AUSTRALIAN ENERGY MARKET AMENDMENT (NATIONAL ENERGY RETAIL LAW) BILL 2011

i Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. ,

2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Australian Energy Market Act 2004

Part 1--Amendments

Part 2--Transitional

Schedule 2--Other amendments

Administrative Decisions (Judicial Review) Act 1977

Competition and Consumer Act 2010

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

A Bill for an Act to amend the Australian Energy

Market Act 2004 to apply the National Energy

Retail Law, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Australian Energy Market

Amendment (National Energy Retail Law) Act 2011.

2 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.

2 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The later of:

(a) the start of the day this Act receives the

Royal Assent; and

(b) the time, or the earliest time, that the

National Energy Retail Law as set out in

the Schedule to the National Energy

Retail Law (South Australia) Act 2011 of

South Australia starts to apply under an

Act of a State or of the Australian

Capital Territory or the Northern

Territory.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day of the event mentioned in

paragraph (b). The notice is not a legislative

instrument.

3. Schedule 2,

items 1 to 11

The later of:

(a) the start of the day this Act receives the

Royal Assent; and

(b) the time, or the earliest time, that the

National Energy Retail Law as set out in

the Schedule to the National Energy

Retail Law (South Australia) Act 2011 of

South Australia starts to apply under an

Act of a State or of the Australian

Capital Territory or the Northern

Territory.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

Gazette the day of the event mentioned in

paragraph (b). The notice is not a legislative

instrument.

4. Schedule 2,

items 12 and 13

The later of:

(a) immediately after the time the provisions

covered by table item 3 commence; and

(b) the time the Australian Energy Market

Agreement (within the meaning of

Part IIIAA of the Competition and

Consumer Act 2010), or any other

relevant agreement between the

Commonwealth and a State or Territory,

is amended to provide for the designation

of instruments for the purposes of

subsection 44AI(4) of that Act (as

substituted by item 12 of Schedule 2 to

this Act).

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

has not occurred before the end of 12

months after the commencement of

subsection 44AI(4) of that Act (as added by

item 11 of Schedule 2 to this Act).

The Minister must announce by notice in the

Gazette the day of the event mentioned in

paragraph (b). The notice is not a legislative

instrument.

5. Schedule 2,

items 14 to 25

The later of:

(a) the start of the day this Act receives the

Royal Assent; and

(b) the time, or the earliest time, that the

National Energy Retail Law as set out in

the Schedule to the National Energy

Retail Law (South Australia) Act 2011 of

South Australia starts to apply under an

Act of a State or of the Australian

Capital Territory or the Northern

Territory.

4 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

The Minister must announce by notice in the

Gazette the day of the event mentioned in

paragraph (b). The notice is not a legislative

instrument.

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.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Australian Energy Market Act 2004 Schedule 1

Amendments Part 1

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

Schedule 1--Australian Energy Market Act

2004

Part 1--Amendments

1 Section 3

Insert:

National Energy Retail Law and Regulations (Commonwealth)

means:

(a) the National Energy Retail Law (Commonwealth); and

(b) the National Energy Retail Regulations (Commonwealth).

2 Section 3

Insert:

National Energy Retail Law (Commonwealth) means the

provisions applying under section 11T.

3 Section 3

Insert:

National Energy Retail Regulations (Commonwealth) means the

provisions applying under section 11U.

4 Section 3

Insert:

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.

Schedule 1 Australian Energy Market Act 2004

Part 1 Amendments

6 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

5 Section 3 (at the end of the definition of State/Territory

energy law)

Add:

; or (c) a State/Territory energy retail law.

6 Section 3

Insert:

State/Territory energy retail law means:

(a) the South Australian Energy Retail Legislation as it applies

as a law of South Australia; or

(b) the South Australian Energy Retail Legislation as it applies

as a law of another State; or

as a law of the Australian Capital Territory or the Northern

Territory.

7 Section 3 (after paragraph (ab) of the definition of uniform

energy law)

Insert:

(ac) the South Australian Energy Retail Legislation; or

8 After paragraph 4(d)

Insert:

(da) the National Energy Retail Law and Regulations

(Commonwealth);

9 At the end of section 5

Add:

Note:

Section 17 of the National Energy Retail Law (Commonwealth)

provides for the extra-territorial operation of the National Energy

Retail Law (Commonwealth).

10 After Division 2 of Part 2

Insert:

Australian Energy Market Act 2004 Schedule 1

Amendments Part 1

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

Division 2A--Energy retail laws

11T Application of National Energy Retail Law in offshore areas

etc.

(1) 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:

(a) applies as a law of the Commonwealth:

(i) in the offshore area of each State and Territory; and

(ii) in any other places, to any circumstances, or to any

persons, that are prescribed by regulations for the

purpose of this subparagraph; and

(b) so applying may be referred to as the National Energy Retail

Law (Commonwealth).

(2) The reference in subsection (1) 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.

11U Application of National Energy Retail Regulations in offshore

areas etc.

Regulations, as amended from time to time, made under Part 11 of

the National Energy Retail Law set out in the Schedule to the

National Energy Retail Law (South Australia) Act 2011 of South

Australia:

(a) apply as regulations in force for the purposes of the National

Energy Retail Law (Commonwealth); and

(b) so applying may be referred to as the National Energy Retail

Regulations (Commonwealth).

Schedule 1 Australian Energy Market Act 2004

Part 1 Amendments

8 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

11V Functions and powers of the Australian Energy Market

Commission under the National Energy Retail Law and

Regulations (Commonwealth)

(1) The Australian Energy Market Commission has the functions and

powers conferred on it under the National Energy Retail Law and

Regulations (Commonwealth).

(2) Any delegation by the Australian Energy Market Commission is

taken to extend to, and have effect for the purposes of, the National

Energy Retail Law and Regulations (Commonwealth).

11W Functions and powers of the Australian Energy Regulator

under the National Energy Retail Law and Regulations

(Commonwealth)

(1) The Australian Energy Regulator has the functions and powers

conferred on it under the National Energy Retail Law and

Regulations (Commonwealth).

(2) Any delegation by the Australian Energy Regulator is taken to

extend to, and have effect for the purposes of, the National Energy

Retail Law and Regulations (Commonwealth).

11X Functions and powers of the Australian Competition Tribunal

under the National Energy Retail Law and Regulations

(Commonwealth)

The Australian Competition Tribunal has the functions and powers

conferred on it under the National Energy Retail Law and

Regulations (Commonwealth).

11Y Functions and powers of the Commonwealth Minister under

the National Energy Retail Law and Regulations

(Commonwealth)

(1) The Commonwealth Minister has the functions and powers

conferred on him or her under the National Energy Retail Law and

Regulations (Commonwealth).

Australian Energy Market Act 2004 Schedule 1

Amendments Part 1

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

(2) Any delegation by the Commonwealth Minister is taken to extend

to, and have effect for the purposes of, the National Energy Retail

Law and Regulations (Commonwealth).

11Z Interpretation of the National Energy Retail Law and

Regulations (Commonwealth) etc.

(1) In the National Energy Retail Law and Regulations

(Commonwealth):

National Energy Retail Law or this Law means the National

Energy Retail Law (Commonwealth).

the jurisdiction or this jurisdiction means the Commonwealth.

(2)

The

Acts Interpretation Act 1915 of South Australia, and other

Acts of South Australia, do not apply to:

(a) the National Energy Retail Law set out in the Schedule to the

National Energy Retail Law (South Australia) Act 2011 of

South Australia applied as a law of the Commonwealth; or

(b) any regulations made under Part 11 of the National Energy

Retail Law applied as regulations for the purposes of the

National Energy Retail Law (Commonwealth).

(3) The reference in paragraph (2)(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 includes a reference

to any Rules or other instruments made or having effect under that

Law.

(4) Nothing in section 17 of the National Energy Retail Law

(Commonwealth) has effect in relation to the sale and supply of

energy outside the territorial limits of all the participating

jurisdictions for the purposes of that Law.

11 After paragraph 13(1)(cc)

Insert:

(cd) the National Energy Retail Law (Commonwealth); or

(ce) the National Energy Retail Regulations (Commonwealth); or

12 Subsection 13B(1) (note)

Omit "Note", substitute "Note 1".

Schedule 1 Australian Energy Market Act 2004

Part 1 Amendments

10 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

13 At the end of subsection 13B(1)

Add:

Note 2:

Section 320 of a State/Territory energy retail law deals with the case

where a duty purportedly imposed on the Commonwealth Minister

under that law cannot be imposed by the State or Territory or the

Commonwealth due to constitutional doctrines restricting such duties.

14 At the end of section 13F

Add:

(3) To avoid doubt, an instrument made or having effect under:

(a) the National Energy Retail Law (Commonwealth); or

(b) the National Energy Retail Regulations (Commonwealth);

is taken not to be a legislative instrument for the purposes of the

Legislative Instruments Act 2003.

15 At the end of subsection 13G(1)

Add:

; or (c) the National Energy Retail Law and Regulations

(Commonwealth).

16 After paragraph 13G(2)(b)

Insert:

or (c) the National Energy Retail Law (Commonwealth);

17 After section 13J

Insert:

13K Validation of instruments and decisions of Australian Energy

Regulator--energy retail laws

(1) This section applies to an instrument or a decision made by the

Australian Energy Regulator if:

(a) the instrument or decision was made:

(i) on or after the time that the National Energy Retail Law

(South Australia) Act 2011 of South Australia was

enacted; but

(ii) before the time (the application time) that the South

Australian Energy Retail Legislation first started to

Australian Energy Market Act 2004 Schedule 1

Amendments Part 1

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

apply under this Act as a law of the Commonwealth;

and

(b) the making of the instrument or decision would have been

authorised by the National Energy Retail Law and

Regulations (Commonwealth) (the authorising law) if the

South Australian Energy Retail Legislation had started so to

apply; and

would be so authorised subject to the satisfaction of any

conditions or other requirements (for example, consultation

or publication requirements)--the Australian Energy

Regulator has done anything that would, if the South

Australian Energy Retail Legislation had started so to apply,

be required under the authorising law for the instrument or

decision to be so authorised.

(2) For the purposes of the authorising law:

(a) the instrument or decision is taken to be valid; and

(b) the instrument or decision has effect from the application

time:

(i) as varied, and unless revoked, by any other instrument

or decision to which this section applies; and

(ii) subject to that law as so applying.

(3) For the purposes of this section:

(a) guidelines are an example of an instrument; and

(b) the following are examples of decisions:

(i)

appointments;

(ii)

determinations;

(iii)

approvals.

13L Authorisation of preparatory steps for instruments or decisions

of Australian Energy Regulator--energy retail laws

(1) This section applies if:

(a) the Australian Energy Regulator is required to do something

(a preparatory step) before making a decision or making an

instrument under the National Energy Retail Law and

Regulations (Commonwealth) (the authorising law); and

(b) the Australian Energy Regulator takes the preparatory step:

Schedule 1 Australian Energy Market Act 2004

Part 1 Amendments

12 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

(i) on or after the time that the National Energy Retail Law

(South Australia) Act 2011 of South Australia was

enacted; but

(ii) before the time that the South Australian Energy Retail

Legislation first started to apply under this Act as a law

of the Commonwealth.

(2) For the purposes of the authorising law, the Australian Energy

Regulator is taken to have complied with the requirement to take

the preparatory step.

13M Validation of instruments and decisions of Australian Energy

Regulator--electricity and gas laws

(1) This section applies to an instrument or a decision made by the

Australian Energy Regulator if:

(a) the instrument or decision was made:

(i) on or after the time that the amendments of the South

Australian Electricity Legislation or the South

Australian Gas Legislation by the Statutes Amendment

(National Energy Retail Law) Act 2011 of South

Australia were enacted; but

(ii) before the time (the application time) that the

amendments started to apply under this Act as a law of

the Commonwealth; and

(b) the making of the instrument or decision would have been

authorised by the National Electricity (Commonwealth) Law

and Regulations or the National Gas (Commonwealth) Law

and Regulations (the authorising law) if the amendments had

started so to apply; and

would be so authorised subject to the satisfaction of any

conditions or other requirements (for example, consultation

or publication requirements)--the Australian Energy

Regulator has done anything that would, if the amendments

had started so to apply, be required under the authorising law

for the instrument or decision to be so authorised.

(2) For the purposes of the authorising law:

(a) the instrument or decision is taken to be valid; and

Australian Energy Market Act 2004 Schedule 1

Amendments Part 1

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

(b) the instrument or decision has effect from the application

time:

(i) as varied, and unless revoked, by any other instrument

or decision to which this section applies; and

(ii) subject to that law as so applying.

(3) For the purposes of this section:

(a) guidelines are an example of an instrument; and

(b) the following are examples of decisions:

(i)

appointments;

(ii)

determinations;

(iii)

approvals.

13N Authorisation of preparatory steps for instruments or decisions

of Australian Energy Regulator--electricity and gas laws

(1) This section applies if:

(a) the Australian Energy Regulator is required to do something

(a preparatory step) before making a decision or making an

instrument under the National Electricity (Commonwealth)

Law and Regulations or the National Gas (Commonwealth)

Law and Regulations (the authorising law); and

(b) the preparatory step would have been required under the

authorising law if the amendments of South Australian

Electricity Legislation or the South Australian Gas

Legislation made by the Statutes Amendment (National

Energy Retail Law) Act 2011 of South Australia had started

to apply under this Act as a law of the Commonwealth; and

(i) on or after the time that the amendments were enacted;

but

(ii) before the time that the amendments started to apply

under this Act as a law of the Commonwealth.

(2) For the purposes of the authorising law, the Australian Energy

Regulator is taken to have complied with the requirement to take

the preparatory step.

18 After paragraph 14(3)(cc)

Insert:

Australian Energy Market Act 2004 Schedule 1

Transitional Part 2

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

Part 2--Transitional

19 Transitional--regulations

The Governor-General may make regulations dealing with matters of a

transitional, saving, or application nature relating to:

(a) the amendments made by Part 1 of this Schedule; or

(b) the National Energy Retail Law and Regulations

(Commonwealth); or

Legislation made by the Statutes Amendment (National

Energy Retail Law) Act 2011 of South Australia that apply as

a law of the Commonwealth under the Australian Energy

Market Act 2004; or

(d) the amendments of the South Australian Gas Legislation

made by the Statutes Amendment (National Energy Retail

Law) Act 2011 of South Australia that apply as law of the

Commonwealth under the Australian Energy Market Act

2004.

Schedule 2 Other amendments

16 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

Schedule 2--Other amendments

Administrative Decisions (Judicial Review) Act 1977

1 After paragraph 2(da) of Schedule 3

Insert:

(db) 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, as that Law

applies as a law of South Australia;

(dc) if an Act of another State or of the Australian Capital

Territory or the Northern Territory applies 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, as that Law applies

as a law of that other State or of that Territory--the National

Energy Retail Law as so applied;

Competition and Consumer Act 2010

2 Subsection 4(1) (at the end of the definition of designated

Commonwealth energy law)

Add:

; or (d) the National Energy Retail Law and Regulations

(Commonwealth) (as defined by the Australian Energy

Market Act 2004).

3 Subsection 4(1)

Insert:

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.

4 Subsection 4(1)

Other amendments Schedule 2

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

Insert:

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.

5 Subsection 4(1) (after paragraph (c) of the definition of

uniform energy law)

Insert:

(ca) the South Australian Energy Retail Legislation; or

6 Subsection 44AI(1)

After "energy law", insert " or a local energy instrument".

Note:

The following heading to subsection 44AI(1) is inserted "General rule".

7 Subsection 44AI(1)

After "that law", insert "or instrument".

8 Subsection 44AI(1) (note)

After "law", insert "or instrument".

9 Subsection 44AI(2)

After "energy law", insert "or local energy instrument".

10 Subsection 44AI(3)

After "energy law", insert "or local energy instrument".

11 At the end of section 44AI

Add:

Schedule 2 Other amendments

18 Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No.

, 2011

Local energy instruments

(4) A local energy instrument may confer functions or powers, or

impose duties, on the AER only if the instrument is prescribed by

the regulations for the purposes of this subsection.

(5) To avoid doubt, if a State/Territory energy law is also a local

energy instrument, subsection (4) applies to the law.

12 Subsection 44AI(4)

Repeal the subsection, substitute:

(4) A local energy instrument may confer functions or powers, or

impose duties, on the AER 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.

13 Saving of regulations made for the purposes of

subsection 44AI(4)

Despite the repeal of subsection 44AI(4) by item 12 of this Schedule,

regulations in force for the purposes of subsection 44AI(4) of the

Competition and Consumer Act 2010 immediately before the

commencement of this item continue in effect on and after that

commencement, and may be repealed, as if the repeal of subsection

44A1(4) had not happened.

14 Subsection 44AJ(1)

After "energy law", insert "or local energy instrument".

15 Subsection 44AJ(1) (note)

Omit "Note", substitute "Note 1".

16 Subsection 44AJ(1) (note)

After "law", insert "or instrument".

17 At the end of subsection 44AJ(1)

Add:

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

Other amendments Schedule 2

Australian Energy Market Amendment (National Energy Retail Law) Bill 2011 No. , 2011

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.

18 Paragraph 44AJ(2)(b)

After "the law", insert "or instrument".

19 Subsection 44AJ(2) (note)

After "law" (wherever occurring), insert "or instrument".

20 Subsection 44AJ(3)

After "the law", insert "or instrument".

21 Section 44AK

After "energy law", insert "or local energy instrument".

Note:

The heading to section 44AK is altered by inserting "etc." after "energy law".

22 Paragraph 44AK(a)

After "the law", insert "or instrument".

23 Section 44AL (note)

After "laws" (wherever occurring), insert "or instruments".

24 Subsection 44ZZMA(1) (note)

Omit "Note", substitute "Note 1".

25 At the end of subsection 44ZZMA(1)

Add:

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.

Commonwealth of Australia Bills

AUSTRALIAN ENERGY MARKET AMENDMENT (NATIONAL ENERGY RETAIL LAW) BILL 2011