by subsection (1); and

                            (iii)  that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

                     (b)  AEMO’s decision, in writing, setting out the reasons why AEMO:

                              (i)  wishes to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (3)  If AEMO is aware that the person who gave the protected information in turn received the information from another person and is aware of the other person’s identity and address, AEMO must, before disclosing the information give the other person:

                     (a)  a written notice (an initial disclosure notice) stating:

                              (i)  that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that AEMO is of the opinion required by subsection (1); and

                            (iii)  that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

                     (b)  AEMO’s decision, in writing, setting out the reasons why AEMO:

                              (i)  wishes to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (4)  AEMO must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice.

             (5)  The period specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

             (6)  If, after considering the representations, AEMO wishes to disclose the protected information, AEMO must give the person given the initial disclosure notice:

                     (a)  a written notice (a further disclosure notice) stating:

                              (i)  that AEMO intends to disclose the information, specifying the nature of the intended disclosure; and

                             (ii)  that AEMO is of the opinion required by subsection (1); and

                     (b)  AEMO’s decision, in writing, setting out the reasons why AEMO:

                              (i)  intends to make the disclosure; and

                             (ii)  is of the opinion required by subsection (1).

             (7)  For the purposes of this section, the disclosure of anything that is already in the public domain at the time AEMO wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).

             (8)  In this section:

restricted period means a period of 5 business days after—

                     (a)  an initial disclosure notice has been given under this section; or

                     (b)  a further disclosure notice has been given under this section;

whichever is the later.


 

Division 7AEMO’s statutory funds

55  Definitions

                   In this Division:

Rule fund means a fund existing in NEMMCO’s books as a Rule fund immediately before the changeover date or a fund established as a Rule fund under this Division.

55A  AEMO’s Rule funds

             (1)  Subject to the Rules, AEMO is responsible for the administration of each Rule fund.

             (2)  AEMO must, if required to do so by the Rules, establish and maintain a new Rule fund in accordance with the Rules.

             (3)  Nothing in this Act or the Rules constitutes AEMO, or a director of AEMO, as a trustee of a Rule fund.

55B  Payments into and out of Rule funds

             (1)  AEMO must ensure that there is paid into each Rule fund:

                     (a)  all amounts received by AEMO that, under the Rules, are required to be paid into the fund; and

                     (b)  income from investment of money in the fund.

             (2)  Money held in a Rule fund may be applied only in payment of:

                     (a)  amounts that, under the Rules, are required or permitted to be paid from the fund; or

                     (b)  liabilities or expenses of the fund.

55C  Investment

             (1)  AEMO may invest money standing to the credit of a Rule fund.

             (2)  AEMO must, in exercising the power of investment, exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of others.


 

Part 5AFunctions and powers of Minister

  

57A  Functions and powers of Minister

             (1)  The Minister has the functions and powers conferred on him or her under this Act, the regulations or the Rules.

             (2)  The Minister has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.


 

Part 5BFunctions and powers of Tribunal

  

57B  Functions and powers of Tribunal under this Act

             (1)  The Tribunal has the functions and powers conferred on it under Division 3A of Part 6 and any regulations made for the purposes of that Division.

             (2)  The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.


 

Part 5CConsumer Advocacy Panel

Division 1Establishment and functions of the Panel

57CA  Establishment of Panel

                   The Consumer Advocacy Panel is established by this section.

57CB  Functions of the Panel

             (1)  The Panel has the following functions:

                     (a)  to identify areas of research that would be of benefit to consumers of electricity or natural gas (or both);

                     (b)  to develop, and submit for the approval of the MCE, guidelines for the allocation of grants for consumer advocacy projects and research projects for the benefit of consumers of electricity or natural gas (or both);

                     (c)  to prepare, and submit for the approval of the MCE, annual budgets for the allocation of grants for consumer advocacy projects and research projects for the benefit of consumers of electricity or natural gas (or both);

                     (d)  to determine (subject to the approved guidelines and the approved budget) how grants for consumer advocacy projects and research projects for the benefit of consumers of electricity or natural gas (or both) are to be allocated;

                     (e)  to prepare, and submit for the approval of the MCE, guidelines for the assistance of applicants for grants for consumer advocacy projects and research projects for the benefit of consumers of electricity or natural gas (or both);

                      (f)  to publish on the Panel’s website and in other appropriate ways the results of research supported by a grant under Division 6 and other research of interest to consumers of electricity or natural gas (or both);

                     (g)  to perform other functions conferred on the Panel by the National Energy Laws or the Jurisdictional Energy Laws or by this or any other Act or law;

                     (h)  to perform any other function that is reasonably incidental to any of the foregoing.

             (2)  The Panel may, in performing its functions with respect to the allocation of grants:

                     (a)  initiate its own research projects to be funded through the provision of grants;

                     (b)  invite or accept applications for grants from other persons or bodies.

57CBAI  Commonwealth consent to conferral of functions etc. on Panel

General rule

             (1)  A State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the Panel for the purposes of that law or instrument.

Note:          Section 57CBAK sets out when such a law or instrument imposes a duty on the Panel.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law or local energy instrument to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Panel; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Panel cannot perform a duty or function, or exercise a power, under a State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.

             (4)  A local energy instrument may confer functions or powers, or impose duties, on the Panel only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.

             (5)  To avoid doubt, if a State/Territory energy law is also a local energy instrument, subsection (4) applies to the law.

57CBAJ  How duty is imposed

Application

             (1)  This section applies if a State/Territory energy law or local energy instrument purports to impose a duty on the Panel.

Note 1:       Section 57CBAK sets out when such a law or instrument imposes a duty on the Panel.

Note 2:       Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Panel.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 57CBAI to the imposition of the duty by that law or instrument).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

             (5)  The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the Panel.

             (6)  Subsections (1) to (5) do not limit section 57CBAI.

57CBAK  When a State/Territory energy law etc. imposes a duty

                   For the purposes of sections 57CBAI and 57CBAJ, a State/Territory energy law or local energy instrument imposes a duty on the Panel if:

                     (a)  the law or instrument confers a function or power on the Panel; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the Panel to perform the function or to exercise the power.

57CC  Objectives

                   In performing its functions:

                     (a)  the Panel must have regard to any relevant objectives set out in a National Energy Law; and

                     (b)  the Panel must seek to promote the interests of all consumers of electricity or natural gas while paying particular regard to benefiting small to medium consumers of electricity or natural gas.

57CD  Independence

                   Subject to this Act, the Panel is not subject to direction by the AEMC or the MCE in the performance of its functions.


 

Division 2Membership of Panel

57CE  Membership of Panel

             (1)  The Panel is to consist of a Chairperson and 4 other members appointed by the Minister.

             (2)  The Chairperson and the other Panel members must be persons who are recommended for appointment as such by the MCE on the basis that together they have knowledge, experience or abilities of the following kinds:

                     (a)  knowledge of the energy sector;

                     (b)  an ability to assess funding applications against specified criteria;

                     (c)  experience in public interest advocacy;

                     (d)  an ability to assess proposals for energy sector research that would benefit consumers of electricity or natural gas.

             (3)  A person is not eligible for appointment to the Panel unless the person has made a statutory declaration disclosing to the AEMC and the MCE interests that:

                     (a)  conflict, or could conflict, with the Panel member’s duty as such; or

                     (b)  would be reasonably perceived as being interests of a kind that would create, or could lead to, such a conflict.

             (6)  An act or proceeding of the Panel is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

57CF  Terms and conditions of appointment

             (1)  A Panel member will be appointed:

                     (a)  for a term (not exceeding 4 years) specified in the instrument of appointment; and

                     (b)  on conditions (including conditions as to remuneration) specified in the instrument of appointment.

             (2)  A Panel member’s term and conditions of appointment are to be fixed in accordance with a resolution of the MCE.

             (3)  It will, however, be a condition of appointment that the Panel member remain independent (to the satisfaction of the MCE) of:

                     (a)  the regulatory authorities exercising functions or powers under the National Energy Laws; and

                     (b)  businesses engaged in the industries regulated under the National Energy Laws; and

                     (c)  bodies prescribed by regulation for the purposes of this paragraph.

57CG  Removal from office

             (1)  The Minister must, if the MCE so resolves, remove a Panel member from office for:

                     (a)  breach of, or non‑compliance with, a condition of appointment; or

                     (b)  misconduct; or

                     (c)  failure or incapacity to carry out official functions satisfactorily.

             (2)  If the AEMC has reason to believe that material grounds for removal of a Panel member exist, the AEMC must bring the matter to the attention of the MCE.

57CH  Vacation of office

             (1)  The office of a Panel member becomes vacant if the member:

                     (a)  dies; or

                     (b)  completes a term of office and is not re‑appointed; or

                     (c)  resigns by written notice to the Minister; or

                     (d)  is removed from office under section 57CG.

             (2)  On the office of a Panel member becoming vacant, a person must be appointed in accordance with this Act to the vacant office.

57CI  Acting appointments as Chairperson or Panel member

             (1)  The AEMC may:

                     (a)  appoint a Panel member to act in the office of the Chairperson during any period for which the Chairperson is unable to perform official functions or the office of the Chairperson is vacant; or

                     (b)  appoint a person to act in the office of a Panel member during any period for which the member is unable to perform official functions, is acting in the office of the Chairperson, or the office is vacant.

             (2)  A person appointed as acting Chairperson has, while acting in the office of the Chairperson, all the functions and powers of the Chairperson and a person appointed as an acting Panel member has, while acting as such, all the functions and powers of a Panel member.

             (3)  If:

                     (a)  the office of the Chairperson or a Panel member is vacant; and

                     (b)  a person is appointed under this section to act in the vacant office;

the acting appointment will be for a period ending when the office is filled by an ordinary appointment or for a period of 8 months (whichever ends first).

             (4)  The conditions of appointment of an acting Chairperson or acting Panel member will be as determined by the AEMC subject to relevant guidelines (if any) issued by the MCE.

             (5)  An act or proceeding of the Panel is not invalid by reason only of a defect in an appointment under this section or the fact that a person appointed under this section acts in the office concerned when the circumstances for so acting have not yet arisen or have ceased to exist.


 

Division 3The Panel’s Executive Director and other staff

57CJ  Executive Director and other staff

             (1)  There is to be an Executive Director of the Panel.

             (2)  The Panel is to have such other staff as are reasonably necessary for the effective performance of its functions.

             (3)  The Executive Director is to be appointed by agreement between the AEMC and the Panel on conditions determined by agreement between the AEMC and the Panel.

             (4)  The other staff are to be appointed by the AEMC, on conditions determined by the AEMC, after consultation with the Panel.

             (5)  The Executive Director and other staff of the Panel are to be employed by the AEMC and are to be subject to the control and direction of the AEMC, but not so as to allow a direction of the AEMC to derogate from the independence of the Panel in the performance of its functions.

             (6)  The AEMC cannot remove the Executive Director from office unless the Panel agrees.

             (7)  The AEMC cannot remove any other staff of the Panel unless the AEMC has first consulted with the Panel.


 

Division 4The Panel’s proceedings

57CK  Meetings of the Panel

             (1)  The Chairperson may convene as many meetings of the Panel as he or she considers necessary for the efficient conduct of its affairs.

             (2)  The Chairperson must convene a meeting of the Panel if requested to do so in writing signed by the other members.

             (3)  The Chairperson must preside at a meeting of the Panel.

             (4)  A quorum of the Panel consists of the Chairperson and 2 other members.

             (5)  A decision carried by at least 3 votes cast by members present at a meeting of the Panel is a decision of the Panel.

             (6)  Each member present at a meeting of the Panel has 1 vote on a matter arising for decision and, if the votes are equal, the Chairperson may exercise a casting vote.

             (7)  If the Panel so determines, a telephone, video or other form of conference between members of the Panel will, for the purposes of this section, be taken to be a meeting of the Panel at which the participating members are present.

             (8)  The Panel must have accurate minutes kept of its meetings.

             (9)  To the extent the Panel’s procedure is not prescribed by provisions of this Act (or the regulations), the Panel may regulate its own procedure.

57CL  Disclosure of interest

             (1)  If:

                     (a)  a Panel member has a direct or indirect interest in a matter under consideration, or about to be considered, by the Panel; and

                     (b)  the interest could conflict with the Panel member’s duty;

the Panel member must, as soon as practicable, disclose the interest at a meeting of the Panel.

             (2)  A disclosure under subsection (1) must be recorded in the minutes of the meeting at which the disclosure is made.

             (3)  A Panel member who discloses a potential conflict of interest in relation to a matter under this section must not, unless the Panel otherwise determines, take part in any deliberations or decision of the Panel in relation to the matter.


 

Division 5Immunity

57CM  Immunity

             (1)  No personal liability attaches to a Panel member or a member of the staff of the Panel for an act or omission in good faith in the performance or exercise, or purported performance or exercise, of a function or power associated with the activities of the Panel.

             (2)  A liability that would, but for subsection (1), lie against a person lies instead against the AEMC.


 

Division 6Panel funding, grants and annual report

57CN  Budgets

             (1)  The Panel must prepare, and submit for the approval of the MCE, in accordance with any requirements of the Minister, an annual budget for:

                     (a)  administrative costs associated with the work of the Panel, including the remuneration of Panel members and the costs of employing its staff; and

                     (b)  the allocation of available funding.

                     (2)  The Panel must also prepare and submit to the Minister such other budgets in accordance with any requirements of the Minister for any period and with respect to any matters determined by the Minister.

             (3)  The Panel must:

                     (a)  submit its annual budget to MCE for its approval and, at the same time, furnish a copy of that budget to the AEMC; and

                     (b)  submit any other budget to MCE in accordance with the requirements of the Minister and, at the same time, furnish a copy of that budget to the AEMC.

             (4)  The part of a budget prepared under paragraph (1)(a) must deal with the allocation of administrative costs (in the form of proposals or projections) between:

                     (a)  costs relating to the performance of the Panel’s functions relevant to consumers of electricity; and

                     (b)  costs relating to the performance of the Panel’s functions relevant to consumers of natural gas; and

                     (c)  costs relating to the performance of the Panel’s functions relevant to both consumers of electricity and consumers of natural gas.

             (5)  The part of a budget prepared under paragraph (1)(b) must deal with the allocation of grants (in the form of proposals or projections) between:

                     (a)  consumer advocacy projects for the benefit of consumers of electricity; and

                     (b)  research projects for the benefit of consumers of electricity; and

                     (c)  consumer advocacy projects for the benefit of consumers of natural gas; and

                     (d)  research projects for the benefit of consumers of natural gas; and

                     (e)  projects in research or consumer advocacy for the joint benefit of consumers of electricity and consumers of natural gas.

             (6)  The Panel must, in preparing a budget under subsection (1):

                     (a)  seek to maximise the amount of funding available for the allocation of grants by keeping administrative costs associated with the work of the Panel to a minimum; and

                     (b)  ensure that money that is proposed to be made available for research projects initiated by the Panel does not exceed 25% of the Panel’s total budget prepared under paragraph (1)(b); and

                     (c)  clearly distinguish between:

                              (i)  money that is proposed to be made available for research projects initiated by the Panel; and

                             (ii)  money that is proposed to be made available for research projects put forward by other persons or bodies.

             (7)  The Panel must, in preparing a budget, undertake consultations in accordance with the regulations.

             (8)  The MCE may approve any budget with or without amendment.

57CO  Funding for administrative costs associated with Panel

                   The AEMC and AEMO are to be responsible for meeting all administrative costs associated with the work of the Panel, as set out in the approved budget, on the basis that:

                     (a)  the AEMC will be responsible for such costs relating to the performance of functions relevant to consumers of natural gas; and

                     (b)  AEMO will be responsible for such costs relating to the performance of functions relevant to consumers of electricity; and

                     (c)  both bodies will be jointly responsible for such costs relating to the performance of functions relevant to both consumers of electricity and consumers of natural gas (on the basis that the budget will specify the division of costs between the 2 bodies).

57CP  Grant funding

                   The AEMC and AEMO are to be responsible for meeting the grant funding requirements of the Panel, as set out in the approved budget, on the basis that:

                     (a)  the AEMC will be responsible for grant funding of consumer advocacy and research projects for the benefit of consumers of natural gas; and

                     (b)  AEMO will be responsible for grant funding of consumer advocacy and research projects for the benefit of consumers of electricity; and

                     (c)  both bodies will be jointly responsible for such costs relating to grant funding of projects in research or consumer advocacy for the joint benefit of consumers of electricity and consumers of natural gas (on the basis that the budget will specify the division of costs between the 2 bodies).

57CQ  Provision of funding

             (1)  The funding requirements placed on the AEMC and AEMO under sections 57CO and 57CP are subject to the following additional provisions:

                     (a)  the AEMC may allocate some or all of its costs under those sections to AEMO after taking into account the extent to which AEMO’s functions relate to the provision of gas services within each of the various Australian jurisdictions (and AEMO must accept responsibility for those costs as allocated by the AEMC);

                     (b)  the amounts to be provided by the AEMC and AEMO (after taking into account the operation of paragraph (a)) are to be made available under a scheme agreed between the AEMC, AEMO and the Panel or, in default of an agreement, on a quarterly basis.

             (2)  Any money provided under subsection (1):

                     (a)  must be held by the AEMC in a separate account; and

                     (b)  may be paid by the AEMC to meet the administrative costs associated with the work of the Panel, and for the making of grants, in accordance with the provisions of this Part.

57CR  Criteria and guidelines for grant allocation

             (1)  The criteria for grant allocation are to be determined by the MCE and promulgated in the form of regulations under this Act.

             (2)  The Panel is responsible for developing, in consultation with the AEMC and other interested stakeholders, guidelines for grant allocation that are consistent with the MCE’s criteria.

             (3)  The guidelines are to be submitted for the approval of the MCE.

             (4)  The MCE may approve the guidelines with or without amendment.

             (5)  The criteria and approved guidelines for grant allocation are to be published on the Panel’s website.

57CS  Implementation of determinations of Panel

             (1)  The AEMC must, as directed by the Panel, make grants towards consumer advocacy projects and research projects for the benefit of consumers of electricity or natural gas (or both).

             (2)  A direction under this section must be consistent with:

                     (a)  the approved budget; and

                     (b)  the MCE’s criteria for grant allocation; and

                     (c)  the approved guidelines (if any) for grant allocation.

             (3)  The Panel must, in providing a direction under this section, certify compliance with subsection (2).

             (4)  The terms and conditions on which a grant is to be made are to be as determined by the Panel (after taking into account any relevant criteria for grant allocation).

             (5)  The conditions may include, for example:

                     (a)  that the person to whom the grant is made must ensure that the application of the funds is audited by an independent person;

                     (b)  that the person to whom the grant is made must provide a report or reports on the activities undertaken or outcomes achieved on account of work undertaken pursuant to the grant.

             (6)  The Panel may, in operating under its budget during the course of a financial year, make adjustments between allocations under subsection 57CN(5), but not so as to breach the limit on projects initiated by the Panel under paragraph 57CN(6)(b) or to alter responsibility for funding between the AEMC and AEMO under section 57CO.

57CT  Annual report

             (1)  The Panel must, within 14 days after the end of each financial year, submit to the AEMC a draft report:

                     (a)  on the grants made for projects for consumer advocacy or research during the financial year, distinguishing between:

                              (i)  each form of project identified under subsection 57CN(5); and

                             (ii)  the 2 categories of projects under subsection 57CN(6)(c); and

                     (b)  on the activities undertaken or the outcomes achieved during the financial year by projects for consumer advocacy or research supported by grants made during the financial year or earlier; and

                     (c)  generally on the work of the Panel during the financial year.

             (2)  The draft report must conform with any requirements imposed by regulation.

             (3)  The Panel must:

                     (a)  consider any comments made by the AEMC on the draft report within 28 days after submission of the draft report; and

                     (b)  make any revisions of the draft report the Panel considers appropriate in the light of those comments; and

                     (c)  submit a final report to the AEMC within 2 months after the end of the financial year to which the report relates.

             (4)  The Panel’s final report is to be included as part of the AEMC’s report for the relevant financial year.

             (5)  The Panel’s final report for each financial year is to be published on the Panel’s website within a reasonable time after the AEMC’s annual report for the year is laid before both Houses of Parliament.


 

Part 6Proceedings under this Act

Division 1General

59  Instituting civil proceedings under this Act

             (1)  Proceedings may not be instituted in a relevant court in respect of a breach of a provision of this Act, the regulations or the Rules that is not an offence provision by any person (other than the AER) except as provided for in this Part.

             (2)  Despite subsection (1), a person may institute a proceeding in the Court in respect of any matter or thing arising out of or that is the subject of a Rule dispute if the Rules provide that a proceeding may be instituted in the Court in respect of that matter or thing.

             (3)  To avoid doubt, nothing in this Part prevents the use of this Act, the regulations or the Rules as evidence in any proceedings.


 

Division 1AEnforceable undertakings

59A  Enforceable undertakings

             (1)  The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Act or the Rules.

             (2)  A person may withdraw or vary the undertaking at any time, but only with the consent of the AER.

             (3)  If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4).

             (4)  If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders:

                     (a)  an order directing the person to comply with that term of the undertaking;

                     (b)  an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach;

                     (c)  an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the Court considers appropriate.


 

Division 2Proceedings by the AER in respect of this Act, the regulations and the Rules

60  Time limit within which AER may institute proceedings

             (1)  A proceeding for a breach of a provision of this Act, the regulations or the Rules by a person that is not an offence provision may only be instituted by the AER within 6 years of the date on which the breach occurred.

             (2)  A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred.

61  Proceedings for breaches of a provision of this Act, the regulations or the Rules that are not offences

             (1)  The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of a provision of this Act, the regulations or the Rules that is not an offence provision.

Note:          A Supreme Court of a State may hear an application by the AER under subsection (1) by operation of subsection 39(2) of the Judiciary Act 1903.

             (2)  If the order declares the person to be in breach of a provision of this Act, the regulations or the Rules that is not an offence provision, the order may include one or more of the following:

                     (a)  an order that the person pay a civil penalty determined in accordance with this Act, the regulations and the Rules;

                     (b)  an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

                     (c)  an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

                     (d)  an order that the person implement a specified program for compliance with this Act, the regulations and the Rules;

                     (e)  an order of a kind prescribed by the regulations.

             (3)  If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Act, the regulations or the Rules that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the Court’s opinion, it is desirable to do so—requiring the person to do something.

             (4)  The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

61A  Proceedings for declaration that a person is in breach of a conduct provision

             (1)  The Court may make an order, on application by a person other than the AER, declaring that another person is in breach of a conduct provision.

             (2)  If the order declares a person to be in breach of a conduct provision, the order may include one or more of the following:

                     (a)  an order that the person in breach cease, within a specified period, the act, activity or practice constituting the breach;

                     (b)  an order that the person in breach take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

                     (c)  an order that the person in breach implement a specified program for compliance with this Act, the regulations and the Rules;

                     (d)  an order of a kind prescribed by the regulations.

             (3)  If a person has engaged, or is engaging or proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction:

                     (a)  restraining the first mentioned person from engaging in the conduct; and

                     (b)  if, in the Court’s opinion, it is desirable to do so—requiring the first mentioned person to do something.

             (4)  The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

61B  Actions for damages by persons for breach of conduct provisions

                   A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction.

62  Additional Court orders

                   An order under section 61 by the Court may, in relation to a Registered participant that has been declared in that order to be in breach of a provision of this Act, the regulations or the Rules that is not an offence provision, also include either or both of the following:

                     (a)  a direction that the Registered participant’s loads be disconnected in accordance with the Rules;

                     (b)  a direction that the Registered participant be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by AEMO.

63  Orders for disconnection in certain circumstances where there is no breach

             (1)  The Court, on application by the AER on behalf of the Commonwealth, may make an order that directs that a Registered participant’s loads be disconnected if a relevant disconnection event occurs.

             (2)  In this section:

relevant disconnection event means an event specified in the Rules as being an event for which a Registered participant’s loads may be disconnected, being an event that does not constitute a breach of the Rules.

64  Matters for which there must be regard in determining amount of civil penalty

                   Every civil penalty ordered to be paid by a person declared to be in breach of a provision of this Act, the regulations or the Rules must be determined having regard to all relevant matters, including:

                     (a)  the nature and extent of the breach; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the breach; and

                     (c)  the circumstances in which the breach took place; and

                     (d)  whether the person has engaged in any similar conduct and been found to be in breach of a provision of this Act, the Rules or the regulations in respect of that conduct; and

                     (e)  whether the service provider had in place a compliance program approved by the AER or required under the Rules, and if so, whether the service provider has been complying with that program.

65  Breach of a civil penalty provision is not an offence

                   A breach of a civil penalty provision is not an offence.

66  Breaches of civil penalty provisions involving continuing failure

                   For the purpose of determining the civil penalty for a breach of a civil penalty provision if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed.

67  Conduct in breach of more than one civil penalty provision

             (1)  If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Act against the person in relation to the breach of any one or more of those provisions.

             (2)  However, the person is not liable to more than one civil penalty under this Act in respect of the same conduct.

Note:          Clause 39 of Schedule 2 to this Act sets out further provisions in relation to double jeopardy.

68  Persons involved in breach of civil penalty provision or conduct provision

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or

                     (b)  be in any way directly or indirectly knowingly concerned in, or a party to, a breach of a civil penalty provision or conduct provision by another person.

             (2)  This Act applies to a person who breaches subsection (1) in relation to a civil penalty provision or conduct provision as if the person were a person who has breached the civil penalty provision or conduct provision.

68A  Attempt to breach civil penalty provision

                   A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

69  Civil penalties payable to the Commonwealth

                   If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth.


 

Division 2AProceedings before, and awards etc of, Dispute resolution panels

69A  Commercial Arbitration Acts apply to proceedings before Dispute resolution panels

             (1)  The procedural Parts of the Commercial Arbitration Act of a State or Territory apply to the hearing of a Rule dispute in the State or Territory and to a decision or determination of a Dispute resolution panel:

                     (a)  as if:

                              (i)  the Rules providing for a Rule dispute were an arbitration agreement within the meaning of that Act; and

                            (ia)  the referral of the Rule dispute to a Dispute resolution panel in accordance with the Rules were a referral to arbitration in accordance with an arbitration agreement; and

                             (ii)  a reference in those Parts to an arbitrator or umpire were a reference to the Dispute resolution panel; and

                            (iii)  a reference to a party to an arbitration agreement, or in an arbitration proceeding, in those Parts were a reference to a party to the Rule dispute; and

                            (iv)  in those Parts for “unless otherwise agreed in writing by the parties to the arbitration agreement” there were substituted “unless the Rules provide otherwise”; and

                             (v)  a reference to an award of an arbitrator or umpire in those Parts were a reference to a decision or determination of a Dispute resolution panel; and

                     (b)  with any other alterations and modifications that are necessary.

             (2)  In this section:

procedural Parts of the Commercial Arbitration Act of a State or Territory means, if a Rule dispute is heard and determined in the State or Territory, the Parts of an Act of the State or Territory or another State or Territory (as the case requires) prescribed by the regulations as corresponding to Parts 3, 4 and 6 of the Commercial Arbitration and Industrial Referral Agreements Act 1986 of South Australia.


 

Division 3Judicial review of AEMO decisions and determinations under this Act, the regulations and the Rules

70  Applications for judicial review

             (1)  A person aggrieved by:

                     (a)  a decision or determination of AEMO under this Act, the regulations or the Rules; or

                     (b)  a failure by AEMO to make a decision or determination under this Act, the regulations or the Rules; or

                     (c)  conduct engaged in, or proposed to be engaged in, by AEMO for the purpose of making a decision or determination under this Act, the regulations or the Rules;

may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct.

Note:          The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

             (2)  Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination.

             (3)  In this section:

person aggrieved includes a person whose interests are adversely affected.

71  Appeals on questions of law from decisions or determinations of Dispute resolution panels

             (1)  A person who is a party to a Rule dispute may appeal to the Court, on a question of law, against a decision or determination of a Dispute resolution panel.

             (2)  The review provisions of the Commercial Arbitration Act of a State or Territory apply to a decision or determination of a Dispute resolution panel in the State or Territory:

                     (a)  as if:

                              (i)  the Rules providing for a Rule dispute were an arbitration agreement within the meaning of that Act; and

                             (ii)  a reference to an arbitration in those provisions were a reference to the hearing of the Rule dispute; and

                            (iii)  a reference in those provisions to an award of an arbitrator or umpire were a reference to a decision or determination of a Dispute resolution panel; and

                            (iv)  a reference to a party to an arbitration agreement, or in an arbitration proceeding, in those provisions were a reference to a party to the Rule dispute; and

                             (v)  sections 40 and 41 were omitted; and

                     (b)  with any other alterations and modifications that are necessary.

             (3)  In this section:

review provisions of the Commercial Arbitration Act of a State or Territory means, if a Rule dispute is heard and determined in the State or Territory, the Parts of an Act of that State or Territory or an Act of another State or Territory (as the case requires) prescribed by the regulations as corresponding to Part 5 of the Commercial Arbitration and Industrial Referral Agreements Act 1986 of South Australia.


 

Division 3AMerits review and other non‑judicial review

Subdivision 1Interpretation

71A  Definitions

                   In this Division:

affected or interested person or body means:

                     (a)  a regulated network service provider to whom the reviewable regulatory decision applies;

                     (b)  a network service provider, user, prospective user or end user whose commercial interests are materially affected by the reviewable regulatory decision;

                     (c)  a user or consumer association.

applicant means:

                     (a)  an affected or interested person or body who has been granted leave to apply for review by the Tribunal under Subdivision 2; or

                     (b)  a person who makes an application under section 71S.

average annual regulated revenue means the annual average of regulated revenue calculated for the regulatory period of a network revenue or pricing determination.

information disclosure decision means:

                     (a)  a decision to disclose information made by the AER under section 28ZB; or

                     (b)  a decision to disclose information made by AEMO under section 54H.

intervener means a person or body referred to in section 71J, 7IK or 71L who has intervened in a review under Subdivision 2 with the leave of the Tribunal or otherwise.

prospective user means a person who:

                     (a)  is a Registered participant, or is capable of becoming a Registered participant; and

                     (b)  seeks or wishes to be provided with an electricity service;

but does not include a network service provider.

regulatory period means the period specified in a network revenue or pricing determination to be the regulatory period.

regulated revenue means the total revenue earned or to be earned by a regulated network service provider:

                     (a)  under; and

                     (b)  during the regulatory period of;

a network revenue or pricing determination through the provision of the direct control network services to which that determination applies.

reviewable regulatory decision means:

                     (a)  a network revenue or pricing determination that sets a regulatory period; or

                     (b)  any other determination (including a distribution determination or transmission determination) or decision of the AER under the Rules that is prescribed by the regulations to be a reviewable regulatory decision;

but does not include a decision of the AER made under Division 6 of Part 3.

review under this Division means a review under Subdivision 2 or Subdivision 3.

small/medium user or consumer intervener means a user or consumer intervener consisting of an association or group of which:

                     (a)  the members are only small to medium users or end users; or

                     (b)  an object or purpose is to promote the interests of small to medium users or end users.

small to medium user or end user means a user or end user whose annual consumption of electricity does not exceed a level (expressed in megawatt hours) fixed by Regulation for the purposes of this definition.

user means a person who:

                     (a)  is a Registered participant, or is capable of becoming a Registered participant; and

                     (b)  is provided with an electricity service;

but does not include a network service provider.

user or consumer association means an association or body (whether incorporated or unincorporated):

                     (a)  the members of which include more than 1 user, prospective user or end user; and

                     (b)  that represents and promotes the interests of those members in relation to the provision of electricity services.

user or consumer interest group means an association or body (whether incorporated or unincorporated):

                     (a)  that has, as an object or purpose, the object or purpose of representing and promoting the interests of users or prospective users or end users of electricity services; but

                     (b)  the members of which need not include a user, prospective user or end user.

user or consumer intervener means:

                     (a)  a user or consumer association; or

                     (b)  a user or consumer interest group;

that has made a submission or comment in relation to the making of a reviewable regulatory decision following an invitation to do so by the AER under this Act or the Rules.

Subdivision 2Merits review for reviewable regulatory decisions

71B  Applications for review

             (1)  An affected or interested person or body, with the leave of the Tribunal, may apply to the Tribunal for a review of a reviewable regulatory decision.

             (2)  An application must:

                     (a)  be made in the form and manner determined by the Tribunal; and

                     (b)  specify the grounds for review being relied on.

71C  Grounds for review

             (1)  An application under subsection 71B(1) may be made only on 1 or more of the following grounds:

                     (a)  the AER made an error of fact in its findings of facts, and that error of fact was material to the making of the decision;

                     (b)  the AER made more than 1 error of fact in its findings of facts, and that those errors of fact, in combination, were material to the making of the decision;

                     (c)  the exercise of the AER’s discretion was incorrect, having regard to all the circumstances;

                     (d)  the AER’s decision was unreasonable, having regard to all the circumstances.

             (2)  It is for the applicant to establish a ground listed in subsection (1).

71D  By when an application must be made

                   An application under subsection 71B(1) in respect of a reviewable regulatory decision must be made no later than 15 business days after the reviewable regulatory decision is published in accordance with this Act or the Rules.

71E  Tribunal must not grant leave unless serious issue to be heard and determined

                   Subject to this Subdivision, the Tribunal must not grant leave to apply under subsection 71B(1) unless it appears to the Tribunal that there is a serious issue to be heard and determined as to whether a ground for review set out in subsection 71C(1) exists.

71F  Leave must be refused if application is about an error relating to revenue amounts below specified threshold

             (1)  This section applies if:

                     (a)  leave to apply under subsection 71B(1) is in relation to a reviewable regulatory decision that is a network revenue or pricing determination; and

                     (b)  the ground for review relied on by the applicant relates to the amount of revenue that may be earned by a regulated network service provider that is specified in or derived from that decision.

             (2)  Despite section 71E, the Tribunal must not grant leave to apply under subsection 71B(1) even if there is a serious issue to be heard and determined as to whether a ground for review set out in subsection 71C(1) exists unless the amount that is specified in or derived from the decision exceeds the lesser of $5,000,000 or 2% of the average annual regulated revenue of the regulated network service provider.

71G  Tribunal must refuse to grant leave if submission not made or is made late

                   The Tribunal must not grant leave to apply under subsection 71B(1) to a person or body referred to in paragraph (b) or (c) of the definition of affected or interested person or body if that person or body:

                     (a)  did not make a submission or comment in relation to the making of the decision following an invitation by the AER to do so under this Act or the Rules; or

                     (b)  did make a submission or comment in relation to the making of the decision following an invitation by the AER to do so under this Act or the Rules but:

                              (i)  that submission was not made within the time required under this Act or the Rules following that invitation; and

                             (ii)  the AER chose not to take that submission or comment into account in making the decision.

71H  Tribunal may refuse to grant leave to service provider in certain cases

             (1)  This section applies:

                     (a)  in relation to an application under subsection 71B(1) by a regulated network service provider for a review of a reviewable regulatory decision that applies to the service provider; and

                     (b)  if the Tribunal is satisfied of the matters set out in section 71E or 71F to grant leave to apply under subsection 71B(1).

             (2)  Despite being satisfied of the matters set out in section 71E or 71F to grant leave to apply under subsection71B(1), the Tribunal may refuse to grant leave to the regulated network service provider if the Tribunal is satisfied the service provider:

                     (a)  without reasonable excuse:

                              (i)  failed to comply with a request (including a request for relevant information), or a direction, of the AER made under this Act or the Rules for the purpose of making the decision; or

                             (ii)  conducted itself in a manner that resulted in the making of the decision of the AER being delayed; or

                     (b)  misled, or attempted to mislead, the AER on a matter relevant to the AER’s decision.

71I  Effect of application on operation of reviewable regulatory decisions

                   An application under subsection 71B(1):

                     (a)  does not stay the operation of a network revenue or pricing determination;

                     (b)  stays the operation of any other reviewable regulatory decision on the granting of leave to apply by the Tribunal, unless the Tribunal otherwise orders.

71J  Intervention by others in a review without leave

                   Only the following persons may intervene in a review under this Subdivision without leave of the Tribunal:

                     (a)  a regulated network service provider to whom the reviewable regulatory decision being reviewed applies (if that provider is not the applicant);

                     (b)  a Minister of a participating jurisdiction.

7IK  Leave for reviewable regulatory decision process participants

             (1)  The Tribunal must grant leave to a person or body to intervene in a review under this Subdivision if that person or body is a reviewable regulatory decision process participant.

             (2)  In this section:

reviewable regulatory decision process participant means a person or body (other than a user or consumer intervener) with a sufficient interest in the reviewable regulatory decision being reviewed who—

                     (a)  has made a submission or comment in relation to the making of that decision within the time required under this Act or the Rules following an invitation by the AER to do so; or

                     (b)  has made a submission or comment in relation to the making of that decision outside the time required under this Act or the Rules following an invitation by the AER to do so but which the AER chose to take into account in making that decision.

71L  Leave for user or consumer intervener

             (1)  A user or consumer intervener may apply to the Tribunal for leave to intervene in a review of a reviewable regulatory decision under this Subdivision.

             (2)  The Tribunal may grant leave to a user or consumer intervener to intervene in a review under this Subdivision.

             (3)  Without limiting subsection (2), the Tribunal may grant leave to a user or consumer intervener to intervene in a review under this Division if the Tribunal is satisfied:

                     (a)  the user or consumer intervener, in its application for leave to intervene, raises a matter that will not be raised by the AER or the applicant; or

                     (b)  the information or material the user or consumer intervener wishes to present, or the submissions the user or consumer intervener wishes to make, in the review is likely to be better presented if submitted by the user or consumer intervener rather than another party to the review; or

                     (c)  the interests of the user or consumer intervener or its members are affected by the decision being reviewed.

             (4)  For the purposes of paragraph (3)(c):

                     (a)  the interests of a user or consumer intervener are to be taken to be affected if the reviewable regulatory decision being reviewed relates to an object or purpose of the user or consumer intervener;

                     (b)  the interests of a user or consumer intervener are not to be taken to not be affected only because those interests do not coincide with the interests of the applicant.

71M  Interveners may raise new grounds for review

             (1)  An intervener may raise in a review under this Subdivision any of the grounds specified in section 71C even if the ground that is raised by the intervener is not raised by the applicant.

             (2)  To avoid doubt, it is for the intervener to establish the ground referred to in subsection (1).

71N  Parties to a review under this Subdivision

                   The parties to a review under this Subdivision are:

                     (a)  the applicant; and

                     (b)  AER; and

                     (c)  an intervener.

71O  Matters that parties to a review may and may not raise in a review

             (1)  The AER, in a review under this Subdivision, may raise:

                     (a)  a matter not raised by the applicant or an intervener that relates to a ground for review, or a matter raised in support of a ground for review, raised by the applicant or an intervener;

                     (b)  a possible outcome or effect on the reviewable regulatory decision being reviewed that the AER considers may occur as a consequence of the Tribunal making a determination setting aside or varying the reviewable regulatory decision.

             (2)  A party (other than the AER) to a review under this Subdivision may not raise any matter that was not raised in submissions to the AER before the reviewable regulatory decision was made.

71P  Tribunal must make determination

             (1)  If, following an application, the Tribunal grants leave in accordance with subsection 71B(1), the Tribunal must make a determination in respect of the application.

Note:          See section 71Q for the time limit within which the Tribunal must make its determination.

             (2)  A determination under this section may:

                     (a)  affirm, set aside or vary the reviewable regulatory decision;

                     (b)  remit the matter back to the AER to make the decision again, in accordance with any direction or recommendation of the Tribunal.

             (3)  For the purposes of making a determination of the kind in subsection (2)(a), the Tribunal may perform all the functions and exercise all the powers of the AER under this Act or the Rules.

             (4)  In deciding whether to remit a matter back to the AER to make the decision again, the Tribunal must have regard to the nature and relative complexities of:

                     (a)  the reviewable regulatory decision; and

                     (b)  the matter the subject of the review.

             (5)  A determination by the Tribunal affirming, setting aside or varying the reviewable regulatory decision is, for the purposes of this Act (other than this Part), to be taken to be a decision of the AER.

71Q  Target time limit for Tribunal for making a determination under this Subdivision

             (1)  The Tribunal must use its best endeavours to make a determination in respect of the application for review under this Subdivision:

                     (a)  within 3 months after the Tribunal grants leave in accordance with this Subdivision (the standard period); or

                     (b)  if the standard period is extended under this section—that period as extended.

             (2)  If the Tribunal is unable to make a determination in respect of the application within the standard period, or that period as extended, the Tribunal must, by notice in writing, extend the standard period or that period by a specified period.

             (3)  The Tribunal must give a copy of the notice to:

                     (a)  the applicant; and

                     (b)  every other party to the application.

             (4)  The Tribunal may extend the standard period, or that period as extended, more than once.

             (5)  If the Tribunal extends a period, it must publish a notice in a newspaper circulating generally throughout Australia and on its website:

                     (a)  stating that it has done so; and

                     (b)  specifying a date by which it must now use its best endeavours to make the determination.

71R  Matters to be considered by Tribunal in making determination

             (1)  Subject to this section, the Tribunal, in reviewing a reviewable regulatory decision, must not consider any matter other than review related matter.

             (2)  The Tribunal, in reviewing a reviewable regulatory decision, must have regard to any document:

                     (a)  prepared, and used, by the AER for the purpose of making the reviewable regulatory decision; and

                     (b)  that the AER has made publicly available.

             (3)  In addition, if in a review, the Tribunal is of the view that a ground of review has been established, the Tribunal may allow new information or material to be submitted if the new information or material:

                     (a)  would assist it on any aspect of the determination to be made; and

                     (b)  was not unreasonably withheld from the AER when it was making the reviewable regulatory decision.

             (4)  Subject to this Act, for the purpose of subsection (3)(b), information or material not provided to the AER following a request for that information or material by it under this Act or the Rules is to be taken to have been unreasonably withheld.

             (5)  Subsection (5) does not limit what may constitute an unreasonable withholding of information or material.

             (6)  In this section:

review related matter means—

                     (a)  the application for review and submissions in support of the application; and

                     (b)  the reviewable regulatory decision and the written record of it and any written reasons for it; and

                     (c)  in the case of a reviewable regulatory decision that is a network revenue or pricing determination—any document, proposal or information required or allowed under the Rules to be submitted as part of the process for the making of the determination; and

                     (d)  any written submissions made to the AER before the reviewable regulatory decision was made; and

                     (e)  any reports and materials relied on by the AER in making the reviewable regulatory decision; and

                      (f)  any draft of the reviewable regulatory decision; and

                     (g)  any submissions on the draft of the reviewable regulatory decision or the reviewable regulatory decision itself considered by the AER; and

                     (h)  the transcript (if any) of any hearing conducted by the AER for the purpose of making the reviewable regulatory decision.

Subdivision 3Tribunal review of information disclosure decisions

71S  Application for review

             (1)  A person whose interests are adversely affected by an information disclosure decision may apply to the Tribunal for a review of the decision.

             (2)  An application must be made in the form and manner determined by the Tribunal.

             (3)  An application may only be made on the ground that:

                     (a)  the decision was not made in accordance with law; or

                     (b)  the decision is unreasonable having regard to all relevant circumstances.

             (4)  The person must lodge the application with the Tribunal no later than 5 business days after the date of the last notice given under section 28ZB or section 54H (as the case requires).

             (5)  An application under this section stays the operation of the decision until the earlier of:

                     (a)  20 business days; or

                     (b)  the making of a determination by the Tribunal in respect of the application.

71T  Exclusion of public in certain cases

                   On the application of a party to a review under this Subdivision, the Tribunal may conduct the review in the absence of the public.

71U  Determination in the review

             (1)  Subject to this Division, on receipt of an application under section 71S, the Tribunal must make a determination in respect of the application.

             (2)  A determination under this section must only:

                     (a)  affirm the information disclosure decision; or

                     (b)  forbid disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates; or

                     (c)  restrict, as specified in the determination, the intended disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates.

             (3)  For the purposes of making a determination of the kind in paragraph (2)(a), the Tribunal may perform all the functions and exercise all the powers of the AER or AEMO (as the case requires) under this Act or the Rules.

             (4)  A determination by the Tribunal affirming the information disclosure decision, or forbidding or restricting disclosure of information, is, for the purposes of this Act (other than this Part), to be taken to be a decision of the AER or AEMO (as the case requires).

71V  Tribunal must be taken to have affirmed decision if decision not made within time

             (1)  This section applies if the Tribunal does not make a determination under section 71U within 20 business days after an application is lodged under section 71S.

             (2)  The Tribunal must be taken to have made a determination under section 71U affirming the information disclosure decision to which the application relates.

71W  Assistance from AER or AEMO

                   The member of the Tribunal presiding in the review may require the AER or AEMO (as the case requires) to give information, to make a report or to give other assistance for the purposes of the review.

Subdivision 4General

71X  Costs in a review

             (1)  Subject to this section, the Tribunal may order that a party to a review under this Division pay all or a specified part of the costs of another party to the review.

             (2)  The Tribunal must not make an order requiring the AER or a small/medium user or consumer intervener to pay the costs of another party to the review unless the Tribunal considers that the AER or intervener has conducted their case in the review without due regard to:

                     (a)  the costs that would have to be incurred by another party to the review as a result of that conduct; or

                     (b)  the time required by:

                              (i)  the Tribunal to hear the review as a result of that conduct; or

                             (ii)  another party to prepare their case as a result of that conduct; or

                     (c)  the submissions or arguments made to the Tribunal by another party.

             (3)  The Tribunal may make an order requiring a user or consumer intervener (that is not a small/medium user or consumer intervener) that has intervened in the review to pay all or part of the costs of another party to the review if the Tribunal considers that the intervener has conducted their case in the review without due regard to:

                     (a)  the costs that would have to be incurred by another party to the review as a result of that conduct; or

                     (b)  the time required by:

                              (i)  the Tribunal to hear the review as a result of that conduct; or

                             (ii)  another party to prepare their case as a result of that conduct; or

                     (c)  the submissions or arguments made to the Tribunal by another party.

71Y  Amount of costs

                   If the Tribunal makes an order for costs in a review under this Division, the Tribunal may in that order fix the amount of costs payable by a party to the review on:

                     (a)  a party and party basis; or

                     (b)  a solicitor and client basis; or

                     (c)  an indemnity basis; or

                     (d)  any other basis as the Tribunal may decide.

71Z  Review of Division

             (1)  The MCE must cause a review of this Division to be undertaken within 7 years after the commencement of this Part by a person nominated by the MCE.

             (2)  The MCE must specify the matters to be addressed in the review.

             (3)  The person undertaking the review must, during the review, invite public comment and submissions about the matters to be addressed in the review.

             (4)  The person undertaking the review must report, in writing, to the MCE on the outcome of the review by the date specified by the MCE.


 

Division 3BEnforcement of access determinations

71ZA  Enforcement of access determinations

             (1)  If the Court is satisfied, on the application of a party to an access determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:

                     (a)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the other party from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

                     (b)  an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

                     (c)  any other order that the Court thinks appropriate.

             (2)  The revocation of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.

             (3)  If the Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (4)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

71ZB  Consent injunctions

                   On an application for an injunction under section 71ZA, the Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

71ZC  Interim injunctions

                   The Court may grant an interim injunction pending determination of an application under section 71ZA.

71ZD  Factors relevant to granting a restraining injunction

                   The power of the Court to grant an injunction under section 71ZA restraining a person from engaging in conduct may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  the person has previously engaged in conduct of that kind; or

                     (c)  there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind.

71ZE  Factors relevant to granting a mandatory injunction

                   The power of the Court to grant an injunction under section 71ZA requiring a person to do a thing may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

                     (b)  the person has previously refused or failed to do that thing; or

                     (c)  there is an imminent danger of substantial damage to any person if the first mentioned person refuses or fails to do that thing.

71ZF  Discharge or variation of injunction or other order

                   The Court may discharge or vary an injunction or order granted under this Division.


 

Division 4Other civil proceedings

72  Obligations under Rules to make payments

             (1)  If, under the Rules:

                     (a)  a Registered participant is required to pay an amount to AEMO or another Registered participant; or

                     (b)  AEMO is required to pay an amount to a Registered participant;

and that amount is not paid within 28 days after it is due in accordance with the Rules, the Registered participant to whom the amount is due, or AEMO (as the case requires), may recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

             (2)  If, under the Rules, a Registered participant is required to pay an amount to AEMO or another Registered participant, or AEMO is required to pay an amount to a Registered participant, and the Rules do not specify a date for payment of that amount:

                     (a)  that amount must be paid within the period of time specified in any notice to pay issued by the Registered participant or AEMO (as the case requires) that specifies that amount; and

                     (b)  the Registered participant that issued the notice to pay, or AEMO (as the case requires), may, if that amount is not paid within 28 days after it is due in accordance with that notice, recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

             (3)  Subsection (1) and (2) apply despite a Registered participant or AEMO disputing, in accordance with the Rules, an amount to be paid under the Rules, or specified in a notice to pay, unless:

                     (a)  the Rules otherwise provide; or

                     (b)  the parties to the dispute agree otherwise; or

                     (c)  a relevant Dispute resolution panel, in a civil claim Rule dispute in respect of the payment of an amount referred to in subsection (1) or (2), determines that the relevant subsection does not apply; or

                     (d)  a relevant court of competent jurisdiction determines that subsection (1) or (2) does not apply.

             (4)  In this section:

civil claim Rule dispute means a dispute between Registered participants, or between AEMO and a Registered participant, in relation to the payment of an amount under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules.

relevant Dispute resolution panel means a Dispute resolution panel appointed to hear and determine a civil claim Rule dispute.

notice to pay includes a statement of payment, settlement statement, bill or invoice.


 

Division 5Infringement notices

73  Definition

                   In this Division:

relevant civil penalty provision means a civil penalty provision that is not a rebidding civil penalty provision.

74  Power to serve a notice

             (1)  Subject to this section, the AER may serve an infringement notice on a person that it has reason to believe has breached a relevant civil penalty provision.

           (1a)  The AER must, however, serve an infringement notice not later than 12 months after the date on which the AER forms a belief that there has been a breach of a civil penalty provision.

             (2)  An infringement notice may be served on a person:

                     (a)  if the person is a natural person:

                              (i)  by delivering it personally to the person; or

                             (ii)  by sending it by post addressed to the person to their usual or last known place of residence or business; or

                     (b)  if the person is a body corporate:

                              (i)  by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

                             (ii)  by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

75  Form of notice

                   An infringement notice must state:

                     (a)  the date of the notice;

                     (b)  that the alleged breach is a breach of the relevant civil penalty provision;

                     (c)  the nature, and a brief description, of the alleged breach;

                     (d)  the date, time and place of the alleged breach;

                     (e)  the infringement penalty for the alleged breach;

                      (f)  the manner in which the infringement penalty may be paid;

                     (g)  the time (being not less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid;

                     (h)  that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, proceedings will not be instituted in respect of the alleged breach by the AER unless the notice is withdrawn before the end of that time in accordance with section 79;

                      (i)  that the person is entitled to disregard the notice and defend any proceedings in respect of the relevant civil penalty provision;

                      (j)  any other particulars prescribed by the regulations.

76  Infringement penalty

                   The infringement penalty for a breach of a relevant civil penalty provision is:

                     (a)  if the breach is alleged to have been committed by a natural person—40 penalty units or any lesser amount that is prescribed by the regulations in relation to the relevant civil penalty provision;

                     (b)  if the breach is alleged to have been committed by a body corporate—200 penalty units or any lesser amount that is prescribed by the regulations in relation to the relevant civil penalty provision.

77  AER cannot institute proceedings while infringement notice on foot

                   On serving an infringement notice under this Division, the AER must not institute a proceeding in respect of the breach for which the infringement notice was served if:

                     (a)  the time for payment stated in the infringement notice has not expired; and

                     (b)  the infringement notice has not been withdrawn by the AER in accordance with section 79.

78  Late payment of penalty

                   The AER may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if:

                     (a)  a proceeding has not been instituted in respect of the breach to which the infringement penalty relates; and

                     (b)  the infringement notice has not been withdrawn by the AER in accordance with section 79.

79  Withdrawal of notice

             (1)  The AER may withdraw an infringement notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the person served with the infringement notice.

             (2)  A withdrawal notice may be served on a person:

                     (a)  if the person is a natural person:

                              (i)  by delivering it personally to the person; or

                             (ii)  by sending it by post addressed to the person to their usual or last known place of residence or business; or

                     (b)  if the person is a body corporate:

                              (i)  by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

                             (ii)  by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

             (3)  An infringement notice may be withdrawn even if the infringement penalty has been paid.

81  Payment expiates breach of civil penalty provision

                   No proceedings may be taken by the AER against a person on whom an infringement notice was served in respect of an alleged breach of a relevant civil penalty provision if:

                     (a)  the infringement penalty is:

                              (i)  paid within the time for payment stated in the notice; and

                             (ii)  not withdrawn by the AER within the time for payment stated in the notice in accordance with section 79; or

                     (b)  the infringement penalty is accepted in accordance with section 78.

82  Payment not to have certain consequences

                   The payment of an infringement penalty under this Division is not and must not be taken to be an admission of a breach of a relevant civil penalty provision or an admission of liability for the purpose of any proceeding instituted in respect of the breach.

83  Conduct in breach of more than one civil penalty provision

             (1)  If the conduct of a person constitutes a breach of 2 or more relevant civil penalty provisions, an infringement notice may be served on the person under this Division in relation to the breach of any one or more of those provisions.

             (2)  However, the person is not liable to pay more than one infringement penalty in respect of the same conduct.

Note:          Clause 39 of Schedule 2 to this Act sets out further provisions in relation to double jeopardy.


 

Division 6Miscellaneous

85  Offences and breaches by corporations

             (1)  If a corporation contravenes an offence provision or is in breach of a civil penalty provision, each officer of the corporation is to be taken to have contravened the offence provision or to have been in breach of the civil penalty provision if the officer knowingly authorised or permitted the contravention or breach.

             (2)  An officer of a corporation may be proceeded against under an offence provision or civil penalty provision pursuant to this section whether or not the corporation has been proceeded against under the provision.

             (3)  Nothing in this section affects the liability of a corporation for a contravention of an offence provision or for a breach of a civil penalty provision.

86  Corporations also in breach if officers and employees are in breach

                   If an officer or employee of a corporation commits an act in their capacity as officer or employee of the corporation that would, if that act were committed by the corporation, constitute a breach of a provision of this Act, the regulations or the Rules, the corporation is taken to have contravened that provision.


 

Part 7The making of the National Electricity Rules

Division 1General

Subdivision 1Interpretation

87  Definitions

                   In this Part:

AEMC initiated Rule means a Rule of the kind referred to in subsection 91(2).

AEMC Rule review means a review conducted by the AEMC under Division 5 of Part 4.

electricity market regulatory body means:

                     (a)  the AER;

                     (b)  AEMO;

                     (c)  the Reliability Panel.

market initiated proposed Rule means a request for a Rule made under subsection 91(1) in respect of which the AEMC publishes a notice under section 95.

more preferable Rule has the meaning given by section 91A.

non‑controversial Rule means a Rule that is unlikely to have a significant effect on the national electricity market.

proposed Rule means:

                     (a)  a market initiated proposed Rule; or

                     (b)  a proposal for an AEMC initiated Rule; or

                     (c)  a proposed more preferable Rule.

publish means:

                     (a)  in relation to a notice required to be published under this Part (except section 90 or 103)—publish in the Gazette, on the AEMC’s website and in a newspaper circulating generally throughout Australia;

                   (ab)  in relation to a decision under subsection 94(2)—publish on the AEMC’s website and make available at the offices of the AEMC;

                     (b)  in relation to a proposed Rule referred to in section 95 and any other documents prescribed by the regulations in relation to a proposed Rule referred to in section 95—publish on the AEMC’s website and make available at the offices of the AEMC;

                     (c)  in relation to a draft Rule determination or final Rule determination—publish on the AEMC’s website and make available at the offices of the AEMC;

                     (d)  in relation to any submissions or comments received by the AEMC under this Part—subject to section 108, publish on the AEMC’s website and make available at the offices of the AEMC;

                     (e)  in relation to a report prepared under section 108A—publish on the AEMC’s website and make available at the offices of the AEMC.

urgent Rule means a Rule relating to any matter or thing that, if not made as a matter of urgency, will result in that matter or thing imminently prejudicing or threatening:

                     (a)  the effective operation or administration of the wholesale exchange operated and administered by AEMO; or

                     (b)  the safety, security or reliability of the national electricity system.

Subdivision 2Rule making tests

88  Application of national electricity objective

             (1)  The AEMC may only make a Rule if it is satisfied that the Rule will or is likely to contribute to the achievement of the national electricity objective.

             (2)  For the purposes of subsection (1), the AEMC may give such weight to any aspect of the national electricity objective as it considers appropriate in all the circumstances, having regard to any relevant MCE statement of policy principles.

88A  AEMC must take into account form of regulation factors in certain cases

                   In addition to complying with sections 88 and 88B, the AEMC must take into account the form of regulation factors and any other matter the AEMC considers relevant:

                     (a)  in making a Rule that:

                              (i)  specifies an electricity network service as a direct control network service or negotiated network service; or

                             (ii)  confers a function or power on the AER to specify under a network revenue or pricing determination an electricity network service (to which the relevant determination applies) as:

                                        (A)  a direct control network service; or

                                        (B)  a negotiated network service; or

                     (b)  in revoking a Rule that has been made or is in force that:

                              (i)  specifies an electricity network service as a direct control network service or negotiated network service; or

                             (ii)  confers a function or power on the AER to specify under a network revenue or pricing determination an electricity network service (to which the relevant determination applies) as:

                                        (A)  a direct control network service; or

                                        (B)  a negotiated network service.

88B  AEMC must take into account revenue and pricing principles in certain cases

                   In addition to complying with sections 88 and 88A, the AEMC must take into account the revenue and pricing principles in making a Rule for or with respect to any matter or thing specified in items 15 to 24 and 25 to 26J of Schedule 1 to this Act.

89  AEMC must have regard to certain matters in relation to the making of jurisdictional derogations

                   In making a jurisdictional derogation, the AEMC must have regard to whether:

                     (a)  the derogation provides for the orderly transfer of the regulation of the electricity industry in a State or Territory under jurisdictional electricity legislation to the regulation of that industry under the national electricity legislation; or

                     (b)  the derogation continues existing regulatory arrangements applying to the electricity industry in a State or Territory and the State or Territory Energy Minister requesting the derogation has notified, in writing, the AEMC that he or she considers it necessary and appropriate that the existing regulatory arrangements continue; or

                     (c)  the derogation is necessary to exempt, on an ongoing basis, generating, transmission or distribution systems or other facilities owned, controlled or operated in the participating jurisdiction to which the derogation relates from complying with technical standards relating to connection to the national electricity system set out in the Rules because those systems or facilities, by reason of their design or construction, are unable to comply with those standards.


 

Division 2Minister initiated National Electricity Rules

90  Minister to make initial National Electricity Rules

             (1)  The Minister may make Rules for or with respect to any matter or thing referred to in section 34 and Schedule 1 to this Act.

Note:          Rules are legislative instruments but are not disallowable: see section 9.

             (2)  As soon as practicable after making Rules under subsection (1), the Minister must:

                     (a)  publish notice of the making of the Rules in the Gazette; and

                     (b)  make the Rules publicly available.

             (3)  The notice referred to in paragraph (2)(a) must state the date on which the Rules commence operation.

             (4)  The Rules made under subsection (1) may only be made on the recommendation of the MCE.

             (5)  If the Minister makes Rules under subsection (1), the Minister cannot make another Rule under that subsection.

90A  Minister to make further Rules relating to distribution determinations consumer advocacy and other matters

             (1)  The Minister may make Rules:

                     (a)  for or with respect to any matter or thing referred to in:

                              (i)  items 14A and 14B of Schedule 1 to this Act; and

                             (ii)  items 25 to 26H of Schedule 1 to this Act; and

                            (iii)  items 26I and 26J of Schedule 1 to this Act as they relate to distribution determinations and access determinations relating to access disputes about access to electricity network services provided by means of a distribution system;

                            (iv)  items 26K, 30A to 30D and 34A to 34C of Schedule 1 to this Act;

                     (b)  for or with respect to any matter or thing contemplated by, or is necessary or expedient for the purposes of the items of Schedule 1 to this Act referred to in paragraph (a).

Note:          Rules are legislative instruments but are not disallowable: see section 9.

             (2)  Despite anything to the contrary in this Act, the Minister may make a Rule under this section that is a derogation without a request from any person.

             (3)  Subsection 34(3) applies to the making of Rules under subsection (1) as if the Rules being made under subsection (1) were Rules being made by the AEMC.

             (4)  As soon as practicable after making Rules under subsection (1), the Minister must:

                     (a)  publish notice of the making of the Rules in the Gazette; and

                     (b)  make the Rules publicly available.

             (5)  The notice referred to in paragraph (4)(a) must state:

                     (a)  the date on which the Rules commence operation; or

                     (b)  if different Rules will commence operation on different dates, those dates.

             (6)  The Rules made under subsection (1) may only be made on the recommendation of the MCE.

             (7)  If the Minister makes Rules under subsection (1), the Minister cannot make another Rule under that subsection.

90B  Minister to make initial Rules related to AEMO’s functions under this Act

             (1)  The Minister may make Rules on the subject of AEMO’s statutory functions (including the additional advisory functions and the declared network functions).

Note:          Rules are legislative instruments but are not disallowable: see section 9.

             (2)  Rules may only be made under subsection (1) on the recommendation of the MCE.

             (3)  Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

             (4)  Subsection 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

             (5)  As soon as practicable after making Rules under subsection (1), the Minister must:

                     (a)  publish in the Gazette notice of the making of the Rules stating the date of commencement of the Rules or, if different Rules commence at different times, the various dates of commencement; and

                     (b)  make the Rules publicly available.

             (6)  Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90C  Minister to make initial Rules related to smart meters

             (1)  The Minister may make Rules for or with respect to either or both of the following subjects:

                     (a)  the smart meter amendments;

                     (b)  any other subject contemplated by, or consequential on, the smart meter amendments;

in the same form as the Rules made by the South Australian Minister under section 90C of the National Electricity Law in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia.

Note:          Rules are legislative instruments but are not disallowable: see section 9.

             (3)  Subsection 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

             (5)  Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90D  Minister may make initial Rules relating to implementation of NERL and NERR

             (1)  The Minister may make Rules for or with respect to the following:

                     (a)  retail support obligations between regulated distribution system operators and retailers;

                     (b)  credit support arrangements between regulated distribution system operators and retailers;

                     (c)  connection services;

                     (d)  any other matter consequential on the making of the National Energy Retail Law or the National Energy Retail Rules or on the application of that Law or those Rules in a State or Territory.

             (2)  The Minister may make Rules that amend the Rules made under subsection (1) for any purpose that is necessary or consequential on the application of the National Energy Retail Law or the National Energy Retail Rules in a participating jurisdiction.

             (3)  Rules in the nature of a derogation may be made under this section even though there may not have been a request for a derogation.

             (4)  Subsection 34(3) applies to Rules made under this section in the same way as it applies to Rules made by the AEMC.

             (5)  As soon as practicable after making Rules under this section, the Minister must:

                     (a)  publish notice of the making of the Rules in the Gazette; and

                     (b)  make the Rules publicly available.

             (6)  The notice referred to in paragraph (5)(a) must state:

                     (a)  the date on which the Rules commence operation; or

                     (b)  if different Rules will commence operation on different dates, those dates.

             (7)  Rules may only be made under this section on the recommendation of the MCE.

             (8)  Rules cannot be made under this section once any State or Territory applies the National Energy Retail Law as a law of that State or Territory.


 

Division 3Procedure for the making of a Rule by the AEMC

91  Initiation of making of a Rule

             (1)  The AEMC may make a Rule at the request of any person, the MCE or the Reliability Panel.

Note:          Section 34 and Schedule 1 to this Act specify the subject matter for Rules.

             (2)  The AEMC must not make a Rule without a request under subsection (1) unless:

                     (a)  it considers the Rule corrects a minor error in the Rules; or

                     (b)  it considers the Rule involves a non‑material change to the Rules; or

                     (c)  the Rule is in respect of any matter that is prescribed by the regulations as a matter on which it may make a Rule on its own initiative.

             (3)  A State or Territory Energy Minister, after consulting with the other State or Territory Energy Ministers, may request the AEMC to make a jurisdictional derogation in respect of the jurisdiction of which he or she is a Minister.

             (4)  The Reliability Panel may only request the AEMC to make a Rule that relates to its functions.

Note:          Section 38(2) describes the functions of the Reliability Panel.

             (5)  A person conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant) may request the AEMC to make a participant derogation that relates to, as the case requires:

                     (a)  that person; or

                     (b)  a class of person of which that person is a member.

             (6)  AEMO may itself, or on behalf of itself and a Registered participant or a class of Registered participant, request the AEMC to make a participant derogation that relates to (as the case requires):

                     (a)  it; or

                     (b)  it and the Registered participant; or

                     (c)  it and the class of Registered participant.

             (7)  A request for a Rule regulating AEMO’s declared network functions may only be made by:

                     (a)  AEMO; or

                     (b)  a declared transmission system operator that is a party to a network agreement with AEMO; or

                     (c)  a Minister of an adoptive jurisdiction.

             (8)  The AEMC may only make a Rule that has effect with respect to an adoptive jurisdiction if satisfied that the proposed Rule is compatible with the proper performance of AEMO’s declared network functions.

             (9)  The AEMC may only make a Rule that affects the allocation of powers, functions and duties between AEMO and a declared transmission system operator if:

                     (a)  AEMO consents to the making of the Rule; or

                     (b)  the Rule is requested by the Minister of the relevant adoptive jurisdiction.

91A  AEMC may make more preferred Rule in certain cases

                   The AEMC may make a Rule that is different (including materially different) from a market initiated proposed Rule (a more preferable Rule) if the AEMC is satisfied that, having regard to the issue or issues that were raised by the market initiated proposed Rule (to which the more preferable Rule relates), the more preferable Rule will or is likely to better contribute to the achievement of the national electricity objective.

91B  AEMC may make Rules that are consequential to a Rule request

             (1)  Despite subsection 91(2), the AEMC may, having regard to a request to make a Rule under subsection 91(1), make a Rule under this Act, the National Gas Law or the National Energy Retail Law that is necessary or consequential, or corresponds, to the Rule.

             (2)  For the purposes of this Part, the AEMC must treat a Rule it may make under subsection (1) as if it were part of the Rule to be made on that request.

92  Contents of requests for Rules

             (1)  A request for the making of a Rule:

                     (a)  must contain the information prescribed by the regulations; and

                   (ab)  must, subject to section 92A, be accompanied by the fee prescribed by the regulations (if any); and

                     (b)  may be accompanied by a draft of the Rule to be made.

             (2)  A request for the making of a participant derogation must specify a date on which the participant derogation, if made, will expire.

             (3)  A request for the making of a jurisdictional derogation may specify a date on which the jurisdictional derogation, if made, will expire.

92A  Waiver of fee for Rule requests

                   The AEMC may waive the payment of any fee prescribed by the regulations for the purposes of section 92.

93  Consolidation of 2 or more Rule requests

             (1)  If the AEMC considers it necessary or desirable that 2 or more requests for the making of a Rule should be dealt with together, the AEMC may:

                     (a)  treat those requests as 1 request for the purposes of this Part (a consolidated Rule request); or

                     (b)  treat any later request as a submission in relation to the earliest Rule request.

             (2)  For the purposes of this Part, the AEMC may treat a consolidated Rule as being received by it on the day it receives either the first or last of the Rule requests forming part of the consolidated Rule request.

94  Initial consideration of request for Rule

             (1)  Subject to this Part, as soon as practicable after receiving a request for the making of a Rule, the AEMC must consider whether:

                     (a)  the request for the Rule appears to:

                              (i)  contain the information prescribed by the regulations; and

                             (ii)  not be misconceived or lacking in substance; and

                     (b)  the subject matter of the request appears to be for or with respect to a matter in respect of which the AEMC may make a Rule under this Act; and

Note:       Section 34 and Schedule 1 to this Act specify the subject matter for Rules.

                     (c)  the subject matter of the request appears to relate to the subject matter of:

                              (i)  a Rule made, or a request for the making of a Rule under subsection 91(1) not proceeded with, in the 12 months immediately before the date of receipt of the request; or

                             (ii)  another request for the making of a Rule under subsection 91(1) in respect of which the AEMC is taking action under this Part.

             (2)  If the AEMC considers that, having regard to the matters set out in subsection (1), it should not take any action under this Division in respect of the request for the making of the Rule, the AEMC must make a decision to that effect and inform the person or body, in writing, that requested the Rule of that decision.

             (3)  Despite subsection (1) or (2), the AEMC may make a decision to the effect that it should not take any action under this Division in respect of the request for the making of the Rule if the person or body that made the request has not complied with a notice in accordance with section 94A.

             (4)  In making a decision under subsection (3), the AEMC must have regard to any representation it receives under subsection 94A(4).

             (5)  A decision under subsection (2) or (3) must:

                     (a)  set out the reasons for the decision; and

                     (b)  be given to the person or body that made the request without delay; and

                     (c)  in the case where the decision was made only because of the matters set out in paragraph (1)(c)—be published.

             (6)  Subject to this Part, if the AEMC considers that, having regard to the matters set out in subsection (1), it should take action under this Division in respect of the request for the making of the Rule, the AEMC must publish notice of the request for the making of a Rule in accordance with section 95.

94A  AEMC may request further information from Rule proponent in certain cases

             (1)  This section applies if the AEMC:

                     (a)  receives a request for the making of a Rule under subsection 91(1); and

                     (b)  considers, having regard to the nature and content of the request, that further information is required from the person or body that has made the request to assist it to understand the request’s purpose or content.

             (2)  The AEMC may, by notice in writing, request the person or body that made the request under subsection 91(1) to provide the AEMC further information.

             (3)  A notice under subsection (2) must specify:

                     (a)  the kind of information the AEMC requires from the person or body; and

                     (b)  the time within which that information must be provided to the AEMC.

             (4)  A person or body given a notice under this section may make a written representation to the AEMC as to why it cannot provide the information specified in the notice within the time specified in the notice.

95  Notice of proposed Rule

             (1)  This section applies if the AEMC:

                     (a)  considers that it should take action under this Division in respect of a request for the making of a Rule; or

                     (b)  forms an intention to make an AEMC initiated Rule.

           (1a)  The AEMC must publish:

                     (a)  notice of the request or intention (as the case requires); and

                     (b)  a draft of the proposed Rule; and

                     (c)  any other document prescribed by the regulations.

             (2)  A notice published under this section must:

                     (a)  invite written submissions and comments from any person or body in relation to the proposed Rule by the date specified in the notice by the AEMC, being a date that is not less than 4 weeks from the date the notice is published; and

                     (b)  contain any other information prescribed by the regulations.

             (3)  Nothing in this Division is to be taken as requiring the AEMC to publish notices under this section in the same order as it:

                     (a)  considers that it should take action under this Division in respect of a request for the making of a Rule; or

                     (b)  forms an intention to make an AEMC initiated Rule.

96  Publication of non‑controversial or urgent final Rule determination

             (1)  Subject to this section, if the AEMC considers that:

                     (a)  an AEMC initiated Rule is a non‑controversial Rule; or

                     (b)  a request for a Rule is a request for a non‑controversial Rule; or

                     (c)  a request for a Rule is a request for an urgent Rule;

the AEMC may make the relevant Rule in accordance with this Division (except sections 98 to 101) and as if the period of time within which the final Rule determination in respect of the relevant Rule must be published were 6 weeks from the date of publication of the notice under section 95.

             (2)  Before making a Rule as set out in subsection (1), the AEMC must include in a notice under section 95 a statement to the effect that the AEMC may make the relevant Rule if the AEMC does not receive a written request, and reasons, not to do so from any person or body within 2 weeks of publication of that notice.

             (3)  The AEMC must not make a Rule in accordance with this section if, following publication of a notice under section 95 containing a statement to the effect set out in subsection (2):

                     (a)  the AEMC receives a written request not to do so; and

                     (b)  the reasons set out in that request are not, in its opinion, misconceived or lacking in substance.

             (4)  If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non‑controversial Rule or urgent Rule are misconceived or lacking in substance, the AEMC must:

                     (a)  make a decision to that effect; and

                     (b)  give the person or body its reasons, in writing, for that decision without delay.

             (5)  If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non‑controversial Rule or urgent Rule, are not misconceived or lacking in substance, the AEMC must publish a notice to the effect that it will make the relevant Rule in accordance with this Division (other than this section).

96A  “Fast track” Rules where previous public consultation by electricity market regulatory body or an AEMC review

             (1)  This section applies if:

                     (a)  an electricity market regulatory body has:

                              (i)  made a request for the making of a Rule under subsection 91(1); and

                             (ii)  consulted with the public on the nature and content of the request before making that request; or

                     (b)  a person or the MCE has made a request for the making of a Rule under subsection 91(1) on the basis of:

                              (i)  a recommendation for the making of a Rule contained in a MCE directed review; or

                             (ii)  a conclusion for the making of a Rule contained in an AEMC Rule review.

             (2)  The AEMC may take action under this Division in respect of the request without complying with paragraph 95(2)(a) or section 98 if it is of the opinion that:

                     (a)  in the case where the request has been made by an electricity market regulatory body in the circumstances described in paragraph (1)(a)—the consultation conducted by the electricity market regulatory body was adequate, having regard to:

                              (i)  the nature and content of that request; and

                             (ii)  the kind of consultation conducted by the electricity market regulatory body;

                     (b)  in the case where the request has been made by a person or the MCE in the circumstances described in paragraph (1)(b):

                              (i)  the request reflects, or is consistent with, the relevant recommendation contained in the MCE directed review or relevant conclusion in the AEMC Rule review (as the case requires); and

                             (ii)  there was adequate consultation with the public by the AEMC on the content of the relevant recommendation or relevant conclusion during the MCE directed review or AEMC Rule review (as the case requires).

             (3)  To avoid doubt:

                     (a)  section 94 applies to a request for the making of a Rule to which this section applies; and

                     (b)  section 97 does not apply to a request for the making of a Rule to which this section applies.

97  Right to make written submissions and comments

                   Any person or body, within the period specified in a notice under section 95, may make a written submission or comment in relation to the proposed Rule to which the notice relates.

98  AEMC may hold public hearings before draft Rule determination

             (1)  The AEMC may (but need not), at any time after publication of a notice under section 95 and before making a draft Rule determination, hold a hearing in relation to any proposed Rule.

             (2)  Notice of a hearing held under this section must:

                     (a)  be published; and

                     (b)  contain the information prescribed by the regulations (if any).

99  Draft Rule determinations

             (1)  The AEMC must make a draft Rule determination before making a final Rule determination in relation to the proposed Rule.

           (1a)  Subject to this Part, the AEMC must, within 10 weeks after the date specified in a notice under section 95, publish:

                     (a)  the draft Rule determination; and

                     (b)  notice of the making of the draft Rule determination.

           (1b)  In the case of a proposed Rule to which section 96A applies, the AEMC must publish the draft Rule determination and notice of the making of the draft Rule determination within 5 weeks after the date notice under subsection 95(1a) is published.

             (2)  A draft Rule determination must contain:

                     (a)  the reasons of the AEMC as to whether or not it should make the proposed Rule, including:

                              (i)  in the case where the proposed Rule is not a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed Rule will or is likely to contribute to the achievement of the national electricity objective; and

                             (ii)  in the case of a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed more preferable Rule will or is likely to better contribute to the achievement of the national electricity objective than the market initiated Rule request to which the more preferable Rule relates; and

                            (iii)  if the AEMC is required to take into account the form of regulation factors or the revenue and pricing principles, the reasons of the AEMC taking those factors or principles (as the case requires) into account; and

                            (iv)  the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

                             (v)  the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

                     (b)  if the AEMC determines to make a Rule, a draft of the Rule to be made; and

                     (c)  any other matters that are prescribed by the regulations.

             (3)  The draft of the Rule to be made need not be the same as the draft of the proposed Rule to which the notice under section 95 relates.

             (4)  A notice referred to in subsection (1a) must:

                     (a)  invite written submissions and comments from any person or body in relation to the determination within a period specified by the AEMC, being a period not less than 6 weeks from the date of publication of the notice; and

                     (b)  include a statement to the effect that any interested person or body may request, in writing within one week after the publication of the notice, the AEMC to hold a hearing in accordance with section 101; and

                     (c)  contain any other information prescribed by the regulations.

100  Right to make written submissions and comments in relation to draft Rule determination

                   Any person or body, within the period specified in a notice under paragraph 99(1a)(b), may make a written submission or comment in relation to a draft Rule determination to which the notice relates.

101  Pre‑final Rule determination hearings

             (1)  The AEMC may (but need not), at any time after publication of a notice under paragraph 99(1a)(b) and before making a final Rule determination, hold a hearing in relation to a draft Rule determination.

           (1a)  In addition, any person or body may request, in writing, within 1 week after the publication of a notice under paragraph 99(1a)(b), the AEMC to hold a hearing in relation to a draft Rule determination.

             (2)  Despite subsection (1), the AEMC may decide not to a hold a hearing in relation to a draft Rule determination.

           (2a)  Without limiting the reasons why the AEMC may decide not to hold a hearing in relation to a draft Rule determination, the AEMC may decide not to hold a hearing if:

                     (a)  the person or body that requests the AEMC to hold a hearing does not make a written submission or comment in accordance with section 100; and

                     (b)  no other person or body requests the AEMC to hold a hearing.

             (3)  If the AEMC decides not to hold a hearing after a request under subsection (2), it must give the person or body that requested the hearing its reasons, in writing, for declining that person’s or body’s request.

             (4)  If the AEMC decides to hold a hearing, or agrees to hold a hearing after a request under subsection (1a), the AEMC must:

                     (a)  appoint a date (being not later than 3 weeks after the date of publication of the notice under section 99), time and place for the holding of the hearing; and

                     (b)  publish a notice of that date, time and place.

102  Final Rule determinations

             (1)  Subject to section 102A, the AEMC must make a final Rule determination as to whether to make a proposed Rule.

           (1a)  Subject to this Part, the AEMC must, within 6 weeks after the period for written submissions or comments in relation to the draft Rule determination ends, publish:

                     (a)  the final Rule determination; and

                     (b)  notice of the making of the final Rule determination.

             (2)  A final Rule determination must contain:

                     (a)  the reasons of the AEMC as to whether or not it should make a Rule, including:

                              (i)  in the case where the Rule to be made is not a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the Rule will or is likely to contribute to the achievement of the national electricity objective; and

                             (ii)  in the case where the Rule to be made is a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the more preferable Rule to be made will or is likely to better contribute to the achievement of the national electricity objective than the market initiated Rule request to which the more preferable Rule relates; and

                            (iii)  if the AEMC is required to take into account the form of regulation factors or the revenue and pricing principles, the reasons of the AEMC taking those factors or principles (as the case requires) into account; and

                            (iv)  the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

                             (v)  the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

                     (b)  any other matters that are prescribed by the regulations.

             (3)  A notice referred to in subsection (1a) must contain the information prescribed by the regulations.

102A  Proposal to make more preferable Rule

             (1)  If, in view of the response to a draft Rule determination, the AEMC proposes to make a more preferable Rule, the AEMC may:

                     (a)  make, and publish notice of, a draft Rule determination in respect of the proposed more preferable Rule; or

                     (b)  make, and publish notice of, a final Rule determination for the proposed more preferable Rule.

             (2)  The final Rule determination, or further draft Rule determination, and the related notice, must be published within 6 weeks after the end of the period for submissions or comments on the earlier draft Rule determination.

103  Making of Rule

             (1)  Subject to this section, if the AEMC, in its final Rule determination, determines to make a Rule, the AEMC must make the relevant Rule as soon as practicable after the publication of the final Rule determination.

             (2)  Notice of the making of the Rule must be published in the Gazette as soon as practicable after the making of the Rule.

             (3)  The Rule that is made in accordance with subsection (1) need not be the same as the draft of the proposed Rule to which a notice under section 95 relates or the draft of a Rule contained in a draft Rule determination.

             (4)  In the case of:

                     (a)  a participant derogation; or

                     (b)  a jurisdictional derogation where the request for the derogation specified a date on which the derogation will expire;

the AEMC must not make the derogation unless that derogation specifies a date on which it will expire.

             (5)  A Rule made by the AEMC is a legislative instrument.

104  Operation and commencement of Rule

                   A Rule made under section 103 commences operation on the day the relevant notice is published in the Gazette or on any day after that day that is provided for in the relevant notice or the Rule.

105  Rule that is made to be published on website and made available to the public

                   On publication of a notice in accordance with subsection 103(2), the AEMC must, without delay:

                     (a)  publish the Rule on its website; and

                     (b)  make copies of the Rule available to the public at its offices.

106  Evidence of the National Electricity Rules

                   A document purporting to be a copy of:

                     (a)  the National Electricity Rules; or

                     (b)  the initial National Electricity Rules; or

                     (c)  an amendment to the initial National Electricity Rules or the National Electricity Rules;

endorsed with a certificate to which the seal of the AEMC has been duly affixed certifying the document is such a copy, is evidence that the document is such a copy.


 

Division 4Miscellaneous provisions relating to Rule making by the AEMC

107  Extensions of periods of time in Rule making procedure

             (1)  Despite anything to the contrary in this Part, the AEMC may, by notice, extend a period of time specified in Division 3 if the AEMC considers that a request for a Rule raises issues of sufficient complexity or difficulty or there is a material change in circumstances such that it is necessary that the relevant period of time specified in Division 3 be extended.

             (2)  A notice under subsection (1) must:

                     (a)  be published; and

                     (b)  set out the period of time specified in Division 3 to be extended; and

                     (c)  specify a new period of time to apply in the place of the period of time specified in Division 3.

           (2a)  A notice under subsection (1) may be published at the same time as a notice under section 95.

             (3)  The AEMC may only extend a period of time under this section before the expiry of that time.

107A  AEMC may extend period of time for making of final Rule determination for further consultation

             (1)  This section applies if:

                     (a)  a person or body raises an issue in:

                              (i)  a submission or comment in relation to a draft Rule determination; or

                             (ii)  a hearing held under section 98 or 101; and

                     (b)  the AEMC considers the issue raised by the person or body requires further public consultation in relation to the proposed Rule or draft Rule determination.

             (2)  Despite anything to the contrary in this Part and without limiting section 107, the AEMC may, by notice, extend the period of time specified in section 102 within which it must make a final Rule determination.

             (3)  A notice under subsection (2) must:

                     (a)  be published; and

                     (b)  specify a new period of time to apply in the place of the period of time specified in section 102; and

                     (c)  specify the issue on which the AEMC requires further public submissions and comments; and

                     (d)  invite written submissions and comments from any person or body by the date specified in the notice.

             (4)  The new period of time must not have the effect of extending the relevant period of the time specified in section 102 by more than 4 weeks.

             (5)  The AEMC may only extend the period of time under this section before the expiry of the time specified in section 102.

             (6)  Any person or body, within the period specified in a notice under subsection (2) may make a written submission or comment in relation to the issue specified in the notice.

108  AEMC may publish written submissions and comments unless confidential

             (1)  Subject to this section, the AEMC may publish any information in any written submission or comment given to it under this Part unless:

                     (a)  the person or body who gave the information, claims, when giving it to the AEMC, that it contains confidential information; and

                     (b)  the AEMC decides that the written submission or comment contains confidential information.

             (2)  A written submission or comment given to the AEMC under this Part that has been claimed under this section to contain confidential information, and that the AEMC has decided contains confidential information, may be published if that information is omitted.

             (3)  If information is omitted from a published written submission or comment given to the AEMC under this Part as being confidential information, a note to that effect must be included in the submission or comment at the place in the submission or comment from which the information is omitted.

Note:          See also section 31 of this Act and section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

108A  AEMC must publicly report on Rules not made within 12 months of public notification of requests

             (1)  This section applies if the AEMC:

                     (a)  publishes a notice under section 95 in respect of a request for the making of a Rule; but

                     (b)  does not make a final Rule determination in respect of that request within 12 months after the publication of that notice (the report trigger date).

             (2)  The AEMC must prepare a report on the request as soon as practicable after the report trigger date.

             (3)  A report prepared under this section must:

                     (a)  contain the reasons why the final Rule determination has not been made within 12 months after the publication of the notice under section 95; and

                     (b)  specify when the AEMC considers it will make the final Rule determination; and

                     (c)  be published.


 

Part 8Safety and security of the National Electricity System

  

109  Definitions

                   In this Part:

AEMO load shedding procedures means procedures developed under section 112.

jurisdictional load shedding guidelines means guidelines prepared under section 111.

sensitive loads means the loads or classes of loads specified as such in jurisdictional load shedding guidelines.

110  Appointment of jurisdictional system security coordinator

             (1)  The Minister may, for the purposes of this Act and the Rules, appoint a person to be the jurisdictional system security coordinator for any State or Territory in which any part of the national electricity system is located.

             (2)  An appointment under subsection (1) must be in writing.

             (3)  AEMO is eligible for appointment as a jurisdictional system security coordinator for 1 or more States or Territories.

             (4)  In its capacity as a jurisdictional system security coordinator for a State or Territory, AEMO is subject to directly by the State or Territory Energy Minister for the State or Territory with respect to:

                     (a)  jurisdictional load shedding guidelines; and

                     (b)  the order in which loads are to be shed or restored; and

                     (c)  the classification of loads as sensitive; and

                     (d)  the sensitive loads that are not to be shed or restored without the State or Territory Energy Minister’s approval.

             (5)  Before the Minister appoints a person to be the jurisdictional system security coordinator for a State or Territory under subsection (1), the Minister must be satisfied that the State or Territory Energy Minister for the State or Territory concerned agrees to the appointment of the person.

111  Jurisdictional system security coordinator to prepare jurisdictional load shedding guidelines

             (1)  The jurisdictional system security coordinator must, subject to the Rules, prepare, maintain, and if necessary, update guidelines in relation to the shedding, and restoration, of loads in the relevant State or Territory for:

                     (a)  the purpose of enabling AEMO to maintain power system security; or

                     (b)  reasons of public safety.

             (2)  The guidelines must specify:

                     (a)  loads or classes of loads as sensitive loads; and

                     (b)  requirements in relation to the shedding and restoration of loads that AEMO must comply with, in accordance with the Rules, in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety.

             (3)  The guidelines must also specify the following lists:

                     (a)  a list of sensitive loads or classes of sensitive loads in the State or Territory:

                              (i)  to be shed and restored and the order in which those loads are to be shed or restored in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety; and

                             (ii)  which must not be shed, or the restoration of which must not be prevented, without the prior approval of the jurisdictional system security coordinator; and

                     (b)  a list of loads or classes of loads (other than sensitive loads) to be shed and restored in the State or Territory and the order in which those loads are to be shed or restored in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety.

             (4)  If AEMO is not the jurisdictional system security coordinator for a State or Territory, the coordinator for that State or Territory must give a copy of the jurisdictional load shedding guidelines for the State or Territory and any updated guidelines to AEMO.

             (5)  The jurisdictional load shedding guidelines must reflect the terms of any relevant agreement or determination about load shedding under section 115A.

112  AEMO to develop load shedding procedures for each participating jurisdiction

             (1)  AEMO must, in accordance with the Rules, develop, maintain, and if necessary, update procedures in relation to the manner in which loads or classes of loads (including sensitive loads) will be shed or restored:

                     (a)  in a State or Territory in accordance with the jurisdictional load shedding guidelines for the State or Territory; and

                     (b)  as between States and Territories.

             (2)  AEMO (if not the jurisdictional system security coordinator for a State or Territory) must give to the jurisdictional system security coordinator for that State or Territory a copy of the AEMO load shedding procedures, and any updated procedures, applicable to State or Territory.

             (3)  The procedures must be consistent with the relevant jurisdictional load shedding guidelines.

113  Exchange of information

             (1)  For the purpose of enabling AEMO to maintain power system security, or for reasons of public safety, the relevant authorities may exchange information about loads and load shedding in the States and Territories in which the national electricity system is located.

             (2)  A relevant authority must pass on information about loads and load shedding to a State or Territory Energy Minister so far as the information may be necessary:

                     (a)  to enable the Minister:

                              (i)  to manage the safety and security of those parts of the national electricity system in the State or Territory; or

                             (ii)  to manage the safety and security of a gas system in the State or Territory; or

                     (b)  for reasons of public safety.

             (3)  The Minister may give information received under subsection (2) to other Ministers or officials responsible for public safety, or power system or gas system safety or security, in a State or Territory in which any part of the national electricity system is located.

             (4)  A person to whom information is disclosed under subsection (3) must not further disclose the information unless the further disclosure is to a Minister or officials responsible for public safety, or power system or gas system safety or security in a participating jurisdiction.

             (5)  In this section:

information includes confidential information relating to loads or classes of loads given to AEMO by a Registered participant.

information about loads and load shedding means information about:

                     (a)  loads and classes of loads in a particular State or Territory; and

                     (b)  the possibility or probability that the supply of electricity will prove insufficient to meet the loads or some other reason for load shedding may arise; and

                     (c)  the loads to be shed in the event of insufficiency of supply or for any other reason in accordance with:

                              (i)  the Rules; or

                             (ii)  jurisdictional load shedding guidelines for the State or Territory; or

                            (iii)  AEMO load shedding procedures.

relevant authority means:

                     (a)  AEMO; or

                     (b)  a jurisdictional system security coordinator.

114  AEMO to ensure maintenance of supply of sensitive loads

                   AEMO must use its reasonable endeavours to ensure that the national electricity system is operated in a manner that maintains the supply to sensitive loads.

115  Shedding and restoring of loads

             (1)  Subject to subsection (2), if AEMO considers that it is necessary for loads to be shed in a State or Territory to maintain power system security, or for reasons of public safety, AEMO may direct the shedding or restoration of loads (including sensitive loads) in the State or Territory in accordance with the AEMO load shedding procedures developed for the State or Territory.

             (2)  AEMO must use reasonable endeavours to obtain the approval of the jurisdictional system security coordinator for the State or Territory before directing the shedding, or preventing the restoration of, sensitive loads or a class of sensitive loads that the jurisdictional system security coordinator has listed in the jurisdictional load shedding guidelines as requiring the coordinator’s approval before:

                     (a)  those loads or classes of loads may be shed; or

                     (b)  the restoration of those loads or classes of loads may be prevented.

             (3)  The jurisdictional system security coordinator must not unreasonably withhold the approval referred to in subsection (2).

             (4)  Subsections (2) and (3) are inapplicable where AEMO is itself the jurisdictional system security coordinator.

115A  Determination of customer load shedding arrangement

             (1)  AEMO may, with the approval of the Minister, enter into an agreement with a Registered participant to determine the arrangements to apply to customer load shedding in a State or Territory in which any part of the national electricity system is located where the available supply of electricity is, or is likely to become, less than sufficient for the reasonable requirements of the community.

             (2)  If AEMO is unable to reach agreement with a Registered participant about load shedding arrangements within 6 months after AEMO offers to enter into an agreement with the Registered participant for that purpose, the Minister may determine those arrangements.

             (3)  The Minister must, at least 14 days before arrangements take effect under subsection (2), give the Registered participant and AEMO written notice of the arrangements.

             (4)  The Minister may appoint a person to review and advise the Minister on any proposed arrangements under this section.

             (5)  In determining load shedding arrangements, the Minister must take into account the need to:

                     (a)  protect the national electricity system; and

                     (b)  ensure the safe and effective supply of electricity; and

                     (c)  ensure that the available supply of electricity is fairly distributed to the community; and

                     (d)  increase the available supply of electricity; and

                     (e)  regulate the use of the available supply of electricity, having regard to the needs of the community.

             (6)  AEMO must publish any arrangements determined under this section on its website.

116  Actions that may be taken to ensure safety and security of national electricity system

             (1)  AEMO may, if it considers that it is necessary:

                     (a)  to maintain power system security; or

                     (b)  for reasons of public safety;

direct a Registered participant, or authorise a person to direct a Registered participant, or subject to subsection (2), authorise a person, to take one or more relevant actions in accordance with the Rules.

             (2)  A person authorised under subsection (1) must not take any relevant action unless the person has directed the Registered participant to take the action and the Registered participant has failed to take the action within a reasonable period.

           (2a)  A direction under this section should, if practicable, be consistent with load shedding arrangements agreed or determined under section 115A.

             (3)  AEMO does not incur any civil monetary liability for any relevant action taken by a Registered participant in accordance with a direction given by it under this section unless the direction is given in bad faith.

             (4)  A person who directs a Registered participant to take a relevant action, or who takes a relevant action in accordance with an authorisation under subsection (1), does not incur any civil monetary liability for the action taken by the Registered participant or by the person unless the person gives the direction, or takes the relevant action, in bad faith.

             (5)  A Registered participant does not incur any civil monetary liability for a relevant action taken in accordance with a direction given to it under this section unless that action is taken in bad faith

             (6)  In this section:

relevant action means:

                     (a)  to switch off, or re‑route, a generator;

                     (b)  to call equipment into service;

                     (c)  to take equipment out of service;

                     (d)  to commence operation or maintain, increase or reduce active or reactive power output;

                     (e)  to shut down or vary operation;

                      (f)  to, in accordance with the Rules and any procedures made in accordance with the Rules in relation to load shedding, shed or restore load;

                     (g)  to do any other act or thing necessary to be done to maintain power system security or for reasons of public safety.

117  AEMO to liaise during an emergency

             (1)  AEMO must, if required to do so by reason, or as a result, of an emergency direction, liaise with:

                     (a)  a State or Territory Energy Minister, or the jurisdictional system security coordinator of a State or Territory; or

                     (b)  if the Minister or jurisdictional system security coordinator has nominated another person as the person with whom AEMO must liaise, that person.

             (2)  In this section:

emergency direction means any direction given or issued, or order given, under or in accordance with any legislation of a State or Territory, or instrument made under or for the purposes of that legislation, during an emergency in the State or Territory.

118  Obstruction and non‑compliance

             (1)  A person must not, without reasonable excuse, obstruct or hinder a person in the exercise of a power under section 116.

Maximum penalty:

                     (a)  in the case of a natural person—200 penalty units;

                     (b)  in the case of a body corporate—1,000 penalty units.

             (2)  A person must not, without reasonable excuse, fail to comply with a direction under section 116.

Maximum penalty:

                     (a)  in the case of a natural person—200 penalty units;

                     (b)  in the case of a body corporate—1,000 penalty units.


 

Part 8ASmart metering services

Division 1Interpretation

118A  Definitions

                   In this Part:

relevant customer means a person who consumes electricity through a supply point connected to a distribution system owned, operated or controlled by a regulated distribution system operator to which a Ministerial smart metering determination applies.

required smart metering infrastructure means smart metering infrastructure that is specified under the Rules to be required smart metering infrastructure.

smart meter assessment means an assessment of the costs and benefits, or operational performance, or both, of different smart metering infrastructure and other related technologies, including devices designed to enable direct load control.

smart metering infrastructure means infrastructure (and associated systems) associated with the installation and operation of remotely read electricity metering and communications, including interval meters designed to transmit data to, and receive data from, a remote locality.

smart metering services means services provided by means of required smart metering infrastructure that are specified as smart metering services under the Rules.

smart meter trials means trials of smart metering infrastructure and other related technologies, including devices designed to enable direct load control.


 

Division 2Ministerial pilot metering determinations

118B  Ministerial pilot metering determinations

             (1)  A State or Territory Energy Minister may make a determination that requires a regulated distribution system operator that earns most of its revenue from the provision of electricity network services provided by means of a distribution system situated partly or wholly in an area specified in the determination to conduct smart meter trials or undertake a smart meter assessment (or both).

             (2)  In making a Ministerial pilot metering determination, a State or Territory Energy Minister must have regard to:

                     (a)  the national electricity objective; and

                     (b)  any comments or submissions made to the Minister as part of the consultation conducted under section 118C.

             (3)  A Ministerial pilot metering determination must specify the regulated distribution system operator, or the class of regulated distribution system operator to which the determination applies (the relevant operator or relevant operators).

             (4)  Without limiting subsection (1), a Ministerial pilot metering determination may:

                     (a)  specify minimum standards of performance and service that must be met or investigated by the relevant operator or relevant operators in conducting smart meter trials;

                     (b)  specify the nature and timing of the smart meter trials;

                     (c)  in relation to information derived from a smart meter trial or a smart meter assessment, require the relevant operator or relevant operators to:

                              (i)  subject to any conditions specified in the determination, provide that information to a person specified in the determination; or

                             (ii)  make such information publicly available.

             (5)  A requirement of the kind referred to in paragraph (4)(c) may require information that relates to a person:

                     (a)  be provided to another person; or

                     (b)  be made publicly available.

             (6)  However, a requirement referred to in paragraph (4)(c) must not require the relevant operator to make the information publicly available in a manner that identifies the person to whom the information relates unless the relevant operator has the written consent of the person to do so.

             (7)  Subsection (6) does not apply to information that is in the public domain.

118C  Consultation with interested persons required before making Ministerial pilot metering determination

                   Before making a Ministerial pilot metering determination, the Minister must consult with a person or body that the Minister considers has an interest in the determination.


 

Division 3Ministerial smart meter rollout determinations

118D  Ministerial smart meter rollout determinations

             (1)  The Minister may make a determination about the provision of smart metering services by a regulated distribution system operator that earns most of its revenue from the provision of electricity network services provided by means of a distribution system situated partly or wholly in an area specified in the determination.

             (2)  In making a Ministerial smart meter rollout determination, the Minister must have regard to:

                     (a)  the national electricity objective; and

                     (b)  any submissions made to the Minister as part of the consultation conducted under section 118E.

             (3)  A Ministerial smart meter rollout determination must not be inconsistent with the Rules.

             (4)  A Ministerial smart meter rollout determination must:

                     (a)  specify the regulated distribution system operator, or the class of regulated distribution system operator to which the determination applies (the relevant operator or relevant operators); and

                     (b)  specify any of the following or a combination of any of the following in relation to which the relevant operator or relevant operators must provide smart metering services:

                              (i)  the minimum number of relevant customers;

                             (ii)  the class of relevant customers;

                            (iii)  the minimum number of supply points; and

                     (c)  specify the date on which the determination expires.

             (5)  Without limiting subsection (1), a Ministerial smart meter rollout determination may specify:

                     (a)  the date or dates by which, and the location at which, smart metering services, or different classes of smart metering services, must be provided;

                     (b)  the date or dates by which required smart metering infrastructure, or different classes of smart metering infrastructure, become operational.

             (6)  A Ministerial smart meter rollout determination has effect according to its tenor despite anything to the contrary in any agreement or contract.

118E  Public consultation required before making Ministerial smart meter rollout metering determination

                   Before making a Ministerial smart meter rollout metering determination, the Minister must consult with the public about the determination.


 

Division 4Provisions applicable to Ministerial smart metering determinations

118F  Compliance with Ministerial smart metering determinations

             (1)  A regulated distribution system operator must comply with a Ministerial smart metering determination that applies to the operator.

             (2)  A regulated distribution system operator incurs, by complying with a Ministerial pilot metering determination, no liability for breach of contract, breach of confidence or any other civil wrong.

118G  Minister must consult with State or Territory Energy Ministers

                   The Minister must consult with the State or Territory Energy Ministers before making a Ministerial smart metering determination.

118H  Content of Ministerial smart metering determinations

                   A Ministerial smart metering determination:

                     (a)  may be of general or limited application;

                     (b)  may differ according to differences in time, place and circumstances.

118I  Publication and giving of Ministerial smart metering determinations

                   As soon as practicable after a Ministerial smart metering determination is made the determination:

                     (a)  must be published in the Gazette; and

                     (b)  must be given to:

                              (i)  every regulated distribution system operator to which it applies; and

                             (ii)  the AER; and

                            (iii)  the AEMC.

118J  When Ministerial smart metering determinations take effect

                   A Ministerial smart metering determination has effect on and after the day specified in the determination for the period specified in the determination.

118K  AEMC must publish Ministerial smart metering determination it receives on its website

                   The AEMC must publish a Ministerial smart metering determination on its website as soon as practicable after receiving it.


 

Part 9Immunities

  

119  Immunity of AEMO and network service providers

             (1)  AEMO or an officer or employee of AEMO does not incur any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a function or power of AEMO under this Act or the Rules unless the act or omission is done or made in bad faith or through negligence.

             (2)  A network service provider or an officer or employee of a network service provider does not incur any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a system operations function or power unless the act or omission is done or made in bad faith or through negligence.

             (3)  The civil monetary liability for an act or omission of a kind referred to in subsection (1) or (2) done or made through negligence may not exceed the prescribed maximum amount.

             (4)  The regulations may, for the purposes of subsection (3), without limitation:

                     (a)  prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the regulations;

                     (b)  prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

                     (c)  prescribe the manner in which a maximum amount is to be divided amongst claimants.

             (5)  AEMO or a network service provider may enter into an agreement with a person varying or excluding the operation of a provision of this section and, to the extent of that agreement, that provision does not apply.

             (6)  This section does not apply to any liability of an officer or employee of a body corporate to the body corporate.

             (7)  In this section:

system operations function or power means a function or power prescribed as a system operations function or power.

120  Immunity in relation to failure to supply electricity

             (1)  A Registered participant or AEMO, or an officer or employee of a Registered participant or AEMO, does not incur any civil monetary liability for any partial or total failure to supply electricity unless the failure is due to an act or omission done or made by the Registered participant or AEMO, or the officer or employee of a Registered participant or AEMO, in bad faith or through negligence.

             (2)  A Registered participant or AEMO may enter into an agreement with a person varying or excluding the operation of subsection (1) and, to the extent of that agreement, that subsection does not apply.

          (2A)  Subsection (2) does not apply in relation to an agreement between a retailer, or a regulated distribution system operator, and a person who is a small customer within the meaning of the National Energy Retail Law.

             (3)  This section does not apply:

                     (a)  to AEMO or an officer or employee of AEMO in relation to an act or omission in the performance or exercise, or purported performance or exercise, of a function or power of AEMO under this Act or the Rules; or

                     (b)  to a network service provider or an officer or employee of a network service provider in relation to an act or omission in the performance or exercise, or purported performance or exercise, of a system operations function or power; or

                     (c)  to any liability of an officer or employee of a body corporate to the body corporate.

             (4)  In this section:

system operations function or power has the same meaning as in section 119.

120A  Immunity in relation to use of computer software

             (1)  A protected person incurs no civil monetary liability for loss or damage suffered by a Registered participant or other person in consequence of the use of computer software to operate the national electricity market.

             (2)  In this section:

protected person means any of the following:

                     (a)  AEMO;

                     (b)  an officer, employee or agent of AEMO.

120B  Immunity from liability—dispute resolution

             (1)  A protected person incurs no civil monetary liability for an act or omission in the exercise of powers or functions related to dispute resolution under the Rules unless the act or omission is done or made in bad faith.

             (2)  In this section:

protected person means:

                     (a)  a person appointed under the Rules to manage and facilitate dispute resolution under or in relation to the Rules; or

                     (b)  an arbitrator, mediator or other person appointed to resolve disputes, or assist in dispute resolution, under or in relation to the Rules; or

                     (c)  a person or class of persons to which the protection of this section is extended by the regulations.

121  Immunity from personal liability of AEMC officials

             (1)  No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Act, the regulations or the Rules.

             (2)  A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.

             (3)  In this section:

AEMC official means:

                     (a)  a member of the AEMC;

                     (b)  the chief executive of the AEMC;

                     (c)  a member of staff appointed by the AEMC.

122  Immunity from personal liability of Reliability Panel

             (1)  No personal liability attaches to a person appointed to the Reliability Panel for an act or omission in good faith in the performance or exercise, or purported performance or exercise, of a function or power of the Reliability Panel under this Act, the regulations or the Rules.

             (2)  A liability that would, but for subsection (1), lie against a person appointed to the Reliability Panel lies instead against the AEMC.


 

Part 10Access Disputes

Division 1Interpretation and application

123  Definitions

                   In this Part:

dispute hearing means a hearing conducted by the AER for the purpose of making an access determination.

party, in relation to an access dispute, has the meaning given by section 127.

124  Part does not limit how disputes about access may be raised or dealt with

                   This Part is not to be taken to limit how a dispute about access to an electricity network service may be raised or dealt with.

124A  Constitutional limits

                   This Part does not apply in relation to an aspect of access to an electricity network service unless:

                     (a)  the network service provider is a constitutional corporation (or a partnership or joint venture consisting wholly of constitutional corporations); or

                     (b)  the prospective user is a constitutional corporation; or

                     (c)  the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.


 

Division 2Notification of access dispute

125  Notification of access dispute

             (1)  Subject to this section, if a prospective network service user or network service user is unable to agree with a network service provider about 1 or more aspects of access to an electricity network service provided by means of, or in connection with:

                     (a)  a distribution system; or

                     (b)  a transmission system;

owned, controlled or operated by that network service provider, the prospective network service user, network service user or network service provider may notify the AER, in writing, that an access dispute exists.

Note:          Access dispute is defined in section 2A.

             (2)  A notification must be accompanied by the fee (if any) prescribed by the regulations.

             (3)  On receiving a notification under subsection (1), the AER must notify, in writing, of the access dispute:

                     (a)  the network service provider, if a prospective network service user or network service user (as the case requires) notified the AER of the access dispute under subsection (1);

                     (b)  the prospective network service user or network service user (as the case requires), if the network service provider notified the AER of the access dispute under subsection (1).

126  Withdrawal of notification

             (1)  The person who notified the AER of an access dispute under subsection 125(1) may withdraw that notification at any time before the AER makes an access determination in respect of that access dispute.

             (2)  The notification must be withdrawn by notice in writing.

             (3)  If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.

127  Parties to an access dispute

                   The parties to an access dispute are:

                     (a)  the person notifying the AER of an access dispute under subsection 125(1); and

                     (b)  a person notified by the AER under subsection 125(3); and

                     (c)  if the AER is of the opinion that the resolution of the access dispute may involve requiring another person to do something—that other person; and

                     (d)  any other person who applies in writing to be made a party and is accepted by the AER as having a sufficient interest.


 

Division 3Access determinations

128  Determination of access dispute

             (1)  Unless the AER terminates an access dispute under section 131, the AER must, subject to this Part and the Rules, make a determination on access by (as the case requires) the prospective network service user or network service user.

Note:          A delegate of the AER may make the access determination. See section 17 of this Act and section 44AAH of the Competition and Consumer Act 2010.

             (2)  In making an access determination the AER must comply with this Part and the Rules.

             (3)  An access determination must:

                     (a)  be in writing; and

                     (b)  include a statement of reasons for making the determination; and

                     (c)  be given to the parties without delay.

             (4)  An access determination has effect on and from the date specified in the determination.

129  AER may require parties to mediate, conciliate or engage in an alternative dispute resolution process

             (1)  The AER may require the parties, in accordance with the Rules, to mediate, conciliate or engage in another alternative dispute resolution process for the purpose of resolving the access dispute.

             (2)  A party must comply with a requirement under subsection (1).

130  Access determination must give effect to network revenue or pricing determination

                   The AER must, in making an access determination, give effect to a network revenue or pricing determination:

                     (a)  applying to the electricity network services provided, or to be provided, that are the subject of the access dispute; and

                     (b)  in effect at the time the determination is made;

(even though that determination may not have been in force when notification of the access dispute was given).

131  AER may terminate access dispute in certain cases

             (1)  The AER may at any time terminate an access dispute (without making an access determination) if the AER considers that:

                     (a)  the notification of the access dispute was vexatious; or

                     (b)  the subject matter of the dispute is trivial, misconceived or lacking in substance; or

                     (c)  the party who notified the access dispute had, but did not avail itself of, an opportunity to engage in negotiations in good faith with the other party before that notification; or

                     (d)  a specified dispute termination circumstance has occurred.

             (2)  Subject to section 133, the AER may also terminate an access dispute (without making an access determination) if the AER considers that the aspect of access about which there is a dispute is expressly or impliedly dealt with under an agreement between, as the case requires:

                     (a)  the prospective network service user and network service provider;

                     (b)  the network service user and network service provider.

             (3)  In this section:

specified dispute termination circumstance means a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the AER to terminate an access dispute (without making an access determination).

132  AER must terminate access dispute if there is genuine competition

                   Despite anything to the contrary in this Part, the AER must terminate an access dispute (without making an access determination) if the AER considers that the electricity network service the subject of the dispute could be provided on a genuinely competitive basis by a person other than the network service provider or an associate of the provider.

133  Restrictions on access determinations

             (1)  The AER must not make an access determination that:

                     (a)  would have the effect of preventing a network service user obtaining a sufficient amount of an electricity network service to be able to meet the network service user’s reasonably anticipated requirements, measured at the time the access dispute was notified; or

                     (b)  subject to subsection (2), is inconsistent with a connection agreement between the parties to the access dispute.

             (2)  The AER may make an access determination that is inconsistent with a connection agreement between the parties to the access dispute if the AER is of the opinion the connection agreement affects the quality and security of electricity network service being provided to another person.

             (3)  In this section:

connection agreement means an agreement between a network service provider and:

                     (a)  an owner, controller or operator of a generating system about the connection of that system to a transmission system or distribution system owned, controlled or operated by the network service provider; or

                     (b)  a person who purchases electricity supplied through a transmission system or distribution system owned, controlled or operated by the network service provider about the connection of that person’s loads to that transmission system or distribution system; or

                     (c)  another network service provider about the connection of transmission systems or distribution systems (as the case requires) owned, controlled or operated by the providers.

134  Access determination need not require the provision of an electricity network service

                   An access determination may, but need not, require a network service provider to provide an electricity network service to a prospective network service user.


 

Division 4Variation of access determinations

135  Variation of access determinations

             (1)  The AER may vary an access determination on the application of any party to the determination. However, it cannot vary the final determination if any other party objects.

Note:          If the parties cannot agree on a variation, a new access dispute can be notified under section 125.

             (2)  Section 133 applies to a variation under this section as if:

                     (a)  an access dispute arising out of the access determination had been notified when the application was made to the AER for the variation of the determination; and

                     (b)  the variation were the making of an access determination in the terms of the varied determination.


 

Division 5Compliance with access determinations

136  Compliance with access determination

                   A party to an access dispute in respect of which an access determination is made must comply with the access determination.

Note:          This section is a civil penalty provision.


 

Division 6Access dispute hearing procedure

137  Hearing to be in private

             (1)  Subject to subsection (2), a dispute hearing is to be in private.

             (2)  If the parties agree, a dispute hearing or part of a dispute hearing may be conducted in public.

             (3)  The AER may give written directions as to the persons who may be present at a dispute hearing that is conducted in private.

             (4)  In giving directions under subsection (3), the AER must have regard to the wishes of the parties and the need for commercial confidentiality.

138  Right to representation

                   In a dispute hearing a party may appear in person or be represented by another person.

139  Procedure of AER

             (1)  In a dispute hearing the AER:

                     (a)  is not bound by technicalities, legal forms or rules of evidence; and

                     (b)  must act as speedily as a proper consideration of the access dispute allows, having regard to the need carefully and quickly to inquire into and investigate the access dispute and all matters affecting the merits, and fair settlement, of the access dispute; and

                     (c)  may inform itself about any matter relevant to the access dispute in any way it thinks appropriate.

             (2)  The AER may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties in the dispute hearing, and may require that the cases be presented within those periods.

             (3)  The AER may require evidence or argument to be presented in writing, and may decide the matters on which the AER will hear oral evidence or argument.

             (4)  The AER may determine that a dispute hearing is to be conducted by:

                     (a)  telephone; or

                     (b)  closed circuit television; or

                     (c)  any other means of communication.

             (5)  The Rules may make further provision about the procedure for the conduct of dispute hearings.

140  Particular powers of AER in a hearing

             (1)  The AER may do any of the following things for the purpose of determining an access dispute:

                     (a)  give a direction in the course of, or for the purpose of, a dispute hearing;

                     (b)  hear and determine the access dispute in the absence of a party who has been given notice of the dispute hearing;

                     (c)  sit at any place;

                     (d)  adjourn to any time and place;

                     (e)  refer any matter to an independent expert and accept the expert’s report as evidence.

             (2)  The AER may make an interim determination.

141  Disclosure of information

             (1)  The AER may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an access dispute unless the person has the AER’s permission.

             (2)  A person must not, without reasonable excuse, refuse or fail to comply with an order under subsection (1).

Maximum penalty:

                     (a)  in the case of a natural person—20 penalty units;

                     (b)  in the case of a body corporate—1,000 penalty units.

142  Power to take evidence on oath or affirmation

             (1)  The AER may take evidence on oath or affirmation and for that purpose the AER may administer an oath or affirmation.

             (2)  The AER may summon a person to appear before the AER to:

                     (a)  give evidence; or

                     (b)  produce such documents (if any) as are referred to in the summons; or

                     (c)  give evidence and produce such documents (if any) as are referred to in the summons.

             (3)  The powers in this section may be exercised only for the purposes of hearing and determining an access dispute.

143  Failing to attend as a witness

                   A person who is served, as prescribed by the regulations, with a summons to appear as a witness before the AER must not, without reasonable excuse:

                     (a)  fail to attend as required by the summons; or

                     (b)  fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by the AER.

Maximum penalty: 20 penalty units.

144  Failing to answer questions etc

             (1)  A person appearing as a witness before the AER must not, without reasonable excuse:

                     (a)  refuse or fail to be sworn or to make an affirmation; or

                     (b)  refuse or fail to answer a question that the person is required to answer by the AER; or

                     (c)  refuse or fail to produce a document that he or she is required to produce by a summons under this Part served on him or her as prescribed by the regulations.

Maximum penalty: 20 penalty units.

             (2)  It is a reasonable excuse for the purposes of subsection (1) for a natural person to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might:

                     (a)  tend to incriminate the person; or

                     (b)  expose the person to a criminal penalty.

             (3)  Subsection (2) does not limit what is a reasonable excuse for the purposes of subsection (1).

145  Intimidation etc

                   A person must not:

                     (a)  threaten, intimidate or coerce another person; or

                     (b)  cause or procure damage, loss or disadvantage to another person;

because that other person:

                     (c)  proposes to produce, or has produced, documents to the AER; or

                     (d)  proposes to appear, or has appeared, as a witness before the AER.

Maximum penalty: 20 penalty units.

146  Party may request AER to treat material as confidential

             (1)  A party in a dispute hearing may:

                     (a)  inform the AER that, in the party’s opinion, a specified part of a document contains confidential information; and

                     (b)  request the AER not to give a copy of that part to another party.

             (2)  On receiving a request, the AER must:

                     (a)  inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

                     (b)  ask the other party or parties whether there is any objection to the AER complying with the request.

             (3)  If there is an objection to the AER complying with the request, the party objecting may inform the AER of the objection and of the reasons for it.

             (4)  After considering:

                     (a)  a request; and

                     (b)  any objection; and

                     (c)  any further submissions that any party has made in relation to the request;

the AER may decide:

                     (d)  not to give the other party or parties a copy of so much of the document as contains confidential information that the AER thinks should not be given; or

                     (e)  to give the other party or another specified party a copy of the whole, or part, of the part of the document that contains confidential information subject to a condition that the party give an undertaking not to disclose the information to another person except to the extent specified by the AER and subject to such other conditions as the AER determines.

147  Costs

             (1)  Each party is to bear its own costs in a dispute hearing except to the extent that an order under this section specifies otherwise.

             (2)  At any time, the AER may order that a party pay all or a specified part of the costs of another party in a dispute hearing.

             (3)  The AER may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to:

                     (a)  whether a party has conducted itself in the dispute hearing in a way that unnecessarily disadvantaged another party by conduct such as:

                              (i)  failing to comply with an order or direction of the AER without reasonable excuse;

                             (ii)  failing to comply with this Act, the regulations or the Rules;

                            (iii)  asking for an adjournment as a result of subparagraph (i) or (ii);

                            (iv)  causing an adjournment;

                             (v)  attempting to deceive another party or the AER;

                            (vi)  vexatiously conducting an access dispute;

                     (b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the dispute hearing;

                     (c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

                     (d)  the nature and complexity of the access dispute;

                     (e)  any other matter the AER considers relevant.

             (4)  A party to whom an order made under subsection (2) is directed must comply with the order.

             (5)  If the AER considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the AER may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

             (6)  Before making an order under subsection (5), the AER must give the representative a reasonable opportunity to be heard.

             (7)  A representative of a party to whom an order made under subsection (5) is directed must comply with the order.

             (8)  If the AER makes an order for costs before the end of an access dispute, the AER may require that the order be complied with before it continues with the proceeding.

             (9)  If the AER makes an order for costs, the AER may fix the amount of costs itself.

           (10)  This section applies to costs incurred by the parties in a dispute hearing even if the notification of the access dispute to which the dispute hearing relates is withdrawn.

148  Outstanding costs are a debt due to party awarded the costs

                   Costs that are payable under an order under subsection 147(4) or (7):

                     (a)  are a debt due to the party to whom the AER has ordered that they be paid; and

                     (b)  may be recovered by that party in a court of competent jurisdiction.


 

Division 7Joint access dispute hearings

149  Definition

                   In this Division:

nominated dispute has the meaning given by subsection 150(2).

150  Joint dispute hearing

             (1)  This section applies if:

                     (a)  the AER is conducting 2 or more dispute hearings at a particular time; and

                     (b)  1 or more matters are common to the access disputes in relation to which the dispute hearings are being conducted.

             (2)  The AER may, by notice in writing, decide that it will hold a joint dispute hearing in respect of such of those access disputes (the nominated disputes) as are specified in the notice.

             (3)  The AER may do so only if it considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.

151  Consulting the parties

             (1)  Before making a decision under subsection 150(2), the AER must give each party to each nominated dispute a notice in writing:

                     (a)  specifying what the AER is proposing to do; and

                     (b)  inviting the party to make a written submission on the proposal to the AER within 10 business days after the notice is given.

             (2)  The AER must have regard to any submission so made in deciding whether to do so. The AER may have regard to any other matter it considers relevant.

152  Constitution and procedure of AER for joint dispute hearings

                   Division 6 applies to the joint dispute hearing in a corresponding way to the way in which it applies to a particular dispute hearing.

153  Record of proceedings etc

             (1)  The AER as constituted for the purposes of the joint dispute hearing may have regard to any record of the proceedings of the dispute of any nominated dispute.

             (2)  The AER as constituted for the purposes of the dispute hearing of each nominated dispute may, for the purposes of making an access determination in relation to the access dispute to which that hearing relates:

                     (a)  have regard to any record of the proceedings of the joint dispute hearing; and

                     (b)  adopt any findings of fact made by the AER as constituted for the purposes of the joint dispute hearing.


 

Division 8Miscellaneous matters

154  Correction of access determinations for clerical mistakes etc

                   If an access determination contains:

                     (a)  a clerical mistake; or

                     (b)  an error arising from an accidental slip or omission; or

                     (c)  a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination; or

                     (d)  a defect in form;

the AER may correct the access determination.

155  Subsequent network service provider bound by access determinations

             (1)  An access determination applies to every subsequent network service provider as if that subsequent network service provider were a party to the access dispute in respect of which the access determination was made.

             (2)  In this section:

subsequent network service provider means a network service provider (other than the network service provider to whom the access determination applies) who provides electricity network services by means of, or in connection with, the distribution system or transmission system used to provide the electricity network services:

                     (a)  the subject of the access dispute; and

                     (b)  in respect of which the access determination was made.

156  Regulations about the charges to be paid by parties to access dispute for AER’s costs in dispute hearing

                   The regulations may provide for the AER to:

                     (a)  charge the parties to an access dispute for its costs in the access dispute; and

                     (b)  apportion those costs between the parties.


 

Part 11General

  

157  Preventing or hindering access

             (1)  A person who is:

                     (a)  a regulated network service provider; or

                     (b)  a person who:

                              (i)  is a party to an agreement with a regulated network service provider relating to a regulated network service; or

                             (ii)  as a result of an access determination is entitled to a regulated network service; or

                     (c)  an associate of a regulated network service provider or a person referred to in paragraph (b);

must not engage in conduct for the purpose of preventing or hindering the access of another person to a regulated network service.

Note:          Subsection (1) is a civil penalty provision.

             (2)  For the purposes of subsection (1), a person is deemed to engage in conduct for a particular purpose if:

                     (a)  the conduct is or was engaged in for that purpose or for a purpose that includes, or included, that purpose; and

                     (b)  that purpose is or was a substantial purpose.

             (3)  A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.

             (4)  Subsection (3) does not limit the manner in which the purpose of a person may be established for the purpose of subsection (1).

             (5)  In this section:

                     (a)  a reference to engaging in conduct is a reference to doing or refusing to do any act, including refusing to supply a regulated network service or, without reasonable grounds, limiting or disrupting a regulated network service, or making, or giving effect to, a provision of, a contract or arrangement, arriving at, or giving effect to, a provision of, an understanding or requiring the giving of, or giving, a covenant;

                     (b)  a reference to refusing to do an act includes a reference to:

                              (i)  refraining (otherwise than inadvertently) from doing that act; or

                             (ii)  making it known that that act will not be done;

                     (c)  a reference to access to a regulated network service is a reference to:

                              (i)  access to a service, the provider of which is a constitutional corporation (or a partnership or joint venture consisting wholly of constitutional corporations); or

                             (ii)  access of a person who is a constitutional corporation; or

                            (iii)  access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.

             (6)  In this section:

regulated network service means a direct control network service or a negotiated network service.

             (7)  Subsection (1) does not apply to conduct engaged in in accordance with an agreement, if the agreement was in force on 30 March 1995.

Example:    An example of conduct which may be prohibited if the requisite purpose is established is refusing to supply, or limiting or disrupting the supply of, a regulated network service to a network service user or prospective network service user for technical or safety reasons without reasonable grounds.

158  Failure to make a decision under this Act or the Rules within time does not invalidate the decision

             (1)  A decision (however described) made under this Act or the Rules by the AER, AEMC or AEMO after the expiry of the period of time specified by this Act or the Rules for the making of that decision is not to be taken to be an invalid decision only because the decision is not made within the specified period of time.

             (2)  A decision to which subsection (1) applies takes effect on and from:

                     (a)  the day it is made; or

                     (b)  if it specifies a date for operation or effect that is after the day it is made, that specified date.

159  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


 

Schedule 1Subject matter for the National Electricity Rules

  

Note:       See section 34.

Registration

1           The registration of persons as Registered participants or otherwise for the purposes of this Act and the Rules, including the deregistration of such persons or suspension of such registrations.

2           The exemption of persons from the requirement to be Registered participants.

3           Prudential requirements to be met by a person:

             (a)       before being registered as a Registered participant; and

             (b)      as a Registered participant.

4           The suspension of Registered participants from participation in the wholesale exchange operated and administered by AEMO.

Participant fees

5           The determination of fees in respect of services provided to Registered participants, or statutory functions performed, by AEMO under the Rules, including the methodology to be applied to determine those fees.

6           The imposition on Registered participants of fees referred to in item 5 and the method of payment and collection of those fees.

Wholesale exchange

7           The setting of prices for electricity and services purchased through the wholesale exchange operated and administered by AEMO, including maximum and minimum prices.

8           The methodology and formulae to be applied in setting prices referred to in item 7.

9           The division of the national electricity market into regions for the purpose of the operation of the wholesale exchange operated and administered by AEMO.

Operation of generation, transmission and distribution systems

10         The disconnection of generating systems, transmission systems, distribution systems or other facilities or loads.

11         The operation of generating systems, transmission systems, distribution systems or other facilities.

12         The augmentation of transmission systems and distribution systems.

13         Access to electricity services provided by means of transmission systems and distribution systems.

14         Access to premises on which there are, and access to, generating systems or other facilities by owners, controllers or operators of transmission systems or distribution systems whose systems are connected to the generating systems or other facilities to test and inspect the generating systems or other facilities for the purpose of determining whether those generating systems or other facilities comply with the Rules.

14A       The treatment of parts of a transmission system as forming part of a distribution system for the purposes of making a network revenue or pricing determination.

14B       The treatment of parts of a distribution system as forming part of a transmission system for the purposes of making a network revenue or pricing determination.

Transmission system revenue and pricing

15         The regulation of revenues earned or that may be earned by owners, controllers or operators of transmission systems from the provision by them of services that are the subject of a transmission determination.

16         (1)      The regulation of prices charged or that may be charged by owners, controllers or operators of transmission systems for the provision by them of services that are the subject of a transmission determination.

             (2)      The regulation of prices that AEMO charges or may charge for the provision of shared transmission services.

17         Principles to be applied, and procedures to be followed, by the AER in exercising or performing an AER economic regulatory function or power relating to the making of a transmission determination.

18         The assessment, or treatment, by the AER, of investment in transmission systems for the purposes of making a transmission determination.

19         The economic framework, mechanisms or methodologies to be applied by the AER for the purposes of item 18.

20         The economic framework, mechanisms or methodologies to be applied or determined by the AER for the purposes of items 15 and 16 including (without limitation) the economic framework, mechanisms or methodologies to be applied or determined by the AER for the derivation of the revenue (whether maximum allowable revenue or otherwise) or prices to be applied by the AER in making a transmission determination.

21         The regulatory asset base, for the purposes of making a transmission determination, of assets forming part of a transmission system owned, controlled or operated by a regulated transmission system operator, and of proposed new assets to form part of a transmission system owned, controlled or operated by a regulated transmission system operator, that are, or are to be, used in the provision of services that are the subject of a transmission determination.

22         The determination by the AER, for the purpose of making a transmission determination with respect to services that are the subject of such a determination, of allowances for:

     (a)     depreciation; and

    (b)     operating costs of a regulated transmission system operator; and

     (c)     if the regulated transmission system operator is a corporation or other body corporate:

     (i)     the income tax payable by corporations; or

    (ii)     amounts payable under a law of a State or Territory or otherwise that are equivalent to income tax that would be payable by the operator if that operator were liable to pay income tax; and

    (d)     a rate of return on assets forming part of a transmission system owned, controlled or operated by a regulated transmission system operator.

23         Incentives for regulated transmission system operators to make efficient operating and investment decisions including, where applicable, service performance incentive schemes.

24         The procedure for the making of a transmission determination by the AER, including:

     (a)     the submission by the relevant service provider of a proposal to the AER relating to the revenue or prices to be regulated by the proposed transmission determination; or

    (b)     the publication of notices by the AER; and

     (c)     the making of submissions by the relevant service provider or any other person; and

    (d)     the holding of pre‑determination conferences; and

     (e)     the publication of draft and final determinations and the giving of reasons.

In this clause, a reference to the relevant service provider is a reference to the regulated transmission system operator to which the determination will apply or, if it will apply to AEMO (as provider of shared transmission services), to AEMO.

Distribution system revenue and pricing

25         The regulation of revenues earned or that may be earned by owners, controllers or operators of distribution systems from the provision by them of services that are the subject of a distribution determination.

26         The regulation of prices (including the tariffs and classes of tariffs) charged or that may be charged by owners, controllers or operators of distribution systems for the provision by them of services that are the subject of a distribution determination.

26A       Principles to be applied, and procedures to be followed, by the AER in exercising or performing an AER economic regulatory function or power relating to the making of a distribution determination.

26B       The assessment, or treatment, by the AER, of investment in distribution systems for the purposes of making a distribution determination.

26C       The economic framework, mechanisms or methodologies to be applied by the AER for the purposes of item 26B.

26D       The economic framework, mechanisms or methodologies to be applied or determined by the AER for the purposes of items 25 and 26 including (without limitation) the economic framework, mechanisms or methodologies to be applied or determined by the AER for the derivation of the revenue (whether maximum allowable revenue or otherwise) or prices to be applied by the AER in making a distribution determination.

26E       The regulatory asset base, for the purposes of making a distribution determination, of assets forming part of a distribution system owned, controlled or operated by a regulated distribution system operator, and of proposed new assets to form part of a distribution system owned, controlled or operated by a regulated distribution system operator, that are, or are to be, used in the provision of services that are the subject of a distribution determination.

26F       The determination by the AER, for the purpose of making a distribution determination with respect to services that are the subject of such a determination, of allowances for:

     (a)     depreciation; and

    (b)     operating costs of a regulated distribution system operator; and

     (c)     if the regulated distribution system operator is a corporation or other body corporate:

     (i)     the income tax payable by corporations; or

    (ii)     amounts payable under a law of this jurisdiction or otherwise that are equivalent to income tax that would be payable by the operator if that operator were liable to pay income tax; and

    (d)     a rate of return on assets forming part of a distribution system owned, controlled or operated by a regulated distribution system operator.

26G       Incentives for regulated distribution system operators to make efficient operating and investment decisions including, where applicable, service performance incentive schemes.

26H       The procedure for the making of a distribution determination by the AER, including:

     (a)     the submission to the AER, by a regulated distribution system operator, of a proposal relating to the revenues or prices to be regulated by a distribution determination applying to the operator; and

    (b)     the publication of notices by the AER; and

     (c)     the making of submissions, including by the regulated distribution system operator to whom the distribution determination will apply; and

    (d)     the publication of draft and final determinations and the giving of reasons; and

     (e)     the holding of pre‑determination conferences.

Regulatory economic methodologies

26I        The regulatory economic methodologies (including the use of the methodology known as the “building block approach”) to be applied by the AER in:

     (a)     making a distribution determination or transmission determination; or

    (b)     amending a distribution determination or transmission determination; or

     (c)     making an access determination.

26J        The methodology known as “total factor productivity”:

     (a)     as a regulatory economic methodology to be applied by the AER for the purpose of:

     (i)     making a distribution determination or transmission determination; or

    (ii)     amending a distribution determination or transmission determination; or

    (iii)    making an access determination;

    (b)     as an economic regulatory tool to inform and assist the AER in applying, or analysing the application of the regulatory economic methodology known as the “building block approach” by the AER for the purpose of:

     (i)     making a distribution determination or transmission determination; or

    (ii)     amending a distribution determination or transmission determination; or

    (iii)    making an access determination.

Electricity network services

26K       Terms and conditions for the provision of electricity network services, or any class of electricity network services (including shared transmission services).

Sale and supply of electricity to retail customers

26L       Credit support arrangements between regulated distribution system operators and retailers, including the financial obligations of regulated distribution system operators and retailers to support the sale and supply of electricity to retail customers.

26M      Charges for the provision of connection services.

Metering

27         The metering of electricity to record the production or consumption of electricity.

28         The registration of metering installations used to meter electricity.

29         The regulation of persons providing metering services relating to the metering of electricity.

Disputes in relation to the Rules

30         Disputes under or in relation to the Rules between persons, including:

     (a)     the appointment of persons to arbitrate, mediate or assist in some other way in the resolution of such disputes;

    (b)     the appointment of a person to manage and facilitate the dispute resolution process (without however derogating from that person’s power to act personally as an arbitrator or mediator in a particular dispute);

     (c)     the procedure for the conduct of such disputes;

    (d)     the provision for appeals on questions of law against decisions of persons appointed to resolve such disputes.

Access disputes

30A       Specification of disputes as access disputes for the purposes of Part 10.

30B       Notification of access disputes for the purposes of Part 10.

30C       Matters or things to be considered or applied by the AER in making an access determination.

30D       Procedure for the hearing of an access dispute under Part 10.

AEMO

30E       The declared network functions.

30F       The application (with or without modification) of Rules, applicable to network service providers, to regulated transmission system operators, or to AEMO in its capacity as a provider of transmission services.

National transmission planning

30G       The preparation, revision and publication of the National Transmission Network Development Plan.

30H       The attainment of a national strategic perspective for transmission planning and coordination.

30I        The establishment and maintenance of a database of information relevant to planning the development of the national grid and the provision of public access to the database.

30J        The collection of information required for the preparation or revision of the National Transmission Network Development Plan.

Miscellaneous

31         The calculation or estimation of use of electricity.

32         Procedures and related systems for the electronic exchange or transfer of information that relates to consumers of electricity, the provision of metering services and connection to the national electricity system, and requiring compliance with such procedures and use of such related systems.

33         Reviews by or on behalf of:

     (a)     the AER, the AEMC or AEMO; or

    (b)     the Reliability Panel or any other panel or committee established by the AEMC; or

     (c)     any other body established, or person appointed, in accordance with the Rules.

34         The payment of money (including the payment of interest):

     (a)     for the settlement of transactions for electricity or services purchased or supplied through the wholesale exchange operated and administered by AEMO;

    (b)     to and from a Rule fund within the meaning of section 55;

     (c)     for any service provided under the Rules in respect of which the Rules require payment.

34A       Specification and classification of electricity network services as direct control network services or negotiated network services.

34B       Reporting and disclosing information to the AER.

34C       Consultation by the AER:

     (a)     on the making of a general regulatory information order;

    (b)     before the preparation of a network service provider performance report.

35         Confidential information held by Registered participants, the AER, the AEMC, AEMO and other persons or bodies conferred a function, or exercising a power or right, or on whom an obligation is imposed, under the Rules, and the manner and circumstances in which that information may be disclosed.

36         Any other matter or thing that is the subject of, or is of a kind dealt with by, a provision of the National Electricity Code as in operation and effect immediately before the commencement of section 12 of the National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 of South Australia.

36A       Any other matter or thing that is the subject of, or is of a kind dealt with by, a provision of the superseded jurisdictional rules.

37         Any matter or thing relating to electricity prescribed by the regulations.


 

Schedule 2Miscellaneous provisions relating to interpretation

Note:       See section 3.

Part 1Preliminary

  

1  Displacement of Schedule by contrary intention

             (1)  The application of this Schedule to this Act, the regulations or other statutory instrument (other than the National Electricity Rules) may be displaced, wholly or partly, by a contrary intention appearing in this Act or the regulations or that statutory instrument.

             (2)  The application of this Schedule to the National Electricity Rules (other than clauses 7, 12, 15, 17, 19, 23 to 26 and 31 to 34, 39, 42 and 43 of this Schedule) may be displaced, wholly or partly, by a contrary intention appearing in the National Electricity Rules.


 

Part 3Terms and references

  

10  Definitions

                   In this Act:

affidavit, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration and promise.

amend includes:

                     (a)  omit or omit and substitute; or

                     (b)  alter or vary; or

                     (c)  amend by implication.

breach includes fail to comply with.

confer, in relation to a function, includes impose.

contravene includes fail to comply with.

definition means a provision of this Act (however expressed) that:

                     (a)  gives a meaning to a word or expression; or

                     (b)  limits or extends the meaning of a word or expression.

expire includes lapse or otherwise cease to have effect.

fail includes refuse.

function includes duty.

instrument includes a statutory instrument.

interest, in relation to land or other property, means:

                     (a)  a legal or equitable estate in the land or other property; or

                     (b)  a right, power or privilege over, or in relation to, the land or other property.

make includes:

                     (a)  issue or grant; and

                     (b)  revoke and substitute.

modification includes addition, omission or substitution.

number means:

                     (a)  a number expressed in figures or words; or

                     (b)  a letter; or

                     (c)  a combination of a number so expressed and a letter.

office includes position.

omit, in relation to a provision of this Act, includes repeal.

penalty includes a civil penalty, forfeiture or punishment.

power includes authority.

printed includes typewritten, lithographed or reproduced by any mechanical means.

proceeding means a legal or other action or proceeding.

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

repeal includes:

                     (a)  revoke or rescind; or

                     (b)  repeal by implication; or

                     (c)  abrogate or limit the effect of the law or instrument concerned; or

                     (d)  exclude from, or include in, the application of the law or instrument concerned, any person, subject matter or circumstance.

sign includes the affixing of a seal or the making of a mark.

statutory declaration means a declaration, made under an Act of the Commonwealth or a State or Territory that authorises a declaration to be made otherwise than in the course of a judicial proceeding.

statutory instrument means the regulations or an instrument made or in force under this Act.

word includes any symbol, figure or drawing.


 

Part 6AEvidentiary matters

Division 1Publication on websites

31AA  Definitions

                   In this Division:

relevant AER decision means a decision (however described) or determination (however described) of the AER under this Act or the Rules.

relevant notice means a notice under the Rules calling for submissions or comments in relation to a relevant decision.

31AB  Publication of relevant AER decisions on websites

             (1)  For the purposes of this Act, a relevant AER decision or relevant notice that is required by this Act or the Rules to be published on a website is to be taken to be published on the website if:

                     (a)  the relevant AER decision or relevant notice is made accessible in full on the website; or

                     (b)  notice of the making or publication of the AER relevant decision or relevant notice is made accessible on that website and the relevant AER decision or relevant notice is made accessible separately in full on that website or in any other identified location.

             (2)  The date on which the relevant AER decision or relevant notice is published on the website is the date notified by the AER on the website as the date of the relevant AER decision’s or relevant notice’s publication (being not earlier than the date on which it was first made so accessible).


 

Division 2Evidentiary certificates

31AC  Definitions

                   In this Division:

AER member has the same meaning as in the Competition and Consumer Act 2010.

relevant notice has the same meaning as in clause 31AA.

31AD  Evidentiary certificates—AER

                   In any proceedings under this Act, a certificate signed or purported to be signed by an AER member, or an SES employee or acting SES employee assisting the AER as mentioned in section 44AAC of the Competition and Consumer Act 2010, stating any of the following matters is evidence of the matter:

                     (a)  a stated document is 1 of the following things made, issued, developed, prepared, promulgated, served, sent, delivered or given under this Act or the Rules:

                              (i)  a decision (however described) or determination (however described);

                             (ii)  an authorisation under section 20;

                            (iii)  a general regulatory information order;

                            (iv)  a notice, notification, direction or requirement;

                     (b)  a stated document is a copy of a thing referred to in paragraph (a);

                     (c)  on a stated day, a person was or was not:

                              (i)  given a decision (however described) or determination (however described);

                             (ii)  authorised as an authorised person (within the meaning of section 19);

                            (iii)  served a notice under section 28 or a regulatory information notice;

                            (iv)  notified under section 28J;

                     (d)  on a stated day any of the following were published on the AER’s website:

                              (i)  a decision (however described) or determination (however described);

                             (ii)  a general regulatory information order;

                            (iii)  a relevant notice.

31AE  Evidentiary certificates—AEMC

                   In any proceedings under this Act, a certificate signed or purported to be signed by a Commissioner or the AEMC chief executive, stating any of the following matters is evidence of the matter:

                     (a)  a stated document is 1 of the following things made, issued, developed, prepared, promulgated, served, sent, delivered or given under this Act or the Rules:

                              (i)  a decision (however described); or

                             (ii)  a determination (however described);

                     (b)  a stated document is a copy of a thing referred to in paragraph (a);

                     (c)  on a stated day a person was or was not given a decision (however described) or determination (however described);

                     (d)  on a stated day a relevant notice was published on the AEMC’s website.

31AF  Evidentiary certificates—AEMO

             (1)  In any proceedings under this Act, any of the following certificates signed or purportedly signed by an authorised officer is evidence of the matter certified:

                     (a)  a certificate certifying that a document identified in the certificate is a decision (however described) or a determination (however described) made by AEMO or a copy of such a decision or determination;

                     (b)  a certificate certifying that a document identified in the certificate was made, issued, developed, prepared, promulgated, served, sent, delivered, or given under this Act or the Rules on a specified date or over a specified period;

                     (c)  a certificate certifying that a decision, determination or notice was published on AEMO’s website on a specified date.

             (2)  For this clause, an authorised officer is AEMO’s CEO or a person authorised by AEMO’s CEO to issue certificates under this clause.


 

Part 7Effect of repeal, amendment or expiration

  

31  Time of Act, the regulations or Rules ceasing to have effect

                   If a provision of this Act, the regulations or the Rules is expressed:

                     (a)  to expire on a specified day; or

                     (b)  to remain or continue in force, or otherwise have effect, until a specified day;

the provision has effect until the last moment of the specified day.