AUSTRALIAN ENERGY MARKET ACT 2004

This compilation was prepared on 7 November 2011
taking into account amendments up to Act No. 119 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General's Department, Canberra

Contents

Part 1--Preliminary 1

1............ Short title [see Note 1] ........................................................................ 1

2............ Commencement ................................................................................... 1

3............ Definitions .......................................................................................... 2

4............ Crown to be bound ............................................................................. 5

5............ Extra-territorial operation .................................................................... 6

Part 2--Application of energy laws as laws of the Commonwealth 7

Division 1--Electricity laws 7

6............ Application of National Electricity Law in offshore areas etc. ............. 7

7............ Application of National Electricity Regulations in offshore areas etc. . 7

9............ Functions and powers of the Australian Energy Market Commission under the National Electricity (Commonwealth) Law and Regulations ........................................................................... 8

10.......... Functions and powers of the Australian Energy Regulator under the National Electricity (Commonwealth) Law and Regulations ......................................................................................... 8

10A....... Functions and powers of the Australian Competition Tribunal under the National Electricity (Commonwealth) Law and Regulations ......................................................................................... 8

10B....... Functions and powers of the Commonwealth Minister under the National Electricity (Commonwealth) Law and Regulations ......................................................................................... 8

11.......... Interpretation of some expressions in the National Electricity (Commonwealth) Law and Regulations etc. 9

Division 2--Gas laws 10

Subdivision A--General 10

11A....... Application of National Gas Law in offshore areas, certain Territories etc. 10

11B....... Application of National Gas Regulations in offshore areas, certain Territories etc. 11

11C....... Functions and powers of the Australian Energy Market Commission under the National Gas (Commonwealth) Law and Regulations ....................................................................................... 11

11D....... Functions and powers of the Australian Energy Regulator under the National Gas (Commonwealth) Law and Regulations ....................................................................................... 11

11E........ Functions and powers of the National Competition Council under the National Gas (Commonwealth) Law and Regulations ....................................................................................... 12

11F........ Functions and powers of the Australian Competition Tribunal under the National Gas (Commonwealth) Law and Regulations ....................................................................................... 12

11G....... Functions and powers of the Commonwealth Minister under the National Gas (Commonwealth) Law and Regulations .......................................................................................................... 12

11H....... Interpretation of some expressions in the National Gas (Commonwealth) Law and Regulations etc. 12

Subdivision B--Offshore Western Australian pipelines 13

11J........ Application of Offshore Western Australian Pipelines Law in offshore area of Western Australia 13

11K....... Application of Offshore Western Australian Pipelines Regulations in offshore area of Western Australia 13

11L........ Functions and powers of the Australian Energy Market Commission under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 14

11M...... Functions and powers of the Economic Regulation Authority under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 14

11N....... Functions and powers of the National Competition Council under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 14

11P........ Functions and powers of the Australian Competition Tribunal under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 14

11Q....... Functions and powers of a Western Australian Minister under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 15

11R....... Interpretation of some expressions in the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations etc. ..................................................................................................... 15

11S........ Inter-governmental arrangements relating to the administration of the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations ............................................ 16

Division 3--Prescribed uniform energy laws 17

12.......... Application of other uniform energy laws in offshore areas ............. 17

Part 3--Miscellaneous 18

13.......... Application of the Administrative Decisions (Judicial Review) Act 1977 18

13A....... Commonwealth consent to conferral of functions etc. on Commonwealth Minister 18

13B....... How duty is imposed ........................................................................ 19

13C....... When a State/Territory energy law imposes a duty ........................... 20

13D....... No Commonwealth tax consequences for certain transfers of assets and liabilities etc. 20

13E........ Exemption from State and Territory taxes ......................................... 21

13F........ Legislative instruments ...................................................................... 22

13G....... Jurisdiction of the Federal Court ....................................................... 23

13H....... Jurisdiction of the Supreme Court of Western Australia ................... 23

13J........ Jurisdiction of a State or Territory court under a prescribed uniform energy law 24

14.......... Regulations ....................................................................................... 24

Notes 27

An Act relating to the regulation of energy markets, and for related purposes

Notes to the Australian Energy Market Act 2004

Note 1

The Australian Energy Market Act 2004 as shown in this compilation comprises Act No. 99, 2004 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Australian Energy Market Act 2004	99, 2004	30 June 2004	Ss. 3-14: 30 June 2005 Remainder: Royal Assent
Offshore Petroleum (Repeals and Consequential Amendments) Act 2006	17, 2006	29 Mar 2006	Schedule 2 (items 2-5): 1 July 2008 (see s. 2(1) and F2008L02273)	--
as amended by
Australian Energy Market Amendment (Gas Legislation) Act 2007	45, 2007	10 Apr 2007	Schedule 2 (item 9): (see 45, 2007 below)	--
Energy Legislation Amendment Act 2006	60, 2006	22 June 2006	Schedule 2 (items 2-11): (a)	--
Australian Energy Market Amendment (Gas Legislation) Act 2007	45, 2007	10 Apr 2007	Schedule 1 (items 2-50): 1 July 2008 (see F2008L02164) Schedule 2 (items 1-4): (b) Schedule 2 (item 9): (b)	--
as amended by
Australian Energy Market Amendment (Minor Amendments) Act 2008	60, 2008	30 June 2008	Schedule 3: 1 July 2008 (see s. 2(1) and F2008L02164)	--
Australian Energy Market Amendment (Minor Amendments) Act 2008	60, 2008	30 June 2008	Schedule 2: (c)	--
Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008	117, 2008	21 Nov 2008	Schedule 3 (items 1, 2): 22 Nov 2008	--
Australian Energy Market Amendment (AEMO and Other Measures) Act 2009	17, 2009	26 Mar 2009	Schedule 1 (items 2-6): 27 Mar 2009	--
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010	103, 2010	13 July 2010	Schedule 6 (items 1, 25, 26): 1 Jan 2011	--
Australian Energy Market Amendment (National Energy Retail Law) Act 2011	119, 2011	14 Oct 2011	Schedule 1: [see s. 2(1), Note 2 and Table A]	Sch. 1 (item 19)

Commencement information
4. Schedule 2, items 2 to 11	Immediately after the commencement of sections 3 to 14 of the Australian Energy Market Act 2004.	30 June 2005

Provision(s)	Commencement	Date/Details
3. Schedule 2, items 1 to 8	The later of: (a) immediately after the commencement of Schedule 1; and (b) immediately after the commencement of Chapter 2 of the Offshore Petroleum Act 2006. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	1 July 2008 (paragraph (b) applies)
4. Schedule 2, item 9	Immediately after the commencement of Chapter 2 of the Offshore Petroleum Act 2006. However, the provision(s) do not commence at all if Chapter 2 of the Offshore Petroleum Act 2006 commences before the commencement of Schedule 1 to this Act.	1 July 2008

Provision(s)	Commencement	Date/Details
2. Schedules 1 and 2	Immediately after the commencement of Schedule 1 to the Australian Energy Market Amendment (Gas Legislation) Act 2007.	1 July 2008 (see F2008L02164)

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
S. 3......................................	am. Nos. 17 and 60, 2006; No. 45, 2007; Nos. 60 and 117, 2008; No. 17, 2009; No. 103, 2010
Ss. 4, 5................................	rs. No. 45, 2007
Part 2
Division 1
Heading to Div. 1 of Part 2........................................	ad. No. 45, 2007
Heading to s. 6..................	am. No. 17, 2006
S. 6......................................	am. Nos. 17 and 60, 2006; No. 45, 2007
Heading to s. 7..................	am. No. 17, 2006
S. 8......................................	am. No. 60, 2006
	rep. No. 45, 2007
Heading to s. 9..................	am. No. 45, 2007
S. 9......................................	am. No. 45, 2007
Heading to s. 10................	am. No. 45, 2007
S. 10....................................	am. No. 45, 2007
Ss. 10A, 10B.......................	ad. No. 45, 2007
Heading to s. 11................	am. No. 45, 2007
S. 11....................................	am. No. 60, 2006; No. 45, 2007
Division 2
Div. 2 of Part 2...................	ad. No. 45, 2007
Subdivision A
Heading to s. 11A..............	am. No. 45, 2007
S. 11A.................................	ad. No. 45, 2007
	am. No. 45, 2007; No. 60, 2008
Heading to s. 11B..............	am. No. 45, 2007
S. 11B.................................	ad. No. 45, 2007
	am. No. 60, 2008
Ss. 11C-11G......................	ad. No. 45, 2007
S. 11H.................................	ad. No. 45, 2007
	am. No. 60, 2008
Subdivision B
Heading to s. 11J..............	am. No. 45, 2007
S. 11J..................................	ad. No. 45, 2007
	am. No. 45, 2007; No. 60, 2008; No. 17, 2009
Heading to s. 11K..............	am. No. 45, 2007
S. 11K.................................	ad. No. 45, 2007
	am. No. 60, 2008; No. 17, 2009
Ss. 11L-11N.......................	ad. No. 45, 2007
Ss. 11P, 11Q......................	ad. No. 45, 2007
S. 11R.................................	ad. No. 45, 2007
	am. No. 60, 2008; No. 17, 2009
S. 11S.................................	ad. No. 45, 2007
Division 3
Heading to Div. 3 of Part 2........................................	ad. No. 45, 2007
Heading to s. 12................	am. No. 17, 2006
S. 12....................................	am. No. 17, 2006; No. 45, 4007
Part 3
S. 13....................................	am. No. 45, 2007
S. 13A.................................	ad. No. 45, 2007
Notes 2-4 to s. 13A(1).......	am. No. 103, 2010
Ss. 13B, 13C.......................	ad. No. 45, 2007
Ss. 13D, 13E.......................	ad. No. 45, 2007
	am. No. 60, 2008
Ss. 13F-13H.......................	ad. No. 45, 2007
S. 13J..................................	ad. No. 45, 2007
S. 14....................................	am. No. 45, 2007

Note 2

Australian Energy Market Amendment (National Energy Retail Law) Act 2011 (No. 119, 2011)

The following amendments commence on 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 amendments may not commence (see subsection 2(1) (item 2)):

Schedule 1

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.

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

(c) the South Australian Energy Retail Legislation as it applies 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:

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).

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).

(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".

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 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

(c) in a case in which the making of the instrument or decision 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:

(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

(c) in a case in which the making of the instrument or decision 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

(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:

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

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

As at 7 November 2011 the amendments are not incorporated in this compilation.

Commonwealth Consolidated Acts

AUSTRALIAN ENERGY MARKET ACT 2004 - NOTES

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
4. Schedule 2, items 2 to 11	Immediately after the commencement of sections 3 to 14 of the Australian Energy Market Act 2004.	30 June 2005